text:
    Joan Nisbet v. Jose Olmeda et al.
    (4947)
    Spallone, Bieluch and Stoughton, Js.
    Argued December 15, 1987—
    decision released June 21, 1988

      M. Donald Cardwell, for the appellant (plaintiff).

      DeanM. Cordiano, with whom, on the brief, was Kirk D. Tavtigian, Jr., for the appellees (defendants).
   Bieluch, J.

The plaintiff filed a two count complaint against the defendants, Jose Olmeda and his employer, First Security Services Corporation, respectively, alleging, inter alia, that the defendants’ negligence during an attempted bank robbery caused the injuries she suffered. The defendants raised the special defense that the plaintiff’s own negligence was a substantial factor in causing her injuries.

A verdict of $20,000 was returned in the plaintiff’s favor; this was reduced to $10,000 as a result of the jury’s finding that the plaintiff was 50 percent contributorily negligent for her injuries. The plaintiff moved for an additur and filed a motion to set aside the verdict, both of which the court denied. The plaintiff has appealed from the judgment rendered on the verdict.

The plaintiff claims that the trial court erred (1) in charging the jury as to comparative negligence on the part of the plaintiff, (2) by submitting two plaintiff’s verdict forms to the jury, one for each count of the complaint, and instructing the jury to return the same total verdict amount for each count, (3) in excluding certain evidence relevant to the second count of the complaint which alleged negligence on the part of the defendant First Security Services Corporation, and (4) in refusing to grant the plaintiff’s motion for additur, and in denying the plaintiff’s motion to set aside the verdict as inadequate and as against the evidence on the issue of damages. We find no error.

The jury could reasonably have found the following facts from the evidence adduced at trial. On April 18, 1978, the plaintiff was employed by Society for Savings as a clerk typist in its main office at 31 Pratt Street, Hartford. While working in the new accounts department in the first floor lobby of the bank on that date, she was approached by one Steven Shields under the pretext of applying for a loan. When the plaintiff turned around to direct Shields to the proper department, he pulled what was later determined to be a starter pistol out from under his denim jacket. Shields shouted that he was robbing the bank, and, turning the plaintiff around in her chair, held the starter pistol alternately to her temple and neck. Shields had bloodshot eyes and smelled strongly of liquor, leading the plaintiff to believe that Shields was under the influence of alcohol. She also thought that Shields was extremely deranged and unstable and meant to harm her. The metallic starter pistol looked and felt like a real weapon as it was pressed against her head and neck.

Within minutes after Shields took the plaintiff hostage, Norman Lee, a floorman at the bank who had previously been a Hartford police officer for twenty-six years, calmly approached Shields and told him to put the gun away. Shields became agitated at that point and shouted to Lee that he wanted $100 bills immediately or he would “blow her head off.” Lee asked the nearby tellers for money; they were in shock and none responded. Shields then ordered Lee to get everyone out of the bank, after which Lee and another floorman began evacuating people from the area. In Lee’s opinion, Shields was deranged and would have carried out his threat to harm the plaintiff. Lee could not determine at that time if Shields’ gun was real or just a starter pistol but, in any event, he knew from experience that the barrel of a starter pistol could be bored out to accommodate and fire a .22 caliber shell.

The defendant Jose Olmeda, the only security guard on duty at the bank on the morning of April 18,1978, was then in the cafeteria on the second floor of the bank for his morning break and learned of the hostage situation approximately five mintues after it commenced. An employee told Olmeda there was a “problem downstairs,” but, despite Olmeda’s inquiry, did not explain the nature of the problem. Olmeda then left the cafeteria and headed downstairs to investigate the incident.

When Olmeda came to the landing of the stairway, he was unable to see the plaintiff or Shields because his view of the lobby was blocked by two large pillars. Olmeda asked some people who had gathered on the landing what the problem was, but no one answered or acknowledged his question. Olmeda then proceeded at a rapid pace toward the area where Shields still held the plaintiff at gunpoint.

Shields and the plaintiff were alone when Olmeda entered the lobby area. Olmeda “had a panicked look on his face” when he came upon the situation. When Shields saw Olmeda, he ordered him to stop walking, but then, using foul and abusive language, ordered him to walk toward Shields and the plaintiff. Olmeda came within six to ten feet of the two. Shields, shouting and still using foul language, told Olmeda he wanted his gun, a .38 caliber pistol which was in Olmeda’s holster. Olmeda tried to calm Shields, but Shields told him to “shut up and listen . . . or he [would] blow [the plaintiff’s] . . . brains.” Shields, who had become tense when Olmeda first approached, remained agitated and demanded that Olmeda step back. Olmeda did so, but Shields remained upset and continued swearing at Olmeda and demanding that he surrender his pistol.

Olmeda refused to relinquish his gun. The plaintiff, crying and upset, told Olmeda to do what Shields had demanded. Olmeda again refused. The plaintiff repeated her plea that Olmeda do what Shields wanted. After two or three further demands by Shields that he throw his gun to him, Olmeda finally decided to surrender the weapon. Olmeda made this decision because he could see that Shields would not cooperate, and because he believed Shields would kill the plaintiff if he did not give up his gun. Olmeda thought that Shields had a real gun, that he was irrational and that he intended to carry out his threat of harm to the plaintiff.

Olmeda was concerned that if he threw the gun to Shields, as was demanded of him, an accidental landing could discharge a bullet; he therefore placed his gun on the floor and slid it towards Shields. As Shields continued to shout at him, Olmeda slowly backed away and then left the lobby area. He subsequently assisted the police, who had been summoned by a silent alarm, in evacuating others who were still in the area.

During the confrontation with Shields, Olmeda did not run toward him, did not try to grapple with him, nor did he try to take the gun away. Olmeda removed his own gun from its holster only in response to Shields’ demands and the pleas of the plaintiff. Olmeda was not involved in the events which took place after he left the bank lobby.

Shields picked up the .38 caliber pistol Olmeda had given him, alternately placed it against the plaintiff’s head and neck, discarded the starter pistol, and started dragging the plaintiff around the bank lobby with his arm around her neck. Shields became extremely upset when he noticed a police officer near one of the entrances to the bank, and he screamed at him to leave. The officer did not leave, but tried to discuss Shields’ demands with him.

Shields then dragged the plaintiff into the tellers’ area and demanded that she fill a canvas sack with $100 bills. The plaintiff told Shields that the drawers containing these bills were locked, and Shields angrily accused her of not cooperating with him. Suddenly, without warning, Shields fired a shot from the right side of the plaintiffs head which stunned her and singed her hair. Pointing the gun now at the plaintiff’s throat, Shields dragged her to an exit from the bank and kicked open a door. Police officers who were standing nearby tried to calm Shields and reason with him, but he was very nervous and upset. Shields demanded that they provide him with money, a helicopter and a meeting with a bank officer.

The police subsequently informed Shields that his demands were refused. Shields became very angry and frustrated and repeatedly threatened that he would kill the plaintiff if his demands were not met. With his arm around her neck and the gun alternately pointed at her head and neck, Shields continued to threaten the plaintiff and dragged her to an exit by which approximately twelve police officers stood.

Shields, by this time, had become more nervous and agitated. He threatened once again that he would kill the plaintiff. The plaintiff heard Shields say “This is it.” He then cocked the pistol which he was holding to her head. The plaintiff chose this moment to attempt an escape.

As the plaintiff tried to escape, an officer grabbed Shields. As Shields struggled with the officer, Shields’ gun discharged and the bullet struck the back of the plaintiff’s left leg. As several police officers then shielded the plaintiff with their bodies, other officers were able to disarm Shields in an altercation, during which his pistol discharged several more bullets, none of which struck the plaintiff or any other person.

The plaintiff suffered a broken femur in her left leg, was hospitalized in traction for six weeks and had a pin placed below her left knee to align her leg which had been dislocated when the bullet shattered the thigh bone. The pin was later removed and the plaintiff was placed in a body cast. After the plaintiff was discharged from the hospital, she remained in the cast for three months. The plaintiff underwent six weeks of physical therapy after the cast was removed, used crutches for one month and then a cane for an undetermined time period. As a result of the injury, the plaintiffs left leg is approximately three quarters of an inch shorter than her right leg, and she has a 20 percent permanent partial disability of her left leg. The plaintiff was able to return to work in January, 1979. As of October, 1979, approximately one and one-half years after her injury, the plaintiff could perform 95 percent of her normal activities without any restriction. The injury was stable, there was little possibility of future problems, and the plaintiff had not sought medical treatment since October, 1979.

The bank had trained the plaintiff how to react to a robbery situation: to remain calm, to cooperate with demands, to refrain from doing anything to agitate the robber, and not to use any physical force to prevent a robbery. The plaintiff admitted that her action “could be described as aggressive in the situation [she] was in.” The opinion of the plaintiffs hostage crisis expert was that a hostage should not do anything to aggravate or agitate an assailant, and should not take aggressive action or try to be a hero.

The plaintiff has appealed from the judgment rendered on this verdict, following the denial of her motions for additur and to set aside the verdict. The plaintiff sets forth five claims of error, one of which was withdrawn at oral argument and will therefore not be considered.

I

The plaintiff’s first claim is that the trial court committed error with respect to its jury instruction on contributory negligence. The plaintiff maintains that the court’s charge was contrary to law in two respects. First, she argues that the court erroneously instructed the jury that the plaintiff was bound by the same duty of care as were the defendants, and, second, that the court did not adequately charge the jury as to the law of proximate causation as such law applied to the plaintiff’s alleged contributory negligence. We do not address this claim because the plaintiff failed to satisfy the requirements of Practice Book §§ 315 and 4185.

