State v. BlaineState v. Blaine
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Convicted of the crime of conspiracy to commit robbery in the first degree in connection with his involvement, along with that of four other coconspirators, in the shooting death of a drug dealer, the defendant appealed to the Appellate Court, claiming, inter alia, that the trial court’s failure to instruct the jury on the requisite intent necessary to find him guilty of that offense constituted plain error. The trial court had instructed the jury on the elements of the substantive crime оf robbery in the first degree, including the element that one or more participants in the robbery be armed with a deadly weapon, and that, to find the defendant guilty of conspiracy, it had to find that the defendant specifically intended to commit the substantive crime. On appeal, the defendant claimed that the court’s instructions were plainly erroneous because they relieved the state of its burden of proving, as required by State v. Pond (138 Conn. App. 228), that he specifically intended that every element of the conspired offense be accomplished because the court did not expressly instruct the jury that, to return a guilty verdict, it must find that he had agreed and specifically intended that he or one of his coconspirators would be armed with a deadly weapon. The Appellate Court affirmed the judgment of conviction, concluding, inter alia, that the defendant implicitly had waived his unpreserved claim of instructional error and, therefore, was not entitled to relief under the plain error doctrine. Thereafter, this court granted the defendant’s petition for certification to appeal and remanded the case to the Appellate Court with direction to reconsider the defendant’s plain error claim in light of this court’s decision in State v. McClain (324 Conn. 802), which held that an implicit waiver does not foreclose appellate review of unpreserved claims of instructional error under the plain error doctrine. On remand, the Appellate Court again affirmed the judgment of conviction, concluding that the defendant had failed to establish that an obvious error had occurred or that a manifest injustice would result from failing to reverse his conviction. On the granting of certification, the defendant appealed to this court. Held that the defendant could not prevail on his claim that the trial court committed plain error by failing to instruct the jury that, to find the defendant guilty of conspiracy to commit robbery in the first degree, it had to find that he intended and specifically agreed that he or another participant in the robbery would be armed with a deadly weapon; although it is the better practice for the trial court to instruct the jury in direct terms that the defendant must have specifically intended each element of the offense, this court could not conclude that the trial court committed an error so clear or obvious as to necessitate reversal because, when read as a whole, the jury charge, which instructed the jury on the intent requirement for conspiracy to commit robbery in the first degree and set forth the elements of the substantive crime of first degree robbery, was sufficient to guide the jury to a correct verdict and logically required the jury to find that the defendant had agreed and specifically intended that he or another participant in the robbery would be armed with a deadly weapon.
Argued September 23—officially released December 31, 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,
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).
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
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 marijuanа. 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
Two days later, at approximately 5:40 a.m., the police arrived at the home of Harper and the defendant to execute two arrеst 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
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 suffiсient 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,
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
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. 239 (Borden, J., concurring) (identifying “an anomaly in [this court’s] interprеtation 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
Our review of the Appellate Court’s decision whether to reverse a judgment under the plain error doctrine is subject to plenary review. See, e.g., State v. Sanchez, 308 Conn. 64, 80, 60 A.3d 271 (2013). “[The plain error] doctrine, codified at Practice Book § 60-5, is an extraordinary remedy used by appellate courts to rectify errors committed at trial that, although unpreserved, are of such monumental proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party.” (Internal quotation marks omitted.) Id., 76–77. “It is axiomatic that, [t]he plain error doctrine . . . is not . . . a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment . . . for reasons of policy. . . . Put another way, plain error review is reserved for only the most egregious errоrs. When an error of such a magnitude exists, it necessitates reversal.” (Citation omitted; internal quotation marks omitted.) State v. McClain, supra, 324 Conn. 813–14.
“An appellate court addressing a claim of plain error first must determine if the error is indeed plain in the sense that it is patent [or] readily discernable on the face of a factually adequate record, [and] also . . . obvious in the sense of not debatable. . . . This determination clearly requires a review of the plain error claim presented in light of the record.
