State v. Daniel B. ( 2016 )

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STATE OF CONNECTICUT v. DANIEL B.*
(AC 36418)
DiPentima, C. J., and Beach and Bishop, Js.
Argued November 16, 2015—officially released April 5, 2016
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, White, J. [motion for disclosure];
Hudock, J. [motion to preclude; judgment].)
A. Paul Spinella, with whom were Philip Russell
and, on the brief, Caitlin Trow, for the appellant
(defendant).
Ronald G. Weller, senior assistant state’s attorney,
with whom, on the brief, were David I. Cohen, state’s
attorney, and Maureen Ornousky, senior assistant
state’s attorney, for the appellee (state).
Opinion
DiPENTIMA, C. J. The defendant, Daniel B., appeals
from the judgment of conviction, rendered after a jury
trial, of attempt to commit murder in violation of Gen-
eral Statutes §§ 53a-49 and 53a-54a. On appeal, the
defendant claims that (1) the evidence was insufficient
to support his conviction, (2) the trial court unduly
restricted his access to certain information regarding
a confidential informant who testified at trial, (3) the
court improperly limited the cross-examination of a
witness by the defendant, and (4) the court provided
improper instructions in its jury charge. We affirm the
judgment of the trial court.
The jury reasonably could have found the following
facts. The defendant married the victim in 2005. By late
2009, the marriage had begun to deteriorate. Approxi-
mately one year later, the defendant filed for divorce.
During the relevant period, the defendant and the victim
lived in the same residence in Stamford.
On June 9, 2011, the defendant called John Evans, a
childhood friend, to arrange a meeting. At approxi-
mately 3 p.m., the defendant and Evans met in a Dunkin
Donuts. At the outset of the meeting, the defendant
asked Evans if he ‘‘knew anybody that could murder
his wife as a hit man.’’ The defendant told Evans that
he was getting a divorce and explained that his wife
was ‘‘getting the house, the kids . . . and . . . trying
to get some money . . . .’’ Although Evans tried to
dissuade him, the defendant stated that had been ‘‘think-
ing about it for two years, and he [had] made up his
mind . . . [that] he needs [his wife murdered] . . .
before his next court date.’’ The meeting concluded
with Evans agreeing to ‘‘talk to a couple of people in
New York and . . . see if [he] could arrange [a meeting
with a hit man].’’On the same day, Evans called John
Evensen, a retired Stamford police officer.1 Evans told
Evensen that the defendant had requested that he find
a hit man; Evensen urged Evans to ‘‘do the right thing’’
because it was ‘‘somebody’s life.’’ Evensen then told
Evans that he would call someone to ‘‘see what he
could do.’’
Later that evening, Evensen telephoned James
Matheny, then commander of the bureau of criminal
investigations of the Stamford Police Department, to
convey the information provided by Evans. Matheny
then spoke with Evans directly. After this conversation,
Matheny developed a plan in which the defendant would
meet with an undercover police officer feigning to be
a hit man. As part of the plan, Evans called the defendant
to inform him that he had found a hit man from New
York who wanted to speak with him that night. The
defendant agreed to meet with the purported hit man,
who was in fact Officer Michael Paleski, Jr., of the
Branford Police Department.
The meeting between the defendant and Paleski took
place at a rest stop off Interstate 95 near Darien. The
plan consisted of Paleski following Evans to the rest
stop in a vehicle equipped with a hidden video camera.
Paleski and Evans arrived first and waited for the defen-
dant, who arrived shortly after midnight on June 10,
2011. Evans introduced the defendant to Paleski and
then returned to his car. The defendant entered
Paleski’s vehicle where the hidden video camera
recorded the murder for hire plot. After the meeting
ended and Paleski had departed, the defendant was
arrested.
The defendant was charged with attempt to commit
murder and violating a criminal protective order.2 Fol-
lowing an eight day jury trial, the defendant was found
guilty of the attempt to commit murder charge and not
guilty of the violation of a protective order charge. The
court sentenced him to twenty years of incarceration,
suspended after fifteen years, followed by five years of
probation. This appeal followed. Additional facts will
be set forth as necessary.
I
The defendant claims that there was insufficient evi-
dence to support his conviction. Specifically, he argues
that the state failed to prove that his conduct consti-
tuted a substantial step in a course of conduct intended
to culminate in a murder. Thus, he claims that an essen-
tial element of § 53a-49 was not established.3 We do
not agree.
The following additional facts are relevant to this
claim. The entire meeting between the defendant and
Paleski lasted slightly more than sixteen minutes. Dur-
ing the meeting, three major points were discussed in
the murder for hire plot. First, the defendant agreed to
pay $10,000 for Paleski to murder his wife. The defen-
dant also agreed to deliver $3000 as a down payment
and $800 for a firearm the following morning because
obtaining the money that night would create suspicion.4
Second, when asked for information about the victim,
the defendant readily provided his wife’s name, home
address, place of employment and work schedule,5 as
well as a photograph, explaining to Paleski that his
wife’s hair color was different from what was depicted
in the photograph.6
The final point discussed at the meeting focused on
the method by which Paleski was to murder the defen-
dant’s wife. The defendant had voiced his concern that
he needed to be cautious in this illicit endeavor because
he was ‘‘obviously the first person [that] . . . [was]
going to be looked at [after his wife was murdered].’’
Paleski, then, explicitly asked the defendant how he
wanted the murder accomplished. The defendant noted
that his wife’s place of employment was in a ‘‘rough
section’’ of the city and that she drove a ‘‘nice car.’’
This information prompted Paleski to suggest that he
could ‘‘make it look like a [carjacking] or something,’’
to which the defendant acknowledged, ‘‘[s]omething
like that . . . take the car . . . [it] is going to get
[found] and it kind of like explains it.’’ Paleski then
sought clarification as to the result desired by the defen-
dant, ‘‘[Y]ou want her completely out of the picture,
right? Morte.’’ The defendant replied, ‘‘[T]hat’s where
it’s getting to . . . .’’ The defendant then suggested a
Thursday as a possible day for the murder because he
would be with his children at his aunts’ house. Paleski
concurred that he could ‘‘take the bitch off’’ when the
defendant was with his aunts, and the defendant
replied, ‘‘exactly.’’
The meeting concluded with the defendant and
Paleski agreeing to meet the following day at 10 a.m.
at the same location. The defendant iterated that, to be
cautious, he was not going to use his phone. Rather,
he would purchase a prepaid mobile phone to contact
Paleski. After confirming the time and place of the meet-
ing where the defendant would bring the money, the
defendant thanked Paleski, exited the vehicle, and
promptly was taken into custody as soon as Paleski
left the rest stop.
The defendant’s claim on appeal is that his conduct
was not a ‘‘substantial step in a course of conduct
planned to culminate in his commission’’ of murder.
General Statutes § 53a-49 (a) (2). He argues that in
Connecticut, a ‘‘substantial step’’ requires an overt act
that ‘‘must be more than mere preparation,’’ and such
act ‘‘must be in close proximity to the actual crime and
‘come pretty near’ to completing the crime but for some
interference.’’ Thus, in contemplating what act consti-
tutes a substantial step, ‘‘the focus is on what is left to
be done not what has already been done.’’ Applying
this reasoning, the defendant contends that the meeting
with Paleski was ‘‘merely preparatory and did not con-
stitute a ‘substantial step’ toward the commission of
murder.’’ At best, the defendant argues, the meeting
was a ‘‘mere solicitation, which, by itself, is never an
attempt.’’ (Internal quotation marks omitted.) We are
not persuaded.
We begin by recognizing that ‘‘[a] defendant who
asserts an insufficiency of the evidence claim bears an
arduous burden.’’ (Internal quotation marks omitted.)
State v. Leandry, 161 Conn. App. 379, 383, 127 A.3d
1115, cert. denied, 320 Conn. 912, 128 A.3d 955 (2015).
As to the standard of review for this claim, this court
applies a two part test. ‘‘We first review the evidence
presented at the trial, construing it in the light most
favorable to sustaining the verdict. . . . [Second, we]
then determine whether the jury could have reasonably
concluded, upon the facts established and the infer-
ences reasonably drawn therefrom, that the cumulative
effect of the evidence established guilt beyond a reason-
able doubt. . . . In this process of review, it does not
diminish the probative force of the evidence that it
consists, in whole or in part, of evidence that is circum-
stantial rather than direct. . . . The issue is whether
the cumulative effect of the evidence was sufficient to
justify the verdict of guilty beyond a reasonable doubt.’’
