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*********************************************** 
STATE OF CONNECTICUT v. ANTHONY MAGARACI

(AC 42264)

DiPentima, C. J., and Keller and Flynn, Js.

Syllabus

Convicted, after a jury trial, of the crime of assault in the first degree in

connection with an altercation between the defendant and W during

which the defendant stabbed W and B with a knife, the defendant

appealed to this court. He claimed, inter alia, that there was insufficient

evidence to support his conviction because the state failed to disprove

beyond a reasonable doubt that he acted in self-defense. Held:

1. The state produced sufficient evidence to disprove the defendant’s theory

of self-defense beyond a reasonable doubt, as there was evidence, which

the jury reasonably could have credited, that the defendant was the

initial aggressor who had lunged at and stabbed W and, in the process,

had stabbed B, and the jury was free to disbelieve the defendant’s version

of events; moreover, the jury reasonably could have determined that

the state carried its burden of proving beyond a reasonable doubt that

the defendant used deadly force against W despite the fact that he had

actual knowledge of his ability to retreat safely, as he admitted on crossexamination that he could have walked away from W.

2. This court declined to review the merits of the defendant’s claim that he

was deprived of his constitutional right to a unanimous verdict when

the trial court improperly charged the jury on self-defense by failing to

expressly instruct the jury that it must unanimously agree on the factual

basis for rejecting his theory of self-defense, the defendant having waived

his claim of instructional error; the record indicated that the court

provided defense counsel with a copy of its charge, which included the

self-defense and unanimity instructions that were read to the jury, and

with a meaningful opportunity to review the instructions, that the court

solicited comments from counsel before and after it read the instructions

to the jury, that defense counsel not only failed to object to the charge

but indicated his satisfaction with it, and that counsel did not file a

request to charge to alert the court to any potential issues with the

charge.

Argued February 3—officially released June 23, 2020

Procedural History

Substitute information charging the defendant with

two counts of the crime of assault in the first degree,

brought to the Superior Court in the judicial district of

Middlesex and tried to the jury before Suarez, J.; verdict

and judgment of guilty, from which the defendant

appealed to this court. Affirmed.

Norman A. Pattis, for the appellant (defendant).

Matthew A. Weiner, assistant state’s attorney, with

whom, on the brief, was Michael A. Gailor, state’s attorney, for the appellee (state).
Opinion

FLYNN, J. The defendant, Anthony Magaraci, appeals

from the judgment of conviction, rendered following a

jury trial, of two counts of assault in the first degree

in violation of General Statutes § 53a-59 (a) (1). The

defendant claims that (1) the state adduced insufficient

evidence to support his conviction because it had failed

to disprove beyond a reasonable doubt that he acted

in self-defense, and (2) the court improperly instructed

the jury on self-defense. We conclude that the evidence

sufficed to permit the jury, as the arbiters of the credibility of witnesses, reasonably to conclude that the defendant was the original aggressor and that he had stabbed

the victims even though he could have safely retreated.

We also conclude that the defendant waived any claim

of instructional error. We, therefore, affirm the judgment of the trial court.

The jury reasonably could have found the following

facts. Cheryl Bell invited her longtime friend, Tina Peraino, who was living in Florida, to visit and stay with

her and her husband, Ryan Bell, over Memorial Day

weekend, 2017. The defendant, who lived in West Haven

and who was dating Peraino, accompanied Peraino.

After meeting Peraino at the airport, the defendant and

Peraino arrived at the Bells’ residence in the early morning of Friday, May 26, 2017. On Friday night, following

dinner, the defendant, Peraino, and Ryan Bell went to

the house of the Bells’ neighbor, Chris Abbatello, to

socialize and to drink beer. Ryan Bell introduced Peraino to another guest, Justin Wyatt, and the two began

conversing while the defendant was standing by Peraino. During the conversation, Wyatt made a derogatory

comment about Peraino’s job as a paralegal that made

Peraino uncomfortable. After returning to the Bells’

residence, the defendant stated that Wyatt ‘‘needs a

crack in the mouth.’’ According to Ryan Bell, the next

day the defendant appeared ‘‘bitter’’ and ‘‘agitated’’

about that conversation that had occurred the night

before. The defendant referred to Wyatt using an

insulting scatological term.

On Sunday, Abbatello hosted a picnic at a state park.

