author: SULLIVAN, J.

text:
    STATE OF CONNECTICUT v. HENRY CARTER
    (AC 16682)
    O’Connell, C. J., and Sullivan and Cretella, Js.

      Argued February 18
    officially released May 26, 1998

      Neal Cone, assistant public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Stephen J. Sedensky III, assistant state’s attorney, for the appellee (state).
   Opinion

SULLIVAN, J.

The defendant, Henry Carter, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a. The defendant was convicted for the same offense in 1991, but that conviction was reversed by our Supreme Court and the case remanded for a new trial. State v. Carter, 228 Conn. 412, 636 A.2d 821 (1994). A retrial resulted in the present conviction from which the defendant now appeals. On appeal, the defendant claims that the trial court improperly (1) limited the scope of the cross-examination of a witness, (2) restricted the testimony of the defendant and his mother, (3) charged the jury on the elements of self-defense, and (4) prohibited impeachment evidence of prior felony convictions. We affirm the judgment of the trial court.

The relevant facts are set out in State v. Carter, supra, 228 Conn. 414-16. “On the afternoon of May 31, 1990, the Bridgeport police received a report of a shooting at Lugo’s Market, a grocery store located on the east side of the city. When a police officer arrived at the market, he found the victim, Angel Diaz, lying face up on the floor, suffering from multiple gunshot wounds to the chest and abdomen. The victim was transported by ambulance to an area hospital where he later died from those wounds.

“Salvador Lugo, the owner of the market, had been alone in his store late that afternoon when he observed the victim enter the market, select a can of beer, and proceed into a shopping aisle near the front of the market. Lugo next observed the defendant enter the store and turn into the same shopping aisle as the victim. Due to the height of the market’s display shelves, Lugo could not see into the aisle occupied by the victim and the defendant, and he heard no conversation between them. Moments after the defendant had entered the shopping aisle, however, Lugo heard three gunshots from the vicinity of the aisle and immediately thereafter observed the defendant walk slowly out of the store. Lugo then proceeded to the aisle from which the shots had been fired and found the victim lying on the floor. The victim’s breathing was labored and he was bleeding from the chest.

“Lugo, who was acquainted with the defendant, provided the police with the defendant’s description and directions to the defendant’s home, which was located near the market. When the police arrived at the defendant’s home, they were met at the door by the defendant’s mother, Patricia Lindsay. She told the police that she resided there with her husband, Forrest Lindsay, and the defendant. In response to questioning by the police, Patricia Lindsay stated that her husband kept a handgun at their residence. She voluntarily produced the handgun, a .38 caliber Rossi revolver, for the police, who noted the model and serial number of the handgun and returned it to her. The police also obtained Patricia Lindsay’s consent to search her home for the defendant, whom the police wanted to question, but they did not find him there.

“The following day, while searching for additional evidence at the market, the police discovered a bullet lodged behind an empty beer can in the area of the store where the victim had been shot. The police returned to the defendant’s home and, with Forrest Lindsay’s permission, took possession of the .38 caliber Rossi revolver. An autopsy of the victim’s body revealed that his death had resulted from three gunshot wounds, including a wound caused by a bullet that had entered the victim’s back and pierced his aorta. Subsequent investigation determined that one of the two bullets extracted from the victim’s body and the bullet recovered from the market had been fired from the .38 caliber Rossi revolver obtained by the police from Forrest Lindsay.” The defendant was later arrested and charged with murder.

I

The defendant’s first claim is that the trial court violated his right of confrontation guaranteed under the sixth and fourteenth amendments to the United States constitution and the constitution of Connecticut, article first, § 8, by refusing to allow him to cross-examine Lugo regarding whether Lugo feared Diaz.

The following additional facts are necessary for a resolution of this claim. On the day of the shooting, Lugo gave a statement to the Bridgeport police in which the following excerpted question and answer appears. An officer asked Lugo: “Did you know the Puerto Rican male that was shot?” Lugo replied: “No, I don’t know his name, but once in a while he came into the store; he wasn’t a regular customer.” At trial, however, Lugo testified that he knew Diaz by the names “Angelo” and “Angel” as well as by the name “Potato Ass,” a nickname used by Diaz’ friends. Lugo testified that Diaz was a regular customer who came into the store “all the time.” Lugo also testified that he would see Diaz “out on the block” with his friends. When defense counsel asked Lugo if he knew whether Diaz’ friends lived in the neighborhood, the state objected on the ground of relevance, and the jurors and Lugo were excused.

Defense counsel argued that he should be allowed to inquire into the relationship between Diaz and Lugo to demonstrate that the inconsistencies in Lugo’s testimony were due to Lugo’s fear of Diaz. The trial court ruled that the question was outside of the scope of direct examination and that the defendant had not established a foundation sufficient to allow inquiry into Lugo’s motivation or bias, areas that would be irrelevant but for the inconsistencies between Lugo’s trial testimony and the statement he gave to the police. The trial court gave defense counsel the choice either to make an offer of proof to establish such a foundation or to pursue this line of inquiry in the defendant’s case-in-chief. Defense counsel chose not to make an offer of proof.

“Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted.” (Internal quotation marks omitted.) State v. Bova, 240 Conn. 210, 218, 690 A.2d 1370 (1997). This right, however, is not absolute, “but may bow to other legitimate interests in the criminal trial process. . . . Such an interest is the trial court’s right, indeed, duty, to exclude irrelevant evidence. The confrontation clause does not. . . suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination. . . . Only relevant evidence may be elicited through cross-examination. . . . The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” (Citations omitted; internal quotation marks omitted.) Id., 219. “Impeachment of a witness for bias is a matter of right, but where no foundation has been laid by cross-examination of the witness who is under attack for bias, the decision to admit impeaching evidence is within the discretion of the court.” State v. Plaza, 23 Conn. App. 543, 548, 583 A.2d 925 (1990), cert. denied, 217 Conn. 811, 587 A.2d 153 (1991).

We conclude that the trial court did not unduly restrict the defendant’s cross-examination of Lugo. The court gave the defendant the option to make an offer of proof outside of the presence of the jury or to take up the matter of Lugo’s fear of Diaz in his case-in-chief. The defendant was not foreclosed from asking Lugo if he feared Diaz. We find that the court’s rulings relative to the cross-examination of Lugo were not improper.

II

In his second claim, the defendant contends that certain of the trial court’s evidentiary rulings violated his state and federal constitutional right to present a defense. Specifically, he claims that the trial court improperly excluded evidence of specific acts of misconduct by Diaz, excluded from evidence a 1989 police report, made comments on the evidence in the presence of the jury, and prohibited the defendant from testifying to his interpretation of a statement made to him by Diaz’ friends and from testifying to the reason he purchased a gun. We address each of these claims separately.

We note at the outset that “[t]he trial court’s ruling on the admissibility of evidence is entitled to great deference. State v. Castonguay, 218 Conn. 486, 497, 590 A.2d 901 (1991); State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985). . . . [Ejvidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. State v. Alvarez, 216 Conn. 301, 306, 579 A.2d 515 (1990) . . . .” (Citations omitted.) State v. Hines, 243 Conn. 796, 801, 709 A.2d 522 (1998).

The following additional facts are necessaiy for a resolution of the defendant’s claims. At trial, the defendant testified that he shot Diaz because he thought Diaz was going to kill him. The defendant testified that the character of the neighborhood in which he lived had deteriorated over the years and that Diaz sold drugs in front of the defendant’s house. He also testified that he had had confrontations with Diaz on three separate occasions, and that he had seen Diaz in a shoot-out with a third party. The defendant testified that in 1988 or 1989 he was walking home from work around 11:30 p.m. when a car approached him. Diaz and a second person emerged from the car and started shooting at the defendant. The defendant escaped by running away. A second incident occurred in February, 1989, when Diaz chased the defendant on a Bridgeport street with an Uzi semiautomatic machine gun. On that occasion, the defendant ran into a business yard where two security guards were present. The defendant called the police, reported the incident and gave a description of Diaz, whose name the defendant did not know at that time. Diaz was never arrested for that incident. A third incident took place in August, 1989, as the defendant was walking home from work. The defendant saw Diaz fire shots at him, two of which hit him in the back. He again gave the police a statement but no one was arrested for the shooting. After being hospitalized for his wounds, the defendant went to Georgia to live with relatives. He returned to Bridgeport in February, 1990, after his mother informed him that the drug dealing in his neighborhood had ceased. Shortly after the defendant’s return, however, Diaz was again selling drugs in front of the defendant’s house. The defendant testified that his mother would not let him walk anywhere because she feared Diaz would harm him and, therefore, he purchased a gun.

