November 16, 2015.
Substitute information charging the defendant with the crimes
of attempt to commit murder and criminal violation of a
protective order, brought to the Superior Court in the
judicial district of Stamford-Norwalk, where the court,
White, J., denied in part the defendant's motion for
disclosure of certain confidential records; thereafter, the
matter was tried to the jury before Hudock, J.; subsequently,
the court, Hudock, J., granted in part the state's motion
to preclude certain evidence; verdict and judgment of guilty
of attempt to commit murder, from which the defendant
appealed to this court.
of attempt to commit murder after having attempted to hire a
hit man to kill his wife, the defendant appealed to this
court, claiming, inter alia, that there was insufficient
evidence to support his conviction. The defendant claimed
that the state had failed to prove that, under the statute
(§ 53a-49) governing attempt crimes, his conduct
constituted a substantial step in a course of conduct that
was intended to culminate in the murder of his wife. The
defendant had sought the help of a friend, E, to hire someone
to kill his wife. E was a confidential police informant who
had helped the police in several previous criminal matters. E
contacted the police and arranged a meeting between the
defendant and an undercover police officer who posed as the
hit man. During the meeting with the officer, which the
police recorded, the defendant provided him with descriptive
information about his wife, and offered to pay him money for
the murder and for the purchase of a firearm with which to
kill her. Held :
evidence was sufficient to support the defendant's
conviction of attempt to commit murder, the state having
proved that the defendant's conduct constituted a
substantial step, as required under § 53a-49, in a
course of conduct that was intended to culminate in his
wife's murder; this court concluded that pursuant to
§ 53a-49, the determination of what conduct constitutes
a substantial step depends on what a defendant has already
done, rather than on what remains to be done, to culminate in
the commission of the crime, and it was reasonable for the
jury here to conclude from the evidence presented that the
defendant's actions did not constitute solicitation, but
rather constituted a substantial step in a course of conduct
intended to culminate in the murder of his wife, as E
testified that the defendant had told him that he wanted his
wife killed, and the defendant, in the police recording of
his meeting with the undercover officer, had agreed to hire
the officer to kill his wife, agreed to a price, provided the
officer with descriptive information about his wife, and
suggested a day, location and manner for the murder to ensure
that he would have an alibi.
trial court did not abuse its discretion in denying the
defendant access to certain confidential records that
pertained to E's role as a confidential police informant;
the state twice had complied with the court's orders to
provide the court with certain of E's confidential
records, the court properly disclosed to the defendant
information from those records that was relevant to E's
work as an informant, and the records that the court declined
to disclose to the defendant did not contain exculpatory
defendant could not prevail on his claim that the trial court
improperly limited his cross-examination of E as it pertained
to E's relationship with certain police officers; the
defendant had sufficient opportunity to cross-examine E to
challenge his credibility and potential bias, and elicited
sufficient information to aid the jury in assessing his
credibility, E having testified that he had twice received
favorable treatment from the police.
trial court properly instructed the jury on the crime of
attempt to commit murder and on the defense of entrapment:
contrary to the defendant's claim, the court was not
required to include in its instruction on attempt to commit
murder the list of examples in § 53a-49 (b) of what
constituted a substantial step in a course of conduct that
was intended to culminate in the murder of his wife, as the
instruction mirrored the language of § 53a-49 (a) and
was taken nearly verbatim from the criminal jury instruction
on attempt provided by the Judicial Branch; moreover, the
court's use of certain language in its instruction on
entrapment to characterize E's role as a confidential
police informant was proper and did not mislead the jury, as
the court read a nearly verbatim version of the entrapment
statute (§ 53a-15) and followed the model instruction
provided by the Judicial Branch.
Spinella, with whom were Philip Russell and, on the brief,
Caitlin Trow, for the appellant (defendant).
G. Weller, senior assistant state's attorney, with whom,
on the brief, were David I. Cohen, state's attorney, and
Maureen Ornousky, senior assistant state's attorney, for
the appellee (state).
