author: Schaller, J.

text:
    State of Connecticut v. Lloyd E. Webb
    (12946)
    Dupont, C. J., and Landau and Schaller, Js.
    Argued February 21
    decision released May 2, 1995

      Susan M. Hankins, assistant public defender, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom were Timothy J. Liston, senior assistant state’s attorney, and, on the brief, John T. Redway, state’s attorney, for the appellee (state).
   Schaller, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree with a firearm in violation of General Statutes § BSa-SBa. The defendant claims that (1) the trial court improperly instructed the jury on self-defense, (2) the statute defining first degree reckless manslaughter is unconstitutionally vague as applied in this case, and (3) the trial court abused its discretion in permitting the introduction of the defendant’s prior convictions as impeachment evidence. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On December 17, 1991, the defendant and several other men were at BC’s Pub in Durham drinking beer and playing pool. The defendant and Harold Zajechowski became involved in a dispute. The two went outside to fight but, after the defendant displayed a hunting knife, Zajechowski went back into the bar. The argument resumed and subsided several times and eventually the bar owner asked the defendant to leave. The defendant left the bar accompanied by Peter Bishop.

When the defendant reached his pickup truck, he noticed that a cooler of beer he had left in the back was missing. The defendant, believing that Zajechowski had taken it, tried to return to the bar, but Bishop dissuaded him. The defendant drove home and went inside while Bishop waited in the truck. The defendant returned to the truck carrying beer, cigarettes and a twelve-gauge shotgun.

The defendant and Bishop drove back to the bar just before 1 a.m. to retrieve a sweatshirt that the defendant had left behind. Before entering the bar, the defendant told Bishop he wanted to “kick some ass.” The defendant retrieved his sweatshirt and returned to the truck. The defendant noticed Zajechowski leaving the bar accompanied by Donald Clarke and Michael Davis. The three men entered a Ford pickup truck and drove off, with Clarke driving. The defendant and Bishop followed.

After several miles, Clarke noticed he was being followed. He accelerated but was unable to lose the defendant. Clarke put on a pair of gloves and retrieved an aluminum baseball bat from behind his seat. He stopped the truck on Brick Lane, and said that he was going to “put an end to this stupid shit right now.” Clarke exited the truck carrying the bat, with Zajechowski following behind. As Clarke approached the defendant’s vehicle, he told Zajechowski to get back in the truck.

Clarke struck the driver’s side window of the defendant’s truck with the bat, causing it to shatter. He demanded an explanation as to why the defendant was following him. Clarke then struck the truck two more times, once on the roof of the cab and once on the rear area of the cab. The defendant opened the door of the truck and reached behind the seat for his shotgun. He then fired a single shot which struck Clarke in the chest, killing him.

I

The defendant first claims that the trial court improperly instructed the jury on self-defense. Specifically, the defendant argues that the court substituted a wholly objective standard, where both a subjective and objective analysis is required. Because the defendant did not adequately preserve this claim at trial, he can prevail only if the claim meets the conditions set out in State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), or the plain error doctrine. Practice Book § 4185.

Under Golding, a defendant can prevail on a claim not preserved for 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.” State v. Golding, supra, 213 Conn. 239-40. We conclude that the defendant cannot satisfy the third prong of Golding.

“The standard of review to be applied to a claim of an improper instruction on the elements of self-defense is whether it is reasonably possible that the jury was misled. State v. Grullon, 212 Conn. 195, 204, 562 A.2d 481 (1989); State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982). The charge is to be read as a whole; sections are not to be judged in isolation from the overall charge. State v. Reed, 174 Conn. 287, 305, 386 A.2d 243 (1978). The charge is not to be ‘critically dissected in a microscopic search for possible error.’ State v. Foreshaw, 214 Conn. 540, 548, 572 A.2d 1006 (1990). The test to be applied to any part of a charge is whether the charge as a whole presents the case to the jury in a manner to prevent injustice. State v. Maturo, 188 Conn. 591, 599, 452 A.2d 642 (1982). We review the whole charge to determine whether it sufficiently guided the jury to a proper verdict. State v. Shaw, 24 Conn. App. 493, 499, 589 A.2d 880 (1991).” State v. Hester, 28 Conn. App. 469, 472, 612 A.2d 120 (1992); State v. Jenkins, 29 Conn. 262, 272-73, 614 A.2d 1249, cert. denied, 224 Conn. 916, 617 A.2d 171 (1992).

It is well settled that a jury’s evaluation of a claim of self-defense has both subjective and objective elements. State v. Hall, 213 Conn. 579, 586 n.7, 569 A.2d 534 (1990); State v. Corchado, supra, 188 Conn. 663; State v. Williams, 25 Conn. App. 456, 464, 595 A.2d 895, cert. denied, 220 Conn. 916, 597 A.2d 339 (1991). “In evaluating a claim of self-defense, a trier of fact must first examine the danger that a defendant claims he faced. It is clear that here ‘[t]he statute focuses on the [defendant] claiming self-defense. It focuses on what he reasonably believes under the circumstances . . . .’ (Emphasis in original.) State v. Corchado, [supra, 663].” State v. Williams, supra, 464. “ ‘The jury must view the situation from the perspective of the defendant. . . . [T]he defendant’s belief [however] ultimately must be found to be reasonable.’ ” State v. Hall, supra, 586 n.7, quoting State v. DeJesus, 194 Conn. 376, 389 n.13, 481 A.2d 1277 (1984). “In evaluating the defendant’s belief that he was faced with the imminent use of deadly physical force, the jury must first determine whether the defendant believed that an attack was imminent, and then it must determine whether that belief was reasonable.” State v. Bellino, 31 Conn. App. 385, 392-93, 625 A.2d 1381 (1993), appeal dismissed, 228 Conn. 851, 635 A.2d 812 (1994) (cert, improvidently granted).

The crux of the defendant’s argument is that the trial court’s instruction on self-defense caused the jury to believe that it should evaluate the defendant’s conduct by a solely objective test. We find this not to be the case. In its instructions, the trial court presented both the subjective and the objective parts of the test to be applied. The court did not omit the subjective part of the test; rather, it instructed the jury to “measure the justifiability of the defendant’s actions from the subjective standpoint.” The judge stressed this concept and repeatedly referred to the application of a two part, subjective and objective test. The court instructed the jury that it must “[determine whether the defendant believed that the use of deadly physical force was necessary and then determine whether that belief and use of deadly physical force was reasonable under the circumstances. . . . The danger perceived and the degree of force used are both objective and subjective tests. The objective part is that the perceived danger and the degree of force are one in which a reasonably prudent person in the same circumstances would have believed or used.”

“A party is not entitled to a charge which is beyond criticism in every particular. . . . Rather, a charge is adequate if it is legally correct and presents] the case to the jury in a just and fair manner.” (Citations omitted; internal quotation marks omitted.) State v. Knighton, 7 Conn. App. 223, 231, 508 A.2d 772 (1986). “We conclude that the trial court’s instructions, as a whole, properly included both the subjective and objective portions of the self-defense test. It properly directed the jury to consider the defendant’s personal belief about the danger he was facing . . . .” State v. Jenkins, supra, 29 Conn. App. 274. The defendant’s claim, therefore, fails under the third prong of Golding, because the alleged violation does not clearly exist. “Further, because there was no manifest injustice, the defendant’s claim does not warrant plain error review.” State v. Boles, 223 Conn. 535, 543, 613 A.2d 770 (1992).

