text:
    Michael F. Brown v. K.N.D. Corporation et al.
    (3016)
    Dupont, C. J., Borden and Spallone, Js.
    Argued November 8, 1985 —
    decision released May 20, 1986

      JohnF. McKenna, with whom, on the brief, was Peter Facey, for the appellant (plaintiff).

      Sydney T. Schulman, with whom, on the brief, was William P. Lane, for the appellee (defendant Wilbur Smith).
   Dupont, C. J.

The plaintiff, Michael F. Brown, has appealed from a judgment rendered for the defendant Wilbur Smith, after a trial to the court. The plaintiff sought damages for libel arising from a statement made during a radio broadcast. The defendant K.N.D. Corporation was the owner and operator of radio station WKND, and the defendant Wilbur Smith was the host of a public affairs program on that station.

The plaintiffs revised complaint alleged that on December 16,1979, the defendant Wilbur Smith made the following statement during a radio broadcast of “What’s On Your Mind” aired by WKND. “The [Ku Klux] Klan has not only sympathizers who are willing to march with them but they also have sympathizers in the Chamber of Commerce, they have them in these banks and insurance companies and they are sympathizers. They are in state government, they are in City Hall right now ah if Mr. Peach isn’t one of them Mike Brown is a sympathizer of the Klan if he is not a member. Now if he wants to sue me about it then we go into his record and racist activity that he has been putting out in this City.”

The complaint further alleged that the statement was false and malicious, that the plaintiff was not a member or sympathizer of the Ku Klux Klan, and that the defendant knew the statement was false or made it with reckless disregard of its truth. Other allegations were that the Ku Klux Klan was a racist organization which condones force and violence to further segregationist goals, that the defendant’s statement held the plaintiff up to public ridicule, hatred and contempt, that the plaintiff had mailed a letter to the defendant asking for a retraction in as public a manner as that in which the statement was made, that the defendant did not retract the statement, and that the statement caused and will continue to cause the plaintiff great damage to his personal and professional reputation.

The defendant raised three special defenses. He alleged that the plaintiff was a public official and, therefore, the defendant’s statement was protected by the first amendment to the constitution of the United States and by article first, § 4 of the constitution of Connecticut because it was neither knowingly false nor made in reckless disregard of the truth. He also claimed that the statement was a privileged communication and that it was fair comment.

The trial court found that the statement was false and libelous per se, and that the defendant had not sustained his burden of proving his defense of fair comment. It also found that the plaintiff, then an assistant city manager, was a “public official” as defined in Rosenblatt v. Baer, 383 U.S. 75, 86 S. Ct. 669, 15 L. Ed. 2d 597 (1966), and as such could not recover damages for the defamatory falsehood because he failed to sustain his burden of proving by clear and convincing evidence that the statement was made with actual malice. See New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). On appeal, the plaintiff claims that the trial court erred in holding that the plaintiff was a public official and in finding that the defendant did not act with actual malice.

The first issue of this appeal is whether the plaintiff is a “public official” within the meaning of New York Times Co. v. Sullivan, supra, and as defined by Rosenblatt v. Baer, supra, 84-85. Whether a party is a public official is an issue to be resolved with reference to standards set by federal law. Id., 84. A public official is defined as a person within the hierarchy of government “who [has], or appearfs] to the public to have, substantial responsibility for or control over the conduct of governmental affairs.” (Footnote omitted.) Id., 85. “Where a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees . . . the New York Times malice standards apply.” (Footnotes omitted.) Id., 86. “The employee’s position must be one which would invite public scrutiny and discussion of the person holding it, entirely apart from the scrutiny and discussion occasioned by the particular charges in controversy.” Id., 86-87 n.13.

There is no substantial dispute as to the facts surrounding the plaintiff’s employment. The plaintiff was one of four assistant city managers in the city of Hartford who, by his own admission, shared responsibility for the budget, management services, data processing and personnel. He also acted on behalf of the city manager at meetings of city council subcommittees and addressed city groups. It is clear that such a position would invite public scrutiny entirely apart from the statements made by the defendant. Employees at lower levels of government have been held to be public officials. See Moriarty v. Lippe, 162 Conn. 371, 294 A.2d 326 (1972) (patrolman); Ryan v. Dionne, 28 Conn. Sup. 35, 248 A.2d 583 (1968) (tax collector). The trial court was correct in finding that the plaintiff, as an assistant city manager of the city of Hartford, is a public official for first amendment purposes.

The significance of this finding is that it establishes the standard of proof which governs the case. A public official may not recover damages for a defamatory falsehood unless he proves by clear and convincing evidence that the defamatory falsehood was published with actual malice, that is with knowledge that the statement was false or with reckless disregard for its falsity. New York Times Co. v. Sullivan, supra. The rule for private individuals seeking defamation damages is not the same. The first Supreme Court decision after New York Times relating to a private individual stated that a private individual in an action for defamation, need only prove a negligent misstatement of fact. Rosenblatt v. Baer, supra, 84. That doctrine was refined and expanded by subsequent decisions. As long as the individual states do not impose liability without fault, they may define for themselves the standard of liability for recovery of compensatory damages for a defamatory falsehood made about a public matter which injures a private individual, without federal hindrance. Gertz v. Robert Welch, Inc., 418 U.S. 323, 347-50, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974). A private individual about whom a statement of public concern is made, however, must show actual malice in order to recover punitive damages for a defamatory falsehood. If a statement is of exclusively private concern and refers to a private figure, the common law controls and actual malice need not be proven in order to recover punitive or compensatory damages. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S. Ct. 2939, 86 L. Ed. 2d 593 (1985). The burden of proving that a statement is false in an action by a private figure about a statement of public conern is on the private figure plaintiff. Philadelphia Newspapers, Inc. v. Hepps, 472 U.S. 1025, 105 S. Ct. 3496, 87 L. Ed. 2d 628 (1985).

In this case, the plaintiff, as a public official, cannot prevail in his action for defamation unless he can prove actual malice with clear and convincing evidence, and that the statement about him was both defamatory and false. New York Times Co. v. Sullivan, supra. Therefore, we must resolve the second issue of this appeal which is whether the trial court erred in finding that the plaintiff failed to prove actual malice by clear and convincing evidence. Actual malice is defined, as previously noted, as knowledge that the statement was false, or made with reckless disregard of whether it was false or not. New York Times Co. v. Sullivan, supra, 279-80.

In the more than the score of years which has passed since the Supreme Court established in the New York Times case that a federal standard must be used in actions involving public officials to define the appropriate accommodation between the law of defamation and the freedoms of speech and press protected by the first amendment to the constitution of the United States, that court has, in succeeding cases, sharpened the words “reckless disregard of whether it was false or not.” “Reckless disregard” for falsity of statements has been equated with a “high degree of awareness of their probable falsity”; Garrison v. Louisiana, 379 U.S. 64, 74, 85 S. Ct. 209, 13 L. Ed. 2d 125 (1964); or a reckless publication made despite an awareness of its probable falsity; Curtis Publishing Co. v. Butts, 388 U.S. 130, 153, 87 S. Ct. 1975,18 L. Ed. 2d 1094, reh. denied, 389 U.S. 889, 88 S. Ct. 11, 13, 19 L. Ed. 2d 197, 198 (1967); or the entertainment of serious doubts as to truth of the publication. St. Amant v. Thompson, 390 U.S. 727, 731, 88 S. Ct. 1323, 20 L. Ed. 2d 262 (1968); see Bose Corporation v. Consumers Union of United States, Inc., 466 U.S. 485, 104 S. Ct. 1949, 80 L. Ed. 2d 502 (1984).

In order to determine whether the trial court erred in its finding of actual malice, we must first determine the proper appellate standard of review. Although appellate courts ordinarily do not disturb the facts as found by a trial court unless the finding of facts is clearly erroneous; see Practice Book § 3060D; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); Jackson v. Jackson, 2 Conn. App. 179, 195, 478 A.2d 1026 (1984); in cases involving defamation of public officials, an independent review of the trial court’s finding of actual malice is mandated. See New York Times Co. v. Sullivan, supra, 285.

Federal cases concerning defamation actions brought by public officials decided since the landmark New York Times case have uniformly followed its mandate of independent appellate review. That case established that it is the duty of appellate courts to review the evidence to make certain that, upon examination of the whole record, it can be concluded that there was no forbidden intrusion on free expression. New York Times Co. v. Sullivan, supra, 285. This review is limited to the proof presented to show actual malice by convincing clarity. In all of the United States Supreme Court cases decided since New York Times, there has been a painstaking review by that court of the subordinate facts which led the trier of fact to conclude that actual malice did or did not exist. See, e.g., Bose Corporation v. Consumers Union of United States, Inc., supra; St. Amant v. Thompson, supra; Curtis Publishing Co. v. Butts, supra; Rosenblatt v. Baer, supra. Other federal courts have engaged in the same independent appellate review of the facts in determining whether actual malice was present. Herbert v. Lando, 781 F.2d 298 (2d Cir. 1986); Bartimo v. Horsemen’s Benevolent and Protective Assn., 771 F.2d 894 (5th Cir. 1985); Hardin v. Santa Fe Reporter, Inc., 745 F.2d 1323 (10th Cir. 1984); Maheu v. Hughes Tool Co., 569 F.2d 459 (9th Cir. 1978); Hotchner v. Castillo-Puche, 551 F.2d 910 (2d Cir. 1977); Buckley v. Littell, 539 F.2d 882 (2d Cir. 1976).

State courts have also consistently abandoned the clearly erroneous standard in defamation cases in which the federal constitutional principle of the New York Times case is involved, using instead the independent appellate review standard to determine whether actual malice was present. See Goodrich v. Waterbury Republican American, Inc., 188 Conn. 107, 108, n.1, 448 A.2d 1317 (1982); see also Hansen v. Stoll, 130 Ariz. 454, 636 P.2d 1236 (1981); Myers v. Boston Magazine Co., 380 Mass. 336, 403 N.E.2d 376 (1980).

