author: Callahan, J.

text:
    Thomas P. Dugas v. Lumbermens Mutual Casualty Company
    (14016)
    Peters, C. J., Callahan, Covello, Hull and Borden, Js.

      Argued December 6, 1990
    decision released March 5, 1991

      Michael Brodinsky, with whom, on the brief, was Andrew V. O’Shea, for the appellant (defendant).

      JuriE. Taalman, with whom was Nicholas G. Sarantopoulos, for the appellee (plaintiff).
   Callahan, J.

The principal issue in this appeal is whether, in calculating the amount due an insured from uninsured motorist coverage, the insurer may deduct the entire amount of reparations benefits previously paid to the insured, or whether the deduction for previously paid reparations benefits must be reduced to reflect the insurer’s contribution to attorney’s fees incurred by the insured in effecting a recovery from the tortfeasor. The trial court concluded that the carrier was required to contribute to the insured’s legal fees. The Appellate Court affirmed the trial court’s judgment. We now reverse.

The parties stipulated to the following facts. On April 17, 1982, the plaintiff, Thomas P. Dugas, was injured in an accident involving two automobiles. The automobile driven by the plaintiff was insured under a policy issued by the defendant, Lumbermens Mutual Casualty Company. That policy provided uninsured motorist coverage in the amount of $40,000, basic reparations benefits in the required amount of $5000 and added reparations benefits in the amount of $20,000. The total of reparations benefits paid to the plaintiff by the defendant was $13,316.63. The plaintiff, with the assistance of his attorney, recovered $20,000 from the tortfeasor’s insurer. The amount recovered was the limit of the tortfeasor’s liability insurance policy.

The parties stipulated that the plaintiff’s damages were at least $40,000. It was agreed, therefore, that the amount due the plaintiff under the uninsured motorist coverage of his policy was $20,000. It was also stipulated that the defendant was entitled to be reimbursed from that amount for the reparations benefits it had previously paid to the plaintiff. The parties disagreed, however, over the amount of the reimbursement. The defendant claimed that it was entitled to recover the entire $13,316.63 it had previously paid, while the plaintiff contended that the defendant should recover only two thirds of the reparations benefits it had paid, or $8877.75. The plaintiff argued that the defendant must contribute one third of its recovery of reparations payments toward the legal expenses incurred by the plaintiff in effecting a recovery from the tortfeasor.

This dispute was presented to an arbitrator pursuant to the mandatory arbitration clause in the plaintiff’s insurance policy. The arbitrator ruled in favor of the defendant. The plaintiff subsequently made an application to correct or vacate the arbitrator’s decision in the Superior Court. The trial court, Noven, J., granted the plaintiff’s application and vacated the arbitration award. On appeal, the Appellate Court remanded the case to the trial court for a de novo review of the arbitrator’s interpretation and application of the law. See Dugas v. Lumbermens Mutual Casualty Co., 14 Conn. App. 153, 156, 540 A.2d 89 (1988). The trial court, Shaughnessy, J., found for the plaintiff on remand, and the Appellate Court affirmed the trial court’s judgment on alternative grounds. Dugas v. Lumbermens Mutual Casualty Co., 22 Conn. App. 27, 33, 576 A.2d 165 (1990). In its opinion the Appellate Court stated that § 38-175a-6 (d) (3) of the Regulations of Connecticut State Agencies, upon which the defendant relied in arguing for a complete recovery of previously paid reparations benefits, “cannot be read to be valid without reference to the attorney’s fee provision of [General Statutes] § 38-325 (b).” ****8Id. On the basis of what it perceived as the public policy underlying § 38-325 (b), the Appellate Court concluded that the regulation would be void unless interpreted as incorporating the attorney’s fees provision embodied in § 38-325 (b). Id., 39.

We granted the defendant’s petition for certification limited to the following issues: (1) whether the Appellate Court properly considered the validity of § 38-175a-6 (d) (3) of the Regulations of Connecticut State Agencies;* ** and (2) whether the Appellate Court properly concluded that the insurance regulation was void unless the attorney’s fees provision of § 38-325 (b) was read into the regulation. Dugas v. Lumbermens Mutual Casualty Co., 216 Conn. 803, 577 A.2d 715 (1990). Because our decision depends upon the relationship between the regulation at issue and § 38-325 (b), we need to consider the background and evolution of these and other statutory and regulatory provisions related to uninsured motorist coverage.

In 1967, the legislature enacted General Statutes § 38-175c, which provides that all automobile liability policies must include uninsured motorist coverage. In 1972, the legislature passed the no-fault insurance statutes, including General Statutes §§ 38-326 and 38-327, which require all motorists to obtain uninsured motorist and basic reparations coverage, and § 38-325 (b), which provides that an insured who receives reparations benefits must reimburse the insurer for the benefits received if he subsequently obtains, by judgment or settlement, an award of damages from the tortfeasor. As originally enacted, § 38-325 (b) did not allow the insured to deduct from the reparations benefits reimbursed to the insurer an amount reflecting the insurer’s share of the legal fees incurred by the insured in recovering from the tortfeasor. In 1980, the legislature amended § 38-325 (b) to allow insureds to reduce the amount of the reimbursement by an amount reflecting the insurer’s contribution to the attorney’s fees expended by the insured in obtaining the damage award. See Public Acts 1980, No. 80-131.

In 1975, the insurance commissioner, pursuant to his power under General Statutes § 38-175a to adopt regulations concerning the terms of uninsured motorist coverage, amended § 38-175a-6 (d) (3) of the Regulations of Connecticut State Agencies in order to allow insurers to seek reimbursement for reparations benefits from amounts paid or payable to their insured by reason of uninsured motorist coverage provided by the insurer. The amended regulation was approved by the legislative regulation review committee. In 1986, the insurance commissioner again amended § 38-175a-6. That amendment, however, did not affect the provisions of the regulation at issue in this case. The legislative regulation review committee reviewed and approved the 1986 amendment to the regulation.

With this background in mind, we turn to the dis-positive issue in this appeal, namely whether the defendant, under § 38-175a-6 (d) (3) of the regulations, is entitled to full reimbursement of the $13,316.63 it paid the plaintiff in reparations benefits, or whether the defendant can collect only two thirds of that amount ($8877.75). The Appellate Court concluded that the defendant is entitled to collect only the latter amount because § 38-175a-6 (d) (3) was repealed by implication when the legislature amended § 38-325 (b) in 1980 to allow the reduction of the reimbursement for reparations benefits from damage awards in order to reflect attorney’s fees paid by the insured to recover from the tortfeasor. Although the Appellate Court did not explicitly state that it concluded that § 38-175a-6 (d) (3) was repealed by implication by the amendment of § 38-325 (b), this conclusion is implicit in its opinion.

The plain language of § 38-175a-6 (d) (3) of the regulations does not provide for a deduction for attorney’s fees from the reimbursement for reparations benefits out of uninsured motorist benefits payable to the insured by his own insurer. The regulation states that “[t]he policy may also provide that . . . any amount of any basic reparations benefits paid or payable under the policy will reduce the damages which the insured may recover under this coverage . . . .” (Emphasis added.) The Appellate Court did not conclude, and the plaintiff does not contend, that prior to 1980 the regulation provided for a setoff for attorney’s fees or that the 1975 revision of the regulation was void ab initio because it did not include such a provision. Rather, the Appellate Court concluded that the public policy underlying the 1980 amendment to § 38-325 (b) applied not only to the reimbursement to the insurer of reparations benefits from damage awards from tortfeasors, but also to the reimbursement of those same benefits from uninsured motorist coverage benefits payable by the insurer to the insured.* ** Dugas v. Lumbermens Mutual Casualty Co., supra, 22 Conn. App. 37. The court concluded that the regulation would be void as against public policy if interpreted as not providing for a setoff for attorney’s fees from the reimbursement for reparations payments under such circumstances, and therefore construed the regulation as allowing the setoff. Id., 39.