II

The defendant was convicted of manslaughter in the first degree with a firearm; General Statutes § 53a-55a; the elements of which are the commission of manslaughter in the first degree under General Statutes § 53a-55 and the use or threatened use of a firearm. The defendant was found guilty of committing manslaughter under § 53a-55 (a) (3) while using a firearm. He claims that the statute defining first degree reckless manslaughter is unconstitutionally vague as applied in this case. Specifically, the defendant argues that § 53a-55 (a) (3) is void for vagueness under the. fifth and fourteenth amendments to the United States constitution and article first, §§ 8 and 9, of the Connecticut constitution, because the trial court failed to distinguish the recklessness element of manslaughter in the first degree from the ordinary recklessness element of manslaughter in the second degree. General Statutes § 53a-56. Although the defendant concedes that he did not properly preserve this claim at trial, he seeks to prevail under State v. Golding, supra, 213 Conn. 233, or the plain error doctrine. Practice Book § 4185. We note that this is not the first time a claim of unconstitutional vagueness has arisen under § 53a-55 (a) (3). See State v. Sawyer, 32 Conn. App. 854, 632 A.2d 372, cert. denied, 228 Conn. 911, 625 A.2d 1230 (1993); State v. Pitt, 28 Conn. App. 825, 612 A.2d 60 (1992).

“To enable us to review a claim that a statute is facially vague, the record needs to reflect only the fact that the defendant was convicted under the statute in question. To enable us to review a claim that a statute is vague as applied, the record must further reflect the conduct that formed the basis of the defendant’s conviction.” State v. Indrisano, 228 Conn. 795, 800, 640 A.2d 986 (1994). The record being sufficient, we advance our analysis to the second prong of Golding, namely, whether the claim is of constitutional magnitude alleging the violation of a fundamental right.

The defendant’s claim fails to satisfy the second prong of Golding because it lacks constitutional magnitude. His claim that the trial court failed to provide the jury with a clear definition of the difference between the two degrees of manslaughter is nothing more than an unpreserved claim of instructional error.

“Just as every claim of evidentiary error by the trial court is not truly constitutional in nature . . . every claim of instructional error is not truly constitutional in nature.” (Citation omitted.) State v. Walton, 227 Conn. 32, 64-65, 630 A.2d 990 (1993). The defendant’s claim that the trial court failed to distinguish between the two degrees of manslaughter does not amount to a claim that the statute was unconstitutionally vague as applied. “Robing garden variety claims of improper jury instructions concerning evidentiary matters in the majestic garb of constitutional claims does not make such claims constitutional in nature. See State v. Vilalastra, 207 Conn. 35, 46, 540 A.2d 42 (1988).” State v. Ulen, 31 Conn. App. 20, 37, 623 A.2d 70, cert. denied, 226 Conn. 905, 625 A.2d 1378 (1993). The defendant’s claim was directed solely toward the trial court’s charge to the jury. The defendant claimed that the court failed to distinguish between the recklessness requirement of the two manslaughter statutes and that it failed to define the aggravating factors in manslaughter in the first degree. The defendant’s claim does not focus on the vagueness of the statute; rather, it centers around the trial court’s instructions regarding the statute. “[I]t strains the meaning of constitutional claims to say that this claimed instructional error is constitutional in nature.” State v. Walton, supra, 65.

“Nor is the defendant’s claim reviewable as plain error under Practice Book § 4185. Plain error review ‘ “is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” ’ State v. King, 216 Conn. 585, 591, 583 A.2d 896 (1990). The claimed error here is not so egregious or obvious as to merit such review. State v. Gagnon, 18 Conn. App. 694, 712, 561 A.2d 129, cert. denied, 213 Conn. 805, 567 A.2d 835 (1989).” State v. Sawyer, supra, 32 Conn. App. 856-57.

Ill

Finally, the defendant claims that the trial court abused its discretion in permitting the introduction of the defendant’s prior convictions as impeachment evidence. Specifically, the defendant argues that his 1978 convictions for conspiracy to commit robbery in the second degree, assault in the second degree, robbery in the second degree, robbery in the third degree, and his 1982 conviction of larceny in the second degree should not have been allowed as impeachment evidence because of their remoteness. We do not agree.

“The credibility of a witness may be attacked by introducing the witness’ conviction of a crime if the maximum penalty for that conviction is imprisonment exceeding one year. See General Statutes § 52-145 (b); State v. Braswell, 194 Conn. 297, 307, 481 A.2d 413 (1984), cert. denied, 469 U.S. 1112, 105 S. Ct. 793, 83 L. Ed. 2d 786 (1985).” State v. Sauris, 227 Conn. 389, 409, 631 A.2d 238 (1993). “Three factors have usually been identified as of primary importance in considering whether a former criminal conviction is to be admitted: (1) the extent of the prejudice likely to arise; (2) the significance of the commission of the particular crime in indicating untruthfulness; and (3) its remoteness in time.” State v. Nardini, 187 Conn. 513, 522, 447 A.2d 396 (1982). We will not disturb the trial court’s determination as to the admissibility of a prior conviction to impeach a witness absent an abuse of discretion. State v. Braswell, supra, 307; State v. Nardini, supra, 521-22.

“While leaving the matter to the general discretion of the trial court, [our Supreme Court has] sanctioned a general guideline for the determination of remoteness that parallels rule 609 (b) of the Federal Rules of Evidence. Rule 609 (b) establishes a ten year limitation from conviction or release from resulting confinement upon the use of the conviction for impeachment purposes unless the probative value of the conviction substantially outweighs its prejudicial effect. State v. Nardini, supra, [187 Conn.] 525-26. . . . [W]e recognize that convictions having special significance on the issue of veracity may surmount the standard ten year bar; id., 526 . . . .” (Emphasis added.) State v. Sauris, supra, 227 Conn. 409-10.

In this case, it was within the discretion of the trial court to admit the defendant’s prior convictions because it determined that their probativeness as to the defendant’s veracity sufficiently outweighed any prejudice. See State v. Cooper, 227 Conn. 417, 436, 630 A.2d 1043 (1993). Each of the prior convictions admitted by the trial court reflected a crime of larcenous intent and thus each was probative of “dishonesty in the general sense.” Id. Furthermore, “the prior conviction[s] involved [crimes] that significantly differed from the crime charged and bore heavily on the defendant’s credibility.” State v. Bailey, 32 Conn. App. 773, 784, 621 A.2d 333 (1993).

We conclude that the trial court’s admission of the defendant’s prior convictions was a proper exercise of its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-55a (a) provides: “A person is guilty of manslaughter in the first degree with a firearm when he commits manslaughter in the first degree as provided in section 53a-55, and in the commission of such offense he uses, or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, shotgun, machine gun, rifle or other firearm. No person shall be found guilty of manslaughter in the first degree and manslaughter in the first degree with a firearm upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information.”
      General Statutes § 53a-55 (a) provides: “A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or (2) with intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he committed the proscribed act or acts under the influence of extreme emotional disturbance, as provided in subsection (a) of section 53a-54a, except that the fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subsection; or (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

       Practice Book § 4185 provides: “The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court.
      “In jury trials, where there is a motion, argument, or offer of proof or evidence in the absence of the jury, whether during trial or before, pertaining to an issue that later arises in the presence of the jury, and counsel has fully complied with the requirements for preserving any objection or exception to the judge’s adverse ruling thereon in the absence of the jury, the matter shall be deemed to be distinctly raised at the trial for purposes of this rule without a further objection or exception provided that the grounds for such objection or exception, and the ruling thereon as previously articulated, remain the same.”

       “We . . . remain free to dispose of the claim ‘by focusing on whichever condition is most relevant in the particular circumstances.’ ” State v. Watlington, 216 Conn. 188, 192, 579 A.2d 490 (1990), quoting State v. Golding, supra, 213 Conn. 240.

       The fifth amendment to the United States constitution provides in pertinent part: “No person shall be . . . deprived of life, liberty, or property, without due process of law . . .
      The fourteenth amendment to the United States constitution provides in pertinent part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

       Article first, § 8, of the Connecticut constitution provides in pertinent part: “No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law . . . .”
      Article first, § 9, of the Connecticut constitution provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”

       General Statutes § 53a-56 (a) provides in pertinent part: “A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person . . . .”

