author: CRETELLA, J.

text:
    MARIA MOURA ET AL. v. JOSEPH PULIERI ET AL.
    (14063)
    Schaller, Spear and Cretella, Js.
    Argued September 25,
    decision released January 30, 1996

      Richard S. Scalo, with whom, on the brief, were Ronald D. Japha and Abraham I. Gordon, for the appellants (plaintiffs).

      Gregory P. Lynch, with whom, on the brief, was J. Kevin Golver, for the appellees (defendants).
   CRETELLA, J.

In this negligence action, the named plaintiff, Maria Moura, sued the defendants for personal injuries suffered as a result of an automobile accident allegedly caused by the named defendant, Joseph Pulieri. Following the trial, the jury awarded the plaintiff $60,000. The plaintiff subsequently filed a motion to set aside the verdict as being inadequate. The court denied the motion and this appeal followed.

On appeal, the plaintiff first claims that the trial court’s charge to the jury was erroneous because it (1) failed to address the burden of proof on the issue of mitigation of damages, (2) misstated the standard for recovery of pain and suffering and (3) did not allow the jury to consider future medical expenses or the fear of future medical treatment and disability. The plaintiff also claims that the judgment of the trial court was contrary to the evidence and does not award fair, just and reasonable compensation. We find the plaintiffs first claim to be dispositive and, accordingly, reverse the judgment of the trial court.

The jury reasonably could have found the following facts. On August 8,1986, the plaintiff was traveling north on Catherine Street in Bridgeport when her vehicle was hit by the defendant’s vehicle, which was proceeding west on Frank Street and did not stop at a stop sign. After the accident, the defendant told the plaintiff and a police officer that it was his fault because he went through the stop sign. The impact of the crash caused the plaintiff to hit her head on the steering wheel and her knee on the dashboard. It also caused the defendant’s car to spin around.

As a result of the accident, the plaintiff has been unable to resume working at the restaurant that she owns. The plaintiff suffers from headaches and injuries to, inter alia, her neck, lower back and right knee. Since the accident, she has gained approximately 100 pounds, which she has been unable to lose. The plaintiffs physicians have indicated to her that she should lose weight. Several physicians testified that her condition is aggravated by the excess weight.

Following the juiy’s verdict, the plaintiff moved to set aside the verdict and to grant an additur, arguing that the damages were against the evidence and were inadequate. The trial court denied this motion. According to the plaintiff, the trial court’s charge to the jury constituted plain error in that it did not properly address the burden of proof on the issue of mitigation of damages. As part of this argument, the plaintiff claims that the charge on mitigation was defective in that it failed to include the instruction that the plaintiffs actions must have caused the aggravation of the injury. The plaintiff argues that the charge did not relate her alleged failure to mitigate damages to the effect of that failure on the damages incurred, but simply let the jury consider mitigation without limits on its use. The defendant argues that the court’s not properly addressing the burden of proof with regard to mitigation of damages did not prejudice the plaintiff. In support of this claim, the defendant points to the fact that the juiy was not instructed to reduce any award given to the plaintiff if it found that she failed to mitigate her damages. We agree with the plaintiff that the trial court’s charge to the jury constituted plain error.

“This court has stated that [p]lain error is reserved for instances where the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings . . . .” (Internal quotation marks omitted.) Holcomb v. Commissioner of Correction, 39 Conn. App. 485, 488, 664 A.2d 1199 (1995). We conclude, for the reasons discussed in this opinion, that plain error review is warranted in this case.

After the trial court had instructed the jury and the jury had exited the courtroom, the trial court met with counsel. Counsel for the defendant mentioned that although he had submitted a request to charge on the issue of mitigation, the trial court had not so instructed the jury. The court indicated that the omission was not intentional, and the jury was called back and given further instructions. The trial court, however, instructed only that there is a concept known as the duty to mitigate. It did not indicate who has the burden of proof on the issue. Following the court’s delivery of the charge, counsel for the defendant took an exception on the ground that the charge did not instruct the jury by what amount it should reduce the award of the damages if it found that the plaintiff had failed to mitigate. No exception to the charge was taken by counsel for the plaintiff.

In Preston v. Keith, 217 Conn. 12, 20-21, 584 A.2d 439 (1991), the Supreme Court held for the first time that the burden of proving that the plaintiff failed to mitigate damages in a negligence case is on the defendant. The court stated that “a review of the relevant authorities reveals that [t]he burden of proving that the injured party could have avoided some or all of his or her damages universally rests on the party accused of the tortious act.” (Internal quotation marks omitted.) Id., 20-21. The court continued by stating that “[t]o claim successfully that the plaintiff failed to mitigate damages, the defendant must show that the injured party failed to take reasonable action to lessen the damages; that the damages were in fact enhanced by such failure; and that the damages which could have been avoided can be measured with reasonable certainty.” (Internal quotation marks omitted.) Id., 22.

The Supreme Court noted that the Appellate Court, in Preston v. Keith, 20 Conn. App. 656, 660-61, 570 A.2d 214 (1990), rev’d in part on other grounds, 217 Conn. 12, 584 A.2d 439 (1991), had considered the issue under the “plain error” provisions of Practice Book § 4185 and, after finding plain error, had ordered a new trial limited to the issue of damages. The Supreme Court affirmed the Appellate Court’s conclusion that the defendant bears the burden of proof as to mitigation. In so holding, the Supreme Court noted that the trial court’s failure to instruct the jury concerning which party bore the burden of proof on the issue of mitigation of damages was an independent basis for the Appellate Court’s conclusion that the charge was defective. The Supreme Court also stated that the decision was “consistent with our decision in Lane v. Smith, 71 Conn. 65, 71, 41 A. 18 (1898), where we held that a new trial was required because the trial court committed plain error when it failed to instruct the jury on which party bore the burden of proof on the amount of damages.” Preston v. Keith, 217 Conn. 12, 23 n.12, 584 A.2d 439 (1991).

In light of the foregoing, we conclude that the trial court’s failure to instruct the jury properly on the burden of proof regarding mitigation of damages constitutes plain error. In so holding, we note the defendant’s argument that any defect in the charge was not harmful to the plaintiff, inasmuch as the jury was not instructed to reduce the verdict if it found that the plaintiff failed to mitigate damages. We nonetheless reject the argument because it relies on speculation as to what the jury might have done. Because the trial court’s charge did not address the burden of proof on the issue of mitigation of damages, the jury could not know which party bore that burden. The jury might have erroneously concluded that the plaintiff bore the burden of proof or correctly concluded that the defendant bore the burden. Such uncertainty affects the fairness and integrity of the trial as well as the public confidence in the judicial proceedings. Holcomb v. Commissioner of Correction, supra, 39 Conn. App. 488.

The judgment is reversed only as to the amount of damages awarded and the case is remanded for a new trial limited to that issue.

In this opinion the other judges concurred.

       The plaintiffs husband, Manuel Moura, advanced a claim for loss of consortium for which the jury did not award him any damages. The plaintiffs also sued Deborah A. Mason as the owner of the vehicle driven by Pulieri. For purposes of this opinion, we will refer to Maria Moura and Joseph Pulieri as the plaintiff and the defendant respectively.

       In light of this conclusion, we do not consider the plaintiffs remaining claims.

       The motion to set aside did not make reference to the plaintiffs claim on appeal that the trial court improperly failed to charge with regard to the burden of proof on mitigation of damages. We note that the Supreme Court has recently granted certification to consider whether it should reconsider its holding in Pietrorazio v. Santopietro, 185 Conn. 510, 441 A.2d 163 (1981), that the failure to raise a claim in a motion to set aside a verdict limits the court to plain error review of that claim. See Lynch v. Granby Holdings, 234 Conn. 919, 661 A.2d 98 (1995).

       In this regard, we note that the parties argued and briefed whether the jury charge at issue constituted plain error.

       The trial court instructed as follows: “There’s one thing that I neglected to tell you and I didn’t want you to start your deliberations without my telling you that there is a doctrine in our law with respect to damages which states that there is a duty to mitigate your damages if you can. Somebody who is injured in an accident, such as this, can’t just let things go and not do anything to help one’s self.
      “Now there are some physicians who testified, and they alluded to the plaintiffs weight, her obesity, and said that this might impact her physical condition. That if she was able to take off her weight this might help her. Now whether she could take off her weight or not is a matter for you to determine. Those of you [who] have tried to reduce will know that. What I’m telling you is that there is this concept in our law that says there is a duty to mitigate damages.
      “Now if you find that she could have helped her situation by losing all this weight that she put on, or losing any part of it, and she was told by the doctors to do this, then she should do something to help her own condition by attempting to do something to reduce her weight.
      “I just—I neglected to tell you, and it’s been called to my attention. And there is such a concept [as] the duty to mitigate damages and I’m telling you about it now, okay?”

       The record reveals the following:
      “[Defense Counsel]: Just briefly, Your Honor, I would except to—you gave the duty to mitigate, but I think I went farther. I don’t think you encompassed the full amount of what I had requested, which was that the verdict should be if she breaches that duty to mitigate or fails to mitigate, then you should reduce any award you might give her to such a sum as you think measures the amount of which damages have increased of her failure of her duty to mitigate damages, that is to say, her failure to do her best to get better. That’s almost a direct quote from—
      “The Court: Yes, it is. I’m familiar with it.
      “[Defense Counsel]:—Preston versus—
      “The Court: Yes, I’m familiar with it. I’m familiar with it, but I don’t think I ought to call them out again.”