The Restatement of Torts also is in accord. A finding on the issue of whether the defendant acted knowing that his statement was false or in reckless disregard of its truth or falsity is subject to close appellate scrutiny and an appellate court is free to find that the evidence is constitutionally inadequate to sustain the finding. 3 Restatement (Second), Torts § 580A, comment g. The constitutional adequacy of the evidence to sustain a finding of knowledge that a statement is false or that it was made in reckless disregard of whether it was false should be the subject of an independent and careful appellate review of the facts. 8 Restatement (Second), Torts § 580A, comment g (appendix 1981).

As a general rule, findings of fact are reviewed under the clearly erroneous standard. If, however, the review is of the finding by the trial court of actual malice in a defamation case involving a public official, a scrutiny of that finding is mandated and the scrutiny requires not only a reexamination of the evidentiary basis of the trial court’s finding but an independent appellate determination of that finding itself. See Herbert v. Lando, supra; Buckley v. Littell, supra, 888. We conclude that this independent review does not depend, as the defendant contends, upon a finding by the trial court that the defendant’s speech was not protected by the first amendment, that is where the trial court found actual malice to have been proven. This independent appellate review extends as well to the situation of this case where the trial court found that actual malice had not been proven. It is our appellate responsibility here to take the subordinate facts as found by the trial court and then to make our own independent determination of whether, on the basis of those facts, the plaintiff has established actual malice, as defined above, with convincing clarity.

In the Bose case, the United States Supreme Court decided that Rule 52 (a) of the federal rules of civil procedure, the counterpart to our Practice Book § 3060D establishing the clearly erroneous standard, does not govern appellate review of the finding of actual malice. “The question whether the evidence in the record in a defamation case is of the convincing clarity required to strip the utterance of First Amendment protection is not merely a question for the trier of fact.” Bose Corporation v. Consumers Union of United States, Inc., supra, 511. The defendant claims that Bose only applies when the trial court has found that the statement was not protected by the first amendment, that is, when the court has found that actual malice existed, thereby denuding the defendant of his first amendment shield of free speech. The defendant, therefore, argues that since, in this case, the trial court found that the defendant’s statement was protected by the first amendment, we may not independently review the factual underpinnings of the trial court’s conclusion that actual malice was not present.

On the basis of two recent cases, we determine that our appellate duty requires an independent review of the finding of actual malice regardless of whether the trial court did or did not find actual malice. In Hardin v. Santa Fe Reporter, Inc., supra, a complaint for libel was dismissed after a trial on the merits. The appellate court upheld the trial court’s action, after reviewing its finding that actual malice did not exist. Although the independent review substantiated the trial court’s finding that the defendant’s speech was protected, the appellate court nevertheless conducted the review. The case of Bartimo v. Horsemen’s Benevolent and Protective Assn., supra, establishes the same necessity for independent review, regardless of whether the trial court did or did not find actual malice, or did so specifically rather than sub silentio as in Hardin. The Bartimo case held that independent appellate review is required in situations where no actual malice has been found by the trial court, and that the less exacting clearly erroneous standard of review would not suffice. The court stated that first amendment protection requires inclusion as well as exclusion and that a finding of inclusion within the protection of the first amendment is not less of a judicial function merely because no direct threat to the first amendment is involved. Whether the speech in question is protected or unprotected does not alter the appellate court’s obligation to make an independent evaluation of the constitutionally significant facts. The Bartimo court points out that the same independent review occurred in Associated Press v. Walker, the companion case of Curtis Publishing Co. v. Butts, supra, although the trial court in Walker had found no actual malice. Such a review allows some plaintiffs to maneuver successfully within the New York Times framework. Bartimo v. Horsemen’s Benevolent and Protective Assn., supra, 901.

Independent appellate review of a trial court’s findings of fact in some classes of cases is not a novel jurisprudential brainstorm of the New York Times court, or of the Bose court. Although the first amendment presupposes the freedom to speak freely, certain categories of speech remain outside first amendment protection, and those categories have been subjected to independent appellate review. See Bose Corporation v. Consumers Union of United States, Inc., supra, 503-505. Such categories include not only libel, but fighting words; Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942); incitement to riot; Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969) (per curiam); and obscenity; Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957). Most recently, the category has been expanded to include independent federal appellate review of a finding of voluntariness of a confession. Miller v. Fenton, 474 U.S. 104, 106 S. Ct. 445, 88 L. Ed. 2d 405 (1985). Justice O’Connor, speaking for a nearly unanimous court, with only Justice Rehnquist dissenting, stated that the court has a historic duty to make an independent evaluation of the record in a federal habeas corpus proceeding to review a state court’s finding that the defendant’s confession was voluntary. The issue to be decided in Miller was whether the voluntariness of the confession was factual and therefore subject to 28 U.S.C. § 2254 (d) which provides that state court findings of facts must be presumed to be correct. If the statute controlled, federal review would be limited to whether the state court had applied the proper legal test and whether its factual conclusions were supported by the record. If, however, the finding was one of law, it would be given an independent federal review. The court held that the voluntariness of a confession is a question of law, although subsidiary questions involved in that determination are questions of fact.

A finding might be characterized as one of fact or law, or one of mixed fact and law and the appropriate methodology for the determination is always elusive. Miller v. Fenton, supra, 451; see Bose Corporation v. Consumers Union of United States, Inc., supra. Such a characterization usually turns on which court is better positioned to decide the question rather than on an analysis of its essential quality. “Where, for example, as with proof of actual malice in First-Amendment libel cases, the relevant legal principle can be given meaning only through its application to the particular circumstances of a case, the Court has been reluctant to give the trier of fact’s conclusions presumptive force and, in so doing, strip a federal appellate court of its primary function as an expositor of law.” Miller v. Fenton, supra, 452. Independent appellate review is, therefore, sometimes required. When an assessment of credibility and demeanor are not critical to an ultimate finding of a fact of constitutional proportion because conflicting testimony need not be evaluated, that ultimate finding of fact of a trial court usually leaves the clearly erroneous realm and enters the domain of independent appellate review. See Miller v. Fenton, supra.

Having concluded that we must independently review the trial court’s failure to find actual malice, we turn to an analysis of that finding. In reviewing that finding, we rely upon the underlying factual findings of the trial court as well as the testimony of the defendant. Those subsidiary factual findings of the trial court which form the basis for its finding of the ultimate question of actual malice are subject to the clearly erroneous rule of Practice Book § 3060D. See Bose Corporation v. Consumers Union of United States, Inc., supra. Those subsidiary facts are accepted by us in this case. St. Amant v. Thompson, supra, 727.

The trial court found the following subordinate facts. The defendant made the statement about the plaintiff who was a public official in a radio broadcast. The plaintiff mailed a certified letter to the defendant demanding a retraction, but no retraction was ever made. The statement was defamatory and tended to harm the reputation of the plaintiff in the estimation of the community or deterred others from associating or dealing with him. The objectives of the Ku Klux Klan are an anathema in a democratic society, and the group has resorted to violence and intimidation to further its goals of racial segregation. The defendant’s statement was reasonably capable of being understood as stating that, at the very least, the plaintiff agreed with the goals and objectives of the Ku Klux Klan or was a member of it. Harm to the plaintiff’s reputation was likely and the allegation of membership or sympathy with the goals of the Ku Klux Klan really meant that the plaintiff supported genocide. The statement cast doubt on the integrity of the plaintiff and his willingness and ability to administer the city’s business free from invidious considerations of race, and the allegation would likely cause the plaintiff diffficulty in pursuing his profession. The statement was false and was more than a statement that the plaintiff is an “unconscious” racist. The defendant had no facts to support the statement and he “ought to have realized that reasonable persons might have understood it to imply more than an allegation of unconscious racism.” None of these facts found by the trial court is clearly erroneous, and, in fact, all are amply supported by the evidence.

The trial court also found that the defendant’s words were defamatory, libelous per se and not defensible as fair comment. These conclusions are supported by the underlying facts found. The trial court also found that the plaintiff had not proven actual malice because the statement said more than the defendant intended and was uttered extemporaneously. Our independent review, however, of the trial court’s ultimate conclusion that the facts did not establish actual malice, leads us to conclude otherwise. Our review of the facts found and our review of the defendant’s own trial testimony establish that actual malice was proven with convincing clarity. We conclude that the defendant’s statement was made with reckless disregard of its falsity, recognizing that “reckless disregard” is a standard which is susceptible only of a case-by-case definition. See Bartimo v. Horsemen’s Benevolent and Protective Assn., supra, 898.

The trial court, in holding that the statement was libelous per se, implicitly found that the statement was one of fact rather than opinion. The statement of the defendant was that the plaintiff was a Klan sympathizer if he was not a member of the Ku Klux Klan. Allegations of membership in an identifiable group or of an affiliation with such a group are facts which are susceptible of proof or disproof of their falsity. Buckley v. Littell, supra, 894. False statements of fact about a public official are not privileged whereas false statements of opinion are protected by the first amendment to the United States constitution. See Gertz v. Robert Welch, Inc., supra, 339. As noted, the trial court impliedly found the defendant’s statement to be one of fact since it found that the statement was not privileged as fair comment and was libelous per se. Furthermore, the defendant’s entire statement inferred that his allegation of the plaintiff’s membership in or sympathy with the Klan was provable by going “into his [the plaintiff’s] record and racist activity.” The defendant’s remarks, even if they were construed as his opinion rather than his expression of a fact, were libelous as an expression of a derogatory opinion about the plaintiff based upon the defendant’s own alleged knowledge of the plaintiff’s record and racist activity in Hartford. See Hotchner v. Castillo-Puche, supra, 913; 3 Restatement (Second), Torts § 566.

