author: McLACHLAN, J.

text:
    STATE OF CONNECTICUT v. ANTHONY PAULING
    (AC 26973)
    Flynn, C. J., and McLachlan and Peters, Js.

      Argued March 21
    officially released July 17, 2007

      Deborah G. Stevenson, special public defender, for the appellant (defendant).

      Timothy F. Costello, special deputy assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Kevin Dunn, assistant state’s attorney, for the appellee (state).
   Opinion

McLACHLAN, J.

The defendant, Anthony Pauling, appeals from the judgment of conviction rendered after a jury trial, of unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a), assault in the third degree in violation of General Statutes § 53a-61 (a) (1), failure to appear in the second degree in violation of General Statutes § 53a-173 (a) (1) and failure to appear in the first degree in violation of General Statutes § 53a-172 (a) (l). On appeal, the defendant claims that the trial court improperly (1) denied his motion for a judgment of acquittal at the close of the state’s case because (a) the evidence was insufficient to sustain his conviction as to all four crimes and (b) the state failed to disprove his claim of self-defense, and (2) instructed the jury on the presumption of innocence, reasonable doubt and self-defense. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant and Tamisha Davenport had a romantic relationship. It began when they were teenagers, but they parted after a few months and did not see each other for several years. Approximately seven to eight years before the date of the incident, they resumed their relationship. The relationship was good at first, but gradually it began to deteriorate. Nevertheless, Davenport allowed the defendant to move into her apartment approximately two to three months prior to the incident because he had no other place to live.

On the morning of July 7, 2002, the defendant gave Davenport a greeting card for her birthday. She thanked him, but he told her that she had “an attitude,” and he angrily left the apartment. Sometime later that day, he telephoned Davenport and told her that he had hidden a birthday gift for her somewhere in the apartment. He hung up, then called her again and told her to wait for him. She told the defendant that she was going out with her neighbor for drinks. When the defendant returned to the apartment, Davenport was having a telephone conversation with Lou, a close male friend. Lou telephoned Davenport everyday, but they did not have a romantic relationship. According to Davenport, the defendant became upset whenever Lou called her.

That day, the defendant asked Davenport to whom she had been speaking, and she responded that the caller had been Lou. The defendant told Davenport that he was “tired of this shit,” and he started gathering his clothes and belongings from the bedroom in the apartment. As he was stuffing his clothes into a bag, the defendant complained that Davenport had not given him anything for his birthday the month before. As they spoke, the defendant became more and more angry. Davenport started to walk out of the bedroom, and the defendant grabbed her by her hair and slapped her across the face. After he slapped her two more times, she hit him. He grabbed her neck, threw her down on the bed and began to choke her. He told her that he was going to kill her. She fought back and scratched him. At least three times she got off the bed, but he grabbed her and threw her back on the bed and continued to choke her.

At that point, Davenport began screaming for her neighbor, who occupied the apartment next to hers in the same building, to telephone the police. Davenport managed to free herself and was trying to get through the bedroom doorway to leave the apartment. The defendant grabbed her by the shoulder and threw her into the wall. The back of her head hit the wall first, followed by her entire body, leaving a large indentation in the Sheetrock. She kept screaming for her neighbor to telephone the police. Davenport then tried to run for the outside door in the kitchen and stumbled over a broom. The defendant threw her to the floor, punched her twice in the face and kicked her. One of the punches was with a closed fist to Davenport’s left eye, and she felt the eyeball go back into her socket.

The neighbor and her boyfriend then came into Davenport’s apartment, having already telephoned the police. The defendant left. After the police and paramedics arrived, Davenport went to the emergency department at a hospital. The next day, her father took her to the police department to file charges and to meet with the victim’s advocate. That same day, the defendant arrived at the police station. He spoke with the same officer who had responded to the neighbor’s telephone call on the day of the incident. The officer had seen Davenport’s injuries. The defendant told the officer that he had struck Davenport but that he had done so in self-defense. He showed the officer a scratch mark on his forearm. The officer determined that the scratch mark was a defensive wound from a victim, and he issued the defendant a summons to appear in court.

The following procedural history is also relevant to the defendant’s claims on appeal. Initially, the defendant was charged with assault in the third degree, a misdemeanor. The defendant first appeared in court on July 9, 2002, and his case was continued to August 7, 2002. After subsequent continuances, the case was continued to October 24, 2002. At that time, the defendant was present when the prosecutor requested and was granted a continuance to November 20, 2002. The prosecutor wanted additional time to speak with Davenport because he had been informed that the injury to her left eye might have affected her eyesight. When the defendant’s case was called on November 20, 2002, there was no response. The court issued a rearrest order and set bond in the amount of $10,000.

The rearrest warrant was served on January 10, 2003. The defendant appeared in court on January 13, 2003, and was ordered to reappear on January 14, 2003. On that date, his case was continued to February 5, 2003, and then to March 13, 2003. On March 13, 2003, the state filed a substitute information charging assault in the second degree, a felony. The state also added a charge of failure to appear in the second degree because of the defendant’s failure to appear in court on November 20, 2002. The case was continued to March 27, 2003, for a pretrial.

On March 27,2003, the defendant arrived at the courthouse in the morning and spoke briefly with his public defender. He was not present, however, when the court called his case for the pretrial, and the court issued a rearrest order and set bond in the amount of $5000. The defendant was arrested on December 7, 2003. Two additional charges were added before trial, unlawful restraint in the first degree in connection with the original incident and failure to appear in the first degree for failing to appear at his pretrial on March 27, 2003.

Jury selection commenced on November 17, 2004, and the presentation of evidence began on November 19,2004. At the conclusion of the state’s case, the defendant moved for a judgment of acquittal on all four counts of the substituted information. The court denied that motion, and the defendant put on his case. Evidence concluded on November 23, 2004. The jury returned its verdict on November 24, 2004, finding the defendant guilty of the crimes of unlawful restraint in the first degree, assault in the third degree, failure to appear in the second degree and failure to appear in the first degree, and finding him not guilty of the crime of assault in the second degree. The coin! accepted the verdict and rendered judgment accordingly. This appeal followed.

I

The defendant first claims that there was insufficient evidence to convict him of unlawful restraint in the first degree, assault in the third degree, failure to appear in the second degree and failure to appear in the first degree. Additionally, he claims that the state failed to disprove his claim of self-defense.

“In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . .

“Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . .

“Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s] verdict of guilty. . . . [W]e do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. . . . Rather, we must defer to the jury’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude.” (Citations omitted; internal quotation marks omitted.) State v. Lopez, 280 Conn. 779, 808-809, 911 A.2d 1099 (2007).

A

The defendant claims that the court, in denying his motion for a judgment of acquittal, improperly determined that the state had proven the elements of unlawful restraint in the first degree because there was no evidence presented at trial that he restrained Davenport beyond “the most minuscule movement or duration of confinement . . . .” (Internal quotation marks omitted.) See State v. Winot, 95 Conn. App. 332, 341-42, 897 A.2d 115, cert. granted on other grounds, 279 Conn. 905, 901 A.2d 1229 (2006). Specifically, he argues that Davenport was able to leave the room without being stopped.

General Statutes § 53a-95 (a) provides: “A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose such other person to a substantial risk of physical injury.” The term “restrain” is defined in General Statutes § 53a-91 (1): “ ‘Restrain’ means to restrict a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent. . . .”

The defendant claims that the state failed to prove beyond a reasonable doubt that he restrained Davenport at any time because she never was prevented from leaving the bedroom or the apartment. According to the defendant, the evidence showed the “ ‘most minuscule’ ” of confinement as the two “ ‘wrestl[ed]’ ” on the bed. See State v. Winot, supra, 95 Conn. App. 341-42.

The jury was free to credit the testimony of Davenport and to disbelieve the defendant’s version of the events. Here, construing the evidence in the light most favorable to sustaining the verdict, the defendant grabbed Davenport by her hair, slapped her in the face three times, grabbed her by the throat, threw her onto the bed and held her down. When she nearly broke free while struggling on the bed, he grabbed her and threw her back onto the bed a number of times. Additionally, he grabbed her by the shoulder when she tried to escape through the bedroom doorway and threw her into the wall. The record contains evidence that Davenport struggled with and resisted the defendant and that he continued to use force to keep her on the bed. Clearly, such actions cannot be characterized as “the most minuscule movement or duration of confinement . . . .” (Internal quotation marks omitted.) Id. From the evidence presented, the jury reasonably could have found that Davenport was restricted in her movements in a manner that interfered with her liberty. See State v. Luster, 48 Conn. App. 872, 880-81, 713 A.2d 277, cert. denied, 246 Conn. 901, 717 A.2d 239 (1998).

B

The defendant also claims that there was insufficient evidence to convict him of assault in the third degree because the state failed to prove the key element of intent. Although the defendant conceded at trial that Davenport did suffer serious injury, he claims that the state never adduced any evidence of his subjective intent to cause such an injury.

