920 A.2d 278 (Conn. 2007)
The principal issue in this appeal is whether the trial court improperly failed to instruct the jury to consider the age of the defendant, Gabriel P. Heinemann, specifically, the level of maturity, sense of responsibility, vulnerability and personality traits of a sixteen year old, when deciding his defense of duress. According to the defendant, because it is more difficult for adolescents to resist pressures due to their limited decision-making capacity and their susceptibility to outside influences, the trial court improperly failed to provide an instruction that would have allowed the jury to factor his age into the defense, independent and regardless of how it related to the age of his coercers, with an eye toward accounting for the differences in how adolescents evaluate risks. The defendant also claims that the trial court improperly instructed the jury regarding accessorial liability as it pertains to the element of intent. We conclude that the trial court’s instructions were proper. Accordingly, we affirm the judgment.
The defendant was charged in a ten count substitute information with conspiracy to commit robbery in the second degree in violation of General Statutes §§ 53a-48 (a)1 and 53a-135 (a) (2);2 accessory to robbery in the second degree in violation of General Statutes §§ 53a-83 and 53a-135 (a) (2); robbery in the second degree in violation of § 53a-135 (a) (2); conspiracy to commit burglary in the first degree in violation General Statutes §§ 53a-48 (a) and 53a-101 (a) (2);4 accessory to burglary in the first degree in violation of §§ 53a-8 and 53a-101 (a) (2); burglary in the first degree in violation § 53a-101 (a) (2); conspiracy to commit larceny in the second degree in violation of General Statutes §§ 53a-48 (a) and 53a-123 (a) (3);5 accessory to larceny in the second degree in violation of §§ 53a-8 and 53a-123 (a) (3); stealing a firearm in violation of General Statutes § 53a-212 (a);6 and accessory to stealing a firearm in violation of §§ 53a-8 and 53a-212 (a). Following a trial to the jury, he was convicted of all counts, and upon agreement at sentencing, the court merged the three conspiracy counts into one count and merged the accessory counts with the underlying substantive counts. Accordingly, the court sentenced the defendant on one count each for first degree burglary, second degree robbery, first degree conspiracy, second degree larceny and theft of a firearm to a total effective sentence of twelve years imprisonment, execution suspended after eight years, followed by five years probation. This appeal followed.7
The jury reasonably could have found the following facts. In late 2002, the defendant was sixteen years old and living with his father in Huntersville, North Carolina. His parents were divorced, and his mother and other family members lived in Mystic, Connecticut. During October, 2002, the defendant took a class in Connecticut that was required for him to obtain a driver’s license in the state. In that class, he met Taylor Célico, whom he began to date. After the defendant returned to North Carolina, he kept in contact with Célico through e-mails, and when he returned to visit his mother in November, 2002, he met with Célico.
In December, 2002, he returned again to Mystic to visit his mother and other family members. On December 19, 2002, the defendant drove his mother’s van to Celico’s home with the intention of taking her to the movies. While the defendant and Célico were having coffee before the movie, Célico telephoned her friend Ashley Toth, whom the defendant had not met previously, and then requested that the defendant drive to Toth’s home before the movie.
Toth lived in the town of Pawcatuck with her parents. At the Toth residence, the defendant, Célico and Toth were chatting when Toth’s boyfriend, Rayquan Stokely, and Christopher Thome arrived. The only person that the defendant knew prior to this meeting was Célico. The defendant is white; Stokely and Thome are black.
Shortly thereafter, the defendant, Stokely and Thome met privately after Toth and Célico left the room and one of the males suggested that they get some marijuana. The three males, Célico and Toth then got into the defendant’s van, and Toth and Célico directed the defendant to Erica DiBenedetto’s home in Westerly, Rhode Island, where they believed they could obtain some marijuana. When they arrived, Toth and Célico waited in the van while the three males went to the second floor of the duplex where DiBenedetto lived. They rang her doorbell, and she let them in. DiBenedetto told them to have a seat. Her boyfriend was seated in the kitchen. Stokely and Thome asked DiBenedetto if she had marijuana; she said that she did and went to retrieve it. As the defendant went to sit down, Stokely pulled out a gun and yelled “get on the floor.” DiBenedetto and her boyfriend fell to the ground and lay face-down, while Stokely held a gun to their heads. Although she was lying facedown, DiBenedetto saw one of the black males and the defendant rummage through her home while the other black male held the gun to her and her boyfriend. At some point, DiBenedetto got up from the floor and handed them some marijuana and $200. Stokely and Thome forced her to get back on the floor, facedown, and one of them kicked her. They bound her hands and her feet. DiBenedetto observed the defendant take presents from underneath her Christmas tree and place them in a sheet.