This court is not bound to consider a claim of error as to the giving of, or failure to give, a jury instruction unless the claimed error is covered by a written request to charge or an exception has been taken by the appellant immediately after the charge is delivered. Practice Book § 315. The exception taken “shall state distinctly the matter objected to and the ground of objection.” Id; State v. Williams, 202 Conn. 349, 362, 521 A.2d 150 (1987); State v. Hill, 201 Conn. 505, 512, 518 A.2d 388 (1986); State v. Avila, 13 Conn. App. 120, 124, 534 A.2d 913 (1987). In lieu of a request to charge, the plaintiff filed a written set of “Proposed Jury Instructions” consisting of nineteen pages and purporting to be a complete charge covering all relevant instructions, general and specific, pertaining to the issues before the court, in a ready-made format for delivery by the trial judge to the jury and in a text desired by the plaintiff. In no respect did this charge conform to or meet the requirements of Practice Book § 854.

The plaintiff did not take an exception to either of the claimed errors which “state[d] distinctly the matter objected to and the ground of objection.” Practice Book § 315. The plaintiff had an obligation to make her claims clearly known to the court so that it could decide whether to correct any claimed error in the jury charge. Bevins v. Brewer, 146 Conn. 10, 12-13, 147 A.2d 189 (1958); Smith v. Czescel, 12 Conn. App. 558, 562 n.2, 533 A.2d 223 (1987). “ ‘The purpose for this rule is to alert the trial court so that it can “cure any defects or ambiguities in the charge.” ’ ” Mihalek v. Cichowski, 4 Conn. App. 484, 486, 495 A.2d 721 (1985), quoting Giglio v. Hamilton Heights, Inc., 1 Conn. App. 165, 167, 469 A.2d 416 (1984); cf. Bauman & Garrity of Lakeville, Inc. v. George E. Emerson, Inc., 14 Conn. App. 261, 264 n.2, 540 A.2d 710 (1988).

This court “may in the interest of justice notice plain error not brought to the attention of the trial court.” Practice Book § 4185. Such review is, however, reserved for “ ‘ “truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” ’ ” Small v. South Norwalk Savings Bank, 205 Conn. 751, 759, 535 A.2d 1292 (1988); State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985); Smith v. Czescel, supra, 563.

“An important factor in determining whether to invoke the plain error doctrine is whether the claimed error ‘resulted] in an unreliable verdict or a miscarriage of justice.’ State v. Hinckley, supra, 88.” Smith v. Czescel, supra. Our review of the record and the charge as given leads to the conclusion that this is not such a case. The court’s instructions as to the plaintiff’s duty of care, as well as to the law of proximate causation, were not contrary to law. Despite the rather dramatic circumstances of the alleged negligence in this case, the court’s charge did not give rise to a “ ‘manifest injustice amounting to plain error under all the circumstances.’ ” Small v. South Norwalk Savings Bank, supra, 760; Valley v. Fazzina, 187 Conn. 423, 428, 446 A.2d 1068 (1982). “ ‘The doctrine of plain error should be invoked sparingly. To hold otherwise would undermine the requirement that claims of law be raised in the trial court in the first instance.’ Berchtold v. Maggi, 191 Conn. 266, 274, 464 A.2d 1 (1983).” Small v. South Norwalk Savings Bank, supra.

II

The plaintiff also claims that the court erred in its submission of the verdict forms to the jury. The court furnished two sets of verdict forms, a plaintiff’s verdict and an individualized defendant’s verdict for each count. The court instructed the jury that if it found for the plaintiff on both counts of her two count complaint, it should return the two plaintiff’s verdict forms with the same amount of damages on each. In other words, the court charged that the jury, if it found for the plaintiff on each of the two counts, was to return a verdict for the identical sum as to each count.

In the first count of her two count complaint, the plaintiff alleged that Olmeda’s negligence during the attempted robbery caused her injuries. In the second count, the plaintiff claimed that First Security Services Corporation was liable for Olmeda’s negligence, as his employer, as well as for its own negligence in his training. The trial court properly instructed the jury that First Security could be held liable to the plaintiff only if Olmeda were found negligent because there was no causative link, other than Olmeda’s actions, between First Security’s conduct and the plaintiff’s injuries.

Although the verdict forms submitted to the jury might be loosely interpreted to indicate that the total judgment awarded to the plaintiff was $10,000 on each count, totalling $20,000 in the aggregate, the court and counsel for both parties agreed in chambers (1) that they would submit two verdict forms to the jury solely because the plaintiff’s complaint contained two counts against different defendants, (2) that the jury could be instructed that the amount of the plaintiff’s verdict, if any, must be for the same amount on each count, and (3) that the amount of the plaintiff’s judgment upon the verdict would not be determined by adding the amounts of the verdict on each count, but would be specifically determined by the identical amounts of the verdict on each count. The court instructed the jury accordingly. In addition, after the two verdicts for the plaintiff were returned, the court and the parties’ counsel acknowledged and affirmed this agreement as to the verdict forms. It was then that plaintiff’s counsel for the first time sought the addition of the two identical amounts.

The plaintiffs agreement to submit the verdict forms to the jury as recited above precludes her from claiming on appeal that the submission of the forms was error. Crowder v. Zion Baptist Church, Inc., 143 Conn. 90, 97-98, 119 A.2d 736 (1956). A party may not claim as error that which she has requested. LaCroix v. LaCroix, 189 Conn. 685, 688, 457 A.2d 1076 (1983). A party is also bound by a concession made during trial by her attorney, the validity of which is not affected by the employment of new counsel on appeal. Housing Authority v. Pezenik, 137 Conn. 442, 448, 78 A.2d 546 (1951). In light of the agreement of plaintiff’s counsel, the trial court did not err by submitting two sets of verdict forms to the jury, one for each count, and in instructing the jury to return identical verdicts on each count.

Ill

The plaintiff also claims that the court erred in excluding certain evidence which she maintains was relevant to the second count of her complaint alleging negligence on the part of the defendant First Security Services Corporation. During trial, the plaintiff sought to elicit testimony from the defendant Jose Olmeda regarding the reason for the termination of his employment with the Hartford police department prior to his employment by the defendant First Security Services Corporation. This evidence was offered on the issue of whether First Security was negligent in its training of Olmeda. The defendant objected on the ground that the evidence would not be probative and would be unduly prejudicial. The court sustained the objection.

The court did not err in excluding the proffered evidence. The court held that the evidence was not relevant for the purpose for which it was offered. Although it would have been relevant to a claim of negligence in hiring, the plaintiff had not alleged that First Security was negligent in that regard. The plaintiff admitted that she had not made such an allegation, and attempted to amend her complaint then, but the trial court denied her request. The court also held that it would be unduly prejudicial to Olmeda if the evidence were admitted.

The trial court has broad discretion in determining the relevancy and materiality of evidence. Web Press Services Corporation v. New London Motors, Inc., 203 Conn. 342, 355, 525 A.2d 57 (1987). “ ‘A ruling on relevancy falls within the trial court’s broad discretionary powers and is subject to review by this court only to ensure that its discretion has not been abused.’ Filosi v. Hawkins, 1 Conn. App. 634, 640, 474 A.2d 1261 (1984), citing Hardisty v. Hardisty, 183 Conn. 253, 257, 439 A.2d 307 (1981).” Vazzano v. Slater, 6 Conn. App. 1, 6, 502 A.2d 440 (1986). A court also has discretion to exclude relevant evidence on the ground that it is more prejudicial than probative. Batick v. Seymour, 186 Conn. 632, 637, 443 A.2d 471 (1982).

The trial court did not abuse its discretion in excluding this evidence. The evidence would have been relevant to the issue of negligent hiring, but this claim was not alleged in the complaint. Futhermore, the plaintiff cannot meet her burden of establishing that the court erred in holding that any relevancy of the evidence was outweighed by its prejudicial effect, because the plaintiff failed to make an offer of proof as to the reason for the termination of Olmeda’s employment with the Hartford police; see, e.g., Pantlin & Chananie Development Corporation v. Hartford Cement & Building Supply Co., 196 Conn. 233, 239, 492 A.2d 159 (1985); and, as the plaintiff admits in her brief, it is not known whether any prejudice might have resulted to the defendant Olmeda if the evidence in question had been admitted.

IV

The plaintiff’s final claim is that the trial court erred in refusing to grant her motion for additur, and in denying her motion to set aside the verdict as inadequate and as against the evidence on the issue of damages. We disagree.

Section 52-228b of the General Statutes provides that upon written motion by a party, a verdict may be set aside respecting money damages. However, “[n]o such verdict may be set aside solely on the ground that the damages are inadequate until the parties have first been given an opportunity to accept an addition to the verdict of such amount as the court deems reasonable.” Id. The plaintiff, accordingly, filed a motion for additur, which was denied by the court. The plaintiff then filed a motion to set aside the verdict claiming that the award of damages, before diminution for comparative negligence, was inadequate and contrary to the evidence presented to the jury on the issue of damages. This motion was also denied.

The trial court did not abuse its discretion by refusing to set aside the verdict as inadequate and as against the evidence on the issue of damages. “The trial court’s refusal to set aside a jury verdict is entitled to great weight and every reasonable presumption should be given in favor of its correctness. Kalleher v. Orr, 183 Conn. 125, 127, 438 A.2d 843 (1981); Zarrelli v. Barnum Festival Society, Inc., 6 Conn. App. 322, 327, 505 A.2d 25, cert. denied, 200 Conn. 801, [509] A.2d [516] (1986). If, on the evidence, the jury could reasonably have decided as it did, we will not find error in the trial court’s acceptance of the verdict.” Royer v. Hertz Corporation, 9 Conn. App. 136, 140, 516 A.2d 1372 (1986). We must ascertain “ ‘whether the award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, prejudice, mistake or corruption.’ ” Briggs v. Becker, 101 Conn. 62, 66-67, 124 A. 826 (1924), quoted in Nichols v. Coppola Motors, Inc., 178 Conn. 335, 349, 422 A.2d 260 (1979); see also Taddei v. Schwarz, 12 Conn. App. 659, 660, 533 A.2d 892 (1987); Royer v. Hertz Corporation, supra.