       In Preston v. Keith, supra, 20 Conn. App. 660-61, the plaintiff argued that the trial court had improperly failed to address “proximate cause” and the allocation of the burden of proof in its charge on the failure to mitigate damages. The defendant argued that the claim regarding the form of the instruction was not raised at trial and therefore was not reviewable. We stated, however, that “the plaintiffs failure to except specifically to the form of the instruction as a part of her general exception to the charge on the failure to mitigate damages is not fatal to her claim for appellate review. Because of the nature of the error claimed here, the erroneous instruction on the burden of proof, we review this claim under the so-called ‘plain error’ provisions of Practice Book § 4185.” Id., 661.

       The Supreme Court reversed our conclusion that the jury charge on the relationship between proximate cause and mitigation of damages was improper. Preston v. Keith, supra, 217 Conn. 16-19.

       The defendant had argued in Preston that a new trial might not be required because there was no determination of the effect of the defect in the charge on the jury’s award of damages. The court did not review this claim as it was beyond the grant of certification. Preston v. Keith, supra, 217 Conn. 23 n.12.

       “The error here lies only with the trial court.’s instruction on mitigation of damages, an issue considered by the jury only after they had determined that liability did in fact exist. Because the issues of damages and liability in this case are so separate and distinct, we order limited remand.” Preston v. Keith, supra, 20 Conn. App. 664 n.11.


source: Caselaw Access Project

author: HEIMAN, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JOSEPH R. SCARPIELLO
    (13175)
    Heiman, Spear and Freedman, Js.

      Argued October 2, 1995
    decision released January 30, 1996

      Suzanne Zitser, assistant public defender, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Dennis J. O’Connor, assistant state’s attorney, for the appellee (state).
   HEIMAN, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 as a lesser included offense of murder, and carrying a pistol without a permit in violation of General Statutes § 29-35. The defendant claims that the judgment should be reversed because (1) the trial court’s comments and accompanying “facial gestures” directed toward the defendant’s credibility exhibited partiality toward the state and violated the defendant’s constitutional rights to due process of law, to a fair and impartial trial by jury, and to present a defense, (2) the trial court violated the defendant’s constitutional rights when it improperly instructed the jury on three different statutory components of self-defense, and (3) the trial court, in its charge to the jury, commented on the defendant’s credibility in a manner that was not evenhanded. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. The defendant and Rosalie Scarpiello were married in 1973. At the wedding, Andrew Lupo, the victim, served as the best man. The defendant and Rosalie Scarpiello were divorced in 1978. After the divorce, the defendant left Connecticut and began dividing his time between Florida and California. The defendant eventually remarried and took up residence in Cahfomia with his new spouse, Frances Scarpiello. Rosalie Scarpiello began a relationship with the victim.

In 1979, the defendant visited Connecticut and met with Rosalie Scarpiello at the Grantmoor Hotel. The couple was engaging in sexual intercourse in one of the hotel rooms when the telephone rang. The defendant answered the telephone and the caller was the victim, who was apparently upset that the defendant and Rosalie Scarpiello were engaging in sexual intercourse.

In the summer of 1987, the defendant returned to Connecticut driving a reddish brown pickup truck registered to Frances Scarpiello. After spending several nights at local motels, the defendant moved into a house owned by the victim’s brother at 89 Linnmoore Street in Hartford. The defendant resided in these premises rent free. The victim had previously lived at these premises, but he had been evicted.

On at least four occasions after the defendant’s return to Connecticut, the defendant and Rosalie Scarpiello had drinks together. The defendant told Rosalie Scarpiello that he had left his wife and had returned to Connecticut to find a new job and to start over. The defendant also met with the victim, who attempted to help the defendant find a job. On August 13, 1987, the defendant telephoned Rosalie Scarpiello and asked to meet with her. She declined. The defendant became angry and told her that “no one will ever love you like I did,” and, upon completing this statement, the defendant hung up the telephone. At that time, Rosalie Scarpiello was living with the victim and they planned to be married on December 22, 1987.

Rosalie Scarpiello was the owner of Ro’s Place, a bar located on Newington Avenue in Hartford. The victim helped Rosalie run the establishment. On August 14, 1987, at approximately 8:30 p.m., Rosalie Scarpiello and the victim arrived at Ro’s Place. Prior to arriving at the bar-, they were out having a few drinks and getting something to eat. Rosalie Scarpiello remained at the bar until about midnight, when the victim told her to go home. The victim explained that he would stay and close up the bar.

The victim was still at the bar at approximately 1 a.m. on August 15, 1987. He was seated on a bar stool located in the left comer of the bar, angled toward the corner. One of the bar’s entrance doors squeaked when it opened, and the squeak of the door was quickly followed by what sounded like firecrackers exploding. The sound, in fact, was the sound of gunshots. Patrons of the bar observed the defendant with a gun in his right hand, standing six or seven feet away from where the victim was sitting. The defendant had fired about six shots at the victim. The victim stood up, put a hand to his chest, said “Oh no,” and fell face down on the floor. The defendant fled with the gun still in his hand, and was seen leaving the parking lot of Ro’s Place in a reddish brown pickup tmck with California plates. The defendant was driving at a high rate of speed with the lights turned off. The vehicle was the pickup truck registered to Frances Scarpiello.

Sergeant Robert Seiler of the Newington police department responded to the call regarding the shooting because no Hartford police cruiser was close enough to respond quickly. When Seiler arrived, the victim was lying face down on the floor. Seiler did not observe a gun on the floor or in either of the victim’s hands. Soon after Seiler’s arrival, paramedics arrived on the scene. When the paramedics removed the victim’s pants, Seiler heard something hit the floor with a “clunk,” and then observed a small gun at the victim’s feet.

An autopsy performed on the victim revealed that he had suffered five gunshot wounds, including wounds to the front of his right thigh, the back of his right hand, the front of his right forearm, the right side of his chest, and the right side of his back. The bullets caused injuries to the liver, the right lung and major vessels around the heart. The bullet to the back entered the right side of the victim and traveled in an upward direction to the left side of the body. The bullet damaged the lung and pulverized the liver and was a fatal wound. The shot to the chest caused damage to the major vessels around the heart that was also capable of causing death.

The pickup truck that the defendant was operating at the time of the shooting was found abandoned near the intersection of Dalton and Brown Streets in Hartford. The Hartford police obtained an arrest warrant for the defendant but they could not locate him in the Hartford area. The defendant was apprehended by the Federal Bureau of Investigation (FBI) and local police in Glendale, California, and was returned to Connecticut on June 20, 1989. At the time of his arrest, the defendant gave a voluntary statement to FBI agents that he felt he had shot the victim in self-defense, that he had never seen a gun in the victim’s hand although he assumed that the victim was carrying one, and that he had prevailed in a western style shoot-out because he was faster on the draw than was the victim. The defendant also told the agents that he had thrown his gun into some bushes.

The defendant’s case proceeded to trial on November 2, 1990. At trial, the state and the defendant stipulated that as of August 15, 1987, the defendant did not have a proper pistol or revolver permit issued to him by the city of Hartford. The defendant also admitted that he shot the victim, but claimed that he acted in self-defense pursuant to General Statutes § 53a-19.

The defendant testified as follows. After he returned to Connecticut in 1987, he stayed in motels for several nights and then moved into the apartment on Linnmoore Street owned by the victim’s brother. The defendant was aware that the victim had previously lived there and that the victim had been evicted. The defendant was also aware of the victim’s violent propensities and that the victim carried a gun. The defendant had heard that the victim’s gun had been taken away from him at a bar after he had threatened to shoot his brother over a property dispute. Additionally, the defendant stated that the victim was jealous and resentful because the defendant was back in town. According to the defendant, the victim was also becoming angry because the patrons at Ro’s Place were making comments about the fact that Rosalie Scarpiello and the defendant had been seen together.

The defendant testified that the animosity between him and the victim was increasing. Consequently, the defendant felt that it was necessary to meet with the victim. The defendant and the victim met for breakfast on two separate occasions, the second meeting taking place two days before the shooting. The first meeting was amicable. The second meeting was not amicable, and the victim accused the defendant of sneaking around with Rosalie Scarpiello. According to the defendant, the victim asked whether the defendant had come back to “break his balls.” After the second meeting, the defendant claimed to have grown a little “leery” of the victim and testified that he became apprehensive about his relationship with the victim.

The defendant testified that on the evening of August 14, 1987, he called Ro’s Place from a pay telephone to speak with Rosalie Scarpiello about a possible loan. According to the defendant, the victim answered the telephone and said to the defendant, “you motherfucker, don’t ever call this bar again or you’re dead.” After this conversation, the defendant was extremely concerned that the victim would be lying in wait for him on Linnmoore Street. The defendant knew that the victim had previously lived in the same house, and the defendant was concerned that the victim could gain access to the house in some manner. The defendant decided to sit in his truck and think about what he should do. He finally decided to go to Ro’s Place to try to work things out with the victim. He drove to the bar, parked the truck in the back of the parking lot and locked the door. The defendant had a pistol in his vehicle, and he took the pistol and placed it in his pants pocket under his shirt as a “precautionary” measure, just in case the victim “went a little wacky.” The defendant claimed that he always carried a pistol in his truck.

The defendant claimed that he entered the bar and that the victim, who was seated on a bar stool, spotted the defendant and immediately began to get off of the stool. According to the defendant, the victim faced the defendant and said “you fucker,” swung the stool in front of him, dropped into a crouched position, and held up the stool as a shield. The defendant observed the victim’s hand move toward his pocket, and at that moment, the defendant saw the handle of a gun. The defendant testified that he fired his gun in the general direction of the victim in an attempt to incapacitate him. According to the defendant, the victim’s gun and the victim both fell to the floor, and when the victim slumped to the floor, the defendant stopped firing. The defendant admitted that he fired the first shot, but he did not remember how many shots he fired.

