State v. Daniel B. ( 2019 )

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STATE v. DANIEL B.—DISSENT
ECKER, J., dissenting. The majority concludes that
the defendant’s conversations with John Evans and the
undercover ‘‘hitman,’’ Michael Paleski, Jr., provided
sufficient evidence for the jury to find beyond a reason-
able doubt that the defendant committed the crime of
attempted murder. I disagree that those preliminary
discussions, without more, constitute a substantial step
under General Statutes § 53a-49 and, therefore, I
respectfully dissent.
I
Before getting to the heart of the case, I pause to
express a minor concern with the methodological
framework developed by the majority as a prelude to
its finding that the evidence was sufficient to support
the defendant’s conviction of attempted murder. The
majority describes the issue on appeal as whether the
proper inquiry under the ‘‘substantial step’’ provision
of our criminal attempt statute ‘‘should focus on what
the [defendant] had already done or on what the [defen-
dant] had left to do to complete the crime . . . .’’ The
bulk of the court’s opinion is devoted to examining that
question and, after a lengthy discussion, the majority
concludes that the ‘‘main focus’’ of the substantial step
inquiry will be on what the defendant already has done.
The majority then hastens to add that ‘‘the consideration
of what the [defendant] has left to do is not completely
irrelevant to the inquiry of whether he has taken a
substantial step’’ and ‘‘the defendant is free to empha-
size to the jury what he had left to do to commit the
crime.’’
I intend no criticism of the majority’s choice to
address the ‘‘already-done versus remains-to-be-done’’
issue. The Appellate Court’s decision in this case uses
that dichotomous framework to reach its conclusion
and the parties present their respective arguments to
this court using that same approach. Under these cir-
cumstances, there is an obvious need for this court
to clarify what the Appellate Court described as the
‘‘conflicting’’ case law invoking the ‘‘already-done ver-
sus remains-to-be done’’ approach. State v. Daniel B.,
164 Conn. App. 318, 327 and n.7, 137 A.3d 837 (2016)
(citing cases from this court and Appellate Court
reflecting inconsistent treatment). Nor do I disagree
with the majority’s basic conclusion on the issue:
whether a criminal attempt has occurred will depend
on what the defendant already has done, although what
still remains to be done is not irrelevant to the analysis.
My concern relates solely to the suggestion, implicit but
unmistakable, that the ‘‘already-done versus remains-to-
be-done’’ framework provides any meaningful guidance
on the question of when preparation ends and attempt
begins.
In the criminal law, the idea of an ‘‘attempt’’—like
the idea of a ‘‘substantial step’’—is fundamentally and
intrinsically a relative concept.1 More particularly, these
terms derive their content and meaning in significant
part from a terminal reference point. An attempt to
do what? A substantial step toward what end? These
questions only can be answered by reference to the
intended end point, regardless of whether it ultimately
is achieved. I fully agree with the proposition that a
criminal attempt under our law can (and usually will)
occur before the defendant or his agent has taken the
last step, or even the penultimate or antepenultimate
step, necessary to complete the crime. The Model Penal
Code, which has been adopted in Connecticut and many
other jurisdictions, makes this point crystal clear. See
1 A.L.I., Model Penal Code and Commentaries (1985)
§ 5.01, comment 6 (a), p. 329. But it also is true, as
the majority seems to acknowledge, that the ultimate
objective cannot be ignored entirely when the critical
question is whether the defendant’s ‘‘step’’ toward that
objective is a ‘‘substantial’’ one.
I believe that the ‘‘already-done versus remains-to-
be-done’’ framework is ineffectual as a legal standard,
at least in hard cases like this one, because it does little
to resolve the central difficulty of locating the point at
which planning ends and perpetration begins. I do not
offer a better legal standard with brighter lines for easier
application—nor do I believe that one exists.2 I simply
caution lawyers and trial judges that they should not
expect the framework set forth in the majority opinion
to provide particularly helpful guidance in resolving
these difficult issues in cases where such guidance is
most needed.
II
I begin my analysis with the appropriate standard of
review for claims challenging the sufficiency of the
evidence. As the majority points out, ‘‘we apply a two-
part test’’ to sufficiency of the evidence claims, which
requires us first to ‘‘construe the evidence in the light
most favorable to sustaining the verdict,’’ and second,
to ‘‘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 reason-
able doubt.’’ State v. Moreno-Hernandez, 317 Conn. 292,
298, 118 A.3d 26 (2015). This standard of review undeni-
ably requires great deference to the jury’s verdict. But
it does not negate or dilute the obligation of an appellate
court reviewing a criminal conviction to ensure that
the evidentiary basis for the conviction meets the con-
stitutional ‘‘beyond a reasonable doubt’’ standard. See
J. Newman, ‘‘Beyond ‘Reasonable Doubt,’ ’’ 68 N.Y.U.
L. Rev. 979, 980 (1993) (encouraging appellate courts
‘‘to take the [reasonable doubt] standard seriously as
a rule of law against which the validity of convictions
is to be judged’’). Our review, in other words, ‘‘is not
entirely toothless . . . for [w]e do not . . . fulfill our
duty through rote incantation of [the principles govern-
ing a review of sufficiency of evidence] followed by
summary affirmance.’’ (Citation omitted; internal quota-
tion marks omitted.) United States v. Salamanca, 990
F.2d 629, 638 (D.C. Cir.), cert. denied, 510 U.S. 928, 114
S. Ct. 337, 126 L. Ed. 2d 281 (1993). Although ‘‘[a] jury
is entitled to draw a vast range of reasonable inferences
from evidence, [it] may not base a verdict on mere
speculation’’; id.; ‘‘and caution must be taken that the
conviction not be obtained by piling inference on infer-
ence.’’ (Internal quotation marks omitted.) United
States v. Jones, 44 F.3d 860, 865 (10th Cir. 1995).
