State v. Daniel B. ( 2019 )

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STATE OF CONNECTICUT v. DANIEL B.*
(SC 19788)
Robinson, C. J., and Palmer, D’Auria, Mullins,
Kahn, Ecker and Vertefeuille, Js.
Syllabus
Convicted of the crime of attempt to commit murder, the defendant appealed
to the Appellate Court, claiming, inter alia, that there was insufficient
evidence to support his conviction under the statute (§ 53a-49) governing
attempt crimes because the state had failed to prove that his conduct
constituted a substantial step in a course of conduct that was intended
to culminate in the murder of T, from whom the defendant was in the
process of seeking a divorce. The defendant’s conviction arose from
his efforts to hire a hit man to kill T. During the defendant’s trial, the
jury viewed a video recording in which the defendant is shown meeting
with an individual he believed to be a hit man, agreeing to a price to
have T killed, providing necessary information to effectuate her murder,
and planning the murder. The Appellate Court concluded that a reason-
able jury could have found, in light of that video recording, that the
defendant took a substantial step in a course of conduct intended to
culminate in T’s murder, and that the defendant’s failure to pay the
individual posing as a hit man did not render his conduct merely prepara-
tory. Accordingly, the Appellate Court affirmed the trial court’s judg-
ment, and the defendant, on the granting of certification, appealed to
this court. On appeal, the defendant claimed that the Appellate Court,
in concluding that there was sufficient evidence to sustain his conviction,
improperly construed § 53a-49 (a) (2) by focusing on what already had
been done rather than on what remained to be done to carry out T’s
murder. Held that the Appellate Court properly concluded that the state
presented sufficient evidence to permit a jury reasonably to find the
defendant guilty of attempt to commit murder: a review of the relevant
language and history of § 53a-49 (a) (2), as well as prior case law interpre-
ting the statute, led this court to conclude that the Appellate Court
properly construed § 53a-49 (a) (2) in determining that the defendant’s
actions constituted a substantial step in a course of conduct planned
to culminate in the commission of T’s murder by focusing on what the
defendant had already done rather than on what remained to be done
to carry out the murder; moreover, construing the evidence in the light
most favorable to sustaining the verdict, this court concluded that there
was ample evidence from which the jury reliably could have determined
the defendant’s intent, including evidence that he had contemplated
murdering T for two years beforehand and had begun planning well in
advance of his meeting with the hit man, that he contacted a third party
in order to obtain contact information for an individual, E, to whom he
had not spoken in years, to inquire about procuring a hit man only four
days before the dissolution of his marriage to T was to be finalized,
that he engaged in a series of texts and phone calls to E over a twenty-
four hour period, and that he then met with the individual he believed
was a hit man, provided him with T’s name, the name of T’s employer,
her home and work addresses, work schedule, physical description, and
a photograph, discussed the manner and method to best effectuate the
killing, established an alibi, and agreed to a structured payment schedule,
with the first payment to be made approximately ten hours after the
meeting.
(One justice dissenting)
Argued September 11, 2018—officially released March 5, 2019
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 assis-
tant state’s attorney, for the appellee (state).
Opinion
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 Gen-
eral 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 judg-
ment 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 Appel-
late 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 mar-
riage to the victim, T. The couple’s relationship subse-
quently 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 defen-
dant 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 sis-
ter’s home. On that occasion, an officer with the Stam-
ford 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 discov-
ered 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 attempt-
ing 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.’’ To obtain Evans’ contact information,
the defendant requested Evans’ phone number from a
mutual friend, who called Evans and obtained permis-
sion 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 defen-
dant 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 some-
thing 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 Investiga-
tions for the Stamford Police Department, and arranged
for Matheny to contact Evans.
After speaking to Evans himself, Matheny’s team for-
mulated 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 dis-
cussed 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 per-
form 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 mur-
der. Next, the defendant told Paleski the information
necessary for him to murder T, including her full name,
home address, place of employment, and work sched-
ule. 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 pic-
tures.’’ 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 exchange4 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 con-
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 con-
strued § 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 con-
duct planned to culminate in his commission of murder,
the proper focus is on what the defendant has already
done. Applying that standard in the present case, the
Appellate Court properly concluded that the state pre-
sented sufficient evidence to permit a jury reasonably to
find the defendant guilty of attempt to commit murder
under the substantial step subdivision.