A person is guilty of assault in the third degree when, with intent to cause physical injury to another person, he causes such injury to such person. General Statutes § 53a-61 (a) (1). The term “physical injury” is defined in General Statutes § 53a-3 (3) to mean “impairment of physical condition or pain . . . .”

“It is well established that the question of intent is purely a question of fact. . . . Intent may be, and usually is, inferred from the defendant’s verbal or physical conduct. . . . Intent may also be inferred from the surrounding circumstances. . . . The use of inferences based on circumstantial evidence is necessary because direct evidence of the accused’s state of mind is rarely available. . . . Intent may be gleaned from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading up to and immediately following the incident. . . . Furthermore, it is a permissible, albeit not a necessary or mandatory, inference that a defendant intended the natural consequences of his voluntary conduct.” (Internal quotation marks omitted.) State v. Salaman, 97 Conn. App. 670, 677, 905 A.2d 739, cert. denied, 280 Conn. 942, 912 A.2d 478 (2006).

Here, the jury reasonably could have concluded that the defendant intended to injure Davenport physically by crediting her testimony that he choked her, threw her into the wall, causing a large indentation in the Sheetrock, told her that he was going to kill her and punched her in the left eye with his closed fist. An expert witness testified that Davenport suffered blowout fractures of the orbital walls of her left eye socket, which causes her eye to sit back further from the front of the opening, and that the injury has resulted in pain, double vision and headaches. Accordingly, the state presented sufficient evidence to sustain the defendant’s conviction of assault in the third degree.

C

The defendant also claims that there was insufficient evidence to convict him of the two charges of failure to appear. Specifically, the defendant argues that the state failed to prove the element of wilfulness that is required under General Statutes §§ 53a-173 (a) (1) and 53a-172 (a) (1). He claims that the state proved only that he was not present in court when his case was called on November 20, 2002, and March 27, 2003, but that it did not refute his testimony that he had to care for his gravely ill mother on those two occasions.

“[T]o secure a conviction for failure to appear . . . the state must prove beyond a reasonable doubt that the defendant was legally ordered to appear under the terms of his bail bond, that he failed to appear and that such failure was wilful. To prove the wilful element of failure to appear the state must prove beyond a reasonable doubt . . . that the defendant received and deliberately ignored a notice to appear . . . .” (Internal quotation marks omitted.) State v. Hoover, 54 Conn. App. 773, 776, 738 A.2d 685 (1999).

With respect to the charge of failure to appear in the second degree, the state presented the following evidence. The defendant was present in court on October 24, 2002, when the court continued his case to November 20, 2002. He failed to appear on November 20, 2002, and the court issued a rearrest order. When police officers attempted to serve the rearrest warrant at the home of the defendant’s mother on January 9, 2003, the defendant opened the door but denied that Anthony Pauling was there. He then closed the door and quickly left the residence by the back door.

Significantly, the defendant’s own testimony indicated that he knew he was required to be in court on November 20,2002. He admitted that he was not present but stated that he had telephoned the clerk’s office at the courthouse to request another court date because of his mother’s illness. The clerk had testified, however, that there was no notation of that call in the defendant’s file.

With respect to the charge of failure to appear in the first degree, the state presented the following evidence. The defendant was not present in court when his case was called on March 27, 2003. The court issued a rearrest order at that time. When the police located him at a motel and attempted to execute the arrest warrant, the defendant gave the officer a false name. When asked to spell his last name, he gave two different spellings. The officer discovered the defendant’s true identity from his driver’s license and arrested him.

Again, during his testimony at trial, the defendant admitted that he knew that he had a scheduled court date for March 27, 2003. He further admitted that he had been in court on the previous court date when the court ordered the pretrial for March 27, 2003. He indicated that he came to court earlier that day but told his public defender that he had to leave to take his mother to a medical appointment.

From that evidence, the jury reasonably could have found that the defendant had notice of his scheduled court dates of November 20, 2002, and March 27, 2003, that he was not present when his case was called and that he deliberately chose not to be present. The defendant cites no case law for the proposition that a defendant is not obligated to appear if he believes that he has a good reason for his absence. The defendant simply failed to comply with the court’s orders to be present on November 20, 2002, and March 27, 2003, even though he had knowledge of those scheduled court dates and had not obtained continuances to reschedule them. Accordingly, we conclude that there was sufficient evidence to sustain the defendant’s conviction of the two charges of failure to appear.

D

The defendant’s final sufficiency of the evidence claim is that the state failed to disprove his affirmative defense of self-defense. After the state rested its case and the defendant testified as to his claim of self-defense, the state’s only rebuttal witnesses testified as to the arrest of the defendant for his failures to appear in court. The defendant argues that the state failed to disprove his self-defense claim because no further evidence was adduced as to that issue after the defendant’s testimony.

“Under our Penal Code ... a defendant has no burden of persuasion for a claim of self-defense; he has only a burden of production. . . . Once the defendant has done so, it becomes the state’s burden to disprove the defense beyond a reasonable doubt. ... As these principles indicate, therefore, only the state has a burden of persuasion regarding a self-defense claim: it must disprove the claim beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Singleton, 97 Conn. App. 679, 683, 905 A.2d 725, cert. granted on other grounds, 280 Conn. 949, 912 A.2d 484 (2006).

The defendant cites no legal precedent in support of his contention that the state’s evidence to disprove self-defense must be presented after the defendant’s testimony raising that claim. In fact, our law is to the contrary. “Whether the defense of the justified use of force, properly raised at trial, has been disproved by the state is a question of fact for the jury, to be determined from all the evidence in the case and the reasonable inferences drawn from that evidence.” (Emphasis added; internal quotation marks omitted.) State v. Wortham, 80 Conn. App. 635, 640-41, 836 A.2d 1231 (2003), cert. denied, 268 Conn. 901, 845 A.2d 406 (2004).

A review of the record discloses that the evidence presented during the defendant’s trial was sufficient to support the jury’s finding that the defendant was not acting in self-defense when he slapped, choked and punched Davenport. The jury was free to disbelieve the defendant’s version of the events that resulted in the injuries to Davenport. On the basis of the evidence and the reasonable inferences drawn from it, we conclude that the state presented sufficient evidence during the course of the trial to disprove the defendant’s claim of self-defense beyond a reasonable doubt.

II

The defendant next claims that the court’s failure to instruct the jury properly on the presumption of innocence, reasonable doubt and self-defense misled the jurors and deprived him of his constitutional rights to due process and a fair trial under the fifth and fourteenth amendments of the United States constitution and article first, § 8, of the Connecticut constitution.

With respect to claims of instructional impropriety, the 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 the jury was misled, [i]t is well established that [a] 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 [it] 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. . . . The charge must be considered from the standpoint of its effect on the juiy in guiding [it] to a proper verdict.” (Internal quotation marks omitted.) State v. Amado, 254 Conn. 184, 194, 756 A.2d 274 (2000).

A

We first address the issue of whether the court improperly instructed the juiy on the presumption of innocence. Specifically, the defendant claims that the court used language that undermined the presumption of innocence and equated the role of the jury to that of the state in “protecting the innocent” and “protecting society” from the guilty. The defendant argues that the use of the challenged language violated the directive of our Supreme Court in State v. Schiappa, 248 Conn. 132, 728 A.2d 466 (en banc), cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999).

We conclude that the defendant cannot prevail on this claim. We begin with a review of the jury instruction at issue. After instructing the jury on, inter alia, reasonable doubt and the essential elements of the crimes charged, the court issued the following instruction in its charge on the presumption of innocence: “The state is as much concerned as having innocent people acquitted as having a guilty person punished. But for the safety and well-being of all the citizens of this state and for the protection of life and property within the state, the state is concerned in securing the conviction of persons who have been proven by the evidence to be guilty of committing a crime beyond a reasonable doubt.” The defendant’s counsel objected to that language.

The defendant claims that the court’s instruction allowed the jury to infer that it could align itself with the state and not hold the state to its strict burden of proof. He argues that the language in that instruction “allowed the jury to infer that it was to first consider the needs of the state before applying the presumption of innocence to the accused.” The defendant claims that the challenged instruction was similar to, and had the same effect as, the language found to be improper in State v. Schiappa, supra, 248 Conn. 132. We disagree.

In Schiappa, our Supreme Court explicitly disapproved of the following language in a trial court’s jury instruction on the presumption of innocence: “But you must keep in mind that this rule of law is made to protect the innocent and not the guilty. ” (Internal quotation marks omitted.) Id., 170-71. The court stated that that phrase, when viewed in isolation, gave rise to a danger of juror misunderstanding that only innocent persons should be acquitted, and it directed the trial courts to refrain from using that language in the future. Id., 175. Nevertheless, it concluded that it was not reasonably possible that the jury was misled in light of the totality of the trial court’s instructions on the presumption of innocence and reasonable doubt.