The defendant, Stokely and Thome ran to the van shortly thereafter, holding a sheet containing Christmas presents. They got into the van, and the defendant drove them back to Toth’s house. Everyone then went into the house, where Stephanie Bell had joined them. They went outside to smoke the marijuana taken from DiBenedetto. Stokely stated that he wanted to do another robbery and obtain some cocaine. He then instructed Toth to find out where Bobby Blanco, the boyfriend of one of Toth’s school friends, lived.
The events that followed are the subject of this case. The six persons at Toth’s house, now including Bell, got into the defendant’s van. Toth gave the defendant directions to a wooded residential area in North Stonington, about twenty minutes away, to where she thought Blanco lived. When they reached a Mobil gas station at an intersection, Toth told the defendant to take a left turn. A short distance down that road, the defendant was told to stop the van in front of a house located at 168 Mystic Road. Stokely and Thome got out of the van, saying they would return in ten to fifteen minutes, and the defendant remained inside the van with the three females.
The house at 168 Mystic Road in North Stonington belonged to Arnold Perkins and Janet Perkins, who lived there with their eighteen year old daughter. A door to the house had been left unlocked for the Perkins’ daughter, who was out for the evening. It was approximately 9:15 p.m. when, as the couple was watching television, Janet Perkins heard a noise from the downstairs and thought it was her daughter returning home. She went to the top of the stairs, yelled down and, getting no answer, rejoined her husband. Approximately ten minutes later, a black male, either Stokely or Thome, whom they never had seen before, came into the upstairs room with a shotgun and told the Perkins to get onto the floor. Arnold Perkins grabbed an end table and went toward the male. At that point, another black male entered the room, put a gun to Arnold Perkins’ back and told him to get on the floor. Perkins dropped to the floor, and a blanket or jacket was put over his head. His hands were bound behind his back and his feet were bound together using telephone cord wires that had been pulled out from the wall. Stokely and Thome kept asking Arnold Perkins where his son was; each time Perkins told them that he had no sons, only daughters. They asked him where the money was, and the couple feared that the men would hurt them. Arnold Perkins told them he did not have money in the house, but would take them to an automatic teller machine. One of the two intruders pulled Janet Perkins’ rings off her fingers and then tied her up.
In the meantime, after waiting a few minutes outside the house for Stokely and Thome, the defendant decided to drive the van back to the Mobil station to get gas. After returning to 168 Mystic Road, the defendant got out of the van and said he was going to check on how things were going. Five minutes later, the defendant came running back to the van, excited, and said that they had gone to the wrong house. The defendant then drove the van into the driveway of the home and turned it around so the passenger doors of the van were facing the house. The defendant got out of the van and made several trips from the home, putting items into the van.
At some point while these events were unfolding, Arnold Perkins heard a third male’s voice, higher pitched than the voices belonging to the first two male intruders. Perkins could hear them taking items out of the house. One of the males asked Perkins if he had any guns in the house; he told them he did and that the guns were in the closet. While looking in the closet, the males found a safe and brought it out into the living room where the couple was tied up. The men untied Arnold Perkins, put the gun to the back of his head and demanded that he open the safe. After he complied, the two intruders tied him back up. He could hear them continuing to remove items from the home. All he was able to see of the third person standing near him was that he had on sneakers. The intruders were in the Perkins’ home for approximately forty-five minutes. After it was quiet for several minutes, Arnold Perkins was able to untie himself and his wife, and then he retrieved his cellular telephone from his car to call 911.
The three males left the house for the final time carrying out a sheet filled with items. The defendant drove everyone in the van back to Toth’s house. Stokely and Thome then left in their own car after making arrangements with the defendant about the disposal of the guns taken from the Perkins’ home. The defendant then dropped Bell and Célico off at their respective homes and was directed by Toth to a location in Groton to drop off the guns.