C. J., and Beach and Bishop, Js. DiPENTIMA, C. J. In this
opinion the other justices concurred.
Conn.App. 320] DiPENTIMA, C. J.
defendant, Daniel B., appeals from the judgment of
conviction, rendered after a jury trial, of attempt to commit
murder in violation of General Statutes § § 53a-49
and 53a-54a. On appeal, the defendant claims that (1) the
evidence was insufficient to support his conviction, (2) the
trial court unduly restricted his access to certain
information regarding a confidential informant who testified
at trial, (3) the court improperly limited the
cross-examination of a witness by the defendant, and (4) the
court provided improper instructions in its jury charge. We
affirm the judgment of the trial court.
jury reasonably could have found the following facts. The
defendant married the victim in 2005. By late [164 Conn.App.
321] 2009, the marriage had begun to deteriorate.
Approximately one year later, the defendant filed for
divorce. During the relevant period, the defendant and the
victim lived in the same residence in Stamford.
9, 2011, the defendant called John Evans, a childhood friend,
to arrange a meeting. At approximately 3 p.m., the defendant
and Evans met in a Dunkin Donuts. At the outset of the
meeting, the defendant asked Evans if he " knew anybody
that could murder his wife as a hit man." The defendant
told Evans that he was getting a divorce and explained that
his wife was " getting the house, the kids . . . and . .
. trying to get some money . . . ." Although Evans tried
to dissuade him, the defendant stated that had been "
thinking about it for two years, and he [had] made up his
mind . . . [that] he needs [his wife murdered] . . . before
his next court date." The meeting concluded with Evans
agreeing to " talk to a couple of people in New York and
. . . see if [he] could arrange [a meeting with a hit
man]." On the same day, Evans called John Evensen, a
retired Stamford police officer. Evans told Evensen that
the defendant had requested that he find a hit man; Evensen
urged Evans to " do the right thing" because it was
" somebody's life." Evensen then told Evans
that he would call someone to " see what he could
that evening, Evensen telephoned James Matheny, then
commander of the bureau of criminal investigations of the
Stamford Police Department, to convey the information
provided by Evans. Matheny then spoke with Evans directly.
After this conversation, Matheny developed a plan in which
the defendant would meet with an undercover police officer
feigning to be [164 Conn.App. 322] a hit man. As part of the
plan, Evans called the defendant to inform him that he had
found a hit man from New York who wanted to speak with him
that night. The defendant agreed to meet with the purported
hit man, who was in fact Officer Michael Paleski, Jr., of the
Branford Police Department.
meeting between the defendant and Paleski took place at a
rest stop off Interstate 95 near Darien. The plan consisted
of Paleski following Evans to the rest stop in a vehicle
equipped with a hidden video camera. Paleski and Evans
arrived first and waited for the defendant, who arrived
shortly after midnight on June 10, 2011. Evans introduced the
defendant to Paleski and then returned to his car. The
defendant entered Paleski's vehicle where the hidden
video camera recorded the murder for hire plot. After the
meeting ended and Paleski had departed, the defendant was
defendant was charged with attempt to commit murder and
violating a criminal protective order. Following an eight
day jury trial, the defendant was found guilty of the attempt
to commit murder charge and not guilty of the violation of a
protective order charge. The court sentenced him to twenty
years of incarceration, suspended after fifteen years,
followed by five years of probation. This appeal followed.
Additional facts will be set forth as necessary.
defendant claims that there was insufficient evidence to
support his conviction. Specifically, he argues that the
state failed to prove that his conduct constituted a
substantial step in a course of conduct intended [164
Conn.App. 323] to culminate in a murder. Thus, he claims that
an essential element of § 53a-49 was not
established. We do not agree.
following additional facts are relevant to this claim. The
entire meeting between the defendant and Paleski lasted
slightly more than sixteen minutes. During the meeting, three
major points were discussed in the murder for hire plot.
