State v. Blaine

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.

All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.

The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
 STATE OF CONNECTICUT v. JAYEVON BLAINE
(AC 36832)
Sheldon, Prescott and Beach, Js.

Syllabus

Convicted of the crime of conspiracy to commit robbery in the first degree,
the defendant appealed to this court. The defendant’s conviction
stemmed from his involvement in an alleged conspiracy with four other
individuals to rob a drug dealer, which resulted in the shooting death
of the victim. At trial, the four coconspirators each testified that they,
together with the defendant, had devised a plan to rob the drug dealer
with a weapon and that the defendant would carry the weapon. In its
jury charge, the court instructed on the elements of the substantive crime
of robbery in the first degree, including that one or more participants
in the robbery be armed with a deadly weapon, and that to find the
defendant guilty of conspiracy, the jury had to find that he specifically
intended to commit the substantive crime. On appeal, the defendant
claimed, inter alia, that the trial court had committed plain error in
failing to instruct the jury, in accordance with State v. Pond (138 Conn.
App. 228), regarding the requisite intent necessary to find him guilty of
conspiracy to commit robbery in the first degree. This court affirmed
the judgment of the trial court, concluding that the defendant had waived
his claim and that relief under the plain error doctrine was unavailable.
Thereafter, the defendant filed a petition for certification with our
Supreme Court, which granted the petition and remanded the case to
this court for consideration of his claim of plain error. On remand, held
that the defendant could not prevail on his claim that the trial court
committed plain error in failing to instruct the jury that to find him
guilty of the subject conspiracy, it had to find that he intended and
specifically agreed that a participant in the robbery would be armed
with a deadly weapon: because the trial court charged the jury that to
find the defendant guilty, it had to find that he specifically intended to
commit the crime of robbery in the first degree and the armed with a
deadly weapon requirement had been included in the definition of the
underlying crime given by the trial court, it was at least arguable that
the instruction logically required the jury to find that the defendant had
agreed that a participant in the robbery be armed with a deadly weapon
and, thus, it was fairly debatable whether the court’s instruction as to
the requisite intent was erroneous; moreover, even if the instruction
constituted obvious and debatable error, it did not amount to manifest
injustice, as there was ample evidence that the defendant had agreed
to the robbery and that one of the participants would use a weapon,
and, therefore, this court could not conclude that any error in the subject
instruction affected the fairness and integrity of and public confidence
in the judicial proceedings so as to necessitate reversal.
Argued October 4, 2017—officially released February 6, 2018