Thereafter, the state police developed leads on several suspects in the Perkins’ home invasion and learned of the identities of the various participants. From statements provided by Célico, Toth and Bell, the police located and interviewed the defendant, who gave them a twelve page written statement outlining his participation in the events of the night in question.8
Before addressing the defendant’s specific claims of error, it is helpful to set out the following evidence that was supportive, if the jury had credited it, of his defense of duress.9 Specifically, the defendant highlights the following evidence presented through his testimony and that of Célico, Toth and Bell. Stokely was nineteen years old, stood over six feet tall and weighed approximately 200 pounds. He was a member of a gang called “The Bloods,” owned several different firearms and had an intimidating demeanor. Toth had described him as “controlling” and “emotionally, physically [and] sexually abusive” toward her. Thome was a few inches shorter than Stokely, and the defendant looked like a “kid” compared to both Thome and Stokely. The defendant testified that, early in the evening at Toth’s house, he had noticed that Stokely had a gun and wore a bulletproof vest. The defendant had hidden his cellular telephone and money because he was afraid that Stokely or Thome might try to rob him. When they first left Toth’s home, the defendant believed that they were going out merely to purchase marijuana. Once at DiBenedetto’s home, the defendant was surprised and frightened at what had transpired. When Stokely started shouting orders to get on the floor, the defendant thought that the orders were directed both to him as well as to DiBenedetto and her boyfriend. Stokely had ordered the defendant at gunpoint to take the presents from under DiBenedetto’s Christmas tree and put them in the van, and the defendant complied because he did not believe that he had any other option. When the group of six later went out to find Blanco’s house, the defendant was afraid and did not want to go, but was too intimidated to resist because of the way he had seen Stokely and Thome behave earlier.
The defendant testified that he had not discussed with Stokely or Thome what they were planning to do at the home, and he had no idea that they intended to commit any crimes. Bell, Toth and Célico testified that they had thought that Stokely and Thome were getting cocaine from Blanco, and that no one had discussed a robbery. After waiting outside the house for approximately fifteen minutes, the defendant and the three females discussed leaving Stokely and Thome there, but Toth had cautioned the defendant that if they left them stranded, there would be serious repercussions. Specifically, Toth voiced concerns that Stokely and Thome would hurt them or their families. This warning frightened the defendant, so he decided to wait for Stokely and Thome, biding his time by getting gas at the Mobil station.
When he returned from the gas station, the defendant saw Thome standing in the open doorway of the home at 168 Mystic Road. Thome waved for the defendant to go into the house. The defendant complied and did not suspect anything unusual until he heard what sounded like people crying. The defendant saw two people lying on the floor in the living room, bound by what appeared to be a telephone cord. The defendant was “scared” for his life. Stokely and Thome demanded that the defendant take a sheet filled with Christmas presents to the van and bring the van closer down the driveway. Thome, with a gun in his hand, watched the defendant as he returned to the van. The defendant was too frightened to leave or to call for help. Stokely and Thome waved the defendant back into the house, and he returned because he was afraid of what they would do if he did not comply. Stokely and Thome had pushed a safe into the living room and were trying to open it. They ordered the defendant to open the safe, but he could not because they had pointed a gun to the back of his head and his hands were shaking. The defendant testified that he was very scared and that Stokely and Thome appeared angry. Finally, after the defendant could not open the safe, Stokely and Thome untied Arnold Perkins and ordered him to open the safe while holding a gun to him. Stokely and Thome took a gun that was stored in the safe, and the trio then left the home, fleeing in the van.
As the defendant drove the group back to Toth’s home, he avoided making eye contact with Stokely and Thome because he was afraid that they would sense his fear and shoot him out of concern that he would turn them in to the police. At Toth’s home, Stokely and Thome got out of the van and told the others, “you call the cops and you’re dead.” Stokely threatened to kill everyone, even if it was ten years later. They ordered the defendant to bring the items in the van to an address in Groton, where they would meet him later. Toth and the defendant thereafter met Stokely and Thome at the designated spot, and the defendant remained in the van while they unloaded the items. Stokely then forced Toth to have sex with him, and thereafter ordered the defendant to drive her home. Toth testified that she did not go into her home and tell her parents what just had occurred because she did not believe that her parents could help them and she was fearful of Stokely coming back to get her. The defendant similarly was afraid that, if he had told his family or the police, Stokely and Thome would retaliate by harming him and his family. On December 24, 2002, the defendant’s mother telephoned him in North Carolina at his father’s home to advise him that the police wanted to speak with him. He immediately returned to Connecticut and gave a lengthy written statement to the police.