The defendant asserted that after the shooting he turned and walked out of the bar and went to the truck. He exited the parking lot without turning on the vehicle’s lights, claiming that he was in such a daze that he forgot to do so. He fled because he was afraid that the victim’s family would seek revenge. Furthermore, because a member of the victim’s family was a Hartford police officer, the defendant felt that the investigation of the shooting would be biased and that he would not receive a fair trial.

The defendant further asserted that he drove the truck until it ran out of gas, and then abandoned the track on a side street near Goodwin Park in Hartford. He also stated that he threw away the gun. The defendant then hitchhiked to New Haven. From New Haven, he took a bus to New York. He then went to Fort Myers, Florida, where he worked on a shrimp boat. The defendant became concerned that the police might look for him in the Fort Myers area because his former wife had relatives in that area. The defendant finally returned to California where he was eventually apprehended and arrested.

The jury acquitted the defendant of the murder count and found him guilty of the lesser included offense of manslaughter in the first degree. The jury also found the defendant guilty of carrying a pistol without a permit.

I

The defendant first claims that the trial court’s comments and accompanying facial gestures directed toward the defendant’s credibility exhibited partiality toward the state and violated the defendant’s constitutional rights to due process of law, to a fair and impartial trial by jury, and to present a defense. We are unpersuaded.

We first address the aspect of the defendant’s claim regarding the trial court’s facial gestures. At trial, defense counsel complained that the trial court “mad[e] faces” and was “grimacing” while defense counsel questioned the defendant about the defendant’s intentions upon entering Ro’s Place at the time of the shooting. The trial court, however, neither denied nor acknowledged that it had engaged in such conduct. Other than the complaint by defense counsel, the transcript is silent with respect to the trial court’s facial expressions during defense counsel’s questioning regarding the defendant’s intent. Consequently, the record is not adequate for us to review the defendant’s claim regarding the trial court’s facial expressions. Therefore, “[w]e cannot conclude that the defendant has shown that the trial court’s demeanor or conduct denied him a fair trial.” State v. Boone, 15 Conn. App. 34, 49-50, 544 A.2d 217, cert. denied, 209 Conn. 811, 550 A.2d 1084 (1988) (defendant unable to show on appeal that trial court laughed or snickered and could not prevail on claim that such conduct precluded him from obtaining fair trial).

We next address the defendant’s assertion that the trial court made inappropriate comments in its ruling on whether the defendant should be permitted to testily as to his intentions upon entering Ro’s Place at the time of the shooting. On direct examination, defense counsel asked the defendant whether he intended to kill the victim. The state’s attorney objected to the question and the trial court sustained the objection. When defense counsel made a second attempt to question the defendant as to whether he intended to kill the victim, the state’s attorney again objected. The trial court, in the course of its ruling on the state’s objection, permitted defense counsel to ask the question, but commented disparagingly on the “worth” of the testimony and stated that it was going to give the jury an instruction on credibility. Subsequently, the defendant asked for a short recess. The jury was excused and the defendant moved the trial court for a mistrial. The trial court denied the motion. When the jury returned to the courtroom, the trial court, sua sponte, gave an instruction with respect to its colloquy with defense counsel. As part of the instruction, the trial court directed the jury to disregard the comments that the trial court made during the direct examination of the defendant.

The state concedes that the trial court’s comment regarding the “worth” of the defendant’s testimony and the trial court’s statements that it was going to give an instruction to the jury on credibility were inappropriate. While we agree that the statements at issue were inappropriate and should not have been made, this does not end our inquiry. In determining whether a trial court’s comments directed at the credibility of a testifying defendant deprived the defendant of his constitutional rights, our Supreme Court has examined such comments in the context of the entire trial. See State v. Maldonado, 193 Conn. 350, 366-67, 478 A.2d 581 (1984). We find that in the context of the entire trial, the comments of the trial court did not deprive the defendant of his constitutional rights.

Our determination that the defendant’s constitutional rights have not been violated is heavily influenced by the fact that the trial court, in its instructions after the recess and in its charge to the jury, “restored the defendant’s testimony to the same ground as other witnesses’ testimony.” Id., 367. After the jury returned to the courtroom following the short recess requested by the defendant, the trial court immediately made reference to the colloquy that preceded the recess and instructed the jury to “disregard everything that was said by the court during the course of that colloquy because I was wrong.” The trial court also explained that it had sustained the state’s objection to the form of defense counsel’s question about the defendant’s intent at the time of the shooting, and that defense counsel was free to question the defendant about such intent as long as the form of the question was proper. The defendant neither objected to this instruction nor requested that the trial court amplify or extend its statement in any way. After the trial court gave the instruction and inquired, “Okay, [defense counsel]?” defense counsel immediately resumed questioning. Defense counsel proceeded to ask the defendant, “when you went into the bar did you intend to shoot [the victim]?” The defendant answered, “Definitely not.” The state’s attorney did not object to the question and the trial court did not intervene.

In its charge to the jury at the close of trial, the trial court admitted that it had been wrong during the colloquy about the defendant’s right to testify as to his intent at the time of the shooting, and that the defendant had the right to testify about such intent. In its charge, the trial court also properly instructed the jury as to the differing responsibilities of the court and the jury. The court charged that the jury is the sole and absolute judge of the facts of the case, and that anything the court says about the facts is not binding on the jury. Moreover, the trial court charged that the jury is the exclusive judge of the credibility of witnesses and that it is the jury’s duty to determine the weight to be given to the testimony of any witness.

We are satisfied that the trial court’s instruction candidly admitting that it was wrong and to disregard its comments, coupled with its charge regarding the defendant’s right to testify and the proper roles of the trial court and the jury concerning fact-finding and assessments of credibility, taken in the context of the whole record, adequately protected the defendant’s constitutional rights. The trial court acted promptly and firmly to dispel any possible prejudice or import that the jury could ascribe to the trial court’s improper remarks. The trial court’s forceful actions thus restored the defendant’s testimony to the same level playing field as that of any other witness. State v. Maldonado, supra, 193 Conn. 367. We cannot conclude that the jury ignored the instructions and the charge of the trial court and “instead fixated on the court’s [remarks] to determine credibility and ultimately guilt.” Id.

The defendant’s first claim is without merit.

II

The defendant next claims that the trial court violated his state and federal constitutional rights when it improperly instructed the jury on three separate components of self-defense. The defendant posits that his rights to due process of law, to present a defense and to a fair trial were violated. We do not agree.

We begin by examining the fundamental principles of law that govern our review of this claim. It is a fundamental element of due process that a defendant charged with the commission of a crime be permitted to establish a defense. Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967). Furthermore, “[a] person is entitled to a proper jury instruction on the elements of every defense that the legislature has created so that the jury may determine whether the state has sustained its burden of disproving the defense beyond a reasonable doubt.” State v. Harrison, 32 Conn. App. 687, 692, 631 A.2d 324, cert. denied, 227 Conn. 932, 632 A.2d 708 (1993). It is the function of the jury charge to assist the jury in applying the law correctly to the facts that the jury finds to be established. Id.

“An improper instruction on a defense, like an improper instruction on an element of an offense, is of constitutional dimension. ... In either instance, [t]he standard of review to be applied to the defendant’s constitutional claim is whether it is reasonably possible that the jury was misled. ... In determining whether it was indeed reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Citations omitted; internal quotation marks omitted.) State v. Prioleau, 235 Conn. 274, 284, 664 A.2d 743 (1995).

A

We first address the defendant’s challenge to that portion of the trial court’s self-defense charge relating to the degree of force used by the defendant. The defendant asserts that the trial court misguided the jury when it instructed that “reasonable force” is “that force which an average person of ordinary intelligence and like circumstances would judge to be necessary to prevent injury and no more.” The defendant contends that this particular aspect of the charge improperly directed the jury to employ a simple objective standard in determining whether the defendant reasonably believed it necessary to use deadly physical force to defend himself. Thus, the defendant posits that the instruction failed to explain adequately to the jury the necessity of examining and evaluating the defendant’s subjective belief as to the amount of force necessary to defend himself. The state, however, responds that taking the charge as a whole, the trial court sufficiently instructed the jury as to the law governing the degree of force that may be justifiably used in self-defense. According to the state, the charge properly conveyed to the jury that the defendant’s subjective perspective must be considered in evaluating the degree of force used by the defendant. Although we agree with the defendant that an instruction employing only a simple objective standard would not withstand constitutional challenge in isolation; see State v. Williams, 25 Conn. App. 456, 464, 595 A.2d 895, cert. denied, 220 Conn. 916, 597 A.2d 339 (1991); we are satisfied that from the facts of the case, the issues presented, and the charge as a whole, there is no reasonable possibility that the trial court’s instruction misled the jury to an improper verdict. State v. Prioleau, supra, 235 Conn. 285.

A person may justifiably use deadly physical force in self-defense pursuant to § 53a-19 (a) “only if he reasonably believes both that (1) his attacker is using or about to use deadly physical force against him, or is inflicting or about to inflict great bodily harm, and (2) that deadly physical force is necessary to repel such attack. . . . We repeatedly have indicated that the test a jury must apply in analyzing the second requirement, i.e., that the defendant reasonably believed that deadly force, as opposed to some lesser degree of force, was necessary to repel the victim’s alleged attack, is a ‘subjective-objective’ one.” (Citations omitted; emphasis in original.) Id., 285-86.