“Although a complete record and an obvious error are prerequisites for plain error review, they are not, of themselves, sufficient for its application. . . . [I]n addition to examining the patent nature of the error, the reviewing court must examine that error for the grievousness of its consequences in order to determine whether reversal under the plain error doctrine is appropriate. A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice.” (Internal quotation marks omitted.) State v. Sanchez, supra, 308 Conn. 77. Thus, the plain error doctrine has two prongs, under which the defendant must establish that (1) there was “an obvious and readily discernable error,” and (2) that error “was so harmful or prejudicial that it resulted in
The defendant contends that the trial court’s jury instructions were erroneous pursuant to State v. Pond, supra, 138 Conn. App. 228,3 in which the Appellate Court held that “the specific intent required by the conspiracy statute requires specific intent to bring about all of the elements of the conspired offense, even those that do not by themselves carry a specific intent with them.” (Emphasis in original.) Id., 234. “[I]n ordеr to prove the defendant guilty of conspiracy to commit robbery in the second degree in violation of [General Statutes]
On appeal to this court, we agreed that, “to be convicted of conspiracy, a defendant must specifically intend that every element of the planned offense be accomplished, even аn element that itself carries no specific intent requirement.” State v. Pond, supra, 315 Conn. 453. Because the state did not challenge the Appellate Court’s determination that the trial court’s jury instructions failed to inform adequately the jury that “the state must prove that the defendant specifically agreed that there would be the display or threatened use of what was represented as a deadly weapon or dangerous object during the robbery or immediate flight therefrom,” we affirmed the judgment of the Appellate Court reversing the defendant’s conviction and remanded the case for “a new trial before a properly instructed jury.” Id., 489.
As applied to the present case, Pond holds that, to convict the defendant of conspiracy to commit robbery in the first degree in violation of
We must consider the trial court’s jury instructions as a whole, and, therefore, we begin our review with the trial court’s explanation of the essential elements of the crime underlying the conspiracy—robbery in the first degree. The trial court, quoting
“Element two, use of physical force. The [second] element is that the larceny was accomplished by the use . . . or threatened use of physical force. Physical
“Element three, additional factor. The third element of robbery in the first degree is that, [in] the course of the commission of the robbery or immediate flight from the crime, the defendant or another participant in the crime was armed with a deadly weapon. . . .
“Immediate flight means that it occurred so close in point of . . . time to the commission of the robbery [so] as to become part of the robbery. The law does not require that the weapon be used or employed for any particular purpose or object. If any person . . . who participated in the crimе was armed with a deadly weapon or threatened the use of what he represented by words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm while in the immediate flight from the crime, then all participants in the robbery could be just as guilty of first degree robbery as if they had themselves actually done so.”
In its instructions regarding the crime of conspiracy to commit robbery in the first degree, the trial court, quoting
“To constitute the crime of conspiracy, the state must prove the following elements beyond a reasonable doubt: (1) there was an agreement between the defendant and one or more persons to engage in conduct constituting the crime of robbery in the first degree; (2) there was an overt act in furtherance of the subject of the agreement by any one of those persons; and (3) the defendant specifically intended to commit the crime of robbery in the first degreе.”
The trial court expounded on the first element of conspiracy, the existence of an agreement between the defendant and one or more other persons, by explaining that “[i]t is not necessary for the state to prove that there was a formal or express agreement between them. It is sufficient to show that the parties knowingly engaged in a mutual plan to do a criminal act. . . . Therefore, in order to convict the defendant on the charge contained in the information, the first element that the state must prove beyond a reasonable doubt is that the defendant entered into an agreеment with at least one other person to engage in conduct constituting robbery in the first degree.”
