Argued
September 23, 2019
Procedural
History
Substitute
information charging the defendant with the crimes of murder,
felony murder, attempt to commit robbery in the first degree,
and conspiracy to commit robbery in the first degree, brought
to the Superior Court in the judicial district of Fairfield
and tried to the jury before Kahn, J.;
verdict and judgment of guilty of conspiracy to commit
robbery in the first degree, from which the defendant
appealed to the Appellate Court, Beach,
Sheldon and Prescott, Js., which
affirmed the trial court's judgment; thereafter, this
court granted the defendant's petition for certification
to appeal and remanded the case to the Appellate Court for
consideration of the defendant's claim of plain error;
subsequently, the Appellate Court, Sheldon,
Prescott and Beach, Js., affirmed
the trial court's judgment, and the defendant, on the
granting of certification, appealed to this court.
Affirmed.
Katherine C. Essington, assigned counsel, for the appellant
(defendant).
Rocco
A. Chiarenza, 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).
Palmer, McDonald, D'Auria, Mullins, Ecker and
Vertefeuille, Js.
OPINION
ECKER,
J.
The
sole issue in this certified appeal is whether the
defendant's conviction of conspiracy to commit robbery in
the first degree in violation of General Statutes
§§ 53a-48 and 53a-134 (a) (2) should be reversed
under the plain error doctrine due to an alleged error in the
trial court's jury instructions. The defendant, Jayevon
Blaine, contends that the trial court improperly failed to
instruct the jury on an essential element of the crime as
required by State v. Pond, 138 Conn.App. 228,
238-39, 50 A.3d 950 (2012), aff'd, 315 Conn. 451, 108
A.3d 1083 (2015), namely, that he agreed and specifically
intended that he or another participant in the robbery would
be ‘‘armed with a deadly weapon . . . .''
General Statutes § 53a-134 (a) (2). The Appellate Court
held that there was no ‘‘obvious and undebatable
error'' in the trial court's jury instructions
because the relevant instructions ‘‘logically
required the jury to find that the defendant had agreed that
a participant would be armed with a deadly weapon.''
State v. Blaine, 179 Conn.App. 499, 510, 180 A.3d
622 (2018). The Appellate Court also held that, even if the
instructions were erroneous, there was no manifest injustice
necessitating reversal of the defendant's conviction
because ‘‘[e]very witness who testified that the
agreement existed also testified that use of a weapon was
contemplated.'' Id., 511. We affirm the
judgment of the Appellate Court.
The
jury reasonably could have found the following facts. On
September 6, 2009, Jihad Clemons and Craig Waddell devised a
plan to rob a drug dealer named Robert Taylor of his money,
drugs, cell phone, and car. They discussed their plan with
their friends, Hank Palmer and Michael Lomax, both of whom
agreed to participate. At some point, Lomax, Clemons, and
Wad-dell went to the home of another friend, DeAndre Harper,
to inquire whether he wanted to join them in the robbery.
Harper declined the invitation, but the defendant, who is
Harper's cousin and who was living with Harper at the
time, agreed to participate.
Clemons,
Waddell, Palmer, Lomax, and the defendant decided to use a
nine millimeter handgun to accomplish the robbery. Clemons
called Taylor and arranged a meeting near the Blackham School
in Bridgeport, purportedly to purchase marijuana. At around 9
p.m., Lomax drove Waddell, Palmer, and the
defendant[1] in Lomax' white Honda to wait for
Taylor near the Blackham School.
Taylor
arrived at the Blackham School with the victim, Kevin Soler,
and the victim's girlfriend, Priscilla LaBoy. It was very
dark that night, and the three waited in the car until they
saw someone dressed in dark clothing and a hoodie
approaching. The victim exited the car to conduct the drug
transaction on Taylor's behalf. LaBoy heard the victim
say that the two men knew each other from a party, and the
individual in the hoodie then backed away and accused the
victim of having a gun. The victim responded that he was
unarmed and lifted up his shirt, at which point the
individual in the hoodie pulled out his own gun and shot the
victim multiple times at close range, killing him. The
shooter instructed LaBoy to get out of the car, and she
complied. Taylor also exited the car and began to run away.
The shooter chased after Taylor, firing his gun two more
times. LaBoy ran away from the scene of the shooting but
later returned, at which point she saw a white car drive by
and slow down as it passed by Taylor's car and the
victim's body.
Two
days later, at approximately 5:40 a.m., the police arrived at
the home of Harper and the defendant to execute two arrest
warrants unrelated to the events in this case. They found the
defendant, Harper, and Harper's younger brother sleeping
in the same bedroom. During a search of the bedroom, the
police uncovered two firearms from under the mattress on
which Harper and his brother had been sleeping. Later testing
revealed that one of those firearms had been used in the
fatal shooting of the victim.
The
defendant subsequently was arrested and charged with the
murder of Soler in violation of General Statutes §
53a-54a (a), felony murder in violation of General Statutes
§ 53a-54c, attempt to commit robbery in the first degree
in violation of General Statutes §§ 53a-49 and
53a-134 (a) (2), and conspiracy to commit robbery in the
first degree in violation of §§ 53a-48 and 53a-134
(a) (2). Following a jury trial, at which the defendant's
coconspirators Clemons, Waddell, Lomax, and Palmer testified,
the jury found the defendant not guilty of the crimes of
murder, felony murder, and attempt to commit robbery in the
first degree, but guilty of the crime of conspiracy to commit
robbery in the first degree. The trial court rendered
judgment in accordance with the jury's verdict and
sentenced the defendant to a term of imprisonment of twenty
years, execution suspended after fifteen years, followed by
five years of probation.
The
Appellate Court affirmed the defendant's judgment of
conviction. State v. Blaine, 168 Conn.App. 505, 507,
147 A.3d 1044 (2016). The Appellate Court held that (1) the
evidence was sufficient to support the defendant's
conviction of conspiracy to commit robbery in the first
degree; id., 510; (2) the trial court's denial
of the defendant's request for a jury instruction on
third-party culpability was harmless; id., 517; and
(3) the defendant implicitly waived his claim that the trial
court had failed to instruct the jury on the essential
element of intent pursuant to State v. Pond, supra,
138 Conn.App. 228, and, therefore, that the defendant was not
entitled to relief under State v. Golding, 213 Conn.
233, 239-40, 567 A.2d 823 (1989), the plain error doctrine,
or the court's supervisory authority. See State v.
Blaine, supra, 168 Conn.App. 518-19 and n.5. We granted
the defendant's petition for certification to appeal,
limited to his claim of plain error, and we remanded the case
to the Appellate Court with direction to reconsider the
defendant's plain error claim in light of State v.
McClain, 324 Conn. 802, 815, 155 A.3d 209 (2017), in
which we held that an implied waiver of a claim of
instructional error does not preclude appellate relief ...