text:
    Gary Fleischman v. Connecticut Board of Examiners in Podiatry
    (7407)
    (7752)
    Spallone, Daly and Norcott, Js.
    Argued January 3
    decision released July 3, 1990

      John R. Williams, with whom, on the brief, were Alan M. Kosloff and Suzanne R. Batchelor, for the appellant (plaintiff).

      Thomas J. Ring, assistant attorney general, with whom, on the brief, were Clarine Nardi Riddle, attorney general, Richard J. Lynch, Robert W. Walsh and Sharon A. Scully, assistant attorneys general, for the appellees (defendants).
   Daly, J.

In this opinion we dispose of two related appeals by the plaintiff, Gary Fleischman. Fleischman was sanctioned on three separate occasions by the Connecticut board of examiners in podiatry (board) and unsuccessfully appealed those decisions to the Superior Court. Fleischman appealed all three cases to this court, and we have already denied one such appeal. Fleischman v. Board of Examiners in Podiatry, 22 Conn. App. 181, 576 A.2d 1302 (1990) (Fleischman I).

In Fleischman I, we rejected the plaintiffs arguments that the board (1) lacked jurisdiction because it was improperly constituted and (2) deprived the plaintiff of due process by applying standards of care that had not been promulgated in agency regulations or established on the record through expert testimony. The plaintiff raises the same arguments in the remaining two cases, but they will not be considered again.

There are only two new issues that the plaintiff raises in the remaining appeals. The first issue arose in appeal no. 7752 and concerns whether the board abused its discretion in discounting the testimony of the plaintiff’s expert witness. The second issue has been raised and briefed in both appeal no. 7752 and appeal no. 7407 and concerns whether General Statutes § 20-59 constitutes an unlawful delegation of authority.

Proceedings in the first case, appeal no. 7407, began on October 24,1985, when the Connecticut department of health services (DHS) presented the board with a statement of charges against Fleischman, alleging that he had violated General Statutes § 20-59 in that he (1) negligently or incompetently performed foot surgery, (2) failed to provide adequate postoperative care and (3) failed to keep adequate medical records. On December 11, 1985, the board held a hearing on the charges. The board found that the plaintiff had committed the alleged violations in a decision it issued on June 25,1986. The board ordered a six month suspension of the plaintiff’s license to practice podiatry in Connecticut.

Proceedings in the second case, appeal no. 7752, commenced on August 1,1986, when the board submitted another statement of charges against the plaintiff. After a hearing, he was found to have committed the violations alleged and the board ordered that he pay a $5000 fine and that his license to practice podiatry be suspended for eighteen months.

I

The plaintiff claims in the second case that the board abused its discretion by relying on the testimony of Samuel Berkowitz, while rejecting the testimony of Marvin Z. Arnold. Arnold is a diplómate of the American board of ambulatory foot surgery. The plaintiff argues that the board discounted Arnold’s testimony because its hidden agenda in the case was to suppress the practice of minimal incision surgery.

The person under charges has the right to offer expert opinions at the hearing before the board and the board is bound to admit such evidence and to consider it. Jaffe v. State Department of Health, 135 Conn. 339, 350, 64 A.2d 330 (1949). The board, however, may utilize its own specialized knowledge in evaluating the evidence. General Statutes § 4-178 (8). From a practical standpoint, the expert opinions of physicians will rarely, if ever, bring the board to a decision at variance with its own conclusions because the board is itself expert. Levinson v. Board of Chiropractic Examiners, 211 Conn. 508, 531, 560 A.2d 403 (1989); Jaffe v. State Department of Health, supra, 349.

The board’s decision will stand unless it is illegal, arbitrary or an abuse of discretion. Jaffe v. State Department of Health, supra, 353. In this case, the board did not abuse its discretion in discounting the testimony of Arnold. “ ‘ “[T]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency.” ’ ” Feinson v. Conservation Commission, 180 Conn. 421, 425, 429 A.2d 910 (1980). “An administrative agency is not required to believe any witness, even an expert.” Manor Development Corporation v. Conservation Commission, 180 Conn. 692, 697, 433 A.2d 999 (1980). Although an agency board or commission consisting of lay persons may not completely disregard the only expert evidence available on an issue; Tanner v. Conservation Commission, 15 Conn. App. 336, 341, 544 A.2d 258 (1988); the same is not true where the board or commission is comprised of experts. With the facts of the conduct before it, the board was competent to determine whether that conduct was compatible with professional standards. See Jaffe v. State Department of Health, supra, 523.

II

The plaintiff claims that General Statutes § 20-59 constitutes an unlawful delegation of legislative power to a nonelective body. “The law-making power is in the legislative branch of our government and cannot constitutionally be delegated . . . but the General Assembly may carry out its legislative policies within the police power of the state by delegating to an administrative agency the power to‘fill in the details.’ . . . ‘In order to render admissible such delegation of legislative power, however, it is necessary that the statute declare a legislative policy, establish primary standards for carrying it out, or lay down an intelligible principle to which the administrative officer or body must conform.’ ” (Citations omitted.) New Milford v. SCA Services of Connecticut, Inc., 174 Conn. 146, 149, 384 A.2d 337 (1977).

We have held that standards similar to those set but in General Statutes § 20-59 are not constitutionally defective. Altholtz v. Dental Commission, 4 Conn. App. 307, 493 A.2d 298 (1985). There, we stated that “what constitutes ‘unprofessional conduct’ and what renders a professional ‘unfit’ or ‘incompetent’ are to be determined ‘by those standards which are commonly accepted by those practicing the same profession in the same territory.’ . . . These standards are part of the ethics of the profession, and every member of the profession should be regarded as an expert with regard to the determination of their meaning.” (Citations omitted;) Id., 314-15. Because every practicing member is an expert as to the meaning of the standards, the standards prescribe the limits of the board’s power with “reasonable clarity.” See State v. Stoddard, 126 Conn. 623, 628, 13 A.2d 586 (1940).

The plaintiff had the burden of establishing the unconstitutionality of General Statutes § 20-59 beyond a reasonable doubt. Grover v. Manchester, 168 Conn. 84, 88, 357 A.2d 922, appeal dismissed, 423 U.S. 805, 96 S. Ct. 14, 46 L. Ed. 2d 26 (1975). He has failed in this regard.