These cautionary precepts take on special relevance
under the circumstances of the present case, in which
the jury was not presented with the option of convicting
the defendant of a lesser crime more closely matching
his criminal conduct. ‘‘The sufficiency of the evidence
warrants particular scrutiny when the evidence strongly
indicates that a defendant is guilty of a crime other
than that for which he was convicted, but for which he
was not charged. Under such circumstances, a trier of
fact, particularly a jury, may convict a defendant of a
crime for which there is insufficient evidence to vindi-
cate its judgment that the defendant is blameworthy.
Compelling evidence that a defendant is guilty of some
crime is not, however, a cognizable reason for finding
a defendant guilty of another crime.’’ United States v.
Salamanca, supra, 990 F.2d 638; see also In re Winship,
397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970)
(‘‘It is critical that the moral force of the criminal law
not be diluted by a standard of proof that leaves people
in doubt whether innocent men are being condemned. It
is also important in our free society that every individual
going about his ordinary affairs have confidence that
his government cannot adjudge him guilty of a criminal
offense without convincing a proper factfinder of his
guilt with utmost certainty.’’).
The defendant was convicted of the crime of
attempted murder. Our attempt statute, § 53a-49, pro-
vides in relevant part that ‘‘[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 commis-
sion of the crime. . . .’’ General Statutes § 53a-49 (a)
(2). ‘‘In general terms . . . [a] substantial step must be
something more than mere preparation, yet may be less
than the last act necessary before the actual commis-
sion of the substantive crime, and thus the finder of
fact may give weight to that which has already been
done as well as that which remains to be accomplished
before commission of the substantive crime. . . . In
order for behavior to be punishable as an attempt, it
need not be incompatible with innocence, yet it must
be necessary to the consummation of the crime and be
of such a nature that a reasonable observer, viewing it
in context could conclude beyond a reasonable doubt
that it was undertaken in accordance with a design to
violate the statute.’’ (Internal quotation marks omitted.)
State v. Sorabella, 277 Conn. 155, 180–81, 891 A.2d 897,
cert. denied, 549 U.S. 821, 127 S. Ct. 131, 166 L. Ed. 2d
36 (2006); see also State v. Lapia, 202 Conn. 509, 514–15,
522 A.2d 272 (1987) (‘‘[t]he mere preparation to do
something, absent an act constituting a substantial step
toward the commission of a specific offense, is insuffi-
cient to sustain a conviction for criminal attempt’’).
Pursuant to § 53a-49 (b), ‘‘[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). ‘‘This formulation is used
to distinguish acts of preparation from acts of perpetra-
tion’’ and it ‘‘requires more than a mere start of a line
of conduct leading to the attempt.’’ (Emphasis added.)
Commission to Revise the Criminal Statutes, Commen-
tary on Title 53a: The Penal Code (1969), pp. 28–29.
The acts undertaken must be ‘‘substantial’’ and ‘‘unam-
biguous in supporting a criminal purpose.’’ Id. Although,
as a general matter, ‘‘[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); the court must exercise its
gatekeeping function to ensure that the defendant’s con-
duct is ‘‘strongly corroborative of the actor’s criminal
purpose. . . .’’ General Statutes § 53a-49 (b); see also
United States v. Crowley, 318 F.3d 401, 415 (2d Cir.)
(noting that ‘‘the ‘strongly corroborative’ language’’ is
used in Model Penal Code to instruct ‘‘courts as to what
kinds of acts may be ‘held’ to be sufficient to constitute
substantial steps’’), cert. denied, 540 U.S. 894, 124 S.
Ct. 239, 157 L. Ed. 2d 171 (2003); Model Penal Code
and Commentaries, supra, § 5.01, comment 6 (c), p. 352
(noting that ‘‘the judge can refuse to submit the issue
to the jury or refuse to accept the decision of the jury
only if there is insufficient evidence of criminal purpose
or there is no reasonable basis for holding that the
defendant’s conduct was ‘strongly corroborative’ of the
criminal purpose attributed to him’’). If the defendant’s
conduct is not substantial and strongly corroborative
of his criminal purpose, then the evidence is insufficient
as a matter of law to constitute a substantial step.
Subsection (b) of the statute lists seven examples of
conduct that ‘‘if strongly corroborative of the actor’s
criminal purpose, shall not be held insufficient as a
matter of law . . . .’’ General Statutes § 53a-49 (b). One
of the enumerated circumstances is ‘‘soliciting an inno-
cent agent to engage in conduct constituting an element
of the crime. . . .’’ (Emphasis added.) General Statutes
§ 53a-49 (b) (7); see generally General Statutes § 53a-
179a.3 Indeed, the rule in Connecticut has long been
that a solicitation, even if ‘‘accompanied by a bribe’’ or
an ‘‘offer of money,’’ is ‘‘never an attempt.’’ State v.
Schleifer, 99 Conn. 432, 438, 121 A. 805 (1923).