Between forty and sixty people were in attendance,

including the defendant, Peraino, and Wyatt.1 Around

5:30 p.m., the defendant, Peraino, and Ryan Bell left

the picnic and went to the house of another neighbor

of the Bells, Paula Bourdon and Tim Bourdon. An after

party ensued at the Bourdons’ house, which included

socializing, drinking alcoholic beverages, and playing

horseshoes. The defendant, Peraino, Ryan Bell, and

Wyatt were drinking beer. Cheryl Bell was the only one

of the group who was not drinking alcohol.

The defendant, who was ‘‘quite upset,’’ said to Paula

Bourdon that he ‘‘could handle himself’’ and displayed

a knife that had been in his pocket. He also stated to
Paula Bourdon that ‘‘he knew Hells Angels and . . .

was not the kind of person to be messed with.’’ Around

8 p.m., Wyatt, who was holding a beer bottle in his right

hand, turned around and, upon seeing the defendant,

switched the beer bottle to his left hand and extended

his right hand. The defendant did not shake Wyatt’s

hand, yelled that Wyatt had disrespected him, and

shouted several times for Wyatt to go for a walk with

him. Wyatt yelled back ‘‘absolutely not.’’ Cheryl Bell,

who had been standing nearby, shouted to Ryan Bell,

who was playing horseshoes, to ‘‘come over.’’ Ryan Bell

then positioned himself in between the defendant and

Wyatt. The defendant became ‘‘very upset,’’ lunged at

Wyatt, and the two began ‘‘to swing at each other.’’

Ryan Bell ‘‘grabbed’’ Wyatt, ‘‘pulled him back,’’ and felt

‘‘a graze.’’ Another guest, John Surprenant, stopped

playing horseshoes and went over to see if he could help

stop the altercation. After the altercation, the defendant

stated, ‘‘that will teach you,’’ and placed the folding

knife in his pocket.

After a few moments, Wyatt felt a ‘‘hot coffee’’ like

sensation, and upon lifting his sweatshirt, noticed

‘‘blood gushing’’ from his abdomen. He began to have

trouble breathing. Ryan Bell also sustained a stab

wound. Tyler Peska, who was also at the Bourdons’

gathering, called 911. Both Wyatt and Ryan Bell were

transported to a hospital for treatment. Wyatt had a

four centimeter by two centimeter stab wound to his

abdomen that caused an apical pneumothorax, or air

outside the apex of his lung. He was admitted to the

hospital for monitoring and released the following day.

Ryan Bell had an eight centimeter stab wound on his

left abdomen that did not penetrate ‘‘the strength layers

of the abdomen’’ and was discharged after receiving

stitches.

Corporal Bryan Pellegrini, a member of the Clinton

Police Department and the lead investigator on the case,

responded to the scene, and he and other Clinton officers took statements from witnesses after the stabbings. He did not take statements from some individuals

because they were too intoxicated. The police recovered the broken neck of a beer bottle approximately

fifty feet from where the incident had taken place.

Forensic testing revealed that the DNA on the mouth of

the beer bottle matched Wyatt’s DNA profile. Pellegrini

went to the hospital, noticed that Wyatt was ‘‘still making sense,’’ and took Wyatt’s statement while he was

awaiting treatment. According to blood tests taken at

the hospital, Wyatt’s blood alcohol content was 0.167

percent and Ryan Bell’s blood alcohol content was

0.07 percent.2

After the altercation, the defendant and Peraino

walked quickly toward the Bells’ house and packed their

belongings. On their way to a restaurant near Bradley

International Airport, the defendant threw the knife out
the car window. As he was leaving the restaurant, the

defendant was arrested. Police officers did not notice

any visible injuries to the defendant’s head or face, but

noticed a cut on the defendant’s finger that he could

not explain.

At trial, the defendant conceded that he had stabbed

Wyatt and Ryan Bell, but contended that he did so in

self-defense. The defendant testified to the following

version of events regarding the altercation at the Bourdons’ house. While he was conversing with Peraino and

Cheryl Bell, Wyatt approached him carrying an empty

beer bottle in his right hand. Wyatt switched the bottle

to his left hand and asked if he wanted to shake hands.

