State v. Shabazz

719 A.2d 440, 246 Conn. 746, 1998 Conn. LEXIS 337

• Court: Supreme Court of Connecticut
• Decided: September 8, 1998
• Docket: SC 15617
• Status: Published

Opinions

Opinion

BORDEN, J.

The principal issue in this appeal is whether the trial court properly precluded the defendant from introducing evidence that gross medical negligence caused the victim’s death. The defendant, Abdullah Shabazz, appeals¹ from the trial court’s judgment of conviction, following a jury trial, of murder in violation of General Statutes § 53a-54a.² The defendant claims that the trial court improperly: (1) precluded him from introducing evidence that the gross medical negligence of the hospital that treated the victim caused the victim’s death;³ (2) excluded evidence of the presence of the victim’s family at the trial; (3) excluded expert evidence of the victim’s character for violence, based on the presence in the victim’s body of drugs and alcohol; (4) excluded the defendant’s spontaneous utterance immediately after the incident; and (5) denied his motion to disqualify the trial judge. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On May 3,1994, at approximately noon, the victim, Michael Stewart, had just completed using a pay telephone located on the New Haven green, when the defendant approached the bank of telephones and began to use one of them. The victim turned toward the defendant and said, “ ‘Get off the phone. I beeped somebody.’ ” The defendant ignored the victim and began to dial. The victim then slapped the defendant in the face, the defendant punched the victim, and a fistfight ensued. As the fight quickly progressed, the victim tried to get away from the defendant, but the defendant would not let him go. Instead, the defendant produced a switchblade knife and, holding the victim so that he could not escape, repeatedly stabbed the victim. When the victim collapsed to the ground, the defendant paused momentarily and then continued to attack the victim with the knife while the victim was on the ground. The defendant then sat on top of the victim, who was not fighting back and was coughing and bleeding, and continued to stab him with the knife until a New Haven police officer arrived and disarmed the defendant.

The victim was taken to Yale-New Haven Hospital, where he died approximately twelve hours later. An autopsy revealed stab wounds on the victim’s face, the left side of his shoulder, the bottom of his left shoulder, his left arm, his forehead, his chest and his abdomen. With respect to the abdominal wound, the knife had passed through the abdominal wall and through the entire length of the liver, and there was also a second, separate wound on the liver. With respect to the chest wound, the knife had passed through the rib cage and punctured the lung. The victim died as a result of the stab wounds to his chest and abdomen.

At trial, the defendant raised three theories of defense. He claimed that he had acted in self-defense. This claim was based on his testimony, which is discussed in more detail in part III of this opinion. He also claimed, based on his testimony, that he had no intent to kill, and that the victim was stabbed accidentally as they tussled on the ground. Finally, the defendant claimed, primarily based on the expert testimony of James Merikangas, a physician certified in both neurology and psychiatry, that he was entitled to the affirmative defense of extreme emotional disturbance so as to reduce his guilt to manslaughter. The jury rejected all of these theories of defense, and found the defendant guilty of murder. The trial court rendered judgment on the verdict accordingly. This appeal followed.

I

The defendant first claims that the trial court improperly precluded him from introducing evidence that the gross negligence of the hospital caused the victim’s death. We disagree.

It was undisputed that the victim had been admitted to the Yale-New Haven Hospital emergency room at 12:24 p.m., on May 3, 1994, and that he arrived in the operating room at approximately 1 p.m., where he underwent surgery between 1 p.m. and 3 p.m. The victim was then placed in a postoperative recovery room, where he was monitored until approximately 7 p.m., after which he was placed in a postanesthesia care unit for a short period of time. Finally, the victim was placed in a regular floor room at approximately 8 p.m. The victim died early in the morning of May 4, 1994.

Before his first trial, the defendant filed a notice of intention to introduce expert medical testimony that the gross negligence of the hospital, rather than the defendant’s conduct, caused the victim’s death. The state filed a motion in limine to preclude any such evidence, based on the decision in State v. Jacobs, 194 Conn. 119, 479 A.2d 226 (1984), cert. denied, 469 U.S. 1190, 105 S. Ct. 963, 83 L. Ed. 2d 968 (1985).