(Citations omitted; internal quotation marks omitted.)
State v. Hanks, 39 Conn. App. 333, 338–39, 665 A.2d
102, cert. denied, 235 Conn. 926, 666 A.2d 1187 (1995).
The law relevant to an insufficiency of the evidence
claim teaches that ‘‘the jury must find every element
proven beyond a reasonable doubt in order to find the
defendant guilty of the charged offense, [but] each of
the basic and inferred facts underlying those conclu-
sions need not be proved beyond a reasonable doubt.
. . . If it is reasonable and logical for the jury to con-
clude that a basic fact or an inferred fact is true, the
jury is permitted to consider the fact proven and may
consider it in combination with other proven facts in
determining whether the cumulative effect of all the
evidence proves the defendant guilty of all the elements
of the crime charged beyond a reasonable doubt.’’
(Internal quotation marks omitted.) State v. Lopez, 280
Conn. 779, 808, 911 A.2d 1099 (2007). We, however, are
mindful that ‘‘[w]e do not sit as a [seventh] juror who
may cast a vote against the verdict based upon our
feeling that some doubt of guilt is shown by the cold
printed record. . . . Rather, we must defer to the jury’s
assessment of the credibility of the witnesses based on
its firsthand observation of their conduct, demeanor
and attitude.’’ (Internal quotation marks omitted.) State
v. Damato, 105 Conn. App. 335, 344, 937 A.2d 1232, cert.
denied, 286 Conn. 920, 949 A.2d 481 (2008).
Turning to the statutes applicable here, § 53a-54a (a)
defines murder, in relevant part, as follows: ‘‘A person
is guilty of murder when, with intent to cause the death
of another person, he causes the death of such person
or of a third person . . . .’’ Section 53a-49 (a) defines
criminal attempt, in relevant part, as follows: ‘‘A person
is guilty of an attempt to commit a crime if, acting with
the kind of mental state required for commission of the
crime, he . . . (2) intentionally does . . . anything
which, under the circumstances as he believes them to
be, is an act . . . constituting a substantial step in a
course of conduct planned to culminate in his commis-
sion of the crime.’’ Furthermore, ‘‘[c]onduct shall not
be held to constitute a substantial step . . . unless it
is strongly corroborative of the actor’s criminal pur-
pose. . . .’’ General Statutes § 53a-49 (b). It is notewor-
thy that ‘‘[w]hat constitutes a substantial step in any
given case is a question of fact.’’ (Internal quotation
marks omitted.) State v. Osbourne, 138 Conn. App. 518,
528, 53 A.3d 284, cert. denied, 307 Conn. 937, 56 A.3d
716 (2012). Thus, in this case, to prove the defendant
guilty of violating §§ 53a-49 and 53a-54a, the state had
to prove beyond a reasonable doubt that the defendant,
with the intent to cause the death of his wife, committed
an act that was a substantial step aimed at achieving
her death.
A
To dispose of the defendant’s argument and resolve
his sufficiency of the evidence claim, we must review
Connecticut’s criminal attempt statute. As implicitly
acknowledged by the parties, our Supreme Court and
this court have conflicting authority on what conduct
constitutes a substantial step: specifically as to whether
the focus is on ‘‘what the actor has already done and
not on what remains to be done.’’ (Emphasis in original.)
State v. Lapia, 202 Conn. 509, 515, 522 A.2d 272 (1987).7
In resolving this apparent contradiction in our case
law, we begin with a review of § 5.018 of the Model
Penal Code because § 53a-49 was modeled after it. See
State v. Moreno-Hernandez, 317 Conn. 292, 303, 118
A.3d 26 (2015); see also id., 304 n.5 (comparing General
Statutes § 53a-49 and Model Penal Code § 5.01).
Because § 53a-49 stems, in part, from the Model Penal
Code, the code’s comments are pertinent. See State v.
Servello, 59 Conn. App. 362, 372, 757 A.2d 36, cert.
denied, 254 Conn. 940, 761 A.2d 764 (2000). The com-
ments state that the Model Penal Code formulation of
criminal attempt ‘‘shifts the emphasis from what
remains to be done . . . to what the actor has already
done.’’ 1 A.L.I., Model Penal Code and Commentaries
(1985) § 5.01, comment 6 (a), p. 329 (Model Penal Code
and Commentaries). The significance, then, is that this
‘‘approach will broaden the scope of attempt liability.’’
Id.; see also 2 W. LaFave, Substantive Criminal Law (2d
Ed. 2003) § 11.4 (e), p. 226 (‘‘[the Model Penal Code
approach] will broaden the scope of attempt liability
in a way which is consistent with the purpose of
restraining dangerous persons, as: (1) the emphasis is
upon what the actor has already done rather than what
remains to be done; (2) liability will be imposed only
if some firmness of criminal purpose is shown’’ [foot-
note omitted]).
Although conflicting decisions exist in both appellate
courts, we nonetheless find support in recent Connecti-
cut case law to frame our criminal attempt formulation
in conformance with the Model Penal Code, i.e., the
focus is on what the defendant has already done and
not what remains to be done.9 In State v. Carter, 317
Conn. 845, 848, 858, 120 A.3d 1229 (2015), the defendant
was convicted of attempt to commit assault in the first
degree for aiming a firearm at a police officer’s midsec-
tion, followed by ‘‘position[ing] himself in a shooting
stance and put[ting] his finger on the trigger guard.’’
The defendant challenged the conviction by claiming
that it was not established that he had the requisite
intent to commit this crime. Id., 848. One of the defen-
dant’s arguments was that ‘‘there was insufficient evi-
dence of intent because he never attempted to rack the
gun, and thus the gun would not have fired even if he
had pulled the trigger.’’ Id., 860. In disposing of this
argument, our Supreme Court made the following
observation: ‘‘[W]hether the gun was racked or not
seems to be beyond the point. The defendant’s claim
that he did not rack the gun, even if true, would only
support the proposition that he did not take the next
step to complete the crime which, of course, is irrele-
vant to the inquiry whether he took a prior substantial
step to commit the offense. Because the defendant was
charged with attempt to commit assault, it was only
necessary for him to take a substantial step under the
circumstances as he believe[d] them to be . . . .’’
(Emphasis in original; internal quotation marks omit-
ted.) Id., 861. Our Supreme Court’s analysis thus
focused on what the defendant already had done and
not what remained to be done.
Similarly, this court in State v. Osbourne, supra, 138
Conn. App. 528, explained that the standard for the
substantial step element of criminal attempt ‘‘focuse[d]
on what the actor has already done and not what
remains to be done. . . . The substantial step must be
at least the start of a line of conduct which will lead
naturally to the commission of a crime. . . . What con-
stitutes a substantial step in any given case is a question
of fact.’’ (Internal quotation marks omitted.) We further
clarified that ‘‘[t]he ultimate measure of the sufficiency
of the defendant’s conduct to constitute a substantial
step in a course of conduct planned to culminate in
the commission of assault in the first degree is not, to
reiterate, how close in time or place or final execution
his proven conduct came to the consummation of that
crime, but whether such conduct, if at least the start
of a line of conduct leading naturally to the commission
of the crime, strongly corroborated his alleged criminal
purpose.’’ Id., 530. Our reasoning in Osbourne, rein-
forced by the majority of appellate cases, our reading
of Carter, and the Model Penal Code, support our deter-
mination that to dispose of the defendant’s sufficiency
of the evidence claim before us, we must focus on ‘‘what
the actor has already done and not what remains to be
done.’’ (Internal quotation marks omitted.) Id., 528.
B
We now turn to the merits of the claim. The evidence
before the jury included Evans’ testimony and the video
in which the defendant and Paleski plotted a murder
for hire scheme. Through Evans, the state presented
evidence that, if credited by the jury, established that
the defendant sought his help to attain the services of
a hit man. Furthermore, Evans testified that he tried to
dissuade the defendant, but the defendant stated that
he had been contemplating this course of action for
‘‘two years, and he [had] made up his mind . . . [that]
he needs [his wife murdered] . . . before his next
court date.’’
