author: Landau, J.

text:
    Bank of Boston Connecticut v. Nongnuch Chumnanvech et al.
    (11097)
    Dupont, C. J., Foti and Landau Js.

      Argued March 25
    decision released May 18, 1993

      Kerry M. Wisser, for the appellants (defendant Jeffrey Wagner et al.).

      Thomas J. Sansone, for the appellee (plaintiff).
   Landau, J.

In this appeal, the defendants Jeffrey Wagner and Cindy Wagner challenge the granting of a prejudgment remedy by the trial court. The trial court based its decision on allegations in the third count of an unsigned complaint, alleging a fraudulent conveyance from Jeffrey Wagner to his wife, Cindy Wagner, in violation of General Statutes (Rev. to 1989) § 52-552. The defendants claim that the trial court improperly granted the application in that there was no finding that the plaintiff established that probable cause existed that there was clear and convincing evidence of a fraudulent conveyance. We affirm the judgment of the trial court.

After a hearing on the prejudgment remedy application, the trial court found the following facts. On September 14,1988, Nongnuch Chumnanvech and Jeffrey Wagner each executed a personal guarantee of a promissory note in the amount of $1,200,000, plus interest, from Sackett Point Senior Homes (Sackett Point) to the plaintiff, the Bank of Boston Connecticut (bank). At that time, Wagner furnished to the bank a financial statement showing two properties, one located at Davis Hill, Weston, listed as having a fair market value of $700,000, and the other located at Godfrey Road, Weston, listed as having a fair market value of $300,000, as personal assets. On March 23, 1990, the bank advised Wagner that the note was due on April 1, 1990, with a payment of $1,256,827.16 and, by letter dated April 19, 1990, Wagner received a written demand for payment from the bank’s attorneys. The note went into default for nonpayment. On April 5, 1990, Jeffrey Wagner quitclaimed the properties located at Davis Hill and Godfrey Road to his wife, Cindy Wagner, for a consideration of $1 as to each parcel. After finding that a short period had elapsed since the bank’s demand letter and the due date of the note to the transfer, the trial court concluded that there was probable cause to sustain the validity of the bank’s claim regarding Jeffrey Wagner’s personal guarantee of payment and that there was “probable cause to sustain the validity of the § 52-552 claim as set forth in count three.”

After the defendants filed a motion for articulation, which was denied by the trial court, they filed a motion for review of the trial court’s denial in this court. We granted the motion to review and denied the relief requested. This appeal ensued.

The first consideration is our scope of review. Pursuant to the prejudgment remedy statutes; General Statutes § 52-278a et seq.; the trial court’s function is to determine whether there is probable cause to believe that a judgment will be rendered in favor of the plaintiff in a trial on the merits. New England Land Co. v. DeMarkey, 213 Conn. 612, 620-21, 569 A.2d 1098 (1990). “The hearing in probable cause for the issuance of a prejudgment remedy is not contemplated to be a full scale trial on the merits of the plaintiff’s claim. The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim. . . . The court’s role in such a hearing is to determine probable success by weighing probabilities.” (Citation omitted; internal quotation marks omitted.) Id., 620. This weighing process applies to both legal and factual issues. Augeri v. C. F. Wooding Co., 173 Conn. 426, 429, 378 A.2d 538 (1977); Bahiarz v. Hartford Special, Inc., 2 Conn. App. 388, 393, 480 A.2d 561 (1984). We reiterate “the limited role that our case law assigns to appellate review of a trial court’s broad discretion to deny or to grant a prejudgment remedy. It is the trial court that must determine, in light of its assessment of the legal issues and the credibility of the witnesses, whether a plaintiff has sustained the burden of showing probable cause to sustain the validity of its claim. We decide only whether the determination of the trial court constituted clear error.” Greenberg, Rhein & Margolis, Inc. v. Norris-Faye Horton Enterprises, Inc., 218 Conn. 162, 166, 588 A.2d 185 (1991).

The defendants argue that there was lacking any finding by the trial court of probable cause that there was clear and convincing evidence of a fraudulent conveyance. They posit that since the plaintiff is required to show that the plaintiff would succeed on its claim of fraudulent conveyance, it necessitates a showing of probable cause that the standard of proof for fraudulent conveyances will be met. The defendants seek to use our decision in Haxhi v. Moss, 25 Conn. App. 16, 591 A.2d 1275 (1991), as an analogy to buttress their position. Their reliance is misplaced.

In Haxhi, this court found that the reliance by the trial court on an incorrect definition of malice in the context of a libel claim rendered the trial court’s probable cause determination invalid; the use by the trial court of the wrong legal standards regarding the underlying claim tainted any probable cause determination. Such is not the case here. It is clear, from the findings of the trial court, that it was persuaded that the plaintiffs had established probable cause that there was a fraudulent conveyance.

“A fraudulent conveyance for the purpose of attachment is one made without substantial consideration and which renders the debtor unable to meet his obligation or one made with a fraudulent intent in which the grantee participated. Town Bank & Trust Co. v. Benson, 176 Conn. 304, 307, 407 A.2d 971 (1978). Denison Development Co. v. Gunther, 189 Conn. 333, 335, 455 A.2d 1340 (1983).” (Internal quotation marks omitted.) Sweet v. Sumnerbrook Mill Development Corporation, 21 Conn. App. 191, 195, 572 A.2d 365 (1990). Here, the facts relied on by the trial court in finding that probable cause exists were that the conveyance was made upon $1 consideration for each parcel, that the conveyance was made within days of Jeffrey Wagner’s being informed of the demand, and that the conveyance rendered Jeffrey Wagner unable to meet his obligation under the personal guarantee. Furthermore, given the trial court’s specific reference to § 52-552, it is clear that the trial court was well aware of, and applied, the appropriate standard of proof.

The conclusions of the trial court were reasonable and this court will not overrule the thoughtful decision of the court, which had the opportunity to assess the legal issues that were raised and the opportunity to weigh the credibility of the witnesses.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court declined to grant the application for a prejudgment remedy against the defendants Nongnuch Chumnanvech and Theerayut Chumnanvech and they are not parties to this appeal. In this opinion we refer to Jeffrey Wagner and Cindy Wagner as the defendants.