It is true, however, as indicated by the defendant, that language nearly identical to the language challenged here was criticized in State v. Wilson, 71 Conn. App. 110, 800 A.2d 653, cert. denied, 262 Conn. 905, 810 A.2d 272 (2002). In Wilson, this court determined that the following language, when viewed in isolation, possibly was susceptible of an unacceptable interpretation in light of the rationale of Schiappa and suggested that it be omitted from future jury instructions: “The state is as much concerned in having an innocent person acquitted as in having a guilty person convicted. ” (Internal quotation marks omitted.) Id., 119. Nevertheless, after reviewing the charge as a whole, the Wilson court concluded that the trial court had thoroughly informed the jury of the defendant’s presumed innocence and that there was no reasonable possibility that the jury could have been misled by the instruction given by the court. The Wilson court found that the challenged wording did not violate the defendant’s constitutional rights and upheld the defendant’s judgment of conviction. Id., 121.

In the present case, the trial court did not use the language found to be improper in Schiappa. Although a portion of the challenged instruction here was criticized in Wilson, its use did not constitute a violation of the defendant’s constitutional rights. It is necessary, therefore, to look to the charge in its entirety to determine whether there is any reasonable likelihood of juror misunderstanding as to the state’s burden and the proof necessary for a conviction.

The challenged portion of the instruction was immediately preceded and followed by language underscoring the presumption of innocence and the state’s burden of proof. The court instructed the jury that “[t]he state does not require the conviction of innocent people or of any person whose guilt upon the evidence lies in the realm of reasonable doubt” and that “[i]t’s the sworn duty of the courts and jurors to safeguard the rights of persons charged with a crime by respecting the presumption of innocence, which the law imputes to every person charged, and by making the state meet its burden of proving guilt beyond a reasonable doubt. If and when that presumption of innocence is overcome by the evidence—proof beyond a reasonable doubt that the accused is guilty of the crimes charged—then it will be your sworn duty to enforce the law and render such verdicts.” These sentences, taken together with the court’s repeated explanations of the presumption of innocence and the state’s burden of proving the defendant guilty beyond a reasonable doubt, eliminated any reasonable likelihood of juror misunderstanding.

B

The defendant next claims that he was denied his due process right to a fair trial because the court improperly instructed the jury on reasonable doubt. Specifically, he argues that the instruction was misleading and confusing and, in combination with the improper instruction on the presumption of innocence, increased the probability that the jury did not understand that the state was required to prove the defendant’s guilt beyond a reasonable doubt.

The defendant challenges the following portion of the court’s instruction on reasonable doubt: “It’s the kind of doubt, which in the serious affairs which concern you in your everyday life, you would pay careful heed and attention to, the kind of doubt which, in these important matters, would cause you to hesitate to act.” The defendant duly objected to that language at trial. He claims that the instruction “did not connect the hesitation with causation” and that “[i]t did not instruct the jury that the reasonable doubt is the kind of doubt that in matters of importance causes the jurors to hesitate to act.”

The defendant has not indicated how this challenged instruction, when viewed in its entirety with the remainder of the charge on reasonable doubt, diminished the state’s burden of proof. Furthermore, language very similar to the “hesitate to act” language in this instruction was examined and not found to be improper in State v. Martinez, 95 Conn. App. 162, 192-93, 896 A.2d 109, cert. denied, 279 Conn. 902, 901 A.2d 1224 (2006), and State v. Otero, 49 Conn. App. 459, 470-73, 715 A.2d 782, cert. denied, 247 Conn. 910, 719 A.2d 905 (1998). We do not see any meaningful difference between the instructions in those cases and the instruction in the present case. With respect to the defendant’s claim that the court did not connect the hesitation to act with causation, that argument is refuted by the clear and unambiguous wording of the instruction itself.

Finally, the argument that the instruction on reasonable doubt, when taken together with the instruction on presumption of innocence, increased the probability of juror misunderstanding, is without merit. “[W]e disagree with the defendant’s contention that a combination of two challenged instructions becomes more than the sum of their individual parts and results in a dilution of the state’s burden of proof.” State v. Torres, 82 Conn. App. 823, 837, 847 A.2d 1022, cert. denied, 270 Conn. 909, 853 A.2d 525 (2004). We conclude that the charge, when read in its entirety, fairly presented the case to the jury under the established rules of law.

C

The defendant’s final claim of an improper jury instruction is addressed to the court’s charge on self-defense. He argues, inter alia, that the court’s instruction favored the state and prejudiced him, that the court failed to instruct the jury that he must be found not guilty if the state failed to disprove his claim of self-defense and that the court improperly instructed the jury on the duty to retreat. We disagree.

The defendant concedes that his claim was not preserved properly at trial. He now seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) Id., 239-40.

We will review the defendant’s claim because he has satisfied the first two prongs of Golding, as the record is adequate for review and the alleged violation is of constitutional magnitude. “[I]t is well established that [a]n improper instruction on a defense, like an improper instruction on an element of an offense, is of constitutional dimension.” (Internal quotation marks omitted.) State v. Montanez, 277 Conn. 735, 749, 894 A.2d 928 (2006). The defendant nevertheless cannot prevail on his claim, for the reasons set forth more fully hereafter, because he has failed to satisfy the third prong of Golding.

The court’s instruction to the jury as to the defendant’s claim of self-defense was clear-, thorough and comprehensive. The argument that the instruction favored the state and prejudiced the defendant by diluting the state’s burden and undermining the presumption of innocence is without merit. The court stated that “[o]nce self-defense is raised in a case, the state has the obligation to disprove the defense to you beyond a reasonable doubt,” that “the defendant does not have to prove that he acted in self-defense, but if it is raised in the case, the state has the obligation to disprove the defense beyond a reasonable doubt” and that the jury was to reject the claim of self-defense “if you find proven beyond a reasonable doubt that the victim was not using or about to use physical force upon this defendant, and if you further find proven beyond a reasonable doubt that the defendant had no reasonable belief that the victim was using or about to use such force upon him . . . .’’In the court’s instruction on self-defense, it repeated six times that it was the state’s burden to disprove the claim of self-defense beyond a reasonable doubt. Viewing the charge as a whole, it was not reasonably possible that the jury was misled as to the state’s burden of proof and the defendant’s presumption of innocence with respect to his claim of self-defense.

The defendant also claims that the court improperly instructed the jury on self-defense because it failed to charge the jury that it would have to find him not guilty if the state failed to prove that (1) he did not believe that he was in imminent danger and that the use of force was not necessary to protect himself, (2) he did not have reasonable grounds to believe that he was in imminent danger of death or injury, (3) the force was unreasonable, (4) acting with intent to cause physical injury or death to another person, he provoked the use of physical force by such other person, (5) he was the initial aggressor and did not attempt to withdraw or (6) he was engaged in mutual combat not specifically authorized by law.

The defendant’s argument fails because the court did instruct the jury on those elements on which evidence had been presented to raise the issue, and it was not obligated to instruct the jury on those elements on which no evidence was presented to support such an instruction. The record reflects that the court instructed the jury on all of the elements except provoking a victim to use force with intent to cause injury to that person and engaging in mutual combat. Nothing had been presented to the jury that would have justified instructions in those areas. “The court . . . has a duty not to submit to the jury, in its charge, any issue upon which the evidence would not reasonably support a finding.” (Internal quotation marks omitted.) State v. Rodriguez, 93 Conn. App. 739, 753, 890 A.2d 591 (2006), appeal dismissed, 281 Conn. 817, 917 A.2d 959 (2007).

The defendant next claims that the instruction was improper because the court failed to charge the jury that it was required to find him not guilty if the state failed to disprove his claim of self-defense. Citing State v. Montanez, 71 Conn. App. 246, 801 A.2d 868, cert. denied, 261 Conn. 935, 806 A.2d 1069 (2002), the defendant argues that the court’s failure to instruct the jury as to the consequence of the state’s failure to meet its burden of proof violated his constitutional due process rights.

In Montanez, the trial court properly instructed the jury that the state had the burden of disproving the defense of justification or self-defense beyond a reasonable doubt. Id., 250-51. The defendant argued, however, that the trial court never instructed the jury that self-defense was a complete defense to any of the crimes charged and that he must be found not guilty unless the state disproved the claimed justification. Id., 252. This court held that “part of a legally adequate instruction as to the defense should convey that the effect of a finding that the state has failed to disprove the defense requires the jury to render a verdict in the defendant’s favor. The court must unambiguously instruct the jury that it must find the defendant not guilty if it finds that the state has not disproved the defense.” (Emphasis in original.) Id., 253.

Here, the court in its instruction to the jury on self-defense specifically stated that “self-defense is a complete defense . . . .” Further, the court repeatedly instructed the jury that it was the state’s burden to disprove the defendant’s claim of self-defense beyond a reasonable doubt. The court did not specifically state, however, that the jury was required to find the defendant not guilty if the state failed to carry its burden.