We begin with the general principles that guide our
review. ‘‘In reviewing a sufficiency of the evidence
claim, we apply a two-part test. First, we construe the
evidence in the light most favorable to sustaining the
verdict. Second, we determine whether upon the facts
so construed and the inferences reasonably drawn
therefrom the jury reasonably could have concluded
that the cumulative force of the evidence established
guilt beyond a reasonable doubt. . . . On appeal, we
do not ask whether there is a reasonable view of the
evidence that would support a reasonable hypothesis
of innocence. We ask, instead, whether there is a rea-
sonable view of the evidence that supports the jury’s
verdict of guilty.’’5 (Internal quotation marks omitted.)
State v. Moreno-Hernandez, 317 Conn. 292, 298–99, 118
A.3d 26 (2015).
In the present case, the determination of whether
there was sufficient evidence to support the defendant’s
conviction of attempt to commit murder is inextricably
linked to a question of statutory interpretation. That
is, prior to determining whether there was sufficient
evidence, we must resolve whether the Appellate Court
properly construed § 53a-49 (a) (2) to focus on what
already has been done rather than what remains to be
done. We exercise plenary review over questions of
statutory interpretation, guided by well established
principles regarding legislative intent. See, e.g., Kasica
v. Columbia, 309 Conn. 85, 93, 70 A.3d 1 (2013)
(explaining plain meaning rule under General Statutes
§ 1-2z and setting forth process for ascertaining legisla-
tive intent).
We begin with the statutory language. Our criminal
attempt statute proscribes two distinct ways in which
a person is guilty of an attempt to commit a crime:
through the attendant circumstances subdivision, § 53a-
49 (a) (1), or the substantial step subdivision, § 53a-49
(a) (2). This appeal involves the interpretation of the
substantial step subdivision, which 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 . . . intentionally does or omits to do anything
which, under the circumstances as he believes them to
be, is an act or omission constituting a substantial step
in a course of conduct planned to culminate in his
commission of the crime.’’ General Statutes § 53a-49
(a) (2). Included in the threshold inquiry are our prior
interpretations of the statutory language, which we
have stated are encompassed in the term ‘‘text’’ as used
in § 1-2z. See Hummel v. Marten Transport, Ltd., 282
Conn. 477, 497–99, 923 A.2d 657 (2007).
We have held that the substantial step inquiry
‘‘focuses 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).6
For example, in Lapia, the defendant, Louis Lapia, kid-
napped a victim who was mentally disabled and held
him for three days. The victim testified that, while cap-
tive, he was ‘‘bound and blindfolded . . . beaten on
three different occasions, and . . . threatened [that
Lapia was going] to kill his parents.’’ Id., 513. In addition,
the victim testified that Lapia asked him to perform
oral sex. Id., 514. When the victim refused, Lapia ‘‘tight-
ened the ropes which bound [him] and threatened to
beat him again.’’ Id. On appeal, Lapia claimed that the
evidence was insufficient to sustain his conviction of
attempt to commit sexual assault in the first degree
under the substantial step subdivision because his
actions did not exceed ‘‘mere preparation’’ when he
only requested that the victim perform oral sex. Id.,
512, 515. In holding that there was sufficient evidence
to find that Lapia attempted to commit sexual assault
in the first degree, this court reasoned that ‘‘[Lapia’s]
argument that his conduct ‘remained in the zone of
preparation’ because no sexual assault occurred is with-
out merit. . . . [T]o constitute a substantial step, the
conduct must be ‘strongly corroborative of the actor’s
criminal purpose.’ . . . This standard differs from
other approaches to the law of criminal attempt in that
it focuses on what the actor has already done and not
on what remains to be done. . . . What constitutes a
substantial step in a given case is a question of fact. . . .
Under the facts of this case, it was not unreasonable
for the jury to conclude that [Lapia] had progressed so
far in the perpetration . . . [when he] request[ed] that
the [victim] perform oral sex and tighten[ed] the ropes
upon his refusal . . . .’’ (Citations omitted; emphasis
in original.) Id., 515–16.
Likewise, in State v. Carter, 317 Conn. 845, 120 A.3d
1229 (2015), this court addressed a sufficiency of the
evidence claim under the substantial step subdivision.
The defendant in that case, Kenneth R. Carter, was at
a cafe in Groton when two police officers—who had
received a tip that Carter intended to shoot someone
there—entered the cafe. Id., 848–49. When the officers
moved in his direction, Carter raised and pointed a gun
at one of them, Brigitte Nordstrom. Id. Carter refused
to drop the gun when ordered to do so and eventually
‘‘ ‘turned away toward the bar, with his gun and both
of his hands in front of him and his back to Nordstrom
. . . .’ ’’ Id., 849–50. After apprehending Carter, the offi-
cers discovered that Carter was holding a ‘‘ ‘.22 caliber
Jennings semiautomatic pistol with five rounds in the
magazine but none in the chamber.’ ’’ Id., 850. Because
the gun was not ‘‘ ‘racked’ ’’; id., 851; Carter argued that
there was insufficient evidence ‘‘ ‘to prove that [he]
intended to cause serious physical injury [under the
substantial step subdivision] as required to sustain a
conviction [of attempt to commit] assault in the first
degree . . . .’ ’’ Id., 852.