       General Statutes (Rev. to 1989) § 52-552 provides that “[a]ll fraudulent conveyances, suits, judgments, executions or contracts, made or contrived with intent to avoid any debt or duty belonging to others, shall, notwithstanding any pretended consideration therefor, be void as against those persons only, their heirs, executors, administrators or assigns, to whom such debt or duty belongs.”


source: Caselaw Access Project

author: Freedman, J.

license: Public Domain

text:
    State of Connecticut v. Freddy Payne
    (10997)
    Daly, O’Connell and Freedman, Js.
    Argued April 2
    decision released May 25, 1993

      Neal Cone, assistant public defender, with whom, on the brief, were G. Douglas Nash, public defender, and Carolyn M. Jones, certified legal intern, for the appellant (defendant).

      Jack W. Fischer, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Elpedio Vitale, assistant state’s attorney, for the appellee (state).
   Freedman, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of criminal attempt to commit burglary in the second degree in violation of General Statutes §§ 53a-49 and 53a-102 (a) and conspiracy to commit burglary in the second degree in violation of General Statutes §§ 53a-48 (a) and 53a-102 (a). On appeal, he claims that the trial court improperly (1) allowed testimony that the complainants’ window was broken by a rock the night before the incident at issue, (2) failed to instruct the jury on criminal trespass in the second degree as a lesser included offense, (3) instructed the jury on intoxication, (4) instructed the jury on reasonable doubt, and (5) instructed the jurors on their duties. We affirm the judgment of the trial court.

The jury could have reasonably found the following facts. On December 16,1988, at about 3 a.m., Wesley Smith and his wife were sleeping in the living room of their apartment in the Prospect Garden Apartments at 470 Prospect Street in New Haven. Smith woke up and heard the front storm door opening and the doorbell ringing. Smith arose and looked out his front window to see who was at the door. At the time, no lights were on either inside or outside of the house. Smith saw two males at the door. He did not recognize them, and he asked his wife to call the police, which she did.

From where Smith was at a window, it would have been possible to hear voices at the front door but not discern a conversation. Smith did not hear voices and did not hear any names being called out. After ringing the doorbell repeatedly, the men knocked on the door. After the men stopped knocking, Smith heard them jiggle the doorknob. One of the men then opened the mail slot and reached in with his hand as far as the wrist and moved it back and forth. Smith then heard the front door creak as if someone was leaning on it.

At this point, the police arrived. A few minutes had passed between Smith’s first seeing the two men and the arrival of the police.

On December 16, 1988, Frederick Hurley, a New Haven police detective, was working with another police detective, Mel Cartoceti. At about 3 a.m., they were in a car parked at the intersection of Prospect and Canner Streets, approximately 200 yards from 470 Prospect Street. After being informed of a burglary in progress, Hurley and Cartoceti arrived at the scene in about ten seconds.

The detectives saw two males with their backs to the street between the open storm door and the closed front door at 470 Prospect Street. Both detectives exited their car, drew their revolvers and approached the two men. When Hurley and Cartoceti were about fifty feet away from them, the suspects turned around and walked away in different directions. The detectives did not hear anything until the defendant saw Cartoceti and yelled to him, “Yo, Mellie, Mel.”

At that point, Cartoceti recognized the defendant and approached him. A patdown search of the defendant revealed a sock rolled up with a latex glove between his inner and outer jackets. Cartoceti also found a knife case in a back pocket of the defendant’s pants and the defendant’s knife on the ground next to the front stoop at 470 Prospect Street.

The other suspect was apprehended by Hurley. That individual initially gave Hurley a false name but subsequently was identified as Douglas Antrum. A pat-down search of Antrum revealed a screwdriver in a pocket and one half of a plastic gun in his waistband. Hurley found small pry marks around the Smiths’ front door jamb near the lock and door handle.

The defendant testified at trial, consistent with his statements to the police detectives immediately after being apprehended, that he had gone out that night in search of his girl friend, who was supposed to be with a woman known to the defendant as “Pumpkin” at Pumpkin’s Shelton Terrace apartment. He claimed to have mistakenly gone to the Smiths’ apartment thinking that he was on Shelton Terrace. On the way, he met Antrum and together they went to the Smiths’ front door thinking that it was Pumpkin’s. Once at the front door, according to the defendant, the two men yelled out for Pumpkin and also yelled for her through the mail slot. The defendant claimed that he had the latex glove with him because he had been fixing a water bed earlier in the evening and had used the glove to protect a cut on his hand. He denied any knowledge of the sock the officers claimed to have found with the glove. Finally, the defendant testified that he had been drinking that evening and that, although he had been intoxicated, it had not affected his memory.

The defendant’s first claim pertains to testimony by Wesley Smith that was admitted by the trial court over the defendant’s objection. Smith testified that at about 1:30 a.m. on December 15, 1988, the night before the alleged burglary attempt, a rock had been thrown through his living room window. The state claimed that the evidence was admissible to show why the Smiths were sleeping in their living room the following night. The defendant argued that the prejudicial effect of this evidence outweighed any probative value it might have. After the trial court overruled the objection, the defendant took an exception.

The defendant claims that the trial court should not have permitted Smith to testify regarding the rock damage to his living room window. He argues that the reason the Smiths were sleeping in the living room was not a material fact in issue and that any probative value of the evidence was far outweighed by its prejudicial effect. The prejudice he claims is that the jury might have concluded that the rock throwing incident was an attempted burglary in which the defendant was involved. We disagree.

“[A] trial court has broad discretion in determining whether the probative value of proffered evidence is outweighed by the prejudice that is likely to result from its admission. . . . We will not overturn the court’s determination of this issue absent an abuse of discretion.” (Citation omitted.) State v. Busque, 31 Conn. App. 120, 128-29, 623 A.2d 532 (1993).

