State v. Blaine

• Decision Date: 31 December 2019
• Docket Number: SC 20087
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Jayevon BLAINE

334 Conn. 298

221 A.3d 798

STATE of Connecticut

v.Jayevon BLAINE

SC 20087

Supreme Court of Connecticut.

Argued September 23, 2019

Officially released December 31, 2019

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.

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., at 511, 180 A.3d 622. 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 Waddell 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 defendant¹ 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., at 510, 147 A.3d 1044 ; (2) the trial court's denial of

the defendant's request for a jury instruction on third-party culpability was harmless; id., at 517, 147 A.3d 1044 ; 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. at 228, 50 A.3d 950, 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. at 518–19 and n.5, 147 A.3d 1044. 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 under the plain error doctrine. See State v. Blaine , 325 Conn. 918, 918–19, 163 A.3d 618 (2017). On remand, the Appellate Court again affirmed the defendant's judgment of conviction, concluding that there was no obvious error or manifest injustice. State v. Blaine , supra, 179 Conn. App. at 511, 180 A.3d 622. This certified appeal followed.²

The defendant contends that the trial court's jury instructions on conspiracy to commit robbery in the first degree were plainly erroneous because they omitted an essential element of the crime, namely, that the defendant agreed and specifically intended that he or another participant in the robbery would be armed with a deadly weapon. Because the omission of an essential element of the crime implicates the defendant's right to due process of law under the fourteenth amendment

to the United States constitution, the defendant argues that the state bears the burden to establish beyond a reasonable doubt that there was no reasonable possibility that the jury was misled by the claimed instructional error. The state cannot meet this burden, the defendant contends, in light of what he characterizes as the jury's inconsistent verdict and the conflicting evidence regarding the shooter's identity. The defendant argues that the proper remedy for the alleged error is to modify the judgment pursuant to State v. Greene , 274 Conn. 134, 160–62, 874 A.2d 750 (2005), cert. denied, 548 U.S. 926, 126 S. Ct. 2981, 165 L. Ed. 2d 988 (2006), to reflect a conviction of the lesser included offense of conspiracy to commit robbery in the third degree pursuant to General Statutes § 53a-136, which does not include the deadly weapon element.

The state responds that there was no plain error in the trial court's jury instructions because the law governing the intent necessary to commit conspiracy was unsettled at the time of the defendant's trial, pointing out that the Appellate Court's decision in Pond was not unanimous and review of that decision was pending in this court while the present case was being tried. See State v. Pond , supra, 138 Conn. App. at 239, 50 A.3d 950 (Borden , J. , concurring) (identifying "an anomaly in [this court's] interpretation of the conspiracy section of the Penal Code that [this court] may wish to revisit"). The state also contends that, even if Pond is applicable, the Appellate Court correctly concluded that "the jury instructions in this case were not so clearly and obviously wrong that they rose to the level of ‘plain error.’ " In any event, the state argues that any error in the jury instructions was harmless, regardless of the standard of review applied, because every coconspirator testified that the conspiracy included an express agreement to use a deadly weapon to accomplish the robbery. Lastly, with respect to the proper remedy, the state contends that, if this court determines that there is plain error

necessitating reversal of the defendant's conviction, the appropriate remedy is not a modified judgment but a new trial before a properly instructed jury. See State v. Pond , supra, 315 Conn. at 489, 108 A.3d 1083.

Our review of the Appellate Court's decision whether to reverse a judgment under the plain error doctrine is subject to...