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STATE OF CONNECTICUT v. ANGEL MORALES

(AC 37867)

Beach, Mullins and Bear, Js.*

Argued November 29, 2016—officially released April 18, 2017

(Appeal from Superior Court, judicial district of

Hartford, Dewey, J.)

Daniel P. Scholfield, with whom, on the brief, was

Hugh F. Keefe, for the appellant (defendant).

Melissa L. Streeto, senior assistant state’s attorney,

with whom, on the brief, were Gail P. Hardy, state’s

attorney, and Robin Krawczyk, senior assistant state’s

attorney, for the appellee (state).
Opinion

BEAR, J. The defendant, Angel Morales, appeals from

the judgment of conviction, rendered after a jury trial,

of intentional manslaughter in the first degree with a

firearm in violation of General Statutes § 53a-55a (a)

and criminal possession of a firearm in violation of

General Statutes § 53a-217 (a)(1)(criminal possession).

On appeal, the defendant claims that the trial court

erred (1) by denying his motion to bifurcate the elements of criminal possession or to sever the murder

charges brought against him from the criminal possession charge; (2) in instructing the jury on combat by

agreement; and (3) in refusing to instruct the jury on

the common-law defense of necessity. We affirm the

judgment of the trial court.

The jury reasonably could have found the following

facts. On the evening of August 29, 2013, the defendant

drove with his friend, Christopher Spear, and two

female companions to a nightclub in downtown Hartford known as ‘‘Up or On the Rocks.’’ The defendant

parked his car in a nearby parking lot located in the

area of High Street and Church Street. Also at the club

that night were the victim, Miguel Delgado, his brother,

Jose Delgado,1 and a friend, StevenCastano, all of whom

had arrived by taxi. While on the second floor of the

club and with the defendant present, Delgado and Spear

bumped into each other; Spear spilled his drink on

Delgado. An argument ensued, during which Spear

made a racially charged threat to shoot someone.

Returning from the bar, Castano found the two men

arguing and tried to separate them. Spear, however,

slapped the drink Castano was holding at him, the victim, and Delgado. At that point, the club’s security

escorted Spear, the defendant, and their companions

out of the club while detaining the victim, Delgado,

and Castano inside the club in an effort to defuse the

situation and prevent violence.

Club security held the victim and Delgado in the club

for about ten minutes. When they left, Delgado and

Spear renewed their argument outside of the nightclub

where the defendant had been waiting with Spear. With

the defendant present, Spear again threatened to shoot

someone. Although their friends, but not the defendant,

attempted to defuse the altercation, Delgado and Spear

agreed to engage in a fistfight, and the parties proceeded

to the parking lot where the defendant had parked

his car.

When the men reached the parking lot, Spear struck

Delgado on the head with a hard object injuring him.

When Spear attempted to retrieve the object, which had

fallen to the ground, Delgado punched him, rendering

him unconscious. Despite the fact that Spear was

unconscious on the ground, Delgado continued to beat

Spear, causing him significant injuries to his head
and face.

Meanwhile, the defendant recognized that the object

with which Spear struck Delgado was a gun. The defendant went to pick it up, but the victim, who was behind

him, engaged the defendant and the two men struggled

with each other on the ground. In the course of the

ensuing struggle, the defendant obtained the gun. As

the victim stood up, he struck the defendant in the face

and the defendant fired a single shot, which struck the

victim in the chest.

The victim ran toward Allyn Street where he collapsed on the sidewalk. Despite intervention by Delgado, a passerby who administered cardiopulmonary

resuscitation, and medical personnel, the victim later

died at the hospital at 2:15 a.m. of a gunshot wound to

his chest.

After shooting the victim, the defendant fled. He discarded the gun in a garbage receptacle. He then drove

away, leaving behind Spear and the women who had

accompanied them.