First, the defendant agreed to pay $10,000 for Paleski to
murder his wife. The defendant also agreed to deliver $3000
as a down payment and $800 for a firearm the following
morning because obtaining the money that night would create
suspicion. Second, when asked for information
about the victim, the defendant readily provided his
wife's name, home address, place of employment and work
schedule, as well as a photograph, explaining to
Paleski that his [164 Conn.App. 324] wife's hair color
was different from what was depicted in the
final point discussed at the meeting focused on the method by
which Paleski was to murder the defendant's wife. The
defendant had voiced his concern that he needed to be
cautious in this illicit endeavor because he was "
obviously the first person [that] . . . [was] going to be
looked at [after his wife was murdered]." Paleski, then,
explicitly asked the defendant how he wanted the murder
accomplished. The defendant noted that his wife's place
of employment was in a " rough section" of the city
and that she drove a " nice car." This information
prompted Paleski to suggest that he could " make it look
like a [carjacking] or something," to which the
defendant acknowledged, " [s]omething like that . . .
take the car . . . [it] is going to get [found] and it kind
of like explains it." Paleski then sought clarification
as to the result desired by the defendant, " [Y]ou want
her completely out of the picture, right? Morte." The
defendant replied, " [T]hat's where it's getting
to . . . ." The defendant then suggested a Thursday as a
possible day for the murder because he would be with his
children at his aunts' house. Paleski concurred that he
could " take the bitch off" when the defendant was
with his aunts, and the defendant replied, "
meeting concluded with the defendant and Paleski agreeing to
meet the following day at 10 a.m. at the same location. The
defendant iterated that, to be [164 Conn.App. 325] cautious,
he was not going to use his phone. Rather, he would purchase
a prepaid mobile phone to contact Paleski. After confirming
the time and place of the meeting where the defendant would
bring the money, the defendant thanked Paleski, exited the
vehicle, and promptly was taken into custody as soon as
Paleski left the rest stop.
defendant's claim on appeal is that his conduct was not a
" substantial step in a course of conduct planned to
culminate in his commission" of murder. General Statutes
§ 53a-49 (a) (2). He argues that in Connecticut, a
" substantial step" requires an overt act that
" must be more than mere preparation," and such act
" must be in close proximity to the actual crime and
'come pretty near' to completing the crime but for
some interference." Thus, in contemplating what act
constitutes a substantial step, " the focus is on what
is left to be done not what has already been done."
Applying this reasoning, the defendant contends that the
meeting with Paleski was " merely preparatory and did
not constitute a 'substantial step' toward the
commission of murder." At best, the defendant argues,
the meeting was a " mere solicitation, which, by itself,
is never an attempt." (Internal quotation marks
omitted.) We are not persuaded.
begin by recognizing that " [a] defendant who asserts an
insufficiency of the evidence claim bears an arduous
burden." (Internal quotation marks omitted.) State
v. Leandry, 161 Conn.App. 379, 383, 127 A.3d 1115, cert.
denied, 320 Conn. 912, 128 A.3d 955 (2015). As to the
standard of review for this claim, this court applies a two
part test. " We first review the evidence presented at
the trial, construing it in the light most favorable to
sustaining the verdict. . . . [Second, we] then determine
whether the jury could have reasonably concluded, upon the
facts established and the inferences reasonably drawn
therefrom, that the cumulative [164 Conn.App. 326] effect of
the evidence established guilt beyond a reasonable doubt. . .
. In this process of review, it does not diminish the
probative force of the evidence that it consists, in whole or
in part, of evidence that is circumstantial rather than
direct. . . . The issue is whether the cumulative effect of
the evidence was sufficient to justify the verdict of guilty
beyond a reasonable doubt." (Citations omitted; internal
quotation marks omitted.) State v. Hanks, 39
Conn.App. 333, 338-39, 665 A.2d 102, cert. denied, 235 Conn.