In rejecting Carter’s argument, this court reasoned
that it was not necessary for the gun to be racked in
order to find Carter guilty of attempt under the substan-
tial step provision. This court stated that ‘‘[t]he defen-
dant’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. . . . [I]t 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 omit-
ted.) Id., 861; see also State v. Wilcox, 254 Conn. 441,
468–69, 758 A.2d 824 (2000) (focusing on what defen-
dant had done and not on what he had left to do); State
v. Milardo, 224 Conn. 397, 404, 618 A.2d 1347 (1993)
(same); State v. Anderson, 211 Conn. 18, 28–29, 557
A.2d 917 (1989) (same).
Our prior interpretation of § 53a-49 (a) (2) finds sup-
port in the history of the statute. When the legislature
codified the crime of attempt and incorporated the sub-
stantial step as one of the means by which a defendant
could be held liable, it adopted the substantial step
provision from the Model Penal Code. See State v. Mor-
eno-Hernandez, supra, 317 Conn. 303–304. The Model
Penal Code’s substantial step provision did not require
‘‘a ‘last proximate act’ or one of its various analogues’’
in order to ‘‘permit the apprehension of dangerous per-
sons at an earlier stage than . . . other approaches
without immunizing them from attempt liability.’’
United States v. Jackson, 560 F.2d 112, 120 (2d Cir.
1977) (citing Model Penal Code § 5.01, comment, pp.
47–48 [Tentative Draft No. 10, 1960]), cert. denied sub
nom. Allen v. United States, 434 U.S. 1017, 98 S. Ct.
736, 54 L. Ed. 2d 726 (1978), and cert. denied, 434 U.S.
941, 98 S. Ct. 434, 54 L. Ed. 2d 301 (1977). The drafters
of the Model Penal Code explained that just because
‘‘further major steps must be taken before the crime
can be completed does not preclude a finding that the
steps already undertaken are substantial.’’ 1 A.L.I.,
Model Penal Code and Commentaries (1985) § 5.01,
comment 6 (a), p. 329.
Although not the focus of the substantial step provi-
sion, the consideration of what the actor has left to do
is not completely irrelevant to the inquiry of whether
he has taken a substantial step. Because ‘‘[a] substantial
step must be something more than mere preparation,
yet may be less than the last act necessary before the
actual commission of the substantive crime . . . the
finder of fact may give weight to that which has already
been done as well as that which remains to be accom-
plished before commission of the substantive crime.’’
(Emphasis added; internal quotation marks omitted.)
State v. Sorabella, 277 Conn. 155, 180, 891 A.2d 897,
cert. denied, 549 U.S. 821, 127 S. Ct. 131, 166 L. Ed. 2d
36 (2006). Accordingly, the defendant is free to empha-
size to the jury what he had left to do to commit the
crime. The main focus, however, will be on what the
defendant ‘‘has already done.’’ Model Penal Code and
Commentaries, supra, § 5.01, comment 6 (a), p. 329; id.,
p. 331. We conclude, therefore, that, in holding that
there was sufficient evidence to sustain the defendant’s
conviction of attempt to commit murder under the sub-
stantial step provision of § 53a-49 (a) (2), the Appellate
Court properly construed § 53a-49 (a) (2) by focusing
on what the defendant had already done in determining
that his conduct constituted a ‘‘substantial step in a
course of conduct planned to culminate in his commis-
sion’’ of murder. See State v. Daniel B., supra, 164 Conn.
App. 334–35.
For two reasons, we find unpersuasive the defen-
dant’s reliance on this court’s language in State v. Green,
194 Conn. 258, 277, 480 A.2d 526 (1984), cert. denied,
469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985), that
‘‘[the] substantial step . . . standard properly directs
attention to overt acts of the defendant which convinc-
ingly demonstrate a firm purpose to commit a crime.