The defendant responded that if Wyatt apologized for

his ‘‘rude and disrespectful behavior’’ then he would

‘‘be glad’’ to shake Wyatt’s hand. Wyatt responded with

an obscenity and began ‘‘posturing’’ in a way that made

the defendant think that Wyatt was trying to ‘‘intimidate’’ and ‘‘terrorize’’ him with the beer bottle. He did

not walk away because he thought that Wyatt would

hit him on the head with the beer bottle if he turned

his back. He told Wyatt, ‘‘please don’t come at me with

that beer bottle, if you do, you’re gonna force me to

defend myself with what I have in my pocket.’’ Cheryl

Bell yelled at Wyatt to ‘‘leave him alone,’’ and called

out to Ryan Bell. Then, ‘‘all of a sudden,’’ Cheryl Bell

was out of the way. The defendant ‘‘waited [until Wyatt]

raised the bottle before [he] pulled the knife out of [his]

pocket. And then, when [Wyatt] lunged forward with

. . . the beer bottle, [he] went forward with the knife.’’

The beer bottle ‘‘glanced off’’ the side of his head and

Ryan Bell intercepted the path of the knife, apparently

getting cut in the process. Wyatt grabbed him around

the throat and the defendant ‘‘thrust again,’’ stabbing

Wyatt. On cross-examination, the defendant stated that

he ‘‘could have walked away,’’ but he did not.

Following a jury trial, the defendant was convicted

of two counts of assault in the first degree. The court

imposed a total effective sentence of twenty years of

incarceration, suspended after nine years, with five

years of probation. This appeal followed.

I

The defendant first claims that the state adduced

insufficient evidence to prove beyond a reasonable

doubt that he did not act in self-defense. We disagree.

The defendant preserved this claim by moving, at the

close of the state’s case, for a judgment of acquittal on

the basis of insufficient evidence. Regardless of preservation, we review insufficiency claims because ‘‘any

defendant who is found guilty on the basis of insufficient evidence has been deprived of a constitutional

right and is entitled to review whether or not the claim

was preserved at trial.’’ State v. Pommer, 110 Conn.

App. 608, 612, 955 A.2d 637, cert. denied, 289 Conn. 951,
961 A.2d 418 (2008), citing Jackson v. Virginia, 443

U.S. 307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).

‘‘In reviewing a sufficiency of the evidence claim, we

apply a [two part] test. First, we construe the evidence

in the light most favorable to sustaining the verdict.

Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom

the jury reasonably could have concluded that the

cumulative force of the evidence established guilt

beyond a reasonable doubt. . . . On appeal, we do not

ask whether there is a reasonable view of the evidence

that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable

view of the evidence that supports the jury’s verdict

of guilty.’’ (Internal quotation marks omitted.) State v.

Merriam, 264 Conn. 617, 628–29, 835 A.2d 895 (2003).

The jury was given evidence of two conflicting versions of events. In one, the defendant first lunged at

Wyatt with a knife. In the other, the defendant was hit

over the head with a beer bottle and defended himself

with a knife from further injury. During closing argument, defense counsel conceded that the elements of

assault in the first degree were satisfied as to Wyatt

and Ryan Bell.3 The theory of the defense was that the

defendant stabbed Wyatt and Ryan Bell in self-defense.

In support of his defense, the defendant relied on his

own testimony and Peraino’s testimony that Wyatt

began the altercation by striking the defendant on the

head with a beer bottle after he declined to shake

Wyatt’s hand. He also relied on the physical evidence

of a broken neck portion of a beer bottle containing

Wyatt’s DNA that the police recovered approximately

fifty feet from the scene of the altercation.

Self-defense is a defense, but not an affirmative

defense, which means that the defendant only has a

burden of production and does not have a burden of

persuasion; once the defendant introduces sufficient

evidence to warrant presenting his claim of self-defense

to the jury, it is the state’s burden to disprove the

defense beyond a reasonable doubt. State v. Singleton,

292 Conn. 734, 747, 974 A.2d 679 (2009). Whether the

state has disproved self-defense is a question of fact

for the jury. State v. Pauling, 102 Conn. App. 556, 571–

72, 925 A.2d 1200, cert. denied, 284 Conn. 924, 933 A.2d

727 (2007).

Section 53a-19 (a) provides in relevant part that ‘‘a

person is justified in using reasonable physical force

upon another person to defend himself . . . 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.’’ Section 53a-19 (b) specifies the circumstances

under which a person has a duty to retreat and provides

in relevant part that ‘‘a person is not justified in using

deadly physical force upon another person if he or she

knows that he or she can avoid the necessity of using

such force with complete safety (1) by retreating

. . . .’’ Section 53a-19 (c) provides: ‘‘Notwithstanding

the provisions of subsection (a) of this section, a person

is not justified in using physical force when (1) with

intent to cause physical injury or death to another person, he provokes the use of physical force by such other

person, or (2) he is the initial aggressor, except that

his use of physical force upon another person under

such circumstances is justifiable if he withdraws from

the encounter and effectively communicates to such

other person his intent to do so, but such other person

notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the

product of a combat by agreement not specifically

authorized by law.’’

A jury’s evaluation of a self-defense claim has both

subjective and objective elements. See State v. Hall,

213 Conn. 579, 586 n.7, 569 A.2d 534 (1990). Section

53a-19 (b) requires both that a complete safe retreat be

available and that the defendant know of it. See State

v. Quintana, 209 Conn. 34, 46, 547 A.2d 534 (1988). To

obtain a conviction, the state must sustain its burden

of disproving beyond a reasonable doubt any of the

essential elements of self-defense or sustain its burden

of proving beyond a reasonable doubt that the statutory

exceptions to self-defense codified in § 53a-19 (b) or

(c) apply. See State v. Grasso, 189 Conn. App. 186,

200, 207 A.3d 33, cert. denied, 331 Conn. 928, 207 A.3d

519 (2019).

The defendant contends that the state failed to disprove that he acted in self-defense and that ‘‘the verdict

in this case is the product of speculation.’’ He argues

that no reasonable juror would have credited the testimony of the five state’s witnesses whose testimony

contradicted the defendant’s version of the events of

the altercation: Wyatt, Ryan Bell, Cheryl Bell, Peska,

and Surprenant, because they had ‘‘serious credibility

issues, or simply lacked any real knowledge of the confrontation.’’ The defendant argues that a reasonable

juror would have questioned the veracity of these witnesses for the following reasons. Wyatt was intoxicated

when he gave his statement to the police, which was

inconsistent with his trial testimony. Peska testified

that he did not remember who started the fight and the

police officers declined to take his statement because

they thought he was too intoxicated. The defendant

contends that Cheryl Bell was biased against the defendant for ending her friendship with Peraino, which colored her testimony, and that she did not see the altercation because her husband, Ryan Bell pulled her out of

the way before the altercation began. The defendant
notes that Cheryl Bell was the only one who testified

that she heard him say, after stabbing Wyatt, ‘‘that will

teach you.’’ The defendant states that Cheryl Bell did

not include the disputed comment in her statement

to the police. He further contends that Surprenant’s

testimony was not credible because he did not see the

fight start and the police did not take an official statement because officers thought he was too intoxicated.

The defendant further argues that a reasonable juror

would have determined that the following testimony of

two of the state’s witnesses corroborated his version

of events: Surprenant’s testimony that he heard the

defendant say that Wyatt had tried to hit him with a

beer bottle, and Ryan Bell’s testimony that he did not

recall seeing anything in Wyatt’s hand at the time of

the fight but heard a bottle break on the ground as

Cheryl Bell called him over. The defendant also notes

that Ryan Bell was on Pellegrini’s list of witnesses

whose official statements were not taken by investigative police officers because those witnesses were

deemed intoxicated. He further argues that the state

failed to explain the broken beer bottle that contained

Wyatt’s DNA.

The defendant essentially argues that the state failed

to disprove self-defense because its eyewitnesses

lacked credibility. However, it is not the role of this

court to question the jury’s credibility determinations.

‘‘[I]t is well established that we may not substitute our

judgment for that of the [trier of fact] when it comes

to evaluating the credibility of a witness. . . . It is the

exclusive province of the trier of fact to weigh conflicting testimony and make determinations of credibility,

crediting some, all or none of any given witness’ testimony. . . . Questions of whether to believe or disbelieve a competent witness are beyond our review. As

a reviewing court, we may not retry the case or pass

on the credibility of witnesses.’’4

(Internal quotation

marks omitted.) State v. DeMarco, 311 Conn. 510, 519–

20, 88 A.3d 491 (2014). Therefore, it was within the

province of the jury to assess the credibility of the

state’s eyewitnesses, and the jury was not obligated to

discredit the testimony of the witnesses whose credibility was called into question. See State v. Owens, 63

Conn. App. 245, 250, 775 A.2d 325, cert, denied, 256

Conn. 933, 776 A.2d 1151 (2001).

With these principles in mind, we conclude that the

state produced sufficient evidence to disprove the

defendant’s theory of self-defense beyond a reasonable

doubt. There was evidence, which the jury reasonably

could have credited, that the defendant was the initial

aggressor who lunged at and stabbed Wyatt and, in the

process, stabbed Ryan Bell. Wyatt testified that he did

not threaten the defendant with a beer bottle and that

the defendant was the one who ‘‘came at’’ him. Cheryl

Bell testified that the defendant threw the first punch.

Ryan Bell testified that, after Cheryl Bell called him
over, he saw a scuffle and pulled Wyatt back as the

defendant was lunging at Wyatt. The defendant testified

that, after the altercation, he discarded the knife. Additionally, the fact that the police did not take official

statements from certain witnesses because the police

officers thought they were too intoxicated, does not

obligate the jury to abandon its role as the sole arbiter

of the credibility of these witnesses and automatically

discount their testimony. Rather, it is the unique role

of the jury to weigh conflicting evidence, to determine

the credibility of witnesses, and to decide whether to

accept or reject, in whole or in part, the testimony of

a witness. See, e.g., State v. Terry, 161 Conn. App. 797,

800 n.2, 128 A.3d 958 (2015), cert. denied, 320 Conn. 916,

131 A.3d 751 (2016). Although some witnesses reported

hearing a bottle crash as the altercation began, the

broken beer bottle containing Wyatt’s DNA was found

fifty feet from the scene of the altercation. To the extent

that such evidence can be seen as supporting the defendant’s theory, evidence is not insufficient because it is

inconsistent or conflicting. See State v. Vega, 128 Conn.

App. 20, 27, 17 A.3d 1060, cert. denied, 301 Conn. 919,

21 A.3d 463 (2011). The existence of evidence which,

under one interpretation, could be viewed as supporting

the defendant’s version of events does not obligate the

jury to interpret it in that light. See, e.g., State v. Terry,

supra, 800 n.2. The jury was free to disbelieve the defendant’s version of events that Wyatt was about to inflict

great bodily harm on him by hitting him on the head

with a beer bottle and that he ‘‘went forward’’ with a

knife after Wyatt lunged at him with a beer bottle. The

jury also was free to disbelieve the portion of the defendant’s testimony that he had asked Wyatt not to attack

him with the beer bottle, otherwise he would have to

defend himself with a knife. Additionally, even if the

jury credited the defendant’s version of events, the jury

reasonably could have determined that the state carried

its burden of proving beyond a reasonable doubt that

the defendant used deadly force against Wyatt despite

the fact that he had actual knowledge of his ability to

retreat safely. The defendant admitted on cross-examination that he ‘‘could have walked away.’’

For the foregoing reasons, we conclude that the

defendant cannot prevail on his insufficiency claim.

II

The defendant next claims that he was deprived of his

right, under article first, §§ 8 and 19, of the Connecticut

constitution, to a unanimous verdict when the court

improperly charged the jury on self-defense by failing

to expressly instruct the jury that it must unanimously

agree on the factual basis for rejecting the defendant’s

theory of self-defense. The state responds that the

defendant implicitly waived this claim. We agree with

the state and, accordingly, do not reach the merits of

this claim.
The state filed a request to charge on March 20, 2018.

Defense counsel did not file a request to charge. On

March 21, 2018, the court stated that it had incorporated

comments from both counsel into its jury charge and

had a draft ready for counsel to review overnight. The

draft charge included the self-defense and unanimity

instructions that were later read to the jury the following day.5 On March 22, 2018, the court noted on the

record that it had held an in-chambers charge conference that morning and had accepted all of the suggestions made by the state and the defendant. The court

stated it would detail the changes for the record if either

counsel so requested. The state responded that it was

satisfied and that it was not necessary to go through

the changes. Defense counsel responded, ‘‘I’m very satisfied. Thank you. I think it’s an excellent charge.’’ The

court inquired if both counsel had an opportunity to

review the charge, and defense counsel answered

affirmatively. After the court read its final charge to

the jury, outside the presence of the jury, the court

asked defense counsel if he had any objection. Defense

counsel responded, ‘‘I have nothing. I thought it was

good.’’

We exercise plenary review when determining

whether a defendant waived the right to challenge a

jury instruction. See State v. Mungroo, 299 Conn. 667,

672–73, 11 A.3d 132 (2011). ‘‘Connecticut courts have

deemed a claim of instructional error implicitly waived

when the defense failed to take exception to, and acquiesced in, the jury instructions following one or more

opportunities to review them. . . . [W]hen the trial

court provides counsel with a copy of the proposed

jury instructions, allows a meaningful opportunity for

their review, solicits comments from counsel regarding

changes or modifications and counsel affirmatively

accepts the instructions proposed or given, the defendant may be deemed to have knowledge of any potential

flaws therein and to have waived implicitly the constitutional right to challenge the instructions on direct

appeal.’’ (Citations omitted.) State v. Kitchens, 299

Conn. 447, 480–83, 10 A.3d 942 (2011).