       We note, calculating the age of the convictions from the October, 1983 release date, that the convictions were less than ten years old at the time of trial.


source: Caselaw Access Project

license: Public Domain

text:
    State of Connecticut v. Mitchell Henderson
    (13264)
    O’Connell, Heiman and Schaller, Js.

      Argued February 7
    decision released May 9, 1995

      James P. Ray, special public defender, with whom, on the brief, was Craig A. Raabe, special public defender, for the appellant (defendant).

      Mary H. Lesser, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Carl E. Taylor, assistant state’s attorney, for the appellee (state).
   Schaller, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3), attempt to escape from custody in violation of General Statutes §§ 53a-171, 53a-168 (2) and 53a-49, assault in the third degree in violation of General Statutes § 53a-61 (a) (l), and threatening in violation of General Statutes § 53a-62 (a) (l). The defendant pleaded guilty to criminal mischief in the third degree in violation of General Statutes § 53a-117 (a) (1) (A). The defendant also pleaded guilty to being a persistent dangerous felony offender in violation of General Statutes § 53a-40 (a) and to being a persistent serious felony offender in violation of General Statutes § 53a-40 (b) and (g).

The defendant claims that (1) the trial court improperly denied his motion to suppress out-of-court identification testimony, (2) the state presented insufficient evidence of physical injury to the victim to support the conviction of assault in the third degree, (3) the state failed to prove that he was in custody for purposes of the attempt to escape charge, (4) he was denied a fair trial by the state’s charging him with assault in the third degree without a good faith basis, giving the jury an opportunity to reach a compromise verdict, and (5) the trial court improperly denied his motion for a new trial based on his claim of ineffective assistance of counsel. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the afternoon of January 17, 1992, the victim, Victorene Hazel, and her companion, Codella Webley, crossed Baltimore Street in Hartford after leaving the Shawmut Bank. When the two women reached the corner of Baltimore Street and Homestead Avenue, they were approached by the defendant who demanded that Hazel hand over her purse to him. The defendant was standing in front of Hazel, at a distance of one and one-half to two feet. Her view of the defendant was clear and unobstructed. After Hazel refused to turn over her purse, the defendant pulled out a knife, grabbed her by the shirt and hit her. When he grabbed Hazel, who had a heart condition, she experienced pain in her chest. The defendant threatened to kill her if she did not give him the purse. When he swung the knife, she freed herself from his grasp and ran in the direction of the Shawmut Bank with the defendant chasing her. Hazel’s purse fell off her shoulder as she was running and the defendant picked it up. Hazel entered the bank screaming that she had been robbed and needed help. When Webley reached the bank, she noticed that Hazel was breathing heavily, holding her chest and saying, “My heart, my heart.”

At approximately the same time, Howard Fraser and his cousin, Earl Forrest, were driving on Homestead Avenue when they stopped to look up a telephone number. As Forrest was looking for the number, Fraser noticed from a distance of five to seven yards the victim struggling with her assailant. As he and Forrest were about to drive off, he saw the defendant grab the purse from Hazel. When the victim began to scream, Fraser realized that she was being robbed. Fraser watched the defendant run up Baltimore Street and enter onto private residential property. Fraser realized that the defendant would have to exit on Kent Street, the street parallel to Baltimore Street. Fraser and Forrest drove to Kent Street in anticipation of seeing the defendant. They saw him running down Kent Street toward Albany Avenue with a purse under one arm. Fraser opened the passenger door as they drove up next to the defendant. Forrest told the defendant that they were the police and ordered him not to move. Fraser then jumped out the passenger door and grabbed the defendant. When the defendant resisted, Forrest joined Fraser in an attempt to subdue the defendant. Both Fraser and Forrest repeatedly called for help as they were struggling with the defendant. The defendant struck Fraser during the struggle, and Fraser suffered a wrist injury from striking the defendant.

Officer Douglas Frederick of the Hartford police department arrived approximately five minutes after the struggle had begun and saw the defendant holding the victim’s purse. While the defendant was struggling with Forrest and Fraser, the victim’s purse fell and its contents scattered onto the street. Frederick’s attempt to handcuff the defendant was unsuccessful because he continued to resist fiercely. Frederick radioed for assistance and, finally, with the help of other police officers, managed to get the defendant into the police cruiser. Frederick then informed the defendant that he was under arrest.

At trial, Fraser identified the defendant in court as the man he had caught running down Kent Street with the victim’s purse and who had earlier robbed Hazel on Homestead Avenue.

After Hazel and Webley left the bank, a man in a truck informed them that the robber had been apprehended on Kent Street. The man drove both women to Kent Street. After getting out of the truck, Hazel and Webley saw the defendant sitting in the police cruiser. Frederick had put the victim’s purse on top of the cruiser for safekeeping while he was trying to restrain the defendant. Frederick noticed two women running down Kent Street toward his cruiser and he heard Hazel yelling, “That’s him, he robbed me.” Frederick asked both Hazel and Webley to make sure that the man in the cruiser was indeed the robber. Without any difficulty, both women positively identified the defendant as the robber. The weather was clear and there was adequate sunlight to enable the women to make the identification. Although Frederick was able to recover the purse, his search of the defendant did not produce a knife.

After telling the defendant that he was under arrest and placing him in the police cruiser, Frederick transported him from the scene. The defendant yelled obscenities and threatened to kill the officer. As Frederick drove down Kent Street toward Albany Avenue, the defendant became increasingly violent. The defendant kicked out the rear window of the cruiser and attempted to climb out while the cruiser was in motion. The defendant was able to get his upper torso out of the rear window. Frederick stopped the car and radioed for assistance and an ambulance. Frederick then pulled the defendant out of the cruiser and sat on him until help arrived. When the ambulance arrived, the defendant was put in a body bag and transported to St. Francis Hospital. The defendant was treated for several cuts he had sustained while attempting to climb out of the rear window of the cruiser.

The defendant was convicted by a jury of four counts including robbery in the first degree in violation of General Statutes § 53a-134 (a) (3). After the verdict, the defendant moved for a judgment of acquittal and a new trial, which the trial court denied.

I

The defendant claims that the trial court violated his right to due process guaranteed by the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution by improperly denying his motion to suppress the out-of-court identification by the victim, Hazel, and her friend, Webley, when the identification procedure was unnecessarily suggestive and unreliable.

The fourteenth amendment to the United States constitution guarantees that “[n]o State shall . . . deprive any person of life, liberty or property, without due process of law . . . .” The purpose of the fourteenth amendment is to protect a person from “ ‘conduct that may be fairly characterized as “state action.” ’ ” State v. Holliman, 214 Conn. 38, 43, 570 A.2d 680 (1990), quoting Lugar v. Edmonson Oil Co., 457 U.S. 922, 924, 102 S. Ct. 2744, 73 L. Ed. 2d 482 (1982). “ ‘[T]he Fourteenth Amendment, which prohibits the states from denying federal constitutional rights and which guarantees due process, applies to acts of the states, not to acts of private persons or entities.’ Rendell-Baker v. Kohn, 457 U.S. 830, 837, 102 S. Ct. 2764, 73 L. Ed. 2d 418 (1982).” State v. Holliman, supra, 43. “It is well established that conduct that may fairly be characterized as state action is a necessary predicate to a challenge under the due process clause of the fourteenth amendment to the United States constitution.” Id., 45. The defendant has failed to demonstrate any state action that would trigger the protection of the due process clause of the fourteenth amendment. The trial court’s decision not to suppress testimony of the victim and her companion’s identification was therefore proper.