The jury reasonably could have awarded the plaintiff $20,000 in damages for her injuries based on the evidence presented. The court did not abuse its discretion in refusing to set aside that verdict. See Zimny v. Cooper-Jarrett, Inc., 8 Conn. App. 407, 437, 513 A.2d 1235, cert. denied, 201 Conn. 811, 516 A.2d 887 (1986). “ ‘The concurrence of the judgments of the judge and the jury, who saw the witnesses and heard the testimony, is a powerful argument for sustaining the action of the trial court.’ Chanosky v. City Building Supply Co., 152 Conn. 642, 643, 211 A.2d 141 (1965).” Taddei v. Schwarz, supra, 661-62.

There is no error.

In this opinion the other judges concurred.

       The plaintiff has married since filing the action and is now known as Joan Nisbet Wentworth.

       Lee’s job as floorman for the bank was primarily a position involving customer service. He carried no weapon and was not a security guard.

       The plaintiff did not claim that the defendants were negligent because Olmeda was absent on a morning break when the incident began.

       As a result of his actions, Olmeda received a commendation from the Hartford police, as well as a letter of appreciation from the bank.

       The plaintiff subsequently received a letter of commendation from the Hartford police which noted that her aggressive action prevented injury to the advancing officers.

       Practice Book § 854 provides: “When there are several requests, they shall be in separate and numbered paragraphs, each containing a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the evidence to which the proposition would apply. Requests to charge should not exceed fifteen in number unless, for good cause shown, the court permits the filing of an additional number. If the request is granted, the judicial authority shall apply the proposition of law to the facts of the case.
      “A principle of law should be stated in but one request and in but one way. Requests attempting to state in different forms the same principle of law as applied to a single issue are improper.”

         The court’s instructions were, in relevant part, as follows: “Now, when you go into the jury room, you are going to have four verdict forms, two, a plaintiffs verdict form for count one, and a defendants’ verdict form for count one, and a plaintiffs verdict form for count two, and a plaintiff s—a defendants’ verdict form for count two. . . .
      “I just want to say that if you find for the plaintiff on each of those two counts, the total amount of damages figured should be the same and the percentage of negligence and the net amount, so that in both counts we want to have the same amount. So if—that is if you come in with a plaintiff’s verdict on two counts, which—but we also have defendant’s verdict forms, so you can do whatever you have—whatever you want with them. And, if you have any question—and again, I do not think you will—but the thing I want to make clear is if you find for the plaintiff, I want your amounts to be the same for the first count and the second count.”

       Even if plaintiff’s counsel had not agreed to the submission of two sets of verdict forms, the plaintiff failed to raise this alleged error in her motion to set aside the verdict. The verdict, therefore, would be reversible only if the court's action constituted plain error. Pietrorazio v. Santopietro, 185 Conn. 510, 515, 441 A.2d 163 (1981); Kemp v. Ellington Purchasing Corporation, 9 Conn. App. 400, 406, 519 A.2d 95 (1986). In light of the grounds of liability alleged in the two counts of the plaintiff’s complaint against the employee and employer, respectively, the court’s action was not erroneous and was a proper exercise of its broad discretion in matters concerning the conduct of the trial. See, e.g., Tomczuk v. Alvarez, 184 Conn. 182, 439 A.2d 935 (1981).


source: Caselaw Access Project

author: Spallone, J.

license: Public Domain

text:
    Ruwet-Sibley Equipment Corporation v. Robert Stebbins
    (4693)
    Spallone, O’Connell and Norcott, Js.
    Argued February 2—
    decision released June 21, 1988

      William C. Franklin, for the appellant (defendant). John L. Gerardo, for the appellee (plaintiff).
   Spallone, J.

The defendant appeals from the judgment rendered, after a trial to the court, in favor of the plaintiff. The appeal presents the following issues for our review: (1) whether there was sufficient evidence from which the court could find that the defendant owed the plaintiff $22,965.82 under a lease agreement; (2) whether the evidence presented was sufficient to support the court’s finding as to the amount of damages owed to the plaintiff for repairs made to the leased property; (3) whether the court erred in calculating the amount of damages due under the lease agreement; (4) whether the court erred in concluding that a supplemental agreement between the defendant and a third party did not constitute a novation of the original lease agreement; and (5) whether the court erred in its award of attorney’s fees to the plaintiff. We find error in part.

The trial court found the following facts. On or about June 30,1979, the plaintiff, Ruwet-Sibley Equipment Corporation, a distributor of motor vehicles, and the defendant, Robert Stebbins, doing business as F. L. Stebbins and Son, a proprietor of a refuse collection business, entered into a lease for a 1979 International Harvester truck equipped for refuse collection. The lease was for a period of sixty months and obligated the defendant to pay $1186.87 plus tax per month throughout the term of the lease.

At the end of April, 1980, the defendant sold his refuse collection business but retained the truck which he had leased from the plaintiff. Although the truck was stored on the plaintiff’s premises and was no longer being used, the defendant continued to make the monthly payments called for in the lease until August of 1981.

On or about August 5,1981, the defendant and Stanley Greenbaum, who was in the refuse collection business, met in the plaintiff’s office and signed an agreement wherein the defendant agreed to turn the truck over to Greenbaum who would thereafter make the payments due under the lease. Shortly after the agreement was made, however, Greenbaum defaulted and subsequently made no further payments under the lease. Greenbaum eventually filed for bankruptcy.

In June of 1983, the truck was returned to the premises of the plaintiff. At this time, the truck was inoperable and needed engine and body repair as well as a new set of tires. In November of 1984, the plaintiff corresponded with the defendant to inform him of the cost of the repairs made to the truck and seeking reimbursement for these expenses as well as satisfaction of the outstanding lease payments. When these amounts were not forthcoming, the plaintiff soon thereafter instituted an action, in two counts, alleging unpaid rental payments in the first count, and reimbursement for repairs and replacement tires for the truck in the second. The defendant answered and, by way of special defense, claimed that the supplemental agreement between the defendant and Greenbaum excused the defendant from any liability under the lease and established Greenbaum as the sole debtor.

In addition, the defendant claimed that the plaintiff owed him, by virtue of two unrelated transactions, a balance of $20,000 on a promissory note executed by the plaintiff in May of 1984, and also the amount of $25,000 which comprised the purchase price of a front-end loader sold and delivered to the plaintiff by the defendant. The defendant originally commenced a separate action against the plaintiff, seeking payment of these amounts. Shortly before trial, however, the defendant amended his answer and incorporated these allegations into the plaintiffs action as counterclaims, and withdrew his separate cause of action.

The case proceeded to trial on the plaintiffs two-count complaint, the defendant’s special defense, which the court construed as a claim of novation, and the defendant’s two counterclaims. After the conclusion of the trial, but before the court issued its memorandum of decision, the parties independently reached a settlement on the second of the defendant’s counterclaims regarding the purchase price of the front-end loader, and the defendant withdrew this count on August 14, 1985.

On November 13, 1985, the trial court released its decision, expressly finding that there was no novation of the original lease agreement and rendering judgment' for the plaintiff on both counts of its complaint. The court awarded the plaintiff the following damages: $22,965.82 for the arrearage under the lease, $6397.87 for engine repairs to the truck, $1466.16 for replacement tires, and $750 for body repairs to the truck. The court also awarded the plaintiff interest in the amount of $7960.53 and attorney’s fees of $10,000.

In addition, the court found for the defendant on the remaining count of its counterclaim and awarded the defendant $20,000, interest in the amount of $3364.38 and attorney’s fees of $5000. This appeal followed.

The defendant’s first two claims of error, “no matter how couched, presented or obfuscated, are merely attacks on the factual findings of the trial court. In essence, the defendant is asking us to retry these issues. We cannot. On appeal, the function of this court is limited solely to the determination of whether the decision of the trial court is clearly erroneous. Practice Book § 4061; Damora v. Christ-Janer, 184 Conn. 109, 113, 441 A.2d 61 (1981); Ram Roofing & Sheet Metal Co. v. A.B.C. Plumbing & Heating, Inc., 2 Conn. App. 54, 56, 475 A.2d 341 (1984). It is the province of the trial court to ‘pass upon the credibility of witnesses and the weight to be accorded the evidence.’ Edgewood Construction Co. v. West Haven Redevelopment Agency, 170 Conn. 271, 272, 365 A.2d 819 (1976); Essex Savings Bank v. Leeker, 2 Conn. App. 98, 102, 476 A.2d 1071 (1984). It is not within this court’s power to find facts or draw conclusions therefrom. As an appellate body, we review the factual findings of the trial court to ensure that they could have been legally, logically and reasonably found, thereby establishing that the trial court could reasonably conclude as it did. Appliances, Inc. v. Yost, 186 Conn. 673, 676-77, 443 A.2d 486 (1982); Hallmark of Farmington v. Roy, 1 Conn. App. 278, 280-81, 471 A.2d 651 (1984).” Ernst Steel Corporation v. Reliance Ins. Co., 13 Conn. App. 253, 257-58, 536 A.2d 969 (1988); see also Spinello v. State, 12 Conn. App. 449, 454, 531 A.2d 167 (1987). Our review of the record and transcripts discloses ample support for the court’s findings and conclusions that the lease agreement between the parties was valid and that the defendant was liable for the lease payments he had missed as well as for the costs of repairs to the truck.