The trial court’s ruling was well within its discretion. The testimony concerning the rock throwing was relevant because it showed not only why Smith was very close to the front door at the time of the crime, but also that he had a heightened awareness of the sounds coming from just outside his apartment. This testimony foreclosed the jury from resorting to speculation on the question of why the Smiths happened to be present in their downstairs living room at 3 a.m. on December 16 when they normally slept in their bedroom on the second floor. This testimony also assisted the jury in understanding the witness’ ability to perceive the events about which he testified. The challenged evidence, then, was admissible because it “tendjed] to support a relevant fact even in a slight degree . . ." State v. Morrill, 197 Conn. 507, 548, 498 A.2d 76 (1985). We must now consider whether the probative value of the evidence was outweighed by its prejudicial impact. State v. Morowitz, 200 Conn. 440, 445-46, 512 A.2d 175 (1986); State v. Morrill, supra.

The testimony here was far from prejudicial. This case does not involve evidence of the defendant’s involvement in other criminal activity; compare State v. Payne, 219 Conn. 93, 98-106, 591 A.2d 1246 (1991); where the trial court’s discretion to admit such evidence is limited. State v. Baldwin, 224 Conn. 347, 356, 618 A.2d 513 (1993). There was no suggestion in Smith’s testimony that the rock throwing was an attempted burglary. Consequently, the defendant’s reliance on Eberhardt v. State, 550 So. 2d 102 (Fla. App. 1989), rev. denied, 560 So. 2d 234 (Fla. 1990), is misplaced. There, the victim testified that there had been a burglary at the same premises the night before. In addition, there was no suggestion in Smith’s testimony that it was the defendant who had been involved in the rock throwing incident. In argument to the court, outside the presence of the jury, the state specifically disclaimed any “intention to argue in front of the jury that Mr. Payne and Mr. Antrum had anything to do with the incident the night before.” The defendant’s suggestion of improper influence through innuendo notwithstanding, we conclude that the trial court properly admitted the challenged testimony, which was clearly understood by the jurors to be in the nature of background information to help them understand the circumstances under which Smith made his observations.

The defendant next claims that the trial court improperly refused to grant his request that it instruct the jury on the crime of attempted criminal trespass in the second degree in violation of General Statutes §§ 53a-49 and 53a-108, as a lesser included offense of the crime of attempted burglary in the second degree in violation of General Statutes §§ 53a-49 and 53a-102. The state contends, inter alia, that the defendant cannot succeed on this claim because he failed to submit an appropriate request to charge. We agree with the state.

To establish entitlement to a charge on a claimed lesser included offense, the defendant must meet the four requirements set forth by our Supreme Court that “(1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980).

“In State v. McIntosh, 199 Conn. 155, 158-61, 506 A.2d 104 (1986), our Supreme Court articulated the standards necessary to meet the first condition of Whistnant, which requires the defendant to request an appropriate instruction. A proposed instruction is not appropriate unless it is made in compliance with Practice Book § 854. State v. Hall, 213 Conn. 579, 591, 569 A.2d 534 (1990). In the context of a written request to charge on a lesser included offense, this requirement of § 854 is met only if the proposed request contains such a complete statement of the essential facts as would have justified the court in charging in the form requested. Michaud v. Gagne, 155 Conn. 406, 410, 232 A.2d 326 (1967), quoting Dwyer v. Connecticut Co., 103 Conn. 678, 680, 131 A. 838 (1925) .... State v. Killenger, 193 Conn. 48, 57, 475 A.2d 276 (1984). A trial court has no obligation to instruct, sua sponte, on general principles of law relevant to all issues raised in evidence. . . . State v. Hall, supra, 592, quoting State v. McIntosh, supra, 160; State v. Preyer, 198 Conn. 190, 198 n.9, 502 A.2d 858 (1985).” (Internal quotation marks omitted.) State v. Jupin, 26 Conn. App. 331, 346-47, 602 A.2d 12, cert. denied, 221 Conn. 914, 603 A.2d 404 (1992).

The defendant submitted a typewritten request to charge on the lesser included offenses of criminal trespass in the second degree and simple trespass in violation of General Statutes § 53a-110a. This request failed to cite any essential facts or any legal authority. Thereafter, the defendant filed a handwritten amended request to charge that requested in pertinent part, “that the court charge the jury with the lesser included crimes of Criminal Attempt to commit Criminal Trespass in the second degree, C.G.S. 53a-108 and 53a-49. The authority for this request is Connecticut Jury Instructions, Second Edition, by Douglass B. Wright, pp. 1226-1231 (annexed hereto).”

The defendant’s amended request to charge “did not refer to any facts or evidence which would support the request as required by Practice Book § 854. The charge requested, therefore, failed to satisfy the first prong of Whistnant. . . . The short request to charge did not contain a complete statement of the essential facts which would have justified the court charging the jury in the form requested.” (Citation omitted.) State v. Payne, 14 Conn. App. 169, 171, 540 A.2d 87 (1988); see State v. Ostroski, 201 Conn. 534, 558, 518 A.2d 915 (1986) (“[a] summary request such as this one does not comply with our rules of practice”).

The defendant, in his brief, acknowledges that the request to charge contained no facts, but he contends that this defect was cured by counsel’s oral argument to the trial court regarding the request. In State v. Ramirez, 16 Conn. App. 284, 289, 547 A.2d 559, cert. denied, 209 Conn. 828, 552 A.2d 434 (1988), we rejected the view that “an in-court discussion of whether the [requested] charge was warranted, held immediately before the court’s charge to the jury, is an acceptable alternative to the rules of practice. First, the rules of practice do not give oral argument as an alternative to a written request to charge. Second, the purpose of the provision, that attorneys help rather than hinder the trial court in its determination of whether a particular instruction should be given; State v. McIntosh, supra, 161; is not well served by oral argument. Rather than affording the court time to scrutinize the requests and investigate the relevant case law, so as to arrive at the proper legal answer, oral argument is likely to require the court to commit to memory the arguments of both sides, or to pressure it into making an immediate decision on the issue. We do not think it necessary or proper to burden the trial bench so.”