. . . This standard shifts the focus from what has been
done to what remains to be done.’’ (Citation omitted;
internal quotation marks omitted.) First, Green is distin-
guishable from the present case because the issue pre-
sented required us to construe both the attendant
circumstances provision and the substantial step provi-
sion. That is, in Green, this court held that there was
sufficient evidence for a jury reasonably to find that
the defendant’s actions satisfied both the attendant cir-
cumstances and substantial step subdivisions of § 53a-
49 (a). Id., 276–77. We have emphasized the distinctions
between the two provisions, explaining that they ‘‘are
not coextensive. The substantial step subdivision crimi-
nalizes certain conduct that would fall short of violating
the attendant circumstances subdivision. . . . For
instance, a pickpocket who reaches into an empty
pocket would be guilty of attempt to commit larceny
under both subdivisions . . . but a pickpocket who is
apprehended immediately before reaching into the
empty pocket could be found guilty under only the
substantial step subdivision and not the attendant cir-
cumstances subdivision. Thus, the distinction between
the two subdivisions is the degree of completeness each
requires in the course of an actor’s conduct.’’ (Citations
omitted.) State v. Moreno-Hernandez, supra, 317
Conn. 311.
Second, in Green, this court relied on common-law
attempt doctrine that predated our legislature’s adop-
tion of the substantial step provision.7 For example, the
court in Green cited to State v. Mazzadra, 141 Conn.
731, 736, 109 A.2d 873 (1954), to support its statement
that the ‘‘acts must be . . . at least the start of a line
of conduct . . . .’’ State v. Green, supra, 194 Conn.
272. The Commission to Revise the Criminal Statutes
rejected that language in its comments to § 53a-49. The
commission explained that the substantial step theory
of attempt was a ‘‘new [concept] . . . used to distin-
guish acts of preparation from acts of perpetration and
is contrasted with criteria specified in . . . Mazzadra .
. . . This section requires more than a mere start of a
line of conduct leading to the attempt.’’ (Citation omit-
ted.) Commission to Revise the Criminal Statutes, Penal
Code Comments, Conn. Gen. Stat. Ann. (West 2012)
§ 53a-49, comment, p. 76. Therefore, in outlining what
conduct constitutes an attempt, the court in Green cited
language from prior case law that our legislature
rejected in adopting the substantial step provision. Sub-
sequent to Green, this court has held that the substantial
step inquiry focuses on what the actor has already done
and not what remains to be done.8 See, e.g., State v.
Carter, supra, 317 Conn. 861; State v. Lapia, supra, 202
Conn. 515–16.
Relying on this court’s prior precedent, the Appellate
Court properly held that the focus is on what the defen-
dant had already done rather than what remained to
be done. Applying the proper focus to the present case,
and construing the evidence in the light most favorable
to sustaining the guilty verdict, we conclude that the
Appellate Court properly determined that the state pre-
sented sufficient evidence for a jury reasonably to find
the defendant guilty beyond a reasonable doubt of
attempt to commit murder in violation of § 53a-49 (a)
(2).9 The evidence, which is strongly corroborative of
the defendant’s intent, amounts to more than a ‘‘mere
conversation standing alone.’’ State v. Molasky, 765
S.W.2d 597, 602 (Mo. 1989). The defendant’s course of
conduct, beginning prior to June 9 and ending with his
arrest, provided ample evidence from which the jury
could have reliably determined his intent. The state
presented evidence of the defendant’s motive through
testimony about the defendant’s pending divorce pro-
ceedings and the deteriorating relationship between the
defendant and T.10 Moreover, the state presented evi-
dence that the defendant had begun his planning well in
advance of June 9, through testimony that the defendant
had told Evans that he had contemplated murdering T
for ‘‘two years, and he made up his mind’’ that he was
going to do it, and through evidence demonstrating that
the defendant had attempted to procure a more recent
photograph of her, and had contacted a third party to
obtain Evan’s telephone number.11 The fact that the
defendant voluntarily contacted Evans, someone he had
not spoken to in years, to inquire if Evans knew some-
one who could murder T,12 only four days before the
dissolution of his marriage to T was set to be finalized,
also corroborates the defendant’s intent. The evidence
also revealed that, after his initial contact with Evans,
the defendant continued to exchange a series of texts
and made phone calls to Evans over a twenty-four hour
period, culminating in the defendant’s driving to a rest
area to meet a complete stranger who he believed was
a ‘‘hit man’’ willing to kill his wife. The jury had sufficient
evidence to find that the resulting meeting was more
than a mere conversation; rather, it was the culmination
of a series of acts all aimed at the same end, procuring
a hit man to kill T.