On the basis of the aforementioned evidence, the trial court found that the defendant sufficiently had raised the defense of duress and charged the jury accordingly.10
During the course of its deliberations, the jury made five inquiries concerning the court’s instructions on the defense. On the first day of deliberations, the jury requested that the court restate the definition of duress and to explain “how that definition applie[d] to the element of each charge.” In response, the court provided additional instructions.11
On the following day, the jury requested that the court restate the elements of duress and additionally inquired “how may the age of the defendant be considered when establishing an objective standard for what a reasonable person would have done under the circumstances?” Outside the presence of the jury, the court stated on the record that it was not sure how the defendant’s age — sixteen—fit into the objective standard. The court gave trial counsel time to research the issue and told the jury that it could not answer the jury’s question at that time. The court then restated its earlier instruction on duress, and the jury retired to deliberate. After some consideration, the court called the jury back to provide additional guidance.12
As the jury continued to deliberate, the court and counsel continued to discuss the role of the defendant’s age. The following day, the defendant asked the court to instruct the jury that, “in answering these questions, you should consider the defendant’s age, health, size and mental and physical condition both of the defendant and the person alleged to have coerced him.” The state told the court that it had no objection to the court’s “indicating on the issue of age,” but asked the court to instruct the jury on age as one of a number of factors and not to highlight it.
The court acknowledged to counsel the recent legal debate concerning what standards to apply to young adolescents but concluded that, despite available literature about the developing adolescent mind, the issue would be resolved by our well settled law on duress, under which the court noted: “[T]here are two components. One is physical strength and the other is reasonable, moral firmness. Age is a tangible, objective factor that goes to strength when viewed in terms of the reality of a threat in a physical sense from another. It does not go to the moral temperament, which is a community objective standard.” The court then called the jury back for further instruction.13
The jury then continued to deliberate until, still in need of guidance, it asked the court “[t]o clarify duress, when the defendant was removed from danger, does the continued imminent danger to the Perkins’ extend the defense of duress for the defendant if he has concern for their safety?” The court responded “[y]es . . . [i]f there’s continued imminent threat to the third parties that you find is coercive against the defendant, yes.” After the court answered the jury’s question, both counsel stated that they agreed with those instructions. The jury resumed its deliberations, but shortly thereafter requested the court to “restate the conditions that nullify the defense of duress.” The court responded further.14
With this background in mind, we turn to the defendant’s claims.
Despite the lengthy jury instructions on the defense of duress, the defendant claims that the trial court should have instructed the jury that the defendant’s age essentially is a categorical distinction that is relevant to the determination of criminal liability, independent of how it relates to the ages of his alleged coercers, Stokely and Thome. Specifically, he claims that the recognized differences between juveniles and adults should be taken into account when assessing the proper standard by which to judge the defendant’s actions in conjunction with his defense of duress. According to the defendant, the court improperly failed to instruct the jury that it could factor his age into the defense, with an eye toward accounting for the differences in how adolescents evaluate risks.15
We disagree.
It is well established that General Statutes § 53a-1416 provides that duress is a defense to a crime. See State v. Rouleau, 204 Conn. 240, 243, 249, 528 A.2d 343 (1987). The right of a defendant charged with a crime to establish a defense is a fundamental element of due process. Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967); State v. Miller, 186 Conn. 654, 660, 443 A.2d 906 (1982). “This fundamental constitutional right includes proper jury instructions on the burden of proof on the defense of duress so that the jury may ascertain whether, under all the circumstances, the state has met its burden of proving beyond a reasonable doubt that the crimes charged were not committed under duress. Duress . . . [is a] recognized [defense] to [a] criminal [charge] because [it] . . . implicate [s] the volitional aspect of criminality. State v. Pierson, 201 Conn. 211, 217, 514 A.2d 724 (1986) [on appeal after remand, 208 Conn. 683, 546 A.2d 268 (1988), cert. denied, 489 U.S. 1016, 109 S. Ct. 1131, 103 L. Ed. 2d 193 (1989)]; see State v. Miller, supra, 660-61. The state’s burden of proof beyond a reasonable doubt encompasses, in an appropriate case, a burden of disproving duress beyond a reasonable doubt. See General Statutes § 53a-12 (a); see also State v. Pierson, supra [217]; State v. Fuller, 199 Conn. 273, 278, 506 A.2d 556 (1986); State v. Miller, supra [661].” State v. Rouleau, supra, 204 Conn. 243.
The defendant’s right, however, as a matter of law to a theory of defense instruction exists only when there is evidence indicating the availability of the defense. “The court . . . has a duty not to submit to the jury, in its charge, any issue upon which the evidence would not reasonably support a finding.” State v. Diggs, 219 Conn. 295, 299, 592 A.2d 949 (1991); see State v. Williams, 202 Conn. 349, 364, 521 A.2d 150 (1987). “Until something in the evidence indicates the contrary, the court may presume the defendant intended the prohibited bodily movements that constitute the offense and that he has acted under no duress, unlawful inducement in the nature of entrapment, or lack of requisite mental capacity.” State v. Pierson, supra, 201 Conn. 218. In reviewing the defendant’s claim that he was entitled to instructions on duress as defined in § 53a-14, we look at the evidence in a light most favorable to his claim. See State v. Fuller, 199 Conn. 273, 279, 506 A.2d 556 (1986).