Pursuant to the motion in limine, the first trial court, Fracasse, J., held an evidentiary hearing. The defendant made the following evidentiary offer of proof. William Martin Stahl, a general surgeon specializing in trauma surgery, had examined the victim’s death certificate, autopsy report and hospital records. Stahl testified that the hospital had been grossly negligent by: (1) administering 5000 units of heparin, an anticoagulant, to the victim immediately after the surgery; and (2) sending him from the postanesthesia unit to a regular room, rather than to an intensive care unit. In Stahl’s opinion, the use of an anticoagulant was “contraindicated totally when you have a liver injury because you want the blood to clot. You don’t want him to be anticoagulant.” Further, in Stahl’s opinion, the victim had bled to death, and had he been monitored in an intensive care unit “with vital signs done every fifteen minutes, watching his urine output every half hour, repeating his blood gases,” his bleeding would have been disclosed. It was Stahl’s opinion that had the hospital’s conduct been proper, the victim would have had a “better than 90 percent chance” of surviving his liver injury. Stahl also testified, however, that without treatment the victim’s stab wounds would have been fatal. Moreover, Stahl conceded that, of patients suffering from stab wounds to the liver, only 10 to 15 percent ordinarily are placed in intensive care following surgery.

The defendant also produced Cyril H. Wecht, a physician specializing in anatomic, clinical and forensic pathology, who also had reviewed the death certificate, autopsy report and hospital records. Wecht testified that the victim’s death was caused by cardiac arrhythmia, or an abnormal heart beat, precipitated by loss of blood, metabolic acidosis, drug abuse, the presence of morphine and cocaine, and an enlarged heart. Wecht agreed with Stahl that heparin should not have been administered to the victim, and that the failure to send him to intensive care, where he would have been more closely monitored, was grossly negligent, leading to his ultimate death. Wecht also testified, however, that it was the stab wounds to the victim’s liver and heart that had caused the cardiac arrhythmia, which was the immediate cause of his death. In addition, Wecht testified that the medical charts indicated that heparin had not been administered to the victim. Wecht conceded, therefore, that heparin could not have contributed to the victim’s death. Wecht testified farther that postoperative recovery rooms similar to the victim’s often are as good or better than intensive care units for purposes of closely monitoring a patient’s vital signs, and that the victim’s vital signs had been monitored regularly.

Judge Fracasse granted the state’s motion in limine. Thereafter, at the defendant’s trial, the trial court, Licari, J., agreed with Judge Fracasse’s ruling, and adopted it as the law of the case.

In the state’s case-in-chief, Malka Shah, an associate medical examiner of the state of Connecticut, who had performed the autopsy on the victim, testified that the victim had died as a result of stab wounds to his liver and left lung. She also testified that he had bled to death “ [secondary to his injuries . . . .” When the defendant attempted to cross-examine her regarding the effect on the victim’s demise as a result of the treatment at Yale-New Haven Hospital, the trial court sustained the state’s objection on the basis of the ruling on the state’s motion in limine.

The defendant claims that these rulings were improper because: (1) our prevailing case law permits evidence of gross medical negligence as an intervening cause of death, the ultimate determination of which is for the jury; and (2) in the alternative, we should “adopt the rule that grossly negligent medical treatment is sufficient to break the chain of causation . . . .”⁴ We are not persuaded by the defendant’s argument.

This claim is controlled by our decision in State v. Jacobs, supra, 194 Conn. 125-26. In that case, we thoroughly reviewed our case law on the question, and reiterated the generally recognized rule that “where death ensues from a dangerous wound inflicted upon another, it is ordinarily no defense that unskilled or negligent medical treatment aggravated the injury.” Id., 124. Moreover, we noted that this rule was “in accord with the majority position in other states on this issue.” Id. In addition, we specifically cited with approval the proposition that “where a wound, either operating directly or indirectly, by causing some other condition which produces death, has been a substantial factor in causing a death, it is still to be regarded as the cause of the death even though some negligence in the treatment of the wounded man by physicians and others is also a contributing factor. Gross maltreatment by attending physicians constitutes a defense only in the exceptional case where that maltreatment is the sole cause of the victim's death.'' (Emphasis added; internal quotation marks omitted.) Id., 125-26.

In the present case, there was no evidence from which the jury rationally could have inferred that the hospital’s gross negligence was the sole cause of the victim’s death. Both Stahl and Wecht acknowledged that the stab wounds inflicted by the defendant would have been fatal in the absence of any medical treatment. At the most, the purported gross negligence would have been a contributing cause of the death, not the sole cause. This would be insufficient under Jacobs. The trial court, therefore, properly granted the state’s motion in limine and properly sustained the state’s objection to the defendant’s attempted cross-examination of Shah.

