DocketNumber: SC19788
Citation Numbers: 201 A.3d 989, 331 Conn. 1
Judges: Robinson, Palmer, D'Auria, Mullins, Kahn, Ecker, Vertefeuille
Filed Date: 3/5/2019
Status: Precedential
Modified Date: 10/19/2024
**3The present appeal requires us to consider whether, in determining the sufficiency of the evidence to support a conviction for attempt to commit murder under the substantial step provision of General Statutes § 53a-49 (a) (2), the proper inquiry should focus on what the actor had already done or on what the actor had left to do to complete the crime of murder. In the present case, the jury found the defendant, Daniel B., guilty of attempt to commit *991murder in violation of General Statutes §§ 53a-54a and 53a-49 (a) (2). Following our grant of certification,
The jury reasonably could have found the following relevant facts. In December, 2010, the defendant brought an action seeking the dissolution of his marriage to the victim, T. The couple's relationship subsequently began to further deteriorate, leading T to call the police regarding the defendant four times in two months. T's first call to the police occurred in February, 2011, after T returned home to discover that the defendant had installed a coded padlock on their bedroom door, apparently in an attempt to keep her out of the bedroom.
T called 911 on three additional occasions in March, 2011. On March 6, 2011, while T was watching a movie at her sister's house, she received several phone calls from the defendant, who appeared upset, asking her where she was. When she answered her cell phone near a kitchen window, she "could hear him talking outside before [she] heard his voice coming through the cell phone," and realized he was standing outside her sister's home. On that occasion, an officer with the Stamford Police Department arrested the defendant, and T obtained a partial protective order against him the following day. The next day, on March 7, 2011, after T returned home from her sister's house and she discovered that the defendant had packed away her belongings and left them by the front door, the police were again called. Two days later, on March 9, 2011, T came home to find the defendant moving bedroom furniture and **5taking her belongings off the bed and other furniture in their bedroom. When T confronted the defendant, an argument ensued during which he shoved her multiple times through the upstairs hallway, eventually attempting to push her down the stairs, causing both her and their three year old son to fall at the top of the staircase. Stamford police arrested the defendant for the second time, and T obtained a full protective order against him. By June, the defendant and T had reached an agreement regarding the dissolution of their marriage.
On June 9, 2011, four days before the dissolution was scheduled to be finalized, the defendant called an old friend, John *992Evans, to whom he had not spoken in a "couple of years." To obtain Evans' contact information, the defendant requested Evans' phone number from a mutual friend, who called Evans and obtained permission to give his number to the defendant. The record is unclear as to when the defendant made this request and how much time passed before he received Evans' phone number. The record does reveal, however, that between the hours of 12 and 2 a.m. on June 9, the defendant called Evans and requested to meet with him that day at approximately 3 p.m. at a donut shop in Stamford. When they met fifteen hours later, the defendant explained that he was getting divorced from T and she was "getting the house, the kids ... and she was trying to get some money from him, too." The defendant asked Evans if he "knew anybody that could murder [T]" for him. When Evans tried to dissuade him, the defendant told him that "[he had] been thinking about it for two years, and he made up his mind .... He needs it done."
Evans responded that he would "see what [he] could do." Shortly after leaving the defendant, Evans called Mike Malia, a mutual friend who knew the defendant better than Evans did, for advice on how to proceed. Malia told Evans that "when [the defendant] gets something **6in his head, he's gonna do it. So, you know, make a call, call somebody." Evans called John Evensen, a retired Stamford police officer for whom Evans had acted as a confidential informant in the past, to tell him about the defendant's request. Evensen encouraged Evans to "do the right thing," because "somebody's life" was endangered, and told Evans that he would connect him with someone. Evensen then called James Matheny, then commander of the Bureau of Criminal Investigations for the Stamford Police Department, and arranged for Matheny to contact Evans.
After speaking to Evans himself, Matheny's team formulated a plan that called for Evans to introduce the defendant to an undercover police officer who would pose as a hit man. As part of the plan, Evans called and texted the defendant, relaying to him that he "found a guy" that would "take care of it ASAP." Through a series of texts and calls beginning at 3:27 p.m. and ending at 12:22 a.m.,
**7While in the vehicle, the defendant and Paleski discussed the manner, method and price to best effectuate T's murder. The first issue the defendant and Paleski discussed was the price Paleski would require to perform the hit. The defendant agreed to pay Paleski $ 10,000 in the following manner: an $ 800 payment due the following morning in order for Paleski to obtain a firearm, along with a down payment of *993$ 3000, and the remainder due approximately one month after the murder. Next, the defendant told Paleski the information necessary for him to murder T, including her full name, home address, place of employment, and work schedule. The defendant also showed Paleski a photograph of T to help him identify her. When the defendant showed Paleski the photograph of T, the defendant noted that it was an older photograph and that T's hair color had changed.