The state also presented the video recording of the
meeting between the defendant and Paleski. The video
allowed the jury to observe the conduct, demeanor, and
attitude of the defendant as he agreed to hire Paleski
to kill his wife. In a little more than one-quarter of an
hour, the defendant agreed to a price (to include a down
payment and money for the murder weapon), provided
Paleski with key information, namely, his wife’s name,
home and work address, her work schedule, a descrip-
tion of her vehicle, and suggested a day, location, and
manner for the murder to ensure that the defendant
would have an alibi. Finally, the jury also saw the defen-
dant twice confirm to Paleski that he wanted his
wife murdered.
The defendant argues that because he did not pay
Paleski his conduct was merely preparatory. Indeed,
Paleski did state that he ‘‘can’t do shit without that
money.’’ The defendant’s argument, however, is flawed
for two reasons. First, the substantial step standard
focuses of what he has already done, i.e., agreeing to
hire a hit man and providing critical information about
the victim, and not what remains to be done, i.e., paying
the purported hit man. See State v. Osbourne, supra,
138 Conn. App. 528. Moreover, the mere fact that the
defendant did not make a payment is not dispositive.
See State v. Servello, supra, 59 Conn. App. 373 (‘‘Our
Supreme Court has stated that the essential element of
a hiring relationship is an agreement to compensate the
[agent] for his services. . . . In interpreting the rele-
vant section pertaining to hiring an agent to carry out
a murder, we are concerned principally with adopting
a construction . . . that effectuates the legislative
intention, not with the technical niceties of contract
law.’’ [Citation omitted; internal quotation marks omit-
ted.]); see also Model Penal Code and Commentaries,
supra, § 5.01, comment (6) (a), p. 329 (‘‘[t]hat further
major steps must be taken before the crime can be
completed does not preclude a finding that the steps
already undertaken are substantial’’). ‘‘To constitute a
substantial step, however, consummation of [paying the
hit man] is not required. Any other interpretation would
impose a requirement of a more stringent standard of
proof for attempt than is provided by § 53a-49.’’ State
v. Servello, supra, 375.
Second, what constitutes a substantial step in any
given case is a question of fact; State v. Osbourne, supra,
138 Conn. App. 528; a point never addressed by the
defendant. Mindful that we are not jurors and our role
is limited to determining whether the jury reasonably
could have concluded that the defendant took a sub-
stantial step that was strongly corroborative of his crim-
inal purpose, we must defer to the jury’s assessment
of Evans’ credibility and evaluation of the video. We
determine that it was reasonable for the jury to have
concluded that the defendant took a substantial step
in a course of conduct intended to culminate in the
murder of his wife.10
The defendant’s second argument that his conduct, at
best, amounts to solicitation warrants little discussion.
The state presented sufficient evidence concerning the
defendant’s conduct that the jury reasonably could have
concluded that it constituted a substantial step. See
State v. Griggs, 288 Conn. 116, 131 n.18, 951 A.2d 531
(2008) (‘‘[a] conviction for attempted murder does not
require a showing of actual injury, but only intentional
conduct that constitutes a substantial step toward caus-
ing the death of another’’).
Reviewing the evidence in a light most favorable to
sustaining the verdict, we determine that sufficient evi-
dence existed for the jury to have reasonably concluded
that the cumulative effect of Evans’ testimony and the
video established beyond a reasonable doubt that the
defendant, with the intent to cause the death of his
wife, committed a substantial step aimed at achieving
his wife’s death when he sought to hire a hit man, agreed
to a price, provided critical information about the vic-
tim, and suggested the method by which to commit the
murder to ensure his alibi. Accordingly, the defendant’s
first claim must fail.
II
The defendant next claims that the court, White, J.,
abused its discretion by unduly restricting access to
certain records regarding Evans’ role as a confidential
informant. Specifically, the defendant contends that the
court should have made the confidential records avail-
able to him. We disagree.
The following procedural history is relevant to this
claim. In a letter sent to the state, the defendant sought
‘‘all pertinent information pertaining to [Evans],’’
namely, records that detailed Evans’ assistance in any
investigation, a complete list of financial payments or
benefits in connection with the defendant’s case and
any other case in which the informant was involved,
and all information listing ‘‘illicit activities’’ and ‘‘allega-
tions of wrongdoing’’ connected to Evans. Although the
state objected, the court ordered the state to ‘‘confer
with the Stamford Police Department and hand over,
under seal, any records it has in connection with . . .
Evans.’’ The court directed that those records were to
include, but not be limited to, ‘‘any financial payments
made by [the] Stamford Police Department to . . .
Evans in connection with his work as a [confidential
informant] for the Stamford Police Department’’ and
the supervisor’s log. Upon receipt of the sealed records,
the court conducted an in camera review and, at a
hearing, disclosed to the defendant that ‘‘Evans worked
as a [confidential informant] for the Stamford Police
Department on eight occasions between . . . August
of 2006 and June of 2011.’’ The court, however, noted
that these records failed to indicate whether Evans had
been paid. Therefore, the court ordered the state a
second time to determine whether Evans had been paid
anything, observing that ‘‘the defense is entitled to
that information.’’
The state complied with the court’s second order.
The Stamford Police Department sent a letter that was
reviewed in chambers and not shown to defense coun-
sel. At the subsequent hearing, the court explained that
the letter indicated that there were ‘‘no written records
regarding payments made to . . . Evans over the
period of time for which he worked as a [confidential
informant]. . . . [T]he letter [also] indicate[d] that
there were payments made to . . . Evans for gas and
food. None of the payments exceeded thirty dollars.
The payments [were] not broken down as to each time
. . . Evans worked as an informant.’’ Importantly, the
court stated that the letter indicated that Evans ‘‘didn’t
receive any payment in connection with [the defen-
dant’s] case.’’
When the court ruled that the records were to be
sealed, defense counsel objected. He wanted to ques-
tion the police officers who furnished the information
contained in the sealed letter. The court denied this
request and noted to defense counsel that, ‘‘for most
part, [the court] granted [defense counsel’s disclosure]
motion,’’ which had not sought a disclosure of who
were the police officers involved in the undercover
operation. The court, while addressing defense counsel,
summarized its ruling as follows: ‘‘You know who the
person you claim is a [confidential informant], you
know the person’s identity. You know how often
[Evans] worked with the Stamford Police Department.
. . . You know something about the payments that
were made . . . .’’
The defendant claims on appeal that because Evans’
credibility was essential to the case, the records ‘‘might
[have] contain[ed] exculpatory information especially
relevant to Evans’ credibility.’’ Therefore, the defendant
argues, he needed full access to the confidential
records. We have reviewed the sealed records, and we
do not agree with the defendant.
The standard of review and principles of law that
guide our analysis are well established. We review a
court’s decision to not release confidential records
under the abuse of discretion standard. See State v.
Colon, 272 Conn. 106, 256, 864 A.2d 666 (2004), cert.
denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116
(2005); see also State v. Delgado, 64 Conn. App. 312,
319, 780 A.2d 180 (2001), aff’d, 261 Conn. 708, 805 A.2d
705 (2002).
‘‘This court has the responsibility to conduct its own
in camera review of the sealed records to determine
whether the trial court abused its discretion in refusing
to release those records to the defendant. . . . The
linchpin of the determination of the defendant’s access
to the records is whether they sufficiently disclose
material especially probative of the ability to compre-
hend, know and correctly relate the truth . . . so as
to justify breach of their confidentiality . . . . Whether
and to what extent access to the records should be
granted to protect the defendant’s right of confrontation
must be determined on a case by case basis.’’ (Citations
omitted; internal quotation marks omitted.) State v. Del-
gado, supra, 64 Conn. App. 319; see also State v. Webb,
75 Conn. App. 447, 458, 817 A.2d 122 (asserting that this
court has responsibility to conduct its own in camera
inspection of sealed records), cert. denied, 263 Conn.
919, 822 A.2d 244 (2003). ‘‘At this stage in the proceed-
ings, when the court has reviewed the records in cam-
era, access to the records must be left to the discretion
of the trial court which is better able to assess the
probative value of such evidence as it relates to the
particular case before it . . . and to weigh that value
against the interest in confidentiality of the records.’’
(Internal quotation marks omitted.) State v. Delgado,
supra, 320.