In State v. O’Neil, 65 Conn. App. 145, 782 A.2d 209
(2001), aff’d, 262 Conn. 295, 811 A.2d 1288 (2003), the
Appellate Court expounded upon the distinction
between solicitation and attempt. In O’Neil, the defen-
dant was convicted of attempt to commit murder
because he mailed a letter asking someone to kill a
witness. Id., 148. The Appellate Court noted that in
addition to the common-law distinction between the
crimes of attempt and solicitation, the Model Penal
Code, upon which our attempt statute is based, ‘‘coun-
seled against classifying solicitations as attempts.’’ Id.,
164. Specifically, the commentary to § 5.02 of the Model
Penal Code provides that ‘‘[w]hile attempts and solicita-
tions have much in common and are closely related in
their historical development, this section provides for
separate definition of criminal solicitation on the
ground that each of the two inchoate offenses [attempt
and solicitation] presents problems not pertinent to the
other.’’ (Internal quotation marks omitted.) Id., quoting
Model Penal Code and Commentaries, supra, § 5.02,
comment 3, pp. 372–73. Additionally, ‘‘the inclusion of
the ‘innocent’ agent formulation in § 53a-49 (b) (7) is a
factor that reinforces the common-law distinction
between solicitation and attempt,’’ because by ‘‘includ-
ing one specific solicitation situation in the attempt
statute, it is logical to conclude that the legislature
implicitly determined that other forms of solicitation,
in and of themselves, do not constitute an attempt to
commit a crime.’’4 State v. O’Neil, supra, 167. In light
of the distinction between the crimes of solicitation
and attempt, which ‘‘has persisted for almost eighty
years,’’ the Appellate Court reversed the defendant’s
conviction because ‘‘[t]he conduct of the defendant con-
sisted of a mere solicitation or a mere preparation—
that is not enough to constitute an attempt.’’ Id., 171;
see also State v. Damato, 105 Conn. App. 335, 343–45,
937 A.2d 1232 (holding that evidence was sufficient to
support defendant’s conviction of attempted murder
because defendant did not just solicit hitman, he also
followed victim and surveilled victim’s residence), cert.
denied, 286 Conn. 920, 949 A.2d 481 (2008).
In the present case, there is no question that the
defendant’s conversations with Evans and Paleski con-
stituted criminal solicitations in violation of § 53a-179a.
The defendant, however, was not charged with the
crime of solicitation to commit murder; he was charged
with the crime of attempt to commit murder in violation
of General Statutes §§ 53a-54a and 53a-49.5 The ques-
tion presented in this appeal is whether the defendant
crossed the line between solicitation and attempt by
taking a substantial step toward the commission of the
offense, i.e., whether he went beyond mere planning
and preparation by committing acts strongly corrobora-
tive of his criminal purpose and of such a nature that
a reasonable observer could conclude beyond a reason-
able doubt that they were undertaken with the clear
intent to commit the crime of murder.
‘‘[T]he question of when preparation ends and
attempt begins is exceedingly difficult.’’ (Internal quota-
tion marks omitted.) United States v. Irving, 665 F.3d
1184, 1195 (10th Cir. 2011), cert. denied, 566 U.S. 928,
132 S. Ct. 1873, 182 L. Ed. 2d 656 (2012); see also United
States v. Coplon, 185 F.2d 629, 633 (2d Cir. 1950) (Hand,
C. J.) (‘‘[t]he decisions are too numerous to cite, and
would not help much anyway, for there is, and obviously
can be, no definite line’’ between preparation and
attempt), cert. denied, 342 U.S. 920, 72 S. Ct. 362, 96 L.
Ed. 688 (1952). I agree with the majority that the fact
that ‘‘further major steps must be taken before the crime
can be completed does not preclude a finding that the
steps already undertaken are substantial.’’ (Internal
quotation marks omitted.) The majority, however, fails
to give sufficient weight to the requirement that the
steps already undertaken must be substantial and
strongly corroborative of the actor’s criminal intent in
order to rise to the level of an attempt.
To determine whether the defendant’s conduct in this
case constituted a substantial step toward the commis-
sion of the crime of murder, sister state precedent is
instructive. Although there is not a complete and uni-
form consensus as to what acts are sufficient to support
a conviction of attempted murder in the murder-for-
hire context; see State v. Disanto, 688 N.W.2d 201, 208
(S.D. 2004) (noting that ‘‘the courts are divided’’ in mur-
der-for-hire cases); the general agreement among those
states that have adopted the Model Penal Code defini-
tion of attempt is that more than mere conversation is
required.6 See State v. Molasky, 765 S.W.2d 597, 602
(Mo. 1989) (noting that, to constitute substantial step,
there must be ‘‘something beyond conversation,’’ such
as ‘‘making a cash payment, delivering a weapon, vis-
iting a crime scene, waiting for a victim, etc., [that]
has accompanied the conversation, thus evidencing the
seriousness of purpose, and making the planned crime
closer to fruition’’). To cross the line between criminal
solicitation and attempt, the defendant must take some
action, beyond the solicitation of a surrogate to commit
the crime, strongly corroborative of his criminal pur-
pose. Some examples of such action include the pay-
ment of money, surveillance of the victim, visiting the
crime scene, furnishing the weapon for the commission
of the offense, expressing urgency and certainty regard-
ing the murder-for-hire plan, meeting with the hitman
multiple times, and repeatedly importuning the hitman
to commit the crime. See, e.g., Martin-Argaw v. State,
343 Ga. App. 864, 866, 806 S.E.2d 247 (2017) (affirming
defendant’s conviction of attempted murder because
‘‘[t]he evidence in this case showed that [the defendant]
had expressly asked the undercover officer—whom he
believed to be a [hitman]—to kill three people; that he
had given the [hitman] specific information about the
three people to help him accomplish this purpose; that
he had agreed to pay a negotiated price for the hit; that
he had discussed the logistics of making the payment;
and that he had responded affirmatively when the [hit-
man] made it clear that [the defendant] did not need
to do anything else before the hit occurred’’); State v.