In the present case, the trial judge concluded that there was evidence that justified such an instruction and provided the jury with several instructions, which the defendant claims were deficient. Therefore, we turn to our well settled standard of review of jury instructions. “When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it 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. . . . As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper. . . . [I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled. . . . In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the 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 upon the jury in guiding [it] to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied . . . is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) State v. Reid, 254 Conn. 540, 559, 757 A.2d 482 (2000).
We begin with § 53a-14, under which the legislature has prescribed: “[I]t shall be a defense that the defendant engaged in the proscribed conduct because he was coerced by the use or threatened imminent use of physical force upon him or a third person, which force or threatened force a person of reasonable firmness in his situation would have been unable to resist. The defense of duress . . . shall not be available to a person who intentionally or recklessly places himself in a situation in which it is probable that he will be subjected to duress.” “Duress . . . excuses a crime when another’s unlawful threat of death or serious bodily injury reasonably causes the defendant to do a criminal act in a situation in which there was no other opportunity to avoid the threatened danger.” United States v. Michelson, 559 F.2d 567, 569 (9th Cir. 1977); accord United States v. McClain, 531 F.2d 431, 438 (9th Cir.), cert. denied, 429 U.S. 835, 97 S. Ct. 102, 50 L. Ed. 2d 101 (1976). “ ‘The rationale of the defense is not that the defendant, faced with the unnerving threat of harm unless he does an act which violates the literal language of the criminal law, somehow loses his mental capacity to commit the crime in question . . . [but] rather it is that, even though he has done the act the crime requires . . . his conduct which violates the literal language of the criminal law is justified because he has thereby avoided a harm of greater magnitude.’ 1 W. LaFave & A. Scott, Substantive Criminal Law [(1986) § 5.3 (a), pp. 614-15].” State v. Rouleau, supra, 204 Conn. 248-49. In speaking to the defenses of duress and necessity, the United States Supreme Court has stated: “Under any definition of these defenses one principle remains constant: if there was a reasonable, legal alternative to violating the law, ‘a chance both to refuse to do the criminal act and also to avoid the threatened harm,’ the defenses will fail. [W. LaFave & A. Scott, Criminal Law (1972) § 49, p. 379].” United States v. Bailey, 444 U.S. 394, 410, 100 S. Ct. 624, 62 L. Ed. 2d 575 (1980).
Connecticut’s duress defense has both a subjective and an objective component. The subjective component is that the defendant actually must have been coerced into the criminal action. See General Statutes § 53a-14 (“[the defendant] was coerced by the use or threatened imminent use of physical force upon him or a third person”). This requirement has been described as subjective because the defendant in fact must have believed that his life would be endangered if he did not perform the criminal act at issue. That assessment necessarily takes into account the defendant’s state of mind. In other words, the defendant must have believed in and been frightened by the likelihood of the threatened harm because the defense of duress rests on principles of necessity. Stated conversely, the subjective aspect becomes more apparent: even if an ordinary person could not have resisted the coercive threat, if the particular defendant did not believe that he was in danger, then the defense of duress would not be available. The language requiring that the defendant in fact believed that his life was endangered is part of the duress defense to ensure that the defense “is not available to a defendant who did not in fact believe that his life was endangered even though a reasonable man might have thought so.” State v. Starks, 122 Ariz. 531, 533, 596 P.2d 366 (1979). Therefore, the sincerity of the defendant’s asserted perception of an imminent threat of harm must be scrutinized by the jury.
The second component of the defense is objective in nature. If the defendant can establish that he was in fact in fear, his conduct is then judged by an objective standard. See General Statutes § 53a-14 (“which force or threatened force a person of reasonable firmness in his situation would have been unable to resist”). A defendant’s level of resistance to the particular threat must meet community standards of reasonableness. In other words, the jury must conclude that the defendant’s belief was a reasonable one. “[T]he normative component of duress assures that the coerced actor demonstrated the degree of fortitude expected of a member of the morally responsible community. In other words, even though the legally coerced actor failed to do the right thing, [his or] her act is nevertheless tolerated because [he or] she ‘attained . . . society’s legitimate expectations of moral strength.’ ” L. Dore, “Downward Adjustment and the Slippery Slope: The Use of Duress in Defense of Battered Offenders,” 56 Ohio St. L.J. 665, 746 (1995). In deciding whether the defendant’s perceptions were reasonable, the jury must consider objectively a variety of factors including the seriousness of the threat, the nature of the impending harm being threatened, the opportunities for escape and the seriousness of the crime the defendant has committed.