We have conducted our own in camera inspection of
the sealed records. On the basis of that review, we
conclude that the court did not abuse its discretion.
The court properly disclosed the relevant information
to the defendant, namely, that Evans had worked as a
confidential informant on eight occasions, and that,
although the sealed records did not list the specific past
instances, Evans was previously compensated a petty
amount and not compensated for his participation in the
defendant’s case. Moreover, the sealed records failed to
contain any exculpatory evidence. Our review of the
records reflects that the court properly exercised its
discretion in denying the defendant access to the confi-
dential records. See State v. Kemah, 289 Conn. 411,
436, 957 A.2d 852 (2008) (‘‘[a] criminal defendant does
not have the right to conduct a general fishing expedi-
tion into privileged or sensitive records’’ [internal quota-
tion marks omitted]). Thus, the defendant’s claim
must fail.
III
The defendant also argues that the court improperly
limited his cross-examination of Evans regarding his
relationship with certain police officers.11 The defen-
dant contends that this ruling violated his federal and
state constitutional rights to confrontation and his right
to present a defense, or, in the alternative, was an abuse
of discretion resulting in harmful error. Because the
defendant had sufficient opportunity to cross-examine
Evans to challenge his credibility and potential bias,
we reject the defendant’s argument.
The following facts and procedural history are rele-
vant here. After the court, White, J., ordered certain
records regarding Evans’ status as a confidential infor-
mant sealed; see part II of this opinion; the state filed
a motion in limine on the eve of trial requesting certain
limitations on the defendant’s cross-examination of
Evans. Specifically, the state sought, inter alia, that the
defendant ‘‘be limited to inquire about [Evans’] contact
with the Stamford police in this case alone.’’
On the second day of trial, the court, Hudock, J., held
a hearing on the state’s motion. The state requested
that the court have defense counsel ‘‘delineate the ques-
tions he plan[ned] to ask . . . Evans regarding his prior
contact with the Stamford Police Department and rule
whether or not those require him to be less specific in
order for the court not to run into a conflict with the
public policy interests in this case . . . .’’ Defense
counsel stated that he sought to inquire into Evans’
expectation of monetary compensation or other consid-
eration in connection with this case. The court explicitly
stated that it did not ‘‘have a problem with [defense
counsel] asking about expectations . . . [or]
payments.’’
Defense counsel also argued that the defendant’s con-
frontation rights afforded him wider latitude in cross-
examining Evans. Citing a 1977 case from the United
States Court of Appeals for the Sixth Circuit12 and its
progeny, the defendant argued that because Evans was
a confidential informant, he had ‘‘an open door on credi-
bility and on expectation of payment’’ during the cross-
examination. Specifically, the defendant sought to ques-
tion Evans about a specific police officer by name and
‘‘one particular unit . . . within the Stamford Police
Department.’’ The court denied this request.
After the arguments concluded, the court observed
that it needed to balance the defendant’s right to con-
front Evans against public policy concerns, namely, the
police department’s need for information from confi-
dential informants as well Evans’ safety. Ultimately, the
court ruled that the defendant could inquire as to the
following: (1) ‘‘the fact that . . . Evans was engaged in
criminal investigations’’; (2) ‘‘how many investigations
there were, over what period of time’’; (3) ‘‘moneys
received from the Stamford Police Department’’; (4)
‘‘expectation [of financial reward] in this particular
case’’; and (5) ‘‘[any] other consideration, [if there was]
. . . a good faith basis.’’
At trial, the defendant extensively cross-examined
Evans. He established that Evans had worked as a confi-
dential informant for the Stamford Police Department.
When pressed by the defendant, Evans could not recall
when he first worked as an informant for the Stamford
police department, or on how many occasions he pro-
vided the police with information. Regarding compensa-
tion, Evans testified that he had been compensated only
with ‘‘gas money,’’ and was adamant that he had ‘‘never
[taken] any money from [the police] besides [gas
money].’’ Evans did concede that a member of the police
department had ‘‘ripped up’’ a speeding ticket. Also,
Evans testified that a police officer had written him a
letter of recommendation in support of his bail enforce-
ment agent license application.13 Finally, when asked—
on two separate occasions—whether he had been paid
or expected to be paid in either money or some other
form of compensation, Evans unequivocally answered
in the negative.
The standard of review to determine whether a defen-
dant’s right of cross-examination has been unduly
restricted is well settled. ‘‘The general rule is that
restrictions on the scope of cross-examination are
within the sound discretion of the trial judge . . . but
this discretion comes into play only after the defendant
has been permitted cross-examination sufficient to sat-
isfy the sixth amendment. . . . We must, therefore,
conduct a two-step analysis, determining first whether
the cross-examination permitted to defense counsel
comported with sixth amendment standards . . . and
second, whether the trial court abused its discretion in
restricting the scope of that cross-examination. . . .
The constitutional standard is met when defense coun-
sel is permitted to expose to the jury the facts from
which [the] jurors, as the sole triers of fact and credibil-
ity, could appropriately draw inferences relating to the
reliability of the witness.’’ (Citations omitted; internal
quotation marks omitted.) State v. Reeves, 57 Conn.
App. 337, 346, 748 A.2d 357 (2000).
‘‘To establish an abuse of discretion, [the defendant]
must show that the restrictions imposed upon [the]
cross-examination were clearly prejudicial. . . . Once
it is established that the trial court’s ruling on the scope
of cross-examination is not constitutionally defective,
this court will apply [e]very reasonable presumption
. . . in favor of the correctness of the court’s ruling
in determining whether there has been an abuse of
discretion.’’ (Citations omitted; internal quotation
marks omitted.) Id., 346–47.
Our analysis is also guided by the following princi-
ples. ‘‘The primary interest secured by confrontation is
the right to cross-examination . . . and an important
function of cross-examination is the exposure of a wit-
ness’ motivation in testifying. . . . Cross-examination
to elicit facts tending to show motive, interest, bias and
prejudice is a matter of right and may not be unduly
restricted.’’ (Citations omitted; internal quotation marks
omitted.) Id., 343–44. We are mindful that, ‘‘[g]enerally
speaking, the [c]onfrontation [c]lause guarantees an
opportunity for effective cross-examination, not cross-
examination that is effective in whatever way, and to
whatever extent, the defense might wish.’’ (Emphasis
in original.) Delaware v. Fensterer, 474 U.S. 15, 20, 106
S. Ct. 292, 88 L. Ed. 2d 15 (1985).
Thus, ‘‘[i]n determining whether a defendant’s right
of cross-examination has been unduly restricted, we
consider the nature of the excluded inquiry, whether
the field of inquiry was adequately covered by other
questions that were allowed, and the overall quality of
the cross-examination viewed in relation to the issues
actually litigated at trial.’’ (Internal quotation marks
omitted.) State v. Reeves, supra, 57 Conn. App. 345–46.
The defendant’s reliance on State v. Santiago, 224
Conn. 325, 618 A.2d 32 (1992), is misplaced. Our
Supreme Court in Santiago held that the trial court had
violated the defendant’s constitutional right to confron-
tation by improperly limiting his cross-examination of
one of the state’s witnesses. Id., 326. The witness in
that case was a former Hartford police officer who
testified to knowing two of the detectives who
responded to the shooting incident in which the murder
at issue had occurred. Id., 330. When the defendant
sought to question the witness ‘‘as to what relationship,
if any, he presently had with the Hartford police depart-
ment,’’ the state objected and the court sustained the
objection. Id. The court in Santiago concluded that
the trial court ‘‘improperly prohibited inquiry into a
legitimate area of cross-examination . . . [because]
[i]t is always relevant to the issue of bias that a witness
may have a relationship to the prosecuting authorities
in a criminal case.’’ Id., 332. Our Supreme Court further
explained that because the witnesses’ testimony was
critical to the finding of guilt, the trial court’s ‘‘improper
limitation on the defendant’s cross-examination . . .
require[d] reversal . . . .’’ Id., 334. The facts of this
case, however, are distinguishable and do not require
a similar result.