Significantly, the court instructed the jury that the court was providing a summary sheet of each of the crimes charged in the information and the essential elements of those crimes that had to be proved beyond a reasonable doubt. The court noted that the summary sheets had been reviewed by counsel and that they approved of them. Those court exhibits were provided to the jury at the time of deliberation. The summary sheets, after describing the elements of assault in the second degree and the lesser included offense of assault in the third degree, contained the following instruction: “Further, you must find that this is not a case of self-defense, as I have defined that term for you, in order to find the defendant guilty.” Accordingly, we conclude that the instructions provided to the jury, when considered in their entirety, met the requirements set forth in State v. Montanez, supra, 71 Conn. App. 246.

The defendant’s final claim with respect to the jury charge on self-defense is that the court improperly included an instruction on the duty to retreat. The defendant argues that the duty to retreat applies only when a defendant is charged with the use of deadly force and avails himself of the defense of self-defense. We note, however, that the court did not instruct the jury with respect to the duty to retreat when using deadly physical force, but rather instructed the jury on the availability of the defense of self-defense when an accused is the initial aggressor.

In the present case, testimony was presented that indicated that the defendant was the initial aggressor. Although he testified otherwise, the jury nevertheless was entitled to believe Davenport when she testified that the defendant grabbed her first and began slapping her face. An initial aggressor still may avail himself of the defense of self-defense if he withdraws from the encounter and effectively communicates to such other person his intent to do so. See General Statutes § 53a-19 (c). The court instructed the jury in this case that “[generally, the defense of self-defense is not available to one who is the initial aggressor. . . . However, the defendant’s use of force may still be justified if you find [that] he withdrew from the encounter and made it clear to the other person that he was retreating from the use of force.” That instruction, when read in its entirety, was proper; it followed the statutory language set forth in § 53a-19 (c).

The judgment is affirmed.

In this opinion the other judges concurred.

       The jury found the defendant not guilty of the charge of assault in the second degree in violation of General Statutes § 53a-60 (a) (1).

       General Statutes § 53a-61 provides in relevant part: “(a) A person is guilty of assault in the third degree when . . . [w]ith intent to cause physical injury to another person, he causes such injury to such person or to a third person ....
      “(b) Assault in the third degree is a class A misdemeanor . . . .”

       General Statutes § 53a-60 provides in relevant part: “(a) A person is guilty of assault in the second degree when . . . [wjith intent to cause serious physical injury to another person, he causes such injury to such person or to a third person ....
      “(b) Assault in the second degree is a class D felony.”

       General Statutes § 53a-173 (a) provides in relevant part: “A person is guilty of failure to appear in the second degree when (1) while charged with the commission of a misdemeanor . . . and while out on bail or released under other procedure of law, he wilfully fails to appear when legally called according to the terms of his bail bond or promise to appear . . .

       General Statutes § 53a-95 provides: “(a) A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose such other person to a substantial risk of physical injury.
      “(b) Unlawful restraint in the first degree is a class D felony.”

       General Statutes § 53a-172 (a) provides in relevant part: “A person is guilty of failure to appear in the first degree when (1) while charged with the commission of a felony and while out on bail or released under other procedure of law, he wilfully fails to appear when legally called according to the terms of his bail bond or promise to appear . . . .”

       In reviewing this claim, we look to all of the evidence presented to the jury and not just the evidence presented at the close of the state’s case. “The so-called ‘waiver rule’ provides that, when a motion for [a judgment of] acquittal at the close of the state’s case is denied, a defendant may not secure appellate review of the trial court’s ruling without [forgoing] the right to put on evidence in his or her own behalf. The defendant’s sole remedy is to remain silent and, if convicted, to seek reversal of the conviction because of insufficiency of the state’s evidence. If the defendant elects to introduce evidence, the appellate review encompasses the evidence in toto.” (Internal quotation marks omitted.) State v. Perkins, 271 Conn. 218, 220, 856 A.2d 917 (2004).
      In his appellate brief, the defendant asserts that the “waiver rule is unconstitutional and should be reversed by our Supreme Court . . . .” (Internal quotation marks omitted.) First, our Supreme Court recently upheld the constitutionality of the waiver rule in State v. Perkins, supra, 271 Conn. 237. Second, “[w]e are not at liberty to overrule or discard the decisions of our Supreme Court but are bound by them.” (Internal quotation marks omitted.) Mazzuca v. Sullivan, 94 Conn. App. 97, 102, 891 A.2d 83, cert. denied, 278 Conn. 905, 896 A.2d 107 (2006).
      The defendant does not rely solely on that argument, however, and contends that there was insufficient evidence presented during the course of the entire trial to support the jury’s verdict.

       The defendant was charged in the substitute information with assault in the second degree but was found not guilty of that charge and was convicted instead of the lesser included offense of assault in the third degree. In afootnote in his appellate brief, the defendant claims thathe was subjected improperly to multiple punishments for the same offense in violation of his constitutional protection against double jeopardy.
      The defendant was not charged with assault in the third degree as a separate offense in the information, but rather was exposed to a conviction of that crime as a lesser offense included within assault in the second degree. The court clearly instructed the jury that it would have to find the defendant not guilty of assault in the second degree before it could consider whether there was sufficient evidence to establish that he was guilty of the lesser included offense of assault in the third degree. “It is to be presumed that the jury followed the court’s instructions unless the contrary appears.” State v. Rouleau, 204 Conn. 240, 254, 528 A.2d 343 (1987). The defendant’s double jeopardy claim is without merit.

       The state argued that such conduct reflected the defendant’s consciousness of guilt; see State v. Perkins, supra, 271 Conn. 249; State v. LaSalle, 95 Conn. App. 263, 272, 897 A.2d 101, cert. denied, 279 Conn. 908, 901 A.2d 1227 (2006); and the trial court gave a jury instruction on consciousness of guilt.

       Furthermore, the jury was not obligated to credit his proffered reasons for those failures to appear.

       The defendant additionally claims that the court should have granted his motion for a judgment of acquittal on the charge of failure to appear in the first degree because he was not provided with notice that he was subject to an increased penalty for failure to appear after the court allowed the state to file an amended information on March 13, 2003, which substituted the charge of assault in the second degree, a felony, for the charge of assault in the third degree, a misdemeanor. The defendant argues that the court improperly permitted the state to amend the information without that notice. The defendant cites no case law to support that contention.
      The state filed its substitute information prior to the commencement of trial. Leave of the court to amend an information is not required unless it is filed after the trial has commenced. See Practice Book § 36-18. A criminal trial begins with the voir dire of the prospective jurors. State v. Vitale, 76 Conn. App. 1, 15, 818 A.2d 134, cert. denied, 264 Conn. 906, 826 A.2d 178 (2003). Here, jury selection began November 17, 2004. The substitute information, charging assault in the second degree, was filed on March 13, 2003, more than twenty months prior to the commencement of trial. Permission of the court to file a substitute information was not required, and, therefore, the defendant’s claim that the court improperly allowed the state to file the substitute information is without merit.
      Furthermore, the defendant had notice of his exposure to increased penalties for failure to appear by the statutory language itself. General Statutes § 53a-60 (b) explicitly states that assault in the second degree is a felony. General Statutes § 53a-172 provides that a person is guilty of failure to appear in the first degree when he has been charged with a felony and fails to appear and that failure to appear in the first degree is a felony. The text of the statutes themselves provided the defendant with fair notice. See State v. Vakilzaden, 272 Conn. 762, 771, 865 A.2d 1155 (2005).

       The defendant states that his claim encompasses both federal and state constitutional violations. Because he has not briefed a state claim separately, we consider only a claim of a federal constitutional violation. See State v. Mulero, 91 Conn. App. 509, 514 n.3, 881 A.2d 1039 (2005), cert. denied, 277 Conn. 912, 895 A.2d 792, cert. denied, 549 U.S. 862, 127 S. Ct. 149, 166 L. Ed. 2d 108 (2006).

       We note that the challenged language in this appeal also was used in Schiappa, immediately preceding the language that the Supreme Court found to be improper. Schiappa did not discuss, and certainly did not criticize, the language claimed to be objectionable here. It also is not disputed that the trial court in this case did not use the prohibited language of Schiappa.

       We note that the second sentence of the instruction challenged by the defendant, referring to the concern of the state for the safety, well-being and protection of its citizens, has been challenged unsuccessfully in other appellate cases. See State v. Mejia, 233 Conn. 215, 242 n.20, 658 A.2d 571 (1995); State v. Dubose, 75 Conn. App. 163, 169, 815 A.2d 213, cert. denied, 263 Conn. 909, 819 A.2d 841 (2003).

       Practice Book § 42-16 provides: “An appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of exception. The exception shall be taken out of the hearing of the jury.”