The ordinary meaning of the defendant’s language that “Mike Brown is a sympathizer of the Klan if he is not a member” is that at the very least Brown agreed with the Klan’s goals and objectives even if he were not actually a member.

The defendant testified that he did not believe at the time he made the statement that the plaintiff was a member of the Ku Klux Klan or a conscious sympathizer of it. He further testified that he would not, as of the time of trial, retract the statement, that he had told the station manager of K.N.D. Corporation that he could prove his statement, that the plaintiff is a sympathizer of the Klan, if not a member, that he thought about the statement before he made it, and that at the beginning of the program he knew he was going to talk about the Klan. The defendant admitted that he had no evidence that the plaintiff was a member of the Klan, adding that he had no evidence that he was not a member. He stated that the work in which the plaintiff was engaged encouraged the Klan, and that the plaintiff was an unconscious sympathizer of the Klan. His testimony was that the statement he made was “precisely what I meant to say.”

The trial court in its memorandum of decision stated that there was no evidence from which it could conclude that the defendant knew that his statement was untrue when he made it. The record, however, shows that the defendant testified that he knew his statement was untrue when he made it, and that the statement was exactly what he meant to say. The defendant refused to retract the statement he had made, even as of the date of his trial testimony. His refusal to do so was, in effect, a reaffirmation of it, after he knew that it was false and defamatory, and may be treated as evidence of his reckless disregard of its falsity as of the time he made the statement. See 3 Restatement (Second), Torts § 580A, comment d. The Supreme Court of the United States has recognized that it is possible to use a failure to retract as evidence of actual malice. See New York Times Co. v. Sullivan, supra, 286; see also Golden Bear Distributing Systems of Texas, Inc. v. Chase Revel, Inc., 708 F.2d 944, 950 (5th Cir. 1983).

The trial court concluded that the defendant ought to have realized that his statement implied more than “unconscious racism.” The defendant testified that the plaintiff was an unconscious sympathizer of the Klan. A “sympathizer” is a person having common feelings, or an affinity or association or relationship with another and encompasses his inclination to think alike, to be loyal to, and to support another. Webster, Third New International Dictionary. “Unconscious” is defined as the state of being unaware, unknowing, or not deliberate. Id. An “unconscious sympathizer” of the Klan is, therefore, a person who is unaware that he has common feelings of support or alliance with the Klan. Although it might be possible for a person from another society to be unaware that he sympathized with the Klan, it defies common sense to believe that the plaintiff could be an “unconscious” sympathizer with it in 1979 in Hartford, Connecticut. As the trial court stated, “[t]here is little doubt that a substantial number of persons in the greater Hartford area would view [the Klan] as a discreditable organization . . . there [is] no disagreement that the objectives of it are [an] anathema to a democratic society, [and] that the Klan has resorted to violence and intimidation to further its goal of racial segregation.” The defendant himself admitted that the Klan was known as racist.

The record indicates that at the very least the defendant entertained serious doubts about the truth of his statement. Any supposed “good faith” arising out of a claim that he really meant to say that the plaintiff was an unconsicous sympathizer of the Klan, even if we assume that such is possible, is dissipated since the only basis he had for the statement as made or as qualified was his own perceptions and assumptions. “[G]ood faith will be unlikely .... to prevail when the [speaker’s] allegations are so inherently improbable that only a reckless man would have put them in circulation.” St. Amant v. Thompson, supra, 732. Only a reckless person would publicly disseminate the statement as made. The defendant’s “in pectora” adjectival modification of “sympathizer” by the word “unconscious” does not suffice to lead us to any other conclusion than that, by clear and convincing evidence, he made a defamatory statement about the plaintiff with reckless disregard as to whether it was true or false. Our independent review compels us to conclude that the defendant acted with actual malice as defined by New York Times Co. v. Sullivan, supra.

There is error, the judgment is set aside and the case is remanded to the trial court with direction to render judgment for the plaintiff on the issue of liability and to conduct a hearing in damages.

In this opinion the other judges concurred.

       The law relating to broadcasting of defamatory matter by means of radio is the same as the law relating to a publication appearing in a newspaper. See 3 Restatement (Second), Torts § 568A; see also Charles Parker Co. v. Silver City Crystal Co., 142 Conn. 605, 611-12, 116 A.2d 440 (1955).

       The trial court rendered a default judgment against the defendant K.N.D. Corporation for failure to appear at trial. K.N.D. Corporation is not involved in this appeal. As used in this opinion, the defendant refers to Wilbur Smith.

       Although the defendant specifically invoked the free speech provision of the Connecticut constitution in his special defense, the case was tried and decided in the trial court, and briefed and argued in this court, solely with reference to federal constitutional principles. The defendant does not claim that the Connecticut constitution provides him with more protection than does the federal, and we have confined our review to federal constitutional principles.

       The plaintiff, in his brief, argues that the trial court’s finding that he was a public official should be the subject of an independent review of the entire record by this court in accordance with the mandate of Bose Corporation v. Consumers Union of United States, Inc., 466 U.S. 485, 104 S. Ct. 1949, 80 L. Ed. 2d 502 (1984). During oral argument, he abandoned this argument, conceding that the defendant’s interpretation of Bose as to this issue was correct, that is, that independent appellate review of the record in defamation cases is limited to whether actual malice has been established with convincing clarity.

       At oral argument, counsel for the appellant directed our attention to Bufalino v. Associated Press, 692 F.2d 266, 273 n.5 (2d Cir. 1982) and suggested that the expansion of the definition of a “public official” would deter persons from accepting government employment. Footnote five in Bufalino refers to minor town officials. Brown occupied the second highest position of city government in Hartford. He was not a minor town official.

       A public figure, as opposed to a public official, can recover damages for a defamatory falsehood upon a showing of “highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.” Curtis Publishing Co. v. Butts, 388 U.S. 130, 158, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967).

       The recent case of State v. Wilson, 199 Conn. 417, 438, 513 A.2d 620 (1986), states that whether or not a defendant has requested counsel prior to making a statement is a question of fact for the trial court and that it is preferable for an appellate court to refrain from choosing between two contradictory findings of fact by the trial court, either of which is capable of support in the evidence. It, therefore, remanded the case for a relitigation of whether the defendant had requested counsel. The decision is silent as to whether the ultimate issue of the voluntariness of the confession, had that question been reached, would have required an independent appellate review. See Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378, reh. denied, 452 U.S. 973, 101 S. Ct. 3128, 69 L. Ed. 2d 984 (1981).


source: Caselaw Access Project

author: Hull, J.

license: Public Domain

text:
    Henry E. Keppel, Jr., et al. v. BaRoss Builders, Inc.
    (3564)
    Hull, Daly and Bieluch, Js.
    Argued April 2 —
    decision released May 20, 1986

      Steven J. Errante, for the appellant (defendant).

      David J. Peska, for the appellees (plaintiffs).
   Hull, J.

The defendant, BaRoss Builders, Inc., appeals from the judgment which a state trial referee, exercising the powers of the Superior Court, rendered in favor of the plaintiffs, Henry E. Keppel, Jr., and Marilyn L. Keppel, on their suit against the defendant based on claimed deficiencies in its construction of a residence for them. The plaintiffs’ amended complaint was in four counts: breach of contract; failure to complete work contracted for, and completion of some of the work in an unworkmanlike manner; negligent performance of services; and breach of implied warranties under General Statutes § 47-118. The defendant filed three special defenses essentially claiming that it tried to make some of the repairs and complete certain work, but that it was refused entry into the plaintiffs’ house to do so. The court found for the plaintiffs on the first, second and fourth counts. It awarded $28,000 to raise the house as required to remedy one of the deficiencies, $3393 for miscellaneous repairs, and $11,890 in interest, for a total judgment of $43,283. We find no error.

The defendant claims two errors: (1) that the trial court incorrectly measured the amount of damages, and improperly awarded interest at 8 percent per year from the return date, November 20,1979, to the date of judgment; and (2) that the state trial referee, Hon. Philip R. Pastore, improperly declined to disqualify himself from hearing the case even though he had previously heard the plaintiffs’ demand and the defendant’s offer, and had previously stated that the defendant’s president was playing fast and loose with the court.

The trial court found the following facts. Under a sales agreement dated October 6,1978, the defendant, owner of a parcel of land, agreed to build a house on the lot for the plaintiffs according to certain specifications. The total cost was to be $123,800. The height of the basement should have been seven feet eight inches, as reflected in the building permit the defendant obtained, but instead it varied from six feet eight to six feet nine inches. The greater height was required by the building code if the basement was to be used as a living space. The defendant had reason to know that the plaintiffs intended to so use it. The specifications called for a walk-out glass sliding door and other construction features were consistent with such a use of the basement. The plaintiffs did not become aware of the deficiency in the height of the basement until after taking title. To make the basement height seven feet eight inches would require either the lowering of the basement floor, or the raising of the house. There was expert testimony disapproving the lowering of the floor for reasons including water and construction conditions, and recommending instead the raising of the house to obtain the requisite basement height.

The defendant first claims that the trial court erred in awarding $28,000 for raising the house rather than adopting the cheaper remedy of lowering the floor. By so doing, it is in essence asking us to retry the facts. This we cannot do. Jones v. Litchfield, 1 Conn. App. 40, 42, 467 A.2d 936 (1983), cert. denied, 192 Conn. 802, 470 A.2d 1218 (1984).