Contrary to the defendant’s contention, moreover, this court did not implicitly overrule Jacobs in State v. Munoz, 233 Conn. 106, 114-27, 659 A.2d 683 (1995). In Munoz, there was evidence that the defendant stabbed the victim to death. Id., 109. There was also contrary evidence, however, that the wounds inflicted on the victim were not fatal, and that a third person had inflicted the fatal wounds and transported the body to where it was ultimately found. Id., 115. Moreover, the defendant had also provided evidence tending to show that he was somewhere else at the time of the infliction of the fatal wounds. Id. Under those circumstances, this court held that the trial court improperly had failed to include an instruction on the concept of intervening cause. Id., 120. We did so primarily because there were two closely linked interpretations of the evidence that were susceptible of a determination by the jury that the defendant was not responsible for the victim’s death, namely: (1) the defendant’s stabbing of the victim had not inflicted a potentially fatal wound; and (2) the state’s proof of the defendant’s fatal stabbing of the victim “was sufficiently inconclusive as to give rise to a reasonable doubt, based on the doctrine of efficient, intervening cause, about whether the defendant’s conduct was the proximate cause of [the victim’s] death.” Id., 122.⁵

Thus, Munoz is distinguishable from the present case. First, unlike the present case, Munoz did not involve a claim of intervening medical negligence. Second, unlike the present case, Munoz rested primarily on the fact that the jury reasonably could have inferred from the evidence that the intervening criminal conduct was the sole proximate cause of the victim’s death.

Finally, we are not persuaded that we should overrule Jacobs. In our view, Jacobs expresses a sound rule of law, which is consistent with the general rule of causation in criminal cases. We see no sound reason of policy why a defendant who has committed a homicidal act should escape criminal liability simply because the hospital to which the victim was taken contributed to the death by its purportedly grossly negligent conduct. The rule articulated in State v. Jacobs, supra, 194 Conn. 126, namely, that such gross negligence may permit the defendant to escape liability when it was the sole cause of the death, strikes an appropriate balance between the notions of criminal responsibility for one’s conduct, on one hand, and intervening cause, on the other.

II

The defendant next claims that the trial court improperly excluded evidence of the presence of the victim’s family at the trial and of their knowledge that the victim’s estate had filed a medical malpractice action against the hospital. This claim is without merit.

The victim’s sister, Damez Poole, was working as an intake specialist in the hospital emergency room when the victim was taken there. She testified to having seen him in the recovery room following his surgery, and later in the evening after he had died.

On cross-examination of Poole, the defendant, in the absence of the jury, made the following offer of proof. He proposed to elicit that: (1) other members of the victim’s family were attending the trial “because of their perception that [the defendant] caused the death of [the victim]”; and (2) the family members knew that the fiduciary of the victim’s estate had “brought a lawsuit against Yale-New Haven Hospital blaming the hospital for [the victim’s] death.” The claimed relevance was that their presence at the trial indicated their blame of the defendant for the death, and the lawsuit was “an act that is inconsistent with that” blame. The state objected on the ground of relevancy, and the trial court sustained the objection.

On appeal, the defendant argues that the evidence was “relevant to the cause of death.” Even if we were to assume without deciding that an inference rationally could have been drawn, from the attendance of members of the victim’s family at the trial, regarding their opinion of who caused the death, we fail to see how that purported opinion was relevant to the cause of the victim’s death. None of the family members witnessed the stabbing, and none had any medical or other expert qualifications that would have rendered his or her opinion on causation admissible. The trial court did not abuse its discretion in sustaining the state’s objection.

Ill

The defendant next claims that the trial court committed reversible error by sustaining the state’s objection to certain evidence that he had offered to prove the violent character of the victim. We disagree.

In an offer of proof outside the presence of the jury, the defendant offered the testimony of Merikangas. Merikangas had examined the hospital records of the treatment of the victim following the fatal encounter. On the basis of those records, Merikangas gave his opinion that the victim “was, in all probability, the aggressor” in the fight with the defendant.⁶

The defendant argued to the trial court that this testimony was admissible to prove that the victim was the aggressor in the fight, under our decisions in State v. Carter, 228 Conn. 412, 423, 636 A.2d 821 (1994), and State v. Miranda, 176 Conn. 107, 109-14, 405 A.2d 622 (1978). The state objected. The court sustained the state’s objection, reasoning that: (1) the evidence was not the kind of opinion evidence sanctioned by those two cases; (2) the evidence was cumulative because the state conceded that the victim was the initial aggressor in the fight; (3) the evidence was unduly inflammatory and prejudicial; and (4) even if otherwise admissible despite these reasons, the defendant had not laid a sufficient foundation for the admissibility of the evidence.

In State v. Miranda, supra, 176 Conn. 109, we reiterated the general rule that, in a homicide trial, “the character of the deceased ordinarily is irrelevant to the accused’s guilt or innocence.” Addressing anew “the question of the admissibility of convictions [of the victim] of crimes of violence . . . [we held] that the nature of such evidence and the victim’s absence from the trial warrant a narrow exception to the rule that conduct may not be used to prove character.” Id., 113. We therefore held “that in a homicide prosecution where the accused has claimed self-defense, the accused may show that the deceased was the aggressor by proving the deceased’s alleged character for violence. The deceased’s character may be proved by reputation testimony, by opinion testimony, or by evidence of the deceased’s convictions of crimes of violence, irrespective of whether the accused knew of the deceased’s violent character or of the particular evidence adduced at the time of the death-dealing encounter.” Id., 114. We reaffirmed that holding in State v. Carter, supra, 228 Conn. 423.