The jury watched the video recording of the defen-
dant entering Paleski’s vehicle and providing Paleski
with the information necessary to murder T. Specifi-
cally, when the defendant entered Paleski’s car, he pro-
vided Paleski with his wife’s name, home address,
employer, work address, work schedule, and physical
description. The defendant offered Paleski his plan for
murdering T, namely, that the killing take place ‘‘in a
rough section’’ of Stamford and involve her ‘‘nice car’’
to make it look like an impersonal attack and to ensure
that neither the defendant nor his children would be
near the scene. The jury watched the defendant leave
Paleski’s car to retrieve a piece of paper that ultimately
provided Paleski with, among other things, the make
and model of T’s car to effectuate the carjacking sce-
nario that he had concocted. After hearing T’s testimony
that she refused the defendant’s request for a photo-
graph of her one month before, the jury watched the
defendant show Paleski an old photograph of T and
describe how her hair color had changed since the
photo was taken to ensure that Paleski would recognize
her. In addition to providing critical information, the
defendant planned both the manner of killing and how
to secure his alibi. To effectuate the murder, the defen-
dant and Paleski created a structured payment scheme,
whereby they agreed on a total price, a down payment
amount, and upfront payment amount to be paid by
the defendant to Paleski approximately ten hours later.
After clarifying the logistics of making the first payment,
the jury reasonably could have determined that the
defendant made one final indication of his intent when
he thanked Paleski before exiting the vehicle. There
was more than ample evidence from which the jury
could have determined beyond a reasonable doubt that
the defendant intended to murder T and, by hiring a
hit man, took a substantial step to achieve that goal.
The judgment of the Appellate Court is affirmed.
In this opinion ROBINSON, C. J., and PALMER,
D’AURIA, MULLINS and VERTEFEUILLE, Js., con-
curred.
* In furtherance of our policy of protecting the privacy interests of the
subject of a criminal protective order, we refer to the protected person only
by the subject’s first initial and decline to identify the defendant or others
through whom the subject’s identity may be ascertained.
1
This court granted the defendant’s petition for certification to appeal,
limited to the following issue: ‘‘In concluding that there was sufficient evi-
dence to sustain the defendant’s conviction of attempted murder in violation
of . . . §§ 53a-54a and 53a-49 (a) (2), did the Appellate Court properly
construe § 53a-49 (a) (2) in determining that the defendant’s conduct consti-
tuted a ‘substantial step in a course of conduct planned to culminate in
his commission’ of murder?’’ State v. Daniel B., 323 Conn. 910, 149 A.3d
495 (2016).
2
At trial, the parties stipulated that the defendant called Evans four times,
at 3:27 p.m., 9:16 p.m., and 11:45 p.m. on June 9, 2011, and at 12:57 a.m. on
June 10, 2011, and that Evans called the defendant two times, at 11:56 p.m.
on June 9, 2011, and at 12:41 a.m. on June 10, 2011. The defendant also
introduced into evidence a text log indicating eight text messages exchanged
between the defendant and Evans from 11:25 p.m. on June 9, 2011, to 12:22
a.m. on June 10, 2011. At 11:40 p.m., Evans texted the defendant to tell him
that he had found someone that would kill T. One minute later, at 11:41
p.m., the defendant responded and asked Evans when and where they were
going to meet.
3
T testified that state’s exhibit 4 was a photograph of her, the defendant,
and their newborn daughter at the hospital following their daughter’s birth.
4
Although we cite only to portions of the conversation between the defen-
dant and Paleski, the entire transcript, state’s exhibit 11, is jointly appended
to the majority and dissenting opinions. We note that the best evidence was
the video recording itself, which the jurors viewed, and, therefore, they
were able to observe the defendant’s conduct, demeanor, and tone and to
make credibility findings.
5
The dissent agrees that the jury was properly instructed on the elements
required to find a defendant guilty under the substantial step provision of
§ 53a-49 (a) (2), and the defendant has not challenged the trial court’s charge
to the jury. Our inquiry, therefore, is limited to whether, in the light most
favorable to sustaining the verdict, there was sufficient evidence for a jury
reasonably to find the defendant guilty under the substantial step provision.
6
In addition to claiming that the Appellate Court misread this court’s
precedent in concluding that the focus of the substantial step inquiry is on
what has been done, the defendant claims that the Appellate Court misread
its own case law. We disagree and observe that the Appellate Court properly
followed this court’s precedent in focusing its inquiry on what has been
done. See, e.g., State v. Hanks, 39 Conn. App. 333, 341, 665 A.2d 102 (‘‘[the
substantial step] standard focuses on what the actor has already done and
not what remains to be done’’ [internal quotation marks omitted]), cert.
denied, 235 Conn. 926, 666 A.2d 1187 (1995).
7
We agree that our law in this area has been less than clear, and we take
this opportunity to clarify. We do not cast any doubts, however, on whether
Green was correctly decided. As we have explained, the statement in Green
was not central to the holding.