The one-on-one confrontation between the victim and the defendant was not arranged by the police. The victim’s spontaneous identification of the defendant as the robber took place while she was running toward the police cruiser in which he was detained. See State v. Villafane, 171 Conn. 644, 657-58, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977), overruled in part on other grounds, State v. Stepney, 191 Conn. 233, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984) (identification from spontaneous confrontation between witness and defendant that was not arranged by police did not violate defendant’s due process rights). The police officer could not have known the whereabouts of the victim at the time he placed the defendant in the cruiser. Even though the victim and her companion had already identified the defendant as the robber, Frederick asked both women to confirm their identification by bringing them to the cruiser in which the defendant was seated. Both women had an unobstructed view of the defendant and again were able to identify him as the robber. The defendant argues that the action of the police officer in placing the victim’s purse on top of the cruiser amounted to state action and suggested to the victim that the person inside the cruiser must be the robber. The facts suggest, however, that the act of placing the purse on top of the cruiser by the police officer was not done to influence the victim’s identification. The police officer did not know at the time the whereabouts of the victim and her companion. The officer testified that he put the purse on top of the cruiser so it would not get lost or damaged during the struggle with the defendant. Finally, the victim and her friend were informed by the truck driver, not the police, that the robber had been captured.

The defendant relies on State v. Theriault, 182 Conn. 366, 438 A.2d 432 (1980), to show that the actions of the police officer in this case constituted state action and were unnecessarily suggestive. In Theriault, the police informed the witness that somebody had been arrested, and then showed the witness the gun used in the robbery. Id., 373. Moreover, the police then took the witness to identify the handcuffed defendant through a one way mirror. Id. In Theriault, the police not only arranged the show-up identification, but also tried to influence the witness’ identification. Unlike the situation here, the conduct of the police in Theriault was in fact state action that violated the defendant’s due process rights under the fourteenth amendment.

II

The defendant also claims that the state presented insufficient evidence of physical injury to the victim, Hazel, to support a conviction of assault in the third degree. We do not agree.

A person is guilty of assault in the third degree in violation of General Statutes § 53a-61 when he causes “physical injury” to the victim. General Statutes § 53a-3 (3) defines physical injury as “impairment of physical condition or pain . . . .” “In reviewing the sufficiency [of the evidence] claim, 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 jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . State v. Greenfield, 228 Conn. 62, 76, 634 A.2d 879 (1993).” (Internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994); see also State v. Traficonda, 223 Conn. 273, 278, 612 A.2d 45 (1992). The defendant argues that the discomfort in the chest suffered by the victim was the result of being frightened by the robbery and did not constitute “physical injury” as defined in § 53a-3 (3).

The trial court’s jury instructions need not include a definition of “ ‘pain,’ leaving the jury to apply the common usage of the word. See State v. Grant, 6 Conn. App. 24, 28-29, 502 A.2d 945 (1986).” State v. Phillips, 17 Conn. App. 391, 393, 552 A.2d 837 (1989). We do not require that the word “pain” be construed in a “hypertechnical manner.” Id., 395. The victim testified that she suffered pain in her chest when the defendant grabbed her, hit her and then threatened her with a knife. The victim’s companion also testified that the victim complained of pain in her chest after the robbery. Construing this evidence in the light most favorable to the state and drawing inferences from that evidence, we conclude that the jury reasonably could have found beyond a reasonable doubt that the defendant’s conduct caused “pain” and consequently “physical injury” to the victim.

Ill

The defendant next claims that the evidence offered by the state was insufficient to support the conviction on the charge of attempt to escape from custody. We do not agree.

General Statutes § 53a-171 (a) provides: “A person is guilty of escape from custody if he escapes from custody.” General Statutes § 53a-168 (2) defines “custody” as “restraint by a public servant pursuant to an arrest or court order.” “In reviewing the sufficiency [of the evidence] claim, we apply a two-part test.” (Internal quotation marks omitted.) State v. Sivri, supra, 231 Conn. 126.

“Among the factors to be considered in deciding whether a person has been arrested are the nature of the offense under investigation, the nexus between the suspect’s actions and the offense, the time and place of police intrusion, the degree of physical restraint imposed and the reasonable expectations of both the suspect and the arresting officers.” State v. Derrico, 181 Conn. 151, 159, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980); see Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977); United States v. Grandi, 424 F.2d 399, 401 (2d Cir. 1970); Hicks v. United States, 382 F.2d 158, 161 (D.C. Cir. 1967). “ ‘Precisely when an arrest occurs is a question of fact which depends on an evaluation of all the surrounding circumstances. Sibron v. New York, 392 U.S. 40, 67, 88 S. Ct. 1889, 20 L. Ed. 2d 917 [1968]; Rios v. United States, 364 U.S. 253, 261-62, 80 S. Ct. 1431, 4 L. Ed. 2d 1688 [1960].’ ” State v. Derrico, supra, 158. Whether the officer made a formal declaration that the suspect was under arrest is not dispositive of the issue. State v. Januszewski, 182 Conn. 142, 160, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981); see Dunaway v. New York, 442 U.S. 200, 212, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979); State v. Derrico, supra, 160-61. “ ‘To constitute an arrest, there must be an actual or constructive seizure or detention of the person, performed with the intention to effect an arrest and so understood by the person detained.’ ” United States v. Grandi, supra, 401, quoting Jenkins v. United States, 161 F.2d 99, 101 (10th Cir. 1947).

The state presented compelling evidence during the trial from which the jury reasonably could have concluded that the defendant was in custody prior to his attempt to escape. Frederick arrived at the scene of the crime soon after the robbery occurred and saw the defendant involved in an altercation with two other men. Several witnesses, including the victim, identified the defendant as the robber. Moreover, the evidence shows that the defendant struggled with the police officer and refused to be handcuffed. He was restrained after he resisted the attempt of the police officer to place him inside the cruiser. Once the defendant was put into the cruiser, he was effectively confined and his right to move about freely in society was taken away. Moreover, Frederick told the defendant that he was being arrested. The jury reasonably could have inferred from this evidence that the officer believed that by putting the defendant into the cruiser he was placing the defendant under arrest. The jury also could have inferred from the defendant’s refusal to enter the cruiser and his subsequent confinement that the defendant knew that he was being arrested.

The defendant challenges the state’s assertion that he was informed of the arrest before his attempt to escape from custody. Frederick maintained unequivocally that he told the defendant that he was being arrested when he put the defendant inside the police cruiser. Even though a formal declaration is not dis-positive of the question of custody, the jury reasonably could have inferred from the officer’s testimony that the defendant was informed that he was being arrested. “[I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) State v. Grant, 219 Conn. 596, 604, 594 A.2d 459 (1991). “We 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. We have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of witnesses and to gauge their credibility.” State v. Stepney, supra, 191 Conn. 255. There was sufficient evidence to support the conviction of attempt to escape from custody.

IV

The defendant next claims that he was denied a fair trial as a result of prosecutorial misconduct. The defendant asserts that the prosecutor did not have a good faith basis for charging him with assault in the third degree against Fraser, a charge of which he was acquitted by the jury. The defendant argues that this misconduct prejudiced his case because it allowed the jury to reach a compromise verdict by acquitting him of that charge, while finding him guilty of all other charges. We do not agree.

It is well established that it is “the prosecutor’s duty to determine whether reasonable grounds exist to proceed with a criminal charge and that the prosecutor has broad discretion in determining what crime or crimes to charge in any particular situation.” State v. Menzies, 26 Conn. App. 674, 680-81, 603 A.2d 419 (1992); see Wayte v. United States, 470 U.S. 598, 607-608, 105 S. Ct. 1524, 84 L. Ed. 2d 547 (1985); State v. O’Neill, 200 Conn. 268, 279-80, 511 A.2d 321 (1986); State v. McKenna, 188 Conn. 671, 680, 453 A.2d 435 (1982). “ ‘[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.’ ” State v. Cosgrove, 186 Conn. 476, 488-89, 442 A.2d 1320 (1982), quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982). We must decide, therefore, whether the conduct of the prosecutor, in charging the defendant with assault against Fraser, given the totality of the circumstances, was so damaging and prejudicial that it denied the defendant a fair trial.