“The subjective-objective inquiry into the defendant’s belief regarding the necessary degree of force requires that the jury make two separate affirmative determinations in order for the defendant’s claim of self-defense to succeed. First, the jury must determine whether, on the basis of all of the evidence presented, the defendant in fact had believed that he had needed to use deadly physical force, as opposed to some lesser degree of force, in order to repel the victim’s alleged attack. . . . The jury’s initial determination, therefore, requires the jury to assess the veracity of witnesses, often including the defendant, and to determine whether the defendant’s account of his belief in the necessity to use deadly force at the time of the confrontation is in fact credible. This probe into the defendant’s actual state of mind clearly demonstrates the function of the jury in [its] evaluation of the self-defense claim.” (Citations omitted; internal quotation marks omitted.) Id., 286-87.

“If the jury determines that the defendant had not believed that he had needed to employ deadly physical force to repel the victim’s attack, the jury’s inquiry ends, and the defendant’s self-defense claim must fail. If, however, the jury determines that the defendant in fact had believed that the use of deadly force was necessary, the jury must make a further determination as to whether that belief was reasonable, from the perspective of a reasonable person in the defendant’s circumstances. . . . Thus, if a jury determines that the defendant’s honest belief that he had needed to use deadly force, instead of some lesser degree of force, was not a reasonable belief, the defendant is not entitled to the protection of § 53a-19.” (Citations omitted; emphasis in original.) Id., 287.

The self-defense issue in this case was marked by the divergent testimony of the witnesses present at the time of the shooting. While no witness observed the defendant enter the premises, there was evidence that the door through which the defendant entered made a squeaking noise that was heard by several patrons and that almost as soon as the door squeaked the defendant fired at the victim. The defendant admitted that he fired first, but he testified that he fired in response to his observation of the victim getting off of a bar stool and reaching for a pocketed gun, which eventually fell out of the victim’s hand after the victim was shot. There was also testimony, however, that when the victim’s body was examined at the scene of the shooting, his weapon had not been drawn.

In our examination of the trial court’s charge as a whole, we conclude that the charge adequately alerted the jury that it must consider both subjective and objective factors in determining whether the defendant reasonably believed that deadly force was necessary to repel the victim’s alleged attack. In this regard, the trial court instructed that “the danger or apparent danger claimed by the defendant is to be determined from, his standpoint at the time of the attack and under all the existing circumstances. The act leading to the defendant’s claim of self-defense may not be an actual threat or assault The test is not what the other person actually intended, but what the aggressor’s act caused the defendant to reasonably believe was his intention.” (Emphasis added.) Furthermore, the trial court noted that “the defendant’s belief of danger must be honest and sincere.” Thus, the trial court clearly alerted the jury that it must evaluate the defendant’s subjective beliefs as to the degree of force necessary to protect himself. After these instructions, the trial court described reasonable force as the amount of force that would be used by an average person. The court stated: “In deciding whether the force used in this case is reasonable, you may examine such factors as the physical attributes of the parties involved, including age, sex, height and weight. The use of deadly force is reasonable only to resist a threat of death or serious physical harm. You people are going to have to make some decisions whether or not such a threat existed.” Thus, the trial court also alerted the jury that it must determine whether the defendant’s perception of danger was objectively reasonable. Finally, in a supplemental charge, the trial court reiterated the need to consider both subjective and objective factors. The trial court instructed that the defendant’s claim of self-defense would fail if the state proved, inter alia, that the defendant “did not really believe that he was in imminent danger” and that he “had no reasonable grounds to believe that he was going to have to act in self-defense.” (Emphasis added.) This particular instruction essentially mirrors the interpretation of § 53a-19 that our case law requires. See id., 285-87; State v. Williams, supra, 25 Conn. App. 464. Thus, the charge sufficiently apprised the jury that the test for self-defense is both subjective and objective. State v. Williams, supra, 466. It is therefore “not reasonably possible that the jury could have concluded that its inquiry was to be made solely in an objective manner.” State v. Prioleau, supra, 235 Conn. 290.

B

We next address the defendant’s attack on that portion of the trial court’s self-defense charge relating to the concept of “initial aggressor.” The defendant asserts that the trial court failed to instruct the jury specifically that the first person to use physical force was not necessarily the initial aggressor. According to the defendant, the trial court therefore misled the juiy to believe that in a self-defense case, the first person to use force, such as the defendant here, must be considered the initial aggressor. We do not agree.

The defendant relies on State v. Jiminez, 228 Conn. 335, 636 A.2d 782 (1994) in support of this claim. The defendant’s reliance on Jiminez is misplaced. In that case, the trial court affirmatively charged the juiy that an initial aggressor is necessarily the person who first uses physical force; id., 338; and our Supreme Court determined that such a charge constituted reversible error. Id., 342. In Jiminez, however, our Supreme Court “did not indicate that a trial court must explicitly state that the ‘initial aggressor’ is not necessarily the first person to use force.” (Emphasis added.) State v. Prioleau, supra, 235 Conn. 293 n.18.

We rely on our Supreme Court’s opinion in State v. Prioleau, supra, 235 Conn. 293, to resolve this claim. In Prioleau, as in the present case, “[although the trial court did not specifically instruct the jury that the initial aggressor is not necessarily the first person actually to employ the use of force, that premise was implicit throughout the entire self-defense instruction.” Id. The trial court clearly instructed the jury that “[a] person is justified in the use of reasonable physical force on another when he reasonably believes that such force is necessary to protect himself or another person from the use or impending use of physical force [by] another.” (Emphasis added.) The trial court also instructed the jury that it must find the defendant not guilty on the ground of self-defense if the state failed to prove beyond a reasonable doubt that “the defendant did not believe that he was in imminent danger of death or injury and that the use of force was not necessary to protect himself.” (Emphasis added.) The trial court also referred to the danger or apparent danger that the defendant claimed to have faced, and also correctly paraphrased the language of § 53a-19 (a) that the defendant “may justifiably use deadly force only if he reasonably believed that the other person was using or about to use deadly physical force” or “the other person was inflicting or about to inflict great bodily harm.” (Emphasis added.)

Thus, as was the Supreme Court in Prioleau, we are persuaded that “[i]n light of the entire self-defense instruction . . . the trial court sufficiently apprised the jury that it could have found the defendant not guilty of murder [or manslaughter] on the ground of self-defense even if the defendant was the first person actually to have used physical force, so long as the defendant had reasonably believed that the victim was about to use deadly physical force against him.” Id., 293-94.

c

The defendant’s last claim with respect to the trial court’s self-defense charge relates to the trial court’s instruction on the duty to retreat. The defendant claims that the trial court committed reversible error when it failed to instruct that § 53a-19 (b) requires a defendant to retreat rather than use deadly physical force only where the defendant knows that he can retreat with complete safety. The defendant concedes that he neither requested an instruction concerning the duty to retreat nor excepted to the trial court’s charge concerning the duty to retreat. Thus, the defendant seeks review of this issue under the well established principles of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or under the plain error doctrine. Practice Book § 4185.

The trial court charged the jury that “[t]he law does not encourage the use of deadly force, and in most circumstances a person must retreat from a perceived harm if he’s able to do so with complete safety.” Later, the trial court also stated, “I don’t think there is any retreating in this case, because I think, based upon the defendant’s own testimony, that there was no time for retreat.”

This court has already held that a charge on the duty to retreat is flawed if it fails to instruct the jury to consider the subjective component of the duty to retreat: the defendant’s knowledge of his ability to retreat. State v. Tate, 34 Conn. App. 610, 617, 642 A.2d 1223 (1994). The state concedes, and we agree, that the trial court’s charge failed to address this subjective component properly. Id., 617. Nevertheless, we find that such failure constituted harmless error. State v. Quintana, 209 Conn. 34, 46, 547 A.2d 534 (1988).

In State v. Quintana, supra, 209 Conn. 47-48, our Supreme Court determined that under the circumstances of that case, the failure of the trial court to charge on the subjective component of the duty to retreat was harmless error, because “ ‘[t]he principal factual issues . . . were not classically dependent upon [the subtleties of the law of self-defense] for their proof, as is true in cases where the principal factual issue is the . . . [defendant’s subjective knowledge of the availability of safe escape].’ ” We conclude that the trial court’s failure to charge on the subjective component was harmless for the same reasons as those set forth in State v. Quintana, supra, 47-48.

Here, the issue of retreat was not presented to the jury as a significant factor to consider in the resolution of the defendant’s self-defense claim. The jury was presented with two conflicting versions of the shooting, neither of which implicated the duty to retreat. The jury’s principal task was to determine which version of the event was more plausible. State v. Tate, supra, 34 Conn. App. 618. Thus, because the issue of retreat in this case was relatively insignificant, we find that the self-defense instruction, read as a whole, “although not in strict accordance with § 53a-19 (b), presented the case to the jmy in such a manner that no injustice resulted.” Id. We conclude that the defendant cannot satisfy the fourth prong of Golding because the improper instruction constituted harmless error beyond a reasonable doubt.

Ill

The defendant’s last claim is that the trial court improperly commented on the defendant’s credibility “in a manner that was not evenhanded.” The defendant acknowledges that the trial court correctly instructed the jury that a witness’ interest in the outcome of a case may be considered in determining that witness’ credibility. The defendant asserts, however, that in four separate instances, the trial court improperly “singled out” the defendant’s interest in the outcome of the case as compared to the other witnesses’ interests in the outcome of the case. The defendant posits that this constituted a violation of rights guaranteed to him by the sixth and fourteenth amendments to the constitution of the United States and by article first, § 8, of the Connecticut constitution. The defendant concedes that this claim was not properly preserved for review by this court, and accordingly seeks review under the aegis of State v. Golding, supra, 213 Conn. 239-40.