Accordingly, we conclude that the trial court properly refused to instruct the jury on criminal trespass in the second degree as a lesser included offense.

We have reviewed the record and the parties’ briefs regarding the defendant’s remaining claims on appeal. We find the defendant’s arguments on these issues to be without merit as the claims are necessarily resolved against the defendant by controlling decisions of either our Supreme Court or this court. See State v. Ortiz, 217 Conn. 648, 661-65, 588 A.2d 127 (1991) (intoxication instruction); State v. Stevenson, 198 Conn. 560, 504 A.2d 1029 (1986) (same); State v. Fernandez, 27 Conn. App. 73, 84-88, 604 A.2d 1308, cert. denied, 222 Conn. 904, 602 A.2d 1330 (1992) (same); State v. Williams, 25 Conn. App. 456, 458-60, 595 A.2d 895, cert. denied, 220 Conn. 916, 597 A.2d 339 (1991) (same); State v. Gomez, 225 Conn. 347, 353-54, 622 A.2d 1014 (1993) (reasonable doubt instruction); State v. Gray, 221 Conn. 713, 729, 607 A.2d 391 (1992) (same); State v. Thomas, 214 Conn. 118, 570 A.2d 1123 (1990) (same); State v. Boykin, 27 Conn. App. 558, 572-73, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992) (same); State v. Harvey, 27 Conn. App. 171, 190-94, 605 A.2d 563 (1992) (same); State v. Falcon, 26 Conn. App. 259, 269-71, 600 A.2d 1364 (1991), cert. denied, 221 Conn. 911, 602 A.2d 10 (1992) (same); State v. McFadden, 25 Conn. App. 171, 175-77, 593 A.2d 979, cert. denied, 220 Conn. 906, 593 A.2d 971 (1991) (jurors’ duties instruction). Because we find neither a clear violation of a fundamental constitutional right nor a deprivation of a fair trial arising out of the challenged instructions, either standing alone or in combination, the defendant cannot prevail on these unpreserved claims. State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

The judgment is affirmed.

In this opinion the other judges concurred.

       Smith testified that he and his wife were sleeping in their living room because the broken window “had not been repaired” and because they “wanted to be able to hear any noises that would indicate [that] somebody [was] around the place.”

       Defense counsel explained: “[M]y objection is that a rock through a window indicates either some type of intrusion, or perhaps the jury could think that these guys tried that the night before to see what kind of results they would have, sort of testing the water.”

       Later in the trial, Cartoceti referred to “an attempted burglary the night before at that location.” The trial court immediately sustained the defendant’s objection to the testimony and, at the defendant’s request, instructed “[t]he jury [to] disregard the last comments.” In the absence of a fair indication to the contrary, the jury is presumed to have followed the court’s instruction to disregard Cartoceti’s comment. State v. Gary, 211 Conn. 101, 107, 558 A.2d 654 (1989). The defendant did not claim in the trial court that this instruction was either insufficient or faulty.

       General Statutes § 53a-108 (a) provides: “A person is guilty of criminal trespass in the second degree when, knowing that he is not licensed or privileged to do so, he enters or remains in a building.”

       General Statutes § 53a-102 (a) provides: “A person is guilty of burglary in the second degree when he enters or remains unlawfully in a dwelling at night with intent to commit a crime therein.”

       In view of our conclusion that the defendant’s request to charge failed to conform to the requirements of Practice Book § 854 and State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), we will not consider the merits of Ms claim that criminal trespass in the second degree is a lesser included offense of burglary in the second degree. See State v. Payne, 14 Conn. App. 169, 171, 540 A.2d 87 (1988).


text:
    Dimitrios Dimopoulos et al. v. Planning and Zoning Commission of the Town of Southington et al.
    (11235)
    Landau, Heiman and Freedman, Js.
    Argued January 12
    decision released May 25, 1993

      William Galske III, for the appellants (plaintiffs).

      Richard M. Krezel, with whom was Mark Sciota, for the appellees (defendants).
   Landau, J.

The plaintiffs appeal from the judgment of the trial court dismissing their appeal from the decision of the defendant planning and zoning commission of the town of Southington (commission), approving a resubdivision application. On appeal to this court, the plaintiffs claim that (1) the trial court improperly concluded that the receipt of ex parte evidence by the commission related to site plan considerations and not to the resubdivision application, (2) the trial court improperly found that a five by twenty-six foot reserve strip was not a lot within the definition of the Southington zoning regulations, and (3) there was insufficient evidence for the trial court to find compliance with the zoning regulations (a) requiring a fifty foot right-of-way and (b) regarding the dimensions and location of the subdivision sign. We agree with part (a) of the plaintiffs’ third claim and reverse the judgment of the trial court. Therefore, we need not address the plaintiffs’ remaining claims.

The following facts are pertinent to this appeal. On August 27, 1990, the defendant New England Realty of Southington, Inc. (New England), filed an application for a resubdivision of a parcel of its property situated on the easterly side of Queen Street in the town of Southington. When the earlier subdivision was approved, the town received from New England a fifty foot wide right-of-way leading from Queen Street to New England’s property. It was contemplated that a road would be constructed on the right-of-way. The purpose of the present resubdivision application was to allow New England to retain a strip of land within this right-of-way so that it could place a sign on the land that would identify the entire proposed Home Depot Plaza, located on New England’s previously subdivided property some 800 feet away. The town would retain an easement over the proposed strip of land.

At the public hearing, held on September 18, 1990, the parties were heard as to the resubdivision application. On September 25,1990, after the close of the public hearing, Melvin Schneidermeyer, the town planner, circulated a memorandum to the members of the commission. This memorandum addressed the zoning regulations as they pertained to the size and placement of the sign. The memorandum also stated that “[a]fter the hearing on 9/18/90 and a subsequent meeting two days later, [New England] decided to revise the Queen Street detached sign to a subdivision sign of 32 square feet and less than 8 feet in height.” Counsel for New England wrote two letters to Schneidermeyer. One letter addressed the height, size and placement of the sign and agreed to decrease the height and size of the sign; the other clarified a point made in the first letter. At its meeting held on October 2, 1990, the commission considered the memorandum and the two letters from New England’s counsel. At that meeting, New England’s counsel was invited by the commission to answer questions regarding the size of the sign’s pylon and the placement of the sign within the five by twenty-six foot reserve strip. The commission approved the resubdivision application and the appeal taken from that decision was dismissed by the trial court.