The judgments are affirmed.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 20-59. disciplinary action by board; grounds. The board may take any of the actions set forth in section 19a-17 for any of the following reasons: (1) Procurement of a license by fraud or material deception; (2) conviction in a court of competent jurisdiction, either within or without this state, of any crime in the practice of podiatry; (3) fraudulent or deceptive conduct in the course of professional services or activities; (4) illegal or incompetent or negligent conduct in the practice of podiatry; (5) habitual intemperance in the use of spirituous stimulants or addiction to the use of morphine, cocaine or other drugs having a similar effect; (6) aiding and abetting the practice of podiatry by an unlicensed person or a person whose license has been suspended or revoked; (7) mental illness or deficiency of the practitioner; (8) physical illness or loss of motor skill, including but not limited to, deterioration through the aging process, of the practitioner; (9) undertaking or engaging in any medical practice beyond the privileges and rights accorded to the practitioner of podiatry by the provisions of this chapter; or (10) violation of any provision of this chapter or any regulation adopted hereunder. The commissioner of health services may order a license holder to submit to a reasonable physical or mental examination if his physical or mental capacity to practice safely is the subject of an investigation. Said commissioner may petition the superior court for the judicial district of Hartford-New Britain to enforce such order or any action pursuant to section 19a-17. The clerk of any court in this state in which a person practicing podiatry has been convicted of any crime shall, upon such conviction, make written report, in duplicate, to the department of health services of the name and residence of such person, the crime of which such person was convicted and the date of conviction; and said department shall forward one of such duplicate reports to the board.”

       The board found that “[i]n September, 1984, the Respondent performed a bunionectomy on a patient named Teresa Heifetz using a technique known as minimal incision surgery .... While the surgery took place, an individual who was not wearing sterile garb was present in the room where the procedure was performed .... [T]he Respondent inserted into the patient’s foot a needle which [he] had previously placed on an unsterile counter .... [T]he Respondent drilled into the first metatarsal phalangeal joint on the patient’s right foot .... [T]here was a shattering of the first metatarsal head on the patient’s right foot.
      “As a part of his post-operative instructions to Ms. Heifetz, the Respondent directed the patient to apply gentian violet to the open wound site on a daily basis for the purpose of preventing infection .... [He] directed the patient to soak her foot in a mixture of lukewarm water and white vinegar for the purposes of promoting healing and preventing infection. Shortly after . . . surgery, Ms. Heifetz began to notice a greenish discharge from her open wound site. The Respondent, who was aware of this discharge, did not perform any test to determine whether the discharge was a bacterial infection. The Respondent last saw Ms. Heifetz in his office on or about October 17, 1985. On October 25, 1985, Ms. Heifetz was admitted to Milford Hospital with possible osteomyelitis and a definite post-operative wound infection .... The medical records concerning Ms. Heifetz maintained by the Respondent consisted largely of pre-printed forms and did not include a thorough medical history of the patient.”

       The plaintiff makes the following claims. “This is an appeal that arises from an inquisition. The field of podiatric surgery is dominated by traditional open surgery practitioners. None of the three ‘professionals’ on the board regularly practice minimal incision surgery Dr. Fleischman is [sic] one radically different method of foot surgery known as minimal incision surgery. The board in this case, and in a series of nearly identical cases, has set out to penalize Dr. Fleischman for his surgical methods. Methods, which if allowed to flourish in Connecticut, could supplant traditional open podiatric surgery and thus could pose an economic threat to Connecticut practitioners of traditional open podiatric surgery. Consistently, it has completely ignored the expert testimony of several of the nation’s leading minimal incision podiatric surgeons, Dr. Plon and Dr. Marvin Arnold, and completely ignored the published standards of the national podiatric professional associations, choosing instead to legitimize its decision by reference to the ‘expert’ testimony of surgeons who have only the most rudimentary experience with minimal incision surgery or even who are avowedly opposed to it .... This is blatant abuse of discretion.”


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    State of Connecticut v. Kenneth Curtis
    (8169)
    Borden, Daly and Lavery, Js.
    Argued February 7
    decision released May 18, 1990

      Salvatore C. DePiano, with whom was Edward F. Czepiga II, for the appellant (defendant).

      RichardF. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and JohnSmriga, assistant state’s attorney, for the appellee (state).
   Borden, J.

The defendant appeals from the trial court’s imposition of a condition on the order releasing him from custody. That order was rendered after the court found that he was incompetent to stand trial and that there was no substantial probability that his competency would be restored. The dispositive issue is whether the court has the authority under General Statutes § 54-56d (m) to require the defendant to submit to an annual examination for the purpose of determining whether his competency has been regained. We conclude that the court has no such authority. Accordingly, we reverse the decision of the trial court.

On October 30, 1987, the defendant allegedly shot two victims. One died later that day from a gunshot wound to the head, and the other received a nonfatal wound to the leg. Immediately after these shootings, the defendant shot himself in the head, causing extensive organic brain injury. In June, 1988, the defendant was charged with murder in violation of General Statutes § 53a-54a (a), attempted murder in violation of General Statutes § 53a-49 and 53a-54a (a), and assault in the first degree in violation of General Statutes § 53a-59 (a) (1).

Several competency hearings were held pursuant to General Statutes § 54-56d. At the first hearing, in August, 1988, the trial court, Barnett, J., found that the defendant was incompetent to stand trial. See General Statutes § 54-56d (a). The court was unable, however, to make a further finding as to whether there was a substantial probability that the defendant’s competency would be restored; see General Statutes § 54-56d (f); and it ordered a reexamination of the defendant. Additional hearings were held on the issue of the defendant’s potential for restoration.

At the final competency hearing, the trial court, Damiani, J., found that the defendant was incompetent, and that there was no substantial probability that the defendant, if provided with a course of treatment, would regain competency within the eighteen month placement period. See General Statutes § 54-56d (f) and (i). The court then properly determined that its actions were governed by General Statutes § 54-56d (m).

Under that statute, the court recognized that its actions were circumscribed; it could either “release the defendant from custody or order the defendant placed in the custody of the commissioner of mental health, the commissioner of youth services or the commissioner of mental retardation.” Under § 54-56d (m), an incompetent defendant is placed with one of the three commissioners in order to be civilly committed, and “[a] defendant who is not civilly committed as a result of an application made by the commissioner of mental health, the commissioner of children and youth services or the commissioner of mental retardation pursuant to this section shall be released.”

The court determined that the defendant did not qualify for placement with any of the three statutory custodians because he did not meet the statutory commitment criteria. It then ordered that the defendant be released from custody. Although recognizing that the release of the defendant from custody was the only option available under the statute, the court considered an unconditional release of the defendant without requiring periodic examinations by the diagnostic team to be tantamount to a dismissal of the charges. It then imposed such an annual examination as a condition of the defendant’s discharge. The defendant appeals from the court’s imposition of that condition on his release.