Procedural History

Substitute information charging the defendant with
the crimes of murder, attempt to commit robbery in the
first degree, felony murder 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 this court, which
affirmed the judgment; thereafter, the defendant filed
a petition for certification to appeal with our Supreme
Court, which granted the petition and remanded the
case to this court for consideration of the defendant’s
claim of plain error. Affirmed.
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 attor-
ney, and Howard S. Stein, senior assistant state’s attor-
ney, for the appellee (state).
 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 Stat-
utes §§ 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 rob-
bery 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 judg-
ment 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 coconspirators, [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 pur-
chased, 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 Gard-
ner 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 rendez-
vous with his friend, Soler, and Soler’s girlfriend, [Pris-
cilla] 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 Tay-
lor’s behalf. The other person then shot Soler.’’ (Foot-
note 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 sus-
tain 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 evi-
dence to sustain the defendant’s conviction and that
any error resulting from the court’s failure to provide
a third-party culpability instruction was harmless. Id.,
507, 517. As to the defendant’s third claim, that there
was plain error under Pond, we concluded that plain
error relief was unavailable. Id., 518.
The defendant then sought and was granted certifica-
tion to appeal by our Supreme Court on his claim of
plain error, and the case was remanded to this court
with direction to consider the defendant’s claim in light
of McClain. See State v. Blaine, 325 Conn. 918, 163
A.3d 618 (2017). The only issue before us on remand
is whether the trial court’s instruction to the jury regard-
ing the requisite intent for conspiracy to commit rob-
bery in the first degree constituted plain error.
Two elements must be satisfied in order to support
a conclusion that a judgment must be reversed on the
basis of plain error. ‘‘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
[discernible] 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.’’ (Internal quo-
tation marks omitted.) State v. McClain, supra, 324
Conn. 812.
‘‘[T]he plain error doctrine is reserved for truly
extraordinary situations [in which] the existence of the
error is so obvious that it affects the fairness and integ-
rity of and public confidence in the judicial proceedings.
. . . In 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 deter-
mine 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.’’ (Citation omitted;
internal quotation marks omitted.) Id.
An appellant ‘‘cannot prevail . . . unless he demon-
strates that the claimed error is both so clear and so
harmful that a failure to reverse the judgment would
result in manifest injustice.’’ (Emphasis in original;
internal quotation marks omitted.) Id; see also State v.
Coward, 292 Conn. 296, 307, 972 A.2d 691 (2009). ‘‘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 errors. When an error of such a magnitude
exists, it necessitates reversal.’’ (Citation omitted; inter-
nal quotation marks omitted.) State v. McClain, supra,
324 Conn. 813–14.
‘‘Our standard of review for claims of instructional
impropriety is well established. The principal function
of a jury charge is to assist the jury in applying the
law correctly to the facts which they might find to be
established . . . . When reviewing [a] challenged jury
instruction . . . we must adhere to the well settled rule
that a charge to the jury is to be considered in its entirety
. . . and judged by its total effect rather than by its
individual component parts. . . . [T]he test of a court’s
charge is . . . whether it fairly presents the case to
the jury in such a way that injustice is not done to either
party . . . . In this inquiry we focus on the substance
of the charge rather than the form of what was said
not only in light of the entire charge, but also within the
context of the entire trial.’’ (Internal quotation marks
omitted.) State v. Lawrence, 282 Conn. 141, 179, 920
A.2d 236 (2007).
The defendant claims that the trial court failed to
instruct the jury that in order to find him guilty of the
conspiracy with which he was charged, it had to find
that he had intended that one or more participants in
the robbery be armed with a deadly weapon and that
the failure so to instruct constituted plain error. In State
v. Pond, supra, 138 Conn. App. 233–34, we held that
to be convicted of conspiracy, a defendant must have
specifically intended that every element of the planned
offense be accomplished, including elements of the
underlying crime that do not require specific intent.
We turn to an analysis of the court’s instructions to
the jury in the present case. Two portions are especially
pertinent. The court addressed the elements of the sub-
stantive crime of robbery in the first degree in violation
of § 53a-134 (a) (2). The court instructed that robbery
was a larceny committed by the use or threatened use