The plaintiffs claim that the trial court’s finding that the action of the commission approving the reduction in the width of the right-of-way was not arbitrary or illegal is not supported by the evidence in the record. We agree.

“General Statutes § 8-6 entrusts the commission with the function of interpreting and applying its zoning regulations. Toffolon v. Zoning Board of Appeals, 155 Conn. 558, 560, 236 A.2d 96 (1967); see Krawski v. Planning & Zoning Commission, 21 Conn. App. 667, 670, 575 A.2d 1036 (1990). The trial court must determine whether the commission has correctly interpreted its regulations and applied them with reasonable discretion to the facts. Pascale v. Board of Zoning Appeals, 150 Conn. 113, 117, 186 A.2d 377 (1962). The plaintiffs have the burden of showing that the commission acted improperly. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707, 535 A.2d 799 (1988). The trial court can sustain the [plaintiffs’] appeal only upon a determination that the decision of the commission was unreasonable, arbitrary or illegal; Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988); McCrann v. Town Planning & Zoning Commission, 161 Conn. 65, 70-71, 282 A.2d 900 (1971). It must not substitute its judgment for that of the zoning commission and must not disturb decisions of local commissions as long as honest judgment has been reasonably and fairly exercised. Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654, 427 A.2d 1346 (1980); Molic v. Zoning Board of Appeals, 18 Conn. App. 159, 164, 556 A.2d 1049 (1989).” Baron v. Planning & Zoning Commission, 22 Conn. App. 255, 257, 576 A.2d 589 (1990).

At the September 18,1990 public hearing, the plaintiffs argued before the commission that the zoning regulation pertaining to the width of rights-of-way mandated that the width be at least fifty feet. Section 7-01.1 provides that “[t]he width of the right-of-way of any street shall not be less than fifty (50) feet. . . . The Commission may vary the provisions of these Design Standards regarding the width of rights-of-way and the width of roads to permit the municipality to connect streets within areas which were substantially built up at the adoption of these regulations.” (Emphasis added.) Further, § 2 of the zoning regulations states that “[t]he word ‘shall’ is always mandatory.”

At the regular commission meeting on October 2, 1990, the town engineer stated that the town has “always administratively held that we would like and would want the 50 foot right-of-way. That’s been, that’s normal policy. That’s what the regulations state.” The engineer went on to state that there were one or two examples where that requirement has been varied, presumably under special circumstances or hardship conditions.

The trial court held that because New England had granted an easement over the strip of land to the town, the right-of-way was not, in fact, decreased. The trial court further held that “[o]f particular significance is the fact that the actual travelled portion (i.e. asphalt width) of the proposed [road] has not been reduced or altered in any way by means of the resubdivision plan.”

Our review demonstrates,, however, that there is nothing in either the zoning regulations or the record to support the commission’s decision to vary the requirement that the right-of-way be at least fifty feet wide. Indeed, the zoning regulations state that “the width of the right-of-way of any street shall be not less than fifty (50) feet”; Southington Zoning Regs. § 7-01.1; and that “[t]he word ‘shall’ is always mandatory.” Southington Zoning Regs. § 2. Further, there is nothing in the record that demonstrates that this right-of-way was constructed to connect streets that were substantially built-up at the time the zoning regulations were adopted in 1957. Therefore, the conclusion of the trial court that the commission had correctly interpreted its regulations and applied them with reasonable discretion to the facts; Pascale v. Board of Zoning Appeals, supra, 117; is not supported by the record.

The judgment is reversed and the case is remanded with direction to render judgment sustaining the plaintiffs’ appeal.

In this opinion the other judges concurred.

       The named plaintiff and the plaintiff Eve Dimopoulos are the owners of property abutting the property involved in the appeal. The defendants are the named defendant, together with New England Realty of Southington, Inc., the owner of the property at issue in this appeal.

       The earlier subdivision concerned land that is approximately 800 feet east of the land involved in this appeal.


author: Freedman, J. La VERY, J.,

text:
    State of Connecticut v. Charles Bellino
    (10515)
    Foti, La very and Freedman, Js.
    Argued January 12
    decision released May 25, 1993

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

      Carolyn K. Longstreth, assistant state’s attorney, with whom were John Waddock, assistant state’s attorney, and, on the brief, Michael Dearington, state’s attorney, for the appellee (state).
   Freedman, J.

The defendant appeals from the judgment of conviction rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (l), attempted assault in the first degree in violation of General Statutes §§ 53a-49 (a) and 53a-59 (a) (1), and carrying a pistol without a permit in violation of General Statutes § 29-35. The defendant claims that the trial court improperly instructed the jury regarding self-defense. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 3:45 a.m. on September 24, 1989, a jeep and a red hatchback were traveling on Sherman Avenue in New Haven. The hatchback was driven by Ernest Reid. The defendant occupied the front passenger seat of the hatchback, and Henry Jackson was in the rear seat behind the defendant. The jeep was driven by Frederick Stuart. Frederick’s brother, Jose Stuart, occupied the front passenger seat of the jeep, and Matthew Taylor was in the rear seat behind the driver.

As the two vehicles proceeded along Sherman Avenue, they became embroiled in a “cat and mouse” game. Reid drove the hatchback in front of the jeep and then prevented the jeep from passing the hatchback.

At the intersection of Sherman Avenue and Chapel Street, the jeep stopped near the curb and the hatchback stopped to the left of the jeep. The two vehicles were four to five feet apart. The driver of the jeep rolled down his window and asked Reid if he had a problem. Reid replied that he did not. The driver of the jeep bent forward, and immediately thereafter the defendant produced a handgun and fired two shots at the jeep. As the jeep then pulled forward, the defendant fired two or three more shots, shattering the driver’s side and rear windows of the jeep. The entire incident lasted only a few seconds. Once they were back at Reid’s apartment, Reid asked the defendant what had happened. The defendant told Reid that he thought the driver of the jeep had been reaching for a weapon. As a result of this incident, Frederick Stuart died of a gunshot wound to the head. Taylor sustained a gunshot wound to the back.

The defendant testified that before the confrontation with the jeep, he had noticed a shotgun between the front seats of the hatchback, near the emergency brake. At some point during the “cat and mouse” game between the vehicles, according to the defendant, Reid pointed the shotgun over the defendant and toward the jeep. After the defendant pushed the shotgun away from his face, Reid put the gun back between the front seats. The defendant further testified that, at the intersection of Sherman Avenue and Chapel Street, after the oral exchange between the drivers, the driver of the jeep made a movement, Jackson yelled that the occupants of the jeep had a gun and then gunfire began, at which time the defendant ducked and stayed down for the duration of the gunfire. The defendant stated that he did not possess a weapon or shoot anyone during the encounter.

The trial court instructed the jury on self-defense as follows: “The law provides that a person is justified in using deadly force upon another person to defend himself from what he reasonably believed to be the use or imminent use of deadly physical force or the infliction of great bodily harm, provided that the person may only use the degree of force which he reasonably believed to be necessary for the purpose of defending himself.

“A person cannot use what the law calls deadly physical force, that is physical force which can be reasonably expected to [lead] to death or serious physical injuries, unless he reasonably believes that the other person was himself using or about to use deadly physical force or was inflicting, or about to inflict great bodily harm. The key word in the general rule and these important exceptions is ‘reasonable.'

“First of all, the defendant must have a reasonable belief that he is faced with the imminent use of deadly physical force upon him. A reasonable belief is one which a reasonably prudent person in the same circumstances would have. It is not an irrational belief, nor is it a belief that is not justified by all the circumstances existing then and there, nor is it necessarily the belief that the defendant in fact had; it is the belief that a reasonable person would have had under the circumstances. Secondly, acting with that reasonable belief, the amount and the degree of force which he uses must be reasonable. It must be that degree of force which a reasonable person in the same circumstances would use and no more.

“If the degree of force used is excessive or unreasonable in view of all the circumstances, the defendant is not entitled to the defense of self-defense. Whether the defendant had a belief that Mr. Stuart was about to inflict deadly physical force against him, and if he had that belief, whether it was a reasonable belief, and whether the defendant’s use of deadly physical force was reasonable are all questions of fact for you to decide.”

The defendant’s challenge to the court’s instructions on self-defense is twofold. The defendant contends that the trial court failed to instruct the jury, in accordance with General Statutes § 53a-19 (b) (l), that the defendant was required to retreat only if he could do so with complete safety. The defendant also contends that the trial court did not properly instruct the jury, in accordance with General Statutes § 53a-19 (a), regarding the subjective aspect of the self-defense inquiry. We do not agree with either claim.

The defendant did not properly preserve either claim for appellate review. He seeks review, however, under the well established principles for the review of unpreserved constitutional claims set forth in State v. Golding, 213 Conn. 232, 239-40, 567 A.2d 823 (1989), because his fundamental right to present a defense includes a proper instruction on the elements of self-defense. State v. Gilchrist, 24 Conn. App. 624, 632-33, 591 A.2d 131, cert. denied, 219 Conn. 905, 593 A.2d 131 (1991). Nonetheless, we conclude that the defendant cannot prevail on this claim because he cannot show that “the alleged constitutional violation clearly exists and clearly deprived [him] of a fair trial.” State v. Golding, supra, 240.

The Defendant’s Duty to Retreat

The defendant correctly points out that the trial court did not instruct the jury on the duty to retreat or the statutory limitations on that duty. See footnote 2, supra. It is well settled, however, that the trial court should adapt its instructions to the issues in the case in order to provide appropriate guidance to the jury. See State v. Butler, 207 Conn. 619, 636, 543 A.2d 270 (1988); see also State v. Hawkins, 19 Conn. App. 609, 618, 563 A.2d 745, cert. denied, 212 Conn. 820, 565 A.2d 540 (1989) (issues not supported by the evidence should not be submitted to the jury). Here, the court properly omitted from its self-defense instructions any mention of the duty to retreat because there was no evidence that the defendant could safely retreat from the vehicle. In fact, the undisputed evidence suggests otherwise, and the state did not claim that retreat was an option available to the defendant.

Moreover, the defendant’s suggestion that the court’s failure to instruct on retreat “left the jury with no guidance whatsoever, allowing it to substitute its commonplace assumptions for the law,” finds no support in the record. Legal principles concerning the duty to retreat did not play a part in this case, and there is no reason to believe that the jury would have considered that issue on its own. In its instructions on self-defense, the trial court properly chose to focus the jury’s attention on the crux of the defendant’s claim of self-defense, namely, that he was justified in using the degree of force that he reasonably believed necessary to defend himself from what he reasonably believed to be the imminent use of physical force. Under these circumstances, the defendant’s claim must fail.

The Defendant’s Belief Regarding Imminent Attack

The defendant also claims that the trial court did not properly instruct the jury on the subjective aspect of his self-defense claim. Specifically, he focuses on the following language in the court’s self-defense instructions, which served to guide the jury in its. evaluation of the defendant’s belief that he was faced with the imminent use of deadly physical force: “A reasonable belief is one which a reasonably prudent person in the same circumstances would have. It is not . . . necessarily the belief that the defendant in fact had; it is the belief that a reasonable person would have had under the circumstances.”

“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 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, 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].” State v. Williams, supra. “ ‘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, 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. See State v. DeJesus, supra; State v. Williams, supra.