The defendant’s third claim, regarding the calculation of arrears, similarly challenges a discretionary function of the trial court. We see no merit to this claim. In its capacity as the trier of fact, the court found the evidence presented by the plaintiff regarding the defendant’s default as persuasive. In its memorandum of decision, the court found that the defendant had not made payments for the last eighteen months of the lease and found that the monthly amount due during that period of time was $1275.89 (the base rental of $1186.87 plus tax of $89.02). “The computation of damages . . . became a mere mathematical procedure which was reasonably utilized by the trial court.” Ernst Steel Corporation v. Reliance Ins. Co., supra, 259-60.

The fourth claim raised by the defendant is that the trial court erred in finding that the agreement between the defendant and Greenbaum did not constitute a novation of the original lease. This claim also fails. A “novation” is a term used to refer to the introduction of a new party into a new contract. Riverside Coal Co. v. American Coal Co., 107 Conn. 40, 44, 139 A. 276 (1928). To succeed on its claim of novation, the defendant was required to prove that “the one in the position of creditor, in this case the [plaintiff], had accepted a new debtor, in this case [Greenbaum], in the place of the defendant to which [it] would look for fulfilment of the . . . obligation owing to [it]. Norwalk Tire & Rubber Co. v. Manufacturer’s Casualty Ins. Co., 109 Conn. 609, 614, 145 A. 44 [1929]. In addition, it requires proof that the plaintiffs had agreed to a discharge of the defendant's obligation to [it]. Windsor Cement Co. v. Thompson, 86 Conn. 511, 513, 86 A. 1 [1913]. These were questions of fact .... They have been resolved by the [trier of fact] against the defendant, and there was evidence before the [trier of fact] disputed but nevertheless sufficient if believed, to support that result.” Mace v. Conde Nast Publications, Inc., 155 Conn. 680, 688-89, 237 A.2d 360 (1967). We cannot say under the facts and circumstances in this case that the trial court’s failure to find a novation was clearly erroneous.

The defendant’s fifth and final claim can be bisected into the following issues: (1) whether the court erred in awarding the plaintiff $5000 attorney’s fees on the complaint; and (2) whether the court erred in awarding the plaintiff $5000 attorney’s fees for defense of the counterclaims. We find error in the latter award.

As to the award on the complaint, the defendant claims that the amount was excessive in light of expert testimony elicited at trial that a $3500 fee would be reasonable for the work done by the plaintiff’s attorney. The defendant’s argument belies the simple fact that the court was not bound to limit its award to this evidence. “[Cjourts may rely on their general knowledge of what has occurred at the proceedings before them to supply evidence in support of an award of attorney’s fees.” Bizzoco v. Chinitz, 193 Conn. 304, 310, 476 A.2d 572 (1984); see also Guaranty Bank & Trust v. Dowling, 4 Conn. App. 376, 386, 494 A.2d 1216 (1985). “The amount of attorney’s fees to be awarded rests in the sound discretion of the trial court and will not be disturbed on appeal unless the trial court has abused its discretion: ‘A court has few duties of a more delicate nature than that of fixing counsel fees. The degree of delicacy increases when the matter becomes one of review on appeal. The principle of law, which is easy to state but difficult at times to apply, is that only in case of a clear abuse of discretion by the trier may we interfere. Hayward v. Plant, 98 Conn. 374, 382, 119 A. 341 [1923] .... The trier is always in a more advantageous position to evaluate the services of counsel than are we.’ Hoenig v. Lubetkin, 137 Conn. 516, 525, 79 A.2d 278 (1951).” Link v. Shelton, 186 Conn. 623, 629-30, 443 A.2d 902 (1982); see also Crest Plumbing & Heating Co. v. DiLoreto, 12 Conn. App. 468, 480, 531 A.2d 177 (1987).

Even in keeping with these established precedents, however, we must find error in the trial court's award of attorney’s fees to the plaintiff for its defense of the defendant’s counterclaims. There is no basis either by statute, under the terms of the lease agreement, or in the case law to support the trial court’s award of $5000 to the plaintiff for its defense of the defendant’s claims, both of which were unrelated to the lease between the parties. To begin with, the trial court found for the defendant on its counterclaim and awarded the defendant $5000 in attorney’s fees. An award of counsel fees to the plaintiff for defending that same claim is incongruous and clearly erroneous.

Likewise, the defendant’s second count under its counterclaim was withdrawn upon a mutual agreement and a payment by the plaintiff. The award of counsel fees to the plaintiff for defending this claim is also without support under the law and is clearly erroneous.

In summary, the trial court properly performed its factfinding function and committed no abuse of discretion in finding that no novation occurred between the plaintiff and Greenbaum and in its award of damages. The trial court’s award of $5000 in counsel fees where the plaintiff prevailed on its claims under the lease was not clearly erroneous, but its award to the plaintiff of “$2500 each” for its defense of the defendant’s two unrelated claims, has no basis in law and was clearly in error.

There is error in part, the judgment is set aside as to the award of attorney’s fees to the plaintiff and the case is remanded to the trial court with direction to reduce the award of counsel fees to the plaintiff to $5000.

In this opinion the other judges concurred.

       The plaintiff sought the amount of $36,009.23, representing the sum of the following: $22,965.80 for lease payments past due, $6397.87 for engine repairs, $1466.16 for new tires, $750 for body repairs, and $4395.20 in interest at the statutory rate of 10 percent.

       These figures reflect the changes made in the trial court’s corrected memorandum of decision issued December 5, 1985.

       Although in its initial memorandum of decision, the trial court simply awarded a bulk $10,000 to the plaintiff for attorney’s fees, the court elucidated this award in its response to the defendant’s request for specific findings of fact. The court ruled therein that the plaintiff would receive “$5000 for prevailing on the claim, plus $2500 each for defending two other suits brought by the defendant and the counter-claim which was the same claim as one of the lawsuits and therefore unnecessary.”

       Neither did the court ignore this testimony. In its specific findings of fact, the court stated that its “awards were based upon reasonableness as testified to by Attorney Stevens, which the court felt was law, the four actual days of trial and the preparation of posttrial briefs.” (Emphasis added.)


author: Stoughton, J.

text:
    Dorothy M. Selinsky v. Marvin Morganbesser, Trustee, et al.
    (5605)
    Dupont, C. J., Borden and Stoughton, Js.
    Argued February 10—
    decision released June 21, 1988

      Charles Tomasino, for the appellant (plaintiff).

      BurtonS. Rosenberg, for the appellees (defendants).
   Stoughton, J.

The plaintiff appeals from a judgment rendered in favor of the defendants. The case was submitted to the trial court upon a stipulation between the parties that the court consider the pleadings, memoranda of law, all exhibits filed in support of motions, depositions and affidavits with exhibits, and all material in the court file submitted by the parties.

The plaintiff was the beneficiary under her late husband’s labor union welfare fund plan and brought this action to recover an accidental death benefit. The court found the following facts. On December 26, 1980, at approximately 10:30 a.m., the car which the decedent (Selinsky) was driving was involved in an accident with another automobile driven by John Airone while the cars were traveling on Route 139 in North Branford. The accident caused minimal damage to the rear bumper of Selinsky’s car. After the accident, the drivers and a passenger got out of the cars and waited for the police to arrive. While an officer was taking a statement from Airone, Selinsky collapsed. He died at 12:08 p.m., the result of a heart attack. The plaintiff received payment under the standard death benefit provisions of the plan, but her application for the accidental death benefit was denied by the trustees because the autopsy report showed that Selinsky’s death was due to heart disease and not to the motor vehicle accident. The accidental death provision under which the plaintiff makes her claim provides in part: “No payment shall be made for any loss resulting from or caused directly or indirectly, wholly or partly, by bodily or mental infirmity ... or disease or illness of any kind.” (Emphasis added.) The autopsy report indicated that Selinsky died of acute myocardial infarction. The report also revealed a healed myocardial infarction and severe atherosclerosis. All three of the plaintiffs expert witnesses testified that Selinsky’s preexisting hypertensive .cardiovascular disease played a part in his death. The court, citing testimony from the depositions of the three doctors quoted in the defendant’s brief, concluded that the experts’ testimony established Selinsky’s preexisting cardiovascular disease as a proximate cause of his death and that the plaintiff was not entitled to the accidental death benefit.

When it was discovered that, through administrative error, the depositions had not been brought to the attention of the trial court for consideration, the plaintiff moved to open the judgment and “remand” the entire file to a judge of the Superior Court. The judgment was opened and eventually referred by stipulation to the same judge who had rendered judgment before.

After having considered the depositions, the trial court incorporated its previous memorandum of decision and made it a part of a new memorandum of decision. The court found that Selinsky had a minor accident which triggered his preexisting heart condition and that he then died from a heart attack. It concluded that the accident alone did not cause the death, but that it triggered the preexisting heart condition which ultimately caused death, that the accident was not the sole proximate cause of death, and that the exclusionary language of the policy precluded the plaintiff from recovering under the double indemnity provisions of the policy. The trial court rendered judgment for the defendants, and this appeal from that judgment followed.

The plaintiff states the issues as (1) whether the accident or the disease was the proximate cause of death, (2) whether the cardiovascular disease was a condition of health or a cause of death, and (3) whether the plaintiff’s claim was in any way prejudiced by having the same trial judge who had rendered the earlier decision rehear the matter and render a second decision. The real issue in this case, however, as stated by the defendant, is whether the court erred in finding that the plaintiff is not entitled to an accidental death benefit. We find no error.