A

The defendant argues that the trial court improperly excluded evidence of specific prior acts of misconduct and violence by Diaz that the defendant had witnessed or heard about. The testimony of the defendant’s mother was similarly limited. The defendant claims that this evidence was probative of his state of mind and therefore relevant to his claim of self-defense. He asserts that the purpose of the prior acts evidence was to show his fear of Diaz, not to impugn Diaz’ character, and, therefore, admission of the prior acts evidence should not have been circumscribed by the evidentiary rules regarding character evidence. He asserts that evidence of motive is always admissible even if such evidence shows alleged acts of prior misconduct. The defendant’s argument is without merit.

“When a defendant charged with murder asserts that he killed in self-defense, his state of mind—the existence and reasonableness of apprehension of such violence by the deceased as to justify the defensive measures adopted—becomes material.” (Internal quotation marks omitted.) State v. De Santis, 178 Conn. 534, 539-40, 423 A.2d 149 (1979). In such a case, the defendant “may introduce evidence of the victim’s violent character to attempt to show that the victim was the aggressor. State v. Miranda, 176 Conn. 107, 109-11, 405 A.2d 622 (1978). Similarly, a defendant may, if he first shows that he was aware of the victim’s violent nature, introduce such [character] evidence to show his own state of mind at the time he confronted the victim, and thereby show the reasonableness of his belief that the use of force was necessary. Id., 109. A victim’s violent character may be proven by reputation or opinion evidence or by evidence showing convictions for crimes of violence. Id. It may not, however, be proven by evidence of other specific acts. Id., 112-13.” (Emphasis added.) State v. Knighton, 7 Conn. App. 223, 228-29, 508 A.2d 772 (1986). Except where character is directly in issue, a person’s violent character may not be established by evidence of specific acts. State v. Miranda, supra, 112. A decedent’s violent character may not be established by evidence of specific violent acts, other than convictions, “not because it is unconvincing but because it has the potential to surprise, to arouse prejudice, to multiply the issues and confuse the jury, and to prolong the trial.” (Internal quotation marks omitted.) State v. Smith, 222 Conn. 1, 18, 608 A.2d 63, cert. denied, 506 U.S. 942, 113 S. Ct. 383, 121 L. Ed. 2d 293 (1992).

The trial court allowed the defendant to testify to violent acts that Diaz had committed against the defendant but did not allow the defendant to testify to violent acts that Diaz had committed against others. The trial court also ruled that, since the testimony was offered to show the defendant’s state of mind, other witnesses could not testify to any specific acts of violence by Diaz that they may have observed. Specifically, the court prohibited the defendant’s mother from testifying as to the activities she observed outside her home that led her to believe Diaz was selling drugs and from testifying as to whether she had ever seen Diaz with a weapon. The court’s ruling was consistent with the law as espoused in State v. Knighton, supra, 7 Conn. App. 223. Furthermore, our review of the record indicates that the trial court precluded only generalized testimony of Diaz’ drug dealing. A review of the entire record does not substantiate the defendant’s claim that he was prohibited from presenting evidence and a defense to the crime with which he was charged.

B

The defendant next claims that the court improperly excluded from evidence the police report of the August, 1989 shooting. Defense counsel argued that the police report would corroborate the defendant’s testimony regarding the shooting and, because the police were on notice of the crime and “nothing was done” about it, the report was relevant to the defendant’s state of mind. The state argued that the report was hearsay because it was offered to establish the truth of the identification the defendant gave to the police, namely, that it was Diaz who shot the defendant, and that a prior consistent statement cannot be used for this purpose. The state also claimed that the report was “self-serving.”

As a general rule, a witness’ prior consistent statements are inadmissible at trial. State v. Hines, supra, 243 Conn. 803. “The rationale upon which this rule is based is that the witness’ story is not made more probable or more trustworthy by any number of repetitions of it.” (Internal quotation marks omitted.) Id., 803-804. While exceptions to this rule exist, they are inapplicable here. See id., 804. In this case, the police report constituted a prior consistent statement of the defendant and it was not improper to prohibit its use at trial.

C

The defendant contends that the trial court improperly remarked in the presence of the jury that certain questions asked of the defendant by defense counsel elicited “self-serving” responses. During the direct examination of the defendant, defense counsel asked: “In your statement to the police [regarding the 1989 shooting] or when you talked to the police did you tell them who you believed had shot you?” In ruling on the state’s objection to this question, the court stated: “Those are self-serving statements, counselor; I don’t think that they’re admissible.” Later, defense counsel asked the defendant: “What were you trying to avoid by having somebody [drive] you places?” The state objected and the court made the following comment: “Counsel, it’s so self-serving. It’s, I don’t know. You put me in a position [of] having me rule on almost every question you’re asking at this moment, counselor.” Defense counsel argued that the question was relevant to establish the defendant’s state of mind and the court overruled the state’s objection.

The issue now raised by the defendant on appeal was not raised at trial. The defendant neither objected to the remarks, moved for a mistrial, nor requested a curative instruction. The defendant requests review of his claim under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We do not agree that the effect of the court’s comments was to deprive the defendant of his right to present a defense. See State v. Maldonado, 193 Conn. 350, 367, 478 A.2d 581 (1984). “In the context of the entire trial; see State v. Harris, 182 Conn. 220, 231, 438 A.2d 38 (1980); such a view [by the defendant] is myopic.” State v. Maldonado, supra, 367.

D

The defendant next argues that the trial court improperly prohibited him from testifying about his interpretation of a threat made against him by Diaz’ friends shortly before the murder and from testifying about the reason he purchased a weapon.

Prior to entering Lugo’s market on the day of the murder, the defendant was confronted by two of Diaz’ friends while he was standing on a street comer waiting for a bus. They asked the defendant what was “going on” between the defendant and Diaz’ girlfriend and the conversation became heated. Prior to their departure, Diaz’ friends told the defendant to “wait right here,” whereupon, the defendant left the scene.

The defendant testified that he knew what the statement to “wait here” meant because he had “seen it many times.” The trial court then sustained the state’s objection to the following question asked of the defendant by defense counsel: “In your mind what did wait right there mean?” The court ruled that, unless the individuals had indicated what they meant, the question called for conjecture. Defense counsel then asked the defendant why he did not continue to wait for the bus after Diaz’ friends left, to which the defendant responded: “I wasn’t gonna wait there to be killed; it’s that plain and simple.” The court sustained the state’s objection to this question, ordered the response stricken and instructed the jury to disregard it. Defense counsel also asked the defendant why he purchased a gun, to which the defendant responded that it was because he was “being threatened.” The court again sustained the state’s objection to this question and asked the jury to disregard the defendant’s response.

In this trial, the court gave the defendant great latitude in allowing the introduction of evidence that established, or from which it could be ascertained, that Diaz had a violent character and that the defendant feared him. We cannot conclude that the trial court abused its discretion in these rulings or that the rulings resulted in prejudice to the defendant.

Ill

The defendant next claims that the trial court gave improper instructions to the jury on self-defense. He claims that the jury instruction on the duty to retreat under General Statutes § 53a-19 was misleading and harmful because it did not make clear that the duty arises only if the defendant knows that he may retreat in complete safety. He further claims that the court’s charge on the reasonableness of the defendant’s belief that Diaz was about to kill him or to inflict great bodily harm on him was misleading and harmful because the court instructed the jury to use an objective standard in its determination. The defendant filed a request to charge on self-defense and, thus, properly preserved his claim for review. See State v. Prioleau, 235 Conn. 274, 283 n.10, 664 A.2d 743 (1995).

The standard of review to be applied to the defendant’s claim is whether it is reasonably possible that the jury was misled by the court’s instruction. State v. Ash, 231 Conn. 484, 493, 651 A.2d 247 (1994); State v. Corchado, 188 Conn. 653, 661, 453 A.2d 427 (1982). “In determining whether it was indeed reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case.” (Internal quotation marks omitted.) State v. Prioleau, supra, 235 Conn. 284.

In instructing the jury on self-defense and the duty to retreat, the trial court stated, inter alia, that “[a] person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety by retreating. ... A person is not necessarily justified in using deadly physical force upon another person unless his actions are reasonable under all the circumstances if he knows he can avoid the necessity of using such force with complete safety to himself by retreating. You must inquire from—you must inquire from a review of all the evidence whether or not the—even if the defendant were justified in reasonably believing that Mr. Diaz was about to use deadly physical force, was about to inflict great bodily harm upon him, could the defendant [have] avoided the use of deadly force by retreating from the confrontation or avoiding it all, all together. If he could have retreated with complete safety to himself at any stage of the confrontation then the use of deadly physical force would not have been justified.” (Emphasis added.)