of force. Larceny, in turn, required an intent to deprive
another of property. The court then charged that the
‘‘third element’’ was that in ‘‘the course of the commis-
sion of the robbery or immediate flight from the crime
the defendant or another participant in the crime was
armed with a deadly weapon.’’
Later in the charge the court instructed on the ele-
ments of the crime of conspiracy to commit robbery
in the first degree: ‘‘One, 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; two, there was an overt act in further-
ance of the agreement by any one of the persons; and,
three, the defendant specifically intended to commit
the crime of robbery in the first degree.’’ (Emphasis
added.)
The court defined ‘‘agreement’’ and ‘‘overt act,’’ and
then instructed: ‘‘Element three, criminal intent. The
third element is that the defendant had the intent to
commit robbery in the first degree. The defendant must
have had specific intent. The defendant may not be
found guilty unless the state has proved beyond a rea-
sonable doubt that he specifically intended to commit
robbery in the first degree when he entered into the
agreement.’’
After defining specific intent, the court summarized
its charge regarding conspiracy: ‘‘[One] the state must
prove beyond a reasonable doubt that the defendant
had an agreement with one or more persons to commit
robbery in the first degree. Two, at least one of the
coconspirators did an overt act in furtherance of the
conspiracy and, three, the defendant specifically
intended to commit robbery in the first degree.’’
The defendant claims that because the court did not
expressly and specifically instruct the jury that, in order
to find him guilty, it had to find that he specifically
agreed that a participant in the crime would be armed
with a deadly weapon, the court committed plain error.
He relies primarily on State v. Pond, supra 138 Conn.
App. 228.6
In Pond, the defendant was charged with attempt to
commit robbery in the second degree and conspiracy
to commit robbery in the second degree. Id., 232. The
substantive crime of robbery in the second degree, as
charged, included as an element the display or threat-
ened use of a weapon. This court observed that the
instructions in Pond were ‘‘to the effect that the specific
intent required for the conspiracy charge was that as
for a charge of larceny.’’ Id., 237. The trial court
instructed the jury as to the intent element of the con-
spiracy charge as follows: ‘‘The third element is that
the defendant had the intent to commit robbery in the
second degree. The intent for that crime is that at the
time of the agreement he intended to commit larceny.
The defendant may not be found guilty unless the state
has proved beyond a reasonable doubt that he specifi-
cally intended to commit a larceny when he entered into
the agreement.’’ (Internal quotation marks omitted.) Id.
The court then concluded: ‘‘In summary, the state must
prove beyond a reasonable doubt that the defendant
had an agreement with one or more other persons to
commit robbery in the second degree, at least one of
the coconspirators did an overt act in furtherance of
the conspiracy, and the defendant specifically intended
to deprive the owner of his property.’’ (Internal quota-
tion marks omitted.) Id., 237–38.
This court afforded review pursuant to State v. Gold-
ing, 213 Conn. 233, 567 A.2d 823 (1989), and, relying
primarily on State v. Padua, 273 Conn. 138, 869 A.2d
192 (2005), reversed the judgment, because ‘‘[t]he court
did not tell the jury that the state was required to prove
that the defendant specifically intended that, in the
course of the robbery, what was represented to be a
deadly weapon or dangerous instrument would be used
or displayed. Contrary to the state’s argument, there is
nothing in the rest of the language of the jury instruc-
tions that would render this omission in the instruction
harmless.’’ State v. Pond, supra, 138 Conn. App. 238–39.
There are similarities and distinctions between Pond
and the present case. It is now well established that a
conviction of conspiracy to commit a crime requires
proof of specific intent to commit all elements of the
underlying crime, even if only general intent or, conceiv-
ably, no intent at all is required as to one or more
elements necessary for conviction of the underlying
substantive crime. See State v. Padua, supra, 273 Conn.
138; see also State v. Pond, 315 Conn. 451, 108 A.3d
1083 (2015). In Pond, however, the trial court not only
failed to instruct the jury that specific intent was
required as to the display or threatened use of a weapon,
it also expressly stated that the specific intent required
to convict was that the defendant intended, at the time
of agreement, to commit larceny.7 Additionally, because
the defendant in Pond prevailed pursuant to Golding,
application of the plain error doctrine was not nec-
essary.
In the present case, the court did not expressly limit
the requirement of specific intent to fewer than all the
elements of the substantive crime. The court, instead,
charged that in order to find the defendant guilty, the
jury had to find that he specifically intended to commit
the crime of robbery in the first degree; the court pre-
viously had included in the definition of that substantive
crime the element that one or more participants be
armed with a deadly weapon. Because the ‘‘armed with