The defendant claims that the court was without authority, either express or implied, under General Statutes § 54-56d (m), to place any conditions on his release. He argues that the ordinary meaning of the word “release” precludes the court from encumbering his release with conditions, and that the statutory requirement that a defendant who is not civilly committed must be released implies that the release contemplated under this statute must be unconditional. He further argues that the legislature could have permitted conditions of release under General Statutes § 54-56d (m), as it did under General Statutes § 54-56d (i) where conditions of release are permitted when ordering outplacement for the purpose of rendering the defendant competent.

The state claims that the court’s order of annual examinations was within the purview of the statute. It argues that the statute, as applied to this case, was ambiguous because the defendant did not qualify for commitment with any of the three statutory custodians, and because the charges still outstanding against the defendant include murder, which has no statute of limitations. The state contends that, therefore, it was necessary for the court to fashion a reasonable order in accordance with the meaning and intent of the statute, and that, in the absence of institutionalization of the defendant, the imposition of a yearly examination was necessary for the court to be kept abreast of possible improvements in the defendant’s mental state that may allow for the prosecution to go forward. We agree with the defendant.

The procedures for determining competency and the placement alternatives available if a defendant is found incompetent are governed by General Statutes § 54-56d. This statute sets forth with punctilious detail the actions to be taken by a court in competency matters. Once the court makes certain findings regarding the defendant’s competency and his chances for restoration; see General Statutes § 54-56d (f); the statute contains carefully drawn procedures that dictate precisely what the court may order with respect to the disposition of incompetent defendants.

General Statutes § 54-56d (m) is specific in its mandate. It requires that “the court shall either release the defendant from custody or order the defendant placed in the custody of . . . [one of three] commissioner[s]. The commissioner given custody or his designee shall then apply for civil commitment according to chapter 306 or 368t. ... A defendant who is not civilly committed as a result of an application made by the commissioner . . . pursuant to this section shall be released.” (Emphasis added.) This clear and unambiguous language does not by its express terms give the court discretion to impose conditions on an incompetent defendant’s release, and we find no basis for the implied authority to do so.

Section § 54-56d is drafted with clarity and precision, and addresses exactly what the court may do in this factual situation. Here, the court made two express findings regarding the defendant’s competency. First, it found that the defendant was incompetent, and, second, it found that there was no substantial probability that his competency would be regained. Given these findings, under this statutory scheme for determining competency the court’s subsequent action regarding the defendant’s placement alternatives was controlled by General Statutes § 54-56d (g), which directed the court to “follow the procedure set forth in subsection (m) of this section.” Subsection (m) is a virtual blueprint for what the court may order when an incompetent defendant is found to have no substantial probability of regaining his competency. The court here acted improperly in framing a release order that, by including a condition thereupon, exceeded the boundaries of the statute.

In State v. Hanson, 210 Conn. 519, 556 A.2d 1007 (1989), our Supreme Court recently interpreted the word “release” as used in General Statutes § 17-251 (b). That statute requires that a hearing must be held at least once every five years to determine whether a convicted defendant, who was sentenced to the Whiting Forensic Institute pursuant to General Statutes § 17-245 (c), is eligible to be discharged from the institute prior to the expiration of the maximum period of his sentence, and if discharge is appropriate, to determine his disposition. General Statutes (Rev. to 1989) § 17-251 (b) provided that “[i]f the court determines the patient should be discharged from the institute, it shall then determine whether the patient should be released, granted parole or returned to the custody of the commissioner of correction.” (Emphasis added.) The Hanson court concluded that the word “release” as used in the statute was clear and unambiguous; id., 528; and accordingly interpreted it based on its plain meaning.

Under a similar analysis, we conclude that the plain meaning of the word “release” as used in General Statutes § 54-56d (m) means an unconditional rather than a conditional discharge. Section 54-56d (i) expressly provides for conditions of release in connection with outpatient treatment. Had the legislature intended that conditions of release be imposed on incompetent defendants who have no substantial probability of regaining competency, it could have readily included the necessary language.

The state argues that the burden on the defendant of submitting to a yearly examination is minor. Such a condition, however, would constitute an obligation of the defendant that is not required of the general community. When the state imposes special conditions on someone, thereby restricting his freedom, it is not, in our view, an inconsequential matter, no matter how the state wishes to categorize the degree of impingement. Proper judicial caution counsels that we hesitate to find such authority unless it is clearly stated. Compare, e.g., General Statutes § 53a-30 (giving the court authority to impose various conditions of probation); General Statutes § 54-64a (authority to impose conditions of release on bond).

Finally, unconditional release under § 54-56d (m) is a reasonable legislative determination. General Statutes § 54-56d (m) requires the release of defendants who are incompetent to stand trial, have no substantial probability of being restored to competency and do not require civil commitment under either chapter 306 for the mentally ill or under chapter 368t for the mentally retarded. Given that these three findings must be made by the court prior to a defendant’s release, we see no reason to read § 54-56d (m) so as to permit the imposition of conditions, such as an annual examination, on that release. Here, it is undisputed that there was little likelihood that the defendant’s competency would be restored so that he could later stand trial. More significantly, because civil commitment was found to be unnecessary, there is no reason to believe that the defendant represents a danger to himself or others. See General Statutes § 17-177.

The state does not argue to the contrary, but instead seeks to have this condition imposed so that it can monitor the defendant’s competency even though restoration is highly unlikely. It may well be beneficial for the state to have a formal mechanism to follow the progress of a harmless incompetent defendant who stands little chance of recovery. Absent statutory authority to do so, however, we will not strain the plain wording of the statute to reach such a result.

The order is set aside and the case is remanded with direction that an unconditional order of release be entered.

In this opinion the other judges concurred.

       General Statutes § 54-56d (m) provides: “If at any time the court determines that there is not a substantial probability that the defendant will become competent within the period of treatment allowed by this section, or if at the end of that period the court finds that the defendant is still not competent, the court shall either release the defendant from custody or order the defendant placed in the custody of the commissioner of mental health, the commissioner of children and youth services or the commissioner of mental retardation. The commissioner given custody or his designee shall then apply for civil commitment according to chapter 306 or 368t. The court shall hear arguments as to whether the defendant should be released or should be placed in the custody of the commissioner of mental health, the commissioner of children and youth services or the commissioner of mental retardation. The court shall dismiss, with or without prejudice, any charges for which a nolle prosequi is not entered when the time within which the defendant may be prosecuted for the crime with which he is charged, as provided in section 54-193, has expired. Notwithstanding the erasure provisions of section 54-142a, police and court records and records of any state’s attorney pertaining to a charge which is nolled or dismissed without prejudice while the defendant is not competent shall not be erased until the time for the prosecution of the defendant expires under section 54-193. A defendant who is not civilly committed as a result of an application made by the commissioner of mental health, the commissioner of children and youth services or the commissioner of mental retardation pursuant to this section shall be released. A defendant who is civilly committed pursuant to such an application shall be treated in the same manner as any other civilly committed person.”