The rationale for charging the defendant with assault against Fraser was firmly based in logic. The defendant was the “but for” cause of the injury to Fraser. If the defendant had not committed a robbery, Fraser would have had no reason to try to restrain him for the police. After the defendant hit him, Fraser injured his wrist when he struck the defendant. Fraser was attempting to stop the defendant from hitting him again. “It is unnecessary for 'proximate cause’ purposes that the particular kind of harm that results from the defendant’s act be intended by him. In many situations giving rise to criminal liability, the harm that results is unintended, yet is directly or indirectly caused by an act of the defendant. In such cases, where the death or injury caused by the defendant’s conduct is a foreseeable and natural result of that conduct, the law considers the chain of legal causation unbroken and holds the defendant criminally responsible. See People v. Kibbe, 35 N.Y.2d 407, 321 N.E.2d 773 [1974], rev’d on other grounds, 534 F.2d 493 [2d Cir. 1976], rev’d in part, 431 U.S. 145, 97 S. Ct. 1730, 52 L. Ed. 2d 203 [1977].” State v. Spates, 176 Conn. 227, 234-35, 405 A.2d 656 (1978), cert. denied, 440 U.S. 922, 99 S. Ct. 1248, 59 L. Ed. 2d 145 (1979).

The jury reasonably could have found that the injury sustained by Fraser was a foreseeable and natural result of the defendant’s conduct. Even though Fraser sustained the injury when he struck the defendant, the jury could have found that the proximate cause of the injury was the robbery. Moreover, the defendant has failed to provide any evidence to show that he did not receive a fair trial. The trial court instructed the jury that it must consider each charge separately and the state must prove the defendant’s guilt beyond a reasonable doubt as to any one charge. “ ‘It is essential to any orderly trial that the jury be presumed, in the absence of a fair indication to the contrary, to have followed the instruction of the court as to the law.’ ” State v. Coleman, 167 Conn. 260, 268, 355 A.2d 11 (1974), quoting State v. Bausman, 162 Conn. 308, 314, 294 A.2d 312 (1972). In this case, the defendant has not demonstrated misconduct on the part of the prosecutor; moreover, he has not substantiated his claim that the jury reached a compromise verdict.

V

The defendant’s final claim is that his attorney failed to investigate properly the charges brought against him prior to trial, thereby denying him effective assistance of counsel before he elected to proceed pro se. “This court has emphasized in other cases that a claim of ineffective assistance of counsel is more properly pursued on a petition for new trial or on a petition for a writ of habeas corpus rather than on direct appeal.” State v. Mason, 186 Conn. 574, 578-79, 442 A.2d 1335 (1982). Moreover, in State v. Rivera, 196 Conn. 567, 571 n.1, 494 A.2d 570 (1985), our Supreme Court stated that “[wjhen the claim of inadequate counsel is joined with other substantive and procedural claims of error, it is often difficult to make a judgment about the extent to which inadequate counsel has implicated the outcome of the criminal conviction. For that reason, it will ordinarily be necessary to await exhaustion of the direct appeal before the claim of ineffective assistance can be pursued on a petition for [a writ of] habeas corpus.” A petition for a writ of habeas corpus, therefore, is the proper vehicle for this claim.

The'judgment is affirmed.

In this opinion the other judges concurred.

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

       General Statutes S 53a-171 provides in pertinent part: “(a) A person is guilty of escape from custody if he escapes from custody.”
      General Statutes $ 53a-168 provides in relevant part: “(2) ‘Custody’ means restraint by a public servant pursuant to an arrest or court order . . . .”

       General Statutes j 53a-61 provides in relevant part: “(a) A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person . . . .”

       General Statutes § 53a-62 provides in relevant part: “(a) A person is guilty of threatening when: (1) By physical threat, he intentionally places or attempts to place another person in fear of imminent serious physical injury . . . .”

       “Although the defendant has framed his claim under both the state and federal constitutions, he has not provided an independent analysis of our state constitutional provisions. In the absence of any such analysis by the defendant in this case, we confine our analysis to a discussion of his rights under the federal constitution. State v. Pinnock, 220 Conn. 765, 776 n.3, 601 A.2d 521 (1992); Phillips v. Warden, 220 Conn. 112, 131 n.15, 595 A.2d 1356 (1991). Our ‘declination, however, does not mean that we are not able to review [a state constitutional claim] if we choose to do so.’ State v. Geisler, 25 Conn. App. 282, 283-84 n.2, 594 A.2d 985 (1991), aff'd, 222 Conn. 672, 610 A.2d 1225 (1992).” State v. Streater, 36 Conn. App. 345, 350 n.6, 650 A.2d 632 (1994), cert. denied, 232 Conn. 908, 653 A.2d 195 (1995).

       The defendant does not challenge the constitutionality of the out-of-court identification made by Fraser and his cousin, Forrest, to Frederick or the in-court identification made by Fraser. Furthermore, Frederick identified the defendant as the person holding the victim’s purse when he arrived at the scene. Considering the reliability of these identifications, the admission of the out-of-court identifications made by Hazel and Webley was harmless, in any event.

       Even if we were to accept the defendant’s assertion that the conduct of the police officer in this case amounted to state action, the one-on-one confrontation between the victim and the defendant was not unnecessarily suggestive.
      Our Supreme Court has adopted “a two-pronged inquiry in determining whether identification procedures have violated a defendant’s due process rights. First we address whether the identification procedure was unnecessarily suggestive. If so, the second question is whether the identification was nevertheless reliable based on an examination of the ‘totality of the circumstances.’ See Manson v. Brathwaite, 432 U.S. 98, 113-14, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); State v. Ramsundar, 204 Conn. 4, 10, 526 A.2d 1311 (1987); State v. Miller, 202 Conn. 463, 470, 522 A.2d 249 (1987); State v. Theriault, [supra, 182 Conn. 371-72].” State v. Mitchell, 204 Conn. 187, 201, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987). It is well established that “where the admissibility of evidence depends upon a preliminary question of fact to be determined by the court, ‘its decision is not to be reversed unless there is a clear and manifest error.’ Engelke v. Wheatley, 148 Conn. 398, 410-11, 171 A.2d 402 (1961); see Practice Book § 4061; State v. Brigandi, 186 Conn. 521, 530, 442 A.2d 927 (1982).” State v. Mitchell, supra, 203. Any identification based on “one-on-one confrontation between the victim and the suspect police presented to him, has been deemed ‘inherently and significantly suggestive’ ”; however, in some circumstances, they are not considered impermissible or unnecessary. Id., 201, quoting State v. Middleton, 170 Conn. 601, 608, 368 A.2d 66 (1976).
      In State v. Wooten, 227 Conn. 677, 686, 631 A.2d 271 (1993), the defendant was seated in the rear of the police car when the sexual assault victim identified him as her assailant. Our Supreme Court agreed with the defendant that the identification procedure was suggestive. Id. The court found, however, that the confrontation, “although suggestive, was nonetheless not unnecessarily so, because ‘the exigencies of the situation justified the procedure. . . .’ State v. Amarillo, 198 Conn. 285, 293, 503 A.2d 146 (1986).” Id. The confrontation was not unnecessary because it provided “the victim with the opportunity to identify the assailant while her memory of the incident was still fresh.” Id. Moreover, if the witness was able to exclude the suspect as the assailant, the police would then be able to eliminate quickly the innocent person as a suspect and to “ ‘continue their investigation with a minimum of delay.’ ” Id., 687. In this case, the confrontation took place immediately after the victim was robbed. The memories of the victim and her companion were fresh at the time they identified the defendant as the robber. The identification based on the one-on-one confrontation was not unnecessarily suggestive and the trial court did not err in denying the defendant’s motion to suppress identification testimony of the victim and her companion.