The defendant’s principal claim in this regard⁷ is that the trial court abused its discretion in excluding the evidence offered because it was opinion testimony of the victim’s violent character within the rubric of Miranda and Carter. We need not decide whether the evidence was admissible, however, because even if we were to assume without deciding that the trial court abused its discretion in excluding the evidence, its exclusion constituted harmless error.

Because this assumed trial court impropriety is not constitutional in nature, the defendant has the appellate burden to establish harm flowing from the error, in order to secure a reversal of the judgment. We recognize that we have not been fully consistent in our articulation of the standard for establishing harm. One line of cases states that the defendant must establish “that it is more probable than not that the erroneous action of the court affected the result.” (Internal quotation marks omitted.) State v. McIntyre, 242 Conn. 318, 329, 699 A.2d 911 (1997); State v. Wilkes, 236 Conn. 176, 188, 671 A.2d 1296 (1996); State v. Cavell, 235 Conn. 711, 721-22, 670 A.2d 261 (1996). Another line of cases states that the defendant must establish that the trial court error caused him “substantial prejudice.” State v. Askew, 245 Conn. 351, 371, 716 A.2d 36 (1998). We need not resolve this difference in formulation in the present case, nor need we determine whether there is any functional difference between the two formulations, because we conclude that the defendant has failed to sustain his burden under either standard.

First, there was no dispute at trial that the victim had been the aggressor in the encounter. The state, when it objected to the evidence, specifically conceded that to be the case. The state’s evidence was that the fight started by the victim slapping the defendant in the face, and the defendant testified to the same effect. In his final argument to the jury, the defendant, in making reference to the slapping incident that started the fight, asserted that there was no dispute about the fact that the victim was “the aggressor” in the fight with the defendant.⁸ The state in response supported that assertion by stating, “I certainly am not going to suggest to you that [the victim] used appropriate behavior when he slapped [the defendant while the defendant was using the telephone].” Indeed, our examination of the transcript of both the final arguments of the parties and the jury instructions indicates that the question of who was the aggressor was not an issue in dispute in the case.⁹ Furthermore, the defendant did introduce, under Carter and Miranda, evidence of the victim’s 1991 conviction for threatening. Thus, there was other evidence of the victim’s violent character. Consequently, the excluded evidence was cumulative to what was already before the jury, and concerned an issue that was not in dispute.¹⁰

Second, the defendant’s evidence in support of his claim of self-defense was thin, and the state’s contrary evidence was veiy strong. The only evidence in support of his claim was his own testimony.¹¹ The defendant testified that at some point during the fight, the victim reached into a trash can and “tried to pick something up out of the garbage can,” which the defendant believed to be a gun. The defendant then testified that in order to prevent the victim from pulling the gun from the can, the defendant stabbed the victim with the defendant’s own switchblade knife, and the victim then dropped the gun back into the garbage can. According to the defendant, after he had stabbed the victim only once, the victim grabbed him, wrestled him to the ground, and somehow got on top of the defendant. At this point, in the defendant’s version of the incident, a police officer arrived, said “ ‘[g]ive me the knife,’ ” and the defendant complied.

This testimony of the defendant was contradicted by the physical evidence, by the eyewitness testimony of three witnesses, and by certain rebuttal testimony of the state concerning the statements of the defendant in his interview with the police shortly after the fight. The physical evidence was that the victim had suffered numerous stab wounds, not one as the defendant testified. There were wounds on the left side of his face, two on his left shoulder, two on his left arm, on his forehead, on his chest, and one abdominal wound that had resulted in two separate stab wounds to his liver, indicating rapid, successive knife thrusts. The fatal stab wounds were those to his chest and abdomen. The defendant, by contrast, was not injured. In addition, a search of the scene immediately after the incident by Detective William Badger of the New Haven police department, who was also an eyewitness to the encounter, did not disclose any other weapon.

The eyewitness testimony was as follows. Monique McNeil was an eyewitness to the beginning and to much of the ensuing course of the encounter between the defendant and the victim. She testified that after the fight had started by the victim slapping the defendant in the face, the victim had tried to get away from the defendant, who would not let him go. Although she saw the victim reach into a trash can and withdraw his hand, she did not see anything in his hand. After turning away and then turning back, she also saw the defendant sitting on top of the victim and stabbing him, while the victim was lying on the ground coughing and bleeding.

Martin Tchakirides was another eyewitness. He testified that he was driving his car on Temple Street when loud voices from the direction of the pay telephones drew his attention. He was only forty to sixty feet away when he saw the fight begin. He testified that when the defendant displayed a knife, the victim tried to pull away from him, but the defendant “had a hold of him,” and would not let the victim go. Tchakirides saw the defendant repeatedly slash and stab the victim, who was trying to defend himself. He also saw the victim collapse to the ground, followed by the defendant’s attacking him while he was lying defenseless on the ground.

The third eyewitness was Badger, a thirty year veteran of the New Haven police department. He was sitting in his police car on Temple Street approximately twenty-five feet away, when he saw the defendant attack the victim. When Badger first noticed the fight, he testified, the defendant was sitting astride the victim, “straddling him, like he was riding a horse,” and while the victim was under the defendant and was not fighting back, the defendant stabbed him twice with his switchblade knife. As the defendant was about to stab the victim again, Badger “grabbed his arm,” identified himself as a police officer and, contrary to the defendant’s testimony that he complied with the officer’s request to give up the knife, Badger “took [the knife] from” the defendant.

Furthermore, in rebuttal the state introduced evidence that when first interviewed by the police, the defendant described the details of the fight with the victim and claimed that he had stabbed the victim in self-defense. He did not, however, mention that the victim had reached into a trash can. Also, in that interview, when asked specifically whether the victim had a weapon, the defendant answered that “he never saw nor was any other weapon used.”

Finally, we note that in addition to self-defense, the defendant raised two inconsistent, alternative theories of defense. First, he claimed that he had no intent to kill and that the victim was stabbed accidentally as they tussled on the ground. Second, he raised the affirmative defense of extreme emotional disturbance, which was factually inconsistent with his defense of the justified use of deadly force in self-defense. The defendant had the burden, under this claim, of establishing by a preponderance of the evidence that the reason he killed the victim was, not because he reasonably believed that he was subject to deadly physical force and could not safely retreat; see General Statutes § 53a-19;¹² but because he was subject to an extreme emotional disturbance, and his intentional killing of the victim resulted from a loss of “self-control, and [his] reason [being] overborne by intense feelings such as passion, anger, distress, grief, excessive agitation or other similar emotions.” State v. Elliott, 177 Conn. 1, 9, 411 A.2d 3 (1979); see General Statutes § 53a-54a. Thus, the defendant claimed, his intentional homicide should be mitigated, and reduced to manslaughter.

Although it is true that a defendant is legally permitted to raise inconsistent defenses, when he does so, a jury, applying its common sense, is entitled to view with skepticism the persuasiveness of all of the defenses. See State v. Person, 236 Conn. 342, 359, 673 A.2d 463 (1996) (defendant’s presentation of inconsistent defenses may be “self-penalizing . . . because it will . . . encourage jury skepticism about his entire defense” [citation omitted; internal quotation marks omitted] [Borden, J., concurring]); see also State v. Munoz, supra, 233 Conn. 114-15 n.5 (“[although the law permits, for reasons of policy, the assertion of inconsistent defenses, such as self-defense and alibi, and although lawyers and judges are accustomed to dealing with such defenses independently of each other, one must wonder about the effect on a thoughtful jury of the simultaneous claims that ‘I did it in self-defense,’ and T was not there at the time’ ”). In the present case, the jury was presented with simultaneous claims by the defendant alleging that: (1) “I intentionally stabbed him because I reasonably believed it was necessary to save my own life”; (2) “1 did not really intentionally stab him at all”; and (3) “I intentionally stabbed him only because I was overcome by extreme and intense feelings that were not normal for me.” Faced with such a basket of inconsistent purported states of mind,¹³ the jury was quite likely to have rejected them all.

In view of all of this evidence, the defendant has not established that the exclusion of the proffered evidence constituted harmful error. The defendant has established neither that, had the trial court admitted Merikangas’ testimony, it is more probable than not that the jury’s verdict would have been different, nor that the exclusion of that evidence caused him substantial prejudice.¹⁴ Therefore, the defendant cannot prevail on this claim.

IV

The defendant’s next claim is that the trial court improperly excluded his purportedly spontaneous utterance to Badger immediately after the incident. We are not persuaded that the trial court abused its discretion in this ruling.