“ ‘We have treated the basic claim that specific mention of the defendant’s interest infringes upon his right to a fair trial as falling within the claimed deprivation of a “fundamental constitutional right” . . . [and] [w]e must, therefore, examine the nuances of language belatedly relied upon by the defendant, only for the purpose of determining whether they are significant enough to have affected the fairness of his trial.’ ” State v. Williams, 220 Conn. 385, 396-97, 599 A.2d 1053 (1991), quoting State v. Mack, 197 Conn. 629, 637, 500 A.2d 1303 (1985).

The defendant’s assertion that the trial court’s four references to the defendant’s interest in the outcome of the case were not “evenhanded” is not supported by the record. The trial court specifically instructed the jury that in weighing the testimony of the defendant, the same principles should be applied as are applied to any other witness’ testimony. Similarly, the trial court carefully reiterated to the jury that the defendant stands before it like any other witness and is entitled to have his testimony measured in the same way as that of any other witness. The trial court further reminded the jury that it must weigh “all the factors” that the trial court has enunciated regarding credibility. The trial court also prudently noted that the same standards of credibility attached to the defendant’s testimony as attached to that of any other witness. Finally, the trial court reminded the jury of the trial court’s general charge on credibility.

Thus, the continual emphasis by the trial court was that the testimony of the defendant was to be evaluated in the same fashion as that of the other witnesses. State v. Williams, supra, 220 Conn. 397. In such situations, both our Supreme Court and this court have held that a defendant’s claim of lack of evenhandedness is without merit. Id.; State v. Colon, 37 Conn. App. 635, 640-41, 657 A.2d 247, cert. denied, 234 Conn. 911, 660 A.2d 354 (1995). “We have repeatedly approved the use of similar language and do not find its use here unduly repetitive or transcending the bounds of evenhandedness.” State v. Williams, supra, 397; State v. Colon, supra, 640. The claim of the defendant is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-55 provides in pertinent part: “(a) A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person . . .

       General Statutes § 29-35 (a) provides: “No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. The provisions of this subsection shall not apply to the carrying of any pistol or revolver by any sheriff, parole officer or peace officer of this state, or sheriff, parole officer or peace officer of any other state while engaged in the pursuit of his official duties, or federal marshal or federal law enforcement agent, or to any member of the armed forces of the United States, as defined by section 27-103, or of this state, as defined by section 27-2, when on duty or going to or from duty, or to any member of any military organization when on parade or when going to or from any place of assembly, or to the transportation of pistols or revolvers as merchandise, or to any person carrying any pistol or revolver while contained in the package in which it was originally wrapped at the time of sale and while carrying the same from the place of sale to the purchaser’s residence or place of business, or to any person removing his household goods or effects from one place to another, or to any person while carrying any such pistol or revolver from his place of residence or business to a place or person where or by whom such pistol or revolver is to be repaired or while returning to his place of residence or business after the same has been repaired, or to any person carrying a pistol or revolver in or through the state for the purpose of taking part in competitions or attending any meeting or exhibition of an organized collectors’ group if such person is a bona fide resident of the United States having a permit or license to carry any firearm issued by the authority of any other state or subdivision of the United States, or to any person carrying a pistol or revolver to and from a testing range at the request of the issuing authority, or to any person carrying an antique pistol or revolver, as defined in section 29-33.”

       General Statutes § 53a-19 provides: “(a) Except, as provided in subsections (b) and (c) of this section, 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) of this section, 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) of this section, 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.”

       The defendant has failed to provide us with a separate analysis of his claim under the Connecticut constitution, and we therefore choose not to review this claim under the Connecticut constitution. State v. Francis, 228 Conn. 118, 122 n.3, 635 A.2d 762 (1993); State v. Walker, 33 Conn. App. 763, 766, 638 A.2d 1084, cert. denied, 229 Conn. 913, 642 A.2d 1209 (1994). This failure, however, does not mean that we are not able to afford review of such a claim if we decide to do so. State v. Hoeplinger, 27 Conn. App. 643, 652 n.2, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992).

       The questioning was as follows:
      “[Defense Counsel]: Now, when you drove to the bar did you have an intention to kill Andrew Lupo?
      “[Defendant]: None.
      “[State’s Attorney]: Objection. That’s self-serving.
      “[Defense Counsel]: His intention is what the jury’s going to have to decide. “[State’s Attorney]: That’s self-serving and leading.
      “The Court: Well, it’s both.
      “[Defense Counsel]: I asked him if he had an intention. I claim it.
      “The Court: I’m going to sustain the objection. You can rephrase the question. It was leading.”

       The remarks of the trial court that the defendant claims were improper occurred during the direct examination of the defendant as follows:
      “[Defense Counsel]: All right. When you fired those shots, was it your intention to kill him?
      “[State’s Attorney]: Objection again. Its self-serving and leading.
      “[Defense Counsel]: I claim it. That’s the very, very issue that the jury has to determine. He’s the most capable person to comment on that in this whole room, Your Honor.
      “The Court: Well, for what its worth. He can comment on it but I still have to give the instruction to the jury.
      “[Defense Counsel]: Well, may I ask that the court retract that remark, for what its worth?
      “The Court: I still have to give the jury the instruction on credibility.
      “[Defense Counsel]: I realize that. Yes, Your Honor.
      “The Court: All right. So that’s why I’m allowing him to answer it.
      “[Defense Counsel]: Well, does that preclude him saying it?
      “The Court: No, it doesn’t preclude him from saying anything.
      “[Defense Counsel]: I’m asking the court then, with all respect—
      “The Court: I’m allowing him to answer it.
      “[Defense Counsel]: Why do we have to have comments every time I ask that question?
      “[State’s Attorney]: Because you’re not asking it in the proper form.
      “[Defense Counsel]: Well, the court just ruled that I can.
      “The Court: Let him answer it. You know.
      “[Defense Counsel]: Did you intend to kill him?
      “[Defendant]: No, I did not.”

       The trial court instructed the jury as follows: “All right. Ladies and gentlemen of the jury, there was a colloquy between [defense counsel] and myself just preceding the recess, and it revolved around a question he asked as to [the defendant’s] intent. I’m going to ask you to disregard everything that was said by the court during the course of that colloquy because I was wrong. He is allowed to inquire into [the defendant’s] intent. I have sustained the objection to the form of the question and I’ve given [defense counsel] the opportunity to continue, and if [he] wants to inquire into the area of intent he may. But if the form is improper I’m going to have to sustain the objection. Okay, [defense counsel]?”
      Defense counsel then continued with his direct examination of the defendant regarding his intention with respect to the shooting:
      “[Defense Counsel]: . . . [W]hen you went into the bar' did you intend to shoot [the victim]?
      “[Defendant]: Definitely not.
      “[Defense Counsel]: And after you fired the shots or while you were firing the shots, was it your intention to kill [the victim]?
      “[Defendant]: No, that was not my intention.”

       See footnote 6.

       See footnote 7.

       The trial court’s charge concerning this point was as follows: “A person may take the stand and testify as to what his or her intention was. And incidentally, I want to reiterate here that the defendant had a perfect right to get on the stand and say what his intent was. You may recall there was a colloquy between me and the defense attorney about that issue. I was wrong and they were right, and he is entitled to taire the stand and testify to his intent. Now you may believe that testimony or not according to whether or not you find that it warrants belief. And that’s going to go back to the credibility you attach to the defendant’s testimony after you’ve weighed all the factors that I’ve given you.”

       We note that the jury obviously gave credit to at least some of the defendant’s testimony, since he was acquitted of the charge of murder and convicted of the lesser included offense of manslaughter in the first degree.

       We note that the defendant asserts that the impropriety of the trial court’s remarks cannot be corrected by the curative instruction because of the trial court’s uneven treatment of the defendant as a witness in its charge to the jury. Since we conclude that the trial court’s charge to the jury concerning the testimony of the defendant as a witness was not improper, we do not agree that the curative instruction did not correctly cure the statements of the trial court. See part III of this opinion.

       See footnote 4.

       It is the second requirement that is in issue here.

       We also note, as we did in State v. Williams, supra, 25 Conn. App. 465, that “the principal factual issues did not turn on the subtleties of the law of self-defense for their proof. The degree of force used by the defendant was not 1 he cení ral focus of the disputed testimony. Rather, the case presented to the jury concerned the question of determining what exactly happened leading up to the point that the defendant used force against the deceased.”

       Generally, “a person is not justified in using physical force in self-defense if he is 1he initial aggressor. . . . Therefore, if the jury found that the defendant was the [initial] aggressor in his encounter with the victim, he could not prevail on his claim of self-defense.” (Citations omitted.) State v. Jiminez, 228 Conn. 335, 339-40, 636 A.2d 782 (1994).

       The trial court’s instructions quoted in this paragraph are nearly identical to the instructions approved by the Supreme Court in State v. Prioleau, supra, 235 Conn. 293.

       Because the duty to retreat was not a significant issue at trial, we note that our Supreme Court’s opinion in State v. Ash, 231 Conn. 484, 498, 651 A.2d 247 (1994), is not controlling. In that case, the Supreme Court rejected the state’s reliance on State v. Quintana, supra, 209 Conn. 46-48, because “[u]nlike the circumstances in Quintana, the state’s case [in Ash] hinged substantially on whether the defendant, at some point either prior to or during the fatal altercation, failed to retreat within the meaning of the self-defense statute.” State v. Ash, supra, 498.