The jury’s evaluation of a defendant’s response to the threat, applying the standard of the “person of reasonable firmness,” presupposes an ordinary person without serious mental and emotional defects. See State v. Van Dyke, 361 N.J. Super. 403, 417, 825 A.2d 1163 (App.) (recognizing duress as establishing standard “measured by the societal objective norm of the person of reasonable firmness rather than by the [particular attributes] which characterize [the] defendant”), cert. denied, 178 N.J. 35, 834 A.2d 407 (2003). A defendant’s personal timidity or lack of firmness in the face of intimidation does not serve as the measure for his or her conduct under this second component of the defense. Id., 414-15. Community expectations prevail in judging a defendant’s response to a threat when that response involves engaging in criminal action toward, or affecting, an innocent third person. With the defense of duress, a defendant is neither held to a standard of heroism, nor is the defendant allowed to rely on his or her idiosyncratic mental and emotional weaknesses.17 “Earnest resistance is a generalized standard; it is not measured by a defendant’s individual personality traits.” State v. VanNatta, 149 Or. App. 587, 591, 945 P.2d 1062, cert. denied, 326 Or. 234, 952 P.2d 61 (1997).
The explanatory note to the Model Penal Code section on duress, on which § 53a-14 is modeled, explains: “The standard is thus partially objective; the defense is not established simply by the fact that the defendant was coerced; he must have been coerced in circumstances under which a person of reasonable firmness in his situation would likewise have been unable to resist.” (Emphasis added.) 1 American Law Institute, Model Penal Code and Commentaries (1985) § 2.09, explanatory note, p. 367 (Model Penal Code). In other words, “[t]he standard is not . . . wholly external in its reference; account is taken of the actor’s ‘situation,’ a term that should here be given the same scope it is accorded in appraising recklessness and negligence. Stark, tangible factors that differentiate the actor from another, like his size, strength, age, or health, would be considered in making the exculpatory judgment. Matters of temperament would not.” Id., § 2.09, comment 3, p. 375. As other courts that follow the Model Penal Code have explained, “[t]he idiosyncratic ability of a defendant not to withstand a particular coercive threat does not control. That person’s subjective psychological incapacity to resist a coercive threat does not set the bar. Rather, in keeping with the normative function of duress, ‘[t]he coercive threat must be sufficiently grave and severe as to similarly coerce a non-heroic, but reasonably firm, person into criminal conduct.’ ” State v. B. H., 183 N.J. 171, 191, 870 A.2d 273 (2005). “The phrase ‘person of reasonable firmness’ is employed in the duress disability to emphasize the characteristic of the reasonable person that is most relevant.” Marx v. State, 291 Ark. 325, 332, 724 S.W.2d 456 (1987). The objective component of duress is necessary to ensure conformity and reflects society’s “unwillingness to vary legal norms with the individual’s capacity to meet the standards they prescribe, absent a disability that is both gross and verifiable . . . .” 1 Model Penal Code, supra, § 2.09, comment 2, p. 374. Therefore, we ask the jury to evaluate whether a special circumstance, a threat or use of force, for which the defendant is not responsible, caused his conduct, and would have induced the same conduct by a reasonable person in the defendant’s situation.
As we previously have noted, in assessing the defense of duress, it is important to remember that, pursuant to the defense, the criminal act is justified because the defendant has avoided a harm of greater magnitude. See State v. Rouleau, supra, 204 Conn. 248-49 (“[t]he rationale of the defense [of duress] is not that the defendant, faced with the unnerving threat of harm unless he does an act which violates the literal language of the criminal law, somehow loses his mental capacity to commit the crime in question . . . [but] rather it is that, even though he had done the act the crime requires, his conduct which violates the literal language of the criminal law is justified because he has thereby avoided a harm of greater magnitude” [internal quotation marks omitted]). Thus, although the factors considered in determining the defendant’s situation, i.e., those that differentiate him from his coercer, such as size, strength, age or health, are somewhat individualized, they do not stand in isolation. Rather, they are to be gauged against the coercer in order to determine whether the defendant acted reasonably and therefore justifiably. Consequently, the trier of fact must consider any salient situational factors surrounding the defendant at the time of the alleged duress, including the severity of the offense the defendant was asked to commit, the nature of the force used or threatened to be used, and the alternative ways in which the defendant may have averted the force or threatened force. See J. Dressler, “Exegesis of the Law of Duress: Justifying the Excuse and Searching for Its Proper Limits,” 62 S. Cal. L. Rev. 1331, 1367 (1989) (noting “line drawing” nature of duress and that “[a]ll that can be said with certainty is that, assuming the threat remains constant, our willingness to excuse an actor doubtlessly recedes as the offense becomes more heinous” and that only “[s]ome, but not all, persons who are forced into a comer and wrongfully choose to harm innocent persons rather than accept the threatened consequences will be excused”).
