September 11, 2018
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 and tried to the jury before Hudock, J.;
verdict and judgment of guilty of attempt to commit murder,
from which the defendant appealed to the Appellate Court,
DiPentima, C. J., and Beach and Bishop, Js., which affirmed
the trial court's judgment, and the defendant, on the
granting of certification, appealed to this court. Affirmed.
D. Russell, with whom were A. Paul Spinella and, on the
brief, Peter C. White and Michael Thomason, for the appellant
G. Weller, senior assistant state's attorney, with whom,
on the brief, were Richard J. Colangelo, state's
attorney, and Maureen Ornousky, senior assistant state's
attorney, for the appellee (state).
Robinson, C. J., and Palmer, D'Auria, Mullins, Kahn,
Ecker and Vertefeuille, Js.
present appeal requires us to consider whether, in
determining the sufficiency of the evidence to support a
conviction for attempt to commit murder under the substantial
step provision of General Statutes § 53a-49 (a) (2), the
proper inquiry should focus on what the actor had already
done or on what the actor had left to do to complete the
crime of murder. In the present case, the jury found the
defendant, Daniel B., guilty of attempt to commit murder in
violation of General Statutes §§ 53a-54a and 53a-49
(a) (2). Following our grant of certification,  the defendant
appeals from the judgment of the Appellate Court affirming
the judgment of conviction. See State v. Daniel B.,
164 Conn.App. 318, 354, 137 A.3d 837 (2016). The defendant
claims that, in concluding that the evidence was sufficient,
the Appellate Court improperly construed § 53a-49 (a)
(2) to require the substantial step inquiry to focus on
‘‘what [the actor] has already done, ''
rather than what ‘‘remains to be done . . .
.'' Id., 332. The state responds that the
Appellate Court properly held that the focus is on what the
actor has already done and that, when considering the
defendant's conduct in the present case, the Appellate
Court properly concluded that there was sufficient evidence
to sustain the defendant's conviction of attempted
murder. See id., 333. We conclude that the
determination of what conduct constitutes a substantial step
under § 53a-49 (a) (2) focuses on what the actor has
already done rather than on what the actor has left to do to
complete the substantive crime. We therefore affirm the
judgment of the Appellate Court.
jury reasonably could have found the following relevant
facts. In December, 2010, the defendant brought an action
seeking the dissolution of his marriage to the victim, T. The
couple's relationship subsequently began to further
deteriorate, leading T to call the police regarding the
defendant four times in two months. T's first call to the
police occurred in February, 2011, after T returned home to
discover that the defendant had installed a coded padlock on
their bedroom door, apparently in an attempt to keep her out
of the bedroom.
called 911 on three additional occasions in March, 2011. On
March 6, 2011, while T was watching a movie at her
sister's house, she received several phone calls from the
defendant, who appeared upset, asking her where she was. When
she answered her cell phone near a kitchen window, she
‘‘could hear him talking outside before [she]
heard his voice coming through the cell phone, '' and
realized he was standing outside her sister's home. On
that occasion, an officer with the Stamford Police Department
arrested the defendant, and T obtained a partial protective
order against him the following day. The next day, on March
7, 2011, after T returned home from her sister's house
and she discovered that the defendant had packed away her
belongings and left them by the front door, the police were
again called. Two days later, on March 9, 2011, T came home
to find the defendant moving bedroom furniture and taking her
belongings off the bed and other furniture in their bedroom.
When T confronted the defendant, an argument ensued during
which he shoved her multiple times through the upstairs
hallway, eventually attempting to push her down the stairs,
causing both her and their three year old son to fall at the
top of the staircase. Stamford police arrested the defendant
for the second time, and T obtained a full protective order
against him. By June, the defendant and T had reached an
agreement regarding the dissolution of their marriage.
9, 2011, four days before the dissolution was scheduled to be
finalized, the defendant called an old friend, John Evans, to
whom he had not spoken in a ‘‘couple of
years.'' Toobtain Evans' contact information, the
defendant requested Evans' phone number from a mutual
friend, who called Evans and obtained permission to give his
number to the defendant. The record is unclear as to when the
defendant made this request and how much time passed before
he received Evans' phone number. The record does reveal,
however, that between the hours of 12 and 2 a.m. on June 9,
the defendant called Evans and requested to meet with him
that day at approximately 3 p.m. at a donut shop in Stamford.