       Thereafter, the legislature enacted Public Acts 1989, No. 89-89, amending § 17-251 (b) to provide that “[i]f the court determines the patient should be discharged from the institute, he shall be returned to the custody of the commissioner of correction.”


author: Mulcahy, J.

text:
    State of Connecticut v. Richard Plaskonka
    (8088)
    O’Connell, Lavery and Mulcahy, Js.
    Argued January 18
    decision released July 3, 1990

      Mary S. Chromik, law student intern, with whom were Timothy H. Everett and Richard Plaskonka, pro se, for the appellant (defendant).

      Leah Hawley, deputy assistant state’s attorney, with whom, on the brief, were John Bailey, state’s attorney, and Antonia Carabillo and Peter Soulsby, assistant state’s attorneys, for the appellee (state).
   Mulcahy, J.

The defendant appeals from his conviction, after trial to the court, of two motor vehicle infractions. The defendant was charged with failure to notify the motor vehicle department of a change of address as the registrant of a motor vehicle, in violation of General Statutes § 14-17a, and as the holder of a motor vehicle operator’s license, in violation of General Statutes § 14-45.

The defendant claims that the trial court (1) entered guilty verdicts upon insufficient evidence, (2) improperly decided the case prior to hearing closing arguments, (3) failed to read a defendant’s exhibit, and (4) improperly limited the cross-examination of a state’s witness. We affirm the judgment of the trial court.

I

The defendant claims that the evidence presented at his trial was not sufficient to convict him of either infraction. General Statutes § 51-164n (f) provides that “[i]n any trial for the alleged commission of an infraction, the practices, procedure, rules of evidence and burden of proof applicable in criminal proceedings shall apply.” Thus, the state had the burden of proving every element of the infractions beyond a reasonable doubt. See State v. Braxton, 196 Conn. 685, 691, 495 A.2d 273 (1985). In reviewing a sufficiency of evidence claim, we construe the evidence in the light most favorable to sustaining the conviction and determine whether the trier of fact could reasonably have inferred guilt beyond a reasonable doubt from the evidence presented. Id.

The record discloses that the trial court could reasonably have concluded that the defendant did not give notice of his address change to the motor vehicle department within the required forty-eight hour period.

The defendant was cited for the infractions on November 25,1988. On that date, as the defendant followed a police cruiser into the parking lot of a donut shop, the officer noticed that the front license plate was missing from the defendant’s car and, in the course of questioning the defendant about the absence of the license plate, the officer asked the defendant for his license and registration. The officer had personal knowledge that the defendant had recently changed his address. The officer later testified that there was no indication on the license or registration that the defendant had given notice of his address change. Also, an immediate check with the motor vehicle department’s “collect system” indicated a listing of only the defendant’s prior address.

The defendant testified that he changed his address on September 17,1988. His theory of the case was that he had sent a change of address postcard to the department of motor vehicles in a timely manner (although he could not remember the date), but the new address was not recorded in the motor vehicle department’s system. The defendant testified that he once had worked at the motor vehicle department and knew from experience that there is a lag between the time papers are sent to the department, and the time that they are processed. In his oral argument, the defendant stated that delays in processing by the department can be as long as thirty days. The trial court noted that the lapse in the present case would have to have been almost seventy days.

The credibility of the witnesses was for the trier of fact to assess and that assessment will not be disturbed on appellate review. Kimberly-Clark Corporation v. Dubno, 204 Conn. 137, 153, 527 A.2d 679 (1987). The trial court simply did not believe the defendant. Construing the evidence in the light most favorable to sustaining the convictions, we find that it was sufficient to prove beyond a reasonable doubt that the defendant did not give the required notice within forty-eight hours.

II

The defendant’s second claim is that the trial court should not have rendered judgment prior to hearing oral arguments. At the close of evidence, the court immediately announced its findings of guilty and imposed fines on both counts. The defendant objected, stating that he was entitled to give a closing argument. The court then agreed to hear the defendant’s argument, and, afterward, reduced the amount of the fines.

Both the Connecticut and the United States constitutions protect a defendant’s right to voice closing arguments before the trier of fact. The sixth amendment guarantee in the federal constitution of the right to assistance of counsel has been held to include the right to present closing arguments. Herring v. New York, 422 U.S. 853, 95 S. Ct. 2550, 45 L. Ed 2d 593 (1975). Also, article first, § 8, of the Connecticut constitution, which provides that “the accused shall have a right to be heard by himself and by counsel,” has been held to guarantee a right to present a closing argument. State v. Hoyt, 47 Conn. 518, 534-37 (1880). The defendant enjoys the same right whether the trial is to a jury or to the bench. Herring v. New York, supra, 859-60. If the trial court denies the defendant an opportunity to give closing arguments, the reviewing court should grant a new trial. State v. Hoyt, supra, 536; see also Herring v. New York, supra. Under Practice Book § 874, the defendant may make a single closing argument, and, although a defendant represented by counsel has no right to share closing arguments with his attorney; State v. Jennings, 20 Conn. App. 721, 724, 570 A.2d 234 (1990); a pro se defendant must be allowed to make a closing argument.

In the present case, the pro se defendant was afforded an opportunity to present a closing argument. He claims, however, that because the court announced its findings before hearing his closing argument, the court was no longer an impartial factfinder and the trial, as a whole, was rendered unfair.

The defendant cites State v. Washington, 182 Conn. 419, 438 A.2d 1144 (1980), for the proposition that the court was unfit to sit as trier of fact and listen to oral argument after having rendered findings. In that case, our Supreme Court held that the trial judge in a jury case must not expressly instruct the jurors that they may discuss the case among themselves prior to its submission to them. Id., 429. This rule is based on the concern that jurors who discuss the case before all of the evidence is presented to them will not weigh all of the evidence with the same degree of impartiality as they would otherwise. Id., 426.

The same concern is not present in this case. First, the court did not announce its findings until after all of the evidence was presented. Second, because the trial court agreed to listen to oral argument, we presume that it listened with impartiality, and our review of the record discloses nothing to the contrary. Finally, the fact that the court reduced the fine after listening to the defendant’s oral argument amply persuades this court that the defendant received fair consideration.