“General Statutes § 53a-19 provides for the defense of self-defense and sets forth the circumstances justifying the use of physical force. . . . Subsection (b) of § 53a-19, which specifically sets out the duty to retreat . . . imposes only a subjective requirement. That subsection provides, in part, that a person is not justified in using deadly physical force if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating .... General Statutes § 53a-19 (b). The statute requires both that a retreat in complete safety be available and that the defendant know of it. The self-defense statute, i.e., General Statutes § 53a-19 . . . focuses on the person . . . claiming self-defense. It focuses on what he reasonably believes under the circumstances and presents a question of fact [as to whether a safe retreat was available and whether he knew of it]. ... This statutory emphasis upon the defendant further demonstrates the function of the jury in [its] evaluation of the self-defense claim. . . . [Section] 53a-19 (b) requires recourse to retreat in lieu of the use of physical force only when the actor himself knows that he can avoid the necessity of using such force with complete safety .... State v. Quintana, 209 Conn. 34, 46, 547 A.2d 534 (1988).” (Emphasis in original; internal quotation marks omitted.) State v. Ash, supra, 231 Conn. 492.

We find that the charge properly instructed the jury to measure the defendant’s knowledge of his ability to retreat according to the subjective standard of the defendant’s actual knowledge. The court instructed the jury that a person is not justified in using deadly force against another “if he knows that he can avoid the necessity of using such force with complete safety by retreating.” Only after reiterating this statement did the court state that “[i]f he could have retreated with complete safety to himself at any stage of the confrontation then the use of deadly physical force would not have been justified.” We conclude that it is not reasonably possible that the jury was misled by this statement, especially when it is read in conjunction with the rest of the charge on self-defense. “ ‘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.’ ” State v. Ash, supra, 231 Conn. 494.

The defendant also claims that the trial court improperly instructed the jury on the reasonableness of the defendant’s belief that the victim was about to use deadly physical force against him, or was about to inflict great bodily harm on him. The defendant contends that the following portion of the self-defense charge was misleading: “The statute states that deadly physical force may not be used unless the actor, that is, the defendant, reasonably believes that such other person, that is, the victim, is using or [is] about to use deadly physical force; or is inflicting or about to inflict great bodily harm. Now, reasonably means what an ordinary prudent person, an ordinarily prudent man, a man of ordinary mental and physical capacity using his faculties in a normal manner . . . might do or perceive in a given set of circumstances. A reasonable belief is a belief generated by the particular circumstance fairly creating it and honestly entertained. If we reread the statute with the facts and persons involved in this case in mind, it would state as follows: ‘The defendant Henry Carter is justified in using reasonable physical force upon the victim Angel Diaz to defend himself from what he reasonably believed to be the use or imminent use of deadly physical force; and he may use such a degree of force which he reasonably believes to be necessary for such purpose . . . .’In determining what the defendant reasonably believed you should ask what would an ordinarily prudent man, a man of ordinary mental physical capacity using his faculties in a normal manner, what might he do or perceive. That is, what would a man of common sense acting in a common sense manner do under the circumstances that you find that the defendant found himself.”

“Subsection (a) of § 53a-19 does impose an objective reasonableness requirement, providing in relevant part that ‘deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.’ ” State v. Ash, supra, 231 Conn. 492. “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).

The trial court included in its self-defense charge an almost verbatim recitation of § 53a-19 (a). See id., 394. Thus, the language of the charge, “like that of the statute, [set] forth the appropriate subjective-objective test for evaluating the defendant’s belief concerning the danger he was facing.” Id. The court then “provided the jury with additional guidance on the objective part of its inquiry by explaining how the jury would have to determine whether the defendant’s belief was a reasonable one. The court necessarily referenced the objective, reasonable person at this stage of the instructions. In doing so, however, the court . . . enabled the jury properly to carry out its duty to examine the evidence both subjectively and objectively, while keeping in mind that the defendant’s conduct must be judged ultimately against that of a reasonably prudent person.” (Internal quotation marks omitted.) Id., 395.

The defendant’s challenge to the court’s instruction raises only an issue of emphasis. See id., 396. We conclude that the trial court did not focus exclusively on whether a reasonable person would have believed that he faced an imminent attack. See id. “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.” (Internal quotation marks omitted.) Id. The court properly instructed the jury as to the law of this state on the subject of self-defense.

IV

The fourth issue that the defendant argues in this appeal concerns the court’s ruling prohibiting impeachment of Lugo based on two prior felony convictions occurring in 1979. Lugo had been convicted of manslaughter and carrying a pistol without a permit. The trial court prohibited the use of the prior convictions for impeachment purposes because the convictions were remote in time and were not based on crimes of falsehood. The court did allow into evidence, however, the defendant’s prior felony conviction for assault. The defendant asserts for the first time in this appeal that a crucial part of his defense depended on the comparable credibility of Lugo and himself. Thus, he argues, both prior felony records should have been allowed into evidence to enable the jury to assess the credibility of each witness properly. The argument the defendant now makes is different from the argument he made to the trial court. The defendant did argue to the trial court, however, that Lugo’s prior felony convictions should be admitted into evidence. The state, but not the defendant, submitted to the trial court a request to charge on prior felony convictions. We decline to review the defendant’s claim as the requirements of Practice Book § 852, now Practice Book (1998 Rev.) § 42-16, were not followed.

Furthermore, we note that the defendant raised this claim in State v. Carter, supra, 228 Conn. 412. In that case, our Supreme Court found that the trial court did not abuse its discretion in precluding the introduction of Lugo’s prior convictions for impeachment purposes. Id., 431. As in this case, the trial court had reasoned that such convictions were remote in time and that the offenses did not bear directly on the witness’ veracity. Id., 430.

The judgment is affirmed.

In this opinion the other judges concurred.

       In response to the court's ruling, defense counsel stated: “I think what I will do is rather than asking for an offer of proof at this time, I think I will continue my cross-examination and try not to vary outside the scope of the direct .... I think perhaps [I will] reserve some of those questions for later. And it may turn out that during the course of this, this cross-examination, that I determine that it is necessary to make an offer of proof, but I don’t think it’s necessary at this time.”

       The court stated: “If [the defendant] has—if he specifically saw the victim participating in drug activities in front of his house and with that complaints were made to the police and there were some repercussions from that directed towards him or his family, I, I would think perhaps that would give rise to a—to some evidence that would go to his state of mind at a later confrontation or altercation with the, with [Diaz] .... I have to allow some evidence relating to the drug activities of Mr. Diaz as it was perceived by [the defendant] and as it would relate to, to his fear of [Diaz] because of the violent conduct with Mr. Diaz relating to drug activities, but generalities about [how] they were on—constantly out there [in front of the defendant’s house] and they were putting drugs in the bushes; and they stopped me, and they inquired about some girl, and Mr. Diaz not even being present. I think that is too far removed and, and tangential to allow . . . that.”

       General Statutes § 53a-19 provides in relevant part: “Use of physical force in defense of person, (a) Except as provided in subsections (b) and (c) of this section, a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.
      “(b) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform. . .

       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.”


source: Caselaw Access Project

author: LANDAU, J.

license: Public Domain

text:
    AGNES MULROY v. BECTON DICKINSON COMPANY ET AL.
    (AC 16407)
    Foti, Landau and Hennessy, Js.
    Argued December 1, 1997
    officially released May 26, 1998

      DeanM. Cordiano, with whom were Peter R. Knight and, on the brief, Matthew J. Becker, for the appellants (defendants).

      Richard L. Gross, for the appellee (plaintiff).
   Opinion

LANDAU, J.

The defendants, Becton Dickinson Company and Travelers Insurance Company, appeal from the decision of the workers’ compensation review board affirming the finding and award of compensation by the workers’ compensation commissioner to the plaintiff, Agnes Mulroy.

On appeal, the defendants claim that the commissioner improperly (1) awarded compensation to Mulroy because the record lacked sufficient evidence to support the finding that her injuries were caused by exposure to chemicals in the workplace, (2) relied on the opinion of Michael Grey, a physician, because his testimony did not meet the proper standard for scientific testimony as enunciated by our Supreme Court in State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998), (3) refused to allow cross-examination as to the resignation of Wesley Jordan from Becton Dickinson and (4) denied their motion to correct several factual findings and the award. We affirm the decision of the board.

The commissioner found the following facts. Mulroy was employed at Becton Dickinson’s plant in Canaan from October, 1979, until December, 1990, when she was diagnosed with distal symmetric sensimotor poly-neuropathy. Becton Dickinson manufactures plastic syringes and labware. Mulroy worked in several departments throughout her eleven years at the plant, including the molding department and the marking, assembly and packaging (MAP) department.

Prior to working in the molding department, Mulroy was in excellent health and led an active athletic life. Soon after her transfer to that department, she began to exhibit symptoms of weight and hair loss, fatigue, pain in her hands and arms, dizziness, loss of coordination and nasal infection. While employed in the molding department, Mulroy was exposed to a volatile liquid chemical solvent, known as 1-1-1 trichloroethane (TCA), a hydrocarbon solvent known to be neurotoxic and to cause peripheral neuropathy.

In 1986, when Mulroy transferred to the MAP department, she used a multichemical liquid solvent known as 304 solvent, which contains chemicals also known to cause peripheral neuropathy. The MAP department was located adjacent to the sterilization department. Mulroy was also exposed to ethylene oxide (ETO), a volatile neurotoxic gas, which was used in the sterilization process and emitted into the air.

The defendants do not dispute the fact that Mulroy is stricken with distal symmetric sensimotor polyneu-ropathy. The defendants, however, do dispute the commissioner’s conclusion that the injury resulted from exposure to neurotoxic chemicals in the workplace. The defendants claim that Mulroy never used TCA, was never exposed to ETO and her injury was solely the result of Charcot-Marie Tooth II Disease (CMT II). The defendants stress that Grey was the only physician to diagnose Mulroy’s condition as work related. The defendants appeal from the board’s decision sustaining the commissioner’s findings.

We first note our standard of review. The commissioner has the power and the duty to determine the facts. Fair v. People’s Savings Bank, 207 Conn. 535, 539, 542 A.2d 1118 (1988). “The review [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [I]t is [obligated] to hear the appeal on the record and not ‘retry the facts.’ ” Id., 538-39. The board must determine whether there was “any evidence” in the record to support the commissioner’s findings. Adzima v. UAC/Norden Division, 177 Conn. 107, 118, 411 A.2d 924 (1979). The role of this court “is to determine whether the review [board’s] decision results ‘from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.’ ” Aurora v. Miami Plumbing & Heating, Inc., 6 Conn. App. 45, 47, 502 A.2d 952 (1986).

I

The defendants first claim that the commissioner improperly awarded compensation to Mulroy because the record lacked sufficient evidence to support the finding that her injuries were caused by exposure to chemicals in the workplace. We disagree.

Grey is a specialist in occupational and environmental medicine at the University of Connecticut Medical Center in Farmington. He is certified by the American Board of Occupational Medicine, and he has been published in the field. Grey began treating Mulroy in 1991 and testified that her injuries were the direct result of her exposure to the chemicals in the workplace.

James Donaldson, a physician specializing in neurological problems in pregnant women, testified as an independent medical examiner. Donaldson stated that the plaintiffs injuries were solely the result of having CMT II. Although Grey thought it unlikely that the plaintiff had CMT II, he did not dispute the possibility that she might have that condition. Grey concluded, however, that if the plaintiff had CMT II, the conditions in the workplace exacerbated the dormant and asymptomatic state of the disease.

Where it is difficult to determine whether circumstances in the workplace caused an injury, it is necessary to rely on expert medical testimony. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 152, 291 A.2d 743 (1972). The defendants’ argument that the commissioner should have accepted the testimony of Donaldson rather than that of Grey is a factual determination properly within the province of the commissioner. Adzima v. UAC/Norden Division, supra, 177 Conn. 118. This determination cannot be overruled by the board unless it could not find “any evidence” to support the conclusion. Id. The findings of the commissioner were clearly supported by the testimony of Grey. Therefore, the board properly upheld the factual determinations of the commissioner.

II

The defendants next argue that our Supreme Court’s decision in State v. Porter, supra, 241 Conn. 57, compels reversal of the board’s decision. The defendants argue that Porter requires the use of the Daubert standard to examine the methodology underlying expert scientific testimony to determine its validity in workers’ compensation cases. We disagree.

In Porter, our Supreme Court adopted the standard announced in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), which set forth specific requirements for the admissibility of scientific testimony. The Daubert standard is a rule of admissibility now applicable to scientific testimony sought to be introduced in our state courts. The Daubert standard replaced the Frye test, which previously provided the standard for the admissibility of scientific testimony. See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

In the workers’ compensation arena, formal pleadings are not required. The commissioner is to proceed “in accordance with the rules of equity” and is not “bound by the ordinary common law or statutory rules of evidence or procedure . . . .” General Statutes § 31-298. This court has remained “mindful of the remedial purposes of the Workers’ Compensation Act and that it should be broadly construed to accomplish its humanitarian puipose. . . . Hansen v. Gordon, [221 Conn. 29, 32, 602 A.2d 560 (1992)], quoting Adzima v. UAC/ Norden Division, [supra, 177 Conn. 117]; see also Ash v. New Milford, 207 Conn. 665, 672, 541 A.2d 1233 (1988).” (Internal quotation marks omitted.) Epps v. Beiersdorf Inc., 41 Conn. App. 430, 433, 675 A.2d 1377 (1996). “ ‘The purpose of the workers’] compensation law has always been to provide compensation for an injury arising out of and in the course of the employment regardless of fault, and the statutes are to be broadly construed to effectuate that purpose. . . . The underlying objective is to provide for the work[er] and those dependent on h[er].’ . . . Klapproth v. Turner, 156 Conn. 276, 279, 240 A.2d 886 (1968).” Tufaro v. Pepperidge Farm, Inc., 24 Conn. App. 234, 238, 587 A.2d 1044 (1991). “The puipose of the Workers’] Compensation Act is to provide a prompt, efficient, simple and inexpensive procedure for obtaining benefits related to employment. 82 Am. Jur. [2d 208] Workmen’s Compensation § 441 (1976).” Middletown v. Local 1073, 1 Conn. App. 58, 65, 467 A.2d 1258 (1983), cert. dismissed, 192 Conn. 803, 471 A.2d 244 (1984). Our Supreme Court has also acknowledged “the principle that one purpose ofworkers’] compensation is to avoid litigation, delay and expense. See Powers v. Hotel Bond, Co., 89 Conn. 143, 146, 147, 93 A. 245 [1915].” Gagnon v. United Aircraft Corp., 159 Conn. 302, 306, 268 A.2d 660 (1970).

As a result, it would be contrary to the spirit of § 31-298 to establish formal requirements for the admissibility of scientific testimony in workers’ compensation cases, especially in light of the fact that the rules of evidence do not apply. See Armstrong v. Wichita, 21 Kan. App. 2d 750, 758, 907 P.2d 923 (1995), rev. denied, 259 Kan. 927 (1996) (neither Frye nor Daubert standards applicable to workers’ compensation cases because technical rules of evidence specifically not applicable). We also note that our Supreme Court has stated that our appellate courts give “ ‘great deference to the construction given to [workers’ compensation law] by the commissioner and the review [board] because they are both charged with its enforcement.’ Crochiere v. Board of Education, 227 Conn. 333, 354, 630 A.2d 1027 (1993).” Dorsey v. United Technologies Corp., 243 Conn. 949, 952 n.4, 704 A.2d 795 (1997) (Ber-don, J., concurring). We know of no workers’ compensation case that has applied either the Frye or the Daubert standards for admissibility of scientific evidence. We, therefore, decline to require workers’ compensation commissioners to be bound by the Daubert standard in determining whether to admit scientific testimony.

Ill

The defendants next claim that the commissioner improperly refused to allow cross-examination as to the resignation of Wesley Jordan from Becton Dickinson to show bias. This claim is without merit.

Jordan Was the corporate safety director at Becton Dickinson from 1981 to 1990. Jordan has a Ph.D. in environmental health and safety, and is a licensed professional engineer and a certified safety professional. He was responsible for worker safety, industrial hygiene, environmental protection and fire protection at the Canaan plant. Jordan testified that Mulroy was exposed to ambient concentrations of ETO in the air throughout the Canaan plant of Becton Dickinson.

“Both parties may appear at any hearing . . . and no formal pleadings shall be required . . . . In all cases and hearings under the provisions of this chapter, the commissioner shall proceed, so far as possible, in accordance with the rules of equity. He shall not be bound by the ordinary common law or statutory rules of evidence or procedure, but shall make inquiry, through oral testimony, deposition testimony or written and printed records, in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter. . . .” General Statutes § 31-298. We have indicated that the rules of evidence generally do not apply to workers’ compensation hearings; see, e.g., Manfredi v. United Aircraft Corp., 138 Conn. 23, 25, 81 A.2d 448 (1951); therefore, it is within the commissioner’s discretion to determine what testimony is relevant and admissible.

The commissioner in this case allowed inquiry into the reasons for Jordan’s resignation from Becton Dickinson. The defendants inquired as to the circumstances under which Jordan left Becton Dickinson. He responded that he had resigned. The defendants then asked how Jordan would characterize his present feelings toward Becton Dickinson, to which Jordan responded, “Well, I think it’s a fine company.” The defendants, after several unrelated questions, asked, “Isn’t it a fact that you resigned from Becton Dickinson because they were going to demote you?” Jordan responded, “I resigned to start my own business . . . .” After this question was answered, the plaintiff objected to the question on the basis of relevance. The parties then had an off-the-record discussion after which further questioning regarding Jordan’s resignation was not permitted.