Unlike the defendant in Santiago, the defendant here
was allowed to inquire into Evans’ past connections
with the Stamford Police Department. Although Evans
was uncertain as to when he first worked as a confiden-
tial informant and as to how many instances he did so,
the defendant was allowed to cross-examine Evans on
his previous work as a confidential informant for the
Stamford Police Department. More importantly, the
defendant elicited testimony that the Stamford Police
Department, in the past, had bestowed Evans with
favorable treatment by ‘‘ripp[ing] up’’ a speeding ticket,
as well as providing him a letter of recommendation
for his bail enforcement agent license application. As
the sole trier of fact, the jury was free to believe Evans’
claim that he received only ‘‘gas money’’ as compensa-
tion for his efforts as a confidential informant and that
he had not been paid or expected compensation in
connection with this case.
We conclude that the defendant’s cross-examination
of Evans satisfied the constitutional requirements. The
record demonstrates that the defendant was given suffi-
cient opportunity to cross-examine Evans regarding his
motive and bias for testifying. The record is clear that
the defendant elicited a sufficient amount of informa-
tion to aid the jury in assessing Evans’ credibility. Thus,
the jury was presented with sufficient facts from which
it could determine the reliability of Evans’ testimony.
Furthermore, the court did not unduly restrict the
defendant’s cross-examination of Evans. Thus, the
court did not abuse its discretion in limiting the inquiry
as it did. The court was faced with balancing the proba-
tive value of the evidence that could have been elicited
from Evans against the state’s public policy concerns,
namely, the police department’s need for information
from confidential informants as well as ensuring Evans’
safety. The court’s ruling provided sufficient latitude
for the defendant to cross-examine Evans on the ‘‘issues
[that were] actually litigated at trial’’; State v. Reeves,
supra, 57 Conn. App. 346; by affording him the opportu-
nity to inquire into Evans’ relationship with the Stam-
ford Police Department as evidenced by Evans’
testifying to two occasions of favorable treatment.14
Therefore, this argument must fail.
IV
The defendant’s final claim is that the court provided
improper instructions to the jury. Specifically, he argues
that the court failed to properly instruct the jury on the
crime of attempt to commit murder and on the defense
of entrapment. We address each in turn.
We first set forth the relevant law governing the
defendant’s improper jury instruction claim. The stan-
dard of review for claims of instructional impropriety
is well established. ‘‘When reviewing the challenged
jury instruction . . . we must adhere to the well settled
rule that a charge to the jury is to be considered in its
entirety, read as a whole, and judged by its total effect
rather than by its individual component parts. . . .
[T]he test of a court’s charge is not whether it is as
accurate upon legal principles as the opinions of a court
of last resort but whether it fairly presents the case to
the jury in such a way that injustice is not done to either
party under the established rules of law. . . . As long
as [the instructions] are correct in law, adapted to the
issues and sufficient for the guidance of the jury . . .
we will not view the instructions as improper.’’ (Internal
quotation marks omitted.) State v. Griggs, supra, 288
Conn. 124.
‘‘We will reverse a conviction only if, in the context
of the whole, there is a reasonable possibility that the
jury was misled in reaching its verdict. . . . A jury
instruction is constitutionally adequate if it provides
the jurors with a clear understanding of the elements
of the crime charged, and affords them proper guidance
for their determination of whether those elements were
present. . . . An instruction that fails to satisfy these
requirements would violate the defendant’s right to due
process of law as guaranteed by the fourteenth amend-
ment to the United States constitution and article first,
§ 8, of the Connecticut constitution. . . . The primary
purpose of the charge is to assist the jury in applying
the law correctly to the facts which they might find to
be established. . . . The purpose of a charge is to call
the attention of the members of the jury, unfamiliar
with legal distinctions, to whatever is necessary and
proper to guide them to a right decision in a particular
case.’’ (Internal quotation marks omitted.) Id., 125–26.
A
The defendant claims that the court’s charge to the
jury ‘‘lacked sufficient guidance . . . on what consti-
tutes a ‘substantial step’ . . . .’’ Specifically, he argues
that he was found guilty because the court did not
‘‘explicitly define and give examples’’ of what consti-
tutes a ‘‘substantial step’’ by listing those examples pro-
vided in § 53a-49 (b).15
The following facts provide the context for this claim.
After both parties submitted their requests to charge,
the court provided the parties with the proposed charge
for the attempt count at the charging conference.
Defense counsel took a ‘‘strenuous exception,’’ arguing
that the proposed charge—by leaving out the specific
examples provided in the statute—would confuse the
jury because it could not ‘‘appreciate the level of prox-
imity to the death of the victim and the severity of the
conduct toward achieving that goal.’’ As a result, the
defendant argued, it would be a ‘‘miscarriage of justice
not to read’’ the examples.
On appeal, the defendant relies on State v. Washing-
ton, 15 Conn. App. 704, 546 A.2d 911 (1988), for the
proposition that he was ‘‘entitled to fact specific
requests to charge, as well as a definition, or at least
guidance from the trial court as to what does and what
does not constitute a substantial step under the attempt
statute.’’ (Internal quotation marks omitted.) The state
counters that the jury instruction was accurate and
almost verbatim to the criminal jury instruction pro-
vided by the Judicial Branch; thus, the jury charge did
not mislead the jury. Moreover, the state argues, it was
within the court’s discretion not to provide the exam-
ples listed in the statute. We agree with the state.
The defendant’s contention that State v. Washington,
supra, 15 Conn. App. 704, entitles him to his requested
jury charge is faulty. The defendant in Washington
argued on appeal that the court erred in reading § 53a-
49 (b) in its entirety to the jury because only three of
the seven listed examples were relevant to his case.
Id., 708–709. Thus, the defendant contended, the jury
was ‘‘misled and confused’’ when it had to consider
irrelevant statutory examples because the instructions
‘‘invited [the jury] to consider theories of liability unsup-
ported by the evidence.’’ Id., 709. The court in Washing-
ton did not agree, noting that it had ‘‘no doubt that the
court’s instructions . . . aided the jury in understand-
ing the difficult concept of what constitutes a substan-
tial step.’’ (Internal quotation marks omitted.) Id., 710.
Washington holds that it is permissible, but not man-
datory, for a court to read the ‘‘irrelevant statutory
examples [provided in § 53a-49 (b)] . . . as illustra-
tions’’ because those examples are not intended to be
‘‘various statutory bases of liability . . . .’’ Id. In the
fourteen appellate decisions citing Washington as of the
date of this opinion, not one suggests that it mandates
courts to read the statutory examples provided in § 53a-
49 (b). We decline the defendant’s invitation to expand
our holding in Washington.
We conclude that the charge was proper. The court’s
instructions mirrored the language of the statute.16 See
General Statutes § 53a-49 (a); see also State v. Lo Sacco,
11 Conn. App. 24, 29–30, 525 A.2d 977 (finding no error
in jury charge when judge read statute verbatim), cert.
denied, 204 Conn. 812, 528 A.2d 1158 (1987). Also, the
charge was taken nearly verbatim from the criminal
jury instruction provided by the Judicial Branch.17 ‘‘This
court has noted that [w]hile not dispositive of the ade-
quacy of the [jury] instruction, an instruction’s unifor-
mity with the model instructions is a relevant and
persuasive factor in our analysis.’’ (Internal quotation
marks omitted.) State v. Leandry, supra, 161 Conn.
App. 396–97. Moreover, the commentary to the jury
instruction advises the court that it ‘‘may, if it so
chooses, and if supported by the evidence, provide an
example of what is a ‘substantial step.’ ’’ Connecticut
Criminal Jury Instructions (4th Ed. 2008) § 3.2-2, com-
mentary (Rev. to December 1, 2007 [modified November
17, 2015]), available at http://jud.ct.gov/JI/Criminal/
Part3/3.2-2.htm (last visited March 23, 2016).
The defendant’s argument that the jury’s delibera-
tions were ‘‘clouded by speculation’’ because the court
did not provide the statutory examples is itself specula-
tive. ‘‘Jurors are expected to bring their common sense
and common experience to the deliberation process.’’
State v. Padua, 273 Conn. 138, 159, 869 A.2d 192 (2005).
In applying its own reasoning, the jury reasonably could
have concluded that the defendant’s conduct, namely,
‘‘seeking a shooter, meeting with him to plan the murder
of his [wife], and establishing a time later . . . to make
the first of three payments pursuant to the defendant’s
plan,’’ constituted more than mere preparation. The
charge was proper and the jury was not misled. There-
fore, this claim must fail.