Finally, even where the evidence is sufficient to establish the elements of duress, the defendant still may not be entitled to avail himself of the defense. Duress is not a refuge. The duress defense is not available if the evidence establishes that the defendant recklessly placed himself in a situation where it was probable that he would be subject to duress. “Recklessly” in this context has been defined to mean: “A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation. . . . Therefore, like the test for determining whether the defendant was subject to duress, the test for determining whether a defendant acted recklessly . . . is a hybrid objective-subjective one. . . . The trier of fact must decide whether the defendant disregarded a risk that involves a gross deviation from what an objective reasonable person would observe if he was placed in the [defendant’s] situation. . . . Thus, in making its determination, the trier of fact must again take into account the stark tangible factors that differentiate the defendant from another person and the salient situational factors surrounding the defendant.” (Citations omitted; internal quotation marks omitted.) Commonwealth v. DeMarco, 570 Pa. 263, 273-74, 809 A.2d 256 (2002).
Turning to the present case, the defendant recognizes that the trial court instructed the jury that his age could be used to differentiate him from those threatening him. Expressly, the trial court told the jury that it could “take into account age as one of the tangible factors that go to assessing the situation; that is, the comparative situation between the two actors or the three actors, the defendant on the one hand and those threatening on the other.” The defendant claims, however, that the jury should have been instructed that his age also was a factor to determine how he would have perceived the threat. Specifically, he contends that this court should recognize the differences between a juvenile and an adult in maturity, sense of responsibility, vulnerability and personality traits, which make it more difficult for adolescents to resist pressures because of their limited decision-making capacity and their susceptibility to outside influences. Essentially, the defendant seeks an instruction that would have allowed the jury to factor his age into the defense, independent and regardless of how it relates to the age of his coercers, with an eye toward accounting for the differences in how adolescents evaluate risks.18
As support for this contention, the defendant relies on cases recognizing the age of the defendant as a factor in determining whether a confession or waiver of a constitutional right was voluntary. See, e.g., Withrow v. Williams, 507 U.S. 680, 693, 113 S. Ct. 1745, 123 L. Ed. 2d 407 (1993) (defendant’s maturity factor in voluntariness of confession); Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973) (age of defendant taken into consideration in determining if consent to search was voluntary). He also directs us to Roper v. Simmons, 543 U.S. 551, 568-69, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005), in which the United States Supreme Court held that juveniles under the age of eighteen could not receive the death penalty because they have a diminished culpability stemming from various differences between them and adults due to their lack of maturity.
We understand the defendant’s plea, acknowledge that juveniles often have more immature decision-making capability and recognize the literature supporting the notion that juveniles are more vulnerable to all sorts of pressure, including, but not limited to, duress.19 The flaw with the defendant’s proposal, however, is that, carried to its logical conclusion, it essentially would require this court to rewrite the entire Penal Code, crimes and defenses, to necessitate consideration of the age of young offenders for the ultimate purpose of defining their culpability based on their vulnerability and susceptibility to negative influences and outside pressures.20 The legislature’s determination to treat sixteen year olds as adults and to treat adolescents under sixteen as juveniles for purposes of assessing criminal responsibility reflects its appreciation of the different mental abilities and susceptibilities of younger persons.21 To adopt the argument of the defendant would usurp the legislature’s role and require this court to vitiate what is an inherently legislative determination that sixteen year olds are to be treated like adults for purposes of criminal liability.22 The categorization of offenses is a legislative judgment, and, generally speaking, “it is not the prerogative of courts in this area lightly to launch an inquiry to resolve a debate which has already been settled in the legislative forum.” (Internal quotation marks omitted.) State v. O’Neill, 200 Conn. 268, 288, 511 A.2d 321 (1986); accord State v. Hernandez, 204 Conn. 377, 387, 528 A.2d 794 (1987); State v. Rao, 171 Conn. 600, 603, 370 A.2d 1310 (1976). We defer to the broad authority that legislatures possess in determining the types and limits of punishment for crimes. Indeed, “[i]n examining the rationality of a legislative classification, we are bound to defer to the judgment of the legislature unless the classification is clearly irrational and unreasonable.” State v. Dupree, 196 Conn. 655, 665, 495 A.2d 691, cert. denied, 474 U.S. 951, 106 S. Ct. 318, 88 L. Ed. 2d 301 (1985); State v. Simmat, 184 Conn. 222, 224, 439 A.2d 915 (1981); see, e.g., State v. Smith, 273 Conn. 204, 212-13, 869 A.2d 171 (2005) (noting that “[o]ur state law reflects a legislative determination that cocaine is a dangerous drug, particularly when consumed by a young person” and that numerous statutes prohibit its possession, sale, transport and like conduct); State v. Ledbetter, 263 Conn. 1, 17, 818 A.2d 1 (2003) (legislative determination not to extend the protections of General Statutes § 46b-137 [a], which provides conditions under which confession of child may be admissible, to child who, after being subjected to custodial interrogation, is prosecuted as adult); State v. Henton, 50 Conn. App. 521, 538, 720 A.2d 517 (sentence enhancement, such as that authorized under General Statutes § 53-202k for commission of class A, B or C felony with firearm, is valid legislative determination), cert. denied, 247 Conn. 945, 723 A.2d 322 (1998). Accordingly, the defendant cannot prevail on his first claim of instructional impropriety.