After reviewing the record and the briefs, we conclude that the commissioner did not abuse her discretion.

IV

Finally, the defendants claim that the commissioner improperly denied their motion to correct several factual findings and the award. We are unpersuaded.

“We will not change the finding of the commissioner unless the record discloses that the finding includes facts found without evidence or fails to include material facts which are admitted or undisputed. Wheat v. Red Star Express Lines, 156 Conn. 245, 248, 240 A.2d 859 (1968). It [is] the commissioner’s function to find the facts and determine the credibility of witnesses . . . and a fact is not admitted or undisputed merely because it is uncontradicted. . . . Id., 249.” (Internal quotation marks omitted.) Simmons v. Bonhotel, 40 Conn. App. 278, 286, 670 A.2d 874 (1996).

After a review of the transcripts and the record, we conclude that the findings and the award of the commissioner were supported by the evidence and included all material facts that were admitted or undisputed. As a result, we conclude that the commissioner did not abuse her discretion in denying the defendants’ motion to correct.

The decision of the compensation review board is affirmed.

In this opinion the other judges concurred.

       This court ordered the parties to file simultaneous supplemental briefs on the impact of State v. Porter, supra, 241 Conn. 57, on this case.

       The defendants also argue, in their supplemental brief, that, aside from the requirements of Porter, appellate courts generally scrutinize the reasoning underlying the opinions of experts to determine whether the opinions constitute sufficient evidence to support the commissioner’s findings. While we do not rule that this is a separate and distinct claim, but may merely be a subsidiary claim, assuming that it is a separate and distinct claim, we decline to review it because it was raised for the first time in the supplemental brief when we had not ordered supplemental briefing on that issue.


author: PER CURIAM.

text:
    AFSCME, COUNCIL 4, LOCALS 387, 391 AND 1565, AFL-CIO v. DEPARTMENT OF CORRECTION ET AL.
    (AC 17210)
    O’Connell, C. J., and Lavery and Landau, Js.
    Argued March 19
    officially released June 2, 1998

      Jason W. Cohen, with whom, on the brief, was J. William Gagne, Jr., for the appellant (plaintiff).

      Richard T. Sponzo, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Charles S. Overend, assistant attorney general, for the appellee (named defendant).

      Lisa S. Lazarek, with whom, on the brief, was Jaye Bailey Zanta, general counsel, for the appellee (defendant board of labor relations).
   Opinion

PER CURIAM.

The plaintiff, AFSCME, Council 4, Locals 387, 391 and 1565, AFL-CIO (union), appealed to the trial court from a decision of the state labor relations board (board). The trial court affirmed the board’s decision and the union appealed to this court. The dispositive issue is whether an earlier decision of the board bars the present proceeding under the doctrine of res judicata.

Our examination of the record and briefs and our consideration of the arguments of the parties persuades us that the judgment of the trial court should be affirmed. In a thoughtful and comprehensive memorandum of decision, the trial court analyzed the law in a manner consistent with our statutes and case precedents. Because that memorandum addresses the dispositive argument raised in this appeal, we adopt the trial court’s well reasoned decision; AFSCME, Council 4, Locals 387, 391 & 1565, AFL-CIO v. Dept. of Correction, 45 Conn. Sup. 292, 714 A.2d 75 (1997); as a statement of the applicable law on this issue. It would serve no useful purpose for us to repeat the discussion contained therein. See In re Karrlo K., 40 Conn. App. 73, 75, 668 A.2d 1353 (1996); Federal Home Loan Mortgage Corp. v. Bardinelli, 39 Conn. App. 786, 788, 667 A.2d 806 (1995).

The judgment is affirmed.


author: LAVERY, J.

text:
    STATE OF CONNECTICUT v. MARCUS GONZALEZ-RIVERA
    (AC 17153)
    O’Connell, C. J., and Lavery and Sullivan, Js.

      Argued January 13
    officially released June 2, 1998

      Pamela S. Nagy, assistant public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, was John T. Redway, state’s attorney, for the appellee (state).
   Opinion

LAVERY, J.

The defendant, Marcus Gonzalez-Rivera, appeals from the judgment of conviction, rendered after a trial by a three judge court, of murder in violation of General Statutes § 53a-54a. On appeal, the defendant claims that the trial court improperly (1) applied the standard for extreme emotional disturbance and therefore deprived the defendant of his constitutional right to establish a defense, (2) concluded that the defendant failed to establish his defense of extreme emotional disturbance, (3) concluded that the state presented sufficient evidence to support his conviction, (4) prevented him from eliciting relevant evidence about the victim’s treatment of him and others to support his extreme emotional disturbance defense, and (5) admitted evidence of his postarrest silence and request for an attorney. We affirm the judgment of the trial court.

The trial court reasonably could have found the following facts. The defendant was employed as a seasonal employee of Clinton Nurseries in Clinton on April 6, 1994. On April 5,1994, the defendant had a disagreement with one of his supervisors, Andrew Grella, the victim. On April 6,1994, the defendant operated a forklift until around noon when he told the victim he did not want to work under him any longer. The defendant’s other supervisor, Jose Konst, was called to the area to talk to the defendant, but the defendant repeated that he would no longer work for the victim. The victim told the defendant to “punch out.” The defendant went to building D on the nursery complex where a time clock was located and punched out. Because work had not ended for the other employees, the defendant went to the parking area and sat in the van that provided the employees transportation between their homes and the nursery.

After sitting in the van for approximately twenty to thirty minutes, the defendant returned to building D to get a drink of water. In building D, he spoke to two mechanics who worked there and told them, “Andy quit me,” referring to his having been told to punch out. The defendant then lingered there for approximately ten minutes when the victim entered building D to have a tire repaired. The victim asked the defendant why he was there and if he had punched out. The defendant replied that he had. The victim then entered a nearby rest room and emerged shortly thereafter. As the defendant walked past the victim to exit the building, he drew a .40 caliber semiautomatic pistol from the area of his waist, aimed at the victim’s head and fired. The victim fell to the floor, and the defendant walked up to him and fired three more shots into the victim as he lay on the floor. There were no witnesses to the shooting, but the defendant was seen fleeing building D, stuffing an object into the waist of his trousers. All four shots were potentially fatal, and it was determined that the victim died of a homicide by multiple gunshot wounds.

The defendant fled through the nursery and was tracked down approximately two hours later by a Madison police officer and his canine. He was found hiding in a marshy area across the street from the nursery. A .40 caliber semiautomatic pistol containing a magazine with seven unfired rounds, a hat, a magazine with eleven unfired rounds, keys and a jacket worn by the defendant earlier that day were found in the immediate area. The pistol found near the defendant was the one used to shoot the victim and had been purchased in the New Haven area on September 3, 1993.

I

The defendant first claims that the trial court improperly applied the standard set forth in § 53a-54a (a) to evaluate the extreme emotional disturbance defense. We disagree.

Because the defendant failed to preserve his claim properly at trial, he seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. “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. . . . The first two conditions are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself. . . . State v. Sanders, 37 Conn. App. 219, 220, 655 A.2d 805, cert. denied, 233 Conn. 909, 658 A.2d 981 (1995); Wilson v. Cohen, 222 Conn. 591, 603, 610 A.2d 1177 (1992); State v. Graham, 33 Conn. App. 432, 442, 636 A.2d 852, cert. denied, 229 Conn. 906, 640 A.2d 117 (1994).” (Internal quotation marks omitted.) State v. Santos, 41 Conn. App. 361, 364, 675 A.2d 930, cert. denied, 237 Conn. 932, 677 A.2d 1374 (1996). As in Santos, the defendant claims that the three judge court, by misconstruing the extreme emotional disturbance standard, denied him the constitutional due process right to establish a defense. Because the record is adequate for review and the claim is of constitutional magnitude, we will review the defendant’s claim.

Section 53a-54a (a) provides in pertinent part that “in any prosecution [for murder] 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 . . . .” “[T]he statute sets forth a standard that is objective in its overview, but subjective as to the defendant’s belief.” State v. Elliott, 177 Conn. 1, 7, 411 A.2d 3 (1979). Thus, “the determination of the reasonableness of the explanation or excuse for the emotional disturbance must be measured from the viewpoint of a reasonable person in the defendant’s situation under the circumstances as the defendant believed them to be.” State v. Steiger, 218 Conn. 349, 385, 590 A.2d 408 (1991).

The crux of the defendant’s claim is that because the trial court failed to articulate, in its memorandum of decision, the facts relied on in assessing the defendant’s situation under the circumstances as he believed them to be, it failed to apply the standard properly. The defendant concedes that the three judge court articulated the correct standard in its memorandum of decision. Specifically, the trial court stated that “we are required to measure the reasonableness of the defendant’s explanation or excuse from the viewpoint of a reasonable person in the defendant’s situation under the circumstances as the defendant believed them to be.”

In rejecting the defendant’s extreme emotional disturbance defense, the court concluded that the defendant came to work on April 6, 1994, with a fully loaded .40 caliber pistol and an extra fully loaded magazine. Further, the panel concluded that “[t]he credible testimony established that the defendant had not previously brought the pistol to work, but that he brought it that day because the day before, the victim had, according to the defendant, ‘pissed me off.’ We find that the defendant’s loss of a seasonal position (a job he had held on and off since 1987, with no spouse or family to support as he lived with his brother, Noel) did not place the defendant in an extremely unusual and overwhelming state, or that he had an extreme emotional reaction to it, as a result of which there was a loss of self-control where reason was overborne by extreme intense feelings.”

The fact that the trial court’s memorandum of decision does not articulate its findings as to what the defendant’s mental state was at the time of the shooting, or the particular situation as the defendant perceived it to be, does not indicate that it did not apply the standard properly. We conclude that the defendant has failed to demonstrate that a constitutional violation clearly exists that clearly deprived him of a fair trial.

II

The defendant’s second claim is that the trial court improperly found that he had failed to prove his affirmative defense of extreme emotional disturbance by a preponderance of the evidence. We disagree.

“Our Supreme Court has stated that in determining whether the defendant has proven the affirmative defense of an extreme emotional disturbance . . . 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. Elliott, supra, 177 Conn. 9.

“Although this case presents an unusual procedural posture where a three-judge panel serves as the finder of facts (instead of a jury) and where the burden is on the defendant to prove his affirmative defense, the normal rules for appellate review of factual determinations apply and the evidence must be given a construction most favorable to sustaining the court’s verdict. State v. Chetcuti, 173 Conn. 165, 172, 377 A.2d 263 (1977). Moreover, the question is whether upon the facts established and the inferences drawn therefrom the [fact finder] could have reasonably concluded that the cumulative effect of the evidence failed to establish that the defendant acted under the influence of an extreme emotional disturbance for which there was a reasonable explanation or excuse. In sum, except 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, 182 Conn. 388, 391-92, 438 A.2d 696 (1980), cert. denied, 450 U.S. 1003, 101 S. Ct. 1715, 68 L. Ed. 2d 207 (1981). In the final analysis . . . the ultimate determination of the presence or absence of extreme emotional disturbance [is] one of fact for the trier .... State v. Steiger, supra, 218 Conn. 383, quoting State v. Zdanis, supra, 395.” (Internal quotation marks omitted.) State v. Santos, supra, 41 Conn. App. 367-68.

The defendant presented evidence at trial that he had been physically and verbally abused by his father as a child. The defendant testified that approximately one year before the defendant murdered the victim, the defendant’s father called him a “maricón.” The defendant also presented evidence that his relationship with the victim was not very good. According to the defendant’s expert witness, the defendant described the victim in the same way he described his father, as someone who was humiliating, authoritarian, critical, and demanding. The defendant testified that when he encountered the victim in building D, the victim called him a maricón. As a result, the defendant claims he became enraged, lost control of himself and shot the victim.

“In a case in which the evidence is conflicting, it is the quintessential . . . function [of the fact finder] to reject or accept certain evidence, and to believe or disbelieve any expert testimony.” State v. Raguseo, 225 Conn. 114, 123, 622 A.2d 519 (1993). “The court might reject [expert testimony] entirely as not worthy of belief or find that the opinion was based on subordinate facts that were not proven.” State v. Blades, 225 Conn. 609, 629, 626 A.2d 273 (1993). “[T]he trier of fact can disbelieve any or all of the evidence . . . and can construe that evidence in a manner different from the parties’ assertions. . . State v. Steiger, supra, 218 Conn. 381.

The state presented evidence that permitted the inference that the defendant planned the murder of the victim. There was evidence that after waiving his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the defendant voluntarily informed a state trooper that because the victim had “pissed me off’ the previous day, he brought a gun to work, something he had never done before. Further, there was evidence that the weapon was fully loaded when fired and that the defendant brought an extra fully loaded magazine to work that day. In addition, there was evidence to support the inference that the defendant’s job was not important to him and, therefore, that the loss of the job would not have placed the defendant in an extremely unusual and overwhelming state. There was also evidence that the defendant appeared to be calm just before the shooting and while making a statement just after he was apprehended.

We conclude that the trial court reasonably could have determined that the defendant failed to prove, by a preponderance of the evidence, the existence of an extreme emotional disturbance.

III

The defendant next claims that his conviction should be set aside or that he should receive a new trial because the court’s verdict is against the weight of the evidence. Our resolution of the defendant’s first two claims also resolves this claim. The defendant’s conviction was not against the weight of the evidence and, therefore, he is not entitled to an acquittal.

IV

The defendant’s fourth claim is that the trial court improperly prevented him from eliciting relevant evidence about the victim’s treatment of him and others to support his extreme emotional disturbance defense. Specifically, the defendant claims that his counsel was precluded from asking the defendant and other witnesses questions that were relevant to his defense of extreme emotional disturbance. In addition to claiming evidentiary error, the defendant claims that the trial court’s rulings deprived him of his state and federal constitutional rights to present a defense. We disagree.

“The trial court’s ruling on the admissibility of evidence is entitled to great deference. State v. Castonguay, 218 Conn. 486, 497, 590 A.2d 901 (1991); State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985). [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . State v. Coleman, 241 Conn. 784, 789, 699 A.2d 91 (1997). Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. State v. Alvarez, 216 Conn. 301, 306, 579 A.2d 515 (1990) . . . State v. Beliveau, 237 Conn. 576, 592, 678 A.2d 924 (1996); State v. Colton, 227 Conn. 231, 260, 630 A.2d 577 (1993), on appeal after remand, 234 Conn. 683, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996).” (Internal quotation marks omitted.) State v. Hines, 243 Conn. 796, 801, 709 A.2d 522 (1998). “ ‘Whether a trial court’s erroneous restriction of a defendant’s or defense witness’s testimony in a criminal trial deprives a defendant of his due process right to present a defense is a question that must be resolved on a [case-by-case] basis.’ ” State v. Barletta, 238 Conn. 313, 322, 680 A.2d 1284 (1996), quoting State v. Jones, 205 Conn. 723, 731, 535 A.2d 808 (1988).

A

At trial, the defendant attempted to question Luis Gonzales, a Clinton Nurseries employee, as to whether he had ever obseived how the victim treated workers there. The state objected, arguing that it was an attempt to introduce the character traits of the victim into the case and that this was improper. The defendant argued that it was relevant to corroborate the behavior testified to by the defendant. The trial court sustained the state’s objection and denied the defendant’s offer of proof. The defendant also attempted to question Jose Konst about a statement the defendant had made to him the night before the shooting that he did not want to work for “this guy” anymore. Konst indicated that the defendant did not tell him who “this guy” was, but it occurred to him that the defendant was referring to the victim. When the defendant asked Konst why this had occurred to him and whether it had anything to do with the victim’s treatment of workers, the state objected, arguing that the defendant was attempting to get into evidence the victim’s character. The court sustained the objection and also did not allow the defendant to make an offer of proof. In addition, the defendant was precluded from asking Noel Gonzales, the defendant’s brother, why he quit his job at Clinton Nurseries.

“In a trial for homicide the character of the deceased ordinarily is irrelevant to the accused’s guilt or innocence.” State v. Miranda, 176 Conn. 107, 109, 405 A.2d 622 (1978). However, “[i]t has long been the law in this state that, in a homicide prosecution, ‘an accused may introduce evidence of the violent, dangerous or turbulent character of the victim to show that the accused had reason to fear serious harm, after laying a proper foundation by adducing evidence that he acted in self-defense and that he was aware of the victim’s violent character.’ State v. Miranda, [supra, 109], citing State v. Padula, 106 Conn. 454, 456-57, 138 A. 456 (1927). More recently, we joined a majority of courts when we expanded this rule to allow the accused to introduce evidence of the victim’s violent character to prove that the victim was the aggressor, regardless of whether such character evidence had been communicated to the accused prior to the homicide. State v. Miranda, supra [109].” State v. Smith, 222 Conn. 1, 17, 608 A.2d 63, cert. denied, 506 U.S. 942, 113 S. Ct. 383, 121 L. Ed. 2d 293 (1992).