       The court’s instruction on self-defense was as follows: “As to this charge in the information, assault in the second degree, the defendant by his own testimony has raised the issue of self-defense. I will tell you that self-defense is a complete defense if you find that it has in fact been established in this case.
      “Self-defense is a means by which the law justifies the use of force that would otherwise be illegal. Once self-defense is raised in a case, the state has the obligation to disprove the defense to you beyond a reasonable doubt. Under our law, a person is justified in using reasonable force upon another when he reasonably believes that such force is necessary to protect himself from the use of or imminent use of force.
      “In other words, self-defense is a legal defense to the use of force which would otherwise be criminal. Let me define that term for you in the legal sense here.
      “I want you to set aside any common or colloquial meaning you have heard before or your common colloquial understanding of the term. Our Penal Code provides as follows: A person is justified in using reasonable force upon another person to defend himself from what he reasonably believes to be the use of or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose.
      “Once again, the defendant does not have to prove that he acted in self-defense, but if it is raised in the case, the state has the obligation to disprove the defense beyond a reasonable doubt. What this statute does is, it focuses on the person claiming self-defense. It focuses on what he reasonably believed under the circumstances. And that presents a question of fact for you.
      “In other words, what is important is what the defendant reasonably believed under the circumstances as they existed. The test for the degree of force in self-defense is both a subjective and objective test, meaning [that] it has elements of both.
      “Self-defense requires you to measure the justifiability of the defendant’s actions on the subjective perspective. That is, what the defendant reasonably believed under the circumstances presented in the case, and, on that basis, what he perceived the circumstance to be.
      “The law, however, requires that this belief must have been reasonable and not irrational or unreasonable under the circumstance. That is, would a reasonable person in the defendant’s circumstance have reached that belief? That’s the objective part of the test. So, it’s both a question of what his belief was and whether that belief was reasonable.
      “In this case, if you find proven beyond a reasonable doubt that the victim was not using or about to use physical force upon this defendant, and if you further find proven beyond a reasonable doubt that the defendant had no reasonable belief that the victim was using or about to use such force upon him, then you would, under those conditions, reject the defense of self-defense.
      “Remember, however, the burden remains on the state to disprove the defense beyond a reasonable doubt.
      “One additional instruction with regard to self-defense. Generally, the defense of self-defense is not available to one who is the initial aggressor. The law of self-defense does not apply the right of an attack in the first instance. By definition, it means the defensive use of force. Aperson claiming this defense must act honestly and conscientiously under the circumstances. He must not provoke or bring the attack upon himself in order to provide an excuse to attack someone else. However, the defendant’s use of force may still be justified if you find [that] he withdrew from the encounter and made it clear to the other person that he was retreating from the use of force.
      “In summary, therefore, you’ve heard all of the evidence in the case with reference to the defendant’s claim of self-defense.
      “As I said to you, the state must disprove that defense beyond a reasonable doubt. That’s the charge on self-defense.”

       General Statutes § 53a-19 (c) provides: “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 ipjury 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.”


source: Caselaw Access Project

author: FLYNN, C. J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JOSEPH G. HILL
    (AC 27512)
    Flynn, C. X, and Harper and Pellegrino, Js.
    Argued April 24
    officially released July 17, 2007

      Glenn W. Falk, special public defender, for the appellant (defendant).

      Timothy F. Costello, special deputy assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Paul J. Ferencek, senior assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, C. J.

The defendant, Joseph G. Hill, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49’ and 53a-134 (a) (3). On appeal, the defendant claims that the court’s charge to the jury was ambiguous in that it failed to instruct the jury that it could only find him guilty if it found that the coparticipant in the crime used or threatened the use of a dangerous instrument. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, are relevant to the defendant’s appeal. At approximately 1:30 a.m. on May 21, 2002, Jorge Vega Pivaral, the complaining witness, was driving in the area of West Main Street in Stamford and was trying to locate his cousin. Pivaral, confused by the one-way streets, began to circle the area several times. Eventually, Pivaral turned onto Ann Street and observed the defendant and Miguel Cruz standing on a sidewalk on that street. As Pivaral turned onto Ann Street, the defendant asked Pivaral, through the open driver’s side window, if he wanted to purchase any drugs, to which Pivaral declined. Cruz also asked Pivaral if he wanted any drugs. After responding that he did not want to buy any drugs, Pivaral asked the defendant and Cruz if they knew where he could find his cousin. Cruz replied that he knew where Pivaral’s cousin lived and then told Pivaral to find a parking spot. Pivaral drove a short distance before parking his truck on the side of the road.

After Pivaral parked his truck, the defendant entered the vehicle, sat in the passenger seat and asked Pivaral for a cigarette. Pivaral gave the defenadnt two cigarettes, and, thereafter, Cruz ran up the street, returning to the truck a moment later. When Cruz returned, he approached Pivaral, who still was sitting in the driver’s seat, and directed the pointed end of a big, wooden stick at Pivaral’s face. Cruz demanded that Pivaral give him money, but Pivaral informed him that he did not have any money. When the defendant attempted to remove the keys from the ignition, Pivaral tried to kick him, but Cruz then began striking Pivaral in the head with the pointed stick. While Pivaral was being hit with the stick, the defendant removed the keys from the ignition and reached into Pivaral’s pockets, looking for money. Pivaral sounded the truck’s horn, causing the defendant and Cruz to flee. After using his cellular telephone to notify the police of the incident, Pivaral began to chase the defendant and Cruz. Pivaral caught up with the defendant and Cruz and asked them to return his keys, but they responded by demanding money. Thereafter, the police arrived, apprehended the defendant and later located Pivaral’s keys and the bloody stick that Cruz used to strike Pivaral. As a result of the injuries to his left temple, left ear and left side of his head, Pivaral received twenty-one stitches and was left with permanent scars.

The evidence was uncontested and overwhelming that Cruz, the defendant’s coparticipant, used a dangerous instrument. Here, it is not in dispute that Cruz threatened to use and did use the stick in a manner that was capable of causing and did cause serious physical injuiy to Pivaral in the form of gouges to his head. At trial, the defendant testified that Cruz approached the driver’s side window where Pivaral was sitting, “stuck the stick” in the window and demanded money. In addition, the defendant testified that Cruz held the stick “like he had a gun” and that he “must have hit [Pivaral] with the stick.”

In an amended information, dated July 15, 2003, the state charged the defendant with criminal attempt to commit robbery in the first degree and assault in the second degree as an accessory. A jury trial was held on July 15, 17 and 18, 2003, after which the jury found the defendant not guilty on the charge of assault in the second degree as an accessory. The defendant, however, was found guilty of attempt to commit robbeiy in the first degree. Thereafter, the court imposed a sentence of ten years incarceration, to run consecutively to a sentence he already was serving for violating his probation. This appeal followed. Additional facts will be set forth where necessary.

The defendant claims on appeal that the court’s instructions to the jury were misleading and ambiguous with respect to the essential elements of attempt to commit robbery in the first degree. More specifically, the defendant claims that it was reasonably possible that the jury was misled by the court’s oral and written instructions because they lacked a single, concise statement instructing the jury that in order to find him guilty of the charged offense, it had to find that the other participant in the crime used or threatened to use a dangerous instrument. The defendant concedes that this claim was not preserved at trial, but he seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We agree with the defendant that the record is adequate for our review and that the claim is of constitutional magnitude. State v. Williamson, 206 Conn. 685, 708, 539 A.2d 561 (1988) (“[i]t is . . . constitutionally axiomatic that the jury be instructed on the essential elements of a crime charged”). We, however, conclude that the defendant has not demonstrated that a constitutional violation clearly exists and clearly deprived him of a fair trial under the third prong of Golding. Therefore, we conclude that his claim fails.

In reviewing a jury instruction for impropriety, we adhere to the well established rule that “a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts.” (Internal quotation marks omitted.) State v. Leroy, 232 Conn. 1, 8, 653 A.2d 161 (1995). Our Supreme Court often has stated that a challenged jury instruction will not be tested by reference to whether the legal principles espoused in the charge are as accurate as those articulated in the opinions of the court of last resort. Id. Rather, the test of a court’s charge is “whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.” (Internal quotation marks omitted.) Id. Accordingly, we do not view the instructions as improper when the instructions are “correct in law, adapted to the issues and sufficient for the guidance of the jury . . . .” (Internal quotation marks omitted.) Id. “Moreover, as to unpreserved claims of constitutional error in jury instructions, [our Supreme Court has] stated that under the third prong of Golding, [a] defendant may prevail . . . only if . . . it is reasonably possible that the jury was misled . . . .” (Internal quotation marks omitted.) State v. Carpenter, 275 Conn. 785, 865, 882 A.2d 604 (2005), cert. denied, 547 U.S. 1025, 126 S. Ct. 1578, 164 L. Ed. 2d 309 (2006).

We begin by reviewing the court’s instructions to the jury with respect to the charge of attempt to commit robbery in the first degree. The court instructed the jury that the defendant was charged, under the first count of the information, with attempt to commit robbery in the first degree. Because the inchoate offense of attempt requires that the elements of robbery in the first degree be stated to the jury, as well as the elements of attempt, the court, stated that it would explain a step-by-step procedure and analysis for the jury to employ. The court instructed the jury that “the first thing [it had] to determine [was] whether the defendant [committed] what’s called a larceny,” and the court proceeded to give the elements of the offense of larceny, which are not in dispute in this appeal. Thereafter, the court stated that if the jury made a finding that the defendant committed a larceny, it, “must then determine if he [committed] a robbery.” Robbery, the court explained, is committed “when in the course of committing a larceny, a [person] uses or threatens the immediate use of physical force upon [another] person for the purpose of compelling the property to be delivered up.” The court continued by stating that the offense of robbery requires “a specific intent to commit larceny by force.” The court further instructed the members of the jury that “ [r] obbery then becomes first degree when in the course or commission of a robbery, the defendant or another participant in the crime, uses or threatens the use of a dangerous instrument.” After repeating the elements of robbery in the first degree, the court defined the term “dangerous instrument.”

Next, the court reiterated that the state was charging the defendant with the commission of the crime of attempt to commit robbery in the first degree. The court read the text of § 53a-49 (a) (2), which provides the elements of the offense of attempt, and continued by adapting the principles of the attempt statute to the facts of the present case. More specifically, the court, in addressing the first element of attempt, stated that the defendant “must have acted with the same intent, the same state of mind required for the crime of robbery . . . .” With respect to the second element, the court instructed that “the defendant must have acted to carry out that intent under the circumstances as he believed them to be, he must have engaged in conduct, which was a substantial step in a course of conduct, planned to end in his commission of the crime of robbery.”

Thereafter, the court instructed the jury on the doctrine of accessorial liability under the robbery in the first degree statute. The court stated the following: “Under our law, a defendant can be convicted of robbery in the first degree as a principal offender, as a principal, where a participant, other than the defendant, uses or threatens the use of a dangerous instrument. The statute imposes liability on a defendant when he commits robbery with another person, who, although unbeknownst to him, uses or threatens the use of any such dangerous instrument. ... To be guilty as an accessory, the defendant does not have to intend to commit robbery in the first degree or robbery by means of a dangerous instrument. In this regard, all that is required is proof beyond a reasonable doubt that the defendant intended to commit a robbery or a larceny by force, as we’ve discussed. It’s not necessary, therefore, that the state prove that the defendant intended or was even aware that a confederate would use a dangerous instrument.” (Emphasis added.) Last, the court instructed the jury that “if [it] [found that] the state [had] proven all of these elements beyond a reasonable doubt, [its] verdict as to this defendant, as principal or accessory, would be guilty of attempted robbery in the first degree.” In addition to its oral charge, the court provided the members of the jury with written instructions to summarize its oral instructions.

At oral argument before this court, the defendant asserted that the court’s charge to the jury was ambiguous with respect to the instruction on the dangerous instrument element and directed us to the portion of the oral instructions italicized previously and to the written instructions. With respect to the written instructions, the defendant argues that they are flawed because they failed to mention expressly the dangerous instrument element. See footnote 5 of this opinion. Specifically, the defendant refers to a portion of the oral instructions in which the court indicated that the written summary sheet would contain “the essential elements [of the crimes charged] . . . .” Although the written instructions do not list specifically the dangerous instrument element of robbery in the first degree, they instruct the jury to “[bear] in mind” the charges given orally concerning “principal and accessory liability” and “attempt to commit robbery in the first degree.” In addition to defining the term “dangerous instrument” in its oral charge, the court also provided instructions on robbery in the first degree and accessorial liability, which repeatedly apprised the jury of how the defendant could be convicted when a coparticipant threatened to use or used a dangerous instrument. Accordingly, we cannot conclude that it was reasonably possible that the summary sheet misled the jury as to the elements of attempt to commit robbery in the first degree when the sheet expressly referred to the oral instructions that, when read as a whole, instructed the jury several times on the dangerous instrument element.

To support his assertion that the court failed to instruct the jury that it must find that the other participant in the crime used or threatened to use a dangerous instrument, the defendant focuses on only two sentences in the court’s comprehensive oral instructions. The challenged portion, however, represents only a part of the court’s explanation of the doctrine of accessorial liability. Rather than viewing the challenged statements in isolation, we consider the instructions to the jury as a whole. State v. Leroy, supra, 232 Conn. 8. The defendant ignores the part of the court’s charge immediately preceding the challenged portion, in which the court stated that “a defendant can be convicted of robbery in the first degree ... as a principal, where a participant, other than the defendant, uses or threatens the use of a dangerous instrument. The statute imposes liability on a defendant when he commits a robbery with another person, who, although unbeknowst to him, uses or threatens the use of any such dangerous instrument.” These two sentences informed the juiy that the defendant, under the doctrine of accessorial liability, could not be convicted of robbery in the first degree unless the coparticipant used or threatened to use a dangerous instrument.

Moreover, it is worth noting that a careful reading of the jury instructions in their entirety further belies the defendant’s assertion of ambiguity in the charge. Because an instruction on attempt to commit robbery in the first degree requires a discussion of the underlying crime, the court explained the elements of the charged offense by employing a step-by-step procedure and analysis, which closely tracks the standard jury instruction for attempt found in D. Borden & L. Orland, 5 Connecticut Practice Series: Connecticut Criminal Jury Instructions (3d Ed. 2001) § 5.2, pp. 367-69. In its explanation of the elements of the underlying crime of robbery in the first degree, the court’s step-by-step procedure instructed the juiy to make findings and determinations as to the elements of larceny and robbery. Thereafter, the court repeatedly instructed on the dangerous instrument element of robbeiy in the first degree, stating that it was established when either the defendant or another participant in the crime used or threatened the use of a dangerous instrument. After discussing the elements of attempt, the court explained accessorial liability, and, as noted previously, those instructions stated, more than once, how the defendant could be convicted of robbery in the first degree if another participant used or threatened to use a dangerous instrument. To summarize, the court reminded the jury that it must find that the state proved all of the elements beyond a reasonable doubt in order to find the defendant guilty of the charged offense.

Although the court’s instructions to the jury must be correct in law, adapted to the issues and not misleading to the jury, we also are cognizant that the instructions need not be perfect, exhaustive or technically accurate. See State v. Stevenson, 53 Conn. App. 551, 573, 733 A.2d 253, cert. denied, 250 Conn. 917, 734 A.2d 990 (1999). Accordingly, we conclude that contrary to the defendant’s claim, the court’s failure to preface its instruction on the dangerous instrument element with the word “find” does not render the instruction defective. Viewing the court’s instructions to the jury as a whole, we conclude that the jury was instructed properly on the dangerous instrument element and was apprised that it had to find beyond a reasonable doubt that the state had proven all of the elements in order to find the defendant guilty of attempt to commit robbery in the first degree. The defendant’s claim fails to satisfy the third prong of Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-49 (a) provides in relevant part: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (3) uses or threatens the use of a dangerous instrument . . . .”

       “Under Golding, a defendant may prevail on unpreserved claims only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. . . . The first two [prongs of Golding] involve a determination of whether the claim is reviewable; the second two . . . involve a determination of whether the defendant may prevail.” (Citation omitted; internal quotation marks omitted.) State v. Peeler, 271 Conn. 338, 359-60, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005).

       In accordance with General Statutes § 53a-3 (7), the court defined dangerous instrument as “any instrument, which, under the circumstances in which it is used or threatened to be used, is capable of causing serious physical injury.”

       With respect to the charge of attempt to commit robbery in the first degree, the written instructions stated: “Bearing in mind the instructions I have given you regarding ‘principal and accessory liability,’ ‘intent,’ ‘larceny,’ ‘robbery’ and ‘Attempt To Commit Robbery in the First Degree,’ in order for you to find the defendant guilty under the 1st count of the information, the State has the burden to prove beyond a reasonable doubt that the defendant acting as principal or accessory: 1. Intended to wrongfully take property from Jorge Pivaral with intent to deprive him of that property; and 2. He intentionally did something which, under the circumstances as he believed them to be, was an act constituting a substantial step in a course of conduct planned to culminate in the robbery of Mr. Pivaral.” (Emphasis in original.)

       We note that the defendant makes no claim concerning the sufficiency of the evidence in this appeal.


author: PER CURIAM.

text:
    GORDON COLE v. COMMISSIONER OF CORRECTION
    (AC 27227)
    (AC 27228)
    Bishop, Graendel and Lavine, Js.
    Argued March 12
    officially released July 17, 2007

      Deborah G. Stevenson, special public defender, for the appellant-appellee (petitioner).