       See part II.

       In general, a defendant should file a motion to dismiss when the claim concerns prosecutorial misconduct based on the insufficiency of evidence to charge an offense. Practice Book § 815 (5); A. Spinella, Connecticut Criminal Procedure (1985), pp. 604-605; see State v. Riggs, 7 Conn. App. 180, 184, 508 A.2d 67, cert. denied, 200 Conn. 804, 510 A.2d 191, cert. denied, 479 U.S. 852, 107 S. Ct. 183, 93 L. Ed. 2d 118 (1986).


author: Heiman, J.

text:
    State of Connecticut v. Michael Ricketts
    (13178)
    Heiman, Spear and Hennessy, Js.

      Argued February 7
    decision released May 9, 1995

      Richard Emanuel, assistant public defender, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Maureen M. Keegan, assistant state’s attorney, for the appellee (state).
   Heiman, J.

The defendant appeals from the judgment of conviction, rendered after a trial to a three judge court, of murder in violation of General Statutes § 53a-54a. On appeal, the defendant asserts that the judgment is fatally flawed because (1) the trial court improperly found that he failed to establish the existence of the affirmative defense of extreme emotional disturbance and (2) his right to a fair trial was violated when the prosecutor improperly commented on his invocation of his right to counsel. We affirm the judgment of the trial court.

The three judge court could reasonably have found the following facts. The defendant separated from his wife and began living with the victim, Martha Johnson, at her home on Irion Street in Waterbury. During the three years that they lived together, the defendant fathered the youngest of the victim’s three children. In early 1991, the defendant’s relationship with the victim began to deteriorate as a result of the defendant’s drug use, and the defendant moved into an apartment across the street.

In early July, 1991, Brayard Gordon met the victim when he saw her walking with two other women in Waterbury. The victim gave Gordon her sister’s telephone number and invited him to call her there. Gordon and the victim met twice at the victim’s sister’s home and began to develop a friendship.

On July 23, 1991, Gordon visited the victim at her apartment at Irion Street in Waterbury. As Gordon parked his car on the street in front of the victim’s home, the defendant approached him and asked if he was looking for the victim. When Gordon replied that he was, the defendant called out to the victim to let her know that she had a visitor. When asked who he was, the defendant informed Gordon that he was the father of the victim’s child. The defendant then laughed and said, “I know how it is . . . we are all men, hey, I used to be with her.” The defendant attempted to shake Gordon’s hand, but Gordon refused.

On the evening of July 25, 1991, Gordon returned to Irion Street to visit the victim. The victim, who had been napping, answered the door dressed in a robe. She invited Gordon into her living room while she went into the bathroom to change. Soon after she entered the bathroom, Gordon heard someone banging on the backdoor of the victim’s apartment. The victim yelled that she was changing and that she would answer the door as soon as she could. The victim dressed and went to the back door where she saw the defendant demanding to be let in.

The defendant burst through the door and grabbed the victim. He pushed her into the kitchen and held her with her back against the kitchen cupboards while he reached for a knife. The defendant screamed, “Hey bitch — why you doing this to me — I’m going to kill you . . . why you messing around with me — why you doing this?” The victim struggled to free herself from the defendant’s grasp and begged him to let her go. The defendant dragged the victim out onto the porch and stabbed her several times. One knife thrust struck deeply into the victim’s chest and another into her left cheek.

Gordon picked up a folding chair and rushed at the defendant, striking the defendant on the head and shoulders. The defendant released his grasp on the victim and began to attack Gordon, stabbing him four times. Gordon was then able to reach for a broomstick and strike at the defendant. The defendant backed off and ran from the apartment, disposing of the knife as he went. Gordon threw the folding chair after him before running for help.

Waterbury police arrived at the victim’s apartment shortly thereafter. The victim was bleeding heavily; her pulse was weak and she was unable to talk. She died as a result of stab wounds to her face and chest.

I

The defendant first asserts that the three judge court improperly found that he failed to prove by a fair preponderance of the evidence that he had acted under the influence of an extreme emotional disturbance. We are unpersuaded.

The following facts are necessary for the resolution of this issue. In his defense, the defendant offered the testimony of his examining psychiatrist, Ezra Griffith. Griffith testified that the defendant was dependent on the victim and became outraged when he found out that she was seeing another man. He testified that when the victim refused to answer the door until she changed her clothing, the defendant was convinced that the victim and Gordon had engaged in sexual relations. Griffin, therefore, concluded that on the night of the homicide, the defendant was exposed to an overwhelming state that resulted in a loss of self-control and in which his ability to reason was overborne.

Griffith further testified that the majority of the information that he used in his evaluation came from seven and one-half hours of interviews with the defendant. Some of the information relayed to Griffith by the defendant was inconsistent with testimony produced at trial from other witnesses, and some of the testimony revealed facts that were not known by Griffith.

Section 53a-54a provides that “it shall be an affirmative defense [to a charge of murder] that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse . . . .” “In determining whether the defendant has established [this defense] . . . the trier of fact must find that: (a) the emotional disturbance is not a mental disease or defect that rises to the level of insanity as defined by the penal code; (b) the defendant was exposed to an extremely unusual and overwhelming state, that is, not mere annoyance or unhappiness; and (c) the defendant had an extreme emotional reaction to it, as a result of which there was a loss of self-control, and reason was overborne by extreme intense feelings, such as passion, anger, distress, grief, excessive agitation or other similar emotions.” State v. Zdanis, 182 Conn. 388, 390-91, 438 A.2d 696 (1980), cert. denied, 450 U.S. 1003, 101 S. Ct. 1715, 68 L. Ed. 2d 207 (1981); see also State v. Patterson, 229 Conn. 328, 341, 641 A.2d 123 (1994); State v. Blades, 225 Conn. 609, 628-29, 626 A.2d 273 (1993). “As with other affirmative defenses, the defendant has the burden of [proving an extreme emotional disturbance] by a fair preponderance of the evidence.” State v. Zdanis, supra, 390; see also State v. Fair, 197 Conn. 106, 110, 496 A.2d 461 (1985), cert. denied, 475 U.S. 1096, 106 S. Ct. 1494, 89 L. Ed. 2d 895 (1986).

“[T]he ultimate determination of the presence or absence of extreme emotional disturbance [is] one of fact for the trier, aided by the expert testimony of both sides, but left to its own factual determinations.” (Internal quotation marks omitted.) State v. Steiger, 218 Conn. 349, 383, 590 A.2d. 408 (1991); see also State v. Blades, supra, 225 Conn. 628. The trier may accept or reject the evidence presented by the defendant and may choose to believe or disbelieve expert testimony, even when uncontroverted. State v. Blades, supra, 629; State v. Raguseo, 225 Conn. 114, 122-23, 622 A.2d 519 (1993).

Appellate review of such factual determinations is limited, therefore, to whether, viewing the evidence in the light most favorable to sustaining the verdict, the trial court abused its discretion. State v. Patterson, supra, 229 Conn. 339; State v. Blades, supra, 225 Conn. 628. Just as we do not sit as a seventh juror, neither do we sit as a fourth judge who may cast a vote against a finding by the three judge court that the defendant has failed to sustain his burden on the issue of extreme emotional disturbance based upon a vague feeling that the result could be different. See State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984); State v. Pearl, 28 Conn. App. 521, 526, 613 A.2d 304 (1992). “[EJxcept where an abuse of discretion is clearly shown, the conclusion of a trial court should be affirmed so long as it is a reasonable one on the basis of the evidence adduced and the inferences drawn therefrom.” State v. Zdanis, supra, 182 Conn. 392.