In this case, there was no evidence that the victim was the initial aggressor or that the defendant feared serious harm from the victim. There is no need for the exception in this case because the reason for the exception is missing. The excluded testimony of the victim’s character would not “be a circumstance contributing to a reasonable belief by the accused that his life [was] in peril and his consequent state of mind as to the necessity of defending himself and the means justifiably to be taken in so doing.” State v. Miranda, supra, 176 Conn. 109. The defendant did not claim self-defense, but instead claimed an extreme emotional disturbance defense.

The crux of the defendant’s argument is that the excluded testimony should have been admitted because it would have corroborated the defendant’s testimony as well as his defense of extreme emotional disturbance. Specifically, the defendant argues that the excluded testimony went to the heart of his defense because his defense could succeed only if other people testified that his perceptions of the victim were accurate. The defendant also argues that the admission of character evidence of the victim in a case involving extreme emotional disturbance is analogous to one involving self-defense, and that without the evidence of the victim’s treatment of his employees and the defendant’s lack of violent behavior, the trial court could not properly analyze the extreme emotional disturbance defense. We disagree.

The defendant contends that the excluded testimony is needed to corroborate his own testimony and beliefs and, therefore, should have been admitted. The exception to the general rule that character evidence of the victim is inadmissible; see State v. Miranda, supra, 176 Conn. 109; is narrow and specific to the situation where a defendant claims to have acted in self-defense. The defendant in this case seeks to make improper use of character evidence of the victim. The exception does not allow character evidence of the victim to be used to corroborate a defendant’s claim that he was suffering from an extreme emotional disturbance. The reason for the exception is not satisfied in this situation; there was no fear by the defendant or aggression by the victim. For purposes of the extreme emotional disturbance defense in this case, evidence of the defendant’s personal beliefs and state of mind with regard to the victim’s character are relevant in examining whether a reasonable explanation or excuse for his actions exists. Testimony from other witnesses, however, as to their own beliefs or states of mind with regard to the victim’s character are not relevant to the defendant’s state of mind. It is the defendant’s subjective belief that matters for purposes of the defense of extreme emotional disturbance, not the beliefs of other witnesses. We conclude that the trial court did not abuse its discretion in excluding this testimony at trial.

We also conclude that the defendant was not deprived of his right to present a defense. In relying on the defense of extreme emotional disturbance, the defendant presented evidence regarding his perception of the situation under the circumstances as he believed them to be. The defendant and his expert witness, Kenneth Selig, a forensic psychiatrist, testified as to the defendant’s state of mind. Two contested facts at trial were (1) whether the victim called the defendant a maricón on April 6,1994, and (2) whether the defendant brought a gun to work for the first time on April 6, 1994. The defendant testified that on April 6, 1994, the victim called him a maricón and that in the past he had brought the gun to work as protection. As to whether the victim called the defendant a maricón on April 6, 1994, there was no direct evidence other than the defendant’s testimony. There were no witnesses to testify that this alleged insult occurred. As to whether the victim brought the gun to work for the first time on April 6,1994, state police trooper Pablo Arroyo testified that the defendant stated that because the victim “pissed me off’ on April 5, 1994, the defendant brought a gun to work the next day, something he had never done before.

We conclude that the three judge court, as the trier of fact, had enough evidence before it to understand clearly what the defendant claimed was his state of mind at the time of the shooting. There was sufficient evidence before the panel to analyze the defendant’s extreme emotional disturbance defense properly and, therefore, the defendant was not deprived of a fair trial. The defendant’s claim of constitutional error fails under the third prong of Golding.

B

The defendant was also precluded from asking his sister, Livuvana Gonzales-Rivera, questions concerning feelings the defendant had expressed to her about the victim prior to the shooting. In addition, the court also ruled certain questions asked of the defendant irrelevant.

Gonzales-Rivera testified that she did not know when the defendant had shared his thoughts with her about the victim other than that it was “a lot longer before” the shooting of the victim. The state objected on the grounds of hearsay, relevance and lack of a proper foundation. The trial court sustained the objection. The defendant argued in his offer of proof that the testimony from his sister would show that he often spoke to her about his feeling that the victim was a racist, always humiliated and picked on him and had called him a maricón, and that he had complained to his superiors about the victim. On appeal, the defendant argues that his sister’s testimony would have corroborated his own testimony. On the basis of the record before us, we cannot say that the trial court abused its discretion in excluding her testimony.

The trial court could also reasonably have concluded that testimony regarding whether the defendant had ever fired a gun at someone before or had ever hurt someone before was of little relevance in determining whether the defendant was suffering from extreme emotional disturbance at the time he shot and killed the victim or whether there was a reasonable explanation or excuse for his action. As to the question regarding whether anyone had ever treated the defendant as the victim had, the court ruled that the question was not relevant at this point because the defendant argued that it was relevant to anticipated expert testimony. Later, Selig testified that the defendant described the victim “in very much the same way he described his father, as someone who was humiliating, very authoritarian, very critical, very demanding, very pressuring, possibly a racist.” Therefore, the trial court was aware that the defendant believed that the victim’s treatment of him was similar to his father’s treatment of him. We conclude that the trial court did not clearly abuse its discretion or commit an injustice when it excluded this testimony.

V

Finally, the defendant claims that the trial court deprived him of a fair trial when evidence of his postar-rest silence and request for an attorney was admitted and commented on by the state. We disagree.

The defendant failed to preserve this issue for appeal and now seeks appellate review under State v. Golding, supra, 213 Conn. 239-40. Because the record is adequate for review and the claim is of constitutional magnitude, we will review the defendant’s claim.

A

The following facts are relevant to this issue. At trial, Arroyo testified that after the defendant was arrested and transported to the Clinton police station, he advised the defendant of his rights under Miranda v. Arizona, supra, 384 U.S. 436. After telling Arroyo that he understood his rights, the defendant read the notice of rights document out loud and initialed each paragraph. The defendant then repeated that he understood his rights and stated that he would answer Arroyo’s questions. Arroyo asked the defendant if he knew why he was there, and the defendant responded that he was there because he had shot his boss. The interview was then discontinued because the defendant had to be transported to a medical facility in Essex for treatment of dog bite wounds he had received during his arrest. At the clinic, the defendant told Arroyo about the events of April 6,1994. The defendant made a number of statements to Arroyo concerning the events that ended in the killing of the victim. After being treated at the clinic, the defendant was returned to the Clinton police station. Arroyo informed the deputy chief of the defendant’s admissions at the clinic and was instructed to reinterview the defendant so that the interview could be videotaped. Arroyo informed the defendant of the request and reviewed the waiver of rights document with the defendant. The defendant initialed the notice of rights card and indicated to Arroyo that he understood his rights.

Arroyo then testified as follows: “After I asked [the defendant] if he understood his rights and was willing to answer my questions, he stated that he knew that earlier he had made some incriminating statements. And that, at that point in time, he didn’t want to be interviewed and that he wanted to speak with a lawyer at that time. I relayed what [the defendant] stated to me to the deputy chief and the interview was terminated.” On cross-examination, the defendant asked about the second rights form and if the defendant had initialed it around 18:08 hours. Arroyo answered as follows: “Yes, that occurred first. He initialed the rights form and then he stated that he wanted to talk to the lawyer. And he knew that he had made some incriminating remarks earlier.”

Officer Joseph Flynn of the Clinton police department also testified about the statements made by the defendant at the clinic. Flynn had transported the defendant to and from the clinic. Flynn also testified about the attempted second interview at the police station. In particular, Flynn testified to the defendant’s reaction upon learning that the victim had died. “ [The defendant] who was sitting in a chair, sort of slumped in his chair, looked down, appeared upset, covered his eyes. We waited a few minutes to let him compose himself and again asked him if he wanted to speak further to us concerning the incident and he said no.”

The defendant claims that the admission of this testimony violated his due process rights pursuant to Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). The state argues that the evidence was properly admissible because it showed the investigative efforts of the police and the sequence of events.

“In Doyle v. Ohio, supra, 426 U.S. 619, the United States Supreme Court held that ‘the use for impeachment purposes of [a defendant’s] silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.’ . . . Thus Doyle is not implicated if the evidence is not presented for impeachment purposes. State v. Hull, 210 Conn. 481, 490-91, 556 A.2d 154 (1989); State v. Casey, 201 Conn. 174, 182-86, 513 A.2d 1183 (1986); State v. Moye, 177 Conn. 487, 495-99, 418 A.2d 870, vacated and remanded on other grounds, 444 U.S. 893, 100 S. Ct. 199, 62 L. Ed. 2d 129, on appeal after remand, 179 Conn. 761, 409 A.2d 149 (1979). The state may present evidence ‘to show the investigative effort made by the police and the sequence of events as they unfolded . . . .’ State v. Moye, supra, 499. In State v. Hull, supra, 491, our Supreme Court noted that testimony concerning investigative effort that refers to a defendant’s postarrest silence is constitutionally permissible [in certain limited circumstances, such as] ‘where only one police officer briefly describe [s] what had transpired when [the] defendant was interviewed at the police station.’ ” (Emphasis in original.) State v. Smith, 42 Conn. App. 41, 48, 680 A.2d 1340 (1996).

On the basis of our review of the record, we conclude that the testimony of Arroyo and Flynn was properly admissible to show the investigative effort and the sequence of events that unfolded after the defendant’s arrest. The defendant’s request for an attorney was not used by the state to impeach the defendant’s testimony. The defendant argues that Hall limited the investigative efforts exception to a situation in which only one police officer testifies to what transpired and not “where three witnesses testified to the defendant’s invocation of his right to counsel and the prosecutor mentioned that invocation in his closing argument.” State v. Hull, supra, 210 Conn. 491. We disagree with the defendant’s reliance on Hull, and find this case similar to State v. Casey, supra, 201 Conn. 183, and State v. Moye, supra, 177 Conn. 499. In this case, there were only two witnesses who briefly testified to the defendant’s request for an attorney, and no mention of that request was made by the prosecutor in his closing argument. We do not find that the testimony in question “signal[s] a retreat from the basic Doyle proposition that it does not comport with due process to permit the prosecution during the trial to call attention to [the defendant’s] silence . . . .” (Internal quotation marks omitted.) State v. Hull, supra, 491. We conclude that the testimony about the investigation and sequence of events in this case was proper and not in violation of Doyle.

The defendant also claims that State v. Plourde, 208 Conn. 455, 464-68, 545 A.2d 1071 (1988), cert. denied, 488 U.S. 1034, 109 S. Ct. 847, 102 L. Ed. 2d 979 (1989), prohibits Flynn’s description of the defendant’s reaction to the news of the victim’s death. We agree with the defendant that this testimony violated Doyle, but conclude that it was harmless beyond a reasonable doubt. “The test for harmfulness is whether there is a reasonable possibility that the improperly admitted evidence contributed to the conviction . . . .” (Internal quotation marks omitted.) State v. Hull, supra, 210 Conn. 492. “ ‘A Doyle violation may, in a particular case, be so insignificant that it is clear beyond a reasonable doubt that the [three judge panel] would have returned a guilty verdict without the impermissible question or comment upon a defendant’s silence following a Miranda warning. Under such circumstances, the state’s use of a defendant’s postarrest silence does not constitute reversible error.’ ” Id. In Plourde, our Supreme Court held that “[s]ince the state’s case was based exclusively on circumstantial evidence, there was a ‘reasonable possibility’ that the improperly admitted evidence of the defendant’s silence in the face of police accusations contributed to his conviction.” (Emphasis added.) State v. Plourde, supra, 469. In this case, the state did not rely on circumstantial evidence to prove its case. Also, the defendant’s silence did not occur in the face of accusations by the police as was the defendant’s in Plourde. The only question before the trial court was whether the defendant was suffering from extreme emotional disturbance when he killed the defendant. We conclude that there was no reasonable possibility that this evidence contributed to the defendant’s conviction.

B

The defendant also claims that the prosecutor violated Doyle during cross-examination of the defendant and in his closing arguments. The defendant argues that the prosecutor improperly sought testimony concerning, and then in his closing argument improperly commented on, the defendant’s failure to mention to Arroyo that the victim had called him a maricón before the shooting.

As previously stated, “[t]he United States Supreme Court in Doyle v. Ohio, supra [426 U.S. 619], held that ‘the use for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.’ The court stated that ‘it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.’ Id., 618. The court further clarified its holding in Anderson v. Charles, 447 U.S. 404, 408, 100 S. Ct. 2180, 65 L. Ed. 2d 222, reh. denied, 448 U.S. 912, 101 S. Ct. 27, 65 L. Ed. 2d 1173 (1980), where it stated that ‘Doyle does not apply to cross-examination that merely inquires into prior inconsistent statements. Such questioning makes no unfair use of silence, because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent at all.’ We do not see any reason why prosecutorial comment during closing argument is not analogous to cross-examination for the purpose of the application of this rule. On cross-examination of his landlady, as well as during his own testimony, the defendant introduced evidence that he had heard the victim insult her during the argument that preceded the shooting. The fact that the defendant failed to mention the insult to his landlady during police questioning but testified to that incident during his trial is the equivalent of having given inconsistent statements for the purposes of this rule. See State v. Whelan, 200 Conn. 743, 748 n.4, 513 A.2d 86 (1986).” State v. Casey, supra, 201 Conn. 184-85.

In this case, as in Casey, the defendant voluntarily made statements to Arroyo after receiving Miranda warnings. In these statements, the defendant told the officer the events leading up to the shooting. The defendant did not mention to Arroyo that the victim had called him a maricón just prior to the shooting. At trial, however, the defendant and his expert witness testified that the victim called the defendant a maricón and that this was the triggering event that resulted in the shooting of the victim. Therefore, as in Casey, this is the equivalent of the defendant’s giving inconsistent statements.

The prosecutor asked the defendant why, if his trial testimony were true and the insult had such a profound effect on him, he did not tell the officer that the victim had called him a maricón. “The [question was] not designed to draw meaning from silence, but to elicit an explanation for a prior inconsistent statement.” Anderson v. Charles, supra, 447 U.S. 409.

As our Supreme Court held in State v. Casey, supra, 201 Conn. 185, and in State v. Talton, 197 Conn. 280, 295, 497 A.2d 35 (1985), we believe that “[t]he Doyle decision ... is not applicable to the facts of this case. The crucial distinction is that, here, the defendant did not remain silent after he was arrested and advised of his rights. After being given Miranda warnings, the defendant clearly chose to [forgo] his right to remain silent. Once an arrestee has waived his right to remain silent, the Doyle rationale is not operative because the arrestee has not remained silent and an explanatory statement assuredly is no longer insolubly ambiguous. By speaking, the defendant has chosen unambiguously not to assert his right to remain silent. He knows that anything he says can and will be used against him and it is manifestly illogical to theorize that he might be choosing not to assert the right to remain silent as to part of his exculpatory story, while invoking the right as to other parts of his story.” (Internal quotation marks omitted.) State v. Casey, supra, 185-86.

We conclude that the prosecutor’s question to the defendant on cross-examination was a proper inquiry into a prior inconsistent statement of the defendant, and that the prosecutor’s comments in his closing arguments were not improper.

The judgment is affirmed.

In this opinion the other judges concurred.

       The three judges were impaneled pursuant to General Statutes § 54-82, which provides in relevant part: “(a) In any criminal case, prosecution or proceeding, the party accused may, if he so elects when called upon to plead, be tried by the court instead of by the jury; and, in such case, the court shall have jurisdiction to hear and try such case and render judgment and sentence thereon.
      “(b) If the accused is charged with a crime punishable by death or imprisonment for life and elects to be tried by the court, the court shall be composed of three judges to be designated by the Chief Court Administrator, or his designee, who shall name one such judge to preside over the trial. Such judges, or a majority of them, shall have power to decide all questions of law and fact arising upon the trial and render judgment accordingly. . . .”

       The defendant was also convicted of carrying a pistol without a permit in violation of General Statutes § 29-35.

       The trial court denied the defendant’s motion for articulation. The defendant’s motion for review was granted by the Supreme Court, but the relief requested was denied.

         The court heard testimony to the effect that maricón is “an extremely insulting word to use in Spanish. It’s stronger in Spanish than the word faggot is in English.”

       The defendant’s expert witness testified on cross-examination that his opinion regarding the defendant’s emotional state at the time of the shooting would be different if the victim was found not to have called the defendant a maricón shortly before the shooting.

       The defendant did not make this constitutional claim at trial and seeks review on appeal under State v. Golding, supra, 213 Conn. 239-40. Because the record is adequate for review and the claim is of constitutional magnitude, we will review it. See State v. Barletta, 238 Conn. 313, 322, 680 A.2d 1284 (1996) (when evidence proffered by defendant excluded, exclusion may give rise to claim of denial of rights to present defense).

       In the majority of jurisdictions in the United States, including Connecticut, it is the rule that character evidence of the victim in a homicide case is inadmissible except where the defendant admits to having killed the victim and claims to have acted in self-defense. 1 C. McCormick, Evidence (4th Ed. 1992) § 193, pp. 820-24; 40 Am. Jur. 2d 569-70, Homicide § 302 (1968).

       The following questions were ruled irrelevant: (1) whether anyone else had ever treated the defendant as the victim had; (2) whether the defendant had ever fired a gun at anyone else before; and (3) whether the defendant had ever hurt anyone before.

       Arroyo is fluent in Spanish. The Clinton police department requested his assistance as a translator to facilitate communication with the defendant.