B
The defendant next claims that the court provided
an inadequate jury instruction on the defense of entrap-
ment in contravention of General Statutes § 53a-15.18
The following facts are necessary to resolve this
claim. Late on the sixth day of trial, after the court
provided both parties with a preliminary charge and
discussed it in chambers, the court held a charging
conference. At that time, the court acknowledged that
the defendant was using entrapment as a defense. Spe-
cifically, the court noted that the defendant was arguing
that because Evans was a bail enforcement agent and
a previous confidential informant, he should be consid-
ered a ‘‘government agent for purposes of this prosecu-
tion.’’ The following day, after the court read the
entrapment charge to the jury,19 the defendant objected
on the ground that the court, in substituting ‘‘govern-
ment agent or police officer’’ in its charge, would con-
fuse the jury. The defendant argued that ‘‘public servant
or by a person acting in cooperation with a public ser-
vant’’ should have been read throughout the charge.
The state countered that the charge, as given, followed
the model jury instruction and provided proper guid-
ance to the jury. The court ruled that the charge, as
given, was proper.
On appeal, the defendant makes a similar claim. Spe-
cifically, he argues that the jury charge was defective
because it excluded Evans from the category of persons
who may have ‘‘induced’’ the defendant to commit the
crime. As characterized by the defendant, this charge
was ‘‘constitutionally infirm [because] . . . [the]
court’s jury instruction unconstitutionally narrowed the
breadth of the statute to exclude Evans.’’ Thus, the
defendant argues, the jury was misled. We disagree.
In resolving this final issue, we are guided by the
following principles. ‘‘A defendant’s right to present a
defense is of constitutional dimension. Thus, [w]here
the legislature has created a legally recognized defense
. . . [due process requires] a proper jury instruction
on the elements of the defense . . . so that the jury
may ascertain whether the state has met its burden of
disproving it beyond a reasonable doubt. . . . When
the evidence presented at trial, construed in the light
most favorable to the defendant, supports such a
defense, a charge on the defense is obligatory.’’ (Cita-
tion omitted; internal quotation marks omitted.) State
v. Riley, 159 Conn. App. 462, 477–78, 123 A.3d 123, cert.
denied, 319 Conn. 949, 125 A.3d 528 (2015).
Our review of the jury charge, read as a whole, leads
us to conclude that it was proper. First, the court began
its instruction by reading a nearly verbatim version of
the statute on the defense of entrapment. Second, the
charge followed the model jury instruction,20 which we
have stated is ‘‘a relevant and persuasive factor in our
analysis.’’ (Internal quotation marks omitted.) State v.
Leandry, supra, 161 Conn. App. 397. Third and finally,
the defendant provides no case law, nor did we find
any Connecticut case, supporting his argument that the
term ‘‘government agent or police officer’’ in the context
of an entrapment charge misleads a jury. There are,
however, Connecticut cases that use the term ‘‘govern-
ment agent’’ to explain our entrapment law. See State
v. Lee, 229 Conn. 60, 79, 640 A.2d 553 (1994) (‘‘[w]here
the [g]overnment has induced an individual to break
the law and the defense of entrapment is at issue . . .
the prosecution must prove beyond a reasonable doubt
that the defendant was disposed to commit the criminal
act prior to first being approached by [g]overnment
agents’’ [internal quotation marks omitted]); State v.
Marquardt, 139 Conn. 1, 5, 89 A.2d 219 (1952) (‘‘if the
evil intent and the criminal design originate in the mind
of the government agent and the accused is lured into
the commission of the offense charged . . . no convic-
tion may be had’’); State v. Nero, 122 Conn. App. 763,
784–85, 1 A.3d 184 (2010) (‘‘[i]n their zeal to enforce
the law . . . [g]overnment agents may not originate a
criminal design, implant in an innocent person’s mind
the disposition to commit a criminal act, and then
induce commission of the crime so that the [g]overn-
ment may prosecute’’ [internal quotation marks omit-
ted]). Thus, in this case, the jury instruction on the
elements of the defense of entrapment was proper and
did not mislead the jury. Accordingly, the defendant’s
final argument must fail.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interest of the
victim of a criminal violation of a protective order, we decline to identify
the victim or others through whom the victim’s identity may be ascertained.
1
The men were acquainted because Evans previously had been a confiden-
tial drug informant and worked with Evensen in his capacity as a police
officer.
2
A criminal protective order was issued against the defendant on March
7, 2011. It is not a part of this appeal.
3
In his reply brief, the defendant contends for the first time that the
evidence did not demonstrate that he acted with the ‘‘specific intent to
cause the death of his spouse.’’ Because ‘‘[i]t is a well established principle
that arguments cannot be raised for the first time in a reply brief’’; (internal
quotation marks omitted) State v. Peeler, 271 Conn. 338, 373 n.36, 857 A.2d
808 (2004), cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005);
we decline to address this claim. See also State v. Jose G., 102 Conn. App.
748, 755, 929 A.2d 324 (2007) (‘‘Claims of error by [the defendant] must be
raised in his original brief . . . so that the issue as framed by him can be
fully responded to by the [state] in its brief, and so that we can have the
full benefit of that written argument. Although the function of the [defen-
dant’s] reply brief is to respond to the arguments and authority presented
in the [state’s] brief, that function does not include raising an entirely new
claim of error.’’ [Internal quotation marks omitted.]), aff’d, 290 Conn. 331,
963 A.2d 42 (2009).
4
Although the defendant stated that he could get the $800 that night, he
was hesitant to do so because ‘‘for [him] to get it, [he] had to . . . disturb
people, [and] [he did not] want to [do] anything out of place [that night].’’
The defendant assured Paleski that he could get the money the following
day ‘‘without doing anything . . . out of character.’’
5
At Paleski’s behest, the defendant provided the following information
on a piece of paper: (1) the victim’s name; (2) the color, make, and model
of the victim’s car; (3) the victim’s place of employment; and (4) the victim’s
home address.
6
The colloquy discussing his wife’s photograph was as follows:
‘‘[Paleski]: [Y]ou . . . have a picture of her or anything?
‘‘[The Defendant]: I do have a little bit older [picture because] she’s not
fucking big on pictures. . . .
‘‘[Paleski]: [T]hat’s a picture . . . of her, that’s how she looks now?
‘‘[The Defendant]: [U]h, her hair is more mixed in colors.
‘‘[Paleski]: [W]hat color?
‘‘[The Defendant]: [S]he got all fucking crazy highlights . . . like brown
and blond and a little bit of black.’’
7
For example, from our Supreme Court one can compare State v. Lapia,
supra, 202 Conn. 515 (focus is on ‘‘what the actor has already done and
not on what remains to be done’’ [emphasis in original]), with State v. Green,
194 Conn. 258, 277, 480 A.2d 526 (1984) (‘‘[the substantial step] standard
shifts the focus from what has been done to what remains to be done’’),
cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985).
From this court’s case law, one can compare State v. Hanks, supra, 39
Conn. App. 341 (‘‘To constitute a substantial step, the conduct must be
strongly corroborative of the actor’s criminal purpose. . . . This standard
focuses on what the actor has already done and not [on] what remains to
be done. State v. Lapia, [supra, 202 Conn. 515].’’ [Citation omitted; internal
quotation marks omitted.]), with State v. Campfield, 44 Conn. App. 6, 25,
687 A.2d 903 (1996) (‘‘[Section] 53a-49 [a] [2] requires an accused to have
undertaken a substantial step toward committing the intended crime. This
standard focuses on what act remains to be done to commit the intended
crime and not what acts have been done.’’), cert. denied, 240 Conn. 916,
692 A.2d 814, cert. denied, 522 U.S. 823, 118 S .Ct. 81, 139 L. Ed. 2d 39 (1997).
We also take this opportunity to correct a misapplication of a legal princi-
ple as enunciated in Campfield. In that case, this court cited to Hanks for
the proposition that the substantial step ‘‘standard focuses on what act
remains to be done to commit the intended crime and not what acts have
been done.’’ State v. Campfield, supra, 44 Conn. App. 25. The court in
Campfield, however, appears to have misspoken when citing Hanks. The
court in Hanks, quoting State v. Lapia, supra, 202 Conn. 515, explicitly
stated that the substantial step ‘‘standard focuses on what the actor has
already done and not what remains to be done.’’ (Internal quotation marks
omitted.) State v. Hanks, supra, 39 Conn. App. 341.
