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State v. Daniel B.

Supreme Court of Connecticut

March 5, 2019


          Argued September 11, 2018

         Procedural History

         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 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.

          Philip D. Russell, with whom were A. Paul Spinella and, on the brief, Peter C. White and Michael Thomason, for the appellant (defendant).

          Ronald 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.


          KAHN, J.

         The 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, [1] 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.

         The 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.

         T 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.

         On June 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.''

         Evans 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.

         After 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., [2] 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.

         While 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.[3] 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.

         At the defendant's suggestion, the two agreed to stage T's murder as a carjacking, as demonstrated by the following exchange[4] 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?
‘‘[Paleski]: 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 explains it.
‘‘[Paleski]: Yup.
‘‘[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 could.
‘‘[Paleski]: Alright.
‘‘[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 character.
‘‘[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 that money?
‘‘[The Defendant]:I can get it tomorrow without doing anything . . . out of character.''

         Paleski 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.

         When 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.

         Following 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 followed.

         The 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 ...

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