At the defendant's suggestion, the two agreed to stage T's murder as a carjacking, as demonstrated by the following exchange
"[Paleski]: How do you want it done? ...
"[The Defendant]: I don't know. The only thing I was thinking about was because she drives through-you from Stamford or no?
**8"[Paleski]: No.
"[The Defendant]: Okay, well she-the hospital is in a rough section and she's got a nice car ... so I'm like, I don't know if it makes sense, if that would be the best way to go about it.
"[Paleski]: Or you might want to make it look like a carjacking or something?
"[The Defendant]: Something like that ... take the car, the car is going to get found and it kind of like explains it.
"[Paleski]: Yup.
"[The Defendant]: You know, I'm not sure what's the best thing to do ... I didn't put that thought into the detail of how.
"[Paleski]: You want her completely out of the picture right? Morte?
"[The Defendant]: [The defendant is nodding.] That's where it's getting to ....
"[Paleski]: That's what you want? ...
"[The Defendant]: I wish we didn't need to be there but ... you know."
Later in the conversation, Paleski again asked for confirmation that the defendant wanted him to kill T. Paleski told the defendant: "Just so [you] know, I'm going to put two in that bitch's head and take that car and be gone, and I'll fucking burn it somewhere." The defendant responded, "[t]hat's the only way that I can come up with that ... makes sense ...."
Concerned that he would be "the first person ... [the police] looked at," the defendant believed that the carjacking scenario near T's work would also provide him with an alibi because the defendant would typically **9have the children with him at one of his aunt's houses. When Paleski confirmed by saying, "I can take the bitch off when you're with [your aunts]," the defendant responded, "[e]xactly." Aware that the police would look at the defendant's actions when investigating T's murder, Paleski and the defendant discussed *994how quickly the defendant could get the money:
"[Paleski]: I'll do it but I need ... some of that wood.
"[The Defendant]: Yea.
"[Paleski]: Can you get me the $ 800 tonight?
"[The Defendant]: I can work it out, yea, I could.
"[Paleski]: Alright.
"[The Defendant]: I just don't want to-for me to get it I got to like disturb people tonight ... I don't want anything out of place tonight.
"[Paleski]: Okay, but I ain't doing shit without some money.
"[The Defendant]: Understood.
"[Paleski]: Feel me?
"[The Defendant]: Clear. I'm saying to you I'm not asking you for the urgency of tonight, I'd rather do it so it's not-I don't want anything out of character.
"[Paleski]: Right, right.
"[The Defendant]: You know ... that's my pause for tonight, because it's going to be out of character for me to go get it tonight ....
"[Paleski]: How soon do you think you can get that money?
"[The Defendant]: I can get it tomorrow without doing anything ... out of character."
Paleski told the defendant that, in order to effectuate the carjacking, he needed the defendant to write down **10T's full name, the make and model of her car, T's place of employment, and her home address. The defendant exited Paleski's vehicle and went to Evans' vehicle to retrieve a piece of paper on which to write down the information. In an apparent effort to distance himself from the crime, the defendant asked Evans to write down the information as the defendant dictated it to him. The piece of paper was admitted into evidence, and Evans testified that he wrote the note.
When the defendant returned to Paleski's vehicle with the note, he handed it to him, and they once again discussed the plan to have T killed near her place of employment at a time when the children were with the defendant. They discussed T's typical work schedule and the defendant's concerns that sometimes her work shifts change. They also discussed whether it was best to have it done before the divorce settlement was signed the following Monday. The defendant expressed a desire to communicate with Paleski only through Evans because he did not want to use his own phone to call anyone or to coordinate a meeting with Paleski. The defendant indicated that he would get a prepaid phone and then get rid of it. The defendant told Paleski that he would get the money and meet Paleski at the same location at 10 a.m. that same day. The defendant agreed to bring the money to that meeting. The defendant thanked Paleski and exited the vehicle, at which point he was apprehended by Stamford police officers and arrested.