We cannot say that the three judge panel abused its discretion in determining that the defendant failed to sustain his burden of proof. Our review of the transcript reveals a plethora of inconsistencies between the statements made to Griffith by the defendant and the testimony of other witnesses, as well as a number of omissions in the defendant’s story to Griffith. Taken cumulatively, these inconsistencies and omissions afforded the trier of fact the basis on which to determine that Griffith’s opinion that the defendant suffered from an extreme emotional disturbance was not persuasive by a fair preponderance of the evidence.

II

The defendant next asserts that his right to a fair trial was violated by the conduct of the state’s attorney in commenting on the defendant’s invocation of his right to counsel. The defendant claims that the conduct of the prosecutor (1) constitutes a violation of his rights enumerated in Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), and (2) rises to the level of prosecutorial misconduct. We disagree with both assertions.

Certain additional facts are necessary to a proper resolution of this claim. In the course of his defense, the defendant called his mother, Adrienne Ricketts, as a witness in his behalf. She testified that she and her husband located the defendant after the incident and brought him to the Waterbury police station. The defendant’s mother further stated that she and her husband had accompanied the defendant into the police station and had been with him in the detective bureau. She testified that she left the police station about 9 p.m., leaving the defendant there, and that later that evening, when she called the police station, she learned for the first time that the defendant was being charged with murder. She also testified in response to a question by defense counsel that the following morning she went to the courthouse and spoke to someone from the office of the public defender.

On cross-examination, the state’s attorney asked the defendant’s mother if she knew that the defendant had requested a lawyer or that a lawyer came to see the defendant at the station house. She replied that she did not. After a series of similar questions were asked and answered, counsel for the defendant objected and that objection was sustained.

A

The defendant’s first assertion regarding the conduct of the prosecutor is that it violated his rights under Doyle v. Ohio, supra, 426 U.S. 610.

In Doyle v. Ohio, supra, 426 U.S. 619, the United States Supreme Court held that “evidence of a defendant’s postarrest and post-Miranda silence is constitutionally impermissible under the due process clause of the fourteenth amendment.” State v. Daugaard, 231 Conn. 195, 210-11, 647 A.2d 342 (1994). This prohibition extends to include the invocation by a criminal defendant of his right to remain silent until he can consult with an attorney. Id.; see also State v. Hull, 210 Conn. 481, 489, 556 A.2d 154 (1989), citing Wainwright v. Greenfield, 474 U.S. 284, 295 n.13, 106 S. Ct. 634, 88 L. Ed. 2d 623 (1986). Such evidence may not be used to impeach a defendant who testifies on his own behalf; State v. Joly, 219 Conn. 234, 256, 593 A.2d 96 (1991); to imply guilt or to indicate a consciousness of guilt; State v. Cooper, 227 Conn. 417, 437, 630 A.2d 1043 (1993); or to rebut a defendant’s claim of intoxication or extreme emotional disturbance. State v. Hull, supra, 489-90.

Several questions were asked of the defendant’s mother by the state’s attorney regarding her knowledge of the defendant’s request for an attorney. We first address the final question, to which the defendant’s objection was sustained, and then turn to the preceding questions to which no objections were interposed.

1

The state’s last question to the defendant’s mother regarding her knowledge of the events that occurred while the defendant was at the police station was objected to by defense counsel on the ground that it violated the defendant’s rights under State v. Hull, supra, 210 Conn. 481. The three judge panel sustained the defendant’s objection and the witness was not permitted to answer the question.

We conclude that the mere asking of the question was not a violation of Doyle v. Ohio, supra, 426 U.S. 619. See Greer v. Miller, 483 U.S. 756, 764-65, 107 S. Ct. 3102, 97 L. Ed. 2d 618 (1987). In sustaining the defendant’s objection, the trial court prevented itself from hearing any evidence that Doyle forbids. Thus, the defendant’s invocation of his right to silence until he could consult an attorney was not placed in evidence and no violation of Doyle v. Ohio, supra, 619, occurred.

2

We turn next to an examination of the questions that the defendant now claims were violative of Doyle v. Ohio, supra, 426 U.S. 619, but to which no objection was raised before the trial court. The defendant requests review of this unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

We will not reiterate the now familiar four prongs of State v. Golding, supra, 213 Conn. 239-40, that must be satisfied in order for the defendant to prevail on an unpreserved claim such as that presented here. We do, however, point out that the inability to meet any one prong requires a determination that the defendant’s claim must fail. Id. We conclude that the defendant has failed to establish the third prong of Golding, that “the alleged constitutional violation clearly exists and clearly deprived [him] of a fair trial.” Id.

In response to the state’s questions, the witness testified that she did not hear the defendant request an attorney, nor did she recall being told whether an attorney had come to the police station at the request of the defendant. Thus, no evidence was elicited to establish that the defendant ever made a request for counsel after the administration of the Miranda warning. It necessarily follows that since no improper evidence was adduced, no Doyle violation occurred and the defendant cannot establish a violation of a his fundamental right to a fair trial. See State v. Golding, supra, 213 Conn. 239.

The defendant has failed to satisfy the third Golding prong and his claim must, therefore, fail.

B

The defendant’s final argument is that, even if there has been no violation of Doyle v. Ohio, supra, 426 U.S. 610, the actions of the state’s attorney in asking the questions constitutes prosecutorial misconduct. We are again unpersuaded.

The defendant did not object at trial to the actions of the state’s attorney on the ground now presented on appeal. The defendant, therefore, again requests review of this unpreserved claim under State v. Golding, supra, 213 Conn. 239-40. We conclude that the defendant’s claim must fail as he has not established a clear violation of his fundamental right to a fair trial.

“We will not afford Golding review to claims of prosecutorial misconduct where the record does not disclose a pattern of misconduct pervasive throughout the trial or conduct that was so blatantly egregious that it infringed on the defendant’s right to a fair trial.” (Internal quotation marks omitted.) State v. Williams, 231 Conn. 235, 246, 645 A.2d 999 (1994), quoting State v. Young, 29 Conn. App. 754, 766-67, 618 A.2d 65 (1992), cert. denied, 225 Conn. 904, 621 A.2d 287 (1993).

Our review of the record discloses that the actions of the state’s attorney do not constitute a pattern of misconduct that pervaded the defendant’s trial and that his rights to a fair trial were not infringed. The defendant’s argument rests on an assertion that the state’s attorney conveyed to the trier of fact information that the defendant had invoked his right to counsel. In order to reach this conclusion, we would be required to infer that the three judge court, even though the witness on each occasion said that she did not know whether the defendant had requested or had talked with a lawyer, drew an inference that he had in fact made such a request. Such a claim is not factually supported by the record. This is especially true in light of the fact that the trial was before a three judge court and not before a jury, which decreased the likelihood that the trier of fact would draw an improper inference from the evidence or the lack of evidence. See State v. Robles, 33 Conn. App. 60, 64, 632 A.2d 1377 (1993).

We note also that the sole question to which an objection was interposed on the basis of Doyle v. Ohio, supra, 426 U.S. 610, was sustained by the trial court. In addition, “[t]rial counsel for the defendant, who had been assiduous in [her] protection of the rights of the defendant throughout the trial, was so unimpressed by the alleged prosecutorial misconduct that [she] neither objected to the remarks nor asked for a curative instruction.” State v. Lucci, 25 Conn. App. 334, 348, 595 A.2d 361, cert. denied, 220 Conn. 913, 597 A.2d 336 (1991). Further, the answers given by the witness disclaiming any knowledge of any request by the defendant for counsel negates the drawing of any inference from the question.

The conduct of the state's attorney does not reveal any pattern of misconduct repeated throughout the trial nor any conduct that was blatantly egregious; State v. Williams, supra, 231 Conn. 246; and we, therefore, decline to afford review to this claim.