Manchester, 213 Neb. 670, 676, 331 N.W.2d 776 (1983)
(affirming defendant’s conviction of attempted murder
because defendant ‘‘made plans for the murder, solic-
ited a killer, discussed the contract price and set the
money aside in his billfold, arranged for the weapon
and a scope, and showed the killer the victim, his resi-
dence, and his place of work’’); State v. Kilgus, 128 N.H.
577, 585, 519 A.2d 231 (1986) (holding that defendant’s
solicitation of another to commit murder, payment of
$1000, identification of victim, and instruction to dis-
pose of corpse out-of-state ‘‘was more than . . . ‘mere’
or ‘naked’ solicitation,’’ rather, ‘‘[i]t was a ‘substantial
step’ toward the commission of capital murder’’); State
v. Fornino, 223 N.J. Super. 531, 540, 539 A.2d 301 (App.
Div.) (holding that ‘‘defendant’s visits to the scene of
the planned crime and his receipt of money for its
commission could properly be found by the jury to
constitute ‘substantial steps in a course of conduct
planned to culminate in the commission of the crime’
which were ‘strongly corroborative of the actor’s crimi-
nal purpose’ ’’), cert. denied, 111 N.J. 570, 546 A.2d 499
(1988), and cert. denied, 488 U.S. 859, 109 S. Ct. 152,
102 L. Ed. 2d 123 (1988); State v. Group, 98 Ohio St. 3d
248, 263, 781 N.E.2d 980 (2002) (holding that defendant’s
acts of ‘‘offering [an acquaintance] $150,000 to throw a
firebomb through the window of [the intended victim’s]
house, providing him with her address, repeatedly
importuning him to commit the crime, and instructing
him how to make the bomb and how to misdirect any
subsequent police investigation—strongly corroborate
[his] criminal purpose, and therefore constitute a sub-
stantial step in a course of conduct planned to culminate
in the aggravated murder of [the intended victim]’’); but
see State v. Kimbrough, 364 Or. 66, 89–90, 431 P.3d 76
(2018) (reversing defendant’s attempted murder convic-
tion even though defendant ‘‘intended all the substan-
tive crimes to be committed by the hitman and . . .
took steps toward realizing that goal,’’ because ‘‘to be
guilty of attempt, the defendant must personally engage
in conduct that constitutes a substantial step, and that
substantial step must be toward a crime that the defen-
dant intends to participate in himself’’). Without some
substantial action, there is no way to distinguish
between ‘‘people who pose real threats from those who
are all hot air . . . .’’ United States v. Gladish, 536 F.3d
646, 650 (7th Cir. 2008) (noting that ‘‘[t]reating speech
(even obscene speech) as the ‘substantial step’ would
abolish any requirement of a substantial step’’); see also
United States v. Resendiz-Ponce, 549 U.S. 102, 107, 127
S. Ct. 782, 166 L. Ed. 2d 591 (2007) (noting that under
Model Penal Code, as well as common law, ‘‘mere intent
to violate a . . . criminal statute is not punishable as
an attempt unless it is also accompanied by signifi-
cant conduct’’).7
In light of this extensive case law focused on the
crime of attempt in the murder-for-hire context, and
after a thorough review of the record in the present
case, I conclude that the defendant’s actions, although
morally reprehensible and criminally punishable under
our solicitation statute, are insufficient as a matter of
law to constitute a substantial step toward the commis-
sion of the crime of murder. The events at issue
occurred over a very short period of time,8 during which
the defendant was upset because he ‘‘was suppose[d]
to have the kids [for visitation],’’ but his wife ‘‘didn’t
give [him] the kids’’ in accordance with his expectation.
The defendant’s conversations with Evans represent an
initial attempt to find a hitman. The defendant met later
that night to solicit Paleski, the supposed hitman. The
defendant’s meeting with Paleski, like his earlier meet-
ing with Evans, was a solicitation to commit a crime.
Although there were two solicitations (one of Evans
and one of Paleski), two solicitations within the same
day to commit the same crime do not add up to an
attempt. By equating the defendant’s efforts to hire a
hitman with a substantial step toward the commission
of the crime of murder, the majority blurs the important
distinction between the crimes of solicitation and
attempt—a distinction that has persisted in our case
law for more than eighty years. The real issue is whether
applicable law would permit a juror to conclude,
beyond a reasonable doubt, that the defendant crossed
the line between planning a murder and perpetrating a
murder on the basis of his conversations with Evans
and Paleski. I answer that question ‘‘no’’ for the follow-
ing reasons.
At no point during his seventeen minute conversation
with Paleski did the defendant express a clear and
unambiguous intention to implement his murder-for-
hire idea. No one can fairly read the full transcript of
the conversation without detecting a degree of hesita-
tion and equivocation on the part of the defendant.9
When Paleski attempted to clarify the defendant’s intent
by asking him whether he wanted the would-be victim
‘‘out of the picture . . . ? Morte,’’ the defendant
responded equivocally: ‘‘[T]hat’s where it’s getting to
. . . it’s like . . . I wish we didn’t need to be there but
. . . .’’ The same ambivalence is repeated at numerous
points during the conversation.10 The defendant clearly
stated that he ‘‘didn’t put that [much] thought into the
details’’ of his murder-for-hire idea because ‘‘it all hap-
pened fast, I fucking talked to fucking [Evans] tonight.