Before beginning our analysis of the challenged jury instructions, we note that the defendant’s subjective beliefs concerning the danger he faced were not a critical issue in this case. The defendant denied that he used any force during the incident. His alternative claim of self-defense rested on Reid’s testimony that, after the incident, the defendant stated that “the guy was reaching like he was reaching for a weapon.” Nothing more was offered to assist the jury in determining whether, from the perspective of the defendant, an attack was imminent. It is significant that there was no evidence presented to suggest that the defendant’s perspective would have been any different from that of any other reasonably prudent person. The evidence, for example, did not show “that the defendant’s intelligence was less than average, that the defendant had previously been the victim of a violent attack [under similar circumstances], and that the defendant was aware of the victim’s propensity for violence”; State v. Williams, supra, 463; or that “[t]he victim was a convicted felon, drug user, drinker, and gambler . . . that the victim had been armed with a gun and threatened the defendant in the past, and that the defendant believed him to be a bully and was afraid of him.” State v. Anderson, 28 Conn. App. 833, 851, 614 A.2d 438 (Lavery, J., dissenting), cert. granted, 224 Conn. 908, 615 A.2d 1048 (1992). While the proper starting point of the jury’s inquiry into the claim of self-defense was whether the defendant believed he was in danger; State v. DeJesus, supra; this subjective inquiry was necessarily undertaken by the jury in this case from the perspective of a defendant whose knowledge of the victim and whose experience in situations of danger was not at all differentiated from those of the average citizen. It is with these peculiar circumstances of this case in mind that we now turn to an examination of the defendant’s remaining challenge to the court’s instructions on self-defense.

While the trial court here did not emphasize the subjective aspect of the self-defense inquiry; compare State v. Williams, supra, 466 n.5 and accompanying text; it did explain that part of the inquiry to the jury. The trial court began its self-defense charge by providing the jury with an almost verbatim recitation of General Statutes § 53a-19 (a). This language, like that of the statute, sets forth the appropriate subjective-objective test for evaluating the defendant’s belief concerning the danger he was facing. See State v. Corchado, supra.

Immediately thereafter, the court 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 did not impermissibly take the jury’s focus away from the defendant claiming self-defense. Rather, it “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.’ ” State v. Williams, supra, 466, quoting State v. Brown, 22 Conn. App. 521, 529, 577 A.2d 1120, cert. denied, 216 Conn. 825, 582 A.2d 204 (1990).

Finally, the court summarized the jury’s task in evaluating the claim of self-defense as follows: “Whether the defendant had a belief that Mr. Stuart was about to inflict deadly physical force against him, and if he had that belief, whether it was a reasonable belief, and whether the defendant’s use of deadly physical force was reasonable are all questions of fact for you to decide.” (Emphasis added.) This language captured precisely the essence of the two part, subjective-objective inquiry required by § 53a-19 (a) concerning the threat faced by the defendant: first, whether the defendant believed that he faced the imminent use of deadly physical force; second, whether that belief was reasonable. See State v. DeJesus, supra; State v. Williams, supra, 464. Consequently, rather than replacing the subjective-objective inquiry with one that focused exclusively on the question of whether a reasonable person would have believed that he faced an imminent attack; compare State v. Anderson, supra, 838, and State v. Williams, supra; as the starting point of its analysis, the trial court properly focused the jury’s attention on the defendant’s subjective belief about the danger he faced.

The defendant’s challenge to this aspect of the court’s instructions on self-defense, then, raises only an issue of emphasis. “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.) See 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 .... This portion of the [defendant’s] claim, therefore, also fails.” State v. Jenkins, supra, 274.

The judgment is affirmed.

In this opinion Foti, J., concurred.

La VERY, J.,

dissenting. Because I cannot agree with the majority’s conclusion that the trial court properly instructed the jury on the defendant’s claim of self-defense, I respectfully dissent.

It is important to note at the outset that the defendant’s self-defense claim was the only defense he asserted. Our jurisprudence recognizes that a defendant in a criminal trial is entitled as a matter of law to jury instructions on any legitimate claimed theory of defense. “A fundamental element of due process is the right of a defendant charged with a crime to establish a defense. Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967); State v. Bethea, 167 Conn. 80, 83, 355 A.2d 6 (1974). This fundamental constitutional right includes proper jury instructions on the elements of self-defense so that the jury may ascertain whether the state has met its burden of proving beyond a reasonable doubt that the assault was not justified.” State v. Miller, 186 Conn. 654, 660-61, 443 A.2d 906 (1982). If a defendant asserts a recognized legal defense and the evidence indicates the availability of that defense, such a charge is obligatory and the defendant is entitled, as a matter of law, to a theory of defense instruction. State v. Rosado, 178 Conn. 704, 707-708, 425 A.2d 108 (1979). “ ‘[A] defendant is “entitled to have instructions presented relating to any theory of defense for which there is any foundation in the evidence, no matter how weak or incredible . . . .” United States v. Platt, 435 F.2d 789, 792 (2d Cir. 1970), quoting United States v. O’Connor, 237 F.2d 466, 474 n.8 (2d Cir. 1956).’ United States v. Alfonso-Perez, 535 F.2d 1362, 1365 (2d Cir. 1976).” State v. Fuller, 199 Conn. 273, 278, 506 A.2d 556 (1986). In this case, the defendant was deprived of his constitutional right to present a defense when the trial court improperly instructed the jury on the law of self-defense in two crucial respects.

I

The trial court did not instruct the jury on the self-defense element of retreat. Under General Statutes § 53a-19 (b) (1) the defendant had a duty to retreat if he could do so with “complete safety.” The defendant, in his request to charge, asked the court to instruct the jury that “[i]n order to find that the defendant was justified you must find that the defendant could not avoid the use of such force in complete safety by retreating.” The majority concluded that the omission of any instruction on retreat was within the discretion of the trial court, writing: “Here, the court properly omitted from its self-defense instructions any mention of the duty to retreat because there was no evidence that the defendant could safely retreat from the vehicle. In fact, the undisputed evidence suggests otherwise, and the state did not claim that retreat was an option available to the defendant. . . . Legal principles concerning the duty to retreat did not play a part in this case, and there is no reason to believe that the jury would have considered that issue on its own.”