8
For similar reasons, the defendant’s reliance on Small v. Commissioner
of Correction, 286 Conn. 707, 946 A.2d 1203 (2008), is misplaced. Small
concerned a habeas appeal in which the defendant claimed ineffective assis-
tance of counsel after neither his trial nor appellate counsel challenged the
lack of a jury instruction on criminal attempt with respect to the predicate
felony attempted robbery for which he was ultimately convicted and upon
which one of his convictions of felony murder was based. Id., 709. In conclud-
ing that the failure to instruct was harmless, the court made a reference to
the statement in Green without any analysis of that case or of the cases
subsequent to Green that have stated that the focus is on what the actor
has already done. Id., 730. Like Green, therefore, the decision in Small did
not address the controlling precedent of this court.
Because our decision in the present case clarifies that, contrary to the
defendant’s contention, this court’s precedent that the determination of
what constitutes a substantial step depends on what the actor has already
done, we reject the defendant’s claim, based on Small, that the Appellate
Court’s decision in the present case constitutes a retroactive application of
the law that violates his due process rights.
9
A review of case law from other jurisdictions that have addressed the
murder for hire scenario under the Model Penal Code’s framework supports
our conclusion. See, e.g., State v. Manchester, 213 Neb. 670, 676, 331 N.W.2d
776 (1983) (holding that evidence was sufficient to constitute substantial step
where defendant ‘‘made plans for the murder, solicited a killer, discussed
the contract price and set the money aside . . . arranged for the weapon
and a scope, and showed the killer the victim, his residence, and place of
work’’); State v. Urcinoli, 321 N.J. Super. 519, 537, 729 A.2d 507 (App. Div.)
(there was sufficient evidence for jury to determine that defendant took
substantial step where defendant ‘‘showed [hit man] his bank statement to
prove that he could pay him [after the fact] . . . provided [hit man] with
details concerning the intended victims, including . . . address[es], phone
numbers, cars and license plate numbers, physical descriptions . . . [and]
daily routine[s]’’), cert. denied, 162 N.J. 132, 741 A.2d 99 (1999).
We agree with the dissent that those states—unlike Connecticut—that
have not adopted the Model Penal Code require the defendant to have taken
steps closer to the final act and, in some instances, require a dangerous
proximity to success. See State v. Moreno-Hernandez, supra, 317 Conn.
303–304 (noting that Connecticut adopted substantial step provision from
Model Penal Code § 5.01). The Model Penal Code, however, by drawing the
line further away from the final act, created ‘‘relaxed standards’’; State v.
Disanto, 688 N.W.2d 201, 211 (S.D. 2004); that include ‘‘in criminal attempt
much that was held to be preparation under former decisions.’’ Id., 210. In
fact, this court has observed that ‘‘[t]he drafters of the Model Penal Code
considered and rejected all previous formulations [including the dangerous
proximity test] in favor of [the substantial step].’’ (Internal quotation marks
omitted.) State v. Sorabella, 277 Conn. 155, 181 n.29, 891 A.2d 897 (citing
Model Penal Code § 5.01 [1] [c] [Proposed Official Draft 1962]), cert. denied,
549 U.S. 821, 127 S. Ct. 131, 166 L. Ed. 2d 36 (2006).
We also agree with the dissent that the payment of money is not ‘‘a
necessary prerequisite’’ for a jury to reasonably determine that a defendant
committed a substantial step in a murder for hire scenario. Our disagreement
with the dissent lies in the application of that principle to the facts of this
case. Specifically, the dissent states that, notwithstanding the general rule
that the payment of money is not a necessary prerequisite for a jury to find
that a defendant took a substantial step in a murder for hire scenario, ‘‘the
act of making payment in this case, on this record, became the only reliable
indicator of the defendant’s actual intentions during the crucial time period
at issue.’’ (Emphasis in original.) That conclusion, however, is not reconcil-
able with the applicable standard of review, which requires this court to
view the evidence in the light most favorable to sustaining the verdict. State
v. Moreno-Hernandez, supra, 317 Conn. 298–99. For example, although the
dissent claims that ‘‘[n]o one can fairly read the full transcript of the conversa-
tion without detecting a degree of hesitation and equivocation on the part
of the defendant,’’ the jurors who observed the video of the defendant’s
conversation with the hit man and reviewed the transcript, along with all
of the other evidence of the defendant’s conduct prior to the video recorded
meeting with the hit man, determined that the defendant’s conduct indicated
his intent to murder T, as they found him guilty of attempt under the
substantial step provision. In addition to all of the actions the defendant
took to hire a hit man to kill his soon to be ex-wife, the jury easily could
have credited the defendant’s own words prior to and during the video
recorded meeting to find beyond a reasonable doubt that he intended to
murder T. For example, the defendant told Evans he had contemplated
murdering his wife for two years, and he described to the hit man that he
thought the best way to accomplish T’s murder was to stage a carjacking
that would provide him with an alibi and divert suspicion away from him.