[H]e said he was going to talk to somebody, he went
to talk to somebody, and then that was that. . . . [A]nd
here I’m sitting with you I was expecting to talk to
him.’’ The defendant asked for the meeting with Paleski,
but during that meeting he comes across as rushed, not
resolute, as Paleski tries to engage him to help formulate
more concrete plans. See Commission to Revise the
Criminal Statutes, Commentary on Title 53a: The Penal
Code (1969), p. 29 (noting that § 53a-49 ‘‘requires more
than a mere start of a line of conduct leading to the
attempt’’ [emphasis added]).
The majority makes much of the fact that the defen-
dant provided Paleski with identifying information
about the would-be victim, such as her name, address,
appearance, work schedule, and automobile. The trans-
mittal of this information was necessary, however, for
Paleski to understand what he was being solicited to
do; it did not elevate the crime of solicitation to the
crime of attempted murder. Identifying information of
this nature is part and parcel of the solicitation and
preliminary planning of the crime; to treat it as part of
the perpetration of the crime erodes the demarcation
between solicitation and attempt. Moreover, if we look
at this particular portion of the conversation to discern
the defendant’s state of mind, what stands out as signifi-
cant is the fact that virtually all of the information
provided by the defendant regarding the would-be vic-
tim was not offered by him until elicited by Paleski’s
direct, explicit, and extremely persistent questioning.11
I return to the fact that the only evidence of a criminal
attempt in this case consists of the words spoken by
the defendant to Evans and Paleski soliciting them to
commit a crime, and the words spoken in the same
discussion with Paleski sketching out, for the very first
time, an incipient plan to commit that crime. The damn-
ing ‘‘actions’’ identified by the majority involve nothing
more than the basic acts physically necessary to hold
such meetings—the defendant drove his car, provided
information to identify the would-be victim, and shared
other basic information to begin planning the crime.
There is no evidence that the defendant conducted any
surveillance, obtained or furnished a weapon, ‘‘cased’’
the potential crime scene to test the viability of a plan,
or took any actions, beyond mere solicitation, to imple-
ment his murder-for-hire idea. Indeed, the record
reflects that the defendant affirmatively declined to take
the one action that, under the particular circumstances
of this case, would have demonstrated his firm intention
to commit the crime—the payment of money. Paleski
repeatedly informed the defendant that he would not
‘‘do shit without that money,’’ but despite this knowl-
edge, the defendant still declined to provide a cash
down payment to Paleski that night. I do not suggest
that the payment of money is a necessary prerequisite
in all murder-for-hire cases; see State v. Servello, 59
Conn. App. 362, 373 and n.4, 757 A.2d 36, cert. denied,
254 Conn. 940, 761 A.2d 764 (2000); but I believe that
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.
Under the circumstances of this case—where the con-
versation has not moved beyond preliminary planning,
the time period is short, the defendant’s words reflect
some uncertainty, and the defendant has been told in
explicit terms that payment is an absolute prerequisite
to any steps being taken toward commission of the
offense—I would hold that the failure to provide pay-
ment is strongly indicative that a final decision to com-
mit the crime has not been made. See State v. Molasky,
supra, 765 S.W.2d 602. Because ‘‘a substantial step is
evidenced by actions, indicative of purpose, not mere
conversation standing alone’’; (footnote omitted) id.;
the record in this case, in my view, does not contain
sufficient evidence to sustain the defendant’s convic-
tion of attempted murder.
Lastly, I note that there is absolutely no evidence in
the record to support the majority’s conclusion that the
would-be victim was in imminent danger of harm, thus
necessitating the defendant’s immediate arrest. The
defendant’s commitment to his murder-for-hire idea
was less than certain, but to the extent that the defen-
dant intended to follow through with it, he made abun-
dantly clear to Paleski that there was no ‘‘urgency of
tonight’’ and that he ‘‘definitely [didn’t] want to do any-
thing at the house’’ or ‘‘near the kids,’’ just as Paleski
made it clear to the defendant that he would do abso-
lutely nothing without being paid first. The majority’s
hypothesis that the defendant ‘‘could have killed [the
victim] himself’’ before meeting with Paleski in the
morning not only is unsupported by any record evi-
dence, it is contradicted by that evidence.12 If the author-
ities harbored any concerns whatsoever about the
would-be victim’s safety, moreover, they had ample evi-
dence to arrest and charge the defendant with the crime
of solicitation. The fact that the authorities decided
to charge the defendant with the crime of attempted
murder, rather than solicitation, does not diminish the
state’s burden to prove, beyond a reasonable doubt,
that the defendant took a substantial step toward the
commission of the offense.
Because there is insufficient evidence to prove
beyond a reasonable doubt that the defendant commit-
ted any substantial acts strongly corroborative of his
criminal intent, I would reverse the judgment of the
Appellate Court. Accordingly, I respectfully dissent.