The defendant next claims that because its expert testified that $1500 to $2000 represented the reasonable cost of lowering the floor, the court’s award of $28,000 to raise the house constituted unreasonable economic waste. “ ‘As a general rule, in awarding damages upon a breach of contract, the prevailing party is entitled to compensation which will place him in the same position he would have been in had the contract been properly performed. Bertozzi v. McCarthy, 164 Conn. 463, 468, 323 A.2d 553 [1973]; Sabo v. Strolis, 148 Conn. 504, 506, 172 A.2d 609 [1961]. Such damages are measured as of the date of the breach. Bachman v. Fortuna, 145 Conn. 191, 194, 141 A.2d 477 [1958]; Lee v. Harris, 85 Conn. 212, 214, 82 A. 186 [1912]; 22 Am. Jur. 2d, Damages § 52. For a breach of a construction contract involving defective or unfinished construction, damages are measured by computing either “(i) the reasonable cost of construction and completion in accordance with the contract, if this is possible and does not involve unreasonable economic waste; or (ii) the difference between the value that the product contracted for would have had and the value of the performance that has been received by the plaintiff, if construction and completion in accordance with the contract would involve unreasonable economic waste.” Restatement, 1 Contracts § 346 (1) (a), p. 573; see annot., 76 A.L.R.2d 805, 812 § 4.’ Levesque v.D & M Builders, Inc., 170 Conn. 177, 180-81, 365 A.2d 1216 (1976).” Barnicoat v. Edwards, 1 Conn. App. 652, 654-55, 474 A.2d 808 (1984).

The trial court, in its memorandum of decision, made clear that it was using the reasonable cost of construction and completion in accordance with the contract as the measure of damages. It made no finding, however, as to whether completion of the contract would involve unreasonable economic waste. The defendant did not seek, pursuant to Practice Book § 3082, to have the court articulate its decision in this regard. It is the appellant’s burden to furnish us with an adequate appellate record on which to review the basis of the decision of the trial court. Since the defendant failed to meet this burden, we have no basis on which to find error. Pointina Beach Assn., Inc. v. Stella, 1 Conn. App. 341, 343, 471 A.2d 970 (1984).

The defendant also claims error in the trial court’s allowance of interest as an element of damages. This determination is primarily an equitable one. It was, additionally, a matter lying within the discretion of the trial court. Bertozzi v. McCarthy, 164 Conn. 463, 467, 323 A.2d 553 (1973). The defendant does not claim that the court could not award interest on equitable considerations or that its doing so was an abuse of discretion. Rather, it claims that the amount of interest awarded was inequitable because the award of damages for raising the house was improperly measured. This claim of error falls along with the claim on which it depends.

The defendant’s final claim of error is based on the state trial referee’s refusal to disqualify himself after hearing the plaintiffs’ demand and the defendant’s offer, and after stating that the defendant’s president was playing fast and loose with the court. During a hearing on January 15, 1984, counsel for the plaintiffs read into the record that the defendant would transfer to the plaintiffs an attached lot in full satisfaction of the plaintiffs’ claims. Three conditions were attached to this agreement. On May 24, 1984, the plaintiffs reported to the court that two of the three conditions had been met and that the defendant would not go along with the “stipulation.” The defendant claimed that the first two conditions were not resolved by March 1, and accordingly, the proposed agreement became inoperative on that date pursuant to a clause in the agreement. At this point, defense counsel also stated that Thomas L. BaRoss, the defendant’s president, was psychologically incapable of testifying. After further colloquy between counsel, the trial court stated: “Now, I must say that the impression that I get with reference to Mr. BaRoss is that he’s been playing fast and loose with his attorney and with the court. I expected Mr. BaRoss to be here this morning.” The court further stated: “I might say at that time this critical status of the period of March 1 that has been projected this morning did not appear to be in the air. Which is one of the situations, together with everything that happened in the past, to make me believe that Mr. BaRoss is playing fast and loose in this case. . . .”

The court then denied the plaintiffs’ request that it order the property transferred, finding that the agreement did not amount to a definite stipulation. Counsel for the plaintiffs objected to the ruling and stated that there was an agreement, and that there was no testimony that the plaintiffs had to adhere to a March 1 date in removing the conditions which were part of the claimed agreement. At this point, counsel for the defendant requested that the referee disqualify himself based on the statements that had been made about BaRoss playing fast and loose with the court. The referee noted the defendant’s motion but refused to disqualify himself. Later that day, counsel for the defendant reiterated his demand that the referee disqualify himself, claiming that not only did the parties discuss settlement in terms of a particular piece of property, but they also discussed the possible value of that piece of property.

“The standard to be employed [in evaluating a motion for recusal] is an objective one, not the judge’s subjective view as to whether he or she can be fair and impartial in hearing the case. In Connecticut, the disqualification of judges is governed by General Statutes § 51-39 and Canon 3 (C) of the Code of Judicial Conduct. Under Canon 3 (C) (1) of the Code of Judicial Conduct ‘[a] judge should disqualify himself [or herself] in a proceeding in which his [or her] impartiality might reasonably be questioned . ’ (Emphasis added.) ‘Any conduct that would lead a reasonable [person] knowing all the circumstances to the conclusion that the judge’s “impartiality might reasonably be questioned” is a basis for the judge’s disqualification. Thus, an impropriety or the appearance of impropriety . . . that would reasonably lead one to question the judge’s impartiality in a given proceeding clearly falls within the scope of the general standard . . . .’ Thode, Reporter’s Notes to Code of Judicial Conduct (1973), pp. 60-61. ‘The question is not whether the judge is impartial in fact. It is simply whether another, not knowing whether or not the judge is actually impartial, might reasonably question his [or her] impartiality, on the basis of all of the circumstances.’ Rice v. McKenzie, 581 F.2d 1114, 1116 (4th Cir. 1978); see Spires v. Hearst Corporation, 420 F. Sup. 304, 307 (D. Cal. 1976).” Papa v. New Haven Federation of Teachers, 186 Conn. 725, 744-46, 444 A.2d 196 (1982).

We consider first the referee’s refusal to recuse himself on the basis of the proposed settlement read into the record. The defendant relies on the strong language in Krattenstein v. G. Fox & Co., 155 Conn. 609, 236 A.2d 466 (1967), that “when a jury are ultimately to determine the issues of liability and damages, a question is not likely to arise as to the disqualification of the judge who conducted the pretrial hearing and who thereafter presides over the trial of the case. When, however, a judge engages in a chambers conference looking to the settlement of a case which he is about to try as a court and in which he will be called upon to decide the issues of liability and damages, quite a different situation prevails. It is then impossible to avoid questions as to whether the judge can disregard, on the trial, matters disclosed in the conference but unmentioned during the trial and whether a preliminary judgment, formed at the conference and predicated on unsubstantiated claims of proof, may have some subtle influence on a final judgment after a full hearing. It is inevitable that the basis is laid for suspicion, no matter how unfounded or unjustified it may be, and that failure to concur in what the judge may consider an adequate settlement may result in the imposition, upon a litigant or his counsel, of some retributive sanction or the incurrence of judicial displeasure.

“For a judge in chambers to solicit or receive the opinion of counsel as to the dollar value of a court case which he is to hear; to express not only his opinion as to that dollar value but, after that opinion has been conveyed to a party, to persist in his efforts at settlement by requesting counsel again to convey it to his client; and, on further refusal of the litigant to accede to the judge’s proposal, to hear the case and render judgment is a procedure which inevitably raises in the minds of litigants, as well as counsel, as it did in this instance, a suspicion as to the fairness of the court’s administration of justice. It is a procedure which is inconsistent with the proper exercise of the judicial function and one which we do not approve.” Id., 614-15.

Krattenstein does not, however, support the defendant’s position for two reasons. First and foremost, the defendant makes no claim that the trial court discussed the proposed settlement in chambers or that he was an advocate for a particular settlement of the case. It is this element of the judge’s involvement in and commitment to the proposed settlement that distinguishes Krattenstein. A similar situation was present in State v. Watson, 198 Conn. 598, 611, 504 A.2d 497 (1986), where the defendant claimed error in the trial court’s failure to recuse itself from hearing his motion to withdraw his guilty pleas. The defendant alleged that he had been coerced into pleading guilty because of the collusion of the court with counsel for the state and for the defense. In answering that claim, the Supreme Court held that: “[i]n the absence of a showing, on the record, that the trial court had been an active participant in negotiating the plea bargain, the trial court was entitled to reject such a conclusory allegation as warranting no further consideration. See State v. Lopez, 197 Conn. 337, 348-50, 497 A.2d 390 (1985); State v. Gradzik, 193 Conn. 35, 44-48, 475 A.2d 269 (1984); Hartford Federal Savings & Loan Assn. v. Tucker, 192 Conn. 1, 8, 469 A.2d 778 (1984).” State v. Watson, supra, 611.

We conclude, additionally, that the defendant waived any objection to the court’s continuing to hear the case by participating in the various recitals of the proposed settlement and its progress. Counsel for the defendant did not voice the issue of disqualification until it became clear that his most important witness, the president of the defendant corporation, would not testify. This is the very “sandbagging” technique that the Krattenstein court discountenanced when it went on to state: “Although the proper course, under such circumstances, would be for the judge to decline to hear the case, ‘[w]hen any judge is disqualified to act in any proceeding before him, he may act if the parties thereto consent in open court.’ General Statutes § 51-39. Neither the judge, nor either of the parties suggested the possibility of disqualification in this case. On the contrary, the plaintiff not only failed to raise any question as to the judge’s disqualification to sit on the case but affirmatively objected to any postponement or continuance of the trial. A motion made at the commencement of the trial that the judge disqualify himself by reason of the proceedings in chambers might well have been granted, and, if it was denied, the ruling would be a proper subject of review by this court on appeal. As the case stands, not only has the claim been waived but it has also not been seasonably raised.” Krattenstein v. G. Fox & Co., supra, 615-16.

In Timm v. Timm, 195 Conn. 202, 487 A.2d 191 (1985), defense counsel did not object to settlement conferences with the trial referee and instead raised the issue for the first time on appeal. The Supreme Court found that “[t]he conduct of the defendant in this case, in failing to raise the issue of the referee’s disqualification either before or during the trial, can be construed as the functional equivalent of ‘consent in open court’ to [the referee’s] presiding over the trial. See General Statutes § 51-39 (c) . . . .” Timm v. Timm, supra, 205.

