State v. Daniel B.

• Decision Date: 05 April 2016
• Docket Number: No. 36418.,36418.
• Citation: 137 A.3d 837,164 Conn.App. 318
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. DANIEL B.

164 Conn.App. 318

137 A.3d 837

STATE of Connecticut

v.DANIEL B.^*

No. 36418.

Appellate Court of Connecticut.

Argued Nov. 16, 2015.

Decided April 5, 2016.

A. Paul Spinella, with whom were Philip Russell and, on the brief, Caitlin Trow, Westport, 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).

DiPENTIMA, C.J., and BEACH and BISHOP, Js.

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 General 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. Approximately 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 approximately 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 “thinking 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 defendant, 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 Following 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 evidence to support his conviction. Specifically, he argues that the state failed to prove that his conduct constituted a substantial step in a course of conduct intended to culminate in a murder. Thus, he claims that an essential 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. During 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 defendant 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 defendant'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 defendant, “[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 meeting 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 constitutes 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 constitute 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 inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable 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 circumstantial 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 conclusions need not be proved beyond a reasonable doubt.... If it is reasonable and logical for the jury to conclude 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,...