When they met fifteen hours later, the defendant explained
that he was getting divorced from T and she was
‘‘getting the house, the kids . . . and she was
trying to get some money from him, too.'' The
defendant asked Evans if he ‘‘knew anybody that
could murder [T]'' for him. When Evans tried to
dissuade him, the defendant told him that ‘‘[he
had] been thinking about it for two years, and he made up his
mind . . . . He needs it done.''
responded that he would ‘‘see what [he] could
do.'' Shortly after leaving the defendant, Evans
called Mike Malia, a mutual friend who knew the defendant
better than Evans did, for advice on how to proceed. Malia
told Evans that ‘‘when [the defendant] gets
something in his head, he's gonna do it. So, you know,
make a call, call somebody.'' Evans called John
Evensen, a retired Stamford police officer for whom Evans had
acted as a confidential informant in the past, to tell him
about the defendant's request. Evensen encouraged Evans
to ‘‘do the right thing, '' because
‘‘somebody's life'' was endangered,
and told Evans that he would connect him with someone.
Evensen then called James Matheny, then commander of the
Bureau of Criminal Investigations for the Stamford Police
Department, and arranged for Matheny to contact Evans.
speaking to Evans himself, Matheny's team formulated a
plan that called for Evans to introduce the defendant to an
undercover police officer who would pose as a hit man. As
part of the plan, Evans called and texted the defendant,
relaying to him that he ‘‘found a guy''
that would ‘‘take care of it ASAP.''
Through a series of texts and calls beginning at 3:27 p.m.
and ending at 12:22 a.m.,  the defendant agreed to meet Evans and
the hit man at the McDonald's restaurant located at the
southbound rest area off Interstate 95 in Darien. The
defendant met Evans at approximately 1 a.m., and Evans
introduced him to Michael Paleski, Jr., an officer with the
Branford Police Department assigned to the New Haven Drug
Task Force. Paleski had been engaged by the Stamford police
to pose as the hit man. The defendant entered Paleski's
vehicle, which was equipped with a hidden video camera that
recorded their entire encounter.
in the vehicle, the defendant and Paleski discussed the
manner, method and price to best effectuate T's murder.
The first issue the defendant and Paleski discussed was the
price Paleski would require to perform the hit. The defendant
agreed to pay Paleski $10, 000 in the following manner: an
$800 payment due the following morning in order for Paleski
to obtain a firearm, along with a down payment of $3000, and
the remainder due approximately one month after the murder.
Next, the defendant told Paleski the information necessary
for him to murder T, including her full name, home address,
place of employment, and work schedule. The defendant also
showed Paleski a photograph of T to help him identify her.
When the defendant showed Paleski the photograph of T, the
defendant noted that it was an older photograph and that
T's hair color had changed. He explained that it was the only
photograph of her he had because ‘‘she's not
fucking big on pictures.'' The record does not reveal
when and how the defendant had obtained the photograph of T.
T testified, however, that, one month prior to the meeting
between the defendant and Paleski, the defendant had asked T
to provide him with a photograph of herself, but she refused.
defendant's suggestion, the two agreed to stage T's
murder as a carjacking, as demonstrated by the following
exchange captured by the video camera:
‘‘[Paleski]: How do you want it done? . . .
‘‘[The Defendant]: I don't know. The only
thing I was thinking about was because she drives through-you
from Stamford or no?
‘‘[The Defendant]: Okay, well she-the hospital is
in a rough section and she's got a nice car . . . so
I'm like, I don't know if it makes sense, if that
would be the best way to go about it.
‘‘[Paleski]: Or you might want to make it look
like a carjacking or something?
‘‘[The Defendant]: Something like that . . . take
the car, the car is going to get found and it kind of like
‘‘[The Defendant]: You know, I'm not sure
what's the best thing to do . . . I didn't put that
thought into the detail of how.
‘‘[Paleski]: You want her completely out of the
picture right? Morte?
‘‘[The Defendant]: [The defendant is nodding.]
That's where it's getting to . . . .
‘‘[Paleski]: That's what you want? . . .
‘‘[The Defendant]: I wish we didn't need to
be there but . . . you know.''
Later in the conversation, Paleski again asked for
confirmation that the defendant wanted him to kill T. Paleski
told the defendant: ‘‘Just so [you] know, I'm
going to put two in that bitch's head and take that car
and be gone, and I'll fucking burn it
somewhere.'' The defendant responded,
‘‘[t]hat's the only way that I can come up
with that . . . makes sense . . . .''
Concerned that he would be ‘‘the first person . .