The defendant does not fare any better under his claim for review under the plain error doctrine. Practice Book § 4185. “[P]lain error review is reserved for truly extraordinary situations where the existence of error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . .” (Citations omitted; internal quotation marks omitted.) State v. Boyd, 36 Conn. App. 516, 522, 651 A.2d 1313, cert. denied, 232 Conn. 912, 654 A.2d 356 (1995); see also State v. Boles, 223 Conn. 535, 551, 613 A.2d 770 (1992).

Having concluded that the claim of prosecutorial misconduct of which the defendant now belatedly complains did not implicate his constitutional rights so as to warrant review under State v. Golding, supra, 213 Conn. 240, we conclude that the questions by the prosecutor and the answers by the witness did not result in manifest injustice, and, therefore, does not permit plain error review. See State v. Morales, 33 Conn. 184, 197, 634 A.2d 1193 (1993), cert. granted on other grounds, 228 Conn. 928, 640 A.2d 116 (1994).

The judgment is affirmed.

In this opinion the other judges concurred.

       This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023, the Supreme Court transferred the appeal to this court.

       General Statutes § 53a-54a provides in pertinent part: “(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       The defendant was charged in a separate information with assault in the first degree in violation of General Statutes § 53a-59 (a) (3) for the stabbing of Gordon. The defendant elected to have this charge heard separately by a jury after the hearing before the three judge panel on the charge of murder. After the three judge panel returned its verdict of guilty on the charge of murder, the defendant pleaded nolo contendere to the charge of assault in the first degree.

       The defendant does not contest the fact that the three judge tribunal had before it sufficient evidence to find that the defendant caused the death of Johnson on July 25, 1991. The defendant’s claim is limited instead to whether the court properly found that he failed to meet his burden of proof on the affirmative defense of extreme emotional disturbance, which would have reduced the offense to manslaughter in the first degree. See General Statutes § 53a-54a (a).

       Other information relied on by Griffith included an interview with the defendant’s parents, a telephone call to the defendant’s employer, and review of the police report, the autopsy report, the competency evaluation report, the warrant application and the transcript from the hearing in probable cause.

       For example, Willie Robinson, a witness called on behalf of the state, testified that after the murder, he spoke to the defendant outside the apartment and the defendant asked him to call an ambulance and also asked Robinson whether “they were going to be alright.”
      Griffith stated that he did not recall the defendant telling him that he had asked Robinson to call an ambulance or inquiring of Robinson whether they would be alright. The cross-examination then proceeded in part as follows:
      “Q. The fact that after Mr. Ricketts stabbed Martha Johnson and stabbed Mr. Gordon, is it important to your diagnosis regarding this dissociated state as to whether or not he told someone, minutes after the stabbing— asked him if he called the ambulance for the two people?
      “A. It would be important for me, considering the diagnosis, whatever he said, as well as whether he had conversations with people and so on. That is absolutely correct.
      “Q. And, it wouldn’t be — Wouldn’t it be important to your diagnosis if he said or if he asked someone shortly after the stabbing: are they — that is more than one person, are they going to be alright?
      “A. Yes, it will be important.
      “Q. Sure, that will be an indication that he knew he stabbed at least two people, not just Mr. Gordon.”

       On cross-examination the following occurred:
      “[State’s Attorney John Connolly]: Were you with Michael when the policeman talked to him?
      “[Adrienne Ricketts]: I don’t think so.
      “Q. Were you with Michael when the — when he asked Detective Demers if he could have a lawyer?
      “A. I never heard any — Michael say anything, no.
      “Q. You never heard him say anything?
      “A. No.
      “Q. So, you didn’t hear him say that?
      “A. No, no, I don’t think he was capable of saying anything like that, I never heard that.
      “Q. Do you know later that night a lawyer did come for Michael?
      “A. I didn’t know, I didn’t know that.
      “Q. You didn’t know that?
      “A. No.
      “Q. You said you talked to the Public Defender’s Office the next day, didn’t you?
      “A. Yes.
      “Q. Did you talk to Mr. MeWhirter the next day?
      “A. Yes.
      “Q. Did he tell you he was at the police station that evening?
      “A. I don’t recall.
      “Q. You don’t recall that?

        “A. No.
      “Q. He didn’t tell you that the State’s Attorney called him at his home because Michael Ricketts wanted a lawyer and Mr. McWhirter came down that evening?
      “[Defense Counsel]: Your Honor, I am going to object at this point.
      * ** *
      “It appears as though Mr. Connolly is using Mr. Ricketts’ invocation of his constitutional right to an attorney in order to defeat any claim of his emotional condition that may be related to an [extreme emotional disturbance]. And, under State v. Hull, [210 Conn. 481, 556 A.2d 154 (1989)] that is inappropriate. He is — It’s not just coming in through a police officer, who is indicating to Mr. Connolly that he advised him of his constitutional rights and this is what happened and we terminated the conversation. But, he is doing exactly what the Supreme Court said is not allowed in State v. Hull [supra, 481]. He is using it in an argument to somehow defeat Mr. Ricketts — the testimony given with regard to Mr. Ricketts’ condition.
      “[The Court]: If I could—
      “[Defense Counsel]: That is not appropriate.
      “[The Court]: If I could just cut you short, I mean, there are different standards for a court and jury. And it is thought, at least, that at the end of the day we can sort out the admissible from the inadmissible. Although clearly inadmissible material should not come before us.
      “If I can ask you, Attorney Connolly—
      “[State’s Attorney]: Surely.
      “[The Court]: Apparently you are getting into a whole line of alleged statements by the defendant, that this witness says she never even heard at all. So I wonder if there is any — are you claiming — Let me just ask you, if I may, sir, are you claiming that their witness, indeed, did hear the defendant make these various statements and requests?
      “[State’s Attorney]: No. But — and, the questions I asked, Your Honor, is — she’s testified, because of the condition Mr. Ricketts was in after the incident — she just very dramatically described his physical condition, he was shaking, jumping up and down. What I am trying to show is that because of her actions towards Mr. Ricketts, maybe, indeed, Mr. Ricketts that evening wasn’t acting all that bad. She said she was concerned. She came to court the next day. The question is: she talked to—
      “[The Court]: If I can just again cut you short. I don’t think that there is any problem based on what I have heard about you asking this witness what she observed, what she saw, what she heard Mr. Ricketts say, what she said to Mr. Ricketts. But, the problem that I had with the line of questioning you were getting into was that you were asking her about a whole lot of things, at least, she says she never observed at all. And, you are not claiming that she did observe them.
      “[State’s Attorney]: No, no.
      “[The Court]: Is there any point in pursuing this?
      “[State’s Attorney]: Well, I think the objection was made when I asked her whether or not Miss Dalton elicited on direct examination that the day after the incident she went — Mrs. Ricketts went to the Public Defender’s Office. I guess the relevancy of that is that she was still concerned for Mr. Ricketts, his well-being, and talked to his lawyers. Now, what I am asking is whether or not what happened that — I mean, whether or not she was informed that Mr. McWhirter had been at the police station that evening with Mr. Ricketts.
      “[The Court]: Is that relevant to any issue in the case?
      “[State’s Attorney]: Well, she brought it up about him being at the Public Defender’s Office. Why can’t I ask?
      “[The Court]: Well, I am not sure that I saw the relevance of that. Let me just ask you once again, is this line of questioning relevant to any issue in this case?
      “[State’s Attorney]: Yes, Mr. Ricketts’ state of mind at the time of the murder of Martha Johnson. And, to show the state of mind, we can show his conduct before and after the incident.
      “[The Court]: The court will sustain the objection at this point, not necessarily on the ground stated, but I think that the relevancy is pretty limited at this point. And, you may go on and ask this witness of anything she saw, you know, pertaining to Mr. Ricketts, of anything that she heard him say, of anything that she said to Mr. Ricketts, that is fair game. But, I think you have gone beyond the line here. So, objection is sustained.”

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).