October 4, 2017
Katherine C. Essington, for the appellant (defendant).
E. Mattei, assistant state's attorney, with whom, on the
brief, were John C. Smriga, state's attorney, and Howard
S. Stein, senior assistant state's attorney, for the
Sheldon, Prescott and Beach, Js.
case returns to us on remand from our Supreme Court with
direction to consider the claim of plain error raised by the
defendant, Jayevon Blaine, in light of State v.
McClain, 324 Conn. 802, 155 A.3d 209
(2017). The defendant previously appealed from the
judgment of conviction of conspiracy to commit robbery in the
first degree in violation of General Statutes §§
53a-48 and 53a-134 (a) (2). We held in our prior opinion that
the waiver of a claim of instructional error pursuant to
State v. Kitchens, 299 Conn. 447, 10 A.3d
942 (2011), precluded review of the claim of plain error.
State v. Blaine, 168 Conn.App. 505, 517-19
and n.5, 147 A.3d 1044 (2016), remanded in part, 325 Conn.
918, 163 A.3d 618 (2017). In State v.
McClain, supra, 815, our Supreme Court held that a
Kitchens waiver did not preclude a claim of plain
error. We now consider the defendant's claim that the
trial court committed plain error by incorrectly instructing
the jury on the requisite intent to find him guilty of
conspiracy to commit robbery in the first degree. We conclude
that the record does not support the claim that the pertinent
instruction constituted plain error. Accordingly, we affirm
the judgment of the trial court.
following facts are relevant to this appeal. After the killing
of the victim, Kevin Soler, on Bretton Street in Bridgeport,
the defendant was arrested and charged with murder in
violation of General Statutes § 53a-54a (a), attempt to
commit robbery in the first degree in violation of General
Statutes §§ 53a-49 and 53a-134 (a) (2), felony
murder in violation of General Statutes §53a-54c, and
conspiracy to commit robbery in the first degree in violation
of §§ 53a-48 and 53a-134 (a) (2). As we stated in
our prior opinion: ‘‘[F]our people . . . together
with the defendant, were charged with, inter alia, conspiracy
to commit robbery in the first degree.
four of the defendant's co conspirators, [Jihad] Clemons,
Craig Waddell, Hank Palmer, and Mike Lomax, who had known
each other for several years but had only recently been
introduced to the defendant, testified for the state at the
defendant's trial. The crux of their testimony, as it
related to the charge of conspiracy, was that they and the
defendant had entered into an agreement to rob Robert Taylor,
a drug dealer.
was the first of the conspirators to testify. He testified
that on September 6, 2009, he and Waddell visited their
friend, Braxton Gardner, and decided to buy some marijuana.
To that end, Gardner made a phone call to Taylor, a drug
dealer with whom he was familiar. Gardner met Taylor a block
or two from his house and completed the purchase. Clemons,
Waddell, and Gardner smoked the marijuana that they had
purchased, and then Gardner left to attend his younger
brother's football game.
thereafter, Clemons and Waddell decided that they wanted more
marijuana, so they called Gardner to get Taylor's
telephone number. Clemons then called Taylor, who met them
near Gardner's house and sold them more marijuana. While
Clemons and Waddell were smoking the newly purchased
marijuana, they walked to Palmer's house and discussed
robbing Taylor. Lomax arrived at Palmer's house, and the
four men discussed their plan to rob Taylor.
Waddell, and Lomax left Palmer's house- leaving Palmer
behind-and drove Lomax' car, a white Honda, to [DeAndre]
Harper's house to ask Harper if he would like to be
involved in their planned robbery of Taylor. They found
Harper outside on his porch with his cousin, the defendant.
Harper and the defendant approached Lomax' vehicle, where
they discussed the robbery. Clemons, Waddell, and Lomax first
asked Harper if he wanted to participate in the robbery, but
Harper declined. They then asked the defendant if he wanted
to participate, and he agreed to do so. The defendant got
into Lomax' vehicle, and the four men returned to
they arrived at Palmer's house, the five men spent
forty-five minutes further discussing their plan to rob
Taylor. They agreed that Clemons would call Taylor to set up
a meeting and that the defendant would rob him using a nine
millimeter handgun, while Waddell stood nearby. Lomax would
drive the car to the place of the meeting, and Palmer would
stay in the car with Lomax. They agreed that they would steal
Taylor's drugs, car, and cell phone.
some point after dark, the men went to meet Taylor. Taylor
had told Clemons that he was running late because he had a
flat tire. Clemons parted company with the others to go home
because he was late for his curfew. Meanwhile . . . Taylor
got a ride to the rendezvous with his friend, Soler, and
Soler's girlfriend, [Priscilla] LaBoy. Soler parked at
the agreed upon location, and a person appeared; Soler and
the person conversed because Soler had agreed to conclude the
sale on Taylor's behalf. The other person then shot
Soler.'' (Footnote added.) State v.
Blaine, supra, 168 Conn.App. 508-10. Soler was later
found dead by the Bridgeport police. Id., 507.
jury found the defendant guilty of conspiracy to commit
robbery in the first degree but not guilty of the other
charges. On appeal to this court, the defendant claimed that
(1) there was insufficient evidence to sustain his conviction
of conspiracy to commit robbery in the first degree,
the court erred in denying his request for a jury instruction
on third-party culpability, and (3) the court erred in
failing to instruct the jury according to the principles set
forth in State v.Pond,138 Conn.App. 228,
50 A.3d 950 (2012), aff'd, 315 Conn. 451, 108 A.3d 1083
(2015). See State v.Blaine, supra, 168
Conn.App. 507, 517. In affirming the trial court's
judgment, we concluded that there was sufficient evidence to
sustain the defendant's conviction and that any error
resulting from the court's failure to ...