The majority correctly points out that there was no evidence presented suggesting that the defendant could retreat safely, and that the state did not claim otherwise. The defendant’s inability to retreat in complete safety, however, made it even more imperative that the jury receive instructions on the retreat element. In this case, the defendant claimed that he shot at the victims because he believed that one of them was reaching for a firearm. Vital to his defense was the fact that, if he was in danger in the passenger’s seat of an automobile, he could not retreat in complete safety. The jury should not have been allowed to proceed ignorant of this legal principle.

Applying the standard based on the state and federal precedent outlined above, I would conclude that the trial court’s failure to instruct the jury on the issue of retreat deprived the defendant of his constitutional right to establish a defense.

II

The trial court’s use of an objective standard in its jury instructions on the issue of whether the defendant’s belief that he faced imminent attack was reasonable and warranted the use of deadly force in response likewise harmed the defendant’s ability to present a defense. The trial court instructed the jury that it was to evaluate the defendant’s belief that he faced imminent attack in terms of the belief “a reasonably prudent person in the same circumstances would have,” and further that such a belief was “[not] necessarily the belief that the defendant in fact had; it is the belief that a reasonable person would have under the circumstances.” The trial court’s focus on an objective standard was improper.

In State v. Williams, 25 Conn. App. 456, 595 A.2d 895, cert. denied, 220 Conn. 916, 597 A.2d 339 (1991), this court found a jury charge similar to the one given in this case to be improper. In Williams, the trial court instructed the jury to evaluate the force used by the defendant against the level of force that would be employed by the “average person of ordinary intelligence.” We relied on well settled law stating that the jury is not to use a purely objective standard in evaluating self-defense. Id., 464; see State v. Hall, 213 Conn. 579, 586 n.7, 569 A.2d 534 (1990); State v. DeJesus, 194 Conn. 376, 389 n.13, 481 A.2d 1277 (1984); State v. Corchado, 188 Conn. 653, 663, 453 A.2d 427 (1982); see also State v. Anderson, 28 Conn. App. 833, 851, 614 A.2d 438 (Lavery, J., dissenting), cert. granted, 224 Conn. 908, 615 A.2d 1048 (1992). The jury must view the situation from the perspective of the defendant. The defendant’s belief, however, ultimately must be found to be reasonable. State v. Williams, supra, 464. The starting point of the jury’s inquiry into whether reasonable force was used by a defendant is whether the defendant believed that deadly force was necessary to repel an attack. Next, the jury’s inquiry should focus on the question of whether that belief was reasonable. Id. “The statute focuses on the person . . . claiming self-defense.” State v. Corchado, supra. In this case, the trial court’s instructions did not properly focus the jury’s initial attention on the defendant’s perspective, but instead on the perspective of a “reasonably prudent person.”

The defendant’s beliefs were important to his self-defense claim. The defendant was a passenger in a motor vehicle that, through no direct action of his, became involved in a highly dangerous passing game. At an intersection, the driver of the other vehicle asked the driver of the car in which the defendant was riding whether he had “a problem,” and then leaned forward. The jury heard evidence to the effect that the defendant believed the victim was reaching for a weapon. The law requires that the jury evaluate whether the defendant believed that deadly force was necessary to protect himself and then whether that belief was reasonable. In its focus on a reasonable person standard, the trial court’s instructions could have led the jury to evaluate improperly the defendant’s claim of self-defense.

Self-defense was the only defense presented by the defendant in this case. Because the jury instructions on self-defense were incorrect in two critical respects, I believe that defendant’s constitutional right to present a defense was irrevocably hindered and that the error was harmful. I would reverse and remand for a new trial.

Accordingly, I respectfully dissent.

       The jury found the defendant guilty of manslaughter in the first degree as a lesser included offense of the charge of murder in violation of General Statutes § 53a-54a (a).

       General Statutes § 53a-19 (b) (1) provides in pertinent part 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 . . . .”

       General Statutes § 53a-19 (a) provides in pertinent part that “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.”

       Although the defendant submitted a written request to charge on the subject of self-defense, he did not properly preserve his claims for appellate review because the request to charge did not comply with the requirements of Practice Book § 854. See State v. Hancich, 200 Conn. 615, 622-23, 513 A.2d 638 (1986).

       Under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), the defendant can prevail on his unpreserved constitutionally based claims only if the following four conditions are all 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.”

       After evaluating a defendant’s belief regarding whether he faced imminent attack, the jury then must determine whether the defendant used reasonable force to repeal that attack. “The stating point of the jury’s inquiry into whether ‘reasonable force’ was used by a defendant is whether the defendant believed that deadly force was necessary to repeal the attack. . . . Next, the jury’s inquiry should focus on the question of whether that belief was reasonable.” (Citation omitted; emphasis in original.) State v. Williams, 25 Conn. App. 456, 464, 595 A.2d 895, cert. denied, 220 Conn. 916, 597 A.2d 339 (1991). This appeal, however, does not involve a challenge to the court’s instructions regarding reasonable force. See footnote 7, infra.

       We note that the defendant does not challenge that aspect of the trial court’s self-defense instructions pertaining to the jury’s evaluation of the degree of force used by the defendant. The trial court defined the permissible degree of force objectively as “that degree of force which a reasonable person in the same circumstances would use and no more.” Similar language was recently disapproved by this court in State v. Anderson, 28 Conn. App. 833, 614 A.2d 438, cert. granted, 224 Conn. 908, 615 A.2d 1048 (1992), and State v. Williams, 25 Conn. App. 456, 595 A.2d 895, cert. denied, 220 Conn. 916, 597 A.2d 339 (1991). The defendant, however, did not offer any subjective evidence regarding his belief concerning the amount of force necessary to repel the attack that he perceived to be imminent. Because the jury could examine this aspect of his claim of self-defense from only an objective point of view, the court’s instruction on the degree of force that could be used under the circumstances necessarily lacked any subjective inquiry. For this reason, much of the analysis undertaken in State v. Anderson, supra, is not directly applicable to the circumstances of this case.