      Jo Anne Sulik, senior assistant state’s attorney, with whom, on the brief, were Madeline A. Melchionne, assistant attorney general, Mary M. Galvin, former state’s attorney, Kevin D. Lawlor, state’s attorney, and Angela R. Macchiarulo, senior assistant state’s attorney, for the appellee-appellant (respondent).
   Opinion

PER CURIAM.

These two appeals require us to examine the habeas court’s determinations regarding the effectiveness of trial counsel in failing to request certain presentence credit for the petitioner, Gordon Cole. The petitioner turned himself in to authorities in Alabama after he learned that Connecticut had issued a warrant for his arrest. Before he was returned to Connecticut for arraignment, he was incarcerated in Alabama for forty-five days. After the petitioner pleaded guilty and was sentenced, he filed an amended petition for a writ of habeas corpus, in which he alleged that (1) he was entitled to forty-five days of presentence credit and (2) his trial counsel was ineffective for failing to request it from the trial court during his plea canvass. The habeas court dismissed all claims raised in the petition, but ordered that the petitioner be awarded one day of credit for the time he spent in local lockup in Ansonia after he returned to Connecticut, but before he was arraigned. In AC 27227, the petitioner appeals from the judgment of the habeas court, dismissing the claims raised in the amended petition. In AC 27228, the respondent, the commissioner of correction, appeals from the court’s order awarding the petitioner one day of credit. We affirm that portion of the habeas court’s judgment that is the subject of the appeal in AC 27227. In AC 27228, we reverse that portion of the judgment ordering the respondent to award the petitioner one day of credit because the petitioner did not allege this claim in his amended petition.

The following facts are relevant to our resolution of both appeals. On October 17, 2003, the petitioner pleaded guilty to assault in the first degree in violation of General Statutes § 53a-59 (a) (3) and assault in the second degree in violation of General Statutes § 53a-60. He also admitted to a violation of probation. The trial court found that the pleas “were knowing and voluntarily made with the assistance of competent counsel,” and sentenced the petitioner to the agreed on total effective sentence of four years to serve followed by four years of special parole.

At the habeas trial, the petitioner’s trial counsel, Bruce E. Weiant, testified that he did not seek the forty-five day credit because the state agreed to reduce its plea offer from five years to serve to four years to serve if the petitioner did not pursue it. After Weiant testified, the habeas court also heard testimony from a records specialist employed by the department of correction (department). On direct examination, she testified that, to her knowledge, there is no statute that allows the department to grant presentence credit to inmates for time spent incarcerated in another state while awaiting extradition. On cross-examination, the petitioner’s habeas counsel inquired as to whether the petitioner could have received credit for the one day he spent in local lockup. The records specialist indicated that the department did not award such credit under the statute governing credit for presentence confinement and, accordingly, that the petitioner would have received the credit only if Weiant had asked for it at the time of sentencing and it was noted on the mittimus. Thereafter, counsel for the respondent argued that the one day of credit was beyond the scope of the petition.

In an oral decision, the habeas court found that the forty-five days of credit “was part and parcel of the pretrial negotiation process, and it appears that [Wei-ant] traded seeking the forty-five days in order to receive essentially one year off the to serve portion and one year off the special parole . . . .” The court stated: “It is clear that in order to receive a sentence of four years to be followed by four years special parole, as opposed to the five years and five year special parole sentence that the state was seeking, [the petitioner] had to give up any request for that forty-five days jail credit.” The court, thereafter, concluded: “[T]he petition will be in large measure dismissed. . . . [Hjowever, [the court does] grant that one portion [of the petition] to give the one day of local lockup credit to which [the petitioner] should have been entitled had the request been made at the time of sentencing.” The habeas court subsequently granted the petition for certification to appeal to this court.

AC 27227

The petitioner claims that the court improperly dismissed his allegations that he was entitled to presen-tence credit on the basis of its finding that his trial counsel traded the forty-five days for a lesser sentence. We affirm this portion of the court’s judgment.

“To prevail on a claim of ineffective assistance of counsel, a habeas petitioner generally must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).” (Internal quotation marks omitted.) Greene v. Commissioner of Correction, 96 Conn. App. 854, 857, 902 A.2d 701, cert. denied, 280 Conn. 916, 908 A.2d 536 (2006). “For ineffectiveness claims resulting from guilty pleas, we apply the standard set forth in Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985) .... To satisfy the prejudice prong, the petitioner must show a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” (Internal quotation marks omitted.) Hernandez v. Commissioner of Correction, 82 Conn. App. 701, 706, 846 A.2d 889 (2004).

Although the court did not engage explicitly in the traditional Strickland analysis, it is clear from the oral decision that it determined that trial counsel provided effective assistance to the petitioner with regard to the forty-five day credit. Our review of the record supports the conclusion that Weiant’s performance was not deficient. Moreover, the petitioner was not prejudiced, as he presented no evidence that he would have proceeded to trial had he known that he would not be given credit for the forty-five days. See Hill v. Lockhart, supra, 474 U.S. 59. Accordingly, the habeas court properly rejected the claims raised in the amended petition.

AC 27228

The respondent claims that the habeas court improperly awarded the petitioner credit for the one day he spent in local lockup, given that the one day of credit was not alleged in the petition. We agree and, accordingly, reverse that portion of the judgment.

“The petition for a writ of habeas corpus is essentially a pleading and, as such, it should conform generally to a complaint in a civil action.” (Internal quotation marks omitted.) Toccaline v. Commissioner of Correction, 80 Conn. App. 792, 818, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d 413, cert. denied sub nom. Toccaline v. Lantz, 543 U.S. 854, 125 S. Ct. 301, 160 L. Ed. 2d 90 (2004). “The principle that a plaintiff may rely only upon what he has alleged is basic. ... It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint.” (Internal quotation marks omitted.) Holley v. Commissioner of Correction, 62 Conn. App. 170, 181, 774 A.2d 148 (2001). Therefore, “[w]hile the habeas court has considerable discretion to frame a remedy that is commensurate with the scope of the established constitutional violations ... it does not have the discretion to look beyond the pleadings and trial evidence to decide claims not raised.” (Internal quotation marks omitted.) Cupe v. Commissioner of Correction, 68 Conn. App. 262, 268, 791 A.2d 614, cert. denied, 260 Conn. 908, 795 A.2d 544 (2002). “The purpose of the [petition] is to put the [respondent] on notice of the claims made, to limit the issues to be decided, and to prevent surprise.” (Internal quotation marks omitted.) Jenkins v. Commissioner of Correction, 52 Conn. App. 385, 406, 726 A.2d 657, cert. denied, 249 Conn. 920, 733 A.2d 233 (1999).

We have reviewed the petition. Nowhere did the petitioner allege that his trial counsel was ineffective for failing to request one day of credit from the trial court. Indeed, the petitioner’s claims refer repeatedly to his trial counsel's failure to request credit for the forty-five days he spent incarcerated in Alabama. Accordingly, although the court clearly wanted to rectify what it perceived to be an injustice, it abused its discretion in awarding the petitioner one day of credit. We therefore reverse this portion of the judgment.

The judgment is reversed in part on the respondent’s appeal and the case is remanded to recalculate the petitioner’s jail credit. The judgment is affirmed in all other respects.

       At oral argument before this court, counsel for the respondent, the commissioner of correction, indicated that the petitioner was in fact incarcerated in Alabama for fewer than the forty-five days alleged in the petition for a writ of habeas corpus. The exact number of days that the petitioner spent incarcerated in Alabama is not a contested issue on appeal. We refer, therefore, throughout this opinion to the time the petitioner spent incarcerated in Alabama as forty-five days.

       General Statutes §18-98d (a) (1) provides in relevant part: “Any person who is confined to a community correctional center or a correctional institution for an offense committed on or after July 1, 1981, under a mittimus or because such person is unable to obtain bail or is denied bail shall, if subsequently imprisoned, earn a reduction of such person’s sentence equal to the number of days which such person spent in such facility from the time such person was placed in presentence confinement to the time such person began serving the term of imprisonment imposed . . .

       The petitioner also claims on appeal that he is entitled to the forty-five day credit as a matter of law. Even if the petitioner was entitled to such a credit, which issue we do not decide, he traded it for a lesser sentence.


author: HARPER, J.

text:
    EDMUND BRAGDON ET AL. v. WILLIAM SWEET ET AL.
    (AC 27607)
    Schaller, DiPentima and Harper, Js.

      Submitted on briefs February 9
    officially released July 17, 2007

      John J. Ghidini III filed a brief for the appellant (named plaintiff).

      William J. Melley III filed a brief for the appellee (defendant Travelers Property Casualty Insurance Company).
   Opinion

HARPER, J.