This case differs from prior cases in which we have addressed the validity of regulations issued by the insurance commissioner. The party challenging a regulation typically claims that the regulation was inconsistent with or beyond the legislature’s grant of authority to the commissioner at the time the relevant provisions of the regulation were issued. See, e.g., Travelers Ins. Co. v. Kulla, 216 Conn. 390, 579 A.2d 525 (1990); Roy v. Centennial Ins. Co., 171 Conn. 463, 370 A.2d 1011 (1976); Citrano v. Berkshire Mutual Ins. Co., 171 Conn. 248, 368 A.2d 54 (1976). In contrast, the Appellate Court in this case held that § 38-175a-6 (d) (3), the relevant portions of which were issued in 1975, only became invalid when § 38-325 (b) was amended in 1980. Dugas v. Lumbermens Mutual Casualty Co., supra, 22 Conn. App. 39. The Appellate Court ruled, in effect, that the regulation was repealed by implication in 1980 to the extent that the regulation did not allow for a deduction of attorney’s fees from reimbursement due to the insurer out of uninsured motorist benefits.

Regulations issued by the insurance commissioner to implement the statutes governing uninsured motorist coverage are presumed valid and have the force and effect of a statute. Travelers Ins. Co. v. Kulla, supra, 399; Pecker v. Aetna Casualty & Surety Co., 171 Conn. 443, 449, 370 A.2d 1006 (1976); see Phelps Dodge Copper Products Co. v. Groppo, 204 Conn. 122, 128, 527 A.2d 672 (1987). Therefore, the rule disfavoring the implied repeal of a statute by the subsequent enactment of another statute also applies to the implied repeal of a regulation by a statute, especially where, as in the present case, the regulation at issue has been approved by the legislative regulation review committee.

The rule disfavoring implied repeals is a “well established principle of statutory construction.” Southern Connecticut Gas Co. v. Housing Authority, 191 Conn. 514, 521,468 A.2d 574 (1983). The legislature is presumed to have acted with the intent to create a consistent body of law. Warner v. Leslie-Elliott Constructors, Inc., 194 Conn. 129, 134, 479 A.2d 231 (1984). If two statutes appear to be in conflict but can be construed as consistent with each other, then the court should give effect to both. Hirschfeld v. Commission on Claims, 172 Conn. 603, 607, 376 A.2d 71 (1977). “[Enactments by the General Assembly are presumed to repeal earlier inconsistent ones to the extent that they are in conflict.” Southern Connecticut Gas Co. v. Housing Authority, supra. Because repeal by implication is generally disfavored, however, the principle applies only when the relevant statutes “cannot stand together.” Id.; Hirschfeld v. Commission on Claims, supra, 606-607.

There is significant evidence that the legislature, the legislative regulation review committee and the insurance commissioner do not share the Appellate Court’s view that the amendment of § 38-325 (b) in 1980 impliedly repealed § 38-175a-6 (d) (3). Since 1980, the legislature has enacted six amendments to § 38-175c, the uninsured motorist coverage statute, yet it has never attempted to preempt the regulation by providing for a setoff for attorney’s fees from a reimbursement of reparations benefits payable from uninsured motorist benefits. See Public Acts 1982, No. 82-441, §§ 20, 23; Public Acts 1983, No. 83-267, § 2; Public Acts 1983, No. 83-461; Public Acts 1985, No. 85-7; Public Acts 1986, No. 86-403, §§ 79, 132; Public Acts 1990, No. 90-243, § 127. If a regulation has been in existence for a substantial period of time and the legislature has not sought to override the regulation, this fact, although not determinative, provides persuasive evidence of the continued validity of the regulation. Phelps Dodge Copper Products Co. v. Groppo, supra, 130.

The approval of revisions to § 38-175a-6 by the legislative regulation review committee in 1986 provides additional support for the defendant’s contention that the regulation was not repealed by implication in 1980. General Statutes 4-170 requires the legislative regulation review committee to approve the adoption, amendment or repeal of any regulation. “The fact that the commissioner’s regulation has been approved by the standing legislative regulation review committee, although not dispositive of the issue before us, is an important consideration in our determination of whether the commissioner’s regulation comports with the legislative intent . . . .” (Emphasis in original.) Phelps Dodge Copper Products Co. v. Groppo, supra, 129-30; Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 599-600, 522 A.2d 771 (1987).

The fact that the insurance commissioner has never proposed an amendment to the regulation to provide for a setoff for attorney’s fees, especially in 1986 when other provisions of the regulation were amended, is an indication that the commissioner does not share the view of the Appellate Court that the regulation was repealed by implication in 1980. “The insurance commissioner has a ‘very broad grant of regulatory authority’ in filling in the interstices of the uninsured and underinsured motorist coverage legislation . . . .” Roy v. Centennial Ins. Co., supra, 473. “In the construction of statutes, great deference is to be accorded to the construction given the statute by the agency charged with its enforcement. Griggs v. Duke Power Co., 401 U.S. 424, 433, 91 S. Ct. 849, 28 L. Ed. 2d 158 [1971]; Corey v. Avco-Lycoming Division, 163 Conn. 309, 326, 307 A.2d 155 [1972], cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 [1973].” Id.

The critical factor, however, in determining whether the legislature impliedly repealed § 38-175a-6 (d) (3) in 1980, is whether the public policy underlying the 1980 amendment to § 38-325 (b) applies with equal force in the context of the reimbursement of reparations payments from uninsured and underinsured motorist recoveries. The Appellate Court concluded that the policy expressed in § 38-325 (b), as amended in 1980, applied both to the reimbursement of reparations benefits from damage awards and to reimbursement from uninsured and underinsured motorist benefits. Dugas v. Lumbermens Mutual Casualty Co., supra, 22 Conn. App. 35. Although we find some similarity in the manner in which that policy is implicated in the context of reimbursement from damage awards and reimbursement from underinsured motorist recoveries, we do not find the connection sufficient to necessitate reading the attorney’s fees provision of § 38-325 (b) into the regulation.

A review of the legislative history of the statute reveals that the primary motivation leading to the enactment of the 1980 amendment to § 38-325 (b) was the legislature’s concern that it was unfair to allow an insurer to benefit from damage awards obtained by an insured party from a tortfeasor without requiring the carrier to bear some of the legal costs incurred in effecting that recovery. 23 S. Proc., Pt. 4, 1980 Sess., pp. 1266-73; 23 H.R. Proc., Pt. 12,1980 Sess., pp. 3629-33; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 1980 Sess., pp. 341-45, 416-20. It is important to note that there are two distinct benefits that an insurer may receive as a result of the insured having secured a tort recovery, and it is necessary to consider these benefits separately in analyzing the purpose of the 1980 amendment to § 38-325 (b).

The first benefit received by the insurer is reimbursement of the reparations benefits it had previously paid to the insured. If the tortfeasor’s automobile is fully insured, the insurer will be reimbursed its reparations benefits out of the tort recovery secured by the insured. In such a case, the insurer has benefited from the creation of a separate pool of funds by the insured from which the reimbursement of reparations payments is obtained. There is no dispute that under those circumstances § 38-325 (b) requires the insurer to share the legal fees related to that benefit.

In cases like this one involving an underinsured motorist, a tort recovery provides the insurer with a second benefit for which § 38-325 (b) does not require the insurer to contribute to the related legal cost. The benefit is that the insurer’s potential liability to the insured under the uninsured motorist coverage is reduced by any tort recovery. Nevertheless, § 38-325 (b) provides that the setoff for legal fees to which the insured is entitled is based only on a percentage of the reparations benefits reimbursed, not upon a percentage of the amount by which the insurer’s liability under the uninsured motorist coverage has been reduced. The amount payable to the plaintiff under the uninsured motorist coverage of his policy has been reduced by $20,000 because he secured that amount from the tortfeasor. As we noted, however, § 38-325 (b) does not reimburse insureds for the legal fees related to that benefit to the insurer. Rather, § 38-325 (b) requires only that the insurer reimburse the insured for the legal fees related to the amount of reparations benefits that the insurer recovers.