The defendant also claims that the trial court improperly instructed the jury on accessorial liability. Specifically, he claims that the trial court’s instructions on the issue of intent were deficient. The defendant concedes that he did not provide a written request to charge on accessorial liability, nor did he take exception to the court’s charge and, therefore, this claim is unpreserved. Accordingly, he seeks to prevail under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).23
The defendant has satisfied the first two prongs of Golding because an adequate record exists and “[a]n 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. Lemoine, 256 Conn. 193, 198-99, 770 A.2d 491 (2001). His claim fails under the third prong of Golding, however, because he has not demonstrated that the alleged constitutional violation exists.
As we noted in part I of this opinion, “[w]hen reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test . . . is . . . whether it 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. . . . As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper. . . . [I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled. . . . The test to be applied . . . is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) State v. Reid, supra, 254 Conn. 559.
The statutory provision governing accessorial liability is General Statutes § 53a-8 (a), which provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.” This court previously has stated that “a conviction under § 53a-8 requires [the state to prove the defendant’s] dual intent . . . [first] that the accessory have the intent to aid the principal and [second] that in so aiding he intend to commit the offense with which he is charged.” (Internal quotation marks omitted.) State v. Turner, 252 Conn. 714, 748, 751 A.2d 372 (2000). Additionally, “one must knowingly and wilfully assist the perpetrator in the acts which prepare for, facilitate or consummate it.” (Internal quotation marks omitted.) State v. Robertson, 254 Conn. 739, 783, 760 A.2d 82 (2000).
In the present case, the defendant was charged as an accessory to robbery in the second degree, burglary in the first degree, larceny in the second degree and accessory to stealing a firearm. The trial court’s instructions tracked § 53a-8 correctly and properly articulated the requisite dual intents.24 The defendant claims, however, that the trial court acted improperly in not, sua sponte, including specific language from D. Borden & L. Orland, 5 Connecticut Practice Series: Connecticut Criminal Jury Instructions (3d Ed. 2001) § 5.3.25 Although that language is a correct statement, it is not the only proper way to convey the necessary information to the jury. See State v. Peters, 40 Conn. App. 805, 823, 673 A.2d 1158 (jury charge not improper for failure to recite “talismanic words”), cert. denied, 237 Conn. 925, 677 A.2d 949 (1996).
Additionally, the defendant claims that his duress defense, if credited, “negated” the requisite mental states for the charged offenses because it meant that none of his actions had been done with criminal intent and community of unlawful purpose. Therefore, according to the defendant, the trial court was required to remind the jury that the defendant, by his defense of duress, was not conceding anything and that the jury had to be vigilant in its duty to evaluate whether the state had proven each essential element beyond a reasonable doubt. We disagree.
First, as we stated in State v. Rouleau, supra, 204 Conn. 248-49, “ ‘[t]he rationale of the defense [of duress] is not that the defendant, faced with the unnerving threat of harm unless he does an act which violates the literal language of the criminal law, somehow loses his mental capacity to commit the crime in question . . . [but] rather it is that, even though he had done the act the crime requires, his conduct which violates the literal language of the criminal law is justified because he has thereby avoided a harm of greater magnitude.’ 1 W. LaFave & A. Scott, [supra, Substantive Criminal Law, § 5.3 (a), pp. 614-15].” See State v. Boone, 15 Conn. App. 34, 40, 544 A.2d 217, cert. denied, 209 Conn. 811, