author: Spallone, J.

text:
    Raymond W. Ganim, Guardian ad Litem for Leslie Nicole Martin v. Pat Roberts, Jr., Administrator (Estate of Pat Roberts III)
    (12937)
    Peters, C. J., Healey, Callahan, Spallone and Spear, Js.
    Argued May 5
    decision released August 11, 1987

      William A. Pelletreau, with whom, on the brief, waJoseph C. Ventricelli, for the appellant (defendant).

      David J. Laudano, for the appellee (plaintiff).
   Spallone, J.

This case concerns the inheritance rights of a putative father in the estate of a deceased child. The dispositive issue is whether a putative father may establish his paternity under General Statutes § 46b-172a after the child dies. Because we conclude that § 46b-172a, when read in its entirety, contemplates that an adjudication of paternity take place during the lifetime of the child in question, we hold that a putative father cannot rely on this statute to establish paternity after the death of the child. We further hold that such an interpretation of § 46b-172a does not impermissibly discriminate against unwed fathers in violation of the equal protection clauses of the federal or state constitutions. We thus hold that, under our present statutory scheme, a man claiming to be the father of a child must establish his paternity during the lifetime of the child if he is to inherit from the estate of the deceased child.

The following facts are not in dispute. On January 19, 1983, Edith Martin and her son, Pat Roberts III, were simultaneously killed in an automobile accident. At the time of his death, Pat Roberts III was approximately eight months old, and he died intestate. Before their deaths, Martin and her son had been living with the defendant, Pat Roberts, Jr. The defendant had been living with Martin since 1974 but the couple never had been legally married. The defendant had contributed to the support of Pat Roberts III throughout the child’s life, and he was acknowledged as the child’s father on the child’s birth certificate. No legal determination of paternity, however, had been made during the child’s lifetime. The child was survived by a half-sister, Leslie Nicole Martin, who had been born to Edith Martin and a man other than the defendant in 1971.

On March 4, 1983, the plaintiff, attorney Raymond Ganim, was appointed guardian ad litem for Leslie Nicole Martin. On March 9,1983, the defendant, pursuant to General Statutes § 46b-172a, filed an application with the Probate Court, district of Stratford, seeking to be declared the father of Pat Roberts III. On May 24,1983, the Stratford Probate Court adjudicated the defendant the father of the deceased child. On June 16,1983, the defendant was appointed administrator of the estate of Pat Roberts III. Thereafter, the defendant, acting as administrator, petitioned the Probate Court for an advance distribution to himself as sole distributee of the estate. On January 14,1985, the Probate Court approved the defendant’s petition for an advance distribution but stayed its order pending an appeal by a proper party in interest.

On January 31,1985, the plaintiff appealed from the decision of the Probate Court to the Superior Court, claiming that the defendant had no right to receive a distribution from the estate of Pat Roberts III because the defendant had failed to be adjudicated the father of the deceased child during the child’s lifetime as required by General Statutes § 46b-172a. The trial court agreed with the plaintiff and sustained the appeal from probate. The defendant has appealed.

The defendant first claims that the trial court erred in construing § 46b-172a to require that a paternity action under this statute must be brought during the lifetime of the child. The defendant asserts that such a construction “amounts to a seamless web of statutory construction which flies in the face of reality.” We disagree.

A primary rule of statutory construction is that if the language of the statute is clear, it is presumed that the words express the intent of the legislature. Orticelli v. Powers, 197 Conn. 9, 13, 495 A.2d 1023 (1985); State v. Smith, 194 Conn. 213, 222, 479 A.2d 814 (1984); Gomeau v. Forrest, 176 Conn. 523, 526, 409 A.2d 1006 (1979). The court must interpret the statute as written; Muha v. United Oil Co., 180 Conn. 720, 730, 433 A.2d 1009 (1980); and it is to be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation. Peck v. Jacquemin, 196 Conn. 53, 63, 491 A.2d 1043 (1985); Seaman v. Climate Control Corporation, 181 Conn. 592, 605, 436 A.2d 271 (1980). “Each word used by the legislature should be given effect and, as far as possible, the entire enactment is to be harmonized.” State v. Parmalee, 197 Conn. 158, 162, 496 A.2d 186 (1985); State v. Grant, 176 Conn. 17, 20, 404 A.2d 873 (1978); Winchester v. Connecticut State Board of Labor Relations, 175 Conn. 349, 355-56, 402 A.2d 332 (1978). Words and phrases of a statute are to be construed according to the commonly approved usage of the language. Shieffelin & Co. v. Department of Liquor Control, 194 Conn. 165, 174, 479 A.2d 1191 (1984); Caldor, Inc. v. Heffernan, 183 Conn. 566, 570, 440 A.2d 767 (1981).

Applying these principles to the statutory language of General Statutes § 46b-172a, we conclude that an adjudication of paternity under this statute can only be made during the lifetime of the child. Each subsection of the statute speaks in terms of a living child. Subsection (a) provides: “Any person claiming to be the father of a child born out of wedlock may . . . file a claim for paternity with the court of probate for the district in which . . . the child resides . . . .” (Emphasis added.) Subsection (c) provides: “The child shall be made a party to the action. Said child shall be represented by a guardian ad litem .... ’’(Emphasis added.) Furthermore, subsection (g) provides “[thereafter, disputes involving custody, visitation or support shall be transfered to the superior court . . . except that the probate court may enter a temporary order for custody, visitation or support . ... ” (Emphasis added.) Only a living child “resides” in a district, can be made a “party” to the action, can be represented by a guardian ad litem; see General Statutes § 45-54 (e); or can be the subject of custody, visitation and support orders. The trial court correctly concluded that an adjudication of paternity, under General Statutes § 46b-172a, can only be made during the lifetime of the minor child. Cf. Hayes v. Smith, 194 Conn. 52, 58-61, 480 A.2d 425 (1984) (paternity action under General Statutes § 46b-160 must be instituted during the lifetime of putative father).

The defendant contends, however, that the savings statute, General Statutes § 52-599, operates to preserve the defendant’s right to establish his paternity under General Statutes § 46b-172a. General Statutes § 52-599 provides in part that “[a] cause or right of action shall not be lost or destroyed by the death of any person, but shall survive in favor of or against the executor or administrator of the deceased person.” The defendant contends that a paternity action is a civil action and comes within the provisions of General Statutes § 52-599.

We find no merit in this contention. The savings provisions of § 52-599 do not apply to “any civil action or proceeding whose prosecution or defense depends upon the continued existence of the persons who are plaintiffs or defendants.” General Statutes § 52-599 (c) (2). Because § 46b-172a expressly requires that proceedings for an adjudication of paternity include a living child as a party, we find this exception to be applicable. See Hayes v. Smith, supra, 63-64.

The defendant next contends that the trial court erred in failing to address his state and federal constitutional claims. The defendant asserts that had the trial court addressed these claims, it would have found that its construction of § 46b-172a violated the equal protection and due process clauses of the fourteenth amendment to the United States constitution and the Connecticut constitution. We construe the plaintiffs claim as a claim that the trial court’s construction of General Statutes § 46b-172a discriminates on the basis of sex in that it requires unmarried fathers to undergo a statutory legitimization procedure not required of an unmarried mother in order to inherit from a deceased child.

We conclude that the case of Parham v. Hughes, 441 U.S. 347, 99 S. Ct. 1742, 60 L. Ed. 2d 269 (1979), controls this claim. In that case, a minor child and his mother were killed in an auto accident, and the biological father attempted to recover for the child’s wrongful death in a Georgia state court. The father had never legitimized the child, although he had signed the child’s birth certificate and contributed to his support. While Georgia law allowed a mother of an illegimate child to bring a wrongful death action, the father could bring a wrongful death action only if, inter alia, he had legitimized the child. Id., 348-49. The father claimed that the Georgia statute violated the federal equal protection clause because the statute discriminated between unmarried mothers and unmarried fathers by requiring only unmarried fathers to utilize the statutory legitimization procedure in order to bring a wrongful death action.

The United States Supreme Court disagreed, with a majority of the court holding that the gender classification in the Georgia statute did not violate the equal protection clause of the fourteenth amendment. A plurality of the court held that the statute did not invidiously discriminate based on gender, because the statute did not reflect any broad generalizations about men as a class, but rather distinguished between fathers who had legitimized their children and those who had not. Id., 355-56. The plurality, therefore, applied the “rational relationship” test and held that the statutory classification was a rational means for addressing the legitimate state interest in proving paternity. Id., 357-58. In a concurring opinion, Justice Powell held that the statutory classification did involve a gender-based distinction and decided, therefore, that the statute should be reviewed under the intermediate scrutiny standard afforded to gender classifications. Id., 359 (Powell, J., concurring). He concluded, however, that the gender-based distinction in the statute was substantially related to the achievement of the important state objective of avoiding difficult problems in proving paternity after the death of an illegitimate child. Id., 360-61. A majority of the court, therefore, found no equal protection violation in the statutory scheme.

Here, the defendant has raised essentially the same equal protection claim that the United States Supreme Court rejected in Parham v. Hughes, supra. The same state interest in avoiding fraudulent claims in a deceased child’s estate that was recognized by both the plurality and concurring opinions in Parham is presented by the facts of this case. See also Hayes v. Smith, supra, 68-69 (recognizing that the state has a substantial interest in minimizing problems in the administration of estates arising out of unresolved claims of paternity). We conclude, therefore, that the state interest in this matter is sufficient to justify the implicit gender classification in § 46b-172, and that such a classification does not violate either state or federal equal protection clauses.