The circumstances of the present case are similar to

those in State v. Davis, 163 Conn. App. 458, 136 A.3d

257 (2016). In that case, this court determined that the

doctrine of implied waiver precluded substantive

review of the defendant’s claim of instructional impropriety where the court provided counsel with a copy

of the proposed instructions the day before the charge

conference, the parties indicated during the conference

that they had reviewed the proposed instructions,

defense counsel indicated one change to the instructions and otherwise stated that the instructions were

‘‘ ‘fair to both parties,’ ’’ and defense counsel voiced no

objection to the instruction at issue. Id., 478–79.

Following our careful review of the record, we con-
clude that the defendant implicitly waived this instructional claim. The record reflects that, at least one day

before it instructed the jury, the court provided counsel

with copies of its charge, which included the selfdefense and unanimity instructions that were read to

the jury. Under these circumstances, defense counsel

had a meaningful opportunity to review the instructions. See id. The court solicited comments from counsel before and after it read the instructions to the jury.

Defense counsel not only failed to object, but he also

indicated that he was ‘‘very satisfied’’ with the court’s

‘‘excellent charge.’’ Defense counsel did not file any

request to charge with the court alerting it to any claim

regarding the jury instructions of the kind now raised

on appeal. Because defense counsel implicitly waived

this claim of instructional impropriety, we do not review

the merits of this claim.6

The judgment is affirmed.

In this opinion the other judges concurred.

1 Wyatt testified that he had no contact with the defendant or Peraino at

the picnic other than briefly introducing them to a friend. Peraino testified

that Wyatt told her that she would have more fun if she were with him

instead of the defendant. Peraino testified that both she and the defendant

thought that comment was disrespectful. Other guests testified that they did

not see any interaction between Wyatt and either Peraino or the defendant.

2 General Statutes § 14-227a (a) (2) provides in part that a person commits

the offense of operating a motor vehicle while under the influence of intoxicating liquor if that person operates a motor vehicle while having a blood

alcohol content of 0.08 percent or more.

3 General Statutes § 53a-59 (a) provides in relevant part: ‘‘A person is

guilty of assault in the first degree when . . . (1) With intent to cause

serious physical injury to another person, he causes such injury to such

person or to a third person by means of a deadly weapon or a dangerous

instrument . . . .’’

4 Witness competency is within the discretion of the trial court. See State

v. Webb, 75 Conn. App. 447, 462–63, 817 A.2d 122, cert. denied, 263 Conn.

919, 822 A.2d 244 (2003). The testimony at issue was admitted into evidence,

and there is no dispute regarding the competency of these witnesses.

5 The court charged the jury on the elements and exceptions to selfdefense and further charged: ‘‘You must remember that a defendant has no

burden of proof whatsoever with respect to the defense of self-defense.

Instead, it is the state that must prove beyond a reasonable doubt that the

defendant did not act in self-defense if it is to prevail on its charge of crime

of assault in the first degree. To meet this burden, the state need not disprove

all four of the elements of self-defense. Instead, it can defeat the defense

of self-defense by disproving any one of the four elements of self-defense

beyond a reasonable doubt to your unanimous satisfaction.’’

6 The defendant contends that his claim is of constitutional magnitude

because it implicates the constitutional right to a unanimous verdict and

otherwise satisfies the requirements of State v. Golding, 213 Conn. 233,

239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R., 317 Conn.

773, 781,120 A.3d 1188 (2015). Because the defendant implicitly waived his

instructional claim, he cannot obtain relief under Golding. See State v.

Ramon A. G., 190 Conn. App. 483, 503 n.13, 211 A.3d 82, cert. granted on

other grounds, 333 Conn. 909, 215 A.3d 735 (2019). ‘‘A constitutional claim

that has been waived does not satisfy [Golding’s] third prong . . . because,

in such circumstances, we simply cannot conclude that injustice [has been]

done to either party . . . or that the alleged constitutional violation . . .

exists and . . . deprived the defendant of a fair trial . . . .’’ (Internal quotation marks omitted.) State v. Kitchens, supra, 299 Conn. 467.