1
See, e.g., U.S. Industries/Federal Sheet Metal, Inc. v. Director, Office of
Workers’ Compensation Programs, 455 U.S. 608, 619 n.3, 102 S. Ct. 1312,
71 L. Ed. 2d 495 (1982) (recognizing that ‘‘[t]he term ‘substantial’ is relative’’);
Bausch & Lomb, Inc. v. Alcon Laboratories, Inc., 79 F. Supp. 2d 243, 249
(W.D.N.Y. 1999) (‘‘[t]he word ‘significant,’ like ‘substantial,’ is a relative
term that does not inherently convey any particular quantifiable standard’’);
Fisette v. DiPietro, 28 Conn. App. 379, 384, 611 A.2d 417 (1992) (holding
that ‘‘the term ‘substantial circulation’ is relative’’); Saugus Auto Theatre
Corp. v. Munroe Realty Corp., 366 Mass. 310, 311, 318 N.E.2d 615 (1974)
(noting that ‘‘the word substantial . . . is a relative term and must be exam-
ined in its context to gauge its meaning’’ [internal quotation marks omitted]).
2
Judges and legal scholars have long struggled to identify and articulate
a coherent, workable theory of criminal attempt and, to this day, remain
dissatisfied with the results. See J. Hall, ‘‘Criminal Attempt—A Study of
Foundations of Criminal Liability,’’ 49 Yale L.J. 789, 789 (1940) (‘‘Whoever has
speculated on criminal attempt will agree that the problem is as fascinating
as it is intricate. At every least step it intrigues and cajoles; like la belle
dame sans merci, when solution seems just within reach, it eludes the
zealous pursuer, leaving him to despair ever of enjoying the sweet fruit of
discovery.’’). A recent article sketches the intellectual history of this
endeavor since Lord Mansfield’s ‘‘discovery’’ of the crime of attempt in the
late eighteenth century. See M. Fenster, ‘‘The Dramas of Criminal Law:
Thurman Arnold’s Post-Realist Critique of Law Enforcement,’’ 53 Tulsa L.
Rev. 497, 510 (2018) (‘‘[t]he doctrine today remains as muddled and conten-
tious as it was in Arnold’s era [in the 1930s]; yet it continues to attract
commentators who obsessively offer their own solutions as if only they and
their pet theory can finally solve the doctrinal riddle’’ [footnote omitted]).
3
General Statutes § 53a-179a provides in relevant part: ‘‘(a) A person is
guilty of inciting injury to persons or property when, in public or private,
orally, in writing, in printing or in any other manner, he advocates, encour-
ages, justifies, praises, incites or solicits the unlawful burning, injury to or
destruction of any public or private property or advocates, encourages,
justifies, praises, incites or solicits . . . the killing or injuring of any class
or body of persons, or of any individual.
‘‘(b) Inciting injury to persons or property is a class C felony.’’
4
The Appellate Court explained the inclusion of the ‘‘innocent agent’’
exception in § 53a-49 (b) as follows: ‘‘The example given in the Model Penal
Code and Commentaries of why the language, ‘soliciting an innocent agent,’
was included as one of the seven examples of conduct or a situation that
might be sufficient to satisfy the requisite conduct for attempt is an example
attributed to Professor Glanville Williams. That example, as given, is: ‘(vii)
Solicitation of Innocent Agent. Professor Glanville Williams suggests the
situation where ‘‘D unlawfully tells E to set fire to a haystack, and gives
him a match to do it with. . . . If, as D knows, E (mistakenly) believes that
it is D’s stack and that the act is lawful, E is an innocent agent, and D is
guilty of attempted arson; D, in instructing E, does the last thing that he
intends in order to effect his criminal purpose. (It would be the same if he
only used words and did not give E a match.)’’’ Model Penal Code and
Commentaries, supra, § 5.01, comment [6] (b) (vii), p. 346 [and] n.214, quoting
G. Williams, Criminal Law: The General Part (2d Ed. 1961) p. 616.
‘‘As the defendant points out, the commentary on Professor Williams’
example explains that ‘[t]he prohibition against criminal solicitation does
not apply in this case because E is himself not being incited to commit a
crime. For this reason E is not in a position, as an independent moral agent,
to resist D’s inducements; unlike the situation in criminal solicitation, E is
wholly unaware that commission of a crime is involved. Analytically, there-
fore, D’s conduct, in soliciting an innocent agent, is conduct constituting
an element of the crime, which is properly subsumed under the attempt
section; and the solicitation, irrespective of whether it happens to be the
last act, should be the basis for finding a substantial step toward the commis-
sion of a crime.’ . . . Model Penal Code and Commentaries, supra, § 5.01,
comment [6] (b) (vii), pp. 346–47. So E, being an ‘innocent agent,’ wholly
unaware that a crime is involved, is not in the position to resist or reject
D’s requests; whereas a noninnocent agent, in that situation, knowing this
criminal activity is afoot is free to accept or reject D’s requests. The ‘innocent
agent’ can fairly be said to include one who is clear of responsibility because
for example, he lacks mens rea; E would fall into that category. Therefore,
D’s conduct, in soliciting E, an innocent agent, is conduct constituting an
element of the crime, which comes within § 53a-49 (b) (7) of the attempt
section and the solicitations, ‘irrespective of whether it happens to be the
last act, should be the basis for finding a substantial step toward the commis-
sion of a crime.’ Id.’’ (Emphasis in original.) O’Neil, supra, 65 Conn. App.
166–67.
5
Solicitation to commit murder is a class C felony punishable by ‘‘a term
not less than one year nor more than ten years’’; General Statutes § 53a-35a
(1) (A) (7); whereas attempt to commit murder is a class B felony punishable
by ‘‘a term not less than one year nor more than twenty years . . . .’’ General
Statutes § 53a-35a (1) (A) (6); see also General Statutes § 53a-51 (‘‘[a]ttempt
and conspiracy are crimes of the same grade and degree as the most serious
offense which is attempted or is an object of the conspiracy, except that
an attempt or conspiracy to commit a class A felony is a class B felony’’);
General Statutes § 53a-179a (b) (‘‘[i]nciting injury to persons or property
is a class C felony’’). The defendant was sentenced to twenty years of
incarceration, execution suspended after fifteen years, and five years of
probation with special conditions.
6
Many of the states that have not adopted the Model Penal Code definition
of attempt require the defendant to have taken more than a substantial
step and be dangerously close to the commission of the offense. See, e.g.,
Commonwealth v. Hamel, 52 Mass. App. 250, 256, 752 N.E.2d 808 (reversing
defendant’s attempted murder conviction, even though defendant solicited
two undercover officers posing as hitmen, agreed upon price, offered goods
and property as ‘‘upfront payment,’’ provided ‘‘descriptions of [victims] and
their habits,’’ and produced sketches of victims’ home, because ‘‘[t]here
were no acts, on the part either of the defendant or of the officers, that
came close to or formed part of any physical perpetration of any murders’’),
cert. denied, 435 Mass. 1104, 759 N.E.2d 328 (2001); State v. Melton, 821
S.E.2d 424, 431–32 (N.C. 2018) (reversing defendant’s attempted murder
conviction, even though defendant met ‘‘with the supposed hired killer,
tender[ed] the [$2500] in cash as an initial payment, provid[ed] the hired
killer the details necessary to complete the killing of defendant’s former
wife, and help[ed] the hired killer plan how to get his former wife alone
and how to kill her out of the presence of their daughter,’’ because such
acts, ‘‘calculating as they are, [do] not amount to proof of overt acts’’ because
they would not, without more, ‘‘inexorably result in the commission of the
offense’’ [internal quotation marks omitted]); State v. Disanto, supra, 688
N.W.2d 207, 213 (reversing defendant’s attempted murder conviction, even
though defendant gave ‘‘the [hitman] a final order to kill,’’ because defen-
dant’s actions did not go ‘‘beyond preparation into acts of perpetration’’).
Other states with different formulations of the crime of attempt also require
more than the mere solicitation and hiring of a hitman—the defendant must
have committed slight or overt acts exhibiting his firm intention to commit
the crime of murder. See Braham v. State, 571 P.2d 631, 637 (Alaska 1977)
(holding that solicitation plus commission of overt acts is enough to sustain
conviction of attempted murder, and concluding that evidence was sufficient
because defendant and hitman ‘‘entered into a contract . . . to kill [the
intended victim],’’ settled ‘‘on the contract price [of] $600,’’ and defendant
committed overt act by having hitman visit victim in hospital to gain victim’s
trust), cert. denied, 436 U.S. 910, 98 S. Ct. 2246, 56 L. Ed. 2d 410 (1978);
State v. Mandel, 78 Ariz. 226, 229, 278 P.2d 413 (1954) (The court affirmed
the defendant’s conviction of attempted murder because the defendant ‘‘not
only solicited, she consummated the contract to that end and partly executed
the same by payment of a portion of the consideration; she identified for
the intended assassin the home and the car of the intended victim, pointed
out a possible site for disposition of the body and advised the place and
time when and where contact could be made for the consummation of the
murder. She did everything she was supposed to do to accomplish the
purpose. Had it not been for the subterfuge, the intended victim would have
been murdered.’’); People v. Superior Court (Decker), 41 Cal. 4th 1, 9, 157
P.3d 1017, 58 Cal. Rptr. 3d 421 (2007) (affirming defendant’s attempted
murder conviction because defendant solicited and hired hitman, agreed
on price, provided hitman ‘‘with all of the necessary information concerning
[the victim], her home and office, and her habits and demeanor,’’ gave the
hitman ‘‘the agreed-on [down payment] of [$5000]’’ and expressed that he was
‘‘ ‘absolutely, positively, 100 percent sure’ ’’ he wanted murder committed);
Saienni v. State, 346 A.2d 152, 153–54 (Del. 1975) (affirming defendant’s
attempted murder conviction because defendant procured life insurance on
victim, contracted hitman, traveled to Maryland with hitman and ‘‘pointed
out the entire physical layout and discussed step by step how the murder
was to be accomplished,’’ ‘‘discussed and rehearsed the murder in great
detail’’ in subsequent meetings with hitman, and ‘‘started [the] sequence of
events’’ planned to culminate in murder); Duke v. State, 340 So. 2d 727, 730
(Miss. 1976) (affirming defendant’s attempted murder conviction because
defendant’s acts ‘‘went far beyond mere preparation and planning because
he solicited [his employee] to kill [the intended victim], arranged a hunting
trip for that purpose, and following the failure to kill [the intended victim]
during the . . . hunting trip, he again solicited [his employee] to find a
[hitman], agreed to pay $15,000 to have [the intended victim] killed, and
actually paid $11,500 to a person whom he believed had killed [the intended
victim]’’); State v. Burd, 187 W. Va. 415, 419, 419 S.E.2d 676 (1991) (affirming
defendant’s attempted murder conviction because defendant ‘‘not only had
several conversations with [the hitman], but gave him $150 to purchase a
weapon and $500 as a down payment for the commission of the murders;
promised to pay another $550 upon completion of the crimes; gave him a
sketch of the crime scene and descriptions of the intended victims; gave
him a suicide note and instructed him on how to make the murders look
like murder-suicide; instructed him on where to inflict the gun shots; and
finally, took [the hitman] and physically showed him the intended victims’
home’’); but see State v. Gay, 4 Wash. App. 834, 840, 486 P.2d 341 (1971)
(holding that hiring hitman constitutes overt act that ‘‘goes beyond the
sphere of mere solicitation and . . . may constitute the crime of attempt’’
where defendant had hired hitman, agreed on price, and provided down
payment, pictures and information about victim).