At the outset, we dispose of the plaintiff’s third issue. The record contains a stipulation that “judgment may be entered by the Honorable Albert W. Cretella, Jr.” Judge Cretella had rendered the first decision and he was concerned about considering the case again, as shown by a transcript contained in the court file. It is clear from that transcript that Judge Cretella questioned both counsel on the subject, that he told counsel he would read the depositions and decide whether they contained anything which would change his mind, and that neither counsel had any objection to having Judge Cretella decide the matter. There was never any claim before the trial court that this procedure prejudiced the plaintiff, and, in fact, counsel agreed to have the same judge consider the depositions and decide the matter. This was simply a consideration of evidence which the parties agreed should have been put before the court prior to the earlier decision and had nothing to do with the question of law decided by the court. We refuse to consider this claim which was never raised in the trial court. Yale Literary Magazine v. Yale University, 4 Conn. App. 592, 597, 496 A.2d 201 (1985), aff'd, 202 Conn. 672, 522 A.2d 818 (1987).

The essence of the plaintiffs remaining claims is that Selinsky’s hypertensive cardiovascular disease was a condition, but that the cause of death was the automobile accident. The death certificate listed the immediate cause of death as cardiac arrest due to or as a consequence of hypertensive cardiovascular disease, with cardiomegaly, after collapse following minor motor vehicle accident. The report of the medical examiner contains the following information: “According to the wife, while driving a vehicle with his son, a man went through a stop sign at an intersection hitting the Selinsky vehicle causing minor damage. Mr. Selinsky and his son got out of their motor vehicle and were apparently unharmed. An argument ensued with the driver of the other vehicle and Mr. Selinsky suddenly collapsed.” The trial court had the benefit of depositions taken from three doctors who had examined the available reports. The three doctors agreed that the accident triggered an acute myocardial infarction and a fatal arrhythmia. They also agreed that Selinsky’s preexisting cardiovascular disease was a contributing factor in the cause of death.

It is clear from the language of the plan that the plaintiff could not recover if Selinsky’s heart condition contributed in any way to his death. Put another way, in order for the plaintiff to prevail, she had to establish that the accident was the sole proximate cause of Selinsky’s death, and that the preexisting heart condition did not contribute in any way thereto.

What is the proximate cause of death in an action such as this is a question of fact to be determined by the trier from a consideration of the evidence. Rinaldi v. Prudential Ins. Co., 118 Conn. 419, 425, 172 A. 777 (1934). On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. Where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in the light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). We have examined the briefs of the parties and the entire file and, applying this standard, do not find that the decision of the trial court is clearly erroneous.

There is no error.

In this opinion the other judges concurred.


author: Norcott, J.

text:
    State of Connecticut v. James Boone
    (5703)
    (5840)
    Spallone, Daly and Norcott, Js.
    Argued March 10—
    decision released June 21, 1988

      Peter A. Gutermann, special public defender, for the appellant (defendant).

      JuliaDiCocco Dewey, assistant state’s attorney, with whom, on the brief, was Peter Markle, former assistant state’s attorney, for the appellee (state).
   Norcott, J.

After a trial to a jury, the defendant was found guilty of assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and was acquitted of the charge of robbery in the first degree in violation of General Statutes § 53a-134.

On appeal, the defendant claims that the trial court erred (1) in failing to instruct the jury on the defendant’s requested defense of duress, (2) in permitting the state to question the defendant and to comment upon the defendant’s pretrial silence, (3) in admitting evidence of a pretrial identification of the defendant, (4) in denying the defendant’s motions for judgment of acquittal, (5) in failing to declare a mistrial as a result of judicial misconduct at trial, (6) in its instructions to the jury, and (7) in finding a probation violation based upon a conviction which resulted from an erroneous and unfair trial. The defendant also claims that he was denied due process of law and a fair trial because of prosecutorial misconduct. We find no error.

From the evidence introduced at trial, the jury could reasonably have found the following facts. On November 27,1985, Ronald Rinaldi spent several hours drinking beer at a Waterbury bar. When he left the bar, Rinaldi went to his brother’s house in Waterbury where he consumed more beer. Rinaldi left his brother’s home sometime between 1:30 and 2:00 a.m. on Thursday, November 28.

As Rinaldi was driving home, two women who were standing on the side of the road near the intersection of Grove and Willow Streets in Waterbury signalled to him. Rinaldi pulled his car over, and after a brief conversation, he offered the women a beer. The women climbed into the car and directed Rinaldi to a parking lot on Grove Street. Once there, Rinaldi again offered the women a beer. One of the women responded by saying “It’s not your beer we want, its your money.” Both women were armed with knives. Rinaldi did not give them the money, and an altercation ensued.

In the midst of the altercation, one of the women opened the car door and shouted out, “Yo.” Immediately thereafter, the defendant, the woman’s fiance, appeared at Rinaldi’s car. The defendant entered the car, held a knife to Rinaldi’s throat and demanded his money. The defendant and his female companions then fled after attacking Rinaldi with their knives, wounding him in the process. The defendant testified that he took no money from Rinaldi and only showed a knife to frighten Rinaldi into leaving the neighborhood. After the parking lot encounter, the defendant and the two women went to one of the women’s nearby apartment.

After waiting in the apartment for a short time, the defendant and his fiancee drove the other woman to her apartment located a very short distance away. After dropping her off, the defendant and his fiancee once again encountered Rinaldi. After the incident in the Grove Street parking lot, Rinaldi had attempted to leave but could not start his car. Rinaldi armed himself with a pinchbar, a foot long metal device used for removing nails, and began walking down the street in search of medical help. Several witnesses observed Rinaldi staggering down Willow Street.

Upon seeing the defendant and his fiancee, Rinaldi announced to a bystander: “This is the bitch that just robbed me.” Rinaldi then approached the defendant’s car and punched his fiancee.

After Rinaldi struck the woman, the defendant, armed with a knife, got out of the car and approached Rinaldi. The defendant stabbed Rinaldi in the stomach causing him to fall. While Rinaldi was on the ground, the defendant stabbed him again in the chest. The defendant then fled the scene.

At approximately 4:25 a.m., Officer Stephan Patten of the Waterbury police department observed Rinaldi staggering down West Main Street while bleeding from the neck and chest areas. The officer helped Rinaldi to the police cruiser and took him to St. Mary’s Hospital where doctors performed six hours of emergency surgery. At the time of his arrival, the defendant had lost approximately 50 percent of his total blood supply. The doctors treated Rinaldi for stab wounds to the stomach and chest, a punctured liver and lung, a slit throat and multiple lacerations on his hands, thumbs and fingers.

I

The defendant first assigns error to the trial court’s refusal to instruct the jury on the defendant’s requested defense of duress. “When we are reviewing a trial court’s failure to charge as requested, ‘we must adopt the version of the facts most favorable to the defendant which the evidence would reasonably support.’ State v. Anonymous (1977-9), 34 Conn. Sup. 612, 616, 380 A.2d 7 (1977); see State v. Cassino, 188 Conn. 237, 239, 449 A.2d 154 (1982); State v. Arroyo, 181 Conn. 426, 430 A.2d 967 (1980).” State v. Fuller, 199 Conn. 273, 275, 506 A.2d 556 (1986).

The defendant produced the following facts at trial. In April, 1985, the defendant’s fiancee was raped, beaten and nearly killed in an incident for which the perpetrators were tried and convicted. Following that incident and the subsequent trial, both the defendant and his fiancee learned that their lives had been threatened. On the day before the incident with Rinaldi, a man had come to the defendant’s apartment and told both the defendant and his fiancee that they were to be killed. In addition to these threats, the defendant and his fiancee testified at trial that Rinaldi had both verbally and physically threatened them before the defendant used his knife to repel Rinaldi’s attack. The defendant contends that this evidence was enough to have the defense of duress submitted to the jury. The trial court found no evidence of coercion in the case and refused the defendant’s request for an instruction on duress. The trial court instructed the jury only on self-defense as a justification for the crime, pursuant to General Statutes § 53a-19.

“Duress is a legally recognized defense in this state; State v. Rosado, 178 Conn. 704, 708, 425 A.2d 108 (1979); and the legislature by statute has provided that the threatened imminent use of physical force upon a third person may constitute duress. See General Statutes § 53a-14.” State v. Fuller, supra, 277-78. “ ‘When a defendant admits the commission of the crime charged but seeks to excuse or justify its commission so that legal responsibility for the act is avoided, a theory of defense charge is appropriate.’ [State v. Rosado, supra], 707. If the defendant asserts a recognized legal defense and the evidence indicates the availability of that defense, such a charge is obligatory and the defendant is entitled, as a matter of law, to a theory of defense instruction. Id., 707-708.” State v. Fuller, supra, 278.

The state contends that the trial court was correct in refusing to give the jury instruction on duress because there was no evidence upon which any trier of fact could conclude that a third party’s threat of imminent death or serious physical injury forced the defendant to assault Rinaldi. We agree.

In the first place, the defendant’s contention that his concern about the alleged threats against himself and his fiancee constituted duress is without merit. “ ‘The rationale of the defense [of duress] is not that the defendant, faced with the unnerving threat of harm unless he does an act which violates the literal language of the criminal law, somehow loses his mental capacity to commit the crime in question . . . [but] rather it is that, even though he had done the act the crime requires, his conduct which violates the literal language of the criminal law is justified because he has thereby avoided a harm of greater magnitude.’ 1 W. LaFave & A. Scott, Substantive Criminal Law § 5.3a.” State v. Rouleau, 204 Conn. 240, 248-49, 528 A.2d 343 (1987). If we accept the defendant’s story, the alleged threat of death or imminent physical injury was the result of the April, 1985 incident. This danger was the “harm of greater magnitude” the defendant was ostensibly trying to avoid. None of the threats, however, concerning the April, 1985 incident involving the defendant’s fiancee had any remote connection to Rinaldi with whom the defendant’s fiancee and the other woman had initially gone to the Grove Street parking lot. The claim that Rinaldi’s actions during the Willow Street altercation and the April, 1985 incident were connected is specious.