The question then becomes whether the plaintiff has benefited the defendant by obtaining funds from which reparations benefits will be reimbursed. When, as in the present case, the insurer can seek reimbursement of reparations benefits from either the damage award or the underinsured motorist benefits and chooses the latter course,' it cannot be said that the insurer has benefited from the tort recovery in the manner contemplated by § 38-325 (b). While we recognize that the tort recovery clearly has benefited the defendant by reducing the underinsured motorist benefits payable, we do not discern any legislative policy to compel insurers to share the legal cost related to that benefit.

It is not necessarily an anomalous result that an insured party injured by a fully insured motorist is able to obtain a contribution from the insurer to his attorney’s fees from the amount of reparations benefits reimbursed to the insurer, while an insured party injured by an underinsured motorist is not. The legislature reasonably could have determined that requiring insurers to share the legal expenses in securing reimbursement of reparations benefits in cases involving underinsured motorists, where the insurer would also have to pay underinsured motorist benefits, would place greater pressure on insurance rates than it was willing to tolerate. Moreover, even if the plaintiff is correct that this result is anomalous, his remedy lies with the legislature or the insurance commissioner, not with this court.

We conclude that the plain language of § 38-175a-6 (d) (3) does not provide for the setting off of attorney’s fees against the reimbursement of reparations benefits from uninsured or underinsured motorist recoveries and that the regulation as so construed is valid. We reach this conclusion because of: (1) the general disfavor with which this court looks upon implied repeals; (2) the evidence that the legislature, the legislative regulation review committee and the insurance commissioner do not regard the regulation as inconsistent with the public policy underlying the attorney’s fees provision of § 38-325 (b); and (3) our own doubt as to whether that public policy applies to the regulation at issue. In a case involving a challenge to a different provision of § 38-175a-6, we noted that “[t]he automobile liability insurance business is one which is extensively regulated . . . and judicial revision of the terms upon which such policies are issued may produce extensive repercussions throughout the insurance industry of the state.” Roy v. Centennial Ins. Co., supra, 473. Those repercussions are to be avoided in the absence of a clear legislative intent to revise the existing regulations and statutes.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand the case to the trial court with direction to reinstate the arbitration award.

In this opinion the other justices concurred.

       This amount represents the $40,000 of uninsured motorist coverage, reduced by the $20,000 recovery from the tortfeasor as required by § 38-175a-6 (d) (1) of the Regulations of Connecticut State Agencies. It is not disputed that the defendant could have sought reimbursement of the reparations benefits from the $20,000 tort recovery under General Statutes § 38-325 (b), but it did not do so. It is also clear that had the defendant sought reimbursement pursuant to § 38-325 (b), it would have recovered only two thirds of the reparations benefits because the statute reduces the reimbursement to reflect the attorney’s fees incurred by the insured in recovering from the tortfeasor.
      Title 38 of the General Statutes Revised to 1989 has been transferred, and its sections renumbered, to title 38a of the General Statutes Revised to 1991. For purposes of this opinion, we shall refer to the relevant statutes in their previous numerical form under title 38.

       Section § 38-175a-6 of the Regulations of Connecticut State Agencies provides in pertinent part: “(d) limits of liability. The limit of the insurer’s liability may not be less than the applicable limits for bodily injury liability specified in subsection (a) of section 14-112 of the general statutes, except that the policy may provide for the reduction of limits to the extent that damages have been
      “(1) paid by or on behalf of any person responsible for the injury,
      “(2) paid or are payable under any workers’ compensation or disability benefits law, or
      “(3) paid under the policy in settlement of a liability claim. The policy may also provide that any direct indemnity for medical expense paid or payable under the policy or any amount of any basic reparations benefits paid or payable under the policy will reduce the damages which the insured may recover under this coverage and any payment under these coverages shall reduce the company’s obligation under the bodily injury liability coverage to the extent of the payment.”
      The policy issued by the defendant included a provision based on § 38-175a-6 (d) (3) that authorized the defendant to reduce any amount payable under uninsured motorist coverage by the amount of reparations benefits paid.

       General Statutes § 38-325 (b) provides: “Whenever a person who receives basic reparations benefits for an injury recovers damages, either by judgment or settlement, from the owner, registrant, operator or occupant of a private passenger motor vehicle with respect to which security has been provided under this chapter or from a person or organization legally responsible for his acts or omissions, the insurer is entitled to reimbursement from the claimant to the extent that said basic reparations benefits have been paid, minus an amount which represents the insurer’s contribution toward attorney’s fees for the collection of basic reparations benefits. Such amount shall be computed by multiplying the total amount of such reasonable attorney’s fees and costs, by a fraction, the numerator of which shall be the amount of basic reparations benefits received by the claimant and the denominator shall be the amount of damages recovered by the claimant, less court costs. In no event shall such amount exceed one-third the amount of the basic reparations benefits to be reimbursed to the insurer. The insurer shall have a lien on the claimant’s recovery for the amount to which he is entitled for such reimbursement; provided no such lien shall attach until such time as the proceeds of such recovery are in the possession and control of such claimant.” (Emphasis added.)

       The defendant initially argues that we should reverse the decision of the Appellate Court because the issue of the validity of § 38-175a-6 (d) (3) of the Regulations of Connecticut State Agencies was never briefed or argued before either the trial court or the Appellate Court. We first note that the defendant conceded that its brief to the Appellate Court included “passing” references to this issue. Even in the absence of such references, the defendant’s first claim cannot succeed. We have previously noted that this court has the discretionary authority to consider alternative grounds for affirming a judgment even though these grounds have not been briefed or argued by the parties. See State v. Badgett, 200 Conn. 412, 432 n.10, 512 A.2d 160, cert. denied, 479 U.S. 940,107 S. Ct. 423, 93 L. Ed. 2d 373 (1986). By implication, the Appellate Court has this same authority. We conclude that the Appellate Court did not abuse-its discretion in considering the validity of § 38-175a-6 (d) (3).
      Moreover, on appeal to this court, the defendant has been able to address fully the merits of whether § 38-175a-6 (d) (3) is void. Therefore, it will not be prejudiced by our consideration of the merits of this issue, and any prejudice it may have suffered in the Appellate Court is cured.

       General Statutes § 38-175c provides in pertinent part: “(a) (1) Every such policy shall provide insurance, herein called uninsured motorist coverage, in accordance with such regulations, with limits for bodily injury or death not less than those specified in subsection (a) of section 14-112, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underinsured motor vehicles and insured motor vehicles, the insurer of which becomes insolvent prior to payment of such damages, because of bodily injury, including death resulting therefrom, provided each insurer licensed to write automobile liability insurance in this state shall provide such uninsured motorists coverage with limits requested by the named insured upon payment of the appropriate premium, but such insurer shall not be required to provide such coverage with limits in excess of the limits of the bodily injury coverage of such policy issued to such named insured. . . . Every such policy issued on or after October 1,1971, which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceeding.”

       General Statutes § 38-175a provides in pertinent part: “minimum provisions in automobile liability policies, (a) The insurance commissioner shall adopt regulations with respect to minimum provisions to be included in automobile liability insurance policies .... Such regulations shall relate to the insuring agreements, exclusions, conditions and other terms applicable to . . . uninsured motorists coverages . . . .”

       In Shelby Mutual Ins. Co. v. Della Ghelfa, 200 Conn. 630, 634-39, 513 A.2d 52 (1986), we upheld the decision of the Appellate Court construing the term “basic reparations benefits” to include both basic and added reparations benefits for the purposes of the provisions of General Statutes § 38-325 (b) concerning the reimbursement of reparations benefits. There is likewise no distinction between these two terms for the purposes of this opinion.

       The Appellate Court rejected the plaintiffs claim that General Statutes § 38-325 (b), as opposed to the regulation, is directly applicable to this case. Dugas v. Lumbermens Mutual Casualty Co., 22 Conn. App. 27, 31-32, 576 A.2d 165 (1990). The plaintiff does not make that argument in this appeal.

       In reaching the conclusion that the public policy underlying General Statutes § 38-325 (b) was “strong and broad based,” the Appellate Court relied in part on the existence of similar attorney’s fees provisions in other statutes. Dugas v. Lumbermens Mutual Casualty Co., 22 Conn. App. 27, 35, 576 A.2d 165 (1990), citing General Statutes § 38-174n (b) (amount of health insurer’s lien on workers’ compensation award reduced by attorney’s fees), and General Statutes § 31-293 (a) (employer’s claim for reimbursement of workers’ compensation benefits from damage award secured by worker reduced by attorney’s fees). We do not find the existence of these statutes sufficient to warrant reading the attorney’s fees provision of § 38-325 (b) into § 38-175a-6 (d) (3) of the Regulations of Connecticut State Agencies.

       One can arguably read the Appellate Court decision as actually having ruled that the regulation was amended, by implication to provide for a setoff for attorney’s fees when the legislature amended General Statutes § 38-325 (b). Such a distinction is insignificant, however, because “[rjepeal by implication when only a part of the prior statute is repealed is identical with amendment by implication.” 1A J. Sutherland, Statutory Construction (4th Ed. Sands) § 22.22.

       This conclusion is also consistent with the rule that a state statute should be construed as having preempted a local ordinance only when the legislature has demonstrated its intent to regulate the entire field or when the ordinance is in irreconcilable conflict with the statute. Dwyer v. Farrell, 193 Conn. 7, 14, 475 A.2d 257 (1984).

       The amendments to the regulation approved in 1986 did not affect those portions of the regulation at issue in this case. The action taken by the legislative regulation review committee in 1986, however, is still pertinent because it provides evidence on whether the committee found the amended regulation to be consistent with the overall statutory scheme that the regulation seeks to implement. See Caldor, Inc. v. Heslin, 215 Conn. 590, 599, 577 A.2d 1009 (1990); Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 600, 522 A.2d 771 (1987).

       General Statutes 4-170 provides in pertinent part: “(b) No adoption, amendment or repeal of any regulation . . . shall be effective until the original of the proposed regulation approved by the attorney general . . . ha[s] been submitted to the standing legislative regulation review committee . . . and the regulation has been approved by the committee .... The form of proposed regulations which are submitted to the committee shall be as follows: New language added to an existing regulation shall be in capital letters and language to be deleted shall be enclosed in brackets

       “[A]n ‘underinsured motor vehicle’ means a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subdivision (1) of this subsection.” General Statutes § 38-175c (b) (2).

       The Appellate Court concluded that the policy underlying General Statutes § 38-325 (b) would require that attorney’s fees be set off even in the case of an insured who is unable to secure a tort recovery because the tortfeasor is uninsured but who incurs attorney’s fees in the process of arbitrating the uninsured motorist coverage claim. See Dugas v. Lumbermens Mutual Casualty Co., 22 Conn. App. 27, 37 n.10, 576 A.2d 165 (1990). We find no support in the legislative history of the 1980 amendment to § 38-325 (b) for the proposition that the statute embraces a policy providing for the setting off of attorney’s fees even when these fees are solely related to securing uninsured motorist benefits from one’s own insurer. In such a case, the insurer receives no benefit arising from the insured’s expenditure for legal fees. This conclusion does not decide this case, however, because the tortfeasor was underinsured, rather than uninsured.

       The defendant stated that in all cases where it can seek reimbursement from either a tort recovery under General Statutes § 38-325 (b) or from underinsured motorist benefits pursuant to § 38-175a-6 (d) (3) of the Regulations of Connecticut State Agencies, it will pursue the latter course because § 38-325 (b) requires a setoff for attorney’s fees while the regulation, it contends, does not.
      We note that it seems arbitrary to rely on the source of the reimbursement, a factor within the insurer’s control, as the criterion for determining whether the insurer has been benefited. The existing statutory and regulatory structure give the insurer this power, however, and our decision must be made within this framework. See General Statutes § 38-325 (b); Regs., Conn. State Agencies § 38-175a-6 (d) (3).

       The benefit argument is also weaker in a case involving an underinsured motorist, as opposed to a fully insured motorist, because General Statutes § 38-175c (b) (1) requires an insured party to exhaust his remedies against the tortfeasor as a condition of obtaining underinsured motorist benefits.


source: Caselaw Access Project

author: Glass, J.

license: Public Domain

text:
    State of Connecticut v. Juan Ortiz
    (13770)
    Peteks, C. J., Shea, Glass, Covello and Santaniello, Js.

      Argued November 9, 1990
    decision released March 5, 1991

      John R. Gulash, Jr., with whom, on the brief, was Peter McGuinness, for the appellant (defendant).

      Donald A. Browne, state’s attorney, with whom, on the brief, was Harry J. Lyons, assistant state’s attorney, for the appellee (state).
   Glass, J.

The state charged the defendant, Juan Ortiz, with the crime of murder in violation of General Statutes § 53a-54a (a). At his trial, the defendant raised the affirmative defense of extreme emotional disturbance provided for by § 53a-54a (a), and introduced circumstantial evidence in accordance with General Statutes § 53a-7 to establish that he had been voluntarily intoxicated at the time of the crime. The jury nonetheless found the defendant guilty of murder, and a judgment of conviction followed. He was sentenced to life imprisonment.

In his appeal, the defendant challenges various aspects of the trial court’s instructions to the jury. He claims that the court should not have: (1) instructed the jury that the reasonableness of the explanation or excuse for his alleged extreme emotional disturbance should be measured not from the defendant’s viewpoint, but from the viewpoint of a reasonable man in the defendant’s situation and under the circumstances as he believed them to be; (2) instructed the jury that the defendant’s evidence of his intoxication should not be considered in determining whether he had possessed the mental state of recklessness necessary for conviction of the lesser included offenses of manslaughter in either the first or the second degree; (3) instructed the jury that in weighing the testimony of two expert psychiatric witnesses called by the defense, the defendant’s interest in the outcome of the case and the truthfulness of his statements to the experts should be considered; (4) denied his written request for an instruction that it was the state’s burden to prove beyond a reasonable doubt that he had formed the specific intent necessary for conviction of murder in spite of his alleged intoxication; and (5) denied his oral request for an instruction that he was entitled to rely upon circumstantial evidence to establish that he had been intoxicated and/or under the influence of an extreme emotional disturbance at the time of the crime, and that he need not prove the facts inferable from that evidence beyond a reasonable doubt. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. At approximately 7 p.m. on June 7,1988, police officer Vernon Woods was dispatched to investigate a stabbing reported to have occurred at 46 Wood Avenue in Bridgeport. Upon his arrival at that location, Woods observed a crowd of people, two large puddles of blood and a knife on a cardboard box. Near the corner of the building, Woods discovered the body of a woman who had been stabbed several times. The woman, subsequently identified as Myrna Ortiz, the wife of the defendant, had died immediately from a loss of blood resulting from a knife wound to the back of her left chest that had penetrated her left lung and heart. Two eyewitnesses testified at trial that they had seen the defendant stab the victim in the neck and the back, wipe the knife on his pants and place it on a cardboard box and then drag her body into an alley. The witnesses further testified that the defendant had thereafter driven away from the scene in his automobile.

I

The defendant first claims that the trial court improperly instructed the jury on his affirmative defense of extreme emotional disturbance. The instruction challenged by the defendant is as follows: “Please note that you are to measure the reasonableness or excuse of the action of the defendant not from the defendant’s viewpoint but rather from the viewpoint of a person, a reasonable man in the defendant’s situation, under the circumstances as the defendant believed them to be.” (Emphasis added.) The defendant argues that this instruction was inaccurate because under § 53a-54a (a), the reasonableness of the explanation or excuse for his extreme emotional disturbance must be determined from his viewpoint, rather than that of a reasonable man in his situation and under the circumstances as he believed them to be. He therefore maintains that the court incorrectly substituted a “reasonableness to a ‘reasonable man’ ” standard for what he views as the “reasonableness to the defendant” standard embodied in the statute. He claims that this alleged alteration of the statutory standard required him to prove more than was necessary to prevail on his affirmative defense in violation of his constitutional right to present a defense. We disagree.

Section § 53a-54a (a) provides in pertinent part that “it shall be an affirmative defense [to the crime of murder] that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be . . . .” 6Although the construction of the word “person” in the statute has not been the focus of any case considered by this court, we nonetheless have addressed the affirmative defense of extreme emotional disturbance on several occasions. See State v. Forrest, 216 Conn. 139, 578 A.2d 1066 (1990); State v. Casey, 201 Conn. 174, 513 A.2d 1183 (1986); State v. Fair, 197 Conn. 106, 496 A.2d 461 (1985), cert. denied, 475 U.S. 1096, 106 S. Ct. 1494, 89 L. Ed. 2d 895 (1986); State v. Asherman, 193 Conn. 695, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985); State v. D’Antuono, 186 Conn. 414, 441 A.2d 846 (1982); State v. Zdanis, 182 Conn. 388, 438 A.2d 696 (1980), cert. denied, 450 U.S. 1003, 101 S. Ct. 1715, 68 L. Ed. 2d 207 (1981). The seminal case interpreting the scope and meaning of § 53a-54a (a), however, is State v. Elliott, 177 Conn. 1, 411 A.2d 3 (1979). The court’s instruction in this case was based in part upon certain language in our decision in Elliott.

In State v.'Elliott, we held that the affirmative defense of extreme emotional disturbance “does not require a provoking or triggering event; or that the homicidal act occur immediately after the cause or causes of the defendant’s extreme emotional disturbance; or that the defendant have lost all ability to reason.” Id., 7. The particular language in Elliott from which the trial court drew its instruction was our statement that § 53a-54a (a) “sets forth a standard that is objective in its overview, but subjective as to the defendant’s belief”; id.; and, with regard to the objective element contained in the statute, our statement that “the reasonable man yardstick is only used to determine the reasonableness of the explanation or excuse of the action of the defendant from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be.” Id.

We are unpersuaded that the above statements in Elliott, and the trial court’s instruction drawn therefrom, are inconsistent with the proper construction of § 53a-54a (a). The statute contains no indication that the determination of whether there was a reasonable explanation or excuse for a defendant’s extreme emotional disturbance should be made entirely from the defendant’s viewpoint. Rather, the statute plainly requires that determination to be made from the viewpoint of “a person in the defendant’s situation under the circumstances as the defendant believed them to be.” If the legislature had intended the word “person” to mean “the defendant,” it easily could have said so.

Furthermore, the legislature need not have specifically set forth the particular subjective characteristics of a defendant, his situation and his belief as to the circumstances, that should be attributed to the “person” from whose viewpoint the determination of reasonableness must be made if it intended that person to be the defendant. The specific itemization of only certain of the myriad subjective characteristics that could be said to constitute a defendant’s “viewpoint” connotes the legislative intent that all of the defendant’s other subjective characteristics, including his personal perception of what is reasonable, should not be attributed to the “person” from whose viewpoint the determination of reasonableness must be made. See State v. Kish, 186 Conn. 757, 765-66, 443 A.2d 1274 (1982); see also 2A J. Sutherland, Statutory Construction (4th Ed. Sands 1984) § 47.23. Construing § 53a-54a (a) to require that the reasonableness of a defendant’s extreme emotional disturbance be determined solely from his viewpoint would therefore be contrary to the intent of the legislature as manifested in the plain language of the statute.

It is significhnt that the New York Court of Appeals in construing New York Penal Law § 125.25 (1) (a), the similar New York statute on the affirmative defense of extreme emotional disturbance, has refused to adopt the standard of whether a defendant’s “emotional reaction, from his own subjective point of view, was supported by a reasonable explanation or excuse.” People v. Casassa, 49 N.Y.2d 668, 675, 404 N.E.2d 1310, 427 N.Y.S.2d 769, cert. denied, 449 U.S. 842, 101 S. Ct. 122, 66 L. Ed. 2d 50 (1980). In Casassa, the court declined to adopt this “wholly subjective” standard primarily because it conflicts with the comments of the drafters of the Model Penal Code of the American Law Institute, Tentative Draft No. 9, § 201.3 (1) (b), upon which both the New York statute and § 53a-54a (a) were modeled. See State v. Elliott, supra, 8; People v. Casassa, supra, 678-79. The court found instructive, for example, the drafters’ comment that “ ‘the ultimate test’ ” under § 201.3 (1) (b) “ ‘is objective; there must be a “reasonable” explanation or excuse for the actor’s disturbance.’ "People v. Casassa, supra, 679, quoting Model Penal Code § 201.3 (1) (b), comment, p. 41 (Tent. Draft No. 9 1959); see People v. Shelton, 88 Misc. 2d 136, 149, 385 N.Y.S.2d 708 (1976), aff’d, 78 App. Div. 2d 821, 434 N.Y.S.2d 649 (1980).

On the basis of its reading of this and other comments, the court concluded that the drafters had “ suggested] a standard of evaluation which contains both subjective and objective elements”; People v. Casassa, supra; and therefore refused to interpret the New York statute in a manner obscuring the objective element of that standard. Subsequent New York decisions accordingly have characterized the affirmative defense of extreme emotional disturbance as “contain[ing] two elements, one subjective and one objective.” People v. Shegog, 155 App. Div. 2d 891, 547 N.Y.S.2d 725 (1989), appeal denied, 75 N.Y.2d 818, 551 N.E.2d 1246, 552 N.Y.S.2d 568 (1990); see People v. Moye, 66 N.Y.2d 887, 890, 489 N.E.2d 736, 498 N.Y.S.2d 767 (1985).

Like the court in Casassa, we conclude that evaluating the reasonableness of a defendant’s extreme emotional disturbance solely from his subjective viewpoint would be inconsistent with the drafters’ evident intention to create a standard comprising both subjective and objective elements. We also find the defendant’s proposed standard of “reasonableness to the defendant” particularly inimical to certain other pertinent comments of the drafters not referred to in Casassa. For instance, the drafters state that although § 201.3 (1) (b) was intended to embody “a larger element of subjectivity” than the common law “heat of passion” defense, “it is only the actor’s ‘situation’ and the ‘circumstances as he believed them to be,’ not his scheme of moral values, that are thus to be considered.” (Emphasis added.) Model Penal Code § 201.3 (1) (b), comment, p. 41 (Tent. Draft No. 9 1959). If the reasonableness of the explanation or excuse for a defendant’s extreme emotional disturbance were determined by ascertaining whether the disturbance was reasonable to him, his subjective scheme of moral values would become a consideration in the “reasonableness” inquiry, a result plainly not intended by the drafters. Such an approach would also eliminate the “barrier against debilitating individualization of the standard” that the drafters intended to create by requiring that the explanation or excuse for a defendant’s extreme emotional disturbance be reasonable. Model Penal Code, revised comments, p. 62 (Official Draft 1962).

We therefore decline to modify Elliott and its progeny after more than eleven years by interpreting § 53a-54a (a) to require the reasonableness of a defendant’s extreme emotional disturbance to be determined solely from his subjective viewpoint. Such an interpretation would eviscerate the element of objectivity that the drafters intended to preserve, and that our legislature similarly intended to preserve by enacting a statute that “sets forth a standard that is objective in its overview, but subjective as to the defendant’s [situation and] belief.” State v. Elliott, supra, 7.

Moreover, the court sufficiently conveyed to the jury both the objective and subjective elements involved in the determination of “reasonableness” under the statute by its instruction that the reasonableness of the defendant’s extreme emotional disturbance should be determined from the viewpoint of a reasonable man, placed in the defendant’s situation, under the circumstances as the defendant believed them to be. While this instruction did not correspond to the precise language of § 53a-54a (a), it was entirely consistent with the dual nature of the determination of reasonableness required under the statute. We therefore conclude that the court properly instructed the jury on the affirmative defense of extreme emotional disturbance.

II

The defendant next claims that the court abridged his federal and state constitutional rights to due process by instructing the jury that evidence of his intoxication should not be considered in determining whether he had possessed the mental state of recklessness necessary for conviction of the lesser included offenses of manslaughter in either the first or the second degree. In support of his claim, the defendant argues that although evidence of voluntary intoxication is irrelevant to negate recklessness, such evidence is highly relevant as proof of recklessness. See State v. Shine, 193 Conn. 632, 642, 479 A.2d 218 (1984). He therefore contends that because the jury was not instructed that it could consider such evidence as proof that his mental state had been the less culpable one of recklessness, it is reasonably possible that the jury was misled into rejecting a proper basis for convicting him of manslaughter rather than murder. Due to his failure to preserve this claim by submitting a request to charge on these lesser included offenses or by taking an exception to the charge as given; see Practice Book § 852; the defendant seeks review of the claim under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and alternatively, as plain error under Practice Book § 4185.

In State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), we reformulated the guidelines for appellate review of unpreserved constitutional claims articulated in State v. Evans, supra. See State v. Chicano, 216 Conn. 699, 704, 584 A.2d 425 (1990). We held that a defendant can prevail on such a claim “only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate the harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) State v. Golding, supra. Because a lesser included offense instruction is purely a matter of common law, and therefore does not implicate constitutional rights; see State v. Herring, 210 Conn. 78,105, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989); State v. Thomas, 205 Conn. 279, 282, 533 A.2d 553 (1987); State v. McIntosh, 199 Conn. 155,158, 506 A.2d 104 (1986); State v. Whistnant, 179 Conn. 576, 581, 427 A.2d 414 (1980); the defendant has failed to satisfy the second condition of Golding. Accordingly, his claim for reversal predicated on the alleged impropriety of the court’s lesser included offense instructions necessarily fails.

The defendant’s claim is also unreviewable as plain error under § 4185. Plain error review is reserved for those “ ‘truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.’ ” State v. King, 216 Conn. 585, 591, 583 A.2d 896 (1990). Since the jury, having been instructed not to consider lesser included offenses unless it found the defendant not guilty of the greater offense of murder, found the defendant guilty of murder, we cannot say that the instruction challenged by the defendant undermined the fairness of his trial or resulted in a manifest injustice to him.

Ill

The defendant next claims that he was denied a fair trial by the court’s instruction to the jury concerning the weight of the testimony given by two expert psychiatric witnesses called by him to establish his affirmative defense of extreme emotional disturbance. The court instructed the jury to consider that the defendant already had been accused of murder when the experts examined him, and that, to the extent that their opinions were based upon what the defendant had told them, their testimony should be weighed accordingly. Because the defendant failed to preserve this claim at trial, he seeks review under State v. Evans, supra, or alternatively, under the plain error provision of Practice Book § 4185.

In State v. Golding, supra, we held that a defendant can prevail on an unpreserved constitutional claim only if all of four enumerated conditions are satisfied and that, absent satisfaction of any one of those conditions, the defendant’s claim will fail. To satisfy the second Golding condition, the claim must be one “of constitutional magnitude alleging the violation of a fundamental right . . . .” Id., 239-40. The claim raised by the defendant is not of such constitutional magnitude. State v. McCall, 187 Conn. 73, 88-89, 444 A.2d 896 (1982). Accordingly, we decline to review it under Golding.

The defendant’s claim is similarly unreviewable as plain error under § 4185. Plain error review “ ‘is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.’ ” State v. King, supra. The error claimed here does not merit such review.

IV

The defendant next claims that because he adduced evidence at trial from which the jury could have inferred that he had been intoxicated at the time of the crime, the court should have granted his written request for an instruction that it was the state’s burden to prove beyond a reasonable doubt that he had formed the specific intent to kill his wife in spite of his alleged intoxication. The defendant contends that the omission of such an instruction placed the burden upon him to persuade the jury of his intoxication beyond a reasonable doubt in violation of his constitutional right to due process of law. We disagree.

Our review of the defendant’s claim requires that we examine the court’s entire charge to determine whether it is reasonably possible that the jury could have been misled by the omission of the requested instruction. See State v. Rollinson, 203 Conn. 641, 665, 526 A.2d 1283 (1987); State v. Utz, 201 Conn. 190, 209, 513 A.2d 1191 (1986). While a request to charge that is relevant to the issues in a case and that accurately states the applicable law must be honored, a court need not tailor its charge to the precise letter of such a request. State v. Bennett, 172 Conn. 324, 330, 374 A.2d 247 (1977). If a requested charge is in substance given, the court’s failure to give a charge in exact conformance with the words of the request will not constitute a ground for reversal. See State v. Jennings, 216 Conn. 647, 663, 583 A.2d 915 (1990); State v. Casey, 201 Conn. 174, 178, 513 A.2d 1183 (1986). “ ‘Whether a charge is possibly misleading depends on the substance rather than the form of what is said.’ ” State v. Stevenson, 198 Conn. 560, 571, 504 A.2d 1029 (1986); see State v. McMurray, 217 Conn. 243, 253, 585 A.2d 677 (1991); State v. Kurvin, 186 Conn. 555, 565, 442 A.2d 1327 (1982).

Our perusal of the charge as a whole discloses that the court instructed the jury substantially as the defendant requested, and consequently, it is not reasonably possible that the jury was misled as to the scope of the state’s burden of proof on the element of specific intent. Initially, we note that the court informed the jury that the defendant was not required to prove his innocence, and throughout its charge repeatedly emphasized that it was the state’s burden to prove his specific intent beyond a reasonable doubt. Although repeated references to the presumption of innocence and the state’s burden of proof, alone, might be insufficient in a particular case to dispel the possibility of juror misinterpretation; see Sandstrom v. Montana, 442 U.S. 510, 518 n.7, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979); State v. Stankowski, 184 Conn. 121, 152, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981); see also State v. Fuller, 199 Conn. 273,280, 506 A.2d 556 (1986); the court in this case did not confine its charge to an explication of general principles of law. Rather than leaving the jury to its own devices in assessing the role of intoxication in the case, the court provided the jury with an accurate and comprehensive explanation of the relationship between the state’s burden of proving the element of specific intent and the defendant’s evidence of his intoxication. See State v. Rollinson, supra; compare State v. Fuller, supra.

The court prefaced its instruction on intoxication with a reminder to the jury that the defendant had presented testimony to the effect that he had been intoxicated at the time of the crime, evidence that the jury “must consider in reaching [its] conclusion” whether the state had proved his specific intent beyond a reasonable doubt. The court then recited the statutory definition of the word “intoxication”; see General Statutes § 53a-7; as well as the statutory explanation of the role of intoxication and the relevance of evidence thereof in a prosecution for a specific intent offense: “Intoxication shall not be a defense to a criminal charge, but in any prosecution for an offense evidence of intoxication of the defendant may be offered by the defendant whenever it is relevant to negate an element of the crime charged . . . .” General Statutes § 53a-7; see State v. Stevenson, supra, 570. Immediately thereafter, the court carefully described how the statute applied in the context of this case and in connection with the defendant’s evidence of his intoxication: “If you find that the defendant was intoxicated at the time of the crime, you may take this fact into consideration in determining whether he was in such a state of intoxication as to be incapable of forming the required specific intent which is a necessary element for the commission of the crime of murder. . . . Any intoxication, not merely total intoxication, may be considered in determining whether the defendant possessed the requisite intent.” The court reinforced this concept in the minds of the jury by rephrasing and restating it: “If you find that the defendant was under the influence of an intoxicant at the time of the alleged act, you must then determine what effect, if any, this voluntary intoxication had on his ability to form this specific intent required to commit the alleged crime.”

These instructions, coupled with the court’s general instructions on the presumption of innocence and the state’s burden of proof, adequately apprised the jury that the defendant had introduced evidence of his intoxication for the purpose of negating the element of specific intent, and that the state was required to overcome that evidence by establishing, beyond a reasonable doubt, that he nonetheless had formed the specific intent necessary for conviction of the crime of murder. The combined effect of the instructions was therefore substantially equivalent to the charge requested by the defendant. See State v. Butler, 207 Conn. 619, 635, 543 A.2d 270 (1988). Moreover, at no time did the court suggest that the jury should not consider the defendant’s evidence of his intoxication unless it passed an unlawful evidentiary threshold. The court simply instructed the jury to consider the evidence, along with “all of the testimony and evidence and the circumstances,” in reaching their ultimate conclusion as to whether the state had satisfied its burden of proving the defendant’s specific intent. See State v. Utz, supra, 210; State v. Stevenson, supra, 571-72; compare Cool v. United States, 409 U.S. 100, 103, 93 S. Ct. 354, 34 L. Ed. 2d 335 (1972). No limitation was imposed upon the jury’s consideration of the evidence.

Accordingly, we conclude that there was no reasonable possibility that the jury could have misunderstood the court’s instructions to mean that the defendant was required to prove his intoxication beyond a reasonable doubt, or that the state’s burden of proof did not encompass the burden of proving beyond a reasonable doubt that the defendant specifically intended to kill his wife in spite of his alleged intoxication. We therefore conclude that the court’s omission of the instruction could not have misled the jury.

V

Finally, the defendant challenges the court’s instruction concerning circumstantial evidence as violative of his federal and state constitutional rights to a fair trial and to present a defense. The disputed instruction was given in the context of the court’s general charge on the state’s burden of proof, and is as follows: “It is only the essential elements of the crime . . . that must be proved beyond a reasonable doubt. Proof beyond a reasonable doubt does not mean that you must have direct evidence supporting a fact. You may apply the rule of circumstantial evidence. This rule involves the offering of evidence of facts from which you are asked to infer the existence of another fact or set of facts. Such an inference may be made provided two elements in the application of this [circumstantial evidence] rule are satisfied—that the fact from which you are asked to draw the inference has itself been proven beyond a reasonable doubt and that the inference asked to be drawn is logical and reasonable and not the result of speculation or conjecture. You must be satisfied that the fact to be inferred has been proved beyond a reasonable doubt. It is, however, only where a particular subordinate fact is essential to the proof of an element of the crime that it must be proved beyond a reasonable doubt.”

The defendant claims that by failing to give separate instruction to the jury that he too could rely upon circumstantial evidence, and that the facts inferable from his circumstantial evidence need not be proved beyond a reasonable doubt, the court misled the jury by setting a single “beyond a reasonable doubt” standard for drawing inferences from circumstantial evidence whether offered by the state or the defendant, including the evidence he presented to establish that he had been intoxicated and/or under the influence of an extreme emotional disturbance at the time of the crime. We disagree.

As a threshold matter, we note that the defendant also maintains that we should resolve his claim by inspecting the court’s circumstantial evidence instruction in isolation from the remainder of the charge. He argues that this method of analysis is appropriate because he has challenged the instruction in relation to circumstantial evidence, and intent was the principal factual issue at his trial. These factors alone, however, do not warrant an isolated examination of the court’s instruction. Such exacting scrutiny is reserved for cases presenting these factors in combination with an improper suggestion to the jury that the state’s burden of proof is something less than the “beyond a reasonable doubt” standard. See State v. Whelan, 200 Conn. 743, 757, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986); State v. Rodgers, 198 Conn. 53, 502 A.2d 360 (1985); compare State v. Mercer, 208 Conn. 52, 73, 544 A.2d 611 (1988); State v. McDonough, 205 Conn. 352, 358, 533 A.2d 857 (1987), cert. denied, 485 U.S. 906, 108 S. Ct. 1079, 99 L. Ed. 2d 238 (1988). Since the trial court properly instructed the jury that it was the state’s burden to prove all of the essential elements of the crime charged beyond a reasonable doubt, we decline to deviate from the traditional analysis of claims challenging jury instructions.

Our task in reviewing the defendant’s claims is therefore to examine the court’s circumstantial evidence instruction in the context of the charge as a whole to determine whether it is reasonably possible that the instruction misled the jury. State v. Mercer, supra; State v. Hufford, 205 Conn. 386, 407-408, 533 A.2d 866 (1987); see State v. Dyson, 217 Conn. 498, 501, 586 A.2d 610 (1991). Because the defendant’s claim regarding circumstantial evidence of his intoxication implicates concerns distinct from those implicated by his claim regarding circumstantial evidence of his extreme emotional disturbance, we consider the claims separately.

A

The defendant’s first circumstantial evidence claim involves the evidence that he presented to establish that he had been intoxicated at the time of the crime. After reviewing the court’s entire charge in connection with this claim, we are unpersuaded that it is reasonably possible that the jury was misled by the court’s omission of a separate instruction on this evidence.

The court gave its charge on circumstantial evidence as part of its general charge on the state’s burden of proof. The instruction was preceded by the following statements: “The accused does not have to prove that he did not commit the offense. The State must prove that he did. The presumption of innocence applies to each and every element of the crime. ... Its only effect is to place upon the State the burden of proving the defendant’s guilt beyond a reasonable doubt. . . . It is only the essential elements of the crime . . . that must be proved beyond a reasonable doubt.” As more extensively discussed in Part IV, supra, the court separately and comprehensively instructed the jury on the role of intoxication in the case, at no time suggesting that the defendant’s circumstantial evidence of his intoxication should be ignored unless it satisfied the “beyond a reasonable doubt” standard distinctly set forth as applicable to the state. We therefore conclude that it is not reasonably possible that the jury could have been misled to apply the “beyond a reasonable doubt” standard to the facts inferable from the defendant’s circumstantial evidence of his intoxication.

We are likewise unpersuaded that it was misleading for the court to omit a separate instruction that the defendant could rely upon circumstantial evidence to establish his intoxication. Although the defendant was entitled to present evidence of his intoxication in order to negate the element of specific intent; see General Statutes § 53a-7; his choice to do so did not impose upon him any burden to establish his intoxication or otherwise persuade the jury that a reasonable doubt as to his guilt existed. Even if the defendant’s evidence of his intoxication was insufficient to raise a reasonable doubt, or if the defendant had presented no evidence, the jury would have been required to acquit him of the crime of murder if the state’s evidence, or the lack thereof, did not persuade the jury of the defendant’s specific intent beyond a reasonable doubt. The instruction requested by the defendant could therefore have misled the jury to believe that if he did not sufficiently “establish” his intoxication, he could not be acquitted on the basis of a reasonable doubt growing from any perceived inadequacy in the state’s proof. Not only could such an instruction confuse a jury, but also, without properly emphasizing that the defendant had no burden to prove his innocence, such an instruction could dilute the constitutional protection afforded to an accused “against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); see State v. Gabriel, 192 Conn. 405, 413, 473 A.2d 300 (1984).

Consequently, we find it sufficient that the court simply instructed the jury that it “must consider” the defendant’s wholly circumstantial evidence of his intoxication, along with “all of the testimony and [the] evidence and the circumstances,” in making its properly focused determination of whether the state had met its burden of proving his specific intent beyond a reasonable doubt. Accord United States v. Gulino, 588 F.2d 256, 257-58 (9th Cir. 1978); compare Cool v. United States, 409 U.S. 100, 103, 93 S. Ct. 354, 34 L. Ed. 2d 335 (1972). In the absence of a fair indication to the contrary, we presume that as instructed, the jury considered all of the evidence in the case, including the defendant’s circumstantial evidence of his intoxication, in making this determination. See State v. Jennings, 216 Conn. 647, 664, 583 A.2d 915 (1990).

B

The defendant’s second circumstantial evidence claim concerns the evidence that he adduced to prove his affirmative defense of extreme emotional disturbance. He asserts that the court’s failure to give a separate circumstantial evidence instruction with respect to this evidence misled the jury to apply the “beyond a reasonable doubt” standard to the facts inferable from the evidence. Upon consideration of the court’s charge as a whole, we are unpersuaded.

As previously noted, the court’s circumstantial evidence instruction was given in the context of its general charge on the state’s burden of proof. Subsequently, the court separately instructed the jury on the affirmative defense of extreme emotional disturbance. Its instruction on the affirmative defense did not include any indication that the jury should apply the “beyond a reasonable doubt” standard to the defendant’s circumstantial evidence of his extreme emotional disturbance. Rather, the court specifically distinguished the standard of proof applicable to the defendant: “[EJxtreme emotional disturbance is an affirmative defense and the burden is upon the defendant to prove the three elements of his defense by a preponderance of the evidence. ... If you find that the defendant has sustained his burden of proving his defense by a preponderance of the evidence, then you must find him not guilty of murder.” (Emphasis added.) See General Statutes § 53a-12 (b).

Furthermore, the court went on to describe the manner in which the “preponderance” standard should be applied: “[TJake all of the evidence that has been offered on this issue by both the defendant and the State and weigh and balance it. If the better and weightier evidence inclines in the defendant’s favor, then he sustains his burden of proving extreme emotional disturbance.” (Emphasis added.) Since the defendant’s evidence in support of his affirmative defense was purely circumstantial, this instruction clearly informed the jury, albeit implicitly, that the evidence should be considered in determining whether the defendant satisfied his burden of proof by a preponderance of the evidence. We therefore conclude that the court’s omission of a separate instruction with respect to the defendant’s circumstantial evidence of his extreme emotional disturbance could not possibly have misled the jury. See State v. Mercer, supra; State v. Hufford, supra.

The judgment is affirmed.

In this opinion the other justices concurred.

       “[General Statutes] Sec. § 53a-54a. murder defined, affirmative DEFENSES. EVIDENCE OF MENTAL CONDITION. CLASSIFICATION, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       “[General Statutes] Sec. § 53a-7. effect of intoxication. Intoxication shall not be a defense to a criminal charge, but in any prosecution for an offense evidence of intoxication of the defendant may be offered by the defendant whenever it is relevant to negate an element of the crime charged, provided when recklessness or criminal negligence is an element of the crime charged, if the actor, due to self-induced intoxication, is unaware of or disregards or fails to perceive a risk which he would have been aware of had he not been intoxicated, such unawareness, disregard or failure to perceive shall be immaterial. As used in this section, ‘intoxication’ means a substantial disturbance of mental or physical capacities resulting from the introduction of substances into the body.”

       The defendant also claims that the court should have instructed the jury that his evidence of his intoxication should be considered in determining whether, from his viewpoint, the explanation or excuse for his alleged extreme emotional disturbance was reasonable. Because we hold in Part I, infra, that under General Statutes $ 53a-54a (a) the reasonableness of the explanation or excuse for a defendant’s extreme emotional disturbance is to be determined not from the defendant’s viewpoint, but from the viewpoint of a person in the defendant’s situation and under the circumstances as he believed them to be, we need not address this claim.

       Although the defendant characterizes this claim as constitutional, we consider it as involving only a question of statutory construction.

       See footnote 1, supra.

       Because General Statutes § 53a:54a (a) is almost a literal copy of New York Penal Law § 125.25 (1) (a), we find it appropriate to resort to the decisions of New York courts construing the common statutory language. See State v. Asherman, 193 Conn. 695, 732 n.12, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985); State v. Elliott, 177 Conn. 1, 4-5, 411 A.2d 3 (1979).

       This notion of excluding a defendant’s moral values from the subjective aspect of the inquiry is reiterated in the comments explaining the intended meaning of the phrase “the defendant’s situation”: “On the one hand, it is clear that personal handicaps and some external circumstances must be taken into account. Thus, blindness, shock from traumatic injury, and extreme grief are all easily read into the term ‘situation.’ ... On the other hand, it is equally plain that the idiosyncratic moral values are not part of the actor’s situation. An assassin who kills a political leader because he believes it is right to do so cannot ask that he be judged by the standard of a reasonable extremist. Any other result would undermine the normative message of the criminal law.” (Emphasis added.) Model Penal Code § 201.3 (1) (b), revised comments, p. 62 (Official Draft 1962).

       The defendant contends that the objective element of the standard for evaluating the reasonableness of extreme emotional disturbance should be “whether the actor’s loss of self-control can be understood in terms that arouse sympathy in the ordinary citizen.” Although this language of this suggested objective element finds support in the comments of the drafters; see Model Penal Code § 201.3 (1) (b), comment, p. 48 (Tent. Draft. No. 9 1959); see also State v. Elliott, 177 Conn. 1, 8, 411 A.2d 3 (1979); neither the drafters nor our legislature chose to include such language in the statutory standard. Consequently, we decline to read that language into the standard embodied in General Statutes § 53a-54a (a). See Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 540, 582 A.2d 1174 (1990).

       In this respect, we note that immediately prior to the instruction challenged by the defendant, the court admonished the jury: “If you find that the defendant acted under the influence of emotional disturbance and that it was extreme, you must then consider whether there is a reasonable explanation or excuse for such disturbance. You must measure the reasonableness from the viewpoint of a person in the defendant’s situation under the circumstances as he believed them to be. ” (Emphasis added.) This instruction conforms to the language of General Statutes § 53a-54a (a) and does not contain the disputed reference to a “reasonable man.”

       The defendant’s reliance upon State v. Preyer, 198 Conn. 190, 502 A.2d 858 (1985), as authority for considering the court’s instruction as plain error is misplaced. In Preyer, we found it evident from the instruction given that the court had overlooked a statute providing for a defense to the crime charged. Id., 199. Since the defendant’s claim concerns lesser included offense instructions, the alleged inadequacy of which is not claimed to have arisen from the court’s failure to take into account an applicable statute, Preyer is inapposite to this case.

       Without deciding whether the defendant’s claim is one of constitutional dimension, we note that “[a]n erroneous instruction, even of constitutional dimension, is harmless if, viewed in the context of the charge as a whole, there is no reasonable possibility that the jury [was] misled. State v. Hines, 187 Conn. 199, 209, 445 A.2d 314 (1982).” State v. Carrione, 188 Conn. 681, 685, 453 A.2d 1137 (1982), cert. denied, 460 U.S. 1084, 103 S. Ct. 1775, 76 L. Ed. 2d 347 (1983).

       See footnote 2, supra.

       Because the defendant has not separately analyzed his federal and state due process claims, we consider only his federal claim. See State v. McMurray, 217 Conn. 243, 248 n.6, 585 A.2d 677 (1991).

       While we have held that a defendant must produce evidence sufficient to raise a reasonable doubt in order to warrant the submission of an instruction on intoxication to the jury; see State v. Carter, 189 Conn. 611, 627-28, 458 A.2d 369 (1983); we have never suggested that a defendant must establish a reasonable doubt as to his lack of specific intent in order to secure an acquittal.

       General Statutes § 53a-12 (b) provides: “When a defense declared to be an affirmative defense is raised at a trial, the defendant shall have the burden of establishing such defense by a preponderance of the evidence.”