State v. Blaine

168 Conn.App. 505

147 A.3d 1044

State of Connecticut

v.Jayevon Blaine

AC 36832

Appellate Court of Connecticut.

Argued January 19, 2016

Officially released September 27, 2016

Katherine C. Essington, assigned counsel, 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).

Beach, Sheldon and Prescott, Js.

BEACH, J.

The defendant, Jayevon Blaine, appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a–48 and 53a–134 a) (2).¹ On appeal, the defendant claims that (1) the evidence was insufficient to sustain his conviction; (2) the trial court erred in denying his request for a jury instruction on third party culpability; and (3) the court incorrectly instructed the jury on the requisite intent to find him guilty of conspiracy to commit robbery in the first degree. We affirm the judgment of the trial court.

Evidence supporting the following facts was presented to the jury. On September 6, 2009, at approximately 9:35 p.m., Bridgeport police Officer Paul Scillia was dispatched to Bretton Street in Bridgeport to respond to reports of gunshots and a suspicious vehicle. Upon arrival, he observed the victim, later identified as Kevin Soler, lying in the backseat of a vehicle, with his legs hanging out of an open door. Scillia checked the victim for a pulse and determined that he was deceased. He radioed for backup.

Soon after the other officers arrived at the scene, Scillia and the other officers were approached by Priscilla LaBoy. She was crying hysterically. LaBoy told Scillia that the deceased person in the car was her boyfriend. She told Scillia that the victim had picked her up earlier in the day and that they met a friend of his.² The three drove to a designated location where they parked and waited for another person. After they waited there for a couple of minutes, a black male, approximately six feet tall and wearing a black hoodie, approached their vehicle from across the street. The victim exited his vehicle and met the other man in the middle of the street. LaBoy overheard Soler, who sounded anxious, tell the other man that they had met each other at the other man's “baby mama's party.”

LaBoy told Scillia that the other man then shot her boyfriend.

Police investigators at the scene found a cell phone belonging to Robert Taylor, who had been the third person in the car; an examination of the cell phone led the police to Jihad Clemons. The police questioned Clemons, who said the defendant was the shooter. Two days later, police executed a warrant for the arrest of the defendant on other charges. The defendant lived at the time with DeAndre Harper and Harper's younger brother and sister, Sean Harper and Antonajia Pettway. In the course of executing the warrant, the police found two guns under a mattress, which Harper and his brother slept on; the defendant slept in the same small bedroom on a different mattress. One of the guns, a nine millimeter handgun, was determined by a firearms expert to have fired the bullet recovered from the victim's body. Further investigation led to the arrests of four people who, together with the defendant, were charged with, inter alia, conspiracy to commit robbery in the first degree.

All four of the defendant's coconspirators, 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.

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's car, a white Honda, to 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's 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's 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, as noted previously in this opinion, Taylor got a ride to the rendezvous with his friend, Soler, and Soler's girlfriend, 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. Taylor ran from the scene and dropped his cell phone; other shots were fired at Taylor.

Clemons later called Harper to try to get in touch with the defendant. Clemons testified that he called Harper's phone and the defendant answered. Clemons “asked him what happened, and he said he killed one of them and one of them tried to run and I guess he shot at them and that was it.” The defendant also admitted to Pettway that he shot someone; and Waddell, who had been in the vicinity of the shooting but was not immediately with the defendant at the time, told Lomax and Palmer that the defendant had shot someone.

I

The defendant first claims that the evidence was insufficient to sustain his conviction of conspiracy to commit robbery in the first degree. We disagree.

“The two part test this court applies in reviewing the sufficiency of the evidence supporting a criminal conviction is well established. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Lewis , 303 Conn. 760, 767, 36 A.3d 670 (2012).

“To establish the crime of conspiracy, it must be shown that an agreement was made to engage in conduct constituting a crime, that the conspirators intended that the conduct be performed and that the agreement was followed by an overt act in furtherance of the conspiracy. ... Conspiracy is a specific intent crime, with the intent divided into two elements: (a) the intent to conspire and (b) the intent to commit the offense which is the object of the conspiracy. ... Thus, [p]roof of a conspiracy to commit a specific offense requires proof that the conspirators intended to bring about the elements of the conspired offense.” (Citation omitted; internal quotation marks omitted.) State v. Palangio , 115 Conn.App. 355, 362, 973 A.2d 110, cert. denied, 293 Conn. 919, 979 A.2d 492 (2009) ; see also General Statutes § 53a–48.

A person is guilty of the crime of robbery in the first degree, as defined in § 53a–134 (a), when “in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon. ...” General Statutes § 53a–133 provides: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

There can be no doubt that the evidence was more than sufficient to sustain the conviction. Clemons, Waddell, Palmer, and Lomax all testified that they, together with the defendant, devised the plan to rob Taylor. They testified about the steps that they took to execute the plan. The defendant was to be the gunman and Waddell the backup. In this case, there was direct testimony about the planning to rob Taylor with the use of a firearm.

The defendant's sole attack on the sufficiency of the evidence appears to be limited to his assertion that by finding him not guilty of murder, felony murder and attempted...