       The trial court charged the jury on the issue of credibility of witnesses as follows: “Now there is another area where you have the sole and exclusive jurisdiction to make certain findings, and that deals with the credibility of witnesses. Only you people can determine which witnesses are credible and which are not credible. The credibility of witnesses and the weight, to be given is—to their testimony are matters which axe peculiarly your function to determine .... And in weighing the testimony of a witness you should consider his appearance on the stand, you try to seize him up. And you have in mind all those little circumstances which point to his truthfulness or his untruthfulness. You should consider any possible bias or prejudice that witness may have, whether for or against the accused or the state. Witnesses’ interest or lack of interest of whatever sort in the outcome of the trial, his ability to observe facts correctly and to remember and relate them truly and accurately. You should test the evidence the witness gives you by your own knowledge of human nature and the motives which influence and control human nature.”

       The defendant belatedly claims that the following four instances constitute improper comment:
      (1) After discussing the credibility of witnesses in general, the trial court specifically addressed the issue of the credibility of the defendant as a witness as follows: “Now, I’m going to address now as to the accused taking the stand as a witness. Now, an accused does not—is not obliged to take the witness stand in his own behalf. On the other hand, the accused has a perfect right to do so, as this particular' defendant has done. In weighing the testimony he has given you, you should apply the exact same principles by which the testimony of other witnesses are tested, and that necessarily involves a consideration of interest in the outcome of the case. You’ll consider the importance to the accused of the outcome of the trial and his motives on that account, for not telling the truth. An accused person, having taken the witness stand, stands before you just like any other witness and is entitled to the same consideration and must have his testimony measured in the same way as any other witness, including, however, his interest in the verdict you are going to be asked to render.”
      (2) In the course of discussing intent as an element of the crime of murder, the trial court stated: “Now intent is a mental process. A person may take the stand and testily as to what his intention was. And incidentally, I want to reiterate here that the defendant had a perfect right to get on the stand and say what his intent was. You may recall there was a colloquy between me and the defense attorney about that issue. I was wrong and they were right, and he is entitled to take the stand and testily to his intent. Now you may believe that testimony or not according to whether or not you find that it warrants belief. And that’s going to go back to the credibility you attach to the defendant’s testimony after you’ve weighed all the factors that I’ve given you.”
      (3) In discussing the defendant’s claim of self-defense, the trial court stated in part: “Again, that was the defendant’s testimony. And whether you accept it or not is up to you. You apply the standards of credibility to his testimony just as you do for all the other witnesses, as I said before. And you do consider his interest in the outcome of the case.”
      (4) In discussing the issue of evidence relating to consciousness of guilt, the trial court stated in part: “An accused person [is not] obliged to take the witness stand in his own behalf. On the other hand—well, I’ve already charged you on that, credibility. You can—as far as the defendant taking the stand, a factor you can [consider in] determining his credibility is his interest in the outcome of the case.”

       See footnote 4.


author: PER CURIAM.

text:
    IN RE ELISABETH H. ET AL.

    (15307)
    Dupont, C. J., and Foti and Lavery, Js.
    Considered December 5, 1995
    decision released January 30, 1996

      Sharon Wicks Domfeld, in support of the motion by the minor children.

      Patricia E. Naktenis, assistant attorney general, and Richard Blumenthal, attorney general, in support of the motion by the petitioner.
    The respondents, pro se, in opposition to the motions.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 4166B.2, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.
      Reporter of Judicial Decisions

   PER CURIAM.

The principal issue in this appeal is whether a trial court’s adjudication of two minor children as neglected, uncared for and abused youths within the meaning of General Statutes § 46b-120, without any judgment as to the consequences of that determination, is a final judgment for the purpose of appellate review. The underlying matter concerns two identical petitions alleging abuse and neglect, filed by the department of children and families on October 5, 1993, concerning Elisabeth H. and Catherine H., who are sisters. At the time the petitions were brought, Elisabeth H. was fourteen years of age and Catherine H. was sixteen years of age. The pro se respondents, who are the children’s parents, filed a timely joint appeal from the trial court’s judgment adjudicating Elisabeth H. and Catherine H. as neglected, uncared for and abused youths within the meaning of § 46b-120.

The minor children filed a motion to dismiss the appeal on the ground that this court lacks subject matter jurisdiction because the appeal was taken from a judgment following an adjudicatory hearing, which determined that Elisabeth H. and Catherine H. were neglected, uncared for and abused. Because the disposition phase of the hearing had not yet been held at the time this appeal was brought, they argue that the trial court’s adjudication is an interlocutory decision, lacking such finality as to permit appellate review. The minor children also assert that the respondents lack standing to appeal because the trial court’s memorandum of decision concerning the adjudicatory phase did not direct orders to the respondents or subject them to any penalties. The petitioner has also filed a motion to dismiss based on the same grounds as the minor children’s motion to dismiss.

The respondents oppose both motions to dismiss. They claim that both motions are untimely according to Practice Book § 4056. Furthermore, they assert that this appeal was taken from a final judgment and that they are aggrieved parties with standing to bring this appeal.

We note initially that the respondents’ assertion that both motions to dismiss are untimely is without merit. The respondents correctly note that neither motion to dismiss was filed within ten days after the filing of the appeal. Practice Book § 4056 provides, however, that “a motion based on lack of jurisdiction may be filed at any time. ...” Because both motions to dismiss are based on the lack of subject matter jurisdiction, they are not untimely. Therefore, the determinative issue in this appeal is whether the trial court’s adjudication of neglect without further disposition constitutes a final judgment.

“[I]t is difficult to devise a comprehensive definition of what constitutes a final judgment.” Madigan v. Madigan, 224 Conn. 749, 753, 620 A.2d 1276 (1993). In determining whether an order is a final judgment for purposes of appellate review, we rely on the standard articulated in State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). “That standard permits the immediate appealability of an order ‘in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.’ ” Madigan v. Madigan, supra, 753, quoting State v. Curcio, supra, 31.

We conclude that neither of the two circumstances set forth in Curcio that would permit appellate review are present in this appeal. Though the adjudicatory phase and the disposition phase were bifurcated in the present case, the findings of the adjudicatory phase did not terminate the proceeding. The trial court file reveals that at the time this appeal was filed, the trial court had not issued any orders as to disposition. In its memorandum of decision, the trial court ordered that “matters are to be scheduled for further proceedings regarding the dispositional phase of the petitions.” “Disposition in a neglect petition may take one of a number of forms, including return to parents, return to parents with a protective order, foster care placement, or the initiation of proceedings to terminate parental rights.” In re Juvenile Appeal (84-AB), 192 Conn. 254, 261, 471 A.2d 1380 (1984). Consequently, the rights of the parties have not been concluded in the present case because the trial court has yet to render any dispositional orders.

The petitioner’s motion and the minor children’s motion to dismiss the respondents’ appeal are granted.

       General Statutes § 46b-120 provides in relevant part: “The terms used in this chapter shall, in its interpretation and in the interpretation of other statutes, be defined as follows . . . ‘abused’ means that a child or youth (a) has had physical injury or injuries inflicted upon him other than by accidental means, or (b) has injuries which are at variance with the history given of them, or (c) is in a condition which is the result of maltreatment such as, but not limited to, malnutrition, sexual molestation, deprivation of necessities, emotional maltreatment or cruel punishment ... a child or youth may be found ‘neglected’ who (i) has been abandoned or (ii) is being denied proper care and attention, physically, educationally, emotionally or morally or (iii) is being permitted to live under conditions, circumstances or associations injurious to his well-being, or (iv) has been abused; a child or youth may be found ‘uncared for’ who is homeless or whose home cannot provide the specialized care which his physical, emotional or mental condition requires. . . ."

       Practice Book § 4056 provides: “Any claim that an appeal or writ of error should be dismissed, whether based on lack of jurisdiction, failure to file papers within the time allowed or other defect, shall be made by a motion to dismiss the appeal or writ. Any such motion must be filed in accordance with Secs. 4041 and 4042 within ten days after the filing of the appeal or the return day of the writ, or if the ground alleged subsequently occurs, within ten days after it has arisen, provided that a motion based on lack of jurisdiction may be filed at any time. The court may on its own motion order that an appeal be dismissed for lack of jurisdiction.”


author: FREEDMAN, J.

text:
    THOMAS GORE ET AL. v. PEOPLE’S SAVINGS BANK ET AL.
    (12203)
    SchaUer, Spear and Freedman, Js.

      Submitted on briefs December 14,1995
    decision released January 30,1996

      Dana P. Lonergan filed a brief for the appellants (plaintiffs).

      Peter J. Dauk and Lawrence F. Reilly filed a brief for the appellees (defendants).
   FREEDMAN, J.

This matter is before us on remand from the Supreme Court. Previously, in Gore v. People’s Savings Bank, 35 Conn. App. 126, 644 A.2d 945 (1994), we concluded that a landlord of a residential dwelling may be held strictly liable, pursuant to General Statutes (Rev. to 1985) §§ 47a-7, 47a-8 and 47a-54f (b), for personal injuries sustained by a minor tenant due to the minor’s exposure to lead-based paint in the landlord’s dwelling. The Supreme Court granted certification, reversed our judgment and remanded the case to this court, for consideration of the remaining issues raised by the plaintiffs. Gore v. People’s Savings Bank, 235 Conn. 360, 665 A.2d 1341 (1995). We now affirm the judgment of the trial court.