. [the police] looked at, '' the defendant believed
that the carjacking scenario near T's work would also
provide him with an alibi because the defendant would
typically have the children with him at one of his aunt's
houses. When Paleski confirmed by saying, ‘‘I can
take the bitch off when you're with [your aunts],
'' the defendant responded,
‘‘[e]xactly.'' Aware that the police
would look at the defendant's actions when investigating
T's murder, Paleski and the defendant discussed how
quickly the defendant could get the money:
‘‘[Paleski]: I'll do it but I need . . . some
of that wood.
‘‘[The Defendant]: Yea.
‘‘[Paleski]: Can you get me the $800 tonight?
‘‘[The Defendant]: I can work it out, yea, I
‘‘[The Defendant]: I just don't want to-for
me to get it I got to like disturb people tonight . . . I
don't want anything out of place tonight.
‘‘[Paleski]: Okay, but I ain't doing shit
without some money.
‘‘[The Defendant]: Understood.
‘‘[Paleski]: Feel me?
‘‘[The Defendant]: Clear. I'm saying to you
I'm not asking you for the urgency of tonight, I'd
rather do it so it's not-I don't want anything out of
‘‘[Paleski]: Right, right.
‘‘[The Defendant]: You know . . . that's my
pause for tonight, because it's going to be out of
character for me to go get it tonight . . . .
‘‘[Paleski]: How soon do you think you can get
‘‘[The Defendant]:I can get it tomorrow without
doing anything . . . out of character.''
told the defendant that, in order to effectuate the
carjacking, he needed the defendant to write down T's
full name, the make and model of her car, T's place of
employment, and her home address. The defendant exited
Paleski's vehicle and went to Evans' vehicle to
retrieve a piece of paper on which to write down the
information. In an apparent effort to distance himself from
the crime, the defendant asked Evans to write down the
information as the defendant dictated it to him. The piece of
paper was admitted into evidence, and Evans testified that he
wrote the note.
the defendant returned to Paleski's vehicle with the
note, he handed it to him, and they once again discussed the
plan to have T killed near her place of employment at a time
when the children were with the defendant. They discussed
T's typical work schedule and the defendant's
concerns that sometimes her work shifts change. They also
discussed whether it was best to have it done before the
divorce settlement was signed the following Monday. The
defendant expressed a desire to communicate with Paleski only
through Evans because he did not want to use his own phone to
call anyone or to coordinate a meeting with Paleski. The
defendant indicated that he would get a prepaid phone and
then get rid of it. The defendant told Paleski that he would
get the money and meet Paleski at the same location at 10
a.m. that same day. The defendant agreed to bring the money
to that meeting. The defendant thanked Paleski and exited the
vehicle, at which point he was apprehended by Stamford police
officers and arrested.
a six day trial, a jury found the defendant guilty of attempt
to commit murder in violation of §§ 53a-54a and
53a-49 (a) (2), and the court sentenced the defendant to
twenty years imprisonment, execution suspended after fifteen
years, followed by five years of probation. The defendant
appealed, claiming, among other things, that there was
insufficient evidence to support his conviction of attempted
murder, because the state failed to prove that his conduct
constituted a substantial step insofar as he had not yet paid
Paleski. State v. Daniel B., supra, 164 Conn.App.
322-23, 332. In addressing the defendant's claim, the
Appellate Court reviewed our case law and concluded that this
court has ‘‘frame[d] our criminal attempt
formulation in conformance with [§ 5.01 of] the Model
Penal Code, '' upon which § 53a-49 (a) (2) was
based, which focuses on ‘‘what the defendant has
already done and not what remains to be done.''
Id., 329. Consequently, that court upheld the
defendant's conviction, concluding that a reasonable
jury, after watching video footage of the defendant's
agreeing to a price to have his wife killed, providing
‘‘key information'' to effectuate her
murder, and planning the manner of the killing, including his
own alibi, could have found that the defendant took a
substantial step and, therefore, that the defendant's
failure to pay Paleski did not render his conduct merely
preparatory. See id., 332-34. This certified appeal
defendant claims that, in concluding there was sufficient
evidence to sustain his conviction of attempt to commit
murder, the Appellate Court improperly construed §
53a-49 (a) (2). Specifically, the defendant claims that the
determination of what constitutes a substantial step in a
course of conduct intended to culminate in murder depends on
‘‘what remains to be done'' as opposed to
what ‘‘has already been done.'' The state
argues that the Appellate Court properly looked to our case
law, which articulates the proper framework under §
53a-49 (a) (2) for determining a substantial step and focuses
on what the defendant has already done. We conclude that, in
determining whether a defendant's actions constitute a
substantial step in a course of conduct planned to culminate
in his commission of murder, the proper focus is on what the
defendant has already done. Applying ...