Following a six day trial, a jury found the defendant guilty of attempt to commit murder in violation of §§ 53a-54a and 53a-49 (a) (2), and the court sentenced the defendant to twenty years imprisonment, execution suspended after fifteen years, followed by five years of probation. The defendant appealed, claiming, among other things, that there was insufficient evidence to support his conviction of attempted murder, because **11the state failed to prove that his conduct constituted a substantial step insofar as he had not yet paid Paleski. State v. Daniel B. , supra,
The defendant claims that, in concluding there was sufficient evidence to sustain his conviction of attempt to commit murder, the Appellate Court improperly construed § 53a-49 (a) (2). Specifically, the defendant claims that the determination of what constitutes a substantial step in a course of conduct intended to culminate in murder depends on "what remains to be done" as opposed to what "has already been done." The state argues that the Appellate Court properly looked to our case law, which articulates the proper framework under § 53a-49 (a) (2) for determining a substantial step and focuses on what the defendant has already done. We conclude that, in determining whether a defendant's actions constitute a substantial step in a course of conduct planned to culminate in his commission of murder, the proper focus is on what the defendant has already done. Applying that standard in the present case, the **12Appellate Court properly concluded that the state presented sufficient evidence to permit a jury reasonably to find the defendant guilty of attempt to commit murder under the substantial step subdivision.
We begin with the general principles that guide our review. "In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury's verdict of guilty."
In the present case, the determination of whether there was sufficient evidence to support the defendant's conviction of attempt to commit murder is inextricably linked to a question of statutory interpretation. That is, prior to determining whether there was sufficient evidence, we must resolve whether the Appellate Court properly construed § 53a-49 (a) (2) to focus on what already has been done rather than what remains to be done. We exercise plenary review over questions of statutory interpretation, guided by well established principles regarding *996legislative intent. See, e.g., **13Kasica v. Town of Columbia ,
We begin with the statutory language. Our criminal attempt statute proscribes two distinct ways in which a person is guilty of an attempt to commit a crime: through the attendant circumstances subdivision, § 53a-49 (a) (1), or the substantial step subdivision, § 53a-49 (a) (2). This appeal involves the interpretation of the substantial step subdivision, which defines criminal attempt in relevant part as follows: "A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he ... intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime." General Statutes § 53a-49 (a) (2). Included in the threshold inquiry are our prior interpretations of the statutory language, which we have stated are encompassed in the term "text" as used in § 1-2z. See Hummel v. Marten Transport, Ltd. ,
We have held that the substantial step inquiry "focuses on what the actor has already done and not on what remains to be done." (Emphasis in original.) State v. Lapia ,
Likewise, in State v. Carter ,
In rejecting Carter's argument, this court reasoned that it was not necessary for the gun to be racked in order to find Carter guilty of attempt under the substantial step provision. This court stated that "[t]he 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 irrelevant to the inquiry whether he took a prior substantial step to commit the offense.... [I]t was only necessary for him to take a substantial step under the circumstances as he believe[d] them to be ...." (Emphasis in original; internal quotation marks omitted.) Id., at 861,
Our prior interpretation of § 53a-49 (a) (2) finds support in the history of the statute. When the legislature **16codified the crime of attempt and incorporated the substantial step as one of the means by which a defendant could be held liable, it adopted the substantial step provision from the Model Penal Code. See State v. Moreno-Hernandez , supra, 317 Conn. at 303-304,
Although not the focus of the substantial step provision, the consideration of what the actor has left to do is not completely irrelevant to the inquiry of whether he has taken a substantial step. Because "[a] substantial step must be *998something more than mere preparation, yet may be less than the last act necessary before the actual commission of the substantive crime ... the finder of fact may give weight to that which has already been done as well as that which remains to be accomplished before commission of the substantive crime." (Emphasis added; internal quotation marks omitted.) State v. Sorabella ,
For two reasons, we find unpersuasive the defendant's reliance on this court's language in State v. Green ,
Second, in Green , this court relied on common-law attempt doctrine that predated our legislature's adoption of the substantial step provision.
The jury watched the video recording of the defendant entering Paleski's vehicle and providing Paleski with the information necessary to murder T. Specifically, **25when the defendant entered Paleski's car, he provided Paleski with his wife's name, home address, employer, work address, work schedule, and physical description. The defendant offered Paleski his plan for murdering T, namely, that the killing take place "in a rough section" of Stamford and involve her "nice car" to make it look like an impersonal attack and to ensure that neither the defendant nor his children would be near the scene. The jury watched the defendant leave Paleski's car to retrieve a piece of paper that ultimately provided Paleski with, among other things, the make and model of T's car to effectuate the carjacking scenario that he had concocted. After hearing T's testimony that she refused the defendant's request for a photograph of her one month before, the jury watched the defendant show Paleski an old photograph of T and describe how her hair color had changed since the photo was taken to ensure that Paleski would recognize her. In addition to providing critical information, the defendant planned both the manner of killing and how to secure his alibi. To effectuate the murder, the defendant and Paleski created a structured payment scheme, whereby they agreed on a total price, a down payment amount, and upfront payment amount to be paid by the defendant to Paleski approximately ten hours later. After clarifying the logistics of making the first payment, the jury reasonably could have determined that the defendant made one final indication of his intent when he thanked Paleski before exiting the vehicle. There was more than ample evidence from which the jury could have determined beyond a reasonable doubt that the defendant intended to murder T and, by hiring a hit man, took a substantial step to achieve that goal.