The plaintiffs, Thomas Gore and Wanda Copeland, on their own behalf and on behalf of their minor son, Kendall Copeland, brought this action against the defendants, People’s Savings Bank and M.S.B. Real Estate Corporation, claiming that the defendants were liable for the damages caused by their son’s exposure to lead-based paint in the defendants’ building. “The jury reasonably could have found the following facts. In 1984, the plaintiffs and Kendall Copeland moved into an apartment located at 400 Atlantic Street in Bridgeport. On May 22,1985, Audrey Gaines, aprogram coordinator for the Bridgeport department of health, inspected the plaintiffs’ apartment for the presence of lead. Gaines tested the surfaces of the apartment using a portable X-ray machine, which measured the amount of lead within the paint on the surfaces. This testing revealed that some surfaces contained more than five tenths of 1 percent lead by weight, the federal statutory standard then codified in 42 U.S.C. § 4841 and incorporated by § 47a-8. On the basis of the results of this inspection, Gaines sent notification to the landlord and requested that it abate the lead in the plaintiffs’ apartment. On August 26,1985, Gaines reinspected the apartment and determined that all lead hazards had been abated.

“By amended complaint dated October 1, 1992, the plaintiffs brought an action against the defendants for injuries that Kendall had suffered due to his exposure to the lead-based paint. The plaintiffs claimed that the defendants negligently had failed to comply with certain state laws pertaining to the health and safety of tenants. The plaintiffs also claimed that the defendants had failed to comply with the terms of their lease agreement requiring the defendants to comply with certain state laws pertaining to the health and safety of tenants. Finally, the plaintiffs alleged that the defendants were strictly liable for the damages caused by the lead-based paint violations. On October 20, 1992, after the close of evidence, the trial court granted the defendants’ motion for a directed verdict on the strict liability count against each defendant.” Gore v. People’s Savings Bank, supra, 235 Conn. 363-65.

“The jury found the defendants not liable, finding that there was a violation of a warranty or statute and that the defendants had actual or constructive notice of the violation, but that the defendants had repaired the condition constituting the violation within a reasonable period of time.” Id., 367.

On appeal, we concluded that the trial court had improperly directed a verdict in favor of the defendants on the strict liability counts. In so concluding, we noted that a violation of §§ 47a-8 and 47a-54f constitutes negligence per se, and that, because these statutes do not contain a provision permitting an excuse for the violation, landlords are strictly liable for damages upon proof of violation of the statute and proximate causation. Gore v. People’s Savings Bank, supra, 35 Conn. App. 135-36. The Supreme Court agreed with our conclusion that the presence of lead paint in violation of §§ 47a-8 and 47a-54f constitutes negligence per se, but further stated that these sections do not impose strict liability on landlords. Gore v. People’s Savings Bank, supra, 235 Conn. 372. Rather, the Supreme Court concluded that because § § 47a-8 and 47a-54f do not modify the common law elements of landlord premises liability, notice is relevant to a tenant’s cause of action. Id. The Supreme Court therefore remanded the case to this court for consideration of the issues stated above.

I

The first and second issues, regarding the jury instructions on notice and the reasonable time to repair following notice, are closely related and will be considered together. The trial court instructed the jury, inter alia, that the defendants were liable if the landlord had actual or constructive notice of the violation and if the landlord failed to repair the condition within a reasonable time after notice of the violation. These instructions are wholly consistent with the Supreme Court’s decision in Gore v. People’s Savings Bank, supra, 235 Conn. 360.

In Gore, the Supreme Court first outlined the traditional principles of landlord premises law, stating that “as a matter of common law, a tenant’s claim for injuries caused by lead-based paint in the apartment would depend upon proof of control and actual or constructive notice of the conditions giving rise to the defective conditions caused by the lead-based paint.” Id., 374. The Supreme Court next considered the language of § 47a-8, its legislative history and purposes and concluded that a violation of § 47a-8 constitutes negligence per se. Id., 380-82. The Supreme Court further stated that notice is relevant to an action based on § 47a-8, noting that the legislature has not acted to eliminate the common law requirement of notice. Id., 382-83.

In holding that notice is relevant to the action, the Supreme Court quoted with approval the commentary to § 17.6 of the Restatement (Second) of Property. “ ‘[T]he landlord is subject to liability under the rules of this section only for conditions of which he is aware, or of which he could have known in the exercise of reasonable care. Ordinarily, the landlord will be chargeable with notice of conditions which existed prior to the time that the tenant takes possession. Where the condition arises after the tenant takes possession, the landlord may not be able, in the exercise of reasonable care, to discover the condition, in which case the landlord will not be liable under the rules of this section until he has had a reasonable opportunity to remedy the condition after the tenant notifies him of it. Where the landlord is able to discover the condition by the exercise of reasonable care, he is subject to liability after he has had a reasonable opportunity to discover the condition and to remedy it.’ [2 Restatement (Second), Property, supra], comment (c). Thus, the Restatement (Second) of Property states that, even if the landlord violates a standard the violation of which constitutes negligence per se, no liability ordinarily attaches for injuries stemming from the violation unless the landlord had actual or constructive notice prior to the violation.” Gore v. People’s Savings Bank, supra, 235 Conn. 384-85. The Supreme Court concluded by noting that “the statutory framework evinces a legislative intent to afford landlords the opportunity to remedy violations of housing standards after receipt of notice.” Id., 388.

On that basis, we conclude that the trial court properly instructed the jury regarding the notice requirement and the requirement that the defendants have a reasonable time after notice to make the requisite repairs.

II

The plaintiffs next argue that the trial court improperly refused to allow them to inquire of Audrey Gaines, the program coordinator for the lead poisoning prevention project, whether any similar complaints regarding the presence of lead paint had ever been made in any other buildings owned by the defendants. The defendants argue in response that the trial court correctly excluded the evidence as irrelevant and prejudicial. We agree with the defendants.

As an initial matter we note that “[t]he trial court has broad discretion to determine the relevancy of evidence, and we will not disturb a trial court’s ruling on the admissibility of evidence in the absence of a clear abuse of discretion.” (Internal quotation marks omitted.) Chapman v. Norfolk & Dedham Mutual Fire Ins. Co., 39 Conn. App. 306, 317, 665 A.2d 112, cert. denied, 235 Conn. 925, 666 A.2d 1185 (1995). The record reveals that the trial court sustained the defendants’ objection to questions concerned with other properties owned by them, noting that it was “concerned with the premises.” The trial court then allowed the plaintiff to question Gaines concerning whether she knew of any other apartments within the same building that contained similar levels of lead. We conclude that the trial court properly excluded the evidence of lead levels in other properties as irrelevant to the issues before the court involving the subject premises.

The judgment is affirmed.

In this opinion the other judges concurred.

       The remaining issues that were remanded to this court for consideration are “ ‘whether the trial court improperly (1) instructed the jury that the plaintiffs had the burden of proof with respect to actual or constructive notice of the violation of the statute concerning lead paint, (2) instructed the jury that the defendants were entitled to a reasonable time after notice to make the necessary repairs pursuant to General Statutes § 47a-7 (a) (2), and (3) refused 1o allow the plaintiffs to question a witness regarding the presence of lead-based paint in other apartments owned by the defendants.' ” Gore v. People’s Savings Bank, supra, 235 Conn. 369-70 n.11.

       In Gore v. People’s Savings Bank, supra, 35 Conn. App. 133-34, we analyzed §§ 47a-8 and 47a-54f (b) together, noting that the prohibitions in each statute related to cracked, chipped, blistered, flaking, loose, or peeling paint were similar. The Supreme Court did not disagree with this assessment, and noted that its discussion of § 47a-8 will necessarily control the effect of § 47a-54f (b). Gore v. People’s Savings Bank, supra, 235 Conn. 372 n.13.

       The Supreme Court also held that Public Acts 1994, No. 94-220, § 11, which repealed § 47a-8, has no effect on the liability of the defendants in this case. Gore v. People’s Savings Bank, supra, 235 Conn. 391-93.

       Although the plaintiffs assert that the instruction with regard to notice was erroneous because the court improperly charged on the burden of proof, the plaintiffs are essentially arguing that there is no notice requirement. To the extent, however, that the plaintiffs are challenging the instruction placing the burden of proof on them to prove actual or constructive notice on the part of the landlord, we note that the jury found that there was notice.

       With regard to the burden of proof, the trial court charged the jury that “[i]f the defective condition existed before the tenants moved into the apartment, the landlord, not the tenant . . . has the burden of showing, by a fair preponderance of the evidence, a lack of notice or knowledge of the condition. ... If you find the landlord did not have constructive notice at the time the tenants moved in, then you must go on and decide whether the landlord received actual notice. If a defective condition arose after the plaintiffs moved into the apartment, the plaintiffs must show by a fair preponderance of the evidence that the landlord received actual notice of the condition.”

       Specifically, the trial court charged as follows: “Now, for liability to exist, the evidence must show four things. . . . First, the evidence must show a dangerous condition existed which was in violation of a warranty of habitability or a state statute. . . . Second, the evidence must show the landlord had constructive notice of the violation, or if the landlord did not have constructive notice, the evidence must show the landlord received actual notice of the violation. Three, the evidence must show the landlord failed to repair the condition within a reasonable time after the landlord had constructive notice or received actual notice. Four, the landlord’s failure to correct the condition within a reasonable time after constructive or actual notice was a proximate cause of the injuries for which the plaintiffs seek compensation.”

       The record reveals the following:
      “Q. Now, do you know of any other instances where these levels of lead were found in property owned by People’s?
      “[Defense Counsel]: Your Honor, what relevance does that have? I’m going to object.
      “[Plaintiffs’ Counsel]: Again, Your Honor, I claim it, I mean we—•
      “The Court: Sustained.
      “[Plaintiffs’ Counsel]: May I have an exception, Your Honor?
      “The Court: Exception is noted. We’re concerned with the premises.”

