author: HENNESSY, J.

text:
    IN RE JENNIFER W. ET AL.

    (AC 22665)
    Bishop, West and Hennessy, Js.

      Argued December 2, 2002
    officially released March 11, 2003

      Eugene P. Falco, for the appellant (respondent mother).

      Susan T. Pearlman, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

HENNESSY, J.

The respondent mother appeals from the judgments of the trial court terminating her parental rights with respect to her two minor children. On appeal, the respondent claims that the court improperly (1) violated her right to due process of law pursuant to the fourteenth amendment to the United States constitution and article first, §§ 8 and 10, of the constitution of Connecticut by failing to consider, in the adjudicatory phase of the termination proceedings, her actions after the petitions were filed and (2) determined that she had failed to achieve a sufficient degree of rehabilitation pursuant to General Statutes (Rev. to 1999) § 17a-112 (c) (3) (B), as amended by Public Acts 2000, No. GO-137, § 1, and No. 00-196, § 15, now § 17a-112 Q) (3) (B), and, therefore, terminated her parental rights. We affirm the judgments of the trial court.

The following facts and procedural history are relevant to the respondent’s appeal. The respondent’s first child, a daughter, was bom on December 5, 1997. The respondent did not receive prenatal care until two months before the child’s birth. The child was born premature and is medically fragile due to bronchial pulmonary disease. The hospital was concerned for the child’s well-being as a result of her special needs, the respondent’s history of drug use and the possibility that the respondent could not accommodate the child’s needs. The family was referred to the newborn high risk unit in the department of children and families (department) in January, 1998, which closely monitors babies who are bom to dmg addicted parents.

At the time of the department’s initial involvement with the family, both parents were referred for substance abuse evaluations, but they resisted. The child was enrolled in a “birth-to-three” program, and the parents were offered parent aid.

In July, 1998, the child was referred to the department by her treating physician because she had a vaginal discharge. The department monitored the family and found that there was ongoing domestic violence in the home and that the respondent continued to use drugs. The respondent was offered treatment for her mental health, domestic violence and substance abuse issues, but she refused to participate. In addition, the respondent was hospitalized for depression and refused treatment services. In April, 1999, another incident of domestic violence occurred, and a restraining order was issued against the child’s father.

The respondent’s second child, a son, T, was bom on July 2, 1999, by the same father while the parents were involved with continuing domestic violence concerns. In August, 1999, T suffered a skull fracture while in the respondent’s care. According to a physician’s report, the injury was inconsistent with the respondent’s account of how it occurred. A report from the treating physician, Frederick B. Berrien, stated: “My major concern is in regard to possible negligence [toward T], If the child was being appropriately supervised, the [respondent] should have been able to protect the child from the fall or provided a more coherent explanation of the fall.” At that time, the respondent again declined support services from the department to address her substance abuse problem.

The respondent’s daughter was admitted to a hospital on November 9, 1999, with inflammation and bleeding from the genital region that could have resulted from trauma. Following another report from Berrien stating that a “complete investigation of the possibility of sexual abuse must be undertaken,” neglect petitions were filed for both children on November 19, 1999. The children were removed from the respondent’s home under an order of temporary custody and, after a hearing, were placed in foster care. The department’s petitions stated, inter alia, that both children were neglected in that they were being denied proper care and attention, physically, educationally, emotionally or morally. The petitions also alleged that the children were being permitted to live under conditions, circumstances or associations that were injurious to their well-being and that the children were uncared for in that their home could not provide the specialized care that the physical, emotional or mental condition of the children required. On March 16, 2000, the court found that the children were neglected and uncared for, and committed them to custody of the department.

During the period of commitment to the department, the respondent, despite the department’s offer of assistance, continued to refuse to address her mental health, domestic violence and substance abuse problems. On November 7, 2000, the department filed petitions for the termination of the respondent’s parental rights with respect to both children. The reasons stated in the department’s social study that was filed concurrently with the petitions included the assertion that the “[parents have substance abuse, domestic violence, criminal behavior, homelessness, sexual abuse and mental health issues, which they failed to address in order to care lor their children” and that the respondent had failed to achieve a sufficient degree of rehabilitation.

In May 2001, the respondent’s daughter was placed with a preadoptive foster family that wants to adopt her permanently. She has numerous behavioral problems, including being very oppositional, having tantrums and repeated nightmares, and exhibiting inappropriate sexual behavior. Her preadoptive family has made remarkable progress with the child, but she regresses after visits with the respondent. The court found that the respondent’s daughter has bonded with her preadoptive parents and looks to them for support and guidance. T’s current placement is with the same preadoptive family, and the family also wants to adopt T. The court found that T has established a strong bond with his preadoptive family.

According to a report prepared by Kelly Rogers, a licensed psychologist, the respondent superficially interacts with her children. Stephen Humphrey, a licensed clinical psychologist, concurred in that assessment of the respondent’s relationship with her children and stated that she may have a problem setting appropriate boundaries for her children.

The respondent had a chaotic upbringing due to significant substance abuse issues in her family. She began drinking at an early age and began using illicit drugs at the age of thirteen. She is a polysubstance abuser and her relationship with her children’s father is extremely volatile, which has led to numerous domestic violence arrests. According to Rogers, the respondent’s “embitterment is sometimes sufficient to generate clinically significant depression and anxiety, and a diagnosis of depressive disorder, [not otherwise specified], appears appropriate. Borderline and antisocial personality disorders were also indicated.” According to a report by Robert Fox, a psychiatrist who treated the respondent following a suicide attempt, she suffers from bipolar disorder.

The court found that the respondent has not significantly addressed the severity of her personality disorder and drops out of rehabilitative programs before completion. Her visitation with her children is inconsistent, and she threatened to kill a department worker if her parental rights were terminated. She also has been arrested on numerous criminal charges, including burglary, robbery, larceny, assault and possession of narcotics. The respondent minimizes her failures by blaming the department for her stress and characterizes the department as unreasonable in its demands.

On August 6, 2001, the hearing on the termination of parental rights began, and testimony was heard over a period of three days. On December 7, 2001, the court filed its memorandum of decision in which it found by clear and convincing evidence that the department had made reasonable efforts to reunify the respondent with her children pursuant to § 17a-112 (c), now Q). The court also found by clear and convincing evidence that the respondent had “failed to rehabilitate to such degree as would encourage the belief, that within a reasonable time, considering the age and needs of [the children], that she could assume a responsible position in [her children’s lives]” pursuant to § 17a-112 (c) (3) (B), now 0) (3) (B).

The court found that the respondent did not fully participate in counseling and, according to Humphrey, her “involvement with her children seemed largely superficial and contrived.” According to the court, the respondent’s primary problems are her impulsivity, poor judgment, oppositional behavior, drug use and her tendency to blame others for her problems. The court also found that “there is a clear risk that her impulsive, oppositional functioning will continue to prolong her chaotic lifestyle and to delay indefinitely the return of the children to her.”

After finding that the allegations of the petitions were proven by clear and convincing evidence, the court then determined whether termination was in the best interests of the children. See In re Roshawn R., 51 Conn. App. 44, 52, 720 A.2d 1112 (1998). The court then considered the seven statutory factors and made written findings. See General Statutes (Rev. to 1999) § 17a-112 (d), as amended by Public Acts 2000, No. 00-137, § 1, now § 17a-112 (k); see also In re Tabitha P., 39 Conn. App. 353, 360, 664 A.2d 1168 (1995). Included in those findings, the court wrote that the respondent failed to engage in the services provided by the department and did not fulfill the specific steps requested to regain custody of her children. The court also stated that the respondent “has not adjusted her circumstances to make it in the best interest of either child to return to her home in the foreseeable future.” The court then concluded that there was clear and convincing evidence that it was in the children’s best interests to terminate the respondent’s parental rights. This appeal followed.

“The standard of review on appeal [from a termination of parental rights] is whether the challenged findings are clearly erroneous. . . . The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous.” (Citations omitted; internal quotation marks omitted.) In re Clark K., 70 Conn. App. 665, 668, 799 A.2d 1099, cert. denied, 261 Conn. 925, 806 A.2d 1059 (2002).