In response to the state’s motion in limine, the court held a hearing on the admissibility of this evidence in the absence of the jury. Badger testified that after he had verbally identified himself as a police officer and after he had taken the knife from the defendant and showed the defendant his police badge, as the defendant was getting up off of the victim the defendant said to Badger, “[h]e started it,” and told Badger that he was defending himself. The defendant offered this hearsay statement of the defendant under the spontaneous utterance exception to the hearsay rule, and the court sustained the state’s objection on the ground that there was a sufficient interval for reflection and that the defendant had not established that his statements were spontaneous utterances.

“Whether an utterance is spontaneous and made under circumstances that would preclude contrivance and misrepresentation is a preliminary question of fact to be decided by the trial judge.” State v. Stange, 212 Conn. 612, 617, 563 A.2d 681 (1989). The trial court has broad discretion in making that factual determination, which will not be disturbed on appeal “absent an unreasonable exercise of discretion.” Id. Furthermore, although the time period between the occurrence and the utterance is important, it is not dispositive. The trial court is entitled to take all the factual circumstances into account “when deciding the preliminary question of whether a statement was spontaneous.” Id., 618.

We cannot conclude that the trial court abused its broad discretion in determining that the statements did not qualify as spontaneous utterances. The statements were exculpatory and were made after the defendant was aware that he was speaking to a police officer who had witnessed at least part of his encounter with the victim. Thus, he had the motive and time to fabricate, and the trial court was justified in determining that he had not precluded “contrivance and misrepresentation.” Id., 617.¹⁵

V

The defendant’s final claim is that the trial court improperly denied his pretrial motion to disqualify Judge Licari from presiding over the trial. We disagree.

The basis of the defendant’s motion was that Judge Licari’s father had been murdered in New Haven in 1991 by an African-American, and that these circumstances gave rise to an appearance of bias,¹⁶ in violation of canon 3 (c) of the Code of Judicial Conduct,¹⁷ because the defendant is an African-American. The state opposed the motion on the ground that it was untimely because jury selection had begun, and on its merits. The trial court denied the motion, both on the ground of timeliness¹⁸ and on its merits. Even if we were to assume without deciding that the defendant’s motion was timely, we conclude that the trial court properly denied the motion.

The standard for such a determination is well established. “The standard to be employed is an objective one, not the judge’s subjective view as to whether he or she can be fair and impartial in hearing the case. In Connecticut, the disqualification of judges is governed by General Statutes § 51-39¹⁹ and Canon 3 [c] of the Code of Judicial Conduct. Under Canon 3 [c] (1) of the Code of Judicial Conduct [a] judge should disqualify himself [or herself] in a proceeding in which his [or her] impartiality might reasonably be questioned .... Any conduct that would lead a reasonable [person] knowing all the circumstances to the conclusion that the judge’s impartiality might reasonably be questioned is a basis for the judge’s disqualification. Thus, an impropriety or the appearance of impropriety . . . that would reasonably lead one to question the judge’s impartiality in a given proceeding clearly falls within the scope of the general standard .... Thode, Reporter’s Notes to Code of Judicial Conduct (1973), pp. 60-61. The question is not whether the judge is impartial in fact. It is simply whether another, not knowing whether or not the judge is actually impartial, might reasonably question his [or her] impartiality, on the basis of all of the circumstances.” (Emphasis in original; internal quotation marks omitted.) Papa v. New Haven Federation of Teachers, 186 Conn. 725, 744-46, 444 A.2d 196 (1982).

The core of the defendant’s claim is the assertion that a reasonable person might question the impartiality of a trial judge with respect to an African-American who has been charged with murder because the father of the judge had been killed in a robbery by an African-American. Judge Licari characterized the defendant’s assertion as “raw speculation.” We agree. In our view, it would not be reasonable for a person to question a judge’s impartiality in a trial for a serious crime committed by a member of a particular racial group simply because the judge’s close relative was the victim of a similar crime committed by a member of the same racial group. Such a perception, if held, would be based on nothing but speculation, and not on any reasonable basis.

The judgment is affirmed.

In this opinion CALLAHAN, C. J., and NORCOTT, J., concurred.

1 The defendant appealed directly to this court pursuant to General Statutes § 51-199 (b) (3).

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

“(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a) of this section, on the question of whether the defendant acted with intent to cause the death of another person.

“(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony or murder under section 53a-54d.”

The defendant was also convicted of carrying a dangerous weapon in violation of General Statutes § 53-206 (a). He does not challenge that conviction on appeal.

3 This was the second trial proceeding on these charges against the defendant. The case previously had been scheduled for a jury trial before the trial court, Fracasse, J., who granted the state’s motion in limine to exclude expert testimony that the defendant intended to introduce, purporting to establish that the gross negligence of Yale-New Haven Hospital, rather than the defendant’s conduct, caused the victim’s death. Thereafter, during jury selection, the defendant, who had been released on bond, failed to appear, and the trial court declared a mistrial. Following his rearrest, the defendant was brought to trial in the present case. The trial court, IAcari, J., adopted the prior ruling of Judge Fracasse as the law of the case.