       We note that even if the trial court had abused its discretion, such abuse would have constituted harmless error because in this case the jury found that there was notice.


author: SCHALLER, J.

text:
    MINESHWAR KATHURIA ET AL. v. RICHARD K. PURCELL
    (13993)
    Schaller, Spear and Hennessy, Js.
    Argued November 28, 1995
    decision released February 6, 1996

      Donald J. Deneen, with whom was Janis C. Jerman, for the appellants (plaintiffs).

      William C. Franklin, with whom, on the brief, was Eric A. Russman, for the appellee (defendant).
   SCHALLER, J.

The plaintiffs, Mineshwar Kathuria and Nirmal B. Kathuria, appeal from the judgment of the trial court dismissing their summary process action against the defendant. The plaintiffs claim that the trial court improperly (1) concluded that the formula in the lease extension option exercised by the defendant providing for the amount of rent due during the lease extension was ambiguous, (2) failed to consider a signed estoppel certificate and (3) went outside the language of the lease to determine the parties’ intent. We reverse the judgment of the trial court.

The following facts are relevant to our disposition of this appeal. In 1988, the defendant entered into an agreement with Jonas Bastys and Hubert Bartzick to lease the Eastwood Country Club in Torrington for a period of five years commencing March 1, 1988. The agreement provided that the defendant would pay $120,000 for each of the first three years of the lease and $132,000 for each of the fourth and fifth years of the lease. Section 50 of the lease also provided the defendant with an option to renew the lease for an additional five years at an annual rent to be determined according to a formula therein contained.

On May 14,1992, the plaintiffs purchased the property from Bastys and Bartzick. In 1993, the defendant exercised his option to renew the lease pursuant to § 50, which provided: “It is agreed by the parties hereto . . . that the annual rental for each year of the entire term of the five-year lease extension period shall be adjusted on March 1,1993 and on the first day of March for each year of the extension period in the following manner . . . a). The basic index figure for the purpose hereof shall be the aforesaid index figure for March, 1988. If the corresponding index figure for March, 1993 and each March thereafter shall exceed or be less than the said basic index figure for March, 1988, then the annual rental for such year of the extension term shall be the greater of the annual rental for the prior year or annual rent increased to an amount computed by multiplying the said total annual rental then payable by a fraction, the numerator of which shall be the index figure for the last month of the lease term preceding the commencement of the extension term and the denominator shall be the index figure for March, 1988.” (Emphasis added.)

On the basis of the formula provided in § 50 of the lease, the parties agreed on the amount of rent due for the first year of the lease extension, the 1993-94 lease year. The parties multiplied the a,nnual rent then payable on March 1, 1993, $132,000, by a fraction with a numerator of 140.7, the February, 1993 index figure, and a denominator of 115.1, the March, 1988 index figure. This calculation yielded an annual rent of $161,358.82, which the defendant paid at $13,446.57 per month.

In March, 1994, at the beginning of the second year of the lease extension period, the defendant paid the plaintiffs $13,446.57, explaining that he could not calculate the new rent for the 1994-95 lease year because the current index figure was not yet available. Thereafter, when the February, 1994 index figure became available, Mineshwar Kathuria calculated the rent for the 1994-95 lease year by multiplying the annual rent for the previous year, $161,358.82, by 144, the February, 1994 index figure, over 115.1, the March, 1988 index figure. This yielded a rent of $201,873.75, or $16,822.82 per month. In a letter dated April 12, 1994, Mineshwar Kathuria presented his calculation of rent for the 1994-95 lease year to the defendant.

The defendant responded to the letter by presenting to Mineshwar Kathuria a calculation of rent made by William J. Marhefsky, the defendant’s accountant. Mar-hefsky had concluded that the annual rent for the 1994-95 lease year should be $165,143.35, or $13,761.95 per month. Marhefsky arrived at that figure by multiplying a base rent of $132,000 by the same fraction the defendant used.

Nevertheless, in May, 1994, the defendant made payments to the plaintiffs amounting to $16,822.82 per month for March, April and May of 1994, the amount that the plaintiffs claimed was due. In June, however, the defendant paid the plaintiffs only $4579.34. The defendant explained to the plaintiffs that this represented rent for June, 1994, minus overpayment for March, April and May of 1994. On June 16, 1994, the plaintiffs advised the defendant that he was in default of his rent obligation pursuant to § 50 of the lease agreement.

On June 29, 1994, the plaintiffs served the defendant with a notice to quit possession on or before July 6, 1994, for nonpayment of rent. Subsequently, on July 12, 1994, the plaintiffs filed a summary process complaint against the defendant seeking immediate possession of the Eastwood Country Club.

Following an August 17, 1994 hearing, the trial court, in its memorandum of decision dated September 8, 1994, concluded that the formula for determining rent during the lease extension period was ambiguous. The court determined that the plaintiffs’ interpretation of the lease would be “unconscionable,” and that the formula advanced by Marhefsky was not only the most reasonable interpretation, but was the one intended by the parties. The trial court, therefore, concluded that the defendant had paid all of the rent due.

“When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record. . . . [W]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law.” (Citations omitted; internal quotation marks omitted.) Gateway Co. v. DiNoia, 232 Conn. 223, 229, 654 A.2d 342 (1995). Because we disagree with the trial court’s conclusion that the formula for determining rent during the lease extension period was ambiguous, we reverse the judgment of the trial court.

The trial court based its findings on three parts of Mineshwar Kathuria’s testimony. First, he testified that the lease does not address how to compute the rent when the index figure does not rise. Second, he testified that the phrase in subsection (b) of § 50, “fi]n the event there is a change,” could refer to either a change in rent or a change in the index figure. Finally, he testified that pursuant to the formula he advocated, the index figure used as the numerator of the formula would change every year despite the actual language of the lease, which provided that “the numerator . . . shall be the index figure for the last month of the lease term preceding the commencement of the extension term.”

“ [A]ny ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms.’ ” Levine v. Massey, 232 Conn. 272, 279, 654 A.2d 737 (1995), quoting Reese v. First Connecticut Small Business Investment Co., 182 Conn. 326, 327, 438 A.2d 99 (1980). “The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity. . . . It is axiomatic that a party is entitled to rely upon its written contract as the final integration of its rights and duties.” (Citations omitted; internal quotation marks omitted.) Id. “[Wjords do not become ambiguous simply because lawyers or laymen contend for different meanings.” (Internal quotation marks omitted.) Water & Way Properties v. Colt’s Mfg. Co., 230 Conn. 660, 668, 646 A.2d 143 (1994).

Our review of the language of the lease agreement does not support the trial court’s findings. Section 50 of the lease agreement provides that “the annual rental for each year of the entire term of the five-year lease extension period shall be adjusted on March 1, 1993 and on the first day of March for each year of the extension period” by multiplying “the total annual rent then payable” by a fraction whose components are determined by index figures. (Emphasis added.) We conclude that because the rent must be adjusted for each year of the lease extension period, the words “total annual rent then payable” employed in the rent calculation formula must refer to the rent due on the first day of March for each successive year of the extension period.

The calculation of rent by Marhefsky, and accepted by the trial court, employs $132,000 as the “total annual rent then payable” figure in the rent calculation for the 1994-95 lease year. Pursuant to the initial five year lease, the defendant paid an annual rent of $132,000 for the 1991-92 and 1992-93 lease years. The rent due for the 1993-94, however, was $161,358.82, and therefore, the “total annual rent then payable” on March 1, 1994, was $161,358.82. Because the trial court’s calculation of rent for the 1994-95 used $132,000 rather than $161,358.82 as a multiplier, its finding that the defendant had paid all the rent owed by him was improper.

The defendant nevertheless argues that even if this court determines that the trial court improperly concluded that the defendant had paid all the rent he owed, this court should not remand with direction to render judgment in favor of the plaintiff. The defendant relies on our Supreme Court’s decision in Cumberland Farms, Inc. v. Dairy Mart, Inc., 225 Conn. 771, 778, 627 A.2d 386 (1993), for the proposition that “[ejquitable principles barring forfeitures may apply to summary process actions for nonpayment of rent if: (1) the tenant’s breach was not willful or grossly negligent; (2) upon eviction the tenant will suffer a loss wholly disproportionate to the injury to the landlord; and (3) the landlord’s injury is reparable.” We note that the defendant properly pleaded several special defenses, including the equitable defense against forfeiture, which must be considered upon remand. See Oakland Heights Mobile Park, Inc. v. Simon, 36 Conn. App. 432, 435-37, 651 A.2d 281 (1994).

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       Section 50 elsewhere provided: “The annual rental provided in this Lease is based upon the cost of living for the month of March, 1988 as reflected in the Consumer Price Index for Urban Wage Earners and Clerical Workers-U.S. City Average, All Items, published by the Bureau of Labor Statistics, U.S. Department of Labor based on all items for the period 1967 equaling 100.”

       Our conclusion that the formula for determining rent during the lease extension period was clear and unambiguous subsumes the remaining issues presented in this appeal and renders it unnecessary to decide each one individually.

       The record reveals, and both parties agreed, that the index figure for the last month of the lease term preceding the commencement of the extension term, February, 1993, was 140.7. Nevertheless, both parties advanced an interpretation of § 50 in which the numerator would change in the formula for adjusting rent each year of the lease extension period. Both parties, therefore, calculated rent for the 1994-95 lease year by employing the February, 1994 index figure of 144. By accepting Marhefsky’s interpretation of the formula for adjusting rent, the trial court also utilized the February, 1994 index figure. We conclude, according to the unambiguous language of the lease agreement, that the proper index figure for adjusting the rent each year of the extension period is the February, 1993 index figure of 140.7.