The judgment of the Appellate Court is affirmed.
In this opinion ROBINSON, C.J., and PALMER, D'AURIA, MULLINS and VERTEFEUILLE, Js., concurred.
This court granted the defendant's petition for certification to appeal, limited to the following issue: "In concluding that there was sufficient evidence to sustain the defendant's conviction of attempted murder in violation of ... §§ 53a-54a and 53a-49 (a) (2), did the Appellate Court properly construe § 53a-49 (a) (2) in determining that the defendant's conduct constituted a 'substantial step in a course of conduct planned to culminate in his commission' of murder?" State v. Daniel B. ,
At trial, the parties stipulated that the defendant called Evans four times, at 3:27 p.m., 9:16 p.m., and 11:45 p.m. on June 9, 2011, and at 12:57 a.m. on June 10, 2011, and that Evans called the defendant two times, at 11:56 p.m. on June 9, 2011, and at 12:41 a.m. on June 10, 2011. The defendant also introduced into evidence a text log indicating eight text messages exchanged between the defendant and Evans from 11:25 p.m. on June 9, 2011, to 12:22 a.m. on June 10, 2011. At 11:40 p.m., Evans texted the defendant to tell him that he had found someone that would kill T. One minute later, at 11:41 p.m., the defendant responded and asked Evans when and where they were going to meet.
T testified that state's exhibit 4 was a photograph of her, the defendant, and their newborn daughter at the hospital following their daughter's birth.
Although we cite only to portions of the conversation between the defendant and Paleski, the entire transcript, state's exhibit 11, is jointly appended to the majority and dissenting opinions. We note that the best evidence was the video recording itself, which the jurors viewed, and, therefore, they were able to observe the defendant's conduct, demeanor, and tone and to make credibility findings.
The dissent agrees that the jury was properly instructed on the elements required to find a defendant guilty under the substantial step provision of § 53a-49 (a) (2), and the defendant has not challenged the trial court's charge to the jury. Our inquiry, therefore, is limited to whether, in the light most favorable to sustaining the verdict, there was sufficient evidence for a jury reasonably to find the defendant guilty under the substantial step provision.
In addition to claiming that the Appellate Court misread this court's precedent in concluding that the focus of the substantial step inquiry is on what has been done, the defendant claims that the Appellate Court misread its own case law. We disagree and observe that the Appellate Court properly followed this court's precedent in focusing its inquiry on what has been done. See, e.g., State v. Hanks ,
We agree that our law in this area has been less than clear, and we take this opportunity to clarify. We do not cast any doubts, however, on whether Green was correctly decided. As we have explained, the statement in Green was not central to the holding.
For similar reasons, the defendant's reliance on Small v. Commissioner of Correction ,
Because our decision in the present case clarifies that, contrary to the defendant's contention, this court's precedent that the determination of what constitutes a substantial step depends on what the actor has already done, we reject the defendant's claim, based on Small , that the Appellate Court's decision in the present case constitutes a retroactive application of the law that violates his due process rights.
A review of case law from other jurisdictions that have addressed the murder for hire scenario under the Model Penal Code's framework supports our conclusion. See, e.g., State v. Manchester ,
We agree with the dissent that those states-unlike Connecticut-that have not adopted the Model Penal Code require the defendant to have taken steps closer to the final act and, in some instances, require a dangerous proximity to success. See State v. Moreno-Hernandez , supra, 317 Conn. at 303-304,
We also agree with the dissent that the payment of money is not "a necessary prerequisite" for a jury to reasonably determine that a defendant committed a substantial step in a murder for hire scenario. Our disagreement with the dissent lies in the application of that principle to the facts of this case. Specifically, the dissent states that, notwithstanding the general rule that the payment of money is not a necessary prerequisite for a jury to find that a defendant took a substantial step in a murder for hire scenario, "the act of making payment in this case, on this record, became the only reliable indicator of the defendant's actual intentions during the crucial time period at issue." (Emphasis in original.) That conclusion, however, is not reconcilable with the applicable standard of review, which requires this court to view the evidence in the light most favorable to sustaining the verdict. State v. Moreno-Hernandez , supra, 317 Conn. at 298-99,
Additionally, we disagree that, viewed in the light most favorable to sustaining the verdict, the failure of the defendant to provide money instantly is significant. The time of day was relevant. The jury reasonably could have inferred that the defendant's decision not to withdraw money from a bank at 1:30 a.m. to pay the hit man who had just agreed to murder his wife was born of a desire to avoid being implicated in the murder, rather than an affirmative refusal "to take the one action that ... would have demonstrated his firm intention to commit the crime ...." In fact, he reassured the hit man that he had the money but did not want to get it until the morning because it would look suspicious. The defendant repeatedly states that that the purpose of finding a hit man was to prevent the police from tying him to the killing.