4 The defendant also claims that the failure to permit such evidence deprived him of his federal constitutional right to present a defense. This claim does not advance the defendant’s argument. The constitutional right to present a defense does not include the right to introduce any and all evidence claimed to support it. State v. Bova, 240 Conn. 210, 236, 690 A.2d (1997) (“When defense evidence is excluded, such exclusion may give rise to a claim of denial of the right, to present a defense. . . . Although exclusionary rules of evidence should not be applied mechanistically to deprive a defendant of his rights, the constitution does not require that a defendant be permitted to present every piece of evidence he wishes.” [Citations omitted; internal quotation marks omitted.]). The trial court, retains the power to rule on the admissibility of evidence pursuant to traditional evidentiary standards. Id. Thus, the question of the admissibility of the proffered evidence is one of evidentiary, but not constitutional, dimension.

5 It is true that in reviewing the evidence supporting the claimed jury instruction, we also noted a possible interpretation of the evidence suggesting that although the defendant may have inflicted one of the fatal wounds, “some third party’s conduct in inflicting additional stab wounds, in the defendant’s absence, was so significant that it amounted to an efficient, intervening cause . . . State v. Munoz, supra, 233 Conn. 122. Upon reflection, we conclude that this language was ill-advised, and we now disavow it. First, such a theory was not necessary to the decision because there was evidence that the wound inflicted by the defendant was not fatal at all. That alone would have compelled an instruction on the doctrine of efficient, intervening cause because, although under that theory of the evidence the defendant’s conduct was a “but for” cause of the victim’s death, the jury could have found that it was not a proximate cause of the death. Second, that language is contrary to the well established doctrine of proximate causation in criminal cases, to which we later referred in Munoz, that “ ‘[ejvery person is held to be responsible for the natural consequences of his acts, and if he commits a felonious act and death follows, it does not alter its nature or diminish its criminality to prove that other causes cooperated to produce that result.’ ” Id., 126.

6 In support of that opinion, Merikangas testified that at the time of the incident, the victim’s body contained cocaine, morphine and alcohol, and that the victim had been using five or six bags of heroin and drinking a six pack of beer daily. Merikangas linked the morphine found in the victim’s system with his heroin use by testifying that heroin “tests as morphine . . . .” Merikangas testified further that: the effect of the combination of cocaine, morphine and alcohol “is to prolong the effect of the cocaine . . . so that the cocaine high lasts longer than it would” otherwise; the effect of “simultaneous use of opiates like morphine with cocaine” is to make the intravenous drug user “get high and feel good at the same time”; and the use of these substances increases “the likelihood that [the victim] was the aggressor” because “alcohol reduces one’s impulse control . . . and cocaine, particularly, acutely causes violence . . . .” Although Merikangas did not quantify the amount of cocaine or morphine in the victim’s system, he testified that “he was not intoxicated on alcohol, [the amount] was a third of the legal [level of] intoxication.”

Merikangas also based his opinion on the fact that the victim’s system contained meperidine, which is the generic name for Demerol. There was evidence, however, that the victim had been administered Demerol at the hospital.

7 The defendant also claims that the exclusion of the evidence offered deprived him of his constitutional right to present his defense of self-defense. This claim is untenable. The right to present a defense does not compel the admission of any and all evidence offered for that purpose. State v. Bova, 240 Conn. 210, 236, 690 A.2d 1370 (1997). The trial court retains the discretion to rule on the admissibility, under the traditional rules of evidence, regarding the defense offered. Id. The defendant was adequately permitted to present his claim of self-defense by way of his own testimony, by cross-examining the state’s witnesses, and by the opportunity to present any other relevant and admissible evidence bearing on that question.

8 The defendant began his final argument with the assertion that there was “no question . . . that [the victim] was the aggressor. Monique [McNeil] said that he hung up the phone and slapped [the defendant] in the face. . . . There wasn’t any other testimony . . . .” Later in his argument, the defendant repeated the assertion: “There are a lot of agreed facts as to how this occurred. ... We know that [the victim] was the aggressor.”

9 Although the state did contest the defendant’s claim that the victim had pulled something from the trash can, fairly read, the record strongly indicates that that dispute was not related to the issue of who was the aggressor. It cannot plausibly be contended, therefore, as the dissent of Justice Katz suggests, that when the parties were arguing to the trial court regarding who was “the aggressor,” they were referring to the victim’s putting his hand into the trash can, instead of who started the fight.