Ill

The defendant also claims that the trial court should have read the entire 122 pages of an exhibit. Because the defendant did not raise an objection at trial, we must consider whether to review this unpreserved claim under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). We decline to review this claim because, although there is an adequate record for review, the defendant’s claim is not of constitutional magnitude. See State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

The defendant fails to allege a constitutional violation in that he merely cites State v. Wood, 208 Conn. 125, 132-33, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988), for the proposition that the court was obligated to read the exhibit. This is an inaccurate reading of that case. In Wood, the court held that the trial judge has discretion to instruct the jurors simply to consider all of the evidence even when requested by the defendant to instruct the jurors to read all exhibits in their entirety. The defendant’s claim does not present a constitutional issue.

We have already rejected the defendant’s claim that the evidence against him was insufficient to support the convictions. That being so, his present argument seems to be made in the alternative: that although the evidence was sufficient to convict him on both counts, the trial court would have been more likely to acquit him had it read the entire exhibit. The defendant’s claim, therefore, goes to the weight that the trial court gave the exhibit. Although the weight that the trial court gave the exhibit was minimal, such was not a violation of a constitutional right of the defendant. “Weighing the evidence ... is the function of the trier of fact and this court will not usurp that role.” Gallo v. Gallo, 184 Conn. 36, 38, 440 A.2d 782 (1981).

IV

Finally, the defendant claims that he was denied an opportunity to cross-examine the state’s witness on issues affecting the witness’ reliability and credibility. We review this claim under the Evans bypass, although the defendant did not raise the point at trial, because the issue implicates a fundamental constitutional right of the defendant to confront the witnesses against him.

Claims of this nature are subject to a two step analysis. First, we determine whether the defendant received the minimum opportunity for cross-examination of adverse witnesses required by the constitution. See Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974). If so, we then consider whether the trial court’s restriction of cross-examination amounted to an abuse of discretion under the rules of evidence. State v. Johnson, 21 Conn. App. 291, 294, 573 A.2d 1218 (1990); State v. Castro, 196 Conn. 421, 424-25, 493 A.2d 223 (1985). “ ‘ “To establish an abuse of discretion, [the defendant] must show that the restrictions imposed upon the cross-examination were clearly prejudicial.”. . .’ ” (Citations omitted.) State v. Castro, supra, 426. If, however, the defendant is denied the right of effective cross-examination, there “ ‘ “would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.” Brookhart v. Janis, 348 U.S. 1, 3 [86 S. Ct. 1245, 16 L. Ed. 2d 314 (1966)].’ Smith v. Illinois, 390 U.S. 129, 131 [88 S. Ct. 748, 19 L. Ed. 2d 956 (1968).” Davis v. Alaska, supra, 318.

This is not a case in which the defendant was barred from cross-examining an adverse witness on matters relating to credibility and reliability. After carefully reviewing the record we find that the defendant received at least the minimum required opportunity to cross-examine.

Moreover, we find that the trial court did not abuse its discretion in limiting cross-examination. The ultimate issue was whether the defendant had notified the commissioner of motor vehicles of his change of address within forty-eight hours. The officer testified that there was no indication on the defendant’s license or registration, or in the police department’s “collect” system that the defendant had given such notification. The defendant did not claim during his testimony at trial that his license and registration reflected his address change on November 25,1988, the day in question. As stated, his theory of the case was that he had sent in timely notice to the department of motor vehicles, but it was not processed before November 25, 1988. Because the defendant did not dispute the officer’s statements of fact, his attempt to impeach the officer was not relevant. See State v. Gaynor, 182 Conn. 501, 509, 438 A.2d 479 (1980) (no abuse of discretion where questions asked on cross-examination are collateral or cumulative).

The judgment is affirmed.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 14-17a. notice of change in registrant’s address, (a) A person holding a certificate of registration for a motor vehicle issued by the commissioner shall notify the commissioner within forty-eight hours of any change of his address. The notification shall include his old address and his new address, (b) Failure to give the notice required by this section shall be an infraction.”

       “[General Statutes] Sec. 14-45. notice of change in operator’s address, (a) A person holding a license for the operation of a motor vehicle issued by the commissioner shall notify the commissioner within forty-eight hours of any change of his address. The notification shall include his old address and his new address, (b) Failure to give the notice required by this section shall be an infraction.”

       In his brief, the defendant points out that the state did not lay a foundation demonstrating that the “collect system” represents an up-to-date source for all new addresses for which the commissioner of motor vehicles has received notice. The defendant, however, failed to make this objection at trial. In the absence of exceptional circumstances, this court will not review a claim that was not raised in the trial court. Practice Book § 4185; State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973).

       The defendant refers us to Yopps v. State, 288 Md. 204, 178 A.2d 879 (1962), a case discussed in Herring v. New York, 422 U.S. 853, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975). Yopps involved a bench trial in which the court summarily announced its verdict of guilty after the close of evidence. The defendant in Yopps objected and stated that he wanted to give closing arguments, but the court still refused to hear his arguments. The Maryland Court of Appeals held that the denial of an opportunity to present arguments violated the defendant’s rights to assistance of counsel. Yopps v. State, supra, 207. The obvious difference between Yopps and the present case is that the defendant in this case was allowed to give oral arguments after he objected.

       The court and the defendant engaged in the following colloquy concerning the defendant’s exhibit:
      “The Court: I will admit [the exhibit] into evidence. I’d like to see it, please. “The Defendant: Did you want the whole 122 pages? You can have it. “The Court: It’s up to you.
      “The Defendant: This might give you a better feel for the whole background of Officer Tyler.
      “The Court: I do not intend to read 122 pages.
      “The Defendant: I didn’t think so, but . . .
      “The Court: Please continue.
      “The Defendant: Can I ask Officer Tyler some questions?
      “The Court: Please continue.”

        State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).

       The defendant’s right to confront the witnesses against him through cross-examination is guaranteed by the sixth amendment to the federal constitution and by article first, § 8, of our state constitution. At the present time there is no separate analysis of the defendant’s right under the federal and state constitutions. See State v. D ’Ambrosia, 212 Conn. 50, 57 n.5, 561 A.2d 422 (1989); State v. Johnson, 21 Conn. App. 291, 292 n.1, 573 A.2d 1218 (1990).

       The defendant cross-examined the state’s only witness, the officer who issued the citations, on the following issues: (1) whether the defendant’s license had a change of address sticker on it on November 25, 1988; (2) whether the defendant followed the officer into the parking lot where the citations were issued or whether the officer followed the defendant; (3) whether the officer remembered the address that was on the defendant’s registration at the time the citations were issued; (4) whether the officer saw, at that time, a new address printed in the new address box on the defendant’s registration; (5) whether the officer fabricated the section on his police report that quoted the defendant as threatening that “Chief Schnabel certainly won’t sit still for this”; (6) who had informed the officer that the defendant had changed his address; and (7) whether the officer had asked the defendant on November 25, 1988, if the defendant had changed the address on his license.