The defendant claims that the Appellate Court improperly focused on only one aspect of the substantial step analysis-namely, whether the focus is on what has been done-and that, had the Appellate Court properly addressed the intent requirement of the attempt statute, it would not have upheld the defendant's conviction. This argument lacks merit, as the Appellate Court analyzed all of the evidence to prove the offense, including the evidence that established intent, and so concluded that the defendant "had been contemplating this course of action for 'two years,' " and, when he met with Paleski, he "agreed to a price (to include a down payment and money for the murder weapon), provided Paleski with key information, namely, his wife's name, home and work address[es], her work schedule, a description of her vehicle, and suggested a day, location, and manner for the murder to ensure that the defendant would have an alibi. [In addition] the jury also saw the defendant twice confirm to Paleski that he wanted his wife murdered." State v. Daniel B. , supra,
The defendant separately claims that the Appellate Court failed to address how the defendant "act[ed] 'with the kind of mental state required for commission of' " murder, when considering the " 'circumstances as he believed them to be' " at the time, as required under § 53a-49 (a). The jury heard testimony from Evans, however, that the defendant believed he was meeting a hit man at the rest stop. Believing Paleski was a hit man, the defendant provided him with the information necessary to murder his wife and took steps to distance himself from being suspected of participating in the murder. Therefore, looking at the circumstances as the defendant believed them to be, T stood in life threatening danger.
Finally, the defendant claims that the Appellate Court failed to address how the defendant's actions were "strongly corroborative of [his] criminal purpose" under § 53a-49 (b). The Appellate Court concluded, however, that "it was reasonable for the jury to have concluded that a person, with the intent to commit murder who hires a hit man has demonstrated his dangerousness to society." State v. Daniel B. , supra,
The dissent points out that "[t]here is no evidence that the defendant conducted any surveillance [supposedly of T], obtained or furnished a weapon, [or] 'cased' the potential crime scene [which was T's place of employment]," and cites State v. Damato ,
The defendant also claims that, by focusing on what the actor has already done to commit the crime, we will extend attempt liability beyond what was intended by the legislature because the approach will blur the line between attempt and solicitation. We disagree. We have observed that "the inciting or urging, whether it be by a letter or word of mouth, is a mere solicitation ...." State v. Schleifer ,
The present case provides a clear example of the distinction between solicitation and attempt as articulated in Schleifer . The defendant first solicited Evans to find a hit man. Had Evans refused, there would necessarily be no act or endeavor that followed to constitute attempt. The state presented sufficient evidence, however, that the defendant had taken steps before contacting Evans, believed Evans found a hit man, and took steps to create a plan under which he would not be targeted as the killer. Unlike the dissent's contention that this was "mere conversation" amounting to "two solicitations," a jury reasonably could have found that the defendant's conduct that followed his initial contact with Evans constituted an attempt, as the defendant's outward acts-which included driving to the rest area, getting in Paleski's car, giving Paleski a piece of paper with information on it, and showing Paleski a photograph of his wife-evinced an intent to have his wife murdered.
Furthermore, we reject the defendant's argument that the police should have waited until the defendant gave Paleski some money the next morning before arresting him. Payment is not necessary for a jury to determine that a defendant's conduct constituted a substantial step in a murder for hire scenario. See, e.g., State v. Urcinoli ,
The defendant's additional claim that the Appellate Court's construction of § 53a-49 (a) (2) will result "in a lower threshold of conduct constituting a substantial step," because the defendant's conduct was "closer in nature to the acts necessary [for] conspiracy," which requires " 'a [less] demanding showing' " than proof of a substantial step merits little discussion. Our legislature set forth the crimes of conspiracy and attempt in different sections of our Penal Code, and the two sections remedy different conduct. Compare General Statutes § 53a-48 with General Statutes § 53a-49. In the present case, regardless of whether the defendant's conduct would satisfy the elements required for conspiracy under § 53a-48, a jury reasonably could have found that his conduct amounted to a substantial step under § 53a-49 (a) (2).