The defendant, during the lifetime of the child, never sought an adjudication of paternity through any of the several avenues available to him. The defendant could have acknowledged paternity voluntarily under § 46b-172, or sought an adjudication of paternity during the lifetime of the child under § 46b-172a, or, of course, he could have married the child’s mother and thus legitimized the child pursuant to General Statutes § 45-274 (b) (l). He pursued none of these options during the child’s lifetime. Had he done so, he would have been legally liable for the support and maintenance of the child and would have assumed other legal responsibilities of parenthood. Without having done so, however, he cannot assume the status of legal beneficiary upon the child’s death.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 46b-172a provides in part: “(a) Any person claiming to be the father of a child bom out of wedlock may at any time but no later than sixty days after the date of notice under section 45-61d, file a claim for paternity with the court of probate for the district in which either the mother or the child resides, on forms provided by such court. . . .
      “(c) The child shall be made a party to the action. Said child shall be represented by a guardian ad litem appointed by the court ....
      “(g) Once alleged parental rights of the father have been adjudicated in his favor . . . disputes involving custody, visitation or support shall be transferred to the superior court under chapter 815j, except that the probate court may enter a temporary order for custody, visitation or support until an order is entered by the superior court. . . .”

       We note that the plaintiff did not contest the Probate Court’s adjudication of paternity until the defendant applied for an advance distribution some twenty months later, long after the time specified in General Statutes § 45-289 for taking appeals had elapsed. The plaintiff, although he timely appealed from the order approving the advance distribution is, in essence, contesting the adjudication of paternity made by the Probate Court from which no appeal had been taken. We note, however, that the defendant has not claimed that this issue is barred by the doctrine of res judicata. Moreover, even if the plaintiff had made such a claim, we would not find it to be availing. Because we hold in this opinion that the trial court correctly concluded that no adjudication of paternity under General Statutes § 46b-172a can be made after the child’s death, we find that the earlier adjudication of paternity made by the Probate Court was outside of its jurisdiction and was a plain excess of authority subject to attack in a collateral proceeding. See Meinket v. Levinson, 193 Conn. 110, 114, 474 A.2d 454 (1984).

       The legislature might well have concluded that a paternity adjudication should take place during the lifetime of all the relevant parties in order to afford access to blood grouping tests. Cf. Moore v. McNamara, 201 Conn. 16, 513 A.2d 660 (1986).

       Because the equal protection provisions of the federal constitution and our state constitution have the same meaning and limitations; Keogh v. Bridgeport, 187 Conn. 53, 66, 444 A.2d 225 (1982); and because the defendant has not attempted to distinguish between his state and federal equal protection rights; see State v. Alexander, 197 Conn. 180, 183 n.1, 496 A.2d 486 (1985); we view our discussion of the defendant’s federal claim as controlling his state claim.

       Because the defendant has made only a bare assertion of a due process violation without developing his argument either in his brief or at oral argument, we deem his due process claims to be abandoned. Hayes v. Smith, 194 Conn. 52, 66 n.12, 480 A.2d 425 (1984); Rodriguez v. Mallory Battery Co., 188 Conn. 145, 149, 448 A.2d 829 (1982).

       There is no statutory requirement that unmarried mothers undergo a legitimization procedure to establish their maternity of illegitimate children.

       As the alleged discriminatory classification in this case is based on gender, this case is distinguishable from cases addressing the constitutionality of classifications based on illegitimacy. Parham v. Hughes, 441 U.S. 347, 352-53, 99 S. Ct. 1742, 60 L. Ed. 2d 269 (1979); see Lalli v. Lalli, 439 U.S. 259, 99 S. Ct. 518, 58 L. Ed. 2d 503 (1978); Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L. Ed. 2d 31 (1977); Hayes v. Smith, 194 Conn. 52, 65-69, 480 A.2d 425 (1984).

       The United States Supreme Court has developed several standards for reviewing statutory classifications that are claimed to violate the equal protection clause. Laws that do not involve “inherently suspect” classifications have traditionally been evaluated to determine only if the classification bears a rational relationship to a permissible state objective. See, e.g., New York City Transit Authority v. Beazer, 440 U.S. 568, 592, 99 S. Ct. 1355, 59 L. Ed. 2d 587 (1979); Schieffelin & Co. v. Department of Liquor Control, 194 Conn. 165, 186, 479 A.2d 1191 (1984). Classifications that are inherently suspect, such as racial classifications, or those that impinge upon the exercise of a fundamental right, are subject to “strict scrutiny,” and will be upheld only if the classification is necessary to further a compelling state interest. McLaughlin v. Florida, 379 U.S. 184, 191-92, 85 S. Ct. 283, 13 L. Ed. 2d 222 (1964); Ryszkiewicz v. New Britain, 193 Conn. 589, 596, 479 A.2d 793 (1984). In recent years, the United States Supreme Court has applied an intermediate level of scrutiny to certain gender-based classifications, upholding the classification if it is substantially related to an important governmental objective. Craig v. Boren, 429 U.S. 190, 197, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976), reh. denied, 429 U.S. 1124, 97 S. Ct. 1161, 51 L. Ed. 2d 574 (1977); see also note, “The End of an Era for Single-Sex Schools?: Mississippi University for Women v. Hogan, ” 15 Conn. L. Rev. 353, 355-63 (1983).

       The four dissenting members of the Court found the statute to contain a gender-based classification which was not substantially related to an important governmental objective. Parham v. Hughes, 441 U.S. 347, 361-68, 99 S. Ct. 1742, 60 L. Ed. 2d 269 (1979) (White, J., dissenting).

       The defendant’s claim that he acknowledged paternity by consenting to the inclusion of his name on the child’s birth certificate is unavailing. The statutes that provide for an adjudication of paternity require a written acknowledgment and an affirmation under oath, both of which must be entered as an order of the appropriate court. The fact that the defendant’s name appears on the birth certificate is only evidence of paternity, as is the fact that the child lived with, and received support from, the defendant.

       General Statutes (Rev. to 1983) § 46b-172 provides in part: “(a) In lieu of or in conclusion of proceedings under section 46b-160, the written acknowledgment of paternity executed by the putative father of the child when accompanied by a written affirmation of paternity executed and sworn to by the mother of the child and filed with the superior court for the geographical area in which the mother of the child or the putative father resides shall have the same force and effect as a judgment of that court; and an agreement to support the child by payment of a weekly sum until the child attains the age of eighteen years, together with provisions for reimbursement for lying-in expense, accrued maintenance and reasonable expense of prosecution of the petition, when filed with, and approved by a judge of, said court, at any time, shall have the same force and effect, retroactively or prospectively in accordance with the terms of said agreement, as an order of support entered by that court, and shall be enforceable and subject to modification in the same manner as is provided by law for orders of the court in such cases. . . .”

       General Statutes § 45-274 (b) (1) provides: “Children born before marriage whose parents afterwards intermarry shall be deemed legitimate and inherit equally with other children.”


source: Caselaw Access Project

author: Shea, J.

license: Public Domain

text:
    State of Connecticut v. John Silano
    (12909)
    Peters, C. J., Healey, Shea, Callahan and Covello, Js.

      Argued June 4
    decision released August 11, 1987

      Richard Emanuel, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Gary W. Nicholson, assistant state’s attorney, for the appellee (state).
   Shea, J.

The defendant was convicted after a jury trial of arson in the first degree in violation of General Statutes § SSa-lll. In his appeal from the judgment the defendant claims that the trial court erred: (1) in instructing the jury concerning (a) the inferences it might draw from circumstantial evidence and (b) the elements of the crime of arson in the first degree; (2) in allowing the state to ask a question on cross-examination concerning his postarrest silence after Miranda warnings had been given; and (3) in denying his motion for a judgment of acquittal filed on the ground that the evidence was insufficient to establish his guilt beyond a reasonable doubt. We find no error.

The jury could reasonably have found from the evidence that on September 3,1984, a fire started in the basement of the Lanza Market in Bridgeport, where the defendant worked as a butcher. His brother owned the store, which sold groceries. Lieutenant Andrew Fardy of the Bridgeport fire department received two calls, one on August 30 and the other on the afternoon of September 3, informing him that someone was going to burn down the Lanza Market. On the date of the fire, Fardy and Bridgeport police detective Albert Fedorek saw the defendant go down the basement stairway. Shortly before the fire had begun, Fardy observed the defendant run from the rear of the store. The two officers subsequently apprehended the defendant and arrested him. Following his conviction, the defendant was sentenced to a term of twelve years, execution of that term suspended after seven years, and then to a term of probation for five years.

I

A

The defendant challenges the charge to the jury upon the use of circumstantial evidence and upon the elements of the crime of arson in the first degree. The defendant claims that the trial court’s instructions concerning circumstantial evidence impermissibly diminished or diluted the requisite constitutional standard for proof of guilt beyond a reasonable doubt. Ordinarily the defendant’s failure to except to this portion of the court’s charge, or to file a request to charge on circumstantial evidence would preclude review. Practice Book §§ 854, 4185. We shall review his claim, however, because it implicates the fundamental constitutional right that the state prove the guilt of an accused beyond a reasonable doubt. In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Miller, 202 Conn. 463, 489-90, 522 A.2d 249 (1987); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

The defendant objects to portions of the charge in which the court used the phrase “reasonable and logical” as the criterion for drawing inferences from circumstantial evidence. The following excerpt from the charge is illustrative: From the circumstantial evidence “you are asked to draw whatever inference or conclusion is reasonable and logical. If it’s not reasonable, it’s not logical, then you cannot draw it. If it is reasonable and is logical, you should draw it, but you don’t have to. That’s a jury’s prerogative. They are asked to do it. They should do it. But whether you do or not, is up to you.” The defendant maintains that this instruction, allowing jurors to draw “reasonable” and “logical” inferences from circumstantial evidence, implies an even lower standard of proof in a criminal case than the impermissible “more probable than not” test. In 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), and in State v. Rodgers, 198 Conn. 53, 56-59, 502 A.2d 360 (1985), we found constitutional error where a portion of the charge may have implied that a jury should draw inferences from circumstantial evidence concerning a defendant’s criminal intent if those inferences were more probable than not.

After giving the quoted instruction, the court told the jury that inferences could be drawn only if both the basic facts and the inferred facts were proved beyond a reasonable doubt. “Of course, [in] passing upon the guilt of an accused person on the basis of circumstantial evidence, you must be satisfied beyond a reasonable doubt first, that certain facts or circumstances exist and second, that the existence of those facts or circumstances do beyond a reasonable doubt, reasonably and logically lead you to other facts establishing that the crime was committed by the accused.” This instruction, closely following the reference to drawing inferences from circumstantial evidence when “reasonable and logical,” leaves little basis for the defendant’s constitutional challenge to that language.

We have often said that the charge should be read as a whole. “It is well established . . . that individual instructions are not to be judged in artificial isolation from the overall charge. State v. Dolphin, 195 Conn. 444, 451, 488 A.2d 812 (1985); State v. Reid, 193 Conn. 646, 660, 480 A.2d 463 (1984); State v. Hines, 187 Conn. 199, 209, 44 A.2d 314 (1982). The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict; State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982); State v. Williams, 182 Conn. 262, 269, 438 A.2d 80 (1980); State v. Piskorski, 177 Conn. 677, 746-47, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979); and not critically dissected in a microscopic search for possible error. State v. Harris, 172 Conn. 223, 226-27, 374 A.2d 203 (1977).” State v. Reddick, 197 Conn. 115, 132, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986); State v. Miller, supra, 491-92; State v. Whelan, supra, 757; State v. Widget, 11 Conn. App. 47, 52, 525 A.2d 548 (1987).

In the course of a charge on drawing inferences from circumstantial evidence, a court may correctly instruct a jury that it has the prerogative to draw inferences that are “reasonable” and “logical.” Such an instruction, at least when qualified, as in this case, by a caveat that both the ultimate inference of guilt and the facts essential to that inference must be proved beyond a reasonable doubt, does not dilute the constitutional standard of proof in a criminal case. We do not perceive the same potential for confusion of the jury in the “reasonable” and “logical” language that we have found in the “more probable than not” phrase. We note that three recent Appellate Court decisions have rejected claims that an instruction permitting a jury to draw “reasonable and logical” inferences is improper. State v. Widget, supra; State v. Wylie, 10 Conn. App. 683, 691-92, 525 A.2d 528 (1987); State v. Wright, 9 Conn. App. 275, 280-82, 518 A.2d 658 (1986). “The statement that inferences should be reasonable and logically drawn is not, in and of itself, erroneous. In fact, such an instruction, it has previously been recognized, is ‘entirely proper.' State v. Wright, supra, 282; see State v. Tatem, 194 Conn. 594, 598, 483 A.2d 1087 (1984); D. Borden & L. Orland, Connecticut Criminal Jury Instructions § 2.5, pp. 43-44.” State v. Wylie, supra, 691.

Although we do not believe that the disputed instructions, in the context of those immediately following, implied a “more probable than not” standard, even if they did suggest such a test the charge as a whole still met constitutional standards as applied to the issues in this case. We have affirmed convictions even though the court employed “more probable than not” language in the charge. State v. Miller, supra, 490-91; State v. Reddick, supra, 131-33. Even where we have reversed a conviction because of an erroneous use of a probability standard for drawing inferences, this court has employed the “reasonable and logical” terminology: “The inference drawn must be reasonable and logical, and not the result of speculation or conjecture. State v. Gaynor, 182 Conn. 501, 503, 438 A.2d 749 (1980).” State v. Rodgers, supra, 57. There is nothing inherently objectionable about a judge permitting, but not requiring, a jury to draw “reasonable and logical” inferences from circumstantial evidence so long as it is made clear that the ultimate inference of guilt as well as the facts essential thereto must be established beyond a reasonable doubt.

B

The defendant claims that the trial court erred in its instructions to the jury on one of the essential elements of arson in the first degree, the requirement that “at the scene of such fire or explosion a peace officer or firefighter [be] subjected to a substantial risk of bodily injury.” General Statutes § 53a-lll (a) (4). During the course of the charge the trial court stated: “It is sufficient that at the time the fire was set, a reasonable person could have foreseen that the risk of bodily injury was substantial.” The defendant contends that this isolated instruction was erroneous, and claims that a conviction for arson in the first degree requires that the fire which actually develops must pose a substantial risk to a peace officer or firefighter.

The defendant took no exceptions to the trial court’s charge. More importantly, the defendant filed a request to charge in which he requested that the trial judge employ the definition of “substantial risk” used in State v. Parmalee, 197 Conn. 158, 496 A.2d 186 (1985). In Parmalee, this court declared that “[t]he very act of setting the fire and placing others at substantial risk triggers liability under [General Statutes (Rev. to 1981) § 53a-112].” Id., 164. The defendant now contends that the State v. Parmalee, supra, standard is appropriate only in a second degree arson case, and is improper, in a first degree arson prosecution in which the state must prove the additional element that “a peace officer or firefighter [be] subjected to a substantial risk of bodily injury.” General Statutes § 53a-lll (a) (4).

The defendant’s procedural defaults would ordinarily preclude review. Practice Book §§ 854, 4185. Because a failure properly to instruct the jury on each element of the crime charged might result in denying the defendant due process of law, we shall nevertheless consider it. State v. Cobb, 199 Conn. 322, 326, 507 A.2d 457 (1986); State v. Fleming, 198 Conn. 255, 269-70, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986); State v. Zayas, 195 Conn. 611, 616, 490 A.2d 68 (1985). Our inquiry, however, is of a limited nature. “ ‘A claimed constitutional error, raised for the first time on appeal, will be examined, if at all, not to ascertain whether the ruling or instruction was undesirable, erroneous, or even universally condemned but rather whether when viewed in the context of the entire trial it violated some right guaranteed to the defendant by the fourteenth amendment to the constitution of the United States; Cupp v. Naughten, 414 U.S. 141, 146, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973); or article first, § 8 of the constitution of Connecticut.’ State v. Kurvin, 186 Conn. 555, 564-65, 442 A.2d 1327 (1982). The question then is whether, considering the substance of the charge rather than the form of what was said, it is reasonably possible that the jury was misled. State v. Smith, [194 Conn. 213, 219, 479 A.2d 814 (1984)].” State v. Zayas, supra, 616-17. “It is the rare case in which an improper instruction will justify a reversal of a criminal conviction when no objection has been made in the trial court.” Henderson v. Kibbe, 431 U.S. 145, 154, 97 S. Ct. 1730, 52 L. Ed. 2d 203 (1977).

When the charge is read as a whole, and its “substance” is examined rather than isolated portions of it, the instructions made it clear to the jury that a firefighter or peace officer at the scene of the fire must actually be subjected to a substantial risk. The defendant objects to ah isolated sentence in a charge that otherwise conforms to the instructions he would now request. Thus, even if we accept the defendant’s proposed interpretation of the first degree arson statute, General Statutes § 53a-111 (a) (4), the instructions were sufficient to meet the test proposed by the defendant on appeal, at least under the limited standard of review applicable where the error relied upon has been induced by the defendant. State v. Zayas, supra; State v. Kur vin, supra. The court charged: “The essential element is that a peace officer or firefighter must be proven to have been at the scene of the fire and while at the place or location of the fire, the peace officer or firefighter was subject to a substantial risk of bodily injury. . . . The requirement is that they must actually be present at the location at the place of the fire, but there is no requirement that they actually sustain or incur any bodily injury. But only that such a person is subject to a substantial risk of bodily injury at the scene of the fire. ” (Emphasis added.) The charge next defined what constitutes a substantial risk. “In further determining whether this element has been proven beyond a reasonable doubt, you must determine that a fire which actually developed posed something more than a reasonable possibility of endangering a peace officer or a firefighter. A substantial risk is one that is real, considerable or material.” (Emphasis added.)

A single inconsistent sentence in an otherwise proper charge did not deprive the defendant of a fair trial under circumstances in which he not only failed to take an exception, but also induced the claimed error by requesting the Parmalee charge.

II

The defendant claims he was denied his right to due process, and his privilege against self-incrimination, in violation of the fifth, sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution, because the court allowed the state to cross-examine him about his failure to contact the police after the interrogation had ceased in order to correct the statement he had given to them. He also claims that the prosecutor commented about that failure during the state’s final argument. The defendant characterizes this issue as one involving postarrest silence, and the state characterizes it as one involving the permissible use of prior inconsistent statements to impeach credibility during cross-examination. We find that one of the prosecutor’s questions on cross-examination was constitutionally improper, but hold that the error was harmless beyond a reasonable doubt under the circumstances of this case.

At police headquarters after his arrest, the police advised the defendant of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). He expressed a willingness to talk. Initially, the defendant denied he had descended the cellar stairway of the market. After a private discussion with his brother, Anthony Silano, the defendant admitted to Inspector Anthony Fabrizi that he had gone to the bottom of the stairway, and smelled smoke. After the defendant began making inculpatory statements, his bond was reduced from $100,000 to $25,000.

On the witness stand, the defendant denied having gone down the cellar stairs and having smelled smoke. On cross-examination, the state impeached the defendant with the prior inconsistent statements he had made at the police station. No issue has been raised concerning that part of the cross-examination. The state went on, however, to ask the defendant why, after the interrogation had ceased, he did not return to the police to correct allegedly false statements he had made during that interrogation.

“Q. Did you, Mr. Silano, ever again contact Mister-Inspector Fabrizi to tell him that that story was untrue and that you simply said that because your brother made you?

“A. He knows that my brother made me. And he knew that my brother, if he was incompetent, he stood there and listened and wrote everything down. And then I was told to sign the statement and I was out on a $25,000 bond.”

The defendant contends that this question was constitutionally impermissible because it resulted in the use of the defendant’s silence against him after he had received Miranda warnings and had been arrested. Doyle v. Ohio, 426 U.S. 610, 618-19, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). The defendant’s failure to object to the question, would ordinarily preclude review. Practice Book § 288; see State v. Evans, supra. This claim of error, however, merits review under State v. Evans, supra, because “the record here supports [the defendant’s] claim that a fundamental constitutional right of his is involved, the right to remain silent after Miranda warnings had been given. State v. Morrill, 197 Conn. 507, 535-37, 498 A.2d 76 (1985); State v. Pellegrino, 194 Conn. 279, 286-89, 480 A.2d 537 (1984).” State v. Apostle, 8 Conn. App. 216, 221, 512 A.2d 947 (1984).

In State v. Apostle, supra, the Appellate Court considered the issue of whether, after the warnings of Miranda have been given and the defendant has chosen to answer questions posed by the police, the defendant has an affirmative obligation, after his interrogation has ceased, to return to the police to correct a false statement made during that interrogation about the facts or circumstances of the crime. Id. The Appellate Court concluded, and we agree “that he does not, and that the state may not question him or comment about that failure.” Id.

The state may impeach a defendant by cross-examination concerning a prior inconsistent statement made after arrest and the giving of Miranda warnings, even though such impeachment may call into question a defendant’s silence about the truth when he made that prior inconsistent statement. Anderson v. Charles, 447 U.S. 404, 100 S. Ct. 2180, 65 L. Ed. 2d 222, reh. denied, 448 U.S. 912, 101 S. Ct. 27, 65 L. Ed. 2d 1173 (1980). Such an examination is allowed because it is impossible to “bifurcate” a prosecutor’s questions concerning inconsistency into those relating to facts contained in a prior statement and those concerning facts omitted therefrom. Id., 408-409. A prosecutor may not, however, question a defendant about his silence after the interrogation has ceased, since a “defendant may reassert his right to remain silent at any time, and if he ceases to answer questions, or to come forward with additional or correcting information after questions are no longer being asked of him, there is a reasonable possibility that he is relying upon that right.” State v. Apostle, supra, 224. We conclude, therefore, that the question concerning the defendant’s failure “ever again” to contact the police, after he had been arrested and given a Miranda warning, was improper under the strictures of Doyle.

A Doyle violation may, in a particular case, be so insignificant that it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict without the impermissible question or comment upon a defendant’s silence following a Miranda warning. Under such circumstances, the state’s use of a defendant’s postarrest silence does not constitute reversible error. In limited instances, “ ‘[w]hen there is but a single reference at trial to the fact of defendant’s silence, the reference is neither repeated nor linked with defendant’s exculpatory story, and the exculpatory story is transparently frivolous and evidence of guilt is otherwise overwhelming, the reference to defendant’s silence constitutes harmless error.’ Chapman v. United States, 547 F.2d 1240, 1250 (5th Cir.), cert. denied, 431 U.S. 908, 97 S. Ct. 1705, 52 L. Ed. 2d 393 (1977); Leake v. Cox, 432 F.2d 982, 984 (4th Cir. 1970). The [error] has similarly been [found to be harmless] where a prosecutor does not focus upon or highlight the defendant’s silence in his cross-examination and closing remarks and where the prosecutor’s comments do not strike at the ‘jugular’ of the defendant’s story. United States v. Davis, [546 F.2d 583, 594 (5th Cir.), cert. denied, 431 U.S. 906, 97 S. Ct. 1701, 52 L. Ed. 2d 391 (1977)]; see United States v. Harp, 536 F.2d 601, 603 (5th Cir. 1976).” State v. ZeJco, 177 Conn. 545, 555, 418 A.2d 917 (1979); see State v. Pellegrino, supra, 291-92; State v. Apostle, supra, 227.

A number of factors lead us to the conclusion that the error in this case was harmless beyond a reasonable doubt. The prosecutor asked the question only once on cross-examination. No other testimony alluded to the defendant’s silence. The defendant did not answer the inquiry whether he had failed to return to Fabrizi, but merely repeated his previous testimony that his brother had made him tell the police that he had gone down the stairs and smelled the smoke. His repetitious answer about being coerced by his brother and induced by the reduction in the amount of bond to give a false statement could not have affected the outcome of the case. The failure of his attorney to object to the question or to move for a mistrial indicates that he did not consider this portion of the cross-examination to have substantially prejudiced the defendant. See State v. Leecan, 198 Conn. 517, 526, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986). In closing argument the prosecutor made only a passing reference that the defendant “did nothing.” The prosecutor’s reference could just as well have been interpreted to mean that the defendant “did nothing” to explain credibly why his brother would force him to lie or that he “did nothing” to report the fire when he discovered it, as the preceding argument had maintained. The prosecutor refrained from making any direct reference to the defendant’s failure to return to the police to correct the statement he had made at the police station on the night of the incident.

In State v. Zeko, supra, 554-58, we carefully analyzed when a Doyle violation may be harmless. “The instant case does not present a prosecutorial focus—by repetitive questioning, on a defendant’s silence, as in Doyle v. Ohio, supra. Nor can we say that the comments, in the context of . . . the cross-examination of the defendant . . . so‘highlighted’the defendant’s silence as to constitute prejudicial error. . . . Similarly, we cannot say that the comments ‘struck at the jugular’ of the defendant’s defense, as the context of the prosecution’s comments reveals.” Id., 555-56.

“The cases wherein the error has been found to be prejudicial disclose repetitive references to the defendant’s silence, reemphasis of the fact on closing argument, and extensive, strongly-worded argument suggesting a connection between the defendant’s silence and his guilt. See, e.g., Minor v. Black, 527 F.2d 1 (6th Cir. 1975); Moye v. Paderick, 526 F.2d 589 (4th Cir. 1975); Fowle v. United States, 410 F.2d 48, 49 n.1 (9th Cir. 1969); cf. United States v. Edwards, 576 F.2d 1152, 1155 (5th Cir. 1978).” State v. Zeko, supra, 557.

In the case at bar, there was only a single question by the prosecutor, a nonresponsive repetitive response by the defendant, and an ambiguous passing comment in the state’s closing argument. As will be discussed in the next section of this opinion, there was overwhelming evidence of the defendant’s guilt. We conclude that it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict without the impermissible question.

Ill

The defendant’s final claim of error is that the evidence was insufficient to establish his guilt of the crime charged beyond a reasonable doubt.

The jury could reasonably have found from the evidence that officers Fardy and Fedorek both saw the defendant go down the stairway to the basement, and that Fardy observed the defendant run from the rear of the store at about the time the fire began. The defendant confessed at the police station that he had gone into the basement, and had smelled smoke. His testimony at the trial contradicted his confession at the police station, raising doubts about his credibility. The defendant admitted that he used the same type of butcher string and matches as were found at the scene of the fire. While the defense presented an expert witness, Michael Shanok, who claimed that the fire was of accidental origin, the state offered two experts, Patrick Savino and Robert Persons, who testified that the fire had been intentionally set. On the basis of this evidentiary record, the jury could reasonably have found that the state had proven, beyond a reasonable doubt, that the defendant intentionally started the fire in the manner charged in the information.

The defendant also contends that there was insufficient evidence that a firefighter was “subjected to a substantial risk of bodily injury.” General Statutes § 53a-lll (a) (4). Even the defendant concedes that there was “some evidence” (emphasis added) of this element. Lieutenant William Haug of the Bridgeport fire department, a fourteen year veteran, testified that basement fires are especially dangerous because the means of entry to fight the fire is the stairway which in effect becomes a chimney where the smoke and heat from the fire rises. George Bryant, a firefighter in Bridgeport for three years, testified that, as the fire was being extinguished, he could not breathe because of the smoke. In fact, he had to leave the basement area to obtain a Scott air pack, an apparatus to help him breathe. Bryant also testified that two fans were operating, indicating that the electricity was still on in the building. He regarded this as a dangerous situation, because there was standing water on the floor. A good chance of electrocution existed. The water on the floor had been present before any water was used to extinguish the fire. There was sufficient evidence for a reasonable jury to find beyond a reasonable doubt that the fire posed a substantial risk to a firefighter or a peace officer.

When a verdict is challenged because of insufficient evidence, the issue is whether the trier of fact could reasonably have concluded, based upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt. State v. Rodriquez, 200 Conn. 685, 693, 513 A.2d 71 (1986). State v. Carter, 196 Conn. 36, 44, 490 A.2d 1000 (1985). There was more than enough evidence for a jury reasonably to conclude that the defendant was guilty.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-lll. arson in the first degree: class A felony, (a) A person is guilty of arson in the first degree when, with intent to destroy or damage a building, as defined in section 53a-100, he starts a fire or causes an explosion, and (1) the building is inhabited or occupied or the person has reason to believe the building may be inhabited or occupied, or (2) any other person is injured, either directly or indirectly; or (3) such fire or explosion was caused for the purpose of collecting insurance proceeds for the resultant loss; or (4) at the scene of such fire or explosion a peace officer or firefighter is subjected to a substantial risk of bodily injury.
      “(b) Arson in the first degree is a class A felony.”

       The defendant requested the following instruction: “The third element of the specific offense charged against the defendant, arson in the first degree, requires that at the scene of such fire or explosion a peace officer or firefighter is subjected to a substantial risk of bodily injury. In determining whether this element has been proved by the State beyond a reasonable doubt, ‘substantial risk’ is defined as something more than ‘reasonable possibility that such act might endanger’ a peace officer or firefighter. State v. Parmalee, 197 Conn. 158, 164 n. 10 [496 A.2d 186] (1985). In further determining whether this element has been proven beyond a reasonable doubt, you must determine that the fire which actually developed posed something more than a reasonable possibility of endangering a peace officer or firefighter. State v. Parmalee, 197 Conn. 158 [496 A.2d 186] (1985).”

       This portion of the charge was as follows: “The requirement is that they must actually be present at the location, at the place of the fire, but there is no requirement that they actually sustain or incur any bodily injury. But only that such a person is subject to a substantial risk of bodily injury at the scene of the fire. Now that distinguishes it from someone on the way to a fire. Must be present at the locus—the place of the fire. A substantial risk is one that is real. It is considerable or a material risk. In determining whether the element of substantial risk of bodily injury has been proven by the state beyond a reasonable doubt, consider that substantial risk is defined as something more than reasonable possibility that such act might endanger a peace officer or firefighter. In further determining whether this element has been proven beyond a reasonable doubt, you must determine that a fire which actually developed posed something more than a reasonable possibility of endangering a peace officer or a firefighter. A substantial risk is one that is real, considerable or material. It is sufficient that at the time the fire was set, a reasonable person could have foreseen that the risk of bodily injury was substantial. . . .

      “This accused must be proven beyond a reasonable doubt to be the person who had started the fire in question. That at the time the fire began, that the accused had in his mind, the intent to destroy or damage the building and that at the scene of that fire at 500 Iranistan Avenue, that you are satisfied by proof beyond a reasonable doubt that a peace officer or a firefighter actually present, was subject to a substantial risk of bodily injury. Those are the elements of the offense.” (Emphasis added.)

       This portion of the closing argument was as follows: “The problem that he faces also is that, if he had given that statement voluntarily of his own free will, what are the ramifications for him. Why is he saying now he was coerced by his brother to admit that he was down there. Why is he saying that? Well it’s very simple when you think about it because if he now remains consistent in his trial testimony with his statement that he gave to the police, he’s got a lot of problems. First of which is, if he knew there was a fire in the basement, and he ran off because he was scared, why didn’t he call the police. Why didn’t he report the fire. Why didn't he go down the street next to the gas station where the fire box was. Why didn’t he do any of that. It simply makes no sense. The only explanation that he can give is that he was forced by his brother, not—mind you, not by Inspector Fabrizi. He wasn’t forced by him. He was forced by his own brother to make an incriminating statement that he was in the area of the basement when the fire was—at or about the time the fire started. It’s just simply inconceivable that—and I think you can all appreciate it if you had been charged with a crime and you were sitting in Mr. Silano’s shoes, that one of your relatives would come down the police station and force you to make an incriminating statement that you had been down in a basement area where a fire had started. It’s simply inconceivable. The problems that he has with remaining consistent with that statement, as I’ve indicated is, he simply did nothing. If he really knew of the fire, if he had remained consistent with the statement that he gave to the police. He simply couldn’t explain it. Why didn’t he say anything to Fedorek. Why didn’t he say anything to Fardy. If he had nothing to do with the fire, he certainly would bring it to their attention. He’s a man who’d been employed there for a number of years. A loyal employee. Why would he not mention the fact that his place of business, where he had been working for 15 years or approximately that time, was on fire. The only way that he can do that—get around that problem, is to say my brother Tony forced me. Forced me to say it and that’s why I said it. I lied to the police. And when you think about it, you’ve got to really scrutinize that very closely because the only evidence we have of this coercion that’s supposedly occurred in a separate room while only him and his brother were present, is John Silano’s testimony. We haven’t heard anything from anyone else. It’s simply John Silano saying, my brother forced me and that’s why I told the police what I did.” (Emphasis added.)


text:
    Orest T. Dubno, Commissioner of Revenue Services v. Edward T. Falsey, Jr., et al., Executors (Estate of Edward T. Falsey)
    Decided May 21, 1987

      James O’Connor Shea, in support of the petition.

      Richard D. Nicholson, in opposition.
   The defendants’ petition for certification for appeal from the Appellate Court, 10 Conn. App. 95, is denied.


text:
    Evelyn F. Dwyer et al., Executors (Estate of Emma R. Falsey) v. Orest T. Dubno, Commissioner of Revenue Services
    Decided May 21, 1987

      James O’Connor Shea, in support of the petition.

      Richard D. Nicholson, in opposition.
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 10 Conn. App. 95, is denied.


text:
    State of Connecticut v. Robert Williamson
    Decided May 21, 1987

      John J. Buckley, in support of the petition. Steven M. Sellers, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 10 Conn. App. 532, is denied.


text:
    In re Carl O.
    Decided May 21, 1987

      Lawrence A. Dubin, in support of the petition.

      Michael O’Connor, assistant attorney general, in opposition.
   The respondent father’s petition for certification for appeal from the Appellate Court, 10 Conn. App. 428, is denied.


text:
    In re Carl O.
    Decided May 21, 1987

      Melissa A. Buckley, in support of the petition.

      Michael O’Connor, assistant attorney general, in opposition.
   The respondent mother’s petition for certification for appeal from the Appellate Court, 10 Conn. App. 428, is denied.


text:
    Lionel R. Gelinas v. Donna B. Gelinas
    Decided May 21, 1987

      M. Hatcher Norris, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 10 Conn. App. 167, is denied.


text:
    George Battista, Jr. v. The United Illuminating Company
    Decided May 27, 1987

      Richard P. Sperandeo, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 10 Conn. App. 486, is denied.


text:
    George Battista, Jr. v. The United Illuminating Company
    Decided May 27, 1987

      Jackson T. King and Susan King Shaw, in support of the petition.

      Jeremy G. Zimmermann and Thomas J. Flanagan, in opposition.
   The plaintiffs petition for certification for appeal from the Appellate Court, 10 Conn. App. 486, is denied.


text:
    Ronald E. Romanowski v. John J. Foley et al.
    Decided May 27, 1987

      Alfred J. Garofolo, in support of the petition.

      Eugene Scalise, Jr., in opposition.
   The plaintiffs petition for certification for appeal from the Appellate Court, 10 Conn. App. 80, is denied.


text:
    C.R. Parkeside Limited Partnership v. Isabel Lorenzana
    Decided May 27, 1987

      Thomas B. Griglun, in support of the petition.

      Neil L. Brockwehl, in opposition.
   The plaintiffs petition for certification for appeal from the Appellate Court, 10 Conn. App. 517, is denied.


text:
    Ven Nguyen et al. v. Joseph DaSilva et al.
    Decided June 4, 1987

      Walter R. Keenan, in support of the petition.
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 10 Conn. App. 527, is denied.


text:
    State of Connecticut v. Earl Fletcher
    Decided June 4, 1987

      Richard F. Jacobson, assistant state’s attorney, in support of the petition.

      William R. Schipul, assistant public defender, in opposition.
   The state’s petition for certification for appeal from the Appellate Court, 10 Conn. App. 697, is granted, with limitation.


text:
    State of Connecticut v. Jose P. Rodriguez
    Decided June 4, 1987

      Helen R. Kone, in support of the petition.

      Michael E. O’Hare, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 10 Conn. App. 357, is denied.


text:
    State of Connecticut v. Joanne Norma Scott State of Connecticut v. Alan Barbary State of Connecticut v. James Lee Harrison
    Decided June 4, 1987

      Steven D. Jacobs, in support of the petition.

      James G. Clark, assistant state’s attorney, in opposition.
   The defendant James Lee Harrison’s petition for certification for appeal from the Appellate Court, 10 Conn. App. 347, is denied.


text:
    State of Connecticut v. Joanne Norma Scott State of Connecticut v. Alan Barbary State of Connecticut v. James Lee Harrison
    Decided June 4, 1987

      John M. Massameno, assistant state’s attorney, in support of the petition.

      William F. Dow III, in opposition.
   The state’s petition for certification for appeal from the Appellate Court, 10 Conn. App. 347, is denied.


text:
    State of Connecticut v. Joanne Norma Scott State of Connecticut v. Alan Barbary State of Connecticut v. James Lee Harrison
    Decided June 4, 1987

      Daniel Shepro, in support of the petition.

      James G. Clark, assistant state’s attorney, in opposition.
   The defendant Joanne Norma Scott’s petition for certification for appeal from the Appellate Court, 10 Conn. App. 347, is denied.


text:
    State of Connecticut v. Charles Thurman
    Decided June 4, 1987

      John M. Massameno, assistant state’s attorney, in support of the petition.

      Eugene J. Riccio, in opposition.
   The state’s petition for certification for appeal from the Appellate Court, 10 Conn. App. 302, is denied.


text:
    Delores D. Stewart v. Leroy Stewart
    Decided June 4, 1987

      Delores D. Stewart, pro se, in support of the petition.
   The plaintiffs petition for certification for appeal from the Appellate Court is denied.


text:
    Town of East Hartford v. East Hartford Municipal Employees Union, Inc., et al.
    Decided June 4, 1987

      Robert J. Krzys, in support of the petition.

      Barry Zitser, in opposition.
   The defendants’ petition for certification for appeal from the Appellate Court, 10 Conn. App. 611, is granted, with limitation.


text:
    The Fidelity Trust Company v. Betty Irick et al.
    Decided June 18, 1987

      Robert A. Nagy, assistant attorney general, in support of the petition.

      James D Alton Murphy, in opposition.
   The state’s petition for certification for appeal from the Appellate Court, 11 Conn. App. 53, is granted, with limitation.


text:
    State of Connecticut v. Robert Lizotte
    Decided June 18, 1987

      Kimball Haines Hunt, in support of the petition.

      Judith Rossi, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 11 Conn. App. 11, is denied.


text:
    State of Connecticut v. Vincent Collins
    Decided June 18, 1987

      Christopher Malany, deputy assistant state’s attorney, in support of the petition.

      Martin Zeldis, assistant public defender, in opposition.
   The state’s petition for certification for appeal from the Appellate Court, 10 Conn. App. 659, is granted, with limitation.


text:
    State of Connecticut v. Sydney Wylie
    Decided June 18, 1987

      Elizabeth M. Inkster, assistant public defender, and Joette Katz, public defender, in support of the petition.

      SusannE. Gill, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 10 Conn. App. 683, is denied.


text:
    State of Connecticut v. Kevin T. Robinson
    Decided June 25, 1987

      John R. Williams, in support of the petition.

      Marcia B. Smith, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 10 Conn. App. 520, is denied.


text:
    State of Connecticut v. Gerard Edwards
    Decided July 2, 1987

      Ben A. Solnit, in support of the petition.

      James G. Clark, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 10 Conn. App. 503, is denied.


text:
    Eugene Kmetyk v. Mary Ann Wallace et al.
    Decided July 2, 1987

      Charles C. Greenwald, in support of the petition.

      William J. Sweeney, Jr., in opposition.
   The defendants’ petition for certification for appeal from the Appellate Court is denied.


text:
    Peter Ventura v. Raymond Lopes, Commissioner of Correction
    Decided July 2, 1987

      Denise Dishongh, in support of the petition.

      Maureen E. Norris, special assistant state’s attorney, in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 10 Conn. App. 546, is denied.


text:
    State of Connecticut v. Ross P. Upton
    Decided July 2, 1987

      Ross P. Upton, pro se, in support of the petition.

      CarolynK. Longstreth, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 9 Conn. App. 825, is denied.


text:
    Judy Marangio v. Shop Rite Supermarkets, Inc.
    Decided July 10, 1987

      Richard F. Connors, in support of the petition.

      Ralph G. Eddy, in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 11 Conn. App. 156, is denied.


text:
    State of Connecticut v. Lester Smith
    Decided July 10, 1987

      Barbara Goren, special public defender, in support of the petition.

      Christopher Malany, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 10 Conn. App. 624, is denied.


text:
    Pfizer, Inc. v. Sarah McGirr et al.
    Decided July 10, 1987

      Gilbert Shasha, in support of the petition.

      Susan B. Handy, in opposition.
   The defendants’ petition for certification for appeal from the Appellate Court is denied.


text:
    Thomas V. Cristofaro v. Planning and Zoning Commission of the Town of Burlington
    Decided July 16, 1987

      Edward F. Scully, in support of the petition.

      Charles W. Bauer, in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 11 Conn. App. 260, is denied.


text:
    Janice Goold v. Peter Goold
    Decided July 16, 1987

      Gaetano Ferro, in support of the petition.

      Ellen B. Wells, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 11 Conn. App. 268, is denied.


text:
    State of Connecticut v. Leroy Scott
    Decided July 16, 1987

      Temmy Ann Pieszak, assistant public defender, in support of the petition.

      Judith Rossi, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Apellate Court, 11 Conn. App. 102, is denied.


text:
    Ruth B. Coxe, Administratrix (Estate of Samuel Coxe) v. John C. Driscoll, Conservator (Estate of Adrien Gelinas), et al.
    Decided July 23, 1987

      Max F. Brunswick, in support of the petition.

      Raymond T. Trebisacci, in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 11 Conn. App. 804, is denied.


text:
    Estate of George Zarrella v. Roger Pell
    Decided July 23, 1987

      Peter J. Zagorsky, in support of the petition.

      Michael T. Landino, in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court is granted, with limitation.


text:
    City of Norwich et al. v. Norwalk Wilbert Vault Co.
    Decided July 23, 1987

      Mary E. Holzworth, in support of the petition.

      Brian R. Smith, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 11 Conn. App. 332, is granted, with limitation.


text:
    State of Connecticut v. Gerald Ignatowski
    Decided July 23, 1987

      Donald D. Dakers, public defender, in support of the petition.

      Harry Weller, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 10 Conn. App. 709, is denied.


text:
    State of Connecticut v. Frank X. Lo Sacco
    Decided July 23, 1987

      Frank X. Lo Sacco, pro se, in support of the petition.

      Susann E. Gill, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 11 Conn. App. 24, is denied.


author: Santaniello, J.

text:
    Frederick C. Lambert v. Peter B. Stovell
    (12862)
    Healey, Shea, Santaniello, Callahan and D. Dorsey, Js.
    Argued March 6
    decision released August 18, 1987

      Patricia Kilkenny, with whom, on the brief, were David W. Skolnick and Terence S. Hawkins, for the appellant (plaintiff).

      Arnold S. Bai, with whom was Garie S. Mulcahey, for the appellee (defendant).
   Santaniello, J.

This is an appeal from a judgment rendered for the defendant in a malpractice action. The jury could reasonably have found the following facts. The plaintiff, Frederick C. Lambert, consulted with the defendant, Peter B. Stovell, a physician, in April, 1977, for the treatment of an injured ankle. After several consultations and the examination of preoperative x-rays, the defendant recommended that the plaintiff undergo an ankle fusion procedure. The plaintiff consented, and surgery was performed by the defendant on June 1, 1977. The plaintiff was discharged from the hospital on June 10, 1977, and was readmitted on June 28, 1977, after the defendant discovered that the plaintiff had developed an ankle infection. The plaintiff was informed about the infection by the defendant when he was rehospitalized. During July and August of 1977, the defendant discovered, and told the plaintiff, that there was a non-union at the fusion site. As a result of this disclosure, the plaintiff sought a second opinion on August 23, 1977, from Dr. Howard Rosen of New York City, who confirmed the fact that there was an infection in the ankle and a non-union of the joint, both of which would require further treatment. The defendant last treated the plaintiff on November 16, 1977.

On November 29,1977, the plaintiff became a patient of Rosen, who subsequently performed two surgical procedures on the plaintiff's ankle. The first procedure was performed on December 1, 1977, in order to remove the infected bone. A second surgical procedure was performed on June 6, 1978, in order to expedite fusion of the ankle.

The plaintiff instituted this action against the defendant on March 5,1980, based upon the doctrine of informed consent, alleging that the defendant had not sufficiently informed him of the material risks and consequences of the original surgical procedure or of the fact that his preoperative x-rays had revealed an essentially normal ankle. The defendant denied the material allegations of the plaintiff’s complaint and interposed a special defense claiming that the two year statute of limitations for such an action had run. See General Statutes § 52-584. At the conclusion of the evidence, the court charged the jury on the doctrine of informed consent and, over the plaintiffs objection, on the two year statute of limitations as set forth in § 52-584. Thereafter, the jury returned a general verdict in favor of the defendant.

The plaintiff has appealed, claiming that the trial court erred in: (1) failing to charge the jury on the three year statute of limitations contained in General Statutes § 52-577; (2) charging the jury on the two year period of limitation contained in § 52-584; (3) failing to instruct the jury that the two year statute of limitations had been tolled until such time as the plaintiff discovered or should have discovered all of the information allegedly material to his decision to submit to surgery; and (4) failing to instruct the jury that the plaintiff’s cause of action did not accrue until he discovered or should have discovered certain material medical information allegedly concealed from him. We find no error.

The plaintiff argues that a complaint based upon lack of informed consent does not allege malpractice action, governed by § 52-584, but an intentional tort based upon assault and battery, governed by § 52-577. The defendant, however, contends that lack of informed consent is malpractice by a physician under § 52-584 and that, even if that statute were inapplicable, any error in charging the jury was cured by the rendering of a general verdict by the jury.

The trial court refused the plaintiffs request to charge the jury on § 52-577 and charged the jury only on the two year provision of § 52-584. The three year provision of § 52-577 is applicable to all tort actions other than those excepted therefrom by § 52-584 or other sections. United Aircraft Corporation v. International Assn. of Machinists, 161 Conn. 79, 107, 285 A.2d 330 (1971), cert. denied, 404 U.S. 1016, 92 S. Ct. 675, 30 L. Ed. 2d 663 (1972). “The theory of battery as a basis for recovery against a physician has generally been limited to situations where he fails to obtain any consent to the particular treatment or performs a different procedure from the one for which consent has been given, or where he realizes that the patient does not understand what the operation entails: Cobbs v. Grant, 8 Cal. 3d 229, 240, 502 P.2d 1 (1972); 4 Restatement (Second), Torts § 892B, comment i; note, ‘Informed Dissent: A New Corollary to the Informed Consent Doctrine?’ 57 Chi.-Kent L. Rev. 1119, 1122 n.18 (1981).” (Emphasis added.) Logan v. Greenwich Hospital Assn., 191 Conn. 282, 289, 465 A.2d 294 (1983).

The theory of battery is not applicable to the present case because the plaintiff consented to the very same surgical procedure that was performed and because he has not alleged, or shown, that the defendant realized that he, the plaintiff, did not understand what the operation entailed. The plaintiff has conceded that he was informed of the material risks and ultimate consequences of the surgery. Therefore, his action is based upon a lack of informed consent and not an absence of consent. Consequently, the complaint does not allege an intentional tort for which the period of limitation is governed by § 52-577.

Where a lack of informed consent is alleged, the jury must determine whether the defendant has met his obligation to inform the plaintiff adequately, in accordance with the “lay” standard as set forth in Logan v. Greenwich Hospital Assn., supra, 289, 292-93. This standard imposes upon the physician a duty, the breach of which constitutes malpractice. Consequently, where a patient seeks recovery against a physician based upon a lack of informed consent, he is bringing a “malpractice” action as contemplated by § 52-584. The fact that the physician’s duty of disclosure is measured by a lay, as opposed to a professional, standard does not affect the substantive nature of the cause of action. Because the plaintiff’s suit is governed by the period of limitation contained in § 52-584, the trial court correctly charged the jury on only that statute.

Section 52-584 “ ‘requires that the injured party bring suit within two years of discovering the injury. . . . In this context injury occurs when a party suffers some form of “actionable harm.” ’ (Emphasis added.)” Catz v. Rubenstein, 201 Conn. 39, 43, 513 A.2d 98 (1986), citing Burns v. Hartford Hospital, 192 Conn. 451, 460, 472 A.2d 1257 (1984). “Actionable harm” occurs when the plaintiff discovers, or in the exercise of reasonable care should have discovered, the essential elements of a cause of action. Catz v. Rubenstein, supra. “The focus is on the plaintiffs knowledge of facts, rather than on discovery of applicable legal theories.” Id., 47.

The essential elements of a cause of action based upon a lack of informed consent are a breach of duty by the defendant and a causal connection between that breach and the harm to the plaintiff. See Logan v. Greenwich Hospital Assn., supra, 287-88 n.l. The plaintiff alleges that the defendant failed to inform him of the material risks and consequences of surgery and testified that had he been aware of any such risks, including infection and non-union, he would have refused to consent to surgery. He also testified, however, that he had acquired actual knowledge of infection and non-union in August, 1977.

The plaintiff contends that this knowledge was not sufficient to commence the statutory limitation period, and that the statute should have remained tolled until he discovered all the information the defendant was allegedly obligated to disclose to him. As we stated in Burns v. Hartford Hospital, supra, the statute begins to run when the plaintiff discovers some form of actionable harm, not the fullest manifestation thereof. In August, 1977, the plaintiff had actual knowledge of infection and non-union, two allegedly nondisclosed, material risks that he testified would have caused him to refuse surgery. He therefore was aware of circumstances indicating that he had suffered a form of “actionable harm” and should have discovered his injury at that time. Accordingly, the defendant was entitled to prevail on his special defense of the statute of limitations.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 52-584. limitation of action foe injury TO PERSON OR PROPERTY. No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but ■within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”

       “[General Statutes] Sec. 52-577. action founded upon a tort. No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”

       Traditionally, a physician’s duty to disclose information was measured by a “professional” standard which was set by the medical profession in terms of customary medical practice in the community. Logan v. Greenwich Hospital Assn., 191 Conn. 282, 289, 465 A.2d 294 (1983). In Logan v. Greenwich Hospital Assn., supra, 292-93, we adopted a “lay” standard and stated that under the doctrine of informed consent, a physician is obligated “to provide the patient with that information which a reasonable patient would have found material for making a decision whether to embark upon a contemplated course of therapy.” See also Canterbury v. Spence, 464 F.2d 772, 787-88 (D.C. Cir.), cert. denied, 409 U.S. 1064, 93 S. Ct. 560, 34 L. Ed. 2d 518 (1972); A. Meisel & L. Kabnick, “Informed Consent to Medical Treatment: An Analysis of Recent Legislation,” 41 U. Pitt. L. Rev. 407, 427 (1980).

       Even if the court had erred in its charge on the statute of limitations, any error in charging the jury would be rendered harmless by virtue of the general verdict in favor of the defendant. Where “a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party.” Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 202, 520 A.2d 208 (1987); Stone v. Bastarache, 188 Conn. 201, 204, 449 A.2d 142 (1982); Colucci v. Pinette, 185 Conn. 483, 489, 441 A.2d 574 (1981). As we stated in Finley v. Aetna Life & Casualty Co., supra, 202-203, this rule applies whenever a verdict for one party could reasonably be rendered on one or more distinct causes of action or defenses. “The application of the general verdict rule, however, does not depend on the niceties of pleading but on the distinctness and severability of the claims and defenses raised at trial/’ Id., 203.
      The defendant has relied upon two distinct defenses: a general denial and the statute of limitations. These, coupled with the absence of a request for interrogatories by either party, makes the general verdict rule applicable in this instance. (Although the plaintiff claims that the trial court refused his request to submit interrogatories to the jury, the record before us fails to reveal that such a request or motion was made, or that the court refused to submit proposed interrogatories.) When there are two such separate defenses as in this case, and there is no error in the instruction as to one of the two distinct defenses, a general verdict for the defendant is to be sustained. LaFleur v. Farmington River Power Co., 187 Conn. 339, 342-43, 445 A.2d 924 (1982), citing Meglio v. Comeau, 137 Conn. 551, 553, 79 A.2d 187 (1951). The court thus presumes that the jury’s general verdict included a finding that the defendant sufficiently informed the plaintiff of the material risks and consequences of surgery. See Finley v. Aetna Life & Casualty Co., supra, 204.


author: Callahan, J.

text:
    Michael F. Brown v. K.N.D. Corporation et al.
    (12987)
    Peters, C. J., Healey, Shea, Callahan and F. Hennessy, Js.
    Argued May 7
    decision released August 18, 1987

      Sydney T. Schulman, with whom, on the brief, was Otto Witt, for the appellant (defendant Wilber Smith).

      John F. McKenna, for the appellee (plaintiff).
   Callahan, J.

The defendant Wilber Smith has appealed from the decision of the Appellate Court in Brown v. K.N.D. Corporation, 7 Conn. App. 418, 509 A.2d 533 (1986), which reversed a trial court judgment in his favor. This case was initiated when Michael F. Brown, the plaintiff, an assistant city manager employed by the city of Hartford, commenced an action for an allegedly defamatory remark made by the defendant Smith on December 16,1979, during a radio broadcast over the facilities of the defendant radio station WKND. Smith, the host of a public affairs talk show called “What’s On Your Mind,” made the following comment while on the air during the course of the program: “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. . . . 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 trial court found that the comment was false and defamatory. It also found, however, that Brown was a public official and that he had failed to prove by clear and convincing evidence that Smith’s remark had been made with actual malice. The trial court, therefore, rendered judgment for the defendant. On appeal, the Appellate Court conducted an independent review of the trial court record and concluded, contrary to the trial court, that Smith’s remark had indeed been made with actual malice. The Appellate Court therefore set aside the judgment of the trial court and remanded the case with direction to render judgment for Brown on the issue of liability and to conduct a hearing in damages. We reverse.

The dispositive issue in this appeal is whether the Appellate Court was correct in conducting an independent examination of the trial court record to make its own determination of actual malice or whether its review should have been limited to the clearly erroneous standard of Practice Book § 4061.

The constitutional guarantees of the first amendment have fostered a federal rule of constitutional law “that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964); see also Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 773, 106 S. Ct. 1558, 89 L. Ed. 2d 783 (1986); Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 755, 105 S. Ct. 2939, 86 L. Ed. 2d 593 (1985); Bose Corporation v. Consumers Union of United States, Inc., 466 U.S. 485, 502, 104 S. Ct. 1949, 80 L. Ed. 2d 502 (1984); Hardin v. Santa Fe Reporter, Inc., 745 F.2d 1323,1325 (10th Cir. 1984); Holbrook v. Casazza, 204 Conn. 336, 342, 528 A.2d 774 (1987). In order to prevail in a defamation action the public official must prove actual malice by the elevated standard of clear and convincing evidence. Philadel phia Newspapers, Inc. v. Hepps, supra; Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974); Tavoulareas v. Piro, 817 F.2d 762, 776 (D.C. Cir. 1987); Long v. Arcell, 618 F.2d 1145, 1148 (5th Cir. 1980), cert. denied, 449 U.S. 1083, 101 S. Ct. 869, 66 L. Ed. 2d 808 (1981). Furthermore, in cases raising first amendment issues, the United States Supreme Court has “repeatedly held that an appellate court has an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’ New York Times Co. v. Sullivan, [supra, 284-86].” (Emphasis added.) Bose Corporation v. Consumers Union of United States, Inc., supra, 499; Tavoulareas v. Piro, supra; Holbrook v. Casazza, supra, 343.

The rule of independent review assigns to appellate courts in first amendment freedom of expression cases, “a constitutional responsibility that cannot be delegated to the trier of fact, whether the factfinding function be performed in the particular case by a jury or by a trial judge.” Bose Corporation v. Consumers Union of United States, Inc., supra, 501. This rule has been adopted because freedom of expression occupies the “ ‘ “highest rung of the hierarchy of First Amendment values,” ’ and is entitled to special protection. NAACP v. Clairborne Hardware Co., 458 U.S. 886, 913, 102 S. Ct. 3409, 73 L. Ed. 2d 1215 (1982).” Connick v. Myers, 461 U.S. 138, 145, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1982). Moreover, the United States Supreme Court has recognized that traditional actions for defamation may interfere with the first amendment right of expression. Greenbelt Cooperative Publishing Assn. v. Bresler, 398 U.S. 6, 14, 90 S. Ct. 1537, 26 L. Ed. 2d 6 (1970); Tavoulareas v. Piro, supra, 771.

“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. Judges as expositors of the Constitution, must independently decide whether the evidence in the record is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of ‘actual malice.' ” Bose Corporation v. Consumers Union of United States, Inc., supra, 511. There is no doubt, therefore, that a trial court finding of actual malice in a defamation case requires an appellate court to conduct an independent review of the record and to draw its own conclusion as to whether actual malice has been proven by clear and convincing evidence. As the Bose Corporation court said, “the clearly erroneous standard of Rule 52 (a) of the Federal Rules of Civil Procedure does not prescribe the standard of review to be applied in reviewing a determination of actual malice in a case governed by New York Times Co. v. Sullivan. Appellate judges in such a case must exercise independent judgment and determine whether the record establishes actual malice with convincing clarity.” (Emphasis added.) Id., 514.

The defendant, however, contends that since the trial court, in this case, made a finding that there was no actual malice, and hence no liability, the Appellate Court erred when it conducted an independent review of the record and came to a contrary conclusion. He maintains that absent a finding of actual malice there is no threat to, or encroachment upon first amendment rights or values that requires independent appellate review. He argues, therefore, that the Appellate Court should have applied the less stringent “clearly erroneous” test of Practice Book § 4061 to the trial court judgment. Under that standard, he contends, the judgment of the trial court should be affirmed because “there was sufficient evidence to support the findings of the trial court and the findings were not, as a matter of law clearly erroneous.” We agree.

The purpose of independent review is to safeguard the right of free expression. Bose Corporation v. Consumers Union of United States, Inc., supra, 508; New York Times Co. v. Sullivan, supra, 285. Absent a finding of actual malice there is no liability imposed on a defendant for his exercise of that right and hence no incursion on the first amendment. When, therefore, after a full trial on the merits, there is a finding of no actual malice, we think the better reasoning dictates that appellate review of the trial court judgment should be limited to the clearly erroneous standard of Practice Book § 4061. There is a paucity of case law on this specific point. In our view, however, the obligation of an appellate court to conduct an independent review of the trial court record and to make its own determination of actual malice, arises only when expression would be punished and hence inhibited by the imposition of court awarded damages. See L. Levine, “Judge and Jury in the Law of Defamation: Putting the Horse Behind the Cart,” 35 Am. U. L. Rev. 3, 76 (1985).

The function of the procedural scheme created by New York Times Co. v. Sullivan, supra, and Bose Corporation v. Consumers Union of United States, Inc., supra, is obviously to require an independent second opinion when free speech is curtailed. These cases place the ultimate constitutional responsibility on appellate courts to render that second opinion in order to safeguard free expression. They give no indication, however, that the United States Supreme Court intended thereby to reject completely the role of juries and trial judges in the protection of first amendment freedoms. If, therefore, the trial judge or jury finds that actual malice has not been proven with convincing clarity and, hence, no penalty is imposed for the exercise of first amendment rights, an appellate court should have no authority under the guise of independent review to upset that determination. We fail to see how allowing an appellate court to conduct an independent review and to draw its own inferences from the facts and to find liability, where the trial court has found that none exists, advances the cause of freedom of expression. See McCoy v. Hearst Corporation, 42 Cal. 3d 835, 727 P.2d 711, 718, 231 Cal. Rptr. 518 (1986) (appellate court may substitute its own inferences on the issue of actual malice for those drawn by the trier of fact). When first amendment rights have already been vindicated in the trial court, they require no special protective standard of review in the appellate courts and the usual standard for review of trial court error should apply. It is only when a defamation action “has successfully been brought by a public official” that we deem independent review to be constitutionally mandated. (Emphasis added.) Holbrook v. Casazza, supra, 343.

This reasoning would ensure that the trier of fact, be it judge or jury, would not be able to stifle free expression and thereafter be subject to review only under the clearly erroneous standard. It would also guarantee that if the trial court imposes liability for defamation and, after an independent review, an appellate court agrees that the defendant published with actual malice, the system has arrived at a result that reasonably assures that the expression at issue is not entitled to constitutional protection. This reasoning would not, however, impose a layer of enhanced appellate scrutiny of the trial court record where none is desired by the proponent of free expression or required to protect first amendment freedoms and values. See L. Levine, supra.

Viewing the record from the “clearly erroneous” perspective, we cannot say that the trial court erred when it determined that the plaintiff had failed to prove actual malice by clear and convincing evidence. “The crucial focus of actual malice under New York Times [Co.] is the defendant’s attitude, or state of mind, toward the allegedly libelous material published.” McCoy v. Hearst Corporation, supra, 719; Zerangue v. TSP Newspapers, Inc., 814 F.2d 1066, 1070 (5th Cir. 1987). Here, the defendant’s statement could reasonably have been interpreted by the trial court, not as accusing the plaintiff of being an actual member of the Ku Klux Klan, but as asserting that his actions indicated that he sympathized with its objectives. Taken in the context in which it was said, and would be understood by the average listener, the trial court could reasonably have concluded that Smith was criticizing the plaintiff and what Smith perceived to be the power structure in Hartford for failing to effect changes in racial relations and racial policy. See Greenbelt Cooperative Publishing Assn. v. Bresler, supra, 14. Looking at the statement in that light, we cannot say the trial court reached a clearly erroneous conclusion when it held that although the defendant’s remark had been “made negligently” there was no evidence from which it could conclude “that the defendant knew his statement was untrue.” A negligent misstatement concerning a public official retains first amendment protection. Holbrook v. Casazza, supra, 346.

It is unfortunate that Smith resorted to such hyperbolic rhetoric in voicing his criticism. His lack of discretion apparently placed a completely undeserved blot on the plaintiff’s escutcheon. Nevertheless, “debate on public issues should be uninhibited, robust and wide open, and that [debate] may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” New York Times Co. v. Sullivan, supra, 270. It must be kept in mind that “[c]riticism of those responsible for government operations must be free, lest criticism of government itself be penalized.” Rosenblatt v. Baer, 383 U.S. 75, 85, 86 S. Ct. 669, 15 L. Ed. 2d 597 (1966).

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 to render judgment for the defendant.

In this opinion the other justices concurred.

       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 Wilber Smith.

       There is no doubt that Brown, an assistant city manager for the city of Hartford at the time of the broadcast, was a public official as contemplated by New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 728, 11 L. Ed. 2d 686 (1964), Rosenblatt v. Baer, 383 U.S. 75, 86 S. Ct. 609, 15 L. Ed 2d 597 (1966), and Moriarty v. Lippe, 162 Conn. 371, 294 A.2d 326 (1972).

       The Appellate Court relied principally on the case of Bartimo v. Horseman’s Benevolent and Protective Assn., 771 F.2d 894 (5th Cir. 1985), cert. denied, 475 U.S. 1119, 106 S. Ct. 1635, 90 L. Ed. 2d 181 (1986), for the proposition that there should be an independent review of the record even though the trial court had found no actual malice. Bartimo was decided on the defendant’s motion to dismiss at the close of the plaintiff’s case, not after a full trial as in this instance. We do not find convincing the cases cited by the Bartimo court in support of its position. We also do not find its reasoning compelling, i.e., that “we cannot see the sense of applying ‘a rule of Federal constitutional law’ . . . only if the plaintiff prevails at trial,” and the application of the clearly erroneous rule to a decision of the trial court in favor of the defendant might possibly require “two different standards” of review for the same record. Id., 897, 898 n.3. The Bartimo reasoning, coupled with that of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), would reduce the trial court to a mere conduit for information to an appellate court for its decision.

       To determine the meaning of an allegedly defamatory communication, the “ ‘publication must be read and construed in the sense in which the readers to whom it is addressed would ordinarily understand it.’ ” Washington Post Co. v. Chaloner, 250 U.S. 290, 293, 39 S. Ct. 448, 63 L. Ed. 987 (1919); Keller v. Miami Herald Publishing Co., 778 F.2d 711, 715 (1985), reh. denied, 783 F.2d 205 (11th Cir. 1986); Ollman v. Evans, 750 F.2d 970, 1012 (D.C. Cir. 1984), cert. denied, 471 U.S. 1127, 105 S. Ct. 2662, 86 L. Ed. 2d 278 (1985); Baker v. Los Angeles Herald Examiner, 42 Cal. 3d 254, 260, 721 P.2d 87, 228 Cal. Rptr. 206 (1986).

       “The evidence is given the most favorable construction to which it is reasonably entitled in support of the verdict. Wochek v. Foley, 193 Conn. 582, 587, 477 A.2d 1015 (1984); Petrillo v. Bess, 149 Conn. 166,167,179 A.2d 600 (1961); Kerrigan v. Detroit Steel Corporation, 146 Conn. 658, 660,154 A.2d 517 (1959).” Holbrook v. Casazza, 204 Conn. 336, 343, 528 A.2d 774 (1987).

       The trial court found that Smith testified “that he did not mean that Brown ‘consciously’ sympathized with the [Ku Klux] Klan. Rather that those who had the power to end rampant racial discrimination and failed to do so were ‘unconscious’ sympathizers in that they further the goals of the Klan.” Later, the trial court found that “[g]iven that the statement said more than the speaker intended, that it was uttered extemporaneously, the court cannot find that the plaintiff has sustained his burden of proving ‘actual malice’ by clear and convincing evidence.”