On October 29, 2014, in a single long form information, the state charged the defendant with murder in

violation of General Statutes (Rev. to 2013) § 53a-54a

and reckless manslaughter in the first degree with a

firearm in violation of § 53a-55a (a) (murder charges),

as well as criminal possession. At trial, the defendant

stipulated that he shot the victim, but he testified both

that the gun accidently discharged and that he was

acting in self-defense. The jury returned a verdict of

not guilty on the murder charge, but it found him guilty

of the lesser included offense of intentional manslaughter in the first degree with a firearm. Additionally, the

jury found the defendant guilty of reckless manslaughter in the first degree with a firearm, and criminal possession. The court accepted the jury’s verdict but a

month later vacated the guilty verdict on the reckless

manslaughter charge because of double jeopardy concerns. The court then sentenced the defendant to thirtyfive years incarceration, suspended after twenty years,

with five years probation on the intentional manslaughter conviction, and five years incarceration and a fine

of $5000 for the criminal possession conviction. The

court ordered that the sentences be served concurrently

for a total effective sentence of thirty-five years incarceration, suspended after twenty years, with five years

probation, and a $5000 fine. This appeal followed. Further facts will be set forth as necessary to the resolution

of this appeal.

I

The defendant contends on appeal that the court

abused its discretion when it denied his motion to either

bifurcate or sever the charges against him. Specifically,

he argues that he was prejudiced by having to defend

simultaneously the murder charges and the criminal
possession charge. He claims prejudice because, in

order to prove criminal possession, the state had to

present evidence that he previously had been convicted

of a felony. We disagree.

The following additional facts and procedural history

are necessary for the resolution of this claim. On the

first day of evidence and after the jury had been

selected, the defendant moved to bifurcate or sever

the charges against him. He proposed two alternative

remedies. First, he asked that the court bifurcate the

proof ofthe elements of criminal possession, submitting

to the jury in the first part of the trial only the element

of possession. Then, if the jury found that the element

of possession was proven, he would stipulate to having

been previously convicted of a felony. Alternatively, he

asked the court to sever2

the criminal possession charge

from the murder charges, and to hold consecutive trials

using the same jury. Conceding that the charges were

logically connected, the defendant argued that proof

of the convicted felon element of criminal possession

would be unduly prejudicial if he did not testify on his

own behalf in this case,3 as was his right. Based on the

state’s assertion that it would agree to stipulate to the

prior felony conviction without naming the conviction

or underlying conduct, the court determined that, with

a limiting instruction, any prejudicial impact of trying

the charges together would be circumscribed, and,

accordingly, it denied the motion.

A

The defendant first sought to bifurcate the elements

of criminal possession. Section 53a-217 (a) provides in

relevant part: ‘‘A person is guilty of criminal possession

of a firearm . . . when such person possesses a firearm . . . and (1) has been convicted of a felony . . . .’’

As this court has previously stated: ‘‘No useful purpose

would be served by a separate information alleging only

the prior conviction. . . . [A]n information alleging

only that a defendant possessed a handgun, without

mention of his prior conviction, would fail to allege

any cognizable offense under our penal code.’’ State v.

Banta, 15 Conn. App. 161, 173, 544 A.2d 1226, cert.

denied, 209 Conn. 815, 550 A.2d 1086 (1988). Accordingly, the court did not abuse its discretion when it

denied the defendant’s motion to bifurcate the elements

of criminal possession.

B

In the alternative, the defendant sought to sever the

criminal possession charge from the murder charges.

Before analyzing the defendant’s claim, we set forth

the applicable law and standard of review. ‘‘A judicial

authority may order that two or more indictments or

informations or both, whether against the same defendant or different defendants, be tried together. . . . A

judicial authority may also order separate trials if it
appears that a defendant is prejudiced by joinder. . . .

This does not mean that severance is to be had for the

asking. . . . The question of severance lies within the

discretion of the trial court. We will not disturb the trial

court’s conclusion on the issue absent a clear abuse of

discretion. The discretion to sever a trial should be

exercised only if a joint trial will substantially prejudice

the defendant. Substantial prejudice is more than disadvantage and the formidable task of demonstrating an

abuse of discretion and that a joint trial resulted in

substantial prejudice falls to the defendant. . . . Simply put, the test to be applied is whether substantial

injustice will result if the charges are tried together.’’

(Citations omitted; internal quotation marks omitted.)

State v. Jones, 234 Conn. 324, 343, 662 A.2d 1199 (1995).

