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State v. Daniel B.

Appellate Court of Connecticut

April 5, 2016

STATE OF CONNECTICUT
v.
DANIEL B. [*]

         Argued 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.

          SYLLABUS

         Convicted 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 :

         1. The 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.

         2. The 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 evidence.

         3. The 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.

         4. The 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.

         A. Paul Spinella, with whom were Philip Russell and, on the brief, Caitlin Trow, for the appellant (defendant).

         Ronald 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).

         DiPentima, C. J., and Beach and Bishop, Js. DiPENTIMA, C. J. In this opinion the other justices concurred.

          OPINION

          [164 Conn.App. 320] DiPENTIMA, C. J.

          The 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.

         The 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.

         On June 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.[1] 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 do."

         Later 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.

         The 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 arrested.

         The defendant was charged with attempt to commit murder and violating a criminal protective order.[2] 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.

         I

         The 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.[3] We do not agree.

         The 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.[4] Second, when asked for information about the victim, the defendant readily provided his wife's name, home address, place of employment and work schedule,[5] 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 photograph.[6]

         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, " exactly."

         The 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.

         The 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.

         We 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).

          The 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).

         Turning 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.

         A

         To 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 (1987).[7]

          [164 Conn.App. 328] In resolving this apparent contradiction in our case law, we begin with a review of § 5.01[8] 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 omitted]).

         Although 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.[9] 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.

         Similarly, 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.

         B

         We now 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."

         The 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 ...


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