8
Section 5.01 of the Model Penal Code provides in relevant part: ‘‘(1)
Definition of Attempt. A person is guilty of an attempt to commit a crime
if, acting with the kind of culpability otherwise required for commission of
the crime, he:
‘‘(a) purposely engages in conduct that would constitute the crime if the
attendant circumstances were as he believes them to be; or . . .
‘‘(c) purposely does or omits to do anything that, 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.
‘‘(2) Conduct That May Be Held Substantial Step Under Subsection (1)
(c). Conduct shall not be held to constitute a substantial step . . . unless
it is strongly corroborative of the actor’s criminal purpose. . . .’’ Model
Penal Code and Commentaries, supra, § 5.01 (1) and (2), pp. 295–96.
9
A review of our Supreme Court’s case law reveals that the majority of
cases follow the Model Penal Code formulation. Compare State v. Wilcox,
254 Conn. 441, 469, 758 A.2d 824 (2000) (focusing on what actor has done
and not what remains to be done as applied to facts of case), State v.
Milardo, 224 Conn. 397, 404, 618 A.2d 1347 (1993) (same), State v. Anderson,
211 Conn. 18, 27–28, 557 A.2d 917 (1989) (same), State v. Lapia, supra, 202
Conn. 515 (‘‘[t]his 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’’ [emphasis in original]), and State v. Zayas,
195 Conn. 611, 620, 490 A.2d 68 (1985) (focusing on what actor has done
and not what remains to be done as applied to facts of case), with Small
v. Commissioner of Correction, 286 Conn. 707, 730, 946 A.2d 1203 (‘‘[t]his
standard shifts the focus from what has been done to what remains to be
done’’ [internal quotation marks omitted]), cert. denied sub nom. Small v.
Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008), and State v.
Green, supra, 194 Conn. 277 (same).
This court’s jurisprudence provides a similar result. Compare State v.
Carter, 141 Conn. App. 377, 387, 61 A.3d 1103 (2013) (focusing on what
actor has done and not what remains to be done as applied to facts of case),
aff’d, 317 Conn. 845, 120 A.3d 1229 (2015), State v. Osbourne, supra, 138
Conn. App. 528 (‘‘[t]his standard focuses on what the actor has already done
and not what remains to be done’’ [internal quotation marks omitted]), State
v. Robinson, 127 Conn. App. 1, 9, 15 A.3d 648 (focusing on what actor has
done and not what remains to be done as applied to facts of case), cert.
denied, 300 Conn. 942, 17 A.3d 477 (2011), State v. Andrews, 114 Conn. App.
738, 747–48, 971 A.2d 63 (same), cert. denied, 293 Conn. 901, 975 A.2d 1277
(2009), State v. Towns, 114 Conn. App. 155, 161–62, 968 A.2d 975 (same),
cert. denied, 293 Conn. 901, 975 A.2d 1278 (2009), State v. Damato, supra,
105 Conn. App. 345 (same), State v. Fauntleroy, 101 Conn. App. 144, 152,
921 A.2d 622 (2007) (same), State v. Morocho, 93 Conn. App. 205, 215, 888
A.2d 164 (‘‘[t]his standard focuses on what the actor has already done and
not what remains to be done’’ [internal quotation marks omitted]), cert.
denied, 277 Conn. 915, 895 A.2d 792 (2006), with State v. Campfield, supra,
44 Conn. App. 25 (misspeaking when defining substantial step standard as
stated in State v. Hanks, supra, 39 Conn. App. 341).
10
We note that our Supreme Court has stated that the drafters of the
Model Penal Code ‘‘belie[ved] that the proper concern of the law of attempts
is the dangerousness of the actor, as a person manifesting a firm disposition
to commit a crime, not the dangerousness of his conduct.’’ (Internal quota-
tion marks omitted.) State v. Sorabella, 277 Conn. 155, 181 n.29, 891 A.2d
897, cert. denied, 549 U.S. 821, 127 S. Ct. 131, 166 L. Ed. 2d 36 (2006); see
also Model Penal Code and Commentaries, supra, § 5.01, comment (3) (b),
pp. 315–16 (‘‘[t]he law of attempts . . . should be concerned with manifesta-
tions of dangerous character as well as with preventive arrests’’). With this
principle in mind, it was reasonable for the jury to have concluded that a
person, with the intent to commit murder who hires a hit man has demon-
strated his dangerousness to society.
11
The defendant also made two additional arguments in this claim. He
contended that the court abused its discretion by limiting his cross-examina-
tion of Evans regarding a prior conviction and evidence that his wife allegedly
operated an unlicensed day care. In crafting his argument, however, the
defendant’s main brief contained only four passing, conclusory statements
regarding the prior conviction and unlicensed day care claims. We note that
his reply brief also made no reference. We do not suggest that a minimum
number of statements or references must be reached before we review a
claim. We do, however, assert that ‘‘[a]nalysis, rather than mere abstract
assertion[s], is required in order to avoid abandoning an issue by failure to
brief the issue properly.’’ (Internal quotation marks omitted.) State v. Pink,
274 Conn. 241, 244 n.3, 875 A.2d 447 (2005); see also State v. Wragg, 61
Conn. App. 394, 395 n.1, 764 A.2d 216 (2001) (‘‘[a]n issue merely mentioned
will be deemed abandoned’’). Accordingly, we decline to review the portion
of the defendant’s claim pertaining to Evans’ prior conviction and the allega-
tion that Evans’ wife was operating an unlicensed day care.
12
The defendant cited to United States v. Leja, 568 F.2d 493 (6th Cir.
1977). In that case, the government informant was employed by the federal
Drug Enforcement Agency. Id., 498. With the agency’s permission, the infor-
mant cooperated with the defendant to manufacture drugs and introduced
the defendant to the undercover agent posing as a customer. Id., 494. At trial,
the defendant elicited testimony from the informant that he had received a
substantial monetary payment for his work in that case. Id., 495. The court,
however, did not allow the defendant to cross-examine the informant on
payments from past services. Id., 497.
The defendant argued on appeal that the informant ‘‘fabricated the facts
of [the defendant’s] involvement in order to collect the $1000 per head
bounty offered by the government in addition to its regular retainer.’’ Id.,
495. In its analysis reversing the judgment of the District Court, the court
in Leja calculated that the informant was ‘‘receiving payment at an annual
rate of $42,000 and $56,000’’ in 1975. Id., 498. Therefore, the court in Leja
reasoned that ‘‘surely the evidence of how much [the informant] was receiv-
ing from the government for past services and might therefore expect in
the future was highly relevant to the question of his potential bias and
interest.’’ Id., 499.
The facts from Leja are easily distinguished. Evans was not acting as a
paid informant in the present case. As testified by Evans, he neither received
any form of payment nor expected any future payment or consideration.
Evans also testified to being remunerated only for his fuel expenses when
acting as a confidential informant, a very different situation from that of
the informant in Leja, whose livelihood appeared substantially impacted by
working as a government informant.
13
During direct examination, it was established that Evans worked as a
bail enforcement agent. On cross-examination, it was then established that
a bail enforcement agent must be licensed in Connecticut. See General
Statutes § 29-152f (‘‘[a]ny person desiring to engage in the business of a bail
enforcement agent shall apply to the Commissioner of Emergency Services
and Public Protection for a license’’).
14
The defendant’s contention that the court’s ruling limiting his cross-
examination of Evans was harmful error is also without merit. Although
Evans was a key witness for the prosecution, the jury had the benefit of
reviewing the video recording the defendant’s plot to have Paleski murder
his wife. Even had the jury not credited Evans’ testimony, the video was
compelling evidence of the defendant’s guilt.
15
The examples provided in § 53a-49 (b), in relevant part, are as follows:
‘‘Without negating the sufficiency of other conduct, the following, if strongly
corroborative of the actor’s criminal purpose, shall not be held insufficient
as a matter of law: (1) [l]ying in wait, searching for or following the contem-
plated victim of the crime; (2) enticing or seeking to entice the contemplated
victim of the crime to go to the place contemplated for its commission; (3)
reconnoitering the place contemplated for the commission of the crime; (4)
unlawful entry of a structure, vehicle or enclosure in which it is contemplated
that the crime will be committed; (5) possession of materials to be employed
in the commission of the crime, which are specially designed for such
unlawful use or which can serve no lawful purpose of the actor under the
circumstances; (6) possession, collection or fabrication of materials to be
employed in the commission of the crime, at or near the place contemplated
for its commission, where such possession, collection or fabrication serves
no lawful purpose of the actor under the circumstances; (7) soliciting an
innocent agent to engage in conduct constituting an element of the crime.’’