       The court sustained objections to the questions the defendant posed on the following subjects: (1) whether the state’s witness had intentionally hit another police officer with a motor vehicle; (2) how the state’s witness had determined that the defendant had followed him into the parking lot where the citations were issued; (3) whether the defendant had told the witness that the defendant had connections with persons at police headquarters; and (4) what were the names of the police officers who informed the state’s witness that the defendant had changed his address. The defendant twice asked the witness if, on November 25, 1988, the witness had asked the defendant whether he had changed his address. The court sustained an objection to the question the second time, after it had already been asked and answered.


author: Norcott, J.

text:
    State of Connecticut v. Kevin Livingston
    (7783)
    Dupont, C. J., Daly and Norcott, Js.
    Argued April 4
    decision released July 3, 1990

      Martin Zeldis, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Stephen Sedensky III, assistant state’s attorney, for the appellee (state).
   Norcott, J.

The defendant appeals from his judgment of conviction, after a trial by jury, of one count of robbery in the third degree in violation of General Statutes § 53a-136. The jury acquitted the defendant of a second count of robbery in the third degree. On appeal, the defendant claims that the trial court should not have refused to give an instruction on the defense of renunciation and that it should not have admitted into evidence a knife and a holster. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On the evening of February 29,1988, Felix Sanchez and Angel Padden were walking along Crescent Avenue in Bridgeport when they were confronted by the defendant and a companion, Thomas Phillips. The defendant and Phillips asked Sanchez and Padden for money, and, when Sanchez and Padden kept walking without giving a response, the defendant positioned himself in front of them and told them that if they moved he would “blow off” certain parts of their anatomies. While making this demand, the defendant held in his hand an object that resembled a gun. The defendant again demanded money, but Sanchez responded that he had none.

The defendant and Phillips then forced Sanchez and Padden against a wall, and the defendant proceeded to search Sanchez’ pockets and to pull out a $5 bill, which Sanchez promptly snatched back. As Phillips reached for the $5 bill, the defendant told Phillips to stop and to let Sanchez keep the money. Nothing further was taken from Sanchez, and he was not injured during the incident, which lasted approximately twenty to twenty-five minutes.

During Sanchez’ ordeal, Phillips had forced Padden against the wall and, at some point, grabbed two gold chains from around Padden’s neck. While Phillips was with Padden, the defendant picked up the receiver at a nearby emergency call box, giving the impression that he was calling the police to the scene. Almost immediately thereafter, Officers Miguel Perez and Michael Rynich approached in a police car. Sanchez spotted the police car and, running toward it, waved it down, as did the defendant, who was a few steps behind Sanchez. Sanchez testified that, as he ran toward the police car, he looked back and saw the defendant pass the object he had been holding to Phillips, who tossed it into a nearby bush.

Sanchez reached the police car first, and, after hearing Sanchez’ version of the incident, a version that the defendant vehemently denied when questioned by the police, Rynich arrested the defendant and Phillips. During his patdown of Phillips, Rynich observed a gold chain hanging from one of Phillips’ pockets and another gold chain on the ground next to Phillips’ left foot. Perez observed the chains also. Sanchez told Perez of the discarded object in the bushes, and Perez then went to the bushes and found a knife that was shaped like a gun. That knife was later introduced as evidence at the defendant’s trial.

The police then handcuffed the defendant and Phillips, placed them in the rear seat of the police car and drove them to the police station for booking. After the defendant and Phillips were taken from the patrol car, Rynich and Perez searched the rear of the vehicle and, in the process, pulled out the rear seat. As a result of this search, Perez noticed a leather belt holster on the floor near where the defendant had been sitting. This holster was also seized and admitted as evidence at the trial.

The defendant’s first claim is that the trial court should not have refused to instruct the jury on the defense of renunciation as provided by General Statutes § 53a-10. The defendant originally was charged with two counts of robbery in the first degree in violation of General Statutes § 53a-134 relative to Sanchez and Padden. The jury acquitted the defendant of the lesser included offense of robbery in the third degree relative to Sanchez, but convicted him of the same lesser included offense regarding Padden.

In its request to charge, the state asked that the trial court give an instruction based on accessory responsibility as provided by General Statutes § 53a-8. This request obviously was based on the fact that the evidence showed that, although the defendant and Phillips acted together, the defendant had the most direct contact with Sanchez while Phillips had the most direct contact with Padden. After unsuccessfully arguing that an accessory instruction was unnecessary, the defendant requested that the court give an instruction on the defense of renunciation. The state also requested that the court give an instruction on renunciation together with its instruction on accessory liability. Thereafter, the trial court instructed the jury on accessory liability but refused to instruct on renunciation. The defendant duly excepted to both the court’s instruction on accessory liability and its failure to give the renunciation charge.

The question presented to us by the defendant’s first claim is whether the trial court is required to give a requested jury instruction where the defendant has failed to comply with the rules of practice but where the state has provided, through its similar request for instruction, that which the defendant has neglected to provide. In framing this issue, we conclude that, notwithstanding his argument to the contrary, the defendant did not comply with Practice Book § 854 because his request for the instruction on renunciation did not contain “ ‘a complete statement of the essential facts as would have justified the court in charging in the form requested.’ ” State v. Hall, 213 Conn. 579, 593, 569 A.2d 534 (1990), quoting Dwyer v. Connecticut Co., 103 Conn. 678, 680, 131 A. 838 (1925). In his request, the defendant asserted only that “there is evidence alleging the presence and participation of a Mr. Phillips in this case.” This assertion is a “mere general statement” such as that condemned by our Supreme Court in Hall for noncompliance with our rules of practice. See id., 591-92. The state, citing Hall, urges that we go no further and that we conclude that, because the defendant’s request to charge did not comply with the rules of practice, the trial court was not required to give the requested instruction.

We cannot dispose of this issue so simply, however. We must first resolve the question of whether the trial court is required to give the requested instruction, if, as the defendant contends, the state has provided the trial court with the necessary evidentiary basis for the requested instruction, notwithstanding the defendant’s failure to do so.

We again are reminded that the rather unique twist to this case is that the state unsuccessfully requested virtually the same instruction on renunciation as did the defendant. While the defendant, however, gave the trial court no evidentiary basis to support his request to charge, the state did. The defendant contends that the state’s evidentiary basis for the requested instruction “filled the gap” in the defendant’s inadequate request, and thus the trial court had before it all that was needed to give the instruction as requested by both parties.