With respect to the defendant’s claim that the victim himself coerced the assault against him, we note that one basic principle constitutes the crux of the defense of duress. “ ‘[I]f there was a reasonable, legal alternative to violating the law, “a chance both to refuse to do the criminal act and also to avoid the threatened harm,” the defense will fail. [W. LaFave & A. Scott, Criminal Law, p. 379].’ United States v. Bailey, 444 U.S. 394, 410, 100 S. Ct. 624, 62 L. Ed. 2d 575 (1980).” State v. Rouleau, supra. Our careful review of the record leads us to conclude that the defense of duress here must fail in every respect. Several witnesses at trial testified that Rinaldi unsuccessfully attempted to retreat once he was confronted by the defendant on Willow Street. The evidence also reasonably supports the conclusion that the defendant not only did not take every opportunity to avoid Rinaldi but, rather, pursued him after stabbing him in the stomach. General Statutes § 53a-14 specifically provides, in pertinent part, that the defense of duress “shall not be available to a person who intentionally or recklessly places himself in a situation in which it is probable that he will be subjected to duress.”

General Statutes § 53a-14 clearly requires that to be afforded the benefit of the defense of duress, the defendant must have engaged in the proscribed conduct because he was coerced. There was no evidence of such coercion produced at trial. Where the defense proposed is legally inadequate to support the requested instruction, the instruction should not be given. See State v. Casey, 201 Conn. 174, 180, 513 A.2d 1183 (1986); see also State v. Woolfolk, 8 Conn. App. 667, 672, 517 A.2d 252 (1986), cert. denied, 202 Conn. 802, 519 A.2d 1207 (1987). The trial court correctly concluded that the proper jury instruction regarding justification was that of self-defense and not duress.

II

The defendant next claims that the trial court erred in permitting the state to cross-examine the defendant concerning his pretrial silence and to comment upon that silence during closing argument. We disagree.

The following facts are relevant to this claim of error. At trial, the defendant asserted a claim of self-defense, arguing that the victim, Rinaldi, initiated an attack which the defendant resisted. As part of his testimony, the defendant claimed that prior to the stabbing, he warned Rinaldi that he would call the police should Rinaldi resort to violence. During Rinaldi’s alleged attack, the defendant testified that he was struck with a crowbar.

The defendant conceded on cross-examination, however, that he never called the police for assistance, never reported Rinaldi’s alleged assault, and never sought medical treatment for his alleged injuries. The defendant further conceded that he never discussed the incident with anyone. He also testified that when the police did respond, he left the scene. Finally, a witness for the defendant, Dwight Penperton, testified that, during a conversation with the defendant at the New Haven correctional facility, the defendant flatly denied assaulting Rinaldi.

After the presentation of evidence, the prosecutor made the following comments as a part of his closing argument: “Mr. Rinaldi was inconsistent at times in different statements. At least he spoke to the police. At least he spoke to them and even gave them a statement, more than anyone else did for the defense in this case .... [The defendant] never gave a statement. He can change his story, and I can’t show it’s inconsistent except for what he told Mr. Penperton . . . . ”

The defendant contends that these questions and remarks constituted impermissible comment on his failure to speak to the police prior to trial thereby constituting an infringement on his fundamental right to silence as guaranteed by the fifth and fourteenth amendments to the United States constitution.

It is “fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial. Doyle v. Ohio, 426 U.S. 610, 617-18, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976).” State v. Morrill, 197 Conn. 507, 536, 498 A.2d 76 (1985). Prosecutorial comment on the defendant’s prearrest silence, however, can be used for purposes of impeachment and does not create a constitutional violation. Jenkins v. Anderson, 447 U.S. 231, 235, 100 S. Ct. 2124, 65 L. Ed. 2d 2486 (1980); State v. Leecan, 198 Conn. 517, 521, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986). Insofar as the state, in the present case, has used the defendant’s prearrest silence to impeach the credibility of his self-defense claim, there is no error.

Our inquiry does not end here, however, because the prosecutorial comment subject to our review involves both prearrest and postarrest silence. In the past, we have held that a prosecutor’s argument to the jury that the defendant had an obligation to inform the police of certain inaccuracies in his postarrest statement constituted error. State v. Apostle, 8 Conn. App. 216, 226, 512 A.2d 947 (1986). In this case, we find that the prosecutor’s question to the defendant, “You never told anyone what happened until today in court?” and his comment to the jury during closing argument that “[the defendant] never gave a statement” were improper. We must now determine “whether it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict without the impermissible questioning and impermissible comment. See State v. Morrill, supra, 539.” State v. Apostle, supra, 227.

. Under limited circumstances, the state’s use of a defendant’s postarrest silence does not constitute reversible error. Such is the case with the present appeal. We first note that the state’s reference to the defendant’s postarrest silence was limited. The principal use of the defendant’s pretrial silence was for impeachment purposes. This was the attack that struck at the heart of the defendant’s self-defense claim. In comparison, we cannot say that the prosecutor’s isolated reference to the postarrest silence, when viewed in the context of the entire proceeding, denied the defendant any constitutional right attendant to a fair trial.

It is clear from the record that, notwithstanding the reference to the defendant’s postarrest silence, there was overwhelming evidence from which the jury could have reasonably found the defendant guilty of assault in the first degree. In addition, the jury obviously concluded that the defendant’s exculpatory story was frivolous and the evidence produced at trial wholly supports that conclusion. Although a finding of harmless error in a situation where the state improperly comments upon the defendant’s postarrest silence is the exception to the rule, we find that the present case fits the exception rather than the rule. State v. Morrill, supra, 539. From our careful review of this record, we conclude that, absent this impermissible comment, it is clear beyond a reasonable doubt that the jury would have returned a verdict of guilty.

Ill

The defendant’s next claim is that the trial court erred in admitting evidence of a pretrial identification of the defendant. Prior to the trial, the defendant unsuccessfully moved to suppress a pretrial identification of the defendant made by Janice Jones, a witness to the assault. Although identity was not an issue at trial, the defendant urges that we find that the procedure used by the police was so impermissibly suggestive that it resulted in an unreliable out-of-court identification which tainted any subsequent in-court identification. We disagree.

The following facts are relevant to our discussion of this claim. Janice Jones, who knew both the defendant and his fiancee, was arrested on an unrelated charge in December of 1985. While in custody, she voluntarily told the police that the defendant was the person who stabbed Rinaldi during the November 28, 1985 incident. The police then compiled a photographic array. The array consisted of a folder containing nine photos, including a picture of the assailant whom Jones had previously identified as “Boone.” Jones was then told to “pick out Boone”; the police never suggested that Jones pick out a particular photograph. Thereafter, Jones selected a photograph of the defendant and later made an in-court identification of the defendant at trial.

The standard for review of a challenge to an identification procedure has been noted recently by our Supreme Court: “We have recently reiterated that ‘ “[i]n determining whether identification procedures violate a defendant’s due process rights, the required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive, and second, if it is found to be so, it must be determined whether the identification was nevertheless reliable based on an examination of the ‘totality of the circumstances.’ ” ’ State v. Ramsunder, 204 Conn. 4, 10, 526 A.2d 1311 (1987), quoting State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980) ....““ “A defendant who moves to suppress identification evidence bears the initial burden of proving that the identification resulted from an unconstitutional procedure.” ’. . .” ’ State v. Cubano, [203 Conn. 81, 93, 523 A.2d 495 (1987)] .... To prevail in his claim ‘the defendant must demonstrate that the trial court erred in both of its determinations regarding “suggestiveness” and “reliability” of identifications in the totality of the circumstances.’ (Emphasis in original.) State v. Hinton, [196 Conn. 289, 292-93, 493 A.2d 836 (1985)].” (Citations omitted.) State v. Mayette, 204 Conn. 571, 581, 529 A.2d 673 (1987).

Under the facts of this case, we conclude that the defendant has failed to show that the challenged procedure “give[s] rise to a very substantial likelihood of irreparable misidentification.” State v. Fullwood, 193 Conn. 238, 243-44, 476 A.2d 550 (1984). The presentation to a witness of a photographic array, including a photo of the defendant, does not constitute an impermissibly suggestive procedure “ ‘in the absence of any unfairness or other impropriety in the conduct of the exhibit.’ ” State v. Boscarino, 204 Conn. 714, 726, 529 A.2d 1260 (1987), quoting State v. Hafner, 168 Conn. 230, 237, 362 A.2d 925, cert denied, 423 U.S. 851, 96 S. Ct. 95, 46 L. Ed. 2d 74 (1975); see State v. Pollitt, 205 Conn. 132, 162, 531 A.2d 125 (1987). Based on the totality of the circumstances, the pretrial identification procedures were neither unnecessarily suggestive nor unreliable. See State v. Ramsundar, supra, 10.

IV

The next claim of error is based on the trial court’s denial of the defendant’s motion for judgment of acquittal. The defendant contends that the state failed to introduce sufficient evidence (1) to prove that the defendant had the requisite intent to sustain the assault conviction, and (2) to disprove the defendant’s defenses beyond a reasonable doubt. We disagree.