16
The court charged the jury, in relevant part, as follows: ‘‘Element two,
conduct. The second element is that the defendant intentionally did anything
that under the circumstances as he believed them to be was an act constitut-
ing a substantial step in the course of conduct planned to culminate in his
commission of the crime of murder. To be a substantial step the conduct
must be strongly corroborative of the defendant’s criminal purpose.
‘‘The state need not show that its conduct progressed so far as to constitute
the final step in a course of conduct planned to culminate in the commission
of a crime had the circumstances been as he believed them to be; however,
the act or acts must constitute more than mere preparation.
‘‘The defendant’s conduct must be at least the start of a line of conduct
that will lead naturally to the commission of a crime. In other words, it
must appear to the defendant that it was at least possible that the crime of
murder could be committed if he continued on his course of conduct.
‘‘You may recall the state’s claim that the defendant’s conduct between
the afternoon of—mid-afternoon of June 9, 2011, and morning of June 10
rose to the level of substantial steps, including seeking a shooter, meeting
with him to plan the murder of [his wife] and establishing a time later in
the morning of the tenth to make the first of three payments pursuant to
the defendant’s plan.
‘‘However, you will also recall that the defendant claims that the state
has failed to prove each element of the crime of attempted murder beyond
a reasonable doubt in that the defendant neither possessed the specific
intent to commit the murder, nor did he perform a substantial step before
his arrest.
‘‘If, upon all of the evidence, you conclude beyond a reasonable doubt
that the defendant had formed in his mind a specific intention of murder
as it has been defined for you, you must next consider whether he intention-
ally did anything that would constitute a substantial step toward the commis-
sion of that crime.
‘‘In other words, the state must prove both the specific intent to commit
murder and substantial conduct beyond a reasonable doubt in order to
obtain a conviction.
‘‘If you unanimously find that the state has proven beyond a reasonable
doubt that the defendant intended to commit the crime of murder and took
a substantial step toward the commission of that crime, then you shall find
the defendant guilty. On the other hand, if you unanimously find that the
state has failed to prove beyond a reasonable doubt either of these elements,
you shall then find the defendant not guilty.’’
17
Section 3.2-2 of the Connecticut Criminal Jury Instructions provides in
relevant part: ‘‘The second element is that the defendant intentionally did
anything that, under the circumstances as (he/she) believed them to be, was
an act constituting a substantial step in a course of conduct planned to
culminate in (his/her) commission of the crime of . To be a substantial step, the conduct must be strongly corrobora-
tive of the defendant’s criminal purpose. The act or acts must constitute
more than mere preparation. The defendant’s conduct must be at least the
start of a line of conduct that will lead naturally to the commission of a
crime. In other words, it must appear to the defendant that it was at least
possible that the crime could be committed if (he/she) continued on (his/
her) course of conduct. . . .
‘‘If, upon all the evidence, you conclude beyond a reasonable doubt that
the defendant had formed in (his/her) mind the intention to commit as it has been defined for you, you must next consider
whether (he/she) intentionally did anything that would constitute a substan-
tial step towards the commission of the crime. In other words, the state
must prove both intent and conduct beyond a reasonable doubt to obtain
a conviction.
‘‘If you unanimously find that the state has proved beyond a reasonable
doubt that the defendant intended to commit
and took a substantial step toward the commission of that crime, then you
shall find the defendant guilty. On the other hand, if you unanimously find
that the state has failed to prove beyond a reasonable doubt either of these
elements, you shall then find the defendant not guilty.’’ (Emphasis omitted;
footnote omitted.) Connecticut Criminal Jury Instructions (4th Ed. 2008)
§ 3.2-2 (Rev. to December 1, 2007 [modified to November 17, 2015]), available
at http://jud.ct.gov/JI/Criminal/Part3/3.2-2.htm (last visited March 23, 2016).
18
General Statutes § 53a-15 provides: ‘‘In any prosecution for an offense,
it shall be a defense that the defendant engaged in the proscribed conduct
because he was induced to do so by a public servant, or by a person acting
in cooperation with a public servant, for the purpose of institution of criminal
prosecution against the defendant, and that the defendant did not contem-
plate and would not otherwise have engaged in such conduct.’’
19
The court’s charge of entrapment, in its entirety, is as follows: ‘‘Now,
I’ll discuss entrapment. The evidence in this case raises the issue of the
defense of entrapment as it relates to the crime of attempted murder in
count one.
‘‘The statute defining entrapment reads in pertinent part. In any prosecu-
tion for an offense, it shall be a defense that the defendant engaged in the
prescribed conduct because he was induced to do so by a public servant
or by a person acting in cooperation with a public servant for the purpose
of institution of criminal prosecution against the defendant and the defen-
dant did not contemplate and would not otherwise have engaged in such
conduct.
‘‘Entrapment exists only if the defendant was not predisposed to commit-
ting the crime of attempted murder. If the criminal intent or the willing
disposition to commit the crime originates in the mind of the defendant
and the criminal offense is completed, it is no defense that the opportunity
is furnished or that the defendant is aided in the commission of the crime
in order to secure the evidence necessary to prosecute the defendant.
‘‘On the other hand, it is entrapment if the criminal design originates in
the mind of the government agent or police officer and the defendant is
induced into the commission of the offense when the defendant would not
have committed it except for the urging of the government agent or officer.
‘‘The vital factor in determining if there has been entrapment is whether
the defendant was induced by the urging of a governmental agent or police
officer to commit a crime that the defendant would not otherwise have com-
mitted.
‘‘Inducement means more than a simple request by a governmental agent
or police officer to break the law. There is a clear distinction between
inducing a person to commit a crime and setting the stage to catch that
person in the execution of criminal designs of the person’s own volition.
‘‘If the government agent or officers of the law induce an innocent person
to commit a crime that that person would not otherwise commit, it is
entrapment and a defense to the crime charged.
‘‘It is for you to determine on the basis of all the evidence whether the
state has proven beyond a reasonable doubt that it did not induce the
defendant to commit the offense for which he is charged in count one.
‘‘If you unanimously find that the state has proved all of the elements of
the crime of attempted murder beyond a reasonable doubt and have proved
the claim of entrapment—disproved the claim of entrapment, excuse me,
beyond a reasonable doubt, you must return a verdict of guilty on this count.
‘‘If you unanimously find that the state has failed to prove one or more
of the elements of the crime of attempted murder or failed to disprove the
claim of entrapment, you must return a verdict of not guilty on this count.’’
(Emphasis added.)
20
The model jury instruction provides in relevant part: ‘‘Entrapment exists
only if the defendant was not predisposed to committing the crime at issue.
If the criminal intent or the willing disposition to commit the crime originates
in the mind of the defendant and the criminal offense is completed, it is no
defense that the opportunity is furnished or the defendant is aided in the
commission of the crime in order to secure the evidence necessary to
prosecute the defendant. On the other hand, it is entrapment if the criminal
design originates in the mind of the government agent or police officer and
the defendant is induced into the commission of the offense when the
defendant would not have committed it except for the urging of the officer
or government agent.
‘‘The vital factor in determining if there has been an entrapment is whether
the defendant was induced by the urging of a governmental agent or police
officer to commit a crime that the defendant would not otherwise have
committed. Inducement means more than a simple request by a government
agent or police officer to break the law. There is a clear distinction between
inducing a person to commit a crime and setting the stage to catch that
person in the execution of criminal designs of the person’s own volition. If
officers of the law induce an innocent person to commit a crime that that
person would not otherwise commit, it is entrapment and a defense to
the crime charged . . . .’’ (Emphasis added.) Connecticut Criminal Jury
Instructions (4th Ed. 2008) § 2.7-4 Rev. to December 1, 2007 [modified to
May 20, 2011]), available at http://jud.ct.gov/JI/Criminal/Part2/2.7-4.htm (last
visited March 23, 2016).