7
The majority cites only a single case, State v. Urcinoli, 321 N.J. Super.
519, 729 A.2d 507 (App. Div.), cert. denied, 162 N.J. 132, 741 A.2d 99 (1999),
that upholds a conviction on facts anywhere close to those in the present
case. The vast majority of cases employing the Model Penal Code standard—
our legal standard in Connecticut—require some action beyond mere conver-
sation as a ‘‘substantial step’’ toward the commission of the crime of
attempted murder.
8
I disagree with the majority that the evidence was sufficient for the jury
reasonably to find that ‘‘the defendant had begun his planning well in advance
of June 9 . . . .’’ The defendant may have thought about killing his wife
prior to June 9, but it is ‘‘[o]ne of the basic premises of the criminal law
. . . that bad thoughts alone cannot constitute a crime. This is no less true
as to an attempt . . . .’’ (Footnote omitted.) 2 W. LaFave, Substantive Crimi-
nal Law (3d Ed. 2018) § 11.4; see also Model Penal Code and Commentaries,
supra, § 2.01, comment 1, p. 214 (‘‘[i]t is fundamental that a civilized society
does not punish for thoughts alone’’). There are important and critical distinc-
tions between thinking about the commission of a crime, planning the
commission of a crime, and perpetrating a crime. The defendant did not
pursue the notion of putting his bad thoughts into motion until the day he
met Evans and Paleski, June 9, 2011, and, even then, he did not do anything
to take his idea beyond the realm of preliminary planning and preparation.
9
A complete copy of the transcript of the defendant’s conversation with
Paleski, which has been redacted to protect the privacy of the would-be
victim, is attached as a Joint Appendix to the Majority and Dissenting
Opinions.
10
The record reflects the following colloquies between the defendant
and Paleski:
‘‘[Paleski]: you want her completely out of the picture right? Morte
‘‘[The Defendant]: that’s where it’s getting to . . . it’s like
‘‘[Paleski]: that’s what you want? Alright brother
‘‘[The Defendant]: I wish we didn’t need to be there but . . .
‘‘[Paleski]: well I mean
‘‘[The Defendant]: you know
***
‘‘[Paleski]: and this is what you want . . just so know I’m going to put 2
in that bitches head and take that car and be gone and I’ll fucking burn
it somewhere
‘‘[The Defendant]: that’s the only way that I [c]an come up . . . that I
thought from my like that . . . it makes sense you know what I mean it’s
gonna hopefully like going to make it not . . ya’ know . . . how? What am
I? . . . ya’ know what I mean? . . . I don’t fucking know . . all know is
I’m going to be fucking hemmed up in fucking jail again.’’
11
For example, the record reflects the following colloquy between the
defendant and Paleski:
‘‘[Paleski]: who’s this the ex-wife?
‘‘[The Defendant]: to be or what you know
‘‘[Paleski]: alright alright what’s her name?
‘‘[The Defendant]: [T’s full name redacted]
‘‘[Paleski]: [T] you got an address and shit? . . alright
‘‘[The Defendant]: Yes, she works the night shift
‘‘[Paleski]: she got a job?
‘‘[The Defendant]: yea
‘‘[Paleski]: where at?
‘‘[The Defendant]: Stamford Hospital
‘‘[Paleski]: alright . . she works every night or part time?
‘‘[The Defendant]: only like 1 or 2 nights a week
‘‘[Paleski]: alright . . . she lives in Stamford?
‘‘[The Defendant]: yea
‘‘[Paleski]: what’s the address?
‘‘[The Defendant]: [T’s street address redacted]
‘‘[Paleski]: what’s the number?
‘‘[The Defendant]: [T’s street address number redacted]
‘‘[Paleski]: . . . ok . . . alright . . you (got) have a picture of her or
anything?’’
The defendant had not brought a printed photograph of the would-be
victim to the meeting, but showed Paleski a photograph that he had on his
cell phone in response to Paleski’s inquiry. Similarly, the information on
the piece of paper the defendant gave to Paleski was information that Paleski
specifically requested:
‘‘[Paleski]: I ain’t got shit in here but can you get me a piece of paper
and write down her name
‘‘[The Defendant]: yup
‘‘[Paleski]: house address
‘‘[The Defendant]: yup
‘‘[Paleski]: hospital name
‘‘[The Defendant]: yup
‘‘[Paleski]: what kind of car she drives
‘‘[The Defendant]: mm hmmmm
***
‘‘[Paleski]: write it all . . . write that shit down for me
‘‘[The Defendant]: alright.’’
12
The majority’s conclusion is predicated in part on an episode of alleged
domestic violence between the defendant and the would-be victim on March
9, 2011. On that date, the would-be victim accused the defendant of
attempting to push her down the stairs, but the defendant denied engaging
in the alleged conduct. The defendant subsequently was charged with viola-
tion of a criminal protective order under General Statutes §§ 53a-223 and
46b-38c (e) based on the March 9 allegations, and the jury in the present
case acquitted the defendant of the charged crime. Outside of those allega-
tions, there was no claim of any history of physical violence perpetrated on
the would-be victim by the defendant. Indeed, the would-be victim testified
at trial that the defendant never had struck her or threatened her physically.