The jurors also heard the defendant discuss the timing of T’s murder and
whether it would be better for the defendant if T was killed prior to the
execution of their divorce settlement. Throughout the more than twenty-
four hours that took place between his first call to Evans and his arrest,
the defendant had numerous communications with Evans and could have
cancelled his request or changed his mind. His words and his conduct over
that more than twenty-four hour period, however, established his clear intent
to murder T.
Additionally, we disagree that, viewed in the light most favorable to sus-
taining the verdict, the failure of the defendant to provide money instantly
is significant. The time of day was relevant. The jury reasonably could have
inferred that the defendant’s decision not to withdraw money from a bank
at 1:30 a.m. to pay the hit man who had just agreed to murder his wife was
born of a desire to avoid being implicated in the murder, rather than an
affirmative refusal ‘‘to take the one action that . . . would have demon-
strated his firm intention to commit the crime . . . .’’ In fact, he reassured
the hit man that he had the money but did not want to get it until the
morning because it would look suspicious. The defendant repeatedly states
that that the purpose of finding a hit man was to prevent the police from
tying him to the killing.
10
The defendant claims that the Appellate Court improperly focused on
only one aspect of the substantial step analysis—namely, whether the focus
is on what has been done—and that, had the Appellate Court properly
addressed the intent requirement of the attempt statute, it would not have
upheld the defendant’s conviction. This argument lacks merit, as the Appel-
late Court analyzed all of the evidence to prove the offense, including the
evidence that established intent, and so concluded that the defendant ‘‘had
been contemplating this course of action for ‘two years,’ ’’ and, when he
met with Paleski, he ‘‘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[es], her work schedule,
a description of her vehicle, and suggested a day, location, and manner for
the murder to ensure that the defendant would have an alibi. [In addition]
the jury also saw the defendant twice confirm to Paleski that he wanted
his wife murdered.’’ State v. Daniel B., supra, 164 Conn. App. 332.
The defendant separately claims that the Appellate Court failed to address
how the defendant ‘‘act[ed] ‘with the kind of mental state required for
commission of’ ’’ murder, when considering the ‘‘ ‘circumstances as he
believed them to be’ ’’ at the time, as required under § 53a-49 (a). The jury
heard testimony from Evans, however, that the defendant believed he was
meeting a hit man at the rest stop. Believing Paleski was a hit man, the
defendant provided him with the information necessary to murder his wife
and took steps to distance himself from being suspected of participating in
the murder. Therefore, looking at the circumstances as the defendant
believed them to be, T stood in life threatening danger.
Finally, the defendant claims that the Appellate Court failed to address
how the defendant’s actions were ‘‘strongly corroborative of [his] criminal
purpose’’ under § 53a-49 (b). The Appellate Court concluded, however, that
‘‘it was reasonable for the jury to have concluded that a person, with the
intent to commit murder who hires a hit man has demonstrated his danger-
ousness to society.’’ State v. Daniel B., supra, 164 Conn. App. 333 n.10.
As the defendant himself concedes, the Appellate Court did not need to
incorporate a discussion of the statutory examples from § 53a-49 (b) in
order to properly construe the substantial step subdivision. See State v.
Green, supra, 194 Conn. 277 (‘‘[t]hese examples are not all-inclusive’’).
11
The dissent points out that ‘‘[t]here is no evidence that the defendant
conducted any surveillance [supposedly of T], obtained or furnished a
weapon, [or] ‘cased’ the potential crime scene [which was T’s place of
employment],’’ and cites State v. Damato, 105 Conn. App. 335, 343–45, 937
A.2d 1232, cert. denied, 286 Conn. 920, 949 A.2d 481 (2008), to make the
same point. However, unlike the victim in Damato, T was not a stranger to
the defendant, and he did not need to conduct surveillance to know where
she resided and worked. Rather, like the defendant in Damato, it is relevant
that the defendant came prepared to the meeting with all the information
the hit man would need to locate and murder T. As we have explained, our
analysis properly focuses on the evidence that was presented, viewed in
the light most favorable to sustaining the verdict. The defendant’s meeting
with the hit man, a complete stranger, in the middle of the night at a rest
area off the highway was more than a mere conversation to vent about his
frustration of not seeing his children earlier that day. It was, as the jury
concluded, an attempt to murder T.