In determining whether a refusal to order separate

trials was an abuse of discretion when one of the

charges involves proof of the prior commission of a

felony, this court considers the five factors enunciated

in State v. Banta, supra, 15 Conn. App. 170–71:4

‘‘[1]

the manner in which the evidence entered the case

and the extent of the jury’s knowledge of the facts

underlying the prior felony conviction . . . [2] the adequacy of any cautionary instructions given by the court

. . . [3] the use of the prior felony evidence by the

prosecution in argument to the jury . . . [4] the likelihood that the prior felony conviction evidence will

inflame the passions of the jurors in light of the nature

of the offenses charged . . . and [5] the strength of the

evidence against the defendant.’’5

(Citations omitted.)

The first factor requires consideration of the manner

in which the evidence entered the case and the amount

of detail that the jury received regarding the priorfelony

conviction. The jury first learned of the defendant’s

prior felony conviction at the close of the state’s casein-chief by way of a stipulation that stated only that the

defendant had ‘‘previously been convicted of a felony.’’

Additionally, the defendant admitted during his testimony that he was convicted of felonies in 2008 and

2013. The jury did not hear any details of the defendant’s

prior convictions. This factor does not favor him.

The second factor addresses the adequacy of the

cautionary instructions given by the court. After the

stipulation was read to the jury, the court immediately

instructed the jury that it was free to accept or reject

the stipulation and that it was not to speculate as to

the nature of the felony.6

In its final instructions to the

jury,7

the court informed the jury that it must consider

separately each of the charges. The court directed the

jury to consider the stipulation to a prior conviction as

evidence to satisfy an element of criminal possession.

Additionally, the court instructed that the jury must

accept the stipulation as fact but the stipulation did not

establish proof of an element of the crime beyond a

reasonable doubt. The court instructed the jury, how-
ever, that it was not to consider the defendant’s prior

felony convictions as an indication of his guilt with

respect to the other crimes charged, but only as it

related to his credibility with respect to his testimony

concerning each of those crimes. The court also advised

the jury that the stipulation was ‘‘to be used only for

the specific purpose it was entered for and not to be

used for any other purpose.’’

The defendant argues that both the court’s instruction

to the jury immediately after the stipulation was read

and its final charge to the jury were inadequate. Specifically, he contends that the court failed to provide a

sufficient contemporaneous limiting instruction when

the stipulation was read to the jury and that the court

failed to caution at any point that the stipulation could

not be considered to prove any violent propensities. A

trial court generally is not obliged to give a limiting

instruction sua sponte; State v. Crenshaw, 313 Conn.

69, 90 n.16, 95 A.3d 1113 (2014); and, a fortiori, nor is

it required to give a contemporaneous limiting instruction. State v. Willoughby, 153 Conn. App. 611, 618, 102

A.3d 1118 (2014) (court not required to give contemporaneous limiting instruction on admissible hearsay

statement); see also William C. v. Commissioner of

Correction, 126 Conn. App. 185, 190, 10 A.3d 115 (court

not required to give contemporaneous limiting instruction on constancy of accusation testimony), cert.

denied, 300 Conn. 922, 14 A.3d 1007 (2011).

The defendant did not request any contemporaneous

limiting instruction. The court gave a limiting instruction during the charge to the jury on the use of the

prior felony evidence. Although the instruction did not

address the use of the evidence for violent propensities,

there was no evidence to suggest that either of the

defendant’s felony convictions was for a crime of violence, and the court specifically instructed the jury not

to speculate as to the nature of the offense. In the

absence of evidence to the contrary, we presume that

the jury followed the trial court’s instructions. State v.

Jamison, 320 Conn. 589, 607, 610, 134 A.3d 560 (2016).

Therefore, we conclude that the court’s instructions did

not mislead the jury and, thus, the second factor does

not favor the defendant.

The third factor requires this court to consider the

use of the prior felony evidence by the prosecution in

argument to the jury. In her closing arguments with

respect to criminal possession, the prosecutor stated,

‘‘And there’s a stipulation in evidence that he has previously been convicted of a felony and on the stand he

indicated that he had been. That count should be guilty

as well.’’ It is unlikely that such a brief comment that

merely summarized the relevant evidence, and was presented without embellishment, would substantially

prejudice the defendant and, therefore, this factor does

not favor him.
The fourth factor considers the likelihood that the

prior felony conviction evidence will inflame the passions of the jurors in light of the nature of the offenses

charged. As stated, the jurors learned nothing of the

nature of the felony convictions. ‘‘Although the stipulation may have been disadvantageous to the defendant,

it was an element that necessarily had to be proven

under § 53a-217.’’ State v. Thompson, 81 Conn. App.

264, 287, 839 A.2d 622, cert. denied, 268 Conn. 915, 847

A.2d 312 (2004). This factor does not favor the

defendant.

The fifth factor is the strength of the evidence against

the defendant. The jury was presented with evidence

that the defendant was present during the entire course

of events, including both inside and outside the club,

and during the subsequent altercation between Spear

and Delgado in the parking lot. Rather than leave at

any time, he stayed throughout with his friend Spear,

even though Spear had threatened to shoot people at

least twice that evening. During the altercation in the

parking lot, the defendant saw the gun after it had fallen

to the ground, ran toward it rather than away from it,

struggled forit, and shot the victim with it. He stipulated

and testified that he shot the victim.

The matter for the jury to decide was whether the

defendant possessed the requisite mental state—the

necessary specific intent—to be convicted of murder

or manslaughter, or whether the killing was justified

as self-defense. The jury returned a verdict of not guilty

on the murder charge but guilty of the lesser included

offense of intentional manslaughter in the first degree

with a firearm in violation of § 53a-55a (a). Although

the defendant claimed that he acted in self-defense,

he also repeatedly testified that the shooting was an

accident. He thus testified inconsistently about his state

of mind that evening and his description of the events

leading up to and including the shooting. Accordingly,

there was direct evidence in the form of the defendant’s

admission and acknowledgement that he shot the victim. His testimony was equivocal and, therefore, sufficient for the jury to decide his mental state. The fifth

factor does not weigh in favor of the defendant.

Applying the five Banta factors to this case, we conclude that the trial court did not abuse its discretion

in denying the defendant’s motion to sever the charges

against him.

II

The defendant claims that the court improperly

instructed the jury. First, he claims that the court erred

when it gave a combat by agreement instruction

because, he argues, there was a complete lack of evidence of such an agreement. Second, he claims that

the court erred when it denied his request to charge

the jury on the defense of necessity as to the criminal
possession charge.

Before addressing the defendant’s claims, we set

forth the well established standard of review for claims

of instructional error. ‘‘An improper instruction on a

defense, like an improper instruction on an element of

an offense, is of constitutional dimension.’’ (Internal

quotation marks omitted.) State v. Clark, 264 Conn. 723,

729, 826 A.2d 128 (2003). ‘‘[I]ndividual jury instructions

should not be judged in artificial isolation, but must be

viewed in the context of the overall charge. . . . The

pertinent test is whether the charge, read in its entirety,

fairly presents the case to the jury in such a way that

injustice is not done to either party under the established rules of law. . . . Thus, [t]he whole charge must

be considered from the standpoint of its effect on the

[jurors] in guiding them to the proper verdict . . . and

not critically dissected in a microscopic search for possible error. . . . Accordingly, [i]n reviewing a constitutional challenge to the trial court’s instruction, we must

consider the jury charge as a whole to determine

whether it is reasonably possible that the instruction

misled the jury. . . . In other words, we must consider

whether the instructions [in totality] are sufficiently

correct in law, adapted to the issues and ample for

the guidance of the jury.’’ (Internal quotation marks

omitted.) State v. Hampton, 293 Conn. 435, 452–53, 988

A.2d 167 (2009).

A

In the present case, the defendant claims that the

court erred when it gave a combat by agreement instruction because there was a complete lack of evidence of

such an agreement. He does not challenge the substance

of the court’s instructions. We conclude that the court’s

instruction did not mislead the jury.

‘‘The trial court should not submit to the jury any

issue that is foreign to the facts in evidence or for which

no evidence was offered. . . . In reviewing a claim that

there was insufficient evidence to support an instruction, the reviewing court must consider the evidence

in the light most favorable to upholding the instruction.

. . . The question on appeal is whether, viewing the

evidence in this light, it was sufficient to support a

reasonable inference that the physical force employed

by the defendant was the product of an agreement not

authorized by law.’’ (Citations omitted; internal quotation marks omitted.) State v. Johnson, 53 Conn. App.