The defendant finally claims error in the referee’s failure to recuse himself because he said on three occasions that the defendant’s president was “playing fast and loose with the court.” These comments referred to the erratic conduct of BaRoss concerning whether and when he would testify, with the result being delays and uncertainties in scheduling the case. This statement showed some agitation no doubt. Above all, it showed that a judge is a human being, not the type of unfeeling robot some would expect the judge to be. Such a passing display of exasperation, though worsened by its repetition, falls far short of a reasonable cause for disqualification for bias or prejudice under Canon 3 (C) of the Code of Judicial Conduct. These statements indicate no opinion as to the untruthfulness of BaRoss, nor any prejudice or predisposition in the consideration of the evidence. Thus, the defendant’s reliance on Cameron v. Cameron, 187 Conn. 163, 170, 444 A.2d 915 (1982), where the trial judge intemperately stated his belief that the defendant or his counsel was “attempting to perpetrate a fraud” upon the court and that the defendant “lied under oath” at his deposition, does not support this claim of error.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 51-39 (a) concerns disqualification by relationship or interest and is not involved here.

       Canon 3 (C) of the Code of Judicial Conduct provides in pertinent part: “C. Disqualification. (1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where: (a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding . . . .”


text:
    State of Connecticut v. Mark Sergi
    (2221)
    Hull, Borden and Daly, Js.
    Argued December 12, 1985 —
    decision released May 20, 1986

      Barbara Goren, special public defender, for the appellant (defendant).

      Roland D. Fasano, assistant state’s attorney, with whom, on the brief, was Arnold Markle, state’s attorney, for the appellee (state).
   Hull, J.

The defendant was charged with robbery in the first degree in violation of General Statutes § 53a-134 (a) (1) and (3) and larceny in the first degree in violation of General Statutes (Rev. to 1979) § 53a-122 (a) (2). After a trial to a jury, he was convicted of both charges and was sentenced to ten to twenty years imprisonment for the robbery conviction and five to ten years imprisonment for the larceny conviction. The defendant appeals from the judgment of conviction claiming that the trial court erred (1) in imposing consecutive sentences on each conviction, (2) in charging the jury on how to evaluate the credibility of an accomplice’s testimony, (3) in denying his motion in limine to prevent the state from introducing evidence of his prior felony convictions, and (4) in admitting testimony that he had a shotgun in his house. He also asserts that he was denied effective assistance of counsel. We find no error.

The jury could reasonably have found the following facts. In September of 1980, Joseph Fappiano was employed as a cook at Valentino’s restaurant on Whitney Avenue in Hamden. His duties included closing the restaurant at night and taking home the restaurant’s proceeds for future deposit. On September 7, 1980, Fappiano finished closing at approximately 1:30 a.m., and then left with Bill Purgatore, a waiter who worked at the restaurant. Purgatore went to his car at the front of the restaurant while Fappiano entered his car parked at the rear of the restaurant. After getting into his car, Fappiano placed a bag containing the restaurant proceeds on his front passenger seat. He then discovered that something was wrong with one of his tires. He did not stop to fix it, however, because Purgatore had already left and the parking lot was very dark. Rather, Fappiano left the parking lot, assuming he could reach home. Fappiano drove for a short time but was forced to stop when the tire deteriorated. After Fappiano stopped, a car owned and driven by Mark Reamer, pulled in front of his car. Inside that car were Reamer, Frank Wager, the defendant and another individual. Wager, a former employee at the restaurant, had occasionally stayed with Fappiano while he closed the restaurant. The defendant and the other man got out. Either the defendant or the other man went over to the driver’s side of Fappiano’s car. Fappiano rolled his window down and the individual then pulled an object from his belt, grabbed Fappiano, and hit him several times on various parts of his head, causing profuse bleeding. The man who had not injured Fappiano went to the passenger side of the car and grabbed the bag containing the restaurant’s proceeds. The defendant and the other man then ran back to the car with the money and fled.

The defendant first claims that the trial court, by imposing consecutive sentences for his convictions of robbery and larceny, violated his constitutional right not to be punished twice for the same offense. In support of this claim, the defendant argues that robbery in the first degree and larceny in the first degree both constitute the offense of larceny with the only distinction being that robbery in the first degree is aggravated by the amount of force used, while larceny in the first degree is aggravated by the amount of property taken. Because the offenses are legally the same, the defendant contends, the trial court could not, consistent with the double jeopardy clause of the fifth amendment, impose consecutive sentences for his convictions of both.

The defendant acknowledges that this claim was not raised below but asserts that it is, nevertheless, reviewable under the fundamental rights-fair trial exception established by State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). While the state does not argue that this claim is not reviewable under Evans, we hold that it is not. See State v. Cosby, 6 Conn. App. 164, 166, 504 A.2d 1071 (1986) (state’s concession of reviewability under Evans not binding on this court).

Appellate review under Evans of a claim of error not raised below is appropriate only where “the record adequately supports a claim that a defendant has clearly been deprived of a fundamental constitutional right and a fair trial.” State v. Torrence, 196 Conn. 430, 435, 493 A.2d 865 (1985). The defendant’s double jeopardy claim certainly implicates a fundamental constitutional right. “The prohibition of double jeopardy prevents not only multiple trials, but also multiple punishments for the same offense in a single trial. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977).” State v. Devino, 195 Conn. 70, 73, 485 A.2d 1302 (1985). The defendant’s claim that larceny in the first degree and robbery in the first degree constitute the same offense has been definitively and recently rejected by our Supreme Court in State v. Boucino, 199 Conn. 207, 224, 506 A.2d 125 (1986). The defendant in Boucino, as the defendant in this case, contended that sentencing on both his conviction for robbery in the first degree and his conviction for larceny in the first degree violated his double jeopardy right to be free from multiple punishments for the same offense. Applying the test established by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932), our Supreme Court determined that because each offense requires proof of a fact which the other does not, the two offenses are not the same offenses for double jeopardy purposes. State v. Boucino, supra, 224. Accordingly, the record does not adequately support the defendant’s contention that he has clearly been deprived of his fifth amendment right, and we therefore decline to review this claim of error.

The defendant’s second claim is that the trial court erred by failing to instruct the jury on the proper standard to apply when evaluating the credibility of accomplice testimony. At the defendant’s trial, Mark Reamer, the owner and driver of the car involved in the robbery, testified and implicated the defendant. He also testified that he had participated in the crime unwittingly, and that he had pleaded guilty to aiding a robbery and had received a suspended sentence. While the trial court instructed the jury that Reamer’s testimony should be “carefully scrutinized with a view to . . . evaluating [his] interest or bias,” it did not, the defendant claims, tell the jury to consider Reamer’s status as a “self-confessed criminal.” It is this omission that the defendant claims constituted error.

The defendant’s argument is without merit. While the court did not charge in the exact language suggested by the defendant, it did point out that Reamer had pleaded guilty to aiding robbery, that he had received payment for giving information to the police, and that there had been testimony that he had admitted his participation in the crime. The essence of the defendant’s claim, therefore, is that the trial court did not use the words “self-confessed criminal” and did not properly emphasize the witness’ status. While the trial court does have the duty “ ‘to caution the jury to scrutinize carefully [accomplice] testimony’ State v. Shindell, 195 Conn. 128, 142, 486 A.2d 637 (1985), quoting State v. Ferrara, 176 Conn. 508, 512, 408 A.2d 265 (1979); there are no magic words it must use in doing so. State v. Colton, 174 Conn. 135, 141, 384 A.2d 343 (1977). Here, the point that must be included in a trial court’s instruction on accomplice testimony, namely, that the jury should closely scrutinize the testimony to determine whether or not it is reliable, was fully covered. “Failure to charge precisely as proposed by a defendant is not error where the point is fairly covered in the charge.” State v. Colton, supra, 141.

The defendant’s third claim is that the trial court erred in denying his motion in limine through which he sought to obtain a ruling prohibiting the state from impeaching him with three prior convictions. The defendant did not testify and the evidence, therefore, was not admitted. He argues, however, that the ruling was harmful because it deterred him from exercising his constitutional right to testify.

While a defendant in a criminal case does enjoy a constitutional right to testify; State v. Harrell, 199 Conn. 255, 263, 506 A.2d 1041 (1986); “it has been recognized that [this right] does not carry with it a right to prohibit impeachment by prior convictions.” Id. Accordingly, under General Statutes § 52-145 (b), as interpreted by our Supreme Court, the state may for impeachment purposes introduce evidence showing that a defendant has been convicted of a crime if the maximum permissible penalty for that crime is imprisonment for more than one year. State v. Braswell, 194 Conn. 297, 307, 481 A.2d 413 (1984), cert. denied, 469 U.S. 1112, 105 S. Ct. 793, 83 L. Ed. 2d 786 (1985). Such evidence is not automatically admissible, however. The trial court must first determine that the prejudicial effect of its admission will not far outweigh its probative value. Id., 307.

The determination of whether to admit prior convictions is within the discretion of the trial court, and its decision will be overturned on appeal only where the defendant shows that an abuse of discretion occurred. State v. Binet, 192 Conn. 618, 624, 473 A.2d 1200 (1984). An appellate court should consider three factors when determining whether the trial court abused its discretion in deciding to admit prior conviction testimony: (1) the prejudice the defendant would have suffered by admission of the evidence; (2) the significance of the prior crime as bearing on the defendant’s truthfulness; and (3) the remoteness of the prior conviction. State v. Geyer, 194 Conn. 1, 11, 480 A.2d 489 (1984).