“In reviewing allegations of insufficient evidence, we will not evaluate the evidence nor will we resolve questions of the credibility of the witnesses. State v. McCarthy, 197 Conn. 166, 179, 496 A.2d 190 (1985). We review the evidence in the light most favorable to sustaining the jury’s verdict. State v. Dickson, 10 Conn. App. 462, 464, 523 A.2d 935 (1987).” State v. Hendrickson, 12 Conn. App. 662, 670, 533 A.2d 894 (1987); see also State v. Artis, 198 Conn. 617, 621, 503 A.2d 1181 (1986).

General Statutes § 53a-59 (a) (1) requires that the state prove that the defendant, (1) with intent to cause physical injury, (2) to another person, (3) caused such injury to such person, (4) by means of a deadly weapon or dangerous instrument. With respect to these statutory elements of the crime of assault in the first degree, the defendant argues that the state did not prove the element of intent.

Intent is a question of fact for the jury and may be proven by circumstantial evidence and inferences. State v. Castillo, 11 Conn. App. 621, 626, 528 A.2d 860, cert. denied, 205 Conn. 804, 531 A.2d 938 (1987). From the evidence produced at trial, the jury could have reasonably found that the defendant was the aggressor who, armed with a knife, intentionally stabbed Rinaldi and caused him serious physical injury rather than the innocent victim the defendant claimed to be at trial.

Furthermore, we find that the defendant’s argument that the state failed to disprove his defenses beyond a reasonable doubt to be without merit. Whether there was any basis for these defenses “depends in the first instance on the credibility of the defendant and of his witnesses.” State v. Gooch, 186 Conn. 17, 26, 438 A.2d 867 (1982). The jury found the defendant guilty of assault in the first degree; it is apparent from this verdict that the jury found no factual basis for the defendant’s defenses. Absent any factual basis for justification, the evidence against the defendant was overwhelming. The trial court properly denied the motion for judgment of acquittal.

V

The next assignment of error involves the trial court’s denial of the defendant’s motion for mistrial. The defendant contends that certain judicial misconduct and bias denied him his constitutional right to a fair trial. The allegations of judicial misconduct and bias take three forms: (1) laughter heard from the bench on four occasions during cross-examination by defense counsel; (2) the questioning of a state witness from the bench; and (3) allowing the prosecutor to ask leading questions on direct examination.

We find that the trial court’s denial of the defendant’s motion for mistrial did not constitute an abuse of discretion. “ ‘The general rule in this state is that a mistrial should be granted only when it is apparent to the court that some occurrence during the trial has so prejudiced a party that he can no longer receive a fair trial . . . . ’ State v. Fleming, 198 Conn. 255, 264, 502 A.2d 886 (1986).” State v. Elliott, 8 Conn. App. 566, 576, 513 A.2d 1285 (1986). Our Supreme Court has noted that “the judge is more than a mere moderator of the proceedings. It is his responsibility to have the trial conducted in a manner which approaches an ‘atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding.’ Glasser v. United States, 315 U.S. 60, 82, 62 S. Ct. 457, 86 L. Ed. 680 [1942]; Quercia v. United States, 289 U.S. 466, 469, 53 S. Ct. 698, 77 L. Ed. 1321 [1933].” State v. Echols, 170 Conn. 11, 13, 364 A.2d 225 (1975).

Our review of the transcript reveals that the defendant twice brought the matter of the trial court’s laughter or “snickering” to the court’s attention. On both occasions, the court neither denied nor acknowledged the allegations that it had engaged in such conduct but asserted that the court had no bias against the defendant. The transcript is silent with respect to any laughter or snickering by the trial court. It does reveal an ongoing tension between the trial court and the defense counsel throughout the trial. On the basis of our careful review of the transcript, however, we cannot conclude that the defendant has shown that the trial court’s demeanor or conduct denied him a fair trial. “The defendant is entitled to a new trial . . . only where he can show that prejudice resulted from the court’s actions. See State v. Echols, supra, 16.” State v. Gordon, 197 Conn. 413, 425, 504 A.2d 1020 (1985).

The defendant also contends that the trial court demonstrated judicial bias by questioning a state’s witness and by permitting the prosecutor to ask leading questions.

The defendant’s failure to raise any objection to the trial court’s inquiry of Detective Stephan Patten normally would preclude appellate review. Practice Book §§ 288, 4185. We will, however, invoke our authority to provide review under the Evans bypass rule because a claim of judicial misconduct is involved. See State v. Day, 12 Conn. App. 129, 135, 529 A.2d 1333 (1987).

After direct and cross-examination of Patten, the trial court inquired of the witness: “In terms of the high prostitution area, what hours do [prostitutes] normally work?” This question arose after the following line of questioning by defense counsel regarding the area of the assault: “[Defense Counsel]: Now, sir, you have been in that area quite a while. You have been on the beat in that area at least nine years, is that not correct?

“Det. Patten: Yes, I have.

“Q: Is that not a high prostitution area?

“A: Yes, it is.”

The trial court allowed this line of questioning over objection by the state. The defendant now contends on appeal that the trial court’s question was prejudicial to him because it allowed the jury to infer that the judge agreed with the state's theory that the victim was “set up” for a robbery. We disagree.

It is clear that a trial judge may question witnesses “with circumspection” to clarify the testimony of the witness; see State v. Mack, 197 Conn. 629, 641, 500 A.2d 1303 (1985); State v. Day, supra, 129; and “to bring the facts out more clearly.” Goggins v. Fawcett, 145 Conn. 709, 713, 147 A.2d 187 (1958). There is absolutely no basis, from our review, to conclude that the court took a position of advocacy or otherwise abused its discretion by posing the subject question.

Finally, the defendant claims that the trial court demonstrated judicial bias by allowing the prosecutor to ask leading questions during the direct examination of the victim, Rinaldi. We find this claim to be wholly without merit.

While it is true that the prosecutor often attempted to lead this witness, it is equally true that the transcript is replete with judicial warnings and rulings that curbed the attempts to lead the witness. We are convinced from our review of this transcript that the trial court maintained an atmosphere of fundamental fairness and that the court’s rulings exhibited no judicial bias toward any party. The trial court did not err in denying the defendant’s motion for mistrial.

VI

The defendant’s next claim of error is that he was denied a fair trial because of prosecutorial misconduct. The defendant claims that the prosecutor’s final argument was improper in two ways. First, he claims that the prosecutor impermissibly commented upon the defendant’s pretrial silence, and, second, that the prosecutor asserted his personal belief in the lack of veracity of certain witnesses. The defendant claims that the issue is reviewable, even though not raised at trial, because it involves a fundamental due process right to a fair trial. See State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). We agree and will review under the Evans bypass rule because the record supports the defendant’s claim that a fundamental constitutional right is involved; the duty of the prosecutor to avoid reprehensible conduct which would deny the defendant a fair trial. See State v. Binet, 192 Conn. 618, 629, 473 A.2d 1200 (1984).

With respect to the first of the defendant’s claims of prosecutorial misconduct, we note that we have already dealt with the claim of improper reference to the defendant’s pretrial silence in our discussion of the defendant’s second claim of error. Because that discussion is dispositive of the first part of the present claim, we need not repeat it. We next turn to the second part of the defendant’s claim which involves the prosecutor’s alleged challenge to the veracity of certain witnesses.

“When a verdict is challenged on the basis of the prosecutor’s allegedly prejudicial remarks, the defendant bears the burden of proving the remarks prejudicial in light of the whole trial. 'The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct.’ State v. Binet, 192 Conn. 618, 628, 473 A.2d 1200 (1984).” State v. Floyd, 10 Conn. App. 361, 364, 523 A.2d 1323, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987). It is the prosecutor’s duty to see that justice is done and he must refrain from diverting the jury’s attention from their conclusions on the evidence actually presented at trial. State v. Couture, 194 Conn. 530, 564, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985).

At the close of the evidence in this disharmonious trial, both counsel launched into zealous closing arguments. The prosecutor told the jury: “The defendant, I would submit to you, never told the truth in this courtroom or outside of this courtroom,” and “[Defense Counsel’s] job is difficult because he is putting people on the stand who are not telling the truth.” In regard to another defense witness, the prosecutor commented: “I would not trust Mr. Holmes. I think all of you know what kind of person he was. And his testimony, I would submit to you, is not believable because of the kind of person he is.”

Stating a personal belief in the lack of the credibility of a witness is improper and beyond the parameters of legitimate argument. State v. Williams, 204 Conn. 523, 529 A.2d 653 (1987); State v. Floyd, supra, 365. We recognize that “ ‘the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument.’ ” State v. Magnotti, 198 Conn. 209, 220, 502 A.2d 404 (1985), quoting State v. Laudano, 74 Conn. 638, 646, 51 A. 860 (1902). In the present case, we find that the prosecutor’s remarks were improper, but our inquiry does not end here. We must determine whether, in the context of the entire trial, the impropriety was so egregious as to deny the defendant a fair trial. The defendant bears the burden of demonstrating that, in light of the entire proceeding, the remarks denied him a fair trial. State v. Williams, supra; see also State v. Doehrer, 200 Conn. 642, 654, 513 A.2d 58 (1986).

We first note that the prosecutor was not alone in challenging the credibility of witnesses. The defendant’s counsel, during closing arguments, denounced certain state witnesses as liars on no less than three occasions. In reviewing the prejudicial effect of the prosecutor’s comments, we must examine the likely impact of the challenged remarks, the frequency of the remarks, and the weight of all trial evidence. State v. Couture, supra, 562-63. Matched against these standards, we conclude that while the remarks were improper and “may have been prejudicial in isolation, the defendant has not proved that [they] denied him the right to a fair trial.” State v. Floyd, supra, 365-66.