476, 480–81, 733 A.2d 852, cert. denied, 249 Conn. 929,

733 A.2d 849 (1999).

Although an individual may justifiably use deadly

physical force in self-defense under General Statutes

§ 53a-19,8 certain exceptions under that section preclude the defense. Subsection (c) of § 53a-19 provides

in relevant part: ‘‘Notwithstanding the provisions of subsection (a) of this section, a person is not justified in
using physical force when . . . (3) the physical force

involved was the product of a combat by agreement

not specifically authorized by law.’’ ‘‘A jury instruction

regarding the combat by agreement exception to selfdefense is warranted when the evidence is sufficient

to support a reasonable inference that such a mutual

combat occurred. . . . The agreement required by

. . . § 53a-19 (c) (3) need not be formal or express.

. . . Such an agreement may be tacit and inferred from

the facts and circumstances of the case.’’ (Citations

omitted; internal quotation marks omitted.) State v.

O’Bryan, 318 Conn. 621, 637, 123 A.3d 398 (2015).

We have reviewed the evidence presented at trial and

conclude that there was sufficient evidence to warrant

the court’s instruction. The courtreasonably could have

determined that there was sufficient evidence, if

believed, from which the jury could have found that

the defendant entered into a tacit orinformal agreement

to engage in unlawful combat. For example, the defendant was present for the entirety of each altercation

between Spear and Delgado, including when Spear

threatened to shoot people at least twice. The club’s

security team found it necessary to separate the groups

in an attempt to defuse the situation and prevent violence. Once escorted out of the club, instead of leaving

the area, the defendant and Spear waited for the victim

and his friends. The defendant then accompanied Spear

to the parking lot after Spear and Delgado had explicitly

agreed to a fistfight. After Spear struck Delgado with

a hard object, which then dropped on the ground, the

defendant was the first to run toward what he had

identified as a gun. There is no evidence that at any time

the defendant left the area of the agreed and ongoing

altercation, telephoned the police, attempted to convince Spear to leave, telephoned for medical help for

Spear, or attempted to defuse the situation.

In summary, reviewing the evidence as a whole, the

court reasonably could have determined that there was

sufficient evidence of a tacit or informal agreement

among at least some of those present, including the

defendant, growing out of and related to the agreement

between Spear and Delgado. Accordingly, the court had

the discretion to submit to the jury the question of

whether the combat by agreement exception to the

defendant’s claim of self-defense had been proved by

the state, assuming that the jury found priorto considering that exception that the defendant was acting in

self-defense.9 Accordingly, we conclude that the court

properly exercised its discretion to charge the jury on

the combat by agreement exception to the defendant’s

claim of self-defense.10

B

The defendant also claims that the court erred when

it denied his request to present a necessity instruction

to the jury as to the criminal possession charge. In
response, the state contends that the court properly

refused to instruct the jury on necessity because the

evidence did not support the instruction. We agree with

the state.

The following additional procedural history is relevant to the resolution of this claim. On November 17,

2014, the day that trial began, the defendant filed a

request to charge the jury on necessity concerning the

criminal possession charge. After the prosecution and

defense rested their cases, the court heard argument

on the necessity charge on November 19, 2014. The

defendant argued that the evidence clearly supported

the charge, utilizing the three factors set forth in State

v. Wright, 106 Conn. App. 295, 305, 942 A.2d 430, cert.

denied, 286 Conn. 921, 949 A.2d 482 (2008), and State

v. Marsala, 59 Conn. App. 135, 142, 755 A.2d 965, cert.

denied, 254 Conn. 948, 762 A.2d 905 (2000). The state

objected, citing State v. Wright, 77 Conn. App. 80, 822

A.2d 940, cert. denied, 266 Conn. 913, 833 A.2d 466

(2003). The court took the arguments under advisement

as it prepared its instructions. At the charge conference

the next day, the defendant renewed his request for

an instruction on necessity, arguing that the evidence

supported that defense, and the state again objected.

The court stated that it did not think that the case law

supported a necessity charge.11 The court concluded

that it would not give the instruction but noted the

defendant’s objection. The court did not instruct the

jury on the defense of necessity and, after the charge

had been given, the defendant took exception to the

court’s failure to charge.

In reviewing a claim that the court failed to give a

requested charge, our standard of review is well settled.

‘‘A fundamental element of due process is the right of

a defendant charged with a crime to establish a defense.

. . . An improper instruction on a defense, like an

improper instruction on an element of an offense, is of

constitutional dimension. . . . [T]he standard of

review to be applied to the defendant’s constitutional

claim is whether it is reasonably possible that the jury

was misled. . . . In determining whether the jury was

misled, [i]t is well established that [a] charge to the

jury is not to be critically dissected for the purpose of

discovering possible inaccuracies of statement, but it

is to be considered rather as to its probable effect [on]

the jury in guiding [it] to a correct verdict in the case.

. . . The test to be applied to any part of a charge is

whether the charge, considered as a whole, presents

the case to the jury so that no injustice will result.

. . . In reviewing the trial court’s failure to charge as

requested, we must adopt the version of facts most

favorable to the defendant [that] the evidence would

reasonably support. . . . A challenge to the validity of

jury instructions presents a question of law over which

[we have] plenary review.’’ (Citations omitted; internal

quotation marks omitted.) State v. Singleton, 292 Conn.
734, 745–46, 974 A.2d 679 (2009).

As to his claim of necessity, ‘‘[t]he defendant is

required to make a preliminary showing through an

offer of proof before the necessity defense may be submitted to the jury. . . . Therefore, as a threshold question of law, the trial court must determine whether a

necessity defense is warranted under the facts presented by the defendant. . . . If the court determines

that there is sufficient evidence available to support

the defense of necessity, then a defendant is entitled

as a matter of law to a defense of necessity instruction.’’

(Citations omitted.) State v. Woods, 23 Conn. App. 615,

617–18, 583 A.2d 639 (1990).

‘‘Our statutory definition of the defense of justification, General Statutes §§ 53a-16 and 53a-17, does not

include ‘necessity’ as a recognized defense to a criminal

charge. Indeed, our Supreme Court has indicated that

the defense of necessity has no statutory basis in Connecticut. . . . At common law, the defense of necessity

has been recognized under certain narrowly defined

circumstances. . . . The defense rests upon the proposition that there may be circumstances where the value

protected by the law is, as a matter of public policy,

eclipsed by a super[s]eding value which makes it inappropriate and unjust to apply the usual criminal rule.

. . . The defense of necessity traditionally covered the

situation where physical forces beyond the actor’s control rendered illegal conduct the lesser of two evils. . . .

The defense, however, deals with obvious and generally

recognized harms, not with those which are debatable

and, indeed, the subject of legislation and government

regulation.’’ (Citations omitted; footnotes omitted;

internal quotation marks omitted.) State v. Drummy,

18 Conn. App. 303, 308–309, 557 A.2d 574 (1989); see

also State v. Joseph, 161 Conn. App. 850, 852–53 n.3,

129 A.3d 183 (2015), cert. denied, 320 Conn. 923, 133

A.3d 878 (2016).

‘‘Where an offer of proof is made with respect to a

defense and it is clear from the offer of proof that the

defense is insufficient as a matter of law, the trial court

may properly refuse to permit evidence of the defense

to be submitted to the jury. . . . This court has . . .

adopted a definition of the common law defense of

necessity that requires a showing by the defendant (a)

that there [was] no . . . legal alternative available, (b)

that the harm to be prevented [was] imminent, and (c)

that a direct causal relationship [may] be reasonably

anticipated to exist between defendant’s action and the

avoidance of harm.’’ (Citation omitted; internal quotation marks omitted.) State v. Marsala, supra, 59 Conn.

App. 142.

In the present case, the elements of the defendant’s

necessity defense as to the criminal possession charge

are similar to his self-defense arguments as to the other

charges relating to his use of the gun. On appeal, he
argues, on the basis of his own testimony at trial, that

he saw the gun fall to the ground but that he did not

know from where it came. He also argues on appeal

that he testified that he attempted to obtain control of

the gun because the victim was attempting to do the

same thing. The defendant, however, testified at trial

that he was the first to attempt to pick up the gun and

that the victim attacked him from behind. At no point

did the defendant testify that he ran to pick up the gun

because the victim was attempting to do so.

Although the defendant attempts to meld the grounds

for his necessity affirmative defense as to the criminal

possession charge with his self-defense claims as to the

murder charges, we examine his necessity claims from

the initialtime thatthe opportunity to possess or control

the gun presented itself. In considering the defendant’s

request for a necessity charge, the court reasonably

could have determined from the evidence that it and

the jury had heard, that when the gun fell to the ground

and the defendant noticed it, he had lawful options

available to him other than running toward it to pick

it up. As the state argued at trial, he could have run

away from the gun and left the area of the altercation.