I

The respondent’s first claim is that her right to due process, as protected by the fourteenth amendment to the United States constitution, and the constitution of Connecticut, article first, §§ 8 and 10, was violated by the court’s failure to consider, in the adjudicatory phase of the hearing, events that took place after the petitions were filed.

“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. In the adjudicatory phase of the proceeding, the court must decide whether there is clear and convincing evidence that a statutory ground for the termination of parental rights exists.” In re Stanley D., 61 Conn. App. 224, 229-30, 763 A.2d 83 (2000). According to Practice Book § 33-3 (b), now § 35a-7 (b), “[i]n the discretion of the judicial authority, evidence on adjudication and disposition may be heard in a non-bifurcated hearing, provided disposition may not be considered until the adjudicatory phase has concluded.”

In the case before us, the court determined that there was a statutory basis for terminating the respondent’s parental rights pursuant to § 17a-112 (c) (3) (B), now (j) (3) (B), because the respondent had failed to achieve rehabilitation to such a degree as to be able to assume a responsible position in each of her children’s lives. “Personal rehabilitation refers to the reasonable foreseeability of the restoration of a parent to his or her former constructive and useful role as a parent, not merely the ability to manage his or her own life.” (Internal quotation marks omitted.) In re Stanley D., supra, 61 Conn. App. 230.

According to Practice Book § 33-3 (a), now § 35a-7 (a), “in the adjudicatory phase [of termination proceedings], the judicial authority is limited to events preceding the filing of the petition or the latest amendment.” This court has expanded that rule to allow courts to consider events subsequent to the filing date of the petitions in the adjudicatory phase of termination proceedings. “Practice Book § 33-3 (a) [now § 35a-7] limits the time period reviewable by the court in the adjudicatory phase to the events preceding the filing of the petition or the latest amendment. ... In the adjudicatory phase, the court may rely on events occurring after the date of the filing of the petition to terminate parental rights when considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may resume a useful role in the child’s life within a reasonable time.” (Citations omitted; emphasis added; internal quotation marks omitted.) In re Stanley D., supra, 61 Conn. App. 230; see In re Amber B., 56 Conn. App. 776, 785, 746 A.2d 222 (2000).

The respondent’s appeal challenges the evidence that a court must consider during the adjudicatory phase of the proceedings. The respondent argues that because this court has stated that trial courts may, in their discretion, consider such evidence, fundamental fairness requires the trial court to consider those events that take place up until the hearing. We do not agree with the respondent.

“ [Our Supreme Court has] consistently held that ‘may’ is directory rather than mandatory. . . . The word ‘may,’ unless the context in which it is employed requires otherwise, ordinarily does not connote a command. Rather, the word generally imports permissive conduct and the conferral of discretion.” (Internal quotation marks omitted.) Shiffrin v. I.V. Services of America, Inc., 53 Conn. App. 129, 136, 729 A.2d 784 (1999); see also Commission on Human Rights & Opportunities v. Truelove & Maclean, Inc., 238 Conn. 337, 349, 680 A.2d 1261 (1996). We conclude that the court had discretion concerning whether to consider events and behavior that occurred after the filing of the petition to determine if the respondent had failed to achieve sufficient personal rehabilitation to allow her to assume a responsible position in her children’s lives.

A claim similar to the one before us was raised recently in which a respondent argued that the court did not consider events subsequent to the filing of the petition and improperly denied the respondent’s motion to amend the termination petitions. See In re Latifa K., 67 Conn. App. 742, 749-50, 789 A.2d 1024 (2002). In that case, this court cited events described in the trial court’s memorandum of decision that demonstrated that the trial court, in fact, had considered events that occurred subsequent to the filing date. Id., 750.

The record in this appeal shows that the respondent was permitted, without objection, to present evidence that she had achieved rehabilitation after the petitions for termination were filed. The court heard that evidence and, in its memorandum of decision, referred to those events. The court’s memorandum of decision is divided into two sections, one dealing with adjudication, the other with disposition. In the adjudicatory section, the court stated that “the [respondent] was, at best, erratic in both securing housing and employment and did not consider the impact of her choices in these areas or [their] effects on either of her children. [The respondent] showed poor judgment, impulsivity and oppositional behavior. All of these characteristics were demonstrated throughout the pending matter regarding [her children]. In fact, despite her knowledge of the pending proceedings, she continued to abuse illicit narcotics and accumulate new criminal arrests and convictions. [The respondent] continued to demonstrate poor judgment in failing to attend visitations with her children, failing to attend counseling sessions, getting fired from her employment and maintaining a relationship that resulted in domestic violence and the presence of illegal drugs in the home.” (Emphasis added.) In addition to concluding that the court was not under an obligation to consider events after the filing of the termination petitions in the adjudicatory phase of the proceedings, we conclude that the court did, in fact, consider events subsequent to the filing of the petition and that the respondent’s rights were not abridged. See id.

In the alternative, the respondent argues that the court deprived her of her due process rights by not having an evidentiary hearing that focused solely on her current status and ability to achieve rehabilitation. Although it appears that her claim was not preserved at trial, we can address the respondent’s argument easily, as it previously was addressed by this court. See In re Deana E., 61 Conn. App. 197, 204—207, 763 A.2d 45 (2000), cert. denied, 255 Conn. 941, 768 A.2d 949 (2001).

The respondent argues that a separate hearing is essential to due process and fair treatment under the standards set forth by the United States Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). Accord In re Jonathan M., 255 Conn. 208, 226 n.20, 764 A.2d 739 (2001); Scinto v. Stamm, 224 Conn. 524, 535, 620 A.2d 99, cert. denied, 510 U.S. 861, 114 S. Ct. 176, 126 L. Ed. 2d 136 (1993).

This court has stated that “[a] petition to terminate parental rights consists of two phases .... It is not necessary, however, that the two phases be the subject of separate hearings. One unified trial ... is permissible.” (Citations omitted.) In re Eden F., 48 Conn. App. 290, 305-306, 710 A.2d 771 (1998), rev’d on other grounds, 250 Conn. 674, 741 A.2d 873 (1999). In In re Deana E., this court concluded that the trial court did not abuse its discretion when it declined to apply the Mathews balancing test in denying the respondent’s motion to bifurcate the termination of parental rights hearing. In re Deana E., supra, 61 Conn. App. 204-207. “The statute [§ 17a-112 (c) (3) (B), now (j) (3) (B)] protects the due process rights of the respondent by requiring clear and convincing evidence in the adjudicatory phase. Using the balancing test of Mathews, therefore, is unnecessary and superfluous. In addition, Practice Book § 33-3 [now § 35a-7] specifically allows the court, at its discretion, to combine both phases into one hearing. We find that it was reasonable for the court to conclude that another court would not consider evidence inappropriately.” In re Deana E., supra, 207. We conclude that the respondent’s rights were adequately protected under the statute and that a separate hearing was not required.

II

The respondent’s second claim is that the court improperly found that the petitioner had proved by clear and convincing evidence that the respondent failed to achieve a sufficient degree of personal rehabilitation within the meaning of § 17a-112 (c) (3) (B), now (j) (3) (B).

“On appeal, we review a trial court’s finding that a parent has failed to rehabilitate herself in accordance with the rules that apply generally to a trier’s finding of fact. We will overturn such a finding of fact only if it is clearly erroneous in light of the evidence in the whole record. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. . . . [0]n review by this court every reasonable presumption is made in favor of the trial court’s ruling.” (Citation omitted; internal quotation marks omitted.) In re Vincent D., 65 Conn. App. 658, 669, 783 A.2d 534 (2001).

The respondent correctly asserts that rehabilitation does not require that a parent be able to assume the full responsibility for a child without the use of available support programs such as those provided by the petitioner. See In re Luis C., 210 Conn. 157, 167, 554 A.2d 722 (1989); see also In re Migdalia M., 6 Conn. App. 194, 203, 504 A.2d 533, cert. denied, 199 Conn. 809, 508 A.2d 770 (1986). The respondent argues that the court ignored the significant strides that she has made in her drug rehabilitation efforts in the year prior to the termination proceedings and the positive interactions she had with her children during supervised visits. The court, however, makes an inquiry into the full history of the respondent’s parenting abilities. In re Galen F., 54 Conn. App. 590, 594, 737 A.2d 499 (1999).

“[T]he adjudicatory determination to be made by the trial court is whether the parent of a child who has been found by the [Sjuperior [Cjourt to have been neglected and uncared for in a prior proceeding has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child. . . . ‘Personal rehabilitation’ as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent. ... In conducting this inquiry, the trial court must analyze the respondent’s rehabilitative status as it relates to the needs of the particular child .... The trial court must also determine whether the prospects for rehabilitation can be realized ‘within a reasonable time’ given the age and needs of the child.” (Citations omitted; internal quotation marks omitted.) In re Tabitha P., supra, 39 Conn. App. 360-61.

Although the standard is not full rehabilitation, the parent must show more than “any” rehabilitation. See In re Stanley D., supra, 61 Conn. App. 233; In re Migdalia M., supra, 6 Conn. App. 203. Successful completion of the petitioner’s expressly articulated expectations is not sufficient to defeat the petitioner’s claim that the parent has not achieved sufficient rehabilitation. In re Vincent D., supra, 65 Conn. App. 670.

Although the respondent has made successful strides in her ability to manage her life, the court had reasonable concerns that such rehabilitation was not enough to assume a responsible position in her children’s lives, especially given the special needs of her children. The court’s finding that the respondent had failed to achieve rehabilitation to that degree was not clearly erroneous.

The judgments are affirmed.

In this opinion the other judges concurred.

       The parental rights of the children’s father also were terminated. Only the respondent mother has appealed, and we therefore refer to her in this opinion as the respondent.

       General Statutes (Rev. to 1999) § 17a-112 (c), as amended by Public Acts 2000, No. 00-137, § 1, and No. 00-196, § 15, now § 17a-112 (j), provides in relevant part: “The Superior Court, upon hearing and notice . . . may grant a [termination of parental rights] petition filed pursuant to this section if it finds by clear and convincing evidence ... (3) that . . . (B) the child (1) has been found by the Superior Court to have been neglected or uncared for in a prior proceeding, or (2) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent . . . and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .”

       The “birth-to-three” program was established within the department of mental retardation and was established to assist children who may be developmentally delayed and to assist their parents. See General Statutes § 17a-248 et seq.

       General Statutes (Rev. to 1999) § 17a-112 (d), as amended by Public Acts 2000, No. 00-137, § 1, now § 17a-112 (k), provides in relevant part: “[I]n determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended; (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (4) the feelings and emotional ties of the child with respect to the child’s parents, any guardian of such child’s person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (5) the age of the child; (6) the efforts the parent has made to adjust such parent’s circumstances, conduct, or conditions to make it in the best interest of the child to return such child home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions, and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.”

       The fourteenth amendment to the United States constitution provides in relevant part that “[n]o State shall . . . deprive any person of life, liberty or property, without due process of law . . . .”

       We do not need to consider the respondent’s assertion concerning article first, §§ 8 and 10, of the constitution of Connecticut. She provides no separate analysis under the Connecticut constitution. See State v. Reid, 254 Conn. 540, 553 n.6, 757 A.2d 482 (2000). We further note that our Supreme Court has stated that “the due process provisions of the United States and Connecticut constitutions generally have the same meaning and impose similar constitutional limitations.” In re Dodson, 214 Conn. 344, 362 n.15, 572 A.2d 328, cert. denied sub nom. Dodson v. Superior Court, 498 U.S. 896, 111 S. Ct. 247, 112 L. Ed. 2d 205 (1990); see also Terese B. v. Commissioner of Children & Families, 68 Conn. App. 223, 226 n.6, 789 A.2d 1114 (2002).

       The respondent phrases the claim as a failure to give her adequate notice. She is not claiming, however, that she was unaware of the proceedings or that notice of the proceedings was defective. Her claim is more accurately described as a denial of her due process rights because events occurring after the filing of the petitions could be better and more accur ate indications of personal rehabilitation and, therefore, should have been considered in the adjudicatory phase of the termination of parental rights hearing.

       We note that Practice Book § 33-3 was repealed effective January 1, 2003. Practice Book § 35a-7 (a) provides: “In the adjudicatory phase, the judicial authority is limited to evidence of events preceding the filing of the petition or the latest amendment, except where the judicial authority must consider subsequent events as part of its determination as to the existence of a ground for termination of parental rights.” (Emphasis added.) That revision has no bearing on the appeal before us. We further note that under the facts before us, this case would not fall under the exception where a court must consider subsequent events. The events occurring after the filing of the petitions were introduced as evidence by the respondent and concerned her rehabilitative efforts. Those events were considered by the corut during the dispositional phase of the termination hearing.

       “We have acknowledged that [t]he United States Supreme Court [has] set forth three factors to consider when analyzing whether an individual is constitutionally entitled to a particular judicial or administrative procedure: First, the private interest that will be affected by the official action; second, the risk of erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” (Internal quotation marks omitted.) In re Jonathan M., supra, 255 Conn. 226 n.20. We note that the risk of erroneous deprivation would be minimal due to the presentation of events and behavior after the petition filing date for consideration during the dispositional phase of the hearing. The respondent would be allowed to present such evidence, and any recent rehabilitative efforts would be considered when the court determines if termination is in the best interests of the children.

       We note that there is no evidence that the respondent in this case raised this issue previously either orally or in a written motion during the termination hearing.


source: Caselaw Access Project

author: DRANGINIS, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ROLANDO CRUZ
    (AC 22575)
    Foti, Mihalakos and Dranginis, Js.

      Argued October 21, 2002
    officially released March 11, 2003

      Alice Osedach-Powers, assistant public defender, for the appellant (defendant).

      James A. Killen, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David J. Strollo, senior assistant state’s attorney, for the appellee (state).
   Opinion

DRANGINIS, J.

The defendant, Rolando Cruz, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (l). On appeal, the defendant claims (1) that the trial court improperly instructed the jury on the issue of self-defense and (2) that the state failed to adduce evidence sufficient to disprove that he was acting in self-defense. We affirm the judgment of the trial court.

The jury reasonably could have found that following facts. On a Thursday evening in late July, 1999, the defendant went to Gecko’s, a nightclub in New Haven. While at Gecko’s, the defendant was having a conversation with a woman, Adrienne DeLeon. At some point during their conversation, the defendant and DeLeon were approached by DeLeon’s then boyfriend, Joseph Martinez. Martinez, who believed that the defendant was flirting with DeLeon, threw a drink in her face and began screaming at DeLeon and at the defendant. Martinez and the defendant engaged in a verbal dispute, but no physical altercation occurred between the two men that night.

On the following Sunday night, August 1, 1999, the defendant was at Humphrey’s restaurant in New Haven. Martinez also was at Humphrey’s that night with his friend, Peter Gaudioso. After seeing the defendant from across the room, Martinez pointed out the defendant to Gaudioso and informed him of the verbal altercation that he had had with the defendant only a few nights before. Gaudioso suggested that he and Martinez leave the restaurant to avoid another altercation. Shortly thereafter, Gaudioso and Martinez exited the front door of the restaurant where they encountered the defendant, who was standing outside talking on his cellular telephone. Martinez approached the defendant because he thought he heard the defendant call him a derogatory name. The two men began to argue. The defendant told Martinez: “You don’t want to do this, you will regret it for the rest of your life.” Shortly thereafter, punches began to be thrown by both men. The fight spilled over into the parking lot of the restaurant, between two parked cars. At some point during the fight, the defendant took a knife out of his pocket, stabbed Martinez once in the stomach and then ran away. The fight had lasted only a matter of minutes. At that time, the defendant was twenty-five years old, six feet, one inch tall and weighed 190 pounds. Martinez was twenty years old, six feet, two inches tall and weighed approximately 240 pounds.

Martinez was taken to a hospital by ambulance where doctors performed emergency surgery to repair a stab wound to his abdominal area. On the surface, his wound measured about four inches wide and was approximately six to eight inches deep. The wound, which exposed Martinez’s intestines, could have been fatal had it not been treated immediately.

The defendant subsequently was arrested and charged with one count of assault in the first degree in violation of § 53a-59 (a) (l) and, in the alternative, one count of assault in the first degree in violation of § 53a-59 (a) (3).

Months after his arrest, during the spring of 2001, the defendant surrendered a knife, which he claimed was the knife he had used to stab Martinez, to an investigator who was employed by the defendant’s attorney. That knife, which had a two inch blade, eventually was turned over to the police and was introduced at trial. The state, however, disputed that the knife with the two inch blade was the knife the defendant had used to stab Martinez. During its case-in-chief, the state offered the testimony of Edward T. McDonough, deputy chief medical examiner for the state of Connecticut. McDonough testified that Martinez’s injuries were consistent with a stabbing by a knife or other sharp object that would have to have been, at a minimum, about six inches in length. During cross-examination, the defendant admitted that he had, in the past, carried knives with much larger blades.

At trial, the defendant claimed that he was acting in self-defense when he stabbed Martinez and, therefore, his use of force was justified. See General Statutes § 53a-19. The defendant testified that he stabbed the victim, but that he believed that his use of force was necessary to defend himself from the victim’s attack. During its deliberations, the jury asked to hear the legal definition of self-defense again. The jury returned a guilty verdict on the charge of assault in the first degree in violation of § 53a-59 (a) (1) and a verdict of not guilty on the charge of assault in the first degree in violation of § 53a-59 (a) (3). After the jury’s verdict, defense counsel filed a motion for a judgment of acquittal in which he claimed that the evidence adduced at trial established that the defendant had acted in self-defense and that the state had failed to adduce evidence sufficient to disprove self-defense. In denying the defendant’s motion, the court determined that if the jury had accepted the testimony of Martinez, the defendant’s self-defense claim was disproved beyond a reasonable doubt. Additional facts will be set forth where necessary.

I

The defendant claims that the court improperly instructed the jury on the issue of self-defense. He advances three arguments in support of his claim. He argues that the court’s instruction on self-defense improperly (1) limited the jury’s inquiry to determining whether he was justified in using deadly physical force, (2) advised the jury as to how to evaluate his use of force and (3) advised the jury that its duty was to determine whether the victim was about to use force or was inflicting injury against the defendant prior to determining whether the defendant reasonably believed the victim was doing so. The defendant asserts that the court’s improper instructions on self-defense deprived him of his constitutionally guaranteed rights to present a defense, to due process and to a fair trial under the sixth and fourteenth amendments to the constitution of the United States.

At the outset, we note that the defendant did not properly preserve the claims of improper jury instruction that he now raises on appeal. Moreover, the defendant has conceded in his brief that he induced two of the alleged errors by requesting the very instructions that he now claims were constitutionally infirm. He maintains that all three of his claims are, nonetheless, reviewable under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or, in the alternative, under the plain error doctrine. See Practice Book § 60-5. We agree that the defendant’s claims, including those that are the product of induced error, are reviewable under Golding.

Although it is the general rule that a party who induces an error cannot be heard to complain about that error, unpreserved claims of constitutional magnitude, even when induced by the appellant, may be reviewed pursuant to State v. Golding, supra, 213 Conn. 239-40. State v. Whipper, 258 Conn. 229, 295 n.31, 780 A.2d 53 (2001). Thus, as a threshold matter, we must determine whether the defendant has raised claims that meet the Golding criteria.

In the present case, we conclude that the defendant’s unpreserved claims, alleging that the court improperly charged on the issue of self-defense, are reviewable under the first two Golding criteria because the record is adequate for review and because the right to establish a defense is constitutional in nature. Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967).

We must now determine whether the defendant has satisfied the second two Golding criteria by demonstrating that there was constitutional error requiring a new trial. “We preface our analysis of the defendant’s individual claims by once again stating, albeit briefly, the fundamental precepts that govern our review of these claims. An improper instruction on a defense, like an improper instruction on an element of an offense, is of constitutional dimension. ... In either instance, [t]he standard of review to be applied to the defendant’s constitutional claim is whether it is reasonably possible that the jury was misled. ... In determining whether 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 it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) State v. Peters, 40 Conn. App. 805, 809, 673 A.2d 1158, cert. denied, 237 Conn. 925, 677 A.2d 949 (1996). With those principles in mind, we turn to the defendant’s individual jury instruction claims.

A

The defendant first argues that the court’s charge on self-defense improperly limited the jury’s self-defense inquiry to determining whether he was justified in using deadly force and thereby removed from the jury’s consideration the option of determining whether he was justified in using nondeadly force. Specifically, he argues that in instructing the jury that this case involved deadly force, the court improperly resolved on its own an issue of fact for the jury, namely, whether the defendant had exercised deadly as opposed to nondeadly force, which played a significant role in the jury’s rejection of his claim of self-defense and violated his right to a fair trial. We disagree.

The following additional facts are necessary to our disposition of the defendant’s claim. The defendant submitted a request to charge on the issue of self-defense. The defendant requested that the court’s charge to the jury include the following: “A defendant claiming justification of self-defense is permitted to use deadly force in two broad circumstances. He may justifiably use deadly force only if he reasonably believed that the other person was either using, or about to use, deadly physical force, or inflicting, or about to inflict great bodily harm.

“In this case, we are talking about the use of deadly physical force by the defendant. It is therefore the last portion of that section of the statute on self-defense that is implicated in this case, and I’m going to read it to you.” (Emphasis added.)

The court held a charging conference with counsel. Just prior to closing argument, the court asked counsel if there was anything either of them wanted to put on the record concerning their jury charge conference. Defense counsel responded that there was not. After closing arguments, the court stated to counsel: “You have the self-defense charge that we discussed, and I gather you both read it and agree that it comports with our — the content of our charge conference.” Defense counsel responded: “The defense agrees, Your Honor.” Thereafter, the court instructed on the applicable law. In its self-defense charge, the court included the exact language that the defendant had requested and now challenges on appeal. After the court excused the jury to begin its deliberations, the court asked counsel if there were any objections to the jury charge. Defense counsel indicated that he had no objection.

“Even though we review this claim under the third prong of Golding, we note that [w]hen the principal participant in the trial whose function it is to protect the rights of his client does not deem an issue harmful enough to press in the trial court, the appellate claim that the same issue clearly deprived the defendant of a fundamental constitutional right and a fair trial . . . is seriously undercut.” (Internal quotation marks omitted.) State v. Grenier, 55 Conn. App. 630, 650, 739 A.2d 751 (1999), rev’d on other grounds, 257 Conn. 797, 778 A.2d 159 (2001).

The defendant now argues, for the first time, that the court should have charged the jury on the issue of nondeadly force because he adduced sufficient evidence at trial to raise a question as to whether he had used nondeadly or deadly force. He advances his argument despite the fact that it was he who had requested that the court confine its self-defense charge to whether he was justified in using deadly force. In essence, what the defendant claims is that the court should have, sua sponte, charged the jury on the issue of nondeadly force. The defendant, however, offers us no authority for imposing such a duty on the court, and we decline to do so on the facts of this case.

It is true that “[i]f the 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.” (Internal quotation marks omitted.) State v. Bailey, 209 Conn. 322, 340, 551 A.2d 1206 (1988). With regard to a claim of self-defense, that is so even where the defendant has not submitted a request to charge on a particular aspect of his defense and has not objected to its omission from the charge after the charge has been given. See id. (defendant entitled to charge on exception of § 53a-19 (b) (1) where evidence adduced at trial warranted such charge, despite fact that defendant did not request court to charge on exception or object to charge given at trial).

In the present case, we do not have a situation in which the defendant adduced sufficient evidence at trial to warrant a charge on a particular aspect of a defense, did not file a request to charge and, therefore, relied on the court to fashion an appropriate charge as to that aspect of his defense. See id. Instead, we have a situation in which the defendant drafted and submitted his own request to charge, in which he essentially conceded that his theory of self-defense was limited to whether he was justified in using deadly force, and now argues that he was, nonetheless, entitled to a charge on whether he was justified in using nondeadly force because he adduced evidence at trial that would have entitled him to such a charge. A defendant is allowed to make concessions; see State v. Cooper, 38 Conn. App. 661, 669, 664 A.2d 773 (even element of crime may be conceded by defendant), cert. denied, 235 Conn. 908, 665 A.2d 903 (1995), cert. denied, 517 U.S. 1214, 116 S. Ct. 1837, 134 L. Ed. 2d 940 (1996); and when he does so, he cannot be allowed later to complain that those concessions have rendered his trial unfair. See State v. Whitford, 260 Conn. 610, 632-33, 799 A.2d 1034 (2002) (“ ‘when viewed in the context of defense counsel’s participation in fashioning the supplemental] charge, [his] failure to except supports the . . . conclusion that the defendant accepted the supplemental] charge as correct’ ”). “Due process of law requires that the proceedings shall be fair, but fairness is a relative, not an absolute concept. It is fairness with reference to particular conditions or particular results.” (Internal quotation marks omitted.) State v. Cooper, supra, 670. Under the conditions present here, the defendant cannot complain that he has been deprived of his right to a fair trial. “To allow the defendant to seek reversal now that his trial strategy has failed would amount to allowing him to induce potentially harmful error, and then ambush the state with that claim on appeal. ” (Internal quotation marks omitted.) Id. We refuse to do so.

Accordingly, we conclude that with respect to this claim, the defendant has failed to satisfy the third prong of Golding because he has failed to establish that a constitutional violation clearly exists and clearly deprived him of a fair trial. Similarly, we conclude, on the basis of our review of the record, that the claimed error did not affect the fairness and integrity of, nor the public confidence in, the judicial proceedings, and, therefore, did not constitute plain error. See State v. Crespo, 246 Conn. 665, 687, 718 A.2d 925 (1998), cert. denied, 525 U.S. 1125, 119 S. Ct. 911, 142 L. Ed. 2d 909 (1999).

B

The defendant next claims that the court improperly instructed the jury as to how to evaluate his use of force. The following additional facts are necessary to our resolution of his claim. During its self-defense charge, the court instructed the jury that: “A defendant claiming justification of self-defense may only use reasonable force to defend himself. Reasonable force is the amount of force that would be used by an average person of ordinary intelligence acting under the same circumstances.”

The defendant argues that this portion of the court’s self-defense instruction was incorrect as a matter of law because it advised the jury to evaluate his use of force by a solely objective standard. He claims that it is well established that § 53a-19 incorporates a subjective-objective standard. See State v. Corchado, 188 Conn. 653, 663, 453 A.2d 427 (1982). Consequently, he argues that the jury was misled as to how it should evaluate his subjective belief as to the amount of force necessary under the circumstances. That claim is without merit.

We agree with the defendant that the challenged portion of the instruction previously quoted seems to employ a purely objective standard and that use of that particular language has been discouraged by our Supreme Court. See State v. Anderson, 227 Conn. 518, 533, 631 A.2d 1149 (1993) (nothing in subjective-objective test refers to “ ‘person of ordinary intelligence’ ”). When viewed in the context of the charge as a whole, however, we are satisfied that there is no reasonable possibility that this one, isolated statement misled the jury to arrive at an improper verdict. See State v. Harrison, 32 Conn. App. 687, 699, 631 A.2d 324, cert. denied, 227 Conn. 932, 632 A.2d 708 (1993).

Although the trial court made such a statement, that does not end our inquiry. “It is well settled that a jury’s evaluation of a claim of self-defense has both subjective and objective elements. ... 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 .... 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.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Peters, supra, 40 Conn. App. 816.

On the basis of our review of the charge as a whole, we conclude that the court in the present case clearly instructed the jury that in analyzing the defendant’s self-defense claim, it was required to apply a subjective-objective standard. Here, prior to making the statement that the defendant now challenges on appeal, the court charged the jury that a “person is justified in the use of reasonable force upon another when he reasonably believes that such force is necessary to protect himself from the use of or impending use of force by another.” A little later in the charge, the court explained that “the statute focuses on the person claiming self-defense. It focuses on what he reasonably believed under the circumstances and presents a question of fact for the jury. In other words, what is important is what the defendant reasonably believed under the circumstances in this case.

“The test for the degree of force in self-defense is a subjective-objective test, meaning it has some subjective aspects and some objective aspects. Self-defense thus requires the jury to measure the justifiability of the defendant’s actions from a subjective perspective, that is, what the defendant reasonably believed under the circumstances presented in this case and on the basis of what the defendant perceived the circumstances to be. Now, the danger or apparent danger claimed by the defendant is to be determined from his standpoint at the time of the attack and under all of the circumstances.” (Emphasis added.)

Immediately following the statement that the defendant challenges on appeal, the court instructed the jury as follows: “Now, § 53a-19 (a) requires, however, that the defendant’s belief must have been reasonable and not irrational or unreasonable under the circumstances as he was presented with them; that is, would a reasonable person in the defendant’s circumstances have reached that belief, that is the objective aspect of the test. It is both a question of what his belief was and whether it was reasonable.” (Emphasis added.)

Although the challenged instruction, when viewed in isolation, could be construed as dictating a purely objective standard, when viewed in the context of the charge as a whole, we conclude that the court adequately instructed the jury as to both the subjective and objective aspects of the test involved in a self-defense analysis. Accordingly, the defendant’s claim to the contrary is without merit and, therefore, the defendant cannot meet the third prong of Golding. We also conclude that his claim does not merit plain error review.

C

The defendant also claims that the court improperly instructed the jury that it must first determine whether the victim was about to use force or was inflicting injury against the defendant before it determined whether the defendant reasonably believed that the victim was doing so. The challenged portion of the court’s self-defense instruction states as follows: “In this case, if you find the victim was about to use deadly physical force or inflict great bodily harm, upon the defendant, and if you further find that the defendant had a reasonable belief that the victim was about to use deadly physical force or inflict great bodily harm upon the defendant, then the defendant would be justified in using deadly physical force upon the victim.

“On the other hand, if you find proven beyond a reasonable doubt that the victim was not using or about to use deadly physical force or inflict greal bodily harm upon the defendant, and if you further find proven beyond a reasonable doubt that the defendant had no reasonable belief that the victim was using or about to use deadly physical force or about to inflict great bodily harm upon the defendant, then the defendant would not be justified in using deadly physical force upon the victim. You would, under those circumstances, reject the defense of self-defense.” (Emphasis added.) We note that this portion of the charge essentially mirrors the defendant’s request to charge.

The defendant argues that the challenged portion of the charge misled the jury because it imposed a requirement that the jury first make a determination of whether the victim was using or about to use physical force or inflicting or about to inflict great bodily harm. He further argues that that portion of the instruction diminished the subjective-objective inquiry required by § 53a-19.

We agree with the defendant that the previously quoted portion of the court’s self-defense instruction, when viewed in isolation, was improper. See General Statutes § 53a-19. Whether the victim was, in fact, using or about to use physical force or inflicting or about to inflict great bodily harm on the defendant is not a factor necessary to the jury’s analysis of a self-defense claim because the focus of the statute is clearly on what the defendant reasonably believed. See General Statutes § 53a-19. We disagree, however, that, when viewed in the context of the jury instruction as a whole, it was reasonably possible that the jury was misled in reaching its verdict or that the challenged portion of the instruction diminished the subjective-objective inquiry required by § 53a-19.

Shortly before giving the challenged portion of the charge quoted above, the court instructed the jury: “Now, the danger or apparent danger claimed by the defendant is to be determined from his standpoint at the time of the attack and under all of the circumstances. The act leading to the defendant’s claim of self-defense need not be an actual threat or assault; the test is not what the other person actually intended, but what the aggressor’s act caused the defendant to reasonably believe was his intent. In other words, the danger need not have been actual if the defendant reasonably believed that the danger was actual, real, imminent or unavoidable.

“In judging the danger to himself, the defendant was not required to act with infallible judgment. Ordinarily, one exercising the right of self-defense is required to act instantly and without the time to deliberate or investigate. Under such circumstances, it is often possible to mistake an actual threat when none, in fact, existed. The law does not require the same coolness in judgment in estimating his danger. Note, however, that the defendant’s belief of danger must be honest and sincere. Apparent danger with the knowledge that no real danger exists is not an excuse for using force.” (Emphasis added.)

We also disagree that the challenged portion of the charge diminished the subjective-objective inquiry required by § 53a-19. The court provided the jury with extensive instructions on the subjective and objective portions of a self-defense claim and, in the course of those instructions, it made clear to the jury that it should focus on what the defendant reasonably believed. See part I A.

We therefore conclude that when viewed in the context of the charge as a whole, it is not reasonably possible that the jury was misled by that portion of the court’s charge. Consequently, the defendant’s claim fails under the third prong of Golding because he has failed to establish that a constitutional violation clearly exists. Likewise, we conclude that the claimed error does not warrant plain error review. See Practice Book § 60-5.

II

Finally, the defendant claims that the state’s evidence was insufficient to disprove, beyond a reasonable doubt, that he acted in self-defense and, therefore, the court should have granted his motion for a judgment of acquittal. He argues that in considering all of the evidence adduced at trial, the only reasonable and logical determination that the jury could have made was that he reasonably believed that the victim was using or about to use deadly physical force or about to inflict great bodily harm and that the defendant merely took reasonable action to defend himself. Accordingly, he argues that his conviction must be overturned and his case remanded for a judgment of acquittal to enter. We disagree.

At trial, the defendant claimed that he was acting in self-defense when he stabbed Martinez. “Self-defense is raised by way of justification, and when such defense is asserted the state shall have the burden of disproving such defense beyond a reasonable doubt. . . .

“A person is justified in using deadly physical force, under the self-defense statute, § 53a-19 (a), only when he reasonably believes such force to be necessary because he reasonably believes that [another] person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm. Even then, under § 53a-19 (b) and (c), aperson is not justified in using deadly physical force on another person if (1) he knows that he can avoid the necessity of using such force with complete safety by retreating, (2) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person [or] (3) he is the initial aggressor .... Section 53a-19 presents a question of fact about what the defendant himself reasonably believed about his exposure to jeopardy under the circumstances.” (Internal quotation marks omitted.) State v. Ash, 33 Conn. App. 782, 789, 638 A.2d 633, rev’d on other grounds, 231 Conn. 484, 651 A.2d 247 (1994); see also State v. Garrison, 203 Conn. 466, 470, 525 A.2d 498 (1987).

In the present case, the defendant’s challenge to the sufficiency of the evidence focuses primarily on the contradictory evidence that was presented at trial and his claim that the jury reasonably could have concluded that he reasonably believed that he was justified in using deadly force to defend himself against Martinez, who he emphasizes was some fifty pounds heavier. He asserts, mostly on the basis of his own testimony, that the only reasonable conclusion the jury could have reached was that he acted in self-defense. Such an argument, however, relates to witness credibility, not sufficiency of the evidence. See Aksomitas v. Aksomitas, 205 Conn. 93, 101, 529 A.2d 1314 (1987), and cases cited therein; see also State v. Cavallo, 200 Conn. 664, 672-73, 513 A.2d 646 (1986). “The jury is the final arbiter of credibility . . . and it was free to believe the testimony given by [Martinez] and disbelieve the defendant’s testimony.” (Citation omitted.) Aksomitas v. Aksomitas, supra, 101.

“On appeal, we do not attempt to weigh the credibility of evidence offered at trial, nor do we purport to substitute our judgment for that of the jury. Instead, our review consists of a two-step process in which we construe the evidence presented at trial in a light most favorable to sustaining the verdict . . . and then determine whether the jury could reasonably have found, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.” (Citations omitted; internal quotation marks omitted.) State v. Cavallo, supra, 200 Conn. 673.

Despite the defendant’s claim to the contrary, our review of the record reveals that the jury was free to disbelieve his claim of self-defense and to conclude, beyond a reasonable doubt, that he did not believe that Martinez was inflicting or about to inflict deadly force or great bodily harm or that the defendant reasonably believed that the degree of force that he used was necessary to defend himself. “[W]e give deference not to the hypothesis of innocence posed by the defendant, but to the evidence and the reasonably inferences drawn therefrom that support the jury’s determination of guilt.” (Internal quotation marks omitted.) State v. Knight, 50 Conn. App. 109, 113, 717 A.2d 274 (1998).

At the time of the altercation, Martinez was unarmed. The defendant, however, was armed with a knife. The defendant testified that he had used a small knife with a two inch blade. The state, however, offered evidence that Martinez’s wound was consistent with a knife that had a blade exceeding six inches. The state also offered evidence that Martinez’s wound was six to eight inches deep, four inches wide, and that the wound had exposed his intestines. Furthermore, the defendant testified at trial that he used the knife only because he was being severely beaten by Martinez. At the time of his arrest, however, he denied stabbing Martinez and claimed, instead, that the two had merely had a fistfight. The defendant also testified that initially, he washed and hid the two inch knife that he now claims he used to stab Martinez. It was not until some two months after his arrest that he turned that knife over to an investigator from his attorney’s office. Also, photographs in evidence of the defendant’s face and chest, taken just hours after the altercation, did not indicate any cuts or bruises or that he had sustained any serious injury from Martinez’s punches. The photographs indicated only that the defendant had a small lump behind one ear and some minor scrapes on his chest and arms.

In addition, Martinez and Gaudioso testified that Martinez landed very few punches and that the fight had lasted only a couple of minutes when the defendant pulled out his knife and stabbed Martinez. Despite the defendant’s claim that the fight was dominated by Martinez, another witness, Roger Robinson, a bouncer at Humphrey’s, testified that from what he observed, it looked like the fight between the two men was an even match. The defendant also had warned Martinez before the fight began: “You don’t want to do this, you will regret it for the rest of your life.” The jury was entitled to infer from that statement that the defendant intended to use his knife before the physical altercation even began and that use of the knife was not due to his belief that he was, or about to become, the target of deadly force or great bodily harm.

Accordingly, we conclude that the defendant’s claim that the state failed to produce sufficient evidence to disprove his claim of self-defense is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

       See footnote 1.

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when ... (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical iiyury to another person . . . .”

       General Statutes § 53a-19 provides in relevant part: “(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 ....
      “(c) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force . . . .”

       The defendant also claims a violation of his rights under article first, § 8, of the constitution of Connecticut. “We have repeatedly apprised litigants that we will not entertain a state constitutional claim unless the [party] has provided an independent analysis under the particular provisions of the state constitution at issue . . . (Internal quotation marks omitted.) State v. Holmes, 257 Conn. 248, 252 n.4, 777 A.2d 627 (2001), cert. denied, 535 U.S. 939, 122 S. Ct. 1321, 152 L. Ed. 2d 229 (2002). Because the defendant has provided no independent analysis of his claims under the state constitution, we limit our review of the issues to the defendant’s claims under the United States constitution. See, e.g., State v. Schiappa, 248 Conn. 132, 136-37 n.9, 728 A.2d 466, cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999).

       Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40. “The first two Golding requirements involve whether the claim is reviewable, and the second two involve whether there was constitutional error requiring a new trial.” (Internal quotation marks omitted.) State v. Wickes, 72 Conn. App. 380, 384-85, 805 A.2d 142, cert. denied, 262 Conn. 914, 811 A.2d 1294 (2002).

       Practice Book § 60-5 provides in relevant part: “The [reviewing] court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. ...”

       The state claims in its brief that induced error does not merit Golding review. In State v. Whipper, 258 Conn. 229, 780 A.2d 53 (2001), however, our Supreme Court explained that “[ajlthough error induced by an appellant cannot be a ground for reversal and will not be reviewed . . . where the claim is of constitutional magnitude, it may be reviewed pursuant to Golding.” (Citation omitted; internal quotation marks omitted.) Id., 295 n.31. “As we have stated before, [w]e are not at liberty to overrule or discard the decisions of our Supreme Court but are bound by them.” (Internal quotation marks omitted.) State v. Johnson, 71 Conn. App. 272, 278, 801 A.2d 890, cert. denied, 261 Conn. 939, 808 A.2d 1133 (2002). Accordingly, we find no merit to the state’s claim. The state also claims that induced error does not merit plain error review under Practice Book § 60-5. We, however, find nothing in the language of Practice Book § 60-5 that supports the state’s claim; see footnote 7; and the state has not cited any authority for its claim. We therefore refuse to address that claim.

       Wo note lhat the state, too, apparently believed the defendant’s self-defense theory was limited to whether he was justified in using deadly force because the state’s request to charge included the same language that the defendant included in his request to charge and now challenges on appeal.

       “In Corchado [our Supreme Court] noted that [General Statutes §] 53a-19 focuses on the person, here the defendant . . . claiming self-defense. It focuses on what he reasonably believes under the circumstances and presents a question of fact .... This statutory emphasis upon the defendant further demonstrates the function of the jury in their evaluation of the self-defense claim. ... We also note in passing that there is nothing in that test that refers to a ‘person of ordinary intelligence.’ We discourage the use of instructional language that strays from the Corchado subjective-objective standard in any significant manner.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Anderson, 227 Conn. 518, 533, 631 A.2d 1149 (1993); see also State v. DeJesus, 194 Conn. 376, 389 n.13, 481 A.2d 1277 (1984).

       We are aware that another defendant’s petition for certification for appeal to our Supreme Court from the decision in State v. Clark, 68 Conn. App. 19, 789 A.2d 549, cert. granted, 260 Conn. 906, 795 A.2d 546 (2002), which involved a similar jury instruction, has been granted, limited to the following issue: “Did the Appellate Court properly conclude that the defendant had failed to establish a constitutional violation in the trial court’s instructions on the law of self-defense?” State v. Clark, 260 Conn. 906, 906-907, 795 A.2d 546 (2002).


author: WEST, J.

text:
    STATE OF CONNECTICUT v. JOSE ARREAGA
    (AC 22600)
    Lavery, C. J., and West and Peters, Js.

      Argued December 9, 2002
    officially released March 11, 2003

      H. Jeffrey Beck, for the appellant (defendant).

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, Richard F. Jacobson, special assistant state’s attorney, and Cornelius P. Kelly, senior assistant state’s attorney, for the appellee (state).
   Opinion

WEST, J.

The defendant, Jose Arreaga, appeals from the judgment of conviction, rendered following a jury trial, of two counts of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A) and (C). On appeal, the defendant claims that the trial court improperly failed to charge the jury regarding the offense of unlawful restraint in the first degree, as proscribed by General Statutes § 53a-95, as a lesser offense included within kidnapping in the first degree. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At the time of the events involved in the present case, the defendant and the victim had been involved in a romantic relationship for six years. On or about the evening of September 19,2000, the victim was sitting inside a parked vehicle with another individual at an apartment complex in Bridgeport. The defendant approached, driving an automobile at a high rate of speed, and parked directly behind the victim’s vehicle, blocking any possible exit. The defendant exited his vehicle and, swearing loudly, approached the vehicle in which the victim was sitting. The defendant then dragged the victim from the vehicle, at one point grabbing and pulling her hair. As the victim struggled with the defendant, he kicked and pushed her in the direction of his vehicle, eventually forcing her into the vehicle.

The defendant then drove away with the victim on Interstate 95 in the direction of New York, continuing to swear at her and to hit her in the face and head. He threatened to kill her or to scar her face. While he was driving, the defendant attempted to force the victim to perform oral sex. The defendant exited the highway in New York and parked in a motel parking lot. The defendant told the victim that she “was going to prove herself” to him. The victim, however, refused what she interpreted as the defendant’s demand to engage in sex with him. The defendant then left the motel parking lot with the victim while threatening her life. Growing increasingly fearful of the defendant’s intentions, the victim told him that she would do whatever he wanted and told him to drive back to the motel. They went to a room, and the defendant demanded that the victim remove her clothes. When she refused, the defendant struck her, threw her onto the bed and forced her to engage in sex.

The defendant then drove back to Connecticut with the victim. When they arrived in Norwalk, the victim pleaded with the defendant to leave her there, but he refused to do so. Eventually, they arrived at the defendant’s house in Bridgeport. The defendant’s mother applied ice to the victim’s face. The defendant’s stepfather walked the victim part of the way to her apartment where she was met by two police cars and an ambulance, which had been summoned by a security guard for the apartment complex who had witnessed the initial encounter. The victim was taken by ambulance to a hospital where she was treated for her injuries.

The defendant subsequently was arrested and charged, by substitute information, with two counts of kidnapping in the first degree. At trial, the defendant requested that the court provide the jury with an instruction on unlawful restraint as a lesser offense included within kidnapping in the first degree. The court denied that request. The jury later found the defendant guilty of both counts of kidnapping in the first degree. This appeal followed.

We begin our analysis by stating that “[tjhere is no fundamental constitutional right to a jury instruction on every lesser included offense suggested by the evidence or by the information, indictment and bill of particulars.” State v. Whistnant, 179 Conn. 576, 583, 427 A.2d 414 (1980). Rather, “[a] defendant is entitled to an instruction on a lesser offense if, and only if, the following conditions are met: (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.” Id., 588.

Under the first prong of Whistnant, we must determine whether the request to charge was appropriate. State v. Faria, 47 Conn. App. 159, 179, 703 A.2d 1149 (1997) , cert. denied, 243 Conn. 965, 707 A.2d 1266 (1998) . A proposed instruction on a lesser included offense satisfies the first prong of Whistnant if it complies with Practice Book § 42-18. State v. Tomasko, 238 Conn. 253, 261, 681 A.2d 922 (1996). Practice Book § 42-18 (a) provides in relevant part that requests “shall be in separate and numbered paragraphs, each containing a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the evidence to which the proposition would apply. . . .” “[I]n the context of a written request to charge on a lesser included offense, this requirement of [Practice Book § 42-18] 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.” (Internal quotation marks omitted.) State v. Tomasko, supra, 261-62.

In the present case, the form and content of the defendant’s request to charge leaves much to be desired. The defendant’s proposed instruction contains only a cursory reference to the testimony of a single witness, the victim. The defendant offers that “[t]he victim testified she was restrained and exposed to physical injury.” Such a characterization of the victim’s testimony grossly misrepresents the substance of that testimony. Nowhere in the defendant’s proposed charge is there any reference to the particular facts of the case, as testified to by the victim or any other witness. “A mere general statement of the entire incident at issue does not comply with our rules of practice.” State v. Hall, 213 Conn. 579, 591-92, 569 A.2d 534 (1990).

Further, the defendant’s legal citations fall short of the requirements of Practice Book § 42-18. In his requested jury instruction, the defendant cites R. Leuba & R. Fracasse, Connecticut Selected Jury Instructions Manual (1998) §§ 2.51 and 6.35, General Statutes §§ 53a-95 and 53a-91, and State v. Whistnant, supra, 179 Conn. 588, for the stated proposition of law. Our Supreme Court repeatedly has emphasized that “Whistnant by itself does not provide the substantive principles of criminal law which would justify any particular instruction.” State v. Ostroski, 201 Conn. 534, 558-59, 518 A.2d 915 (1986). The substantive principles supporting the propriety of charging unlawful restraint in the first degree as a lesser offense included within kidnapping in the first degree also are not to be found in either the General Statutes or the compilation of sample jury instructions relied on by the defendant. See State v. Corbin, 61 Conn. App. 496, 521, 765 A.2d 14 (2001), aff'd in part, 260 Conn. 730, 746, 799 A.2d 1056 (2002) (defendant merely recited relevant statutory sections pertaining to unlawful restraint in second degree in comparison to kidnapping statute).

“While this court does not favor unyielding adherence to rules of procedure where the interests of justice are thereby disserved . . . the ever increasing refinement of our law justifies cooperation of counsel in stating requests for jury instruction. The minor burden of cooperation imposed by [Practice Book § 42-18] is neither unreasonable nor novel.” (Internal quotation marks omitted.) State v. Corbin, 260 Conn. 730, 747, 799 A.2d 1056 (2002). We conclude, therefore, that the defendant’s requested instruction fails to meet the minimum requirements of Practice Book § 42-18. Because the defendant’s claim fails to satisfy the first prong of Whislnant, we need not consider the sufficiency of the claim under the remaining prongs of that test. See State v. Corbin, supra, 745-46.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-92 (a) provides in relevant part that “[a] person is guilty of kidnapping in the first degree when he abducts another person and ... (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually; or . . . (C) terrorize him or a third person . . . .”

       General Statutes § 53a-95 (a) provides that “[a] person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose such other person to a substantial risk of physical injury.”

       We note that the defendant argues that the court did not base its denial of the requested charge on the insufficiency of the charge itsell', but rather, the court’s denial was grounded on substantive concerns. The defendant, therefore, argues that we should likewise consider only whether the requested charge satisfies the substantive prongs of Whistnant. Because our independent review of the court’s ruling reveals a concern regarding the sufficiency of the requested charge, and because the parties in their briefs have addressed the issue of whether the charge meets the first prong of Whistnant, we properly address that issue.

       The defendant’s request to charge consisted of the following:
      “1. Lesser included offense of Unlawful Restraint in the first degree.
      “Under the first or second count, the defendant is charged with the crimes of Kidnapping in the first degree. If you find that the State has proven beyond a reasonable doubt each of the essential elements of this crime, you shall find the defendant guilty of the crimes under counts one and two.
      “However, if you find the defendant not guilty of the crime of Kidnapping in the first degree, you shall consider the lesser offense of Unlawful Restraint in the first degree.
      “Unlawful Restraint in the First Degree is defined as:
      “A person is guilty of unlawful restraint in the first degree when (1) he restrains another person (2) under circumstances which expose such other person to substantial risk of injury.
      “Facts: The victim testified she was restrained and exposed to physical iruury.
      “Law: [R. Leuba & R. Fracasse] Connecticut Selected Jury Instruction[s] [Manual (1998) §§ 2.51] and 6.35. Connecticut General Statutes Sections 53a-95, 53a-91. State v. Whistnant, [supra, 179 Conn. 588].”

       Although not dispositive of the issue before this court, we note that the defendant’s request to charge misstates the necessary elements constituting unlawful restraint in the first degree by omitting the qualifier “physical” before “injury,” as stated in the statute. See General Statutes § 53a-95.


author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. LAMONT THERGOOD
    (AC 22977)
    Schaller, Bishop and Dupont, Js.

      Argued October 29, 2002
    officially released March 11, 2003

      Richard E. Condon, Jr., assistant public defender, for the appellant (defendant).

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Gerard P. Eisenman, senior assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Lamont Thergood, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a). The defendant’s sole claim on appeal is that the use of his signed confession at trial violated his federal constitutional right to due process because the confession was involuntary. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 1 a.m. on March 26, 1999, Lamont Baldwin, Ricky Owen and the defendant were riding around Bridgeport in a car driven by Baldwin. As they proceeded along Knowlton Street, the defendant asked Baldwin to stop the car so that the defendant could get out and urinate. While he was outside the vehicle, the defendant encountered the victim, Telerence Carter. The defendant shot Carter four times with a revolver, killing him.

Officer Milton Johnson of the Bridgeport police department was driving on East Washington Avenue near Knowlton Street when he heard gunshots. Johnson made a U-tum and, as he was approaching Knowlton Street, his vehicle was nearly struck by the car in which Baldwin, Owen and the defendant were traveling. Johnson then made another U-tum so that he could pursue the car. As Johnson pursued the defendant and his companions, Owen grabbed the revolver from the defendant and threw it out the window. The pursuit ended when Baldwin turned onto a dead-end street. Johnson ordered Baldwin, Owen and the defendant to stay in the car until additional police arrived. After additional police officers arrived at the scene, the defendant was patted down and placed in the rear of Johnson’s squad car for approximately one hour. Johnson subsequently drove the defendant to the police station where, several hours later, the defendant signed a typed confession in which he admitted shooting Carter.

The defendant was charged with murder in violation of § 53a-54a (a). Prior to trial, the defendant filed a motion to suppress several of his statements, including the confession. The court held a hearing on the motion on October 23,2000, at which Detectives Heitor Teixeira and Emo Nandori of the Bxidgeport police department testified.

Teixeira’s and Nandori’s testimony at the suppression hearing revealed the following additional facts. The detectives held the defendant in custody and interrogated him before advising him of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). When asked how long the prewarning questioning had lasted, Teixeira stated that “it could have taken a couple of hours . . . .’’At approximately 6:54 a.m. Teixeira and Nandori reviewed with the defendant the form used by the Bridgeport police for the waiver of Miranda rights. The form, which was admitted into evidence at the hearing, bears the handwritten initials “LT” next to each of the five numbered Miranda warnings. The defendant’s full signature appears directly beneath a statement waiving his Miranda rights. After completing the form, the defendant indicated to the detectives that he wanted to make a statement. The detectives asked the defendant questions, and Nandori typed both the questions and the defendant’s oral responses on a computer. In the statement, the defendant admitted responsibility for the shooting on Knowlton Street.

The court concluded that the defendant’s confession was voluntary under the totality of the circumstances and, accordingly, denied the defendant’s motion to suppress. At trial, after Johnson testified about the circumstances surrounding his pursuit of Baldwin, Owen and the defendant, and the subsequent transportation of the defendant to the police station, the defendant orally renewed his motion to suppress the confession on the ground of involuntariness. The court stated that “the time line in and of itself . . . does give one pause,” but nevertheless denied the renewed motion, concluding that the confession was voluntary under the totality of the circumstances. The confession was then admitted into evidence. The jury found the defendant guilty of murder, and the court rendered judgment accordingly. This appeal followed.

The defendant claims on appeal that the use of his signed confession at trial violated his constitutional right to due process because the confession was made involuntarily. Specifically, the defendant argues that his confession should have been suppressed as having been made involuntarily because the police subjected him to two hours of continuous custodial interrogation prior to advising him of his Miranda rights. According to the defendant, that action by the police, when combined with what he terms his “subnormal mentality” and his unfamiliarity with the judicial system, overbore his capacity to exercise his constitutional rights, thus rendering his subsequent confession as having been made involuntarily. The state contends that the court properly denied the motion to suppress because the evidence demonstrates that the defendant’s confession was voluntary under the totality of the circumstances. In the alternative, the state argues that even if the court improperly denied the defendant’s motion to suppress the confession, the error was harmless in light of the overwhelming evidence of the defendant’s guilt. We agree with the state that any error by the court was harmless.

“The improper admission of a confession is harmless error where it can be said beyond a reasonable doubt that the confession did not contribute to the conviction. . . . [Our Supreme Court] has held in a number of cases that when there is independent overwhelming evidence of guilt, a constitutional error would be rendered harmless beyond a reasonable doubt.” (Citation omitted; internal quotation marks omitted.) State v. Hafford, 252 Conn. 274, 297, 746 A.2d 150, cert. denied, 531 U.S. 855, 121 S. Ct. 136, 148 L. Ed. 2d 89 (2000).

In addition to the challenged confession, the jury heard the following evidence. Owen testified that after Baldwin stopped the car on Knowlton Street, the defendant exited the car. After some time had passed, Owen looked and saw the defendant standing directly in front of Carter, whose hands were raised. Owen then saw the defendant shoot Carter. The state also called Baldwin, who testified that after he stopped the car on Knowlton Street, the defendant exited the car. Baldwin further testified that as he was adjusting the car’s tape player, he suddenly heard gunshots. He saw the defendant running toward the car with a gun.

After his arrest, the defendant made a telephone call from the squad room of the police station. Detective Edwin Perez overheard part of the defendant’s conversation. Perez testified that he heard the defendant say, “Mom,” “I did it,” “I shot him” and “no reason.” Teixeira, who also overheard the conversation, testified that he heard the defendant say that he “shot the dude for no reason.”

Later, the defendant was placed in a cell under suicide watch. Terrance Lambert, Keith Grieco and Paul Nikola, who were the police officers assigned to watch the defendant, overheard statements that he made. Lambert testified that he heard the defendant say to Owen, “I did him, but it wasn’t me that killed him, it was God that took him.” He also heard the defendant tell Owen, “It wasn’t the Budweiser that made me do it.” Grieco testified that he heard the defendant say, “My black ass is going down. I should have never confessed. I should have never let them search the car. I didn’t shoot at that close of a range that blood would get on my shoes. My life is ruined. You guys are just witnesses. We should have gone down the avenue instead of stopping for that.” Grieco also testified that the defendant said that he had pulled the trigger. Nikola testified that he heard a conversation between the defendant and his brother, Mark Thergood. According to Nikola, Mark Thergood asked the defendant what he had told the police. The defendant responded, “I told the truth. I confessed to it.” The defendant does not challenge on appeal the admission of any of those additional statements.

We conclude that the evidence of the defendant’s guilt was overwhelming. Even if the court had suppressed the defendant’s written confession, the jury still would have heard the testimony of two eyewitnesses who positively identified the defendant and five police officers who collectively overheard him make statements at four different times indicating his responsibility for the shooting. In light of all of that highly inculpatory evidence, we conclude that the state has carried its burden of demonstrating beyond a reasonable doubt that the defendant’s written confession did not contribute to his conviction. Consequently, any error by the court in denying the defendant’s motion to suppress the confession was harmless beyond a reasonable doubt.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person . . . .”