Furthermore, the trial court cautioned the jury that the comments of the lawyers were not evidence and that the jurors were “not [to] consider them in deciding what the facts are.” “Defense counsel did not object or except to this charge or claim that it was inadequate to offset the prosecutor’s remarks. We conclude that the prosecutor’s remarks were not so prejudicial as to render the curative instruction ineffective. See State v. Couture, supra, 562.” State v. Floyd, supra, 366.

VII

The next claim of error is that the trial court’s instructions to the jury violated the defendant’s right to a fair trial. The defendant makes a wholesale attack on the jury instructions, claiming that the court erred by not instructing the jury as the defendant requested with respect to the following: (1) the defense of duress; (2) the burden of proof; (3) the court’s neutral role at trial; (4) the weight to be given each witness’ testimony; (5) the jury’s evaluation of the defendant’s testimony; (6) the defense of a third party as a part of the state’s burden of proof; and (7) the definition of the use of deadly force.

The defendant seeks review under the Evans bypass rule because he neither objected to nor excepted to those allegedly erroneous sections of the charge as given. Pursuant to our recently clarified formulation for Evans review, we first determine whether the defendant’s claim is reviewable by asking two questions: (1) does the defendant raise an issue which, by its terms, implicates a fundamental constitutional right; and (2) does a limited review of the record show that the defendant’s claim is truly of constitutional proportions and not simply characterized as such by the defendant? State v. Foshay, 12 Conn. App. 1, 23, 530 A.2d 611, cert. granted, 205 Conn. 813, 532 A.2d 587 (1987); State v. Newton, 8 Conn. App. 528, 531, 523 A.2d 1261 (1986).

Although the defendant wraps this claim in the language of due process, “[o]ur limited review of the record discloses . . . that the defendant’s claim is not truly of constitutional proportions, but is simply characterized as such by him.” State v. Foshay, supra, 23. Earlier in this opinion, we have dealt with the defendant’s unsuccessful claim that he was denied a fair trial by the court’s refusal to give a jury instruction on the defense of duress. We need not repeat that discussion here. The only other claim of substance is that regarding the court’s definition of the use of deadly force. While it is arguable that the court improperly limited the jury’s consideration of deadly force in one of its statements, it is abundantly clear from the record that the concept was more than adequately defined and clarified during the remainder of the charge. Viewing the charge as a whole, we do not conclude that it is reasonably possible that the jury was misled. State v. Jones, 193 Conn. 70, 90, 475 A.2d 1087 (1984).

With respect to the other claims of instructional error, a refusal to charge in the exact words of a request is not error if the requested charge is given in substance. State v. Shindell, 195 Conn. 128, 143, 486 A.2d 637 (1985). The failure of the court to charge as requested does not amount to a claim of constitutional proportions. The defendant has failed to satisfy the requirements for full Evans review because his constitutional claim is not adequately supported by the record. State v. Huff, 10 Conn. App. 330, 333-34, 523 A.2d 906 (1987).

VIII

The defendant’s final claim is that the trial court erred in finding a probation violation based on the conviction for assault in the first degree. On October 3, 1986, the defendant was sentenced for the first degree assault of Ronald Rinaldi. The court sentenced the defendant to a sentence of eighteen years. On January 7,1987, the court held a probation revocation hearing and found that the defendant had violated his 1984 probation under General Statutes § 53a-32. The court revoked the probation and sentenced the defendant to a term of four years to run consecutively to the defendant’s eighteen year term. The defendant contends that we must set aside the probation violation because the underlying assault conviction resulted from an erroneous and unfair trial. In addition, the defendant claims that the sentence for the probation violation was an illegal sentence. The defendant’s claims are wholly without merit. “We recognize that a trial court has very broad discretion in imposing any sentence within the statutory limits; see State v. Collette, 199 Conn. 308, 320, 507 A.2d 99 (1986); State v. Huey, 199 Conn. 121, 126, 505 A.2d 1242 (1986) . . . .” State v. Elliott, 8 Conn. App. 566, 575, 513 A.2d 1285 (1986). All sentences were properly imposed and in accordance with statutory requirements, and, in addition, we have concluded that the defendant received a fundamentally fair trial.

There is no error.

In this opinion the other judges concurred.

       In addition to his defense of duress, the defendant asserted a self-defense claim arguing that the victim, Ronald Rinaldi, initiated a violent assault which the defendant justifiably resisted. General Statutes § 53a-19 provides: “use of PHYSICAL FORCE in defense of person, (a) Except as provided in subsections (b) and (c) a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.
      “(b) Notwithstanding the provisions of subsection (a), a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform.
      “(c) Notwithstanding the provisions of subsection (a), a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law.”

       General Statutes § 53a-14 provides: “duress as defense. In any prosecution for an offense, it shall be a defense that the defendant engaged in the proscribed conduct because he was coerced by the use or threatened imminent use of physical force upon him or a third person, which force or threatened force a person of reasonable firmness in his situation would have been unable to resist. The defense of duress as defined in this section shall not be available to a person who intentionally or recklessly places himself in a situation in which it is probable that he will be subjected to duress.”

       The cross-examination of the defendant included the following exchange:
      “Q: You said the police were coming.
      “A: That was after I was walking away.
      “Q: And, you didn’t go up to the police and say, ‘Help me, this guy just hit me’?
      “A: No.
      “Q: You walked away?
      “A: Yes.
      “Q: So, Mr. Boone, as it turns out, you stabbed Mr. Rinaldi, not once but twice, correct?
      “A: Correct.
      “Q: The chest and the stomach, correct?
      “A: Correct.
      “Q: You never had to go to the hospital for anything that was done to you, supposedly, correct?
      “A: I could have went.
      “Q: But, you didn’t go, right?
      “A: No.
      “Q: You didn’t go up to the police and show them your injuries, did you? “A: No.
      “Q: And, you never told anyone what happened until today in court? “A: That’s correct.
      “Q: Other than your attorney, correct?
      “A: That’s correct.”

       The defendant makes no claim that the prosecutorial comment violated any provision of the state constitution and, accordingly, our review is limited to the federal constitution standards.

       During the cross-examination of Rinaldi, the following exchange took place:
      “[Defense Counsel]: Maybe the court will indulge me with the explanation of what the snickering is for. I apologize. I heard it. I assume everybody else did, too.
      “The Court: I’ll disregard that comment at this time.”
      Again, during the defense counsel’s motion for a mistrial, the counsel and the court addressed each other as follows:
      “[Defense Counsel]: I take umbrage with the fact that my client is not being given his right to a fair trial here. I don’t like snickering ....
      “The Court: In terms of a snicker that occasioned your question of this court, perhaps if you read the record, after hearing the part of the testimony that was introduced through the state’s witness on direct and then listen to your questions on the voir dire and on the photograph and the difference between the voir dire on the two photographs, perhaps the record would even note it, but I don’t think that anything that this—this court certainly has no opinion whatsoever at this point about this case, and it has protected your client’s interests in every conceivable way. If you look at what the record discloses in terms of the court’s ruling on the various motions that you filed this morning, I can hardly see how you could have a complaint .... I don’t think there is anything in the record here that shows any bias on the court’s part. And the court certainly doesn’t have any .... ”

       In the midst of its instruction on the use of deadly force, the trial court stated that “[t]he degree of force used must be reasonable, but deadly force may not be used to counter perceived deadly force.”

       The remainder of the court’s charge on the use of deadly force reads as follows: “The use of deadly force is reasonable only to resist a threat of death or serious physical harm.
      “A defendant claiming a justification of self-defense is permitted to use deadly force in two broad circumstances. He may justifiably use deadly force only if he reasonably believed that the other person was, one, using or about to use deadly physical force, or, two, inflicting or about to inflict great bodily harm.
      “The law does not encourage the use of deadly force, and in most circumstances, a person must retreat from the perceived harm if he is able to do so with complete safety.
      “Three circumstances exist in which a defendant is not required to retreat. The defendant is not required to retreat, one, if he is in his home or dwelling; two, is in his place of work and not the initial aggressor, or, three, if he is a peace officer or a private person assisting such officer at his direction and acting pursuant to Section 53a-22. In such cases, although the defendant need not retreat, he is still required to use reasonable force.
      “If the assailant attempts to flee, thereby removing the threat of harm, then the defendant is not allowed to use deadly force, either to regain property which may have been taken, or in retaliation for any harm which may have been inflicted.
      “Two other situations exist which make the use of deadly force unjustified. One, if the assailant’s conduct appears motivated by his claim to property which the defendant possesses, and the defendant knows that if he surrendered the property that the assailant will flee without harming him, then the defendant may not use deadly force, but must surrender the property. Two, if a defendant is faced with deadly force in the course of performing an act which he is not required to perform, if he can remove this threat by ceasing that activity he may do so and may not use deadly force.
      “For example, if the defendant stumbles upon a store being burglarized by armed robbers and the assailants tell him to leave or he will be shot, he may not use deadly force in response to this threat, since he is not obligated by law to protect the premises or thwart the robbers.
      “A police officer, or store guard, however would be obligated by law to protect the premises and could use deadly force whether or not they are given the choice of leaving. . . .
      “[L]et me read it right from the book—and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is, one, using or about to use deadly physical force, or, two, inflicting or about to inflict great bodily harm.
      “Notwithstanding the provisions of subsection a,—and this is subsection b—a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in Section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to Section 53a-22, or, two, by surrendering possession of property to a person asserting a claim of right thereto, or, three, by complying with a demand that he abstain from performing an act which he is not obliged to perform.
      “So, if you find that there was deadly physical force used upon another person, there is a requirement that the person claiming justification must retreat, in effect, avoid the necessity of using such force with complete safety.”

       On August 30, 1984, the defendant received a sentence of four years, suspended, and five years probation as a result of a plea of guilty to the charge of burglary in the second degree in violation of General Statutes § 53a-102.