10 By contrast to the question of who was the aggressor, which was not in dispute, the question of whether the defendant could have retreated with complete safety without using deadly force, like the issue of whether the defendant had pulled something from the trash can, was in dispute. See General Statutes § 53a-19 (b) (“a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safely [1] by retreating”). The state’s claim in this regard was based on the evidence that, before he inflicted the fatal stab wounds, the defendant was winning the fight and was sitting on the prostrate and helpless victim, stabbing him. The defendant did not claim, however, that Merikangas’ testimony was relevant to the question of whether the defendant could have retreated with complete safety.

11 Furthermore, the defendant’s credibility was impeached on cross-examina1 ion by introduction of his prior convictions for robbery in the first degree, an unspecified felony, and six misdemeanor larceny offenses of varying degrees.

12 General Statutes § 53a-19 provides: “Use of physical force in defense of person, (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.

“(b) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform.

“(c) 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.”

13 The dissent of Justice Katz asserts that these are “related but not inconsistent, claims regarding [the defendant’s] mental state at the time that he, admittedly, stabbed the victim.” (Emphasis added.) See footnote 7 of this dissenting opinion. It is true that, as the dissent suggests, they are not as inconsistent as, “ T did it in self-defense,’ ” and “ T was not there at the time.' ” State v. Munoz, supra, 233 Conn. 114-15 n.5. Only a lawyer or, apparently, a judge, however — and certainly not a jury applying its common sense underst anding of human behavior — might argue with a straight face that the three purported states of mind that the defendant claimed in his defense are “not inconsistent” with each other. We are not so willing to suspend our common sense.

14 We note that in her dissent, Justice Katz’ argument for harmful error does not explain how Merikangas' testimony was likely to have made a difference — under any standard of harmfulness — on the question of whether the victim, because of his violent character, was likely to have, in fact, reached into the trash can and pulled out a gun or something resembling a gun, and then dropped the gun back into the trash can. Under this claim of harmfulness, one would have to assume that the jury was likely, because of Merikangas’ testimony, to believe that the victim’s violent character caused him to reach into a public trash can at noon on the New Haven green to pull out a gun — the existence of which the defendant disclaimed to the police shortly after the fight. This scenario presupposes that the victim somehow knew that there was such a gun in the trash can, presumably either because he had stashed it there beforehand or because he knew that someone else had done so. Neither scenario commends itself to us as one that a jury was likely to believe simply because of Merikangas’ testimony.

15 Furthermore, even if we were to determine that the trial court abused its discretion in this ruling, it would have been harmless because the defendant ultimately testified that when Badger came upon the scene, he told Badger, “I was only defending myself.”

16 The defendant specifically disavows any suggestion of actual bias on the part of Judge Licari, and relies solely on the assertion of an appearance of bias.

17 Canon 3 (c) of the Code of Judicial Conduct provides in relevant part: “(c) Disqualification.

“(1) A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where:

“(A) the judge has a personal bias or prejudice concerning a party . . .

18 Practice Book § 1-23, formerly § 997, provides: “A motion to disqualify a judicial authority shall be in writing and shall be accompanied by an affidavit setting forth the facts relied upon to show the grounds for disqualification and a certificate of the counsel of record that the motion is made in good faith. The motion shall be filed no less than ten days before the time the case is called for trial or hearing, unless good cause is shown for failure to file within such time.”

Judge Licari acknowledged that the defendant had not had ten days notice that the case would be tried before him. Noting, however, that by the time the defendant made the motion, he had made other rulings adverse to the defendant, and that because his father had died in 1991, the defendant had ample opportunity to make the motion prior to jury selection, Judge Licari concluded that the motion was untimely. Judge Licari also addressed the merits of the motion, however, and denied it.

19 General Statutes § 51-39 provides: “Disqualification by relationship or interest. Judge or family support magistrate may act with consent of parties, (a) Except as provided in this section, a judge or family support magistrate is disqualified to act if a relationship between the judge or family support magistrate and a party in any proceeding in court before him is as near as the degree of kinship between father and son, brothers, or uncle and nephew, by nature or marriage, or as near as between landlord and tenant, or if any judge or family support magistrate may be liable to contribute to the damages, costs or expenses of any proceeding before him, or if he may receive adirectpecuniary benefit by the determination of anyproceedingbefore him.

“(b) A judge or family support magistrate shall not be disqualified to act in any proceeding by reason of his being a member of any ecclesiastical corporation, unless it is a party to the action, nor in any proceeding in which any town, city or borough is interested or is a party, by reason of his being an inhabitant thereof or liable to taxation therein or by reason of his being related to any taxpayer or inhabitant thereof.

“(c) When any judge or family support magistrate is disqualified to act in any proceeding before him, he may act if the parties thereto consent in open court.”