926, 666 A.2d 1187 (1995).
law relevant to an insufficiency of the evidence claim
teaches that " the jury must find every element proven
beyond a reasonable doubt in order to find the defendant
guilty of the charged offense, [but] each of the basic and
inferred facts underlying those conclusions need not be
proved beyond a reasonable doubt. . . . If it is reasonable
and logical for the jury to conclude that a basic fact or an
inferred fact is true, the jury is permitted to consider the
fact proven and may consider it in combination with other
proven facts in determining whether the cumulative effect of
all the evidence proves the defendant guilty of all the
elements of the crime charged beyond a reasonable
doubt." (Internal quotation marks omitted.) State v.
Lopez, 280 Conn. 779, 808, 911 A.2d 1099 (2007). We,
however, are mindful that " [w]e do not sit as a
[seventh] juror who may cast a vote against the verdict based
upon our feeling that some doubt of guilt is shown by the
cold printed record. . . . Rather, we must defer to the
jury's assessment of the credibility of the witnesses
based on its firsthand observation of their conduct, demeanor
and attitude." (Internal quotation marks omitted.)
State v. Damato, 105 Conn.App. 335, 344, 937 A.2d
1232, cert. denied, 286 Conn. 920, 949 A.2d 481 (2008).
to the statutes applicable here, § 53a-54a (a) defines
murder, in relevant part, as follows: " A person is
guilty of murder when, with intent to cause the death [164
Conn.App. 327] of another person, he causes the death of such
person or of a third person . . . ." Section 53a-49 (a)
defines criminal attempt, in relevant part, as follows:
" A person is guilty of an attempt to commit a crime if,
acting with the kind of mental state required for commission
of the crime, he . . . (2) intentionally does . . . anything
which, under the circumstances as he believes them to be, is
an act . . . constituting a substantial step in a course of
conduct planned to culminate in his commission of the
crime." Furthermore, " [c]onduct shall not be held
to constitute a substantial step . . . unless it is strongly
corroborative of the actor's criminal purpose. . .
." General Statutes § 53a-49 (b). It is noteworthy
that " [w]hat constitutes a substantial step in any
given case is a question of fact." (Internal quotation
marks omitted.) State v. Osbourne, 138 Conn.App.
518, 528, 53 A.3d 284, cert. denied, 307 Conn. 937, 56 A.3d
716 (2012). Thus, in this case, to prove the defendant guilty
of violating § § 53a-49 and 53a-54a, the state had
to prove beyond a reasonable doubt that the defendant, with
the intent to cause the death of his wife, committed an act
that was a substantial step aimed at achieving her death.
dispose of the defendant's argument and resolve his
sufficiency of the evidence claim, we must review
Connecticut's criminal attempt statute. As implicitly
acknowledged by the parties, our Supreme Court and this court
have conflicting authority on what conduct constitutes a
substantial step: specifically as to whether the focus is on
" what the actor has already done and not on
what remains to be done." (Emphasis in original.)
State v. Lapia, 202 Conn. 509, 515, 522 A.2d 272
Conn.App. 328] In resolving this apparent contradiction in
our case law, we begin with a review of §
5.01 of the Model Penal Code because §
53a-49 was modeled after it. See State v.
Moreno-Hernandez, 317 Conn. 292, 303, 118 A.3d 26
(2015); see also id., 304 n.5 (comparing General
Statutes § 53a-49 and Model Penal Code § 5.01).
Because § 53a-49 stems, in part, from the Model Penal
Code, the code's comments are pertinent. See State v.
Servello, 59 Conn.App. 362, 372, 757 A.2d 36, cert.
denied, 254 Conn. 940, 761 A.2d 764 (2000). The comments
state that the Model Penal Code formulation of [164 Conn.App.
329] criminal attempt " shifts the emphasis from what
remains to be done . . . to what the actor has already
done." 1 A.L.I., Model Penal Code and Commentaries
(1985) § 5.01, comment 6 (a), p. 329 (Model Penal Code
and Commentaries). The significance, then, is that this
" approach will broaden the scope of attempt
liability." Id.; see also 2 W. LaFave,
Substantive Criminal Law (2d Ed. 2003) § 11.4 (e), p.
226 (" [the Model Penal Code approach] will broaden the
scope of attempt liability in a way which is consistent with
the purpose of restraining dangerous persons, as: (1) the
emphasis is upon what the actor has already done rather than
what remains to be done; (2) liability will be imposed only
if some firmness of criminal purpose is shown" [footnote
conflicting decisions exist in both appellate courts, we
nonetheless find support in recent Connecticut case law to
frame our criminal attempt formulation in conformance with
the Model Penal Code, i.e., the focus is on what the
defendant has already done and not what remains to be
done. In State v. Carter, 317 Conn.
845, 848, 858, [164 Conn.App. 330] 120 A.3d 1229 (2015), the
defendant was convicted of attempt to commit assault in the
first degree for aiming a firearm at a police officer's
midsection, followed by " position[ing] himself in a
shooting stance and put[ting] his finger on the trigger
guard." The defendant challenged the conviction by
claiming that it was not established that he had the
requisite intent to commit this crime. Id., 848. One
of the defendant's arguments was that " there was
insufficient evidence of intent because he never attempted to
rack the gun, and thus the gun would not have fired even if
he had pulled the trigger." Id., 860. In
disposing of this argument, our Supreme Court made the
following observation: " [W]hether the gun was racked or
not seems to be beyond the point. The defendant's claim
that he did not rack the gun, even if true, would only
support the proposition that he did not take the
next step to complete the crime which, of course, is
irrelevant to the inquiry whether he took a prior
substantial step to commit the offense. Because the defendant
was charged with attempt to commit assault, it was only
necessary for him to take a substantial step under the
circumstances as he believe[d] them to be . . . ."
(Emphasis in original; internal quotation marks omitted.)
Id., 861. Our Supreme Court's analysis thus [164
Conn.App. 331] focused on what the defendant already had done
and not what remained to be done.
this court in State v. Osbourne, supra, 138
Conn.App. 528, explained that the standard for the
substantial step element of criminal attempt " focuse[d]
on what the actor has already done and not what remains to be
done. . . . The substantial step must be at least the start
of a line of conduct which will lead naturally to the
commission of a crime. . . . What constitutes a substantial
step in any given case is a question of fact." (Internal
quotation marks omitted.) We further clarified that "
[t]he ultimate measure of the sufficiency of the
defendant's conduct to constitute a substantial step in a
course of conduct planned to culminate in the commission of
assault in the first degree is not, to reiterate, how close
in time or place or final execution his proven conduct came
to the consummation of that crime, but whether such conduct,
if at least the start of a line of conduct leading naturally
to the commission of the crime, strongly corroborated his
alleged criminal purpose." Id., 530. Our
reasoning in Osbourne, reinforced by the majority of
appellate cases, our reading of Carter, and the
Model Penal Code, support our determination that to dispose
of the defendant's sufficiency of the evidence claim
before us, we must focus on " what the actor has already
done and not what remains to be done." (Internal
quotation marks omitted.) Id., 528.
turn to the merits of the claim. The evidence before the jury
included Evans' testimony and the video in which the
defendant and Paleski plotted a murder for hire scheme.
Through Evans, the state presented evidence that, if credited
by the jury, established that the defendant sought his help
to attain the services of a hit man. Furthermore, Evans
testified that he tried to dissuade the defendant, but the
defendant stated that [164 Conn.App. 332] he had been
contemplating this course of action for " two years, and
he [had] made up his mind . . . [that] he needs [his wife
murdered] . . . before his next court date."
state also presented the video recording of the meeting
between the defendant and Paleski. The video allowed the jury
to observe the conduct, demeanor, and attitude of the
defendant as he agreed to hire Paleski to kill his wife. In a
little more than one-quarter of an hour, the defendant agreed
to a price (to include a down payment and money for the
murder weapon), provided Paleski with key information,
namely, his wife's name, home and work address, her work
schedule, a description of her vehicle, and suggested a day,
location, and manner for the murder ...