For the purpose of our threshold analysis, we assume the unique situation where the state provides the trial court with the evidentiary basis for a requested charge after the defendant has failed to do so. We find that, in such a situation, the trial court is required to give the requested instruction. Here, the defendant attempted to, and the state did in fact, request a charge on the legally recognized defense of renunciation. “ ‘[A] defendant is “entitled to have instructions presented relating to any theory of defense for which there is any foundation in the evidence, no matter how weak or incredible . . . United States v. Platt, 435 F.2d 789, 792 (2d Cir. 1970), quoting United States v. O’Connor, 237 F.2d 466, 474 n.8 (2d Cir. 1956).’ United States v. Alfonso-Perez, 535 F.2d 1362, 1365 (2d Cir. 1976).” State v. Fuller, 199 Conn. 273, 278, 506 A.2d 556 (1986). It is the defendant’s responsibility, however, to present a “ ‘complete statement of the essential facts as would have justified the court in charging in the form requested’ State v. Hall, supra, 593, quoting Dwyer v. Connecticut Co., supra; by compliance with Practice Book § 854. As our Supreme Court stated in State v. Hall, supra, 592, “ ‘a trial court [does not have] an independent obligation “ ‘to instruct, sua sponte, on general principles of law relevant to all issues raised in the evidence.’ ” ’ State v. McIntosh, [199 Conn. 155, 160, 506 A.2d 104 (1986)], quoting (State v. Preyer, 198 Conn. 190, 198 n.9, 502 A.2d 858 (1985).”

The state, too, maintains certain obligations in a criminal trial. “ ‘Cases brought on behalf of the [state of Connecticut] should be conducted with a dignity worthy of the client.’ ” State v. Couture, 194 Conn. 530, 567, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985). It is axiomatic that a prosecutor’s role encompasses both that of an advocate and that of an “administrator of justice.” 1 American Bar Association, Standard for Criminal Justice (2d Ed. 1986), The Prosecution Function, § 3-1.1 (b). “Although the prosecutor operates within the adversary system, it is fundamental that the prosecutor’s obligation is to protect the innocent as well as to convict the guilty, to guard the rights of the accused as well as to enforce the rights of the public. Thus, the prosecutor has sometimes been described as a ‘minister of justice’ or as occupying a quasi-judicial position.” Id., commentary.

Here, the state’s attorney duly fulfilled his obligations by joining the defendant’s request for a charge on renunciation where the evidence strongly suggested that the defense had been raised and by fully complying with the requirements of Practice Book § 854. By virtue of the state’s diligence, the trial court had before it all that was necessary to give the requested instruction on renunciation and was not left in a position, as in Hall, where it would have had to engage in sua sponte instructional procedure. As to this matter before us, the trial court should have looked toward the state’s vigorous, fair and efficient prosecution of the defendant and should have charged the jury on the defense of renunciation.

Our conclusion that the trial court should not have refused to charge on renunciation does not, however, end our analysis. “[A]n error in the charges requires reversal only if, in the context of the whole instruction, there is a reasonable possibility that the jury was misled in reaching its verdict.” State v. Anderson, 212 Conn. 31, 38, 561 A.2d 897 (1989). The state argues that even if the trial court should have given the requested instruction, the failure to do so was harmless because its request to charge provided the essential evidentiary basis for the count of robbery relating to Sanchez only, and the jury found the defendant not guilty of that charge stemming from the taking of Sanchez’ $5 bill. We agree.

It is clear, from our review of the record, that the state provided the trial court with sufficient evidence to charge on the robbery count relative to Sanchez. The state’s recitation of evidence supporting the request included the language, “There was testimony that Phillips kept the gold chains while Livingston allowed Felix Sanchez to keep his $5.00 which may indicate a lack of intent to permanently deprive the owner of his property as to the $5.00, but still intended Phillips keep the gold chains.” (Emphasis added.) This language, which constitutes part of the evidentiary basis in support of the request for an instruction on “accomplices” and “renunciation,” clearly limits the request to the Sanchez robbery. Because the jury acquitted the defendant of the robbery count relative to Sanchez, the trial court’s refusal to charge on renunciation is rendered harmless as to this count. The defendant’s contention that we should construe the language in the state’s request as including reference to the taking of Padden’s gold chains simply is without merit. There is absolutely no mention in these facts of the defendant’s actions relative to the emergency call box, to his veritable race with Sanchez to the patrol car or to any other evidence that could possibly be construed as a renunciation of the taking of Padden’s property. Since the defendant’s request for instruction is equally silent on this point, the trial court properly refused to charge the jury on an instruction not supported by any statement of essential facts. See State v. Woodard, 11 Conn. App. 499, 503, 528 A.2d 404, cert. denied, 205 Conn. 802, 531 A.2d 940 (1987).

II

The defendant next claims that the trial court should not have admitted into evidence the knife that Perez found in the nearby bushes and the gun holster that the police officers retrieved from the rear seat of the patrol car where the defendant had been sitting. The defendant argues that the introduction of these items was without probative value and was prejudicial. This claim requires little discussion.

Evidence is deemed admissible if it “ ‘tends to establish the existence of a material fact or to corroborate other direct evidence in the case.’ ” State v. Fritz, 204 Conn. 156, 168, 527 A.2d 1157 (1987). “Determinations of relevancy are within the broad discretion of the trial court and will not be overturned in the absence of clear abuse of discretion. Id., 167-68. In making such determinations, a trial court is not required to find as a prerequisite to admissibility that evidence is conclusively linked to other evidence. ‘Evidence is not rendered inadmissible simply because it is not conclusive. It is admissible if it tends to support a relevant fact even in a slight degree, so long as it is not prejudicial or merely cumulative. . . . The defendant’s objection goes essentially to the weight of the evidence rather than to its admissibility.’ State v. Morrill, 197 Conn. 507, 548-49, 498 A.2d 76 (1985).” State v. Ortiz, 14 Conn. App. 493, 499, 542 A.2d 734 (1988).

The defendant was initially charged with a violation of General Statutes § 53a-134 (a) (3). One of the essential elements that the state had to prove was that a participant in the robbery used or threatened the use of a dangerous instrument. From the evidence before it, the jury could have reasonably found (1) that at the inception of the robbery, the defendant displayed a shiny object that resembled a gun, (2) the victims saw the defendant pass the object to Phillips, who threw it into some bushes, (3) Perez retrieved the knife from the bushes to which he had been directed by the victims, (4) a small leather holster was found in the area of the patrol car where the defendant had been sitting, (5) the holster had not been in the rear seat prior to the defendant’s entry. The trial court correctly ruled, in essence, that it was the jury’s function to examine this relevant evidence to determine, for example, whether the knife resembled a gun or whether the knife fit the holster. The court correctly ruled that the defendant’s objection went to weight and credibility rather than to admissibility.

