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State v. Blaine

Court of Appeals of Connecticut

February 6, 2018

STATE OF CONNECTICUT
v.
JAYEVON BLAINE

          Argued October 4, 2017

          Katherine C. Essington, for the appellant (defendant).

          Adam 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 appellee (state).

          Sheldon, Prescott and Beach, Js.

          OPINION

          BEACH, J.

         This 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).[1] 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).[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.

         The following facts are relevant to this appeal.[3] 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.

         ‘‘All 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.[4]

         ‘‘Clemons 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.

         ‘‘Shortly 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.

         ‘‘Clemons, 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 Palmer's house.

         ‘‘When 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.

         ‘‘At 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.

         The 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, [5] (2) 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 ...


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