a deadly weapon’’ element had been included in the
definition of the underlying crime and the conspiracy
charge required for conviction a finding that the defen-
dant intended to commit the substantive crime, it is at
least arguable that the instruction logically required
the jury to find that the defendant had agreed that a
participant would be armed with a deadly weapon. If
it is fairly debatable whether an action of the trial court
is erroneous, the error, if any, is not plain error, and
the judgment should be affirmed. See State v. McClain,
supra, 324 Conn. 812.
Even if the instruction did constitute obvious and
undebatable error, however, the record does not satisfy
the second prong required for reversal pursuant to the
plain error doctrine, because the record does not show
manifest injustice. See State v. Coward, supra, 292
Conn. 307 (‘‘under the second prong of the [plain error
doctrine] we must determine whether the consequences
of the error are so grievous as to be fundamentally
unfair or manifestly unjust’’). In State v. Padua, supra,
273 Conn. 164–65, for example, our Supreme Court con-
sidered a case in which conspiracy to sell marijuana
within 1500 feet of a public housing project was alleged,
and the trial court had not instructed that, in order to
find the defendant guilty, the jury had to find that he
agreed to commit the crime within 1500 feet of a public
housing project.8 Our Supreme Court held that, although
the instruction was improper, the error was harmless
in light of overwhelming evidence regarding intent to
sell marijuana within 1500 feet of a public housing
project.
In the present case, each of the four coconspirators
testified that the plan was to rob Taylor with a weapon
and that the defendant was to wield the weapon. Every
witness who testified that the agreement existed also
testified that use of a weapon was contemplated.
Although the defendant denied involvement altogether,
there was ample evidence that he had agreed to the
robbery and that someone would use a weapon. A simi-
lar situation in Padua led to a conclusion of harmless
error; here, we cannot find that a less egregious error,
if indeed there was an error, amounted to manifest
injustice. See also State v. Lawrence, supra, 282 Conn.
183 (possible defect in presumption of innocence
instruction did not affect fairness of trial when instruc-
tion viewed in entirety); State v. LaBrec, 270 Conn. 548,
560, 854 A.2d 1 (2004) (instruction that original jurors
should review their previous deliberations with substi-
tuted alternate juror not extraordinary error).
Under these circumstances, we cannot conclude that
any error in the court’s instructions to the jury affected
‘‘the fairness and integrity of and public confidence
in the judicial proceedings.’’ (Internal quotation marks
omitted.) State v. McClain, supra, 324 Conn. 812.
Accordingly, we decline to reverse the trial court’s judg-
ment under the plain error doctrine.
The judgment is affirmed.
In this opinion the other judges concurred.
1
See State v. Blaine, 325 Conn. 918, 163 A.3d 618 (2017).
2
General Statutes § 53a-48 provides in relevant part: ‘‘(a) A person is
guilty of conspiracy when, with intent that conduct constituting a crime be
performed, he agrees with one or more persons to engage in or cause the
performance of such conduct, and any one of them commits an overt act
in pursuance of such conspiracy. . . .’’
General Statutes 53a-134 (a) provides in relevant part: ‘‘A person is guilty
of robbery in the first degree 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 . . . .’’
3
See generally State v. Blaine, supra, 168 Conn. App. 506–507.
4
Waddell was the only witness who gave a statement prior to the trial
that he had seen the defendant shoot the victim. He testified during the
trial, however, that he never actually saw the shooting, but that he stood
at some distance from the defendant and only heard gunshots. The jury was
allowed to hear testimony that Waddell had changed his statement.
5
The defendant sought to bolster his claim by stressing that the jury found
him not guilty of the substantive crimes charged, yet guilty of conspiracy,
where the evidence regarding the agreement also suggested that the defen-
dant was the shooter. If the jury did not believe the testimony that he was
the shooter, he argued, then it could not believe that he participated in the
agreement. We rejected that contention in State v. Blaine, supra, 168 Conn.
App. 512–13. The jury’s verdict perhaps can be rationalized, though it need
not be, by reference to the fact that no coconspirator testified that he saw
the defendant shoot the victim. See footnote 4 of this opinion.
6
Because the trial in the present case occurred after the Appellate Court’s
decision in Pond but before the Supreme Court’s affirmance, we primarily
consider the Appellate Court’s opinion for the purpose of the plain error
analysis.
7
Thus, the jury logically could have concluded that the only specific intent
required for conviction was the intent to commit a larceny.
8
The correlation between the conspiracy charge and the underlying crime
in Padua corresponded to the structures of this case and Pond, in that proof
of intent to sell marijuana within 1500 feet of a public housing project was
not required for conviction of the underlying offense.