Additionally, if his concern was the protection of others,

he could have shouted a warning that there was a gun

present so they also could have fled the area. He also

could have shouted for the police or for other help, run

back to the nightclub, or placed a 911 call. Each of

these is a lawful alternative to his decision to obtain

possession of the gun.12 Accordingly, because he failed

to present evidence to satisfy the first prong of the

defense of necessity, the court reasonably determined

that the defendant was not entitled to an instruction

on that defense.

Contrary to the defendant’s contention, the trial court

did not abuse its discretion in denying his motion to

bifurcate or sever, nor did the court err in instructing

the jury.

The judgment is affirmed.

In this opinion the other judges concurred.

* The listing of judges reflects their seniority status on this court as of

the date of oral argument.

1 Although Miguel Delgado and Jose Delgado share a surname, herein we

refer to Miguel Delgado as the victim and to Jose Delgado by his surname.

2 The defendant inartfully presents both of his alternatives as bifurcations.

‘‘The term ‘bifurcation’ normally is used where one case is split into multiple

parts. For example, a jury deliberates on liability and, after determining that

liability exists, subsequently determines damages. Here, two separate cases

were joined for trial, gun charges and narcotics charges, and severance is

the appropriate term.’’ State v. Fleury, 135 Conn. App. 720, 734 n.3, 42 A.3d

499 (Flynn, J., concurring), cert. denied, 305 Conn. 919, 47 A.3d 388 (2012).

Therefore, when the defendant in the present case seeks to separate his

criminal possession charge from his murder charge, he seeks a severance.

3 The defendant ultimately did testify in his trial.

4 The defendant argues that, in analyzing the prejudicial effect of severance

utilizing the Banta factors, the court must view the potential prejudice

through the lens of State v. Jones, supra, 234 Conn. 324. We have considered

Jones and find that the defendant’s reliance upon it is misplaced.

5 The Banta court added, ‘‘Another factor which, of course, must be
considered in the appropriate case is the effect of the joinder upon a defendant’s right to testify or not to testify.’’ State v. Banta, supra, 15 Conn. App.

171 n.3. We need not consider that factor in the present case, however,

because the defendant has not claimed on appeal that the court violated

his constitutional rights to testify or not testify by the failure to sever the

murder charges from the criminal possession charge.

6 The court instructed the jury as follows: ‘‘You’ll have copies of the

stipulations with you during your deliberations. There are rules concerning

the stipulation. You’ll receive those when I give the instructions. But those

you can determine, accept or reject as you consider it relevant.

‘‘Now, as far as the convicted of a felony, don’t speculate as to what it

could be. Many, many offenses are felonies in the state of Connecticut. So

I’m asking you not to speculate as to what it could or couldn’t have been.’’

7 When instructing the jury regarding the defendant’s prior felony convictions and the stipulations entered, the court instructed as follows:

‘‘In this case evidence was introduced to show that the defendant was

convicted of a felony, which is any crime for which a person may be incarcerated for more than one year. Evidence of the commission of a crime other

than the one charged generally is not admissible to prove the guilt of the

defendant. In this particular case, the commission of other crimes by this

defendant has been admitted into evidence for the purpose of affecting his

credibility. You must weigh the testimony along with all the other evidence

in this case. You may consider the convictions of the defendant only as

they bear on his credibility, and you should determine that credibility upon

the same considerations as those given to any other witness.

‘‘With respect to count three, [criminal possession] evidence of the commission of a felony can be considered by you during your deliberations

concerning the elements of that crime.

* * *

‘‘You will recall that I have ruled some testimony and evidence have been

allowed for a limited purpose. Any testimony or evidence which I identify

as being limited to a purpose, you will consider only as it relates to the

limit for which it was allowed, and you shall not consider it—you shall not

consider such testimony and evidence in finding any other facts as to any

other issue.

‘‘In this case, evidence in the form of a stipulation between the parties

was introduced to show that the defendant was convicted of a felony and

further that the defendant was the shooter on the evening in question. A

stipulation is an agreement between the parties concerning some fact, which

you as the jury are bound to accept as fact during your deliberations. A

stipulation does not, however, establish proof of the element of the crime

beyond a reasonable doubt. The stipulation is to be used only for the specific

purpose it was entered for and not to be used for any other purpose. The

stipulation does not include credibility or the weight you give to the exhibit.’’