With respect to the third element of conspiracy, criminal intent, the court explained: “The third element is
“Specific intent is the intent to achieve a specific result. A person acts intentionally with respect to a result when his conscious objective is to cause such result. What the defendant intended is a question of fact for you to determine. What a person’s intention was is usually a matter to be determined by inference. No person is able to testify that he looked into another’s mind and saw therein a certain knowledge or a certain purpose or intention to do harm to another. Because direct evidence of . . . the defendant’s state of mind is rarely available, intent is generally proved by circumstantial evidence. The only way a jury can ordinarily determine what a person’s intention was at any given time is by dеtermining what the person’s conduct was and what the circumstances were surrounding that conduct and, from that, infer what his intention was. To draw such an inference is the proper function of a jury, provided, of course, that the inference drawn complies with the standards for inferences as explained in connection with my instruction on circumstantial evidence. . . .
“Conclusion. In summary, the state must prove beyond a reasonable doubt that (1) the defendant had an agreement with one or more persons to commit robbery in the first degree, (2) at least one of the coconspirators did an overt act in furtherance of the conspiracy, and (3) the defendant specifically intended to commit robbery in the first degree.”
The foregoing instructions adequately informed the jury that, to find the defendant guilty of the crime of conspiracy to commit robbery in the first degree, it must find that the defendant agreed “to engage in conduct constituting the crime of robbery in the first degree” and “specifically intended to commit [the crime of] robbery in the first degree,” an essential element of which is that the defendant or a participant to the crime be armed with a deadly weapon. (Emphasis added.) The trial court explained that “[s]pecific intent is the intent to achieve a specific result,” and “[t]he defendant may not be found guilty unless the state has proved beyond a reasonable doubt that he specifically intended to commit robbery in the first degree when he entered into the agreement.” As the Appellate Court aptly observed, the trial court “did not expressly limit the requirement of specific intent to fewer than all the elements of the substantive crime,” and, therefore, “the instruction logically required the jury to find that the defendant had agreed that a participant would be armed with a deadly weapon.” State v. Blaine, supra, 179 Conn. App. 510. This is in stark contrast to the jury instruction found to be constitutionally defective in Pond, which permitted the jury to find the defendant guilty of conspiracy to commit robbery in the second degree if the defendant “specifically intended to commit a larceny“; State v. Pond, supra, 138 Conn. App. 237; and, thus, omitted the essential element of specific intent “that, in the course of the robbery, what was represented to be a deadly weapon or dangerous instrument would be used or displayed.” Id., 238–39.
The defendant contends that the jury instructions were flawed because they “did not apply the specific intent requirement for conspiracy to the weapon element of first degree robbery anywhere in [the] charge or instruct the jury thаt [the defendant] had to agree that one of the participants would be armed with a deadly weapon to be convicted of conspiracy to commit first degree robbery . . . .” Although the better practice is to instruct the jury in direct terms that the defendant must specifically have intended that he or another participant in the robbery be “armed with a deadly weapon” during the commission of the robbery or immediate flight therefrom,4 it is clear to us that the jury instructions in the present case provided the jury with adequate guidance.
Because we conclude that the trial court’s jury instructions, when viewed as a whole, were sufficient to guide the jury in arriving at its verdict, we can perceive no “clear, obvious and indisputable [error] as to warrant the extraordinary remedy of reversal.”5 (Internal quotation marks omitted.) State v. Darryl W., 303 Conn. 353, 373, 33 A.3d 239 (2012); see State v. Moon, 192 Conn. App. 68, 100, 217 A.3d 668 (2019) (distinguishing Pond and finding no plain error in trial court’s jury instruction on conspiracy to commit robbery in first degree because “the court made clear that the defendant had to intend for a participant in the crime to use a deadly weapon when it stated that the intent required for conspiracy to commit robbery in the first degree is the intent to agree to commit the underlying crime of robbery in the first degree“); State v. Louis, 163 Conn. App. 55, 73, 134 A.3d 648 (holding that “the court properly instructed the jury with respect to the conspiracy charges lodged against the defendant in conformity with State v. Pond, supra, 315 Conn. 454” because “[t]he court instructed the jury with respect to robbery in the first degree that the state had to prove that the ‘coconspirators understood a deadly weapon would be carried by one of the participants’ “), cert. denied, 320 Conn. 929, 133 A.3d 461 (2016).
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.