12
The defendant also claims that, by focusing on what the actor has
already done to commit the crime, we will extend attempt liability beyond
what was intended by the legislature because the approach will blur the
line between attempt and solicitation. We disagree. We have observed that
‘‘the inciting or urging, whether it be by a letter or word of mouth, is a mere
solicitation . . . .’’ State v. Schleifer, 99 Conn. 432, 438, 121 A. 805 (1923).
‘‘An attempt [on the other hand] necessarily includes the intent, and also
an act of endeavor adapted and intended to effectuate the purpose. . . .
The act [or] endeavor must be some act done in part execution of a design
to commit the crime.’’ (Citation omitted; internal quotation marks omitted.)
Id.; see also Model Penal Code and Commentaries, supra, § 5.02, comment
3, p. 373 (‘‘this section provides for separate definition of criminal solicitation
on the ground that each of the two inchoate offenses presents problems
not pertinent to the other’’).
The present case provides a clear example of the distinction between
solicitation and attempt as articulated in Schleifer. The defendant first solic-
ited Evans to find a hit man. Had Evans refused, there would necessarily be
no act or endeavor that followed to constitute attempt. The state presented
sufficient evidence, however, that the defendant had taken steps before
contacting Evans, believed Evans found a hit man, and took steps to create
a plan under which he would not be targeted as the killer. Unlike the
dissent’s contention that this was ‘‘mere conversation’’ amounting to ‘‘two
solicitations,’’ a jury reasonably could have found that the defendant’s con-
duct that followed his initial contact with Evans constituted an attempt, as
the defendant’s outward acts—which included driving to the rest area, get-
ting in Paleski’s car, giving Paleski a piece of paper with information on it,
and showing Paleski a photograph of his wife—evinced an intent to have
his wife murdered.
Furthermore, we reject the defendant’s argument that the police should
have waited until the defendant gave Paleski some money the next morning
before arresting him. Payment is not necessary for a jury to determine that
a defendant’s conduct constituted a substantial step in a murder for hire
scenario. See, e.g., State v. Urcinoli, 321 N.J. Super. 519, 537, 729 A.2d 507
(App. Div.), cert. denied, 162 N.J. 132, 741 A.2d 99 (1999). In addition,
knowing the defendant’s intent to follow through with the plan, the police
would have put T’s life in jeopardy, because the defendant, whose prior
conduct against T led her to call the police multiple times and to obtain
multiple protective orders against him, could have decided that he did not
want to pay Paleski and could have killed her himself. Research in the field
of domestic violence has identified certain factors that create a greater risk
of violence or lethality. A well recognized factor that can increase risk to
victims is the finalization of a divorce or separation. See, e.g., J. Campbell
et al., ’’Intimate Partner Homicide: Review and Implications of Research
and Policy’’, 8 Trauma, Violence & Abuse 246, 254 (2007) (noting that divorce
and separation increase woman’s risk of experiencing lethal violence); L.
Dugan et al., ‘‘Exposure Reduction or Retaliation? The Effects of Domestic
Violence Resources on Intimate-Partner Homicide,’’ 37 L. & Society Rev.
169, 193 (2003) (noting that ‘‘increases in divorce are also related to more
killings of spouses . . . [which] is not entirely surprising in light of prior
research showing that the most dangerous time in a relationship is as it is
ending,’’ and citing to various scholars on the subject, including Jacquelyn
C. Campbell). In the present case, the defendant called Evans four days
before his dissolution from T was to be finalized. Coupled with the history
of domestic violence known to law enforcement at the time of the arrest,
the risk in this case was real. Many courts have opined that ‘‘failing to
attach criminal responsibility to the actor—and therefore prohibiting law
enforcement officers from taking action—until the actor is on the brink of
consummating the crime endangers the public and undermines the preventa-
tive goal of attempt law.’’ State v. Reeves, 916 S.W.2d 909, 913–14 (Tenn.
1996), citing United States v. Stallworth, 543 F.2d 1038, 1040 (2d Cir. 1976).
The defendant’s additional claim that the Appellate Court’s construction
of § 53a-49 (a) (2) will result ‘‘in a lower threshold of conduct constituting
a substantial step,’’ because the defendant’s conduct was ‘‘closer in nature
to the acts necessary [for] conspiracy,’’ which requires ‘‘ ‘a [less] demanding
showing’ ’’ than proof of a substantial step merits little discussion. Our
legislature set forth the crimes of conspiracy and attempt in different sec-
tions of our Penal Code, and the two sections remedy different conduct.
Compare General Statutes § 53a-48 with General Statutes § 53a-49. In the
present case, regardless of whether the defendant’s conduct would satisfy
the elements required for conspiracy under § 53a-48, a jury reasonably could
have found that his conduct amounted to a substantial step under § 53a-49
(a) (2).