This appeal involves an action by the plaintiff Edmund Bragdon to collect benefits under his employer’s underinsured motorist insurance policy with the defendant Travelers Property Casualty Insurance Company. The trial court rendered summary judgment after concluding that the plaintiff could not avail himself of General Statutes § 38a-336 (f), the underin-sured motorist exception to the workers’ compensation exclusivity provision contained in General Statutes § 31-284 (a). On appeal, the plaintiff claims that the court improperly determined that (1) his employer’s underinsured motorist policy with the defendant did not provide him with additional remedies beyond those delineated in the Workers’ Compensation Act, General Statutes § 31-275 et seq. (act), and (2) he was not “injured while occupying a covered motor vehicle,” as required to qualify for the underinsured motorist exception to § 31-284 (a). We affirm the judgment of the trial court.

The record reveals the following undisputed facts. The plaintiff is an employee of Bragdon Auto Towing, LLC (company), a corporate entity that is wholly owned by the plaintiffs brother, Keith Bragdon. On or about January 21, 2001, the plaintiff was injured as a result of being struck by a motor vehicle operated by William Sweet. At the time of the collision, the plaintiff was loosening sand in a sander attached to the back of a truck owned by George Bunnell.

Because the accident occurred during the course of the plaintiffs employment with the company, the plaintiff received workers’ compensation benefits in addition to compensation from Sweet’s insurance carrier. On February 7, 2003, the plaintiff filed a seven count complaint, of which only the fourth count is at issue. In the fourth count, the plaintiff alleged that the amounts received from Sweet’s insurance carrier were insufficient to compensate him fully for the injuries sustained in the accident. As a consequence, he alleged that he was entitled to recover under the terms of the underin-sured motorist policy issued by the defendant to the company. The defendant subsequently moved for summary judgment on the ground that the plaintiffs claim did not fall within the parameters of § 38a-336 (f) and was therefore barred by the workers’ compensation exclusivity provision contained in § 31-284 (a). In a memorandum of decision issued on March 2, 2006, the court agreed with the defendant and, accordingly, rendered summary judgment in its favor. This appeal followed.

“The standards governing our review of atrial court’s decision to grant a motion for summary judgment are well established. Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ....

“On appeal, [this court] must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Pepitone v. Serman, 69 Conn. App. 614, 618, 794 A.2d 1136 (2002). Because the trial court rendered judgment for the defendant as a matter of law, our review is plenary and we must decide whether the trial court’s conclusions are legally and logically correct and find support in the facts that appear in the record. See id.

I

The plaintiff first argues that there is a genuine issue as to whether the underinsured motorist policy represented an agreement between himself and the company to provide him with additional remedies beyond those established under the act. We conclude that the trial court never ruled on the merits of this claim and therefore, we decline to afford it review.

The record reveals that the plaintiff raised this issue in his memorandum of law in opposition to the defendant’s motion for summary judgment. The court, however, never addressed this argument in its memorandum of decision. Instead, it appears that the court rendered summary judgment solely on the ground that the plaintiff could not satisfy the requirements of § 38a-336 (f) and was therefore barred by § 31-284 (a) from seeking recovery under his employer’s underinsured motorist policy.

As the plaintiff notes in his brief, it is unclear from the memorandum of decision whether the court failed to consider his argument or merely rejected it without comment. Yet, it was the plaintiffs duty to clarify the reason for the omission by filing a motion for articulation. See Practice Book § 66-5. As this court has stated previously, “[a]n articulation is appropriate where the trial court's decision contains some ambiguity or deficiency reasonably susceptible of clarification. ... An articulation may be necessary where the trial court fails completely to state any basis for its decision ... or where the basis, although stated, is unclear.” (Citation omitted; internal quotation marks omitted.) Fantasia v. Milford Fastening Systems, 86 Conn. App. 270, 283, 860 A.2d 779 (2004), cert. denied, 272 Conn. 919, 866 A.2d 1286 (2005). It is well settled that “[t]his court is not bound to consider claimed errors unless it appears on the record that the question was distinctly raised . . . and was ruled upon and decided by the [trial] court adversely to the appellant’s claim.” (Internal quotation marks omitted.) Durkin Village Plainville, LLC v. Cunningham, 97 Conn. App. 640, 642 n.1, 905 A.2d 1256 (2006); see also Practice Book § 60-5. Furthermore, “[i]t is the responsibility of the appellant to provide an adequate record for review. . . .” Practice Book § 61-10.

In this case, the plaintiff has failed to satisfy his burden. Accordingly, we decline to review his claim. See Manifold v. Ragaglia, 94 Conn. App. 103, 125, 891 A.2d 106 (2006) (“[w]here the trial court’s decision is ambiguous, unclear or incomplete, an appellant must seek an articulation ... or this court will not review the claim” [emphasis in original; internal quotation marks omitted]); Auric Answering Service, Inc. v. Glenayre Electronics, Inc., 54 Conn. App. 86, 88, 733 A.2d 307, cert. denied, 250 Conn. 926, 738 A.2d 653 (1999).

II

The plaintiff next claims that his case falls within the parameters of § 38a-336 (f) because he was “injured while occupying a covered motor vehicle . . . .” General Statutes § 38a-336 (f). Specifically, the plaintiff relies on the policy’s extension of underinsured motorist coverage to anyone “occupying a covered ‘auto’ or a temporary substitute for a covered ‘auto.’ ” With regard to that language, the plaintiff argues that touching the sander on the back of Bunnell’s truck qualifies as “occupying” the truck. Furthermore, the plaintiff claims that there is a genuine issue of material fact as to whether Bunnell’s truck was a “temporary substitute for a covered ‘auto’ ” under the policy and could therefore be considered a “covered motor vehicle” within the meaning of § 38a-336 (f). We need not examine whether the plaintiff was “occupying” the truck because we conclude that his argument concerning the truck’s status as a “covered motor vehicle” has been raised for the first time on appeal.

The following additional facts are necessary to our resolution of the plaintiffs claim. In support of its motion for summary judgment, the defendant supplied the court with a copy of the insurance policy that it issued to the company. Included within the policy was a section entitled, “Item Three: Schedule of Covered Autos You Own.” Under that heading, the policy listed the year, make, model and vehicle identification numbers of three motor vehicles. Presumably on the basis of this section of the policy, the court determined that it was “an undisputed fact on the record that [the plaintiff] was not in physical contact with a vehicle insured under the Travelers’ insurance policy issued to [the company].” The court never considered whether, as a factual matter, Bunnell’s truck might qualify as a “temporary substitute for a covered ‘auto’ ” and therefore, trigger coverage directly under the policy. After reviewing the record, it is apparent that the court never addressed that claim because the plaintiff failed to bring it to the court’s attention.

“It is well settled that the trial court can be expected to rule only on those matters that are put before it. . . . With only a few exceptions . . . we will not decide an appeal on an issue that was not raised before the trial court. ... To review claims articulated for the first time on appeal and not raised before the trial court would be nothing more than a trial by ambuscade of the trial judge.” (Internal quotation marks omitted.) Lawton v. Weiner, 91 Conn. App. 698, 709 n.7, 882 A.2d 151 (2005). In this case, the plaintiff is arguing for the first time on appeal that he was injured while occupying a “temporary substitute vehicle” under the policy. Furthermore, he has not sought review under any doctrine by which we may reach issues that were not brought to the attention of the trial court. As a consequence, we decline to address this claim in accordance with the long-standing rule that this court will not review arguments that were never raised before the trial court.

The judgment is affirmed.

In this opinion the other judges concurred.

       George Bunnell is also a plaintiff in the action; however, he is not a party to this appeal. We therefore refer in this opinion to Bragdon as the plaintiff.

       Besides Travelers, the original complaint named the following individuals and corporate entities as defendants: William Sweet, Prudential Property and Casualty Insurance Company, Progressive Casualty Insurance Company, James RadgowsM, Helen Rajewski and Paul Botchis. This appeal involves only the summary judgment rendered in favor of Travelers. Accordingly, we refer in this opinion to Travelers as the defendant.

       General Statutes § 38a-336 (f) provides: “Notwithstanding subsection (a) of section 31-284, an employee of a named insured injured while occupying a covered motor vehicle in the course of employment shall be covered by such insured’s otherwise applicable uninsured and underinsured motorist coverage.”

       General Statutes § 31-284 (a) provides in relevant part: “An employer who complies with the requirements of subsection (b) of this section shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment . . . but an employer shall secure compensation for his employees as provided under this chapter .... All rights and claims between an employer who complies with the requirements of subsection (b) of this section and employees . . . arising out of personal injury or death sustained in the course of employment are abolished other than rights and claims given by this chapter . . . .”

       The other six counts of the complaint were not directed toward the defendant.

       Specifically, the plaintiff relies on the statement in General Statutes § 31-284 (a) that “nothing in this section shall prohibit any employee from securing, by agreement with his employer, additional compensation from his employer for the injury or from enforcing any agreement for additional compensation.”