8 General Statutes § 53a-19 provides in relevant part: ‘‘(a) Except as provided in subsections (b) and (c) of this section, a person is justified in using

reasonable physical force upon another person to defend himself or a third

person from what he reasonably believes to be the use or imminent use of

physical force, and he may use such degree of force which he reasonably

believes to be necessary for such purpose; except that deadly physical force

may not be used unless the actor reasonably believes that such other person

is (1) using or about to use deadly physical force, or (2) inflicting or about

to inflict great bodily harm. . . .

‘‘(c) Notwithstanding the provisions of subsection (a) of this section, a

person is not justified in using physical force when . . . (3) the physical

force involved was the product of a combat by agreement not specifically

authorized by law.’’

9

If the jury found that the state had proved beyond a reasonable doubt

that the defendant was not acting in self-defense, then the jury would not

have had to reach, consider, and decide whether the combat by agreement

exception negated the defendant’s self-defense claim. See State v. O’Bryan,

supra, 318 Conn. 631, 637.

10 The defendant also argues on appeal that it was improper for the court

to consider the combat by agreement instruction without a request by the

state or the defendant, and to determine that the jury should decide whether

the evidence supported a finding that the defendant, Spear, and Delgado,

among others, had entered into an express or tacit agreement to fight prior

to gathering in the parking lot. We disagree. ‘‘[W]e must consider whether

the instructions [in totality] are sufficiently correct in law, adapted to the

issues and ample for the guidance of the jury.’’ (Internal quotation marks

omitted.) State v. Strong, 122 Conn. App. 131, 140, 999 A.2d 765, cert. denied,

298 Conn. 907, 3 A.3d 73 (2010); see also State v. Riddick, 153 Conn. App.
69, 78, 100 A.2d 438 (‘‘the trial court must correctly adapt the law to the

case in question and must provide the jury with sufficient guidance in

reaching a correct verdict’’ [internal quotation marks omitted]), cert. denied,

315 Conn. 904, 104 A.3d 757 (2014). The statute under which the defendant

raises his self-defense claim, § 53a-19, includes combat by agreement as an

enumerated exception. Given that it is the duty of the court to instruct the

jury on the law, adapted to the facts of the case, and because we conclude

that sufficient facts supported a combat by agreement instruction, we conclude that the court did not abuse its discretion by including that instruction

in its draft instructions provided to counsel, and subsequently to the jury.

See Perez v. Cumba, 138 Conn. App. 351, 378, 51 A.3d 1156 (‘‘[i]t thus was

incumbent on the court to provide the jury with instructions adapted to

[the issues presented]’’), cert. denied, 307 Conn. 935, 56 A.3d 712 (2012).

11 On appeal, the defendant argues that the court erred in determining

that the instruction was unwarranted because it believed that instruction

was prohibited merely because there was no authority requiring it. We

cannot agree that the court erred in concluding that it could not give the

instruction because no law required it; the court made no such conclusion.

See Johnson v. de Toledo, 61 Conn. App. 156, 162, 763 A.2d 28 (2000) (‘‘It

is important to recognize that a claim of error cannot be predicated on an

assumption that the trial court acted incorrectly. . . . Rather, we are entitled to assume, unless it appears to the contrary, that the trial court . . .

acted properly, including considering the applicable legal principles.’’ [Internal quotation marks omitted.]), appeal dismissed, 258 Conn. 732, 785 A.2d

192 (2001).

12 We also note that other jurisdictions have added factors to the defense

of necessity in the context of unlawful possession that make the defense

unavailable when the defendant recklessly or negligently placed himself in

circumstances in which it was probable that he would be forced to choose

the criminal conduct. See, e.g., United States v. Ridner, 512 F.3d 846, 850

(6th Cir. 2008) (‘‘emphasiz[ing] that the keystone of the analysis is that the

defendant must have no alternative—either before or during the event—to

avoid violating the law’’ [internal quotation marks omitted]); see also United

States v. Gant, 691 F.2d 1159, 1162–63 (5th Cir. 1982); State v. Crawford,

308 Md. 683, 699, 521 A.2d 1193 (1987).