Finally, we are not persuaded by the defendant’s claim that the prejudicial effect of this evidence outweighed its probative value. Once the trial court determined the relevancy of the evidence, it ruled, in its discretion, that the probative value outweighed any prejudicial effect. See State v. Mandrell, 199 Conn. 146, 152-53, 506 A.2d 100 (1986); State v. Braman, 191 Conn. 670, 676, 469 A.2d 760 (1983). “ ‘ “Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” ’ State v. Falby, [187 Conn. 6, 23, 444 A.2d 213 (1982)].” State v. Mandrell, supra, 152; see also State v. Braman, supra. We find that the defendant has failed to overcome the heavy burden he bears when seeking reversal of the exercise of judicial discretion in this matter. See State v. Tirado, 194 Conn. 89, 95, 478 A.2d 606 (1984); State v. Johnson, 11 Conn. App. 251, 258, 527 A.2d 250 (1987).

The judgment is affirmed.

In this opinion the other judges concurred.

       Padden testified at trial that the object was shiny and had the shape of a gun, but he could not actually see a gun barrel.

       Perez testified that the holster was a popular model, a type of holster that the arresting officers themselves had owned. Perez also testified that he had checked the rear seat prior to his evening tour of duty and that no one had occupied the rear seat of the patrol car prior to the defendant and Phillips.

       General Statutes § 53a-10 provides in pertinent part: “defense, (a) In any prosecution in which the criminal liability of the defendant is based upon the conduct of another person under section 53a-8, it shall be a defense that the defendant terminated his complicity prior to the commission of the offense under circumstances: (1) Wholly depriving it of effectiveness in the commission of the offense, and (2) manifesting a complete and voluntary renunciation of his criminal purpose.”

       General Statutes § 53a-8 provides:“CRiMiNAL liability for acts of another. A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       The defendant’s request to charge on the defense of renunciation states in pertinent part:
      “8. There is evidence alleging the presence and participation of a Mr. Phillips in this case. I should also discuss with you a defense which is set forth in Section 53a-10 of our statutes. This section provides:
      “ ‘(a) In any prosecution in which the criminal liability of the defendant is based upon the conduct of another person under Section 53a-8, it shall be a defense that the defendant terminated his complicity prior to the commission of the offense under circumstances: (1) Wholly depriving it of effectiveness in the commission of the voluntary renunciation of his criminal purpose.
      “ ‘(b) For purposes of this Section, renunciation of criminal purpose is not voluntary if it is motivated, in whole or in part, by circumstances, not present or apparent at the inception of the actor’s course of conduct, which increase the probability of detection or apprehension or which make more difficult the accomplishment of the criminal purpose. Renunciation is not complete if it is motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim.’
      “If you find beyond a reasonable doubt that the defendant did any of the things specified in the statute with a criminal and common intent, and that he had effectively renounced his criminal purpose, he is not guilty of the crime and your verdict should be not guilty. If you do not find that to be so beyond a reasonable doubt, then he is entitled to acquittal at your hands. State v. Thomas, 105 Conn. 757, 762, 763 (1927).”

       The state’s request to charge on renunciation reads as follows:
      “I should also discuss with you a defense which is set forth in Section 53a-10 of our statutes. This sections provides:
      “ ‘(a) In any prosecution in which the criminal liability of the defendant is based upon the conduct of another person under section 53a-8, it shall be a defense that the defendant terminated his complicity prior to the commission of the offense under circumstances: (1) Wholly depriving it of effectiveness in the commission of the voluntary renunciation of his criminal purpose.
      “ ‘(b) For purposes of this section, renunciation of criminal purpose is not voluntary if it is motivated, in whole or in part, by circumstances, not present or apparent at the inception of the actor’s course of conduct which increase the probability of detection or apprehension or which make more difficult the accomplishment of the criminal purpose. Renunciation is not complete if it is motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim.’
      “If you find beyond a reasonable doubt that the defendant did any of the things specified in the statute with a criminal and common intent, and that he had not effectively renounced his criminal purpose, he is just as much guilty of the crime as though he had himself committed it and your verdict should be that he is guilty. If you do not find that to be beyond a reasonable doubt, then he is entitled to acquittal at your hands. State v. Thomas 105 Conn. 757, 762, 763 (1927).”

         The court reinstructed the jury, including the instruction on accessory responsibility above, after it granted the defendant’s motion for judgment of acquittal on the charges of robbery in the first degree. The defendant again excepted to the court’s instruction.

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

       The state’s “evidence supporting [the] request” on renunciation is as follows:
      “In the present case there was testimony that the defendant, Kevin Livingston, took $5.00 from Felix after he had brandished what he represented to be a weapon. The jury could believe the defendant and Thomas Phillips were acting together and were both principals or they could decide that Livingston was helping Phillips rob.
      “There was testimony that Phillips kept the gold chains while Livingston allowed Felix Sanchez to keep his $5.00 which may indicate a lack of intent to permanently deprive the owner of his property as to the $5.00, but still intend that Phillips keep the gold chains.”

       Our Supreme Court has adopted the position that a defendant is entitled to an unrequested charge on a particular defense only when it is his sole or principal defense. See State v. Preyer, 198 Conn. 190, 198 n.8, 502 A.2d 104 (1986). In the present case, the defense of renunciation was not the defendant’s only defense. At trial, the arresting police officers testified that the defendant told them that a robbery had not in fact occurred and, during closing argument, the defendant’s counsel similarly questioned the veracity of the victims’ versions of the events.

       Notwithstanding that the defendant has not raised this issue in the context of “constitutional instructional error,” we find that, on the whole record, the state has satisfied us that the refusal to charge was harmless beyond a reasonable doubt. See State v. Hoeplinger, 206 Conn. 278, 294-95, 537 A.2d 1010 (1988); State v. Coleman, 14 Conn. App. 657, 678-79, 544 A.2d 194, cert. denied, 208 Conn. 815, 546 A.2d 283 (1988).

       General Statutes § 53a-134 provides in pertinent part: “robbery in the FIRST degree: class B felony. (a)-A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime . . . (3) uses or threatens the use of a dangerous instrument.”

       The defendant was originally charged with two counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3) but was found guilty of only one count of the lesser included offense robbery in the third degree.