Here, the defendant who was on trial for larceny in the first degree and robbery in the first degree, sought to prevent the admission of three convictions: a 1973 conviction for criminal attempt to commit robbery in the third degree; a 1978 conviction for burglary in the third degree; and a 1978 conviction for assault in the second degree. The defendant claims that because his prior convictions were for crimes similar to the ones with which he was charged, the prejudice that would have been generated by their admission was great. In support of this claim, he emphasizes that his conviction for attempted robbery in the third degree was extremely similar to the robbery in the first degree and larceny in the first degree charges on which he was being tried. He also argues that his prior burglary conviction, while statutorily distinct from robbery and larceny, was sufficiently similar to raise a realistic possibility that the jury would have inferred propensity to commit larceny related crimes. Finally, he asserts that the prior assault conviction was closely related to the pending charges. The attack on Fappiano, the defendant claims, was a central feature of the robbery for which he was on trial. Accordingly, the question of whether he was capable not only of larceny but also of injuring someone was a crucial question at his trial. On the basis of the similarity between the prior convictions and the pending crimes, the defendant claims that the trial court erred in denying his motion in limine.

Where the state seeks to impeach a defendant by introducing evidence of his prior convictions, the possibility for prejudice is always present. The likelihood that this will occur is, as the defendant claims, greater where the prior convictions are for crimes similar to the crimes for which the defendant is being tried. State v. Nardini, 187 Conn. 513, 522, 447 A.2d 396 (1982). Merely because the prior convictions are similar to the pending charges, however, does not mean, as the defendant seems to claim, that the prior convictions are automatically inadmissible. State v. Binet, supra, 622. Rather, the defendant bears the burden of showing the court the specific type of harm that would occur if the evidence were introduced. Id., 624. This the defendant did not do. “Here, the record indicates that the defendant’s argument in support of his motion amounted to little more than a perfunctory recitation of the prior conviction[s], a conclusory statement as to [their] prejudicial effect, and a request for a ruling. . . . Given the meager showing of potential harm put forth by the defendant, the trial court’s conclusion that the defendant had not satisfied his burden of showing overriding prejudice was not unreasonable.” State v. Braswell, supra, 308-309.

The defendant’s fourth claim is that the trial court erred in refusing to strike testimony that he had a gun in his apartment the day after the robbery and in denying his motion for a mistrial based on the admission of that testimony. At the defendant’s trial Dale Baber, Frank Wager’s roommate, testified and implicated the defendant in the robbery. While testifying, Baber also stated that he had seen a shotgun in the defendant’s apartment and that the shotgun was shorter than a regular shotgun. The defendant objected to admission of the testimony claiming, inter alia, that it was highly prejudicial and irrelevant because the state had not properly connected the shotgun to the crime with which the defendant was charged. He- moved for a mistrial based on admission of the evidence and, in the alternative, asked the trial court to strike the testimony. After hearing extensive argument, the trial court denied the defendant’s motion for a mistrial and the defendant excepted. The court also declined to strike the testimony and the defendant again excepted.

The state is prohibited from admitting evidence that the defendant possessed “ ‘instruments or articles adapted to the commission of other crimes’ State v. Acklin, 171 Conn. 105, 114, 368 A.2d 212 (1976), quoting State v. Groos, 110 Conn. 403, 407, 148 A. 350 (1930); unless it can show that the evidence has probative force concerning the charges on which the defendant is being tried. State v. Acklin, supra, 114. This rule is based on an acknowledgment that the prejudice generated by admission of such evidence is likely to be high. Accordingly, the evidence should be introduced only where its probative value outweighs its prejudicial effect. State v. Onofrio, 179 Conn. 23, 29, 425 A.2d 560 (1979). The probative value of such evidence is great where “ ‘it tends to establish a fact in issue or to corroborate other direct evidence in the case.’ ” State v. Acklin, supra, 114, quoting State v. Groos, supra, 407.

One fact in issue during the defendant’s trial was whether he, or another participant in the crime, had used or threatened to use a dangerous instrument. See General Stautes § 53a-134 (a) (3). A dangerous instrument is defined as “any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury . . . .” General Statutes § 53a-3 (7). The defendant does not contend that a shotgun could not be a dangerous instrument within the meaning of General Statutes § 53a-3 (7), but rather asserts that there was insufficient testimony that the object used was a shotgun, in order to overcome the prejudicial effect its admission generated.

While the testimony connecting the shotgun to the robbery and assault was minimal, it was sufficient to permit introduction of the evidence. When the state offered the shotgun testimony, it had already elicited testimony from Fappiano that he was hit several times with a short steel object, that he bled profusely as a result of the attack and that his car was scratched when it was hit by the unknown object. This testimony, which is consistent with the use of the shotgun as the object which caused Fappiano’s injuries, was sufficient to establish the required nexus between the shotgun and the robbery.

The defendant’s final claim is that he was denied effective assistance of counsel. Our Supreme Court has recently held that “all of the claims of ineffective assistance, those arguably supported by the record as well as others requiring an evidentiary hearing”; State v. Leecan, 198 Conn. 517, 541, 504 A.2d 480 (1986); must be pursued in a habeas proceeding. Accordingly, we will not review this claim.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-134 provides in pertinent part: (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime; or . . . (3) uses or threatens the use of a dangerous instrument . . . .”

       General Statutes (Rev. to 1979) § 53a-122, provides in pertinent part: “(a) A person is guilty of larceny in the first degree when: ... (2) the value of the property or service exceeds two thousand dollars.”

       The defendant also argues that application of the Blockburger test to larceny offenses would lead to results not intended by the legislature. It is true that “the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed.” Albernaz v. United States, 450 U.S. 333, 334, 101 S. Ct. 1137, 67 L. Ed. 2d 275 (1981). Our Supreme Court’s decision in State v. Boucino, 199 Conn. 207, 506 A.2d 125 (1986), however, resolves the question of whether the legislature intended to authorize cumulative punishment for convictions of robbery in the first degree and larceny in the first degree.

       While the defendant did not except to that facet of the trial court’s charge to the jury which he now challenges, he did submit a written request to charge asking the court to instruct the jury on this area. Accordingly, we reject the state’s contention that this claim was not properly preserved. See Practice Book § 854.

       The state, relying on the United States Supreme Court’s decision in Luce v. United States, 469 U.S. 38, 105 S. Ct. 460, 83 L. Ed. 2d 443 (1984), urges this court not to review this claim of error because the defendant did not testify. Our Supreme Court, in State v. Harrell, 199 Conn. 255, 265, 506 A.2d 1041 (1986), chose to follow Luce. It also determined, however, to apply, prospectively only, the Luce requirement that a defendant testify to preserve the claim of error “in order that those defendants who have relied on previous decisions of this court that did not require a defendant to testify will not be prejudiced by this rule.” Id., 267. Accordingly, we will review the defendant’s claim of error.

       To prove that the defendant committed robbery in the first degree, as charged in the information, the state had to prove that the defendant used or threatened to use immediate physical force upon another person and that the defendant, or another participant in the crime, either caused serious physical injury to another person or used or threatened to use a dangerous instrument. See General Statutes § 53a-134 (a) (1) and (3).

       We note that while the degree of prejudice likely to result from admission of the defendant’s prior robbery and burglary convictions was high, so too was the probative value of those convictions. Both prior convictions were for crimes which reflect adversely on the defendant’s honesty. See State v. Nardini, 187 Conn. 513, 526, 447 A.2d 396 (1982) (breaking and entering with criminal intent implies dishonesty); State v. Geyer, 194 Conn. 1, 12, 480 A.2d 489 (1984) (crimes indicating larcenous intent imply a general disposition toward dishonesty); State v. Schroff, 3 Conn. App. 684, 688, 492 A.2d 190 (1985) (burglary conviction implies dishonesty). Prior convictions for crimes involving dishonesty, do “bear heavily on the credibility of one who has been convicted of them. The probative value of such convictions, therefore, may often outweigh any prejudice engendered by their admission.” State v. Geyer, supra. Additionally, these two convictions, five years old and ten years old, were not so remote that they no longer retained any “viability for impeachment purposes.” State v. Nardini, supra, 528. This is especially so since remoteness is less of a consideration where the prior convictions are for crimes involving dishonesty. See State v. Nardini, supra, 526.

       The state asserts that this claim of error should not be reviewed because the defendant did not make a timely objection to admission of the testimony. Before the defendant objected on the grounds he now presses, he allowed the state to elicit the testimony that Baber saw a shotgun in the defendant’s apartment, that it was small shotgun and that Baber believed that a sawed-off shotgun is smaller than a regular shotgun. While the state is correct in pointing out that the defendant did not object as promptly as he might have, the omission does not render this claim unreviewable. The goal of requiring a prompt objection and exception, so that the trial court will be made aware of potential claims of error in time to take appropriate corrective action; State v. Jackson, 3 Conn. App. 132, 135, 485 A.2d 934 (1985); was fully satisfied by the defendant’s objection.

       The defendant claims that testimony about the shotgun could not be admitted because of our Supreme Court's decision in State v. Williams, 182 Conn. 262, 438 A.2d 80 (1980). We disagree. While Williams is factually similar to this case, it is legally distinct. In Williams, the defendants were charged with robbery in the first degree. The Supreme Court determined that testimony very similar to the testimony in this case was insufficient to connect a gun found on one of the defendants with the crimes with which the defendants were charged. Accordingly, it held that the trial court erred in admitting the gun into evidence. The defendants in Williams, however, were charged with having committed robbery while armed with a deadly weapon. A deadly weapon has a very specific statutory definition: “any weapon, whether loaded or unloaded from which a shot may be discharged, or a switchblade knife, gravity knife, billy, blackjack, bludgeon or metal knuckles. . . .” (Emphasis added.) General Statutes § 53a-3 (6). Here, in contrast, the defendant was charged with having committed robbery with the use or threatened use of a dangerous instrument. A dangerous instrument is defined as “any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury . . . .” (Emphasis added.) General Statutes § 53a-3 (7). Under this definition, to show that an object is a dangerous instrument, all the state need show is that it was, under the circumstances, capable of causing death or serious physical injury.

       The defendant also claims that the testimony was inadmissible because Fappiano had told the police officer investigating the case that he was sure that the object used to hit him had not been a gun. This is not, however, dispositive of the issue. It was within the province of the jury to reject this aspect of Fappiano’s testimony. “It is the jury’s role, not ours, to evaluate conflicting evidence.” State v. Waterman, 7 Conn. App. 326, 340, 509 A.2d 518 (1986).


author: Bieluch, J.

text:
    State of Connecticut v. Thomas Timmons
    (3078)
    Dupont, C. J., Spallone and Bieluch, Js.
    Argued December 5, 1985 —
    decision released May 20, 1986

      Eugene J. Riccio, public defender, for the appellant (defendant).

      Robert A. Lacobelle, assistant state’s attorney, with whom, on the brief, was Donald A. Browne, state’s attorney, for the appellee (state).
   Bieluch, J.

The defendant was arrested on April 23, 1983, and charged with the murder of Robert L. Smith. Over the objection of the defendant, the state’s attorney submitted the matter to a grand jury. On June 30, 1983, the grand jury returned a true bill of indictment against the defendant for murder, a violation of General Statutes § 53a-54a (a). The defendant was tried before a jury of twelve and convicted of the lesser included offense of manslaughter in the first degree, a violation of General Statutes § 53a-55 (a) (1). He was sentenced to a term of imprisonment for twenty years. The defendant has appealed from the judgment of conviction, claiming that the trial court erred: (1) in denying him his constitutional right to a probable cause hearing; (2) in its instructions to the jury on the issue of his flight; (3) in its instructions to the jury on certain inculpatory statements made by him while in police custody; and (4) in its instructions to the jury on the issue of self-defense. We find no error.

The following facts are not in dispute. In early morning, April 23, 1983, the defendant entered Jackson’s Cafe in Bridgeport. Once inside, he encountered his ex-girlfriend, Vera Robinson, in the company of the victim, Robert L. Smith. Robinson had recently severed her relationship with the defendant. The defendant briefly confronted Smith before drawing a handgun and firing a shot toward him. A few seconds later, the defendant fired a second shot. The victim then fell to the floor. He died several hours later from a single gunshot wound. The defendant left the cafe immediately after the shooting and disposed of the handgun in a river. After hiding out for several days, he surrendered to the police.

The defendant was taken into custody and advised of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The defendant refused to waive these rights. While being transported for arraignment, the defendant began to mumble to himself. One of the attending police officers asked him what he was saying. The defendant responded, “I didn’t really mean to shoot him, it was an accident. I’m really sorry.” While in the back seat of the police cruiser, the defendant continued to mumble to himself. He paused for a while and then said, “I only remember firing two shots, but the people there said there were four shots or more.” At that point, the officer began questioning the defendant about the shooting.

On June 30,1983, prior to the submission of the matter to the grand jury, the defendant’s counsel requested that the defendant be granted a probable cause hearing. This motion was denied and the defendant’s exception was noted. On the same day, the grand jury returned a true bill of indictment for murder, a violation of General Statutes § 53a-54a (a).

After the close of the evidence at trial, the defendant submitted a request to charge the jury on the issue of the defendant’s flight following the shooting. This request stated that evidence of the defendant’s flight “does not raise a presumption of the defendant’s guilt and by itself is but scant or weak evidence of his guilt.” As to the issue of the defendant’s incriminatory statements, the defendant requested that the jury be instructed that such statements alone are insufficient to prove that the defendant committed the crime charged. They must be substantially corroborated by other material and substantial evidence that the crime charged was committed by someone. The defendant also requested that the jury be instructed on the issue of self-defense to the effect that an attempt to draw a gun serves as a sufficient appearance of necessity to justify the use of deadly physical force in self-defense. The requested instruction stated, in part, “one knowing his life to be threatened, and believing himself to be in danger of death or great bodily harm, need not remain at home to avoid assault, but may arm himself sufficiently to repel anticipated attack and pursue his legitimate avocation; and if, without fault, he is compelled to take life to save himself, the homicide is justifiable.” The trial court’s instructions on these issues did not follow the requested language, but did incorporate some, however not all, of the elements of the defendant’s requests to charge.

The trial court charged the jury on the elements of murder and of the lesser included offenses of manslaughter in the first degree, manslaughter in the second degree and criminally negligent homicide. The jury acquitted the defendant of the murder charge but found him guilty of committing manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1).

The defendant’s first claim on appeal alleges that he was denied his constitutional right to a probable cause hearing, as guaranteed by the constitution of Connecticut, amendment seventeen, adopted on November 24, 1982. The state concedes that the defendant was denied his constitutional right to a probable cause hearing, but maintains that the trial court’s denial of this right was harmless beyond a reasonable doubt because the defendant was acquitted of the murder charge when he was convicted of the lesser included charge of manslaughter in the first degree. We agree.

Article first, § 8, of the constitution of Connecticut was modified by amendment seventeen on November 24, 1982, to provide: “No person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law . . . . ” The enabling legislation enacted to implement this constitutional change, General Statutes § 54-46a (a), provides in pertinent part: “No person charged by the state on or after May 26, 1983, shall be put to plea or held to trial for any crime punishable by death or life imprisonment unless the court at a preliminary hearing determines there is probable cause to believe that the offense charged has been committed and that the accused person has committed it.” It is apparent from the record here that the trial court denied the defendant’s motion for a probable cause hearing because he was “charged” with murder prior to the statutory date, May 26, 1983. The court concluded, therefore, that the defendant had no right to a probable cause hearing under the provisions of General Statutes § 54-46a (a).

Subsequent to the trial court’s ruling on the defendant’s motion for a probable cause hearing, our Supreme Court struck down as unconstitutional that portion of General Statutes § 54-46a (a) which limited the constitutional right to a probable cause hearing to those persons “ ‘charged by the state’ on or after May 26, 1983.” State v. Sanabria, 192 Conn. 671, 699, 474 A.2d 760 (1984). The remainder of the act, however, was held to be valid. Id. The court held that “on May 26, 1983, the effective date of [General Statutes § 54-46a], all persons then being held for crimes punishable by death or life imprisonment, who had not yet been indicted by grand jury became entitled to a probable cause hearing before their cases went to trial, regardless of the dates on which they were arrested or charged by information.” (Emphasis in original.) Id.

It is undisputed that on May 26, 1983, the defendant was being held for the grand jury on a charge punishable by life imprisonment. It is equally clear, in light of the holding in State v. Sanabria, supra, that the defendant was denied his recently established constitutional right to a probable cause hearing. Recognition of this acknowledged error, however, does not end our inquiry. The state argues that the error, admittedly of a constitutional nature, was harmless beyond a reasonable doubt. See State v. Cohane, 193 Conn. 474, 484-85, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984).

In determining whether the deprivation of the defendant’s constitutional right to a probable cause hearing was harmless beyond a reasonable doubt, we must weigh the effect of an assumed finding of no probable cause at a properly conducted hearing upon the prosecution and defense in this case. Such a lack of probable cause to charge the defendant with murder would not have precluded the state from proceeding to trial against the defendant on the lesser included offense of manslaughter in the first degree upon information. See General Statutes (Rev. to 1983) § 54-46. Charged only with manslaughter, the defendant would have had no right to a probable cause hearing or any of the rights ancillary thereto.

We disagree with the defendant’s contention that the lack of a probable cause hearing rendered the subsequent criminal proceedings void ab initio. For a criminal proceeding to be void ab initio, there must be some defect as to the court’s jurisdiction over the subject matter or the person charged. See generally Spinella, Connecticut Criminal Procedure, pp. 4-8. It is evident that the trial court lacked jurisdiction over the subject matter of the murder charge because of the constitutional prohibition against trying a person for such a crime without granting him a prior probable cause hearing. It is equally clear, however, that the court had proper jurisdiction over the charge of manslaughter in the first degree. The state was entitled to prosecute the defendant for manslaughter solely on the basis of the original information charging murder filed prior to his arraignment upon his arrest on a warrant that issued after a magisterial finding of probable cause. While the information specifically charged the defendant with murder, it served also to give him notice of all lesser included charges, such as manslaughter in the first degree of which he was ultimately convicted. Jurisdiction of his person was properly obtained, and retained for his trial and conviction on the charge of manslaughter in the first degree.

The defendant’s remaining claims of error concern the trial court’s charge to the jury. The defendant challenges the instructions concerning the defendant’s flight from the scene, his alleged self-defense and his incriminatory statements made to the police.

Before we address each of these claims, we reaffirm those settled guidelines for reviewing a trial court’s refusal to grant a request to charge. “ ‘When a proper request is filed pursuant to Practice Book § 852 or exception is taken pursuant to § 854 the test is whether the charge properly covered the substance of the written request or properly and adequately covered the specific subject matter of the exception.’ State v. Kurvin, 186 Conn. 555, 561, 442 A.2d 1327 (1982). ‘The trial court is not under a duty in a criminal proceeding to charge in the identical language requested if its charge is accurate, adequate and, in substance, properly includes material portions of the defendant’s request; its responsibility is performed when it gives instructions to the jury in a manner calculated to give them a clear understanding of the issues presented for their consideration, under the offenses charged and upon the evidence, and when its instructions are suited to their guidance in the determination of those issues.’ State v. Harden, 175 Conn. 315, 322-23, 398 A.2d 1169 (1978).” State v. Harrell, 199 Conn. 255, 269, 506 A.2d 1041 (1986). The charge must be reviewed from the standpoint of its effect on the jury in guiding them to a proper verdict. State v. Fuller, 199 Conn. 273, 279, 506 A.2d 556 (1986).

The defendant requested that the jury be instructed that while the unexplained flight by the accused, in conjunction with the other facts of the case, may justify an inference of guilt, it does not raise a presumption of guilt and is by itself but scant or weak evidence of guilt. Supplementary to that request, he also asked that the jury be instructed that they could infer his innocence from his voluntary surrender to the police, along with the other facts of the case. The trial court charged the jury that flight was a form of circumstantial evidence which, when considered together with all the facts and circumstances of the case, may justify an inference of the accused’s guilt. This instruction was a proper statement of the relevant law on flight sufficient to guide the jury in its evaluation of the defendant’s guilt or innocence of any charge. The court did not charge, as requested by the defendant, on this issue in the negative, namely, that flight “does not raise a presumption of the defendant’s guilt.” While that would have been a correct supplementary statement of the law, the court’s failure to instruct the jury so did not make its charge deficient. The positive statement of a permissible inference of guilt is a sufficient explanation of the law without an express negative exclusion of a contradictory presumption of guilt. In view of the adequacy of its charge, the court did not have to caution the jury against finding a presumption of guilt from the defendant’s flight. The requested instruction was an accurate restatement of the law. There was no reason for the jury to consider that such a presumption was warranted.

The court also refused to charge that evidence of flight “is but scant or weak evidence of [the defendant’s] guilt.” Such a request was improper. It was not a statement of a proposition of law applicable to the facts of the case. The request was not “a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the facts supported by the evidence to which the proposition would apply.” Practice Book § 852. It is not error to refuse a charge which is contrary to the law. Slicer v. Quigley, 180 Conn. 252, 258, 429 A.2d 855 (1980). This requested charge was argumentative in nature and not an instruction of applicable law. The court properly charged the jury that the weight to be given to the evidence “is uniquely your function to determine.”

The defendant’s next and final claim of error respecting his request to charge on the issue of the defendant’s flight is that the trial court erred in refusing to give this instruction: “Conversely, in this case you have evidence before you that Mr. Timmons voluntarily surrendered to the police. Should you so find this to be a fact, you may, in conjunction with the facts of the case, infer that the defendant is innocent of this offense.” Again, the defendant failed to cite authority for this request. See Practice Book § 852. State v. Corchado, 188 Conn. 653, 453 A.2d 427 (1982), cited by the defendant is not supportive of his request. In Corchado, the trial court refused to charge that “surrender implies innocence and that a Defendant who surrenders is telling the truth.” Id., 670. The defendant in that appeal claimed that the failure to give this instruction violated his due process right to a fair trial and to equal protection of the laws. As noted by the Supreme Court, he cited no authority for this in his request. See Practice Book § 852. Since this claim, even though constitutional in nature, had not been raised at trial, the court refused to address the issue. State v. Corchado, supra, 670-71. The surrender of an accused is a factual argument that may properly be made to a jury in summation of the evidence. It is not a theory of defense from which, as a matter of law, an inference of innocence may be drawn by the jury. This court has been unable to find any authority allowing an instruction permitting the jury to infer innocence from surrender after flight.

The defendant’s next claim of error arises from the court’s instructions concerning certain alleged incriminatory or inculpatory statements made by the defendant after he refused to waive his Miranda rights. These statements were made to the police at a later date while in their custody. Testimony was elicited that these statements were spontaneous and not in response to any questioning. The defendant claimed on cross-examination that the officers had elicited the statements on interrogation. The defendant was quoted as stating that the shooting was an accident and that he recalled firing only two shots, but was told that four shots were fired. The defendant claims that the court erred in failing to instruct the jury on the voluntariness of these statements. The defendant had filed a request to charge concerning the voluntariness of his admission to the police. The court instructed the jury instead that “[tjhese statements were admitted not for showing that what was stated was true, but for you to consider what effect, if any, they had in your evalution of the in-court testimony of a witness.” In essence, the court charged that the statements were not to be considered for the purpose of incrimination, as the defendant posits they were, but only for the purpose of possible impeachment of the defendant’s court testimony.

In the absence of the jury, the trial court heard evidence and determined the admissibility of the defendant’s oral statements to the police. The court specifically found that “none of the statements were involuntary,” and ruled that the state would be allowed to impeach the defendant’s trial testimony, even with some of the statements that the court had previously suppressed. Although an exception was taken, the defendant does not contest the propriety of this ruling. The statements of the defendant were not submitted to the jury during the state’s case-in-chief. Their use was restricted to impeach the testimony of the defendant in the state’s rebuttal to the defense.

The trial court’s charge was correct and substantially embraced the material requested by the defendant. The court, however, properly refused the defendant’s instruction that the jury “may consider the circumstances under which the statement was given, particularly any duress or strain the defendant was under, or any coercion, physical or psychological, employed by the police.” There was no evidence before the jury relating to the use of coercion by the police in obtaining the defendant’s statements, or exhibiting any duress or strain by the defendant compelling their utterance. The defendant’s request to charge on this aspect concerning his utterances to the police was not adapted to the evidence and issues before the jury and was, therefore, properly refused. To be acceptable, a request to charge must be relevant to the evidence and issues presented in court. State v. Falcone, 191 Conn. 12, 26, 463 A.2d 558 (1983); State v. Maturo, 188 Conn. 591, 600, 452 A.2d 642 (1982). “A court does not err in declining to charge the jury on an issue not supported by the evidence, particularly where such charge might unfairly influence the jury.” Bonner v. Winter, 175 Conn. 41, 47, 392 A.2d 436 (1978). The trial court’s charge relating to the use of the defendant’s statements for impeachment purposes was correct in law, adapted to the issues and sufficient for the guidance of the jury. See State v. Sawicki, 173 Conn. 389, 396, 377 A.2d 1103 (1977).

The defendant’s final claim alleges that the trial court erred in its instruction on the issue of self-defense. The defendant claims that the jury should have been instructed that an attempt by the victim “to draw a gun furnishes a sufficient appearance of necessity” to justify self-defense. He also asserts that the jury should have been instructed that a person fearful for his life “may arm himself sufficiently to repel anticipated attack and pursue his legitimate avocation; and if, without fault, he is compelled to take life to save himself, the homicide is justifiable.”

The trial court began its instruction on self-defense by reciting in pertinent part General Statutes § 53a-19. The trial court informed the jury that the defendant would be justified in using reasonable force upon another person to defend himself from what he “really” believes to be the use or imminent use of physical force. The court stated further that the issue of whether the victim was about to use physical force against the defendant was not to be determined from what the actual danger was, but whether the defendant reasonably believed under the circumstances that the victim was about to use physical force. The court further explained that it was not necessary for the victim actually to have struck a blow if it reasonably appeared to the defendant that an attack was imminent. This instruction sufficiently encompassed the defendant’s request concerning any attempt by the victim to pull a weapon against the defendant. It is irrelevant that the court chose not to use the precise wording or language which the defendant requested if “ ‘the charge properly covered the substance of the written request.’ ” State v. Harrell, 199 Conn. 255, 269, 506 A.2d 1041 (1986); State v. Cooper, 182 Conn. 207, 211, 438 A.2d 418 (1980).

In connection with the issue of self-defense, the state and the defendant are diametrically opposed as to the right of the defendant to carry a pistol. The defendant was a convicted felon and by General Statutes § 29-29 was prohibited from obtaining a permit to carry a pistol or revolver. The issue in self-defense is not whether a defendant has a right to carry a weapon, but whether, as in this case, the defendant reasonably believed that the use of deadly physical force was necessary to defend against one using or about to use deadly physical force. General Statutes § 53a-19 (a).

The defendant also requested a charge that the animosity between the defendant and the victim did not require the victim to alter his legitimate activities. The trial court instructed the jury on this issue as follows: “It is not necessary that the defendant be without fault or blame in this incident for him to avail himself [of] the doctrine of self-defense. . . . [T]he fact that a person has invited the discussion of assault as to which animosity existed between the parties that he has demanded an explanation of offensive words or conduct or the settlement of a claim or that a person has insulted another or even that he was the first to strike a blow does not by itself make him the aggressor. Acts that merely afford an opportunity for conflict or that do not proximately contribute to the conflict do not constitute a party [an] aggressor. Before one can be said to have invoked an attack or conflict within the rule which precludes the provoked act or conflict as self-defense as an excuse or justification, he must willingly and knowingly do some act after meeting his antagonist, reasonably calculated to lead to a fracas or deadly conflict.” Although not artfully stated, the charge is correct in content and in substance. This instruction sufficiently covered the defendant’s request concerning the preexisting animosity between the defendant and the victim, and its relationship to the claim of self-defense.

Our review of the trial court’s instruction to the jury indicates that the charge as a whole fairly presented the case to the jury so that no injustice was done to the legal rights of the defendant. State v. Harrell, supra, 271.

There is no error.

In this opinion the other judges concurred.

       The trial court suppressed all conversation between the defendant and the police from the moment the officer began questioning the defendant about the events surrounding the shooting. The propriety of the trial court’s ruling is not at issue in this appeal.

       Because we hold that the trial court’s denial of the defendant’s right to a probable cause hearing was harmless error, we likewise dismiss his claim that such deprivation violated his right to effective assistance of counsel at a probable cause hearing, a claim raised for the first time on this appeal.

       The transcript reflects that the judge used the phrase “to defend himself from what he really believes to be the use or imminent use of physical force.” (Emphasis added.) The statute and correct statement of law allow self-defense “from what he reasonably believes to be the use or imminent use of physical force.” (Emphasis added.) There was no exception taken to this statement. We cannot tell if this error arose from a misstatement, misunderstanding or mistranscription. In any event, upon the jury’s later request for “the official definition of self-defense,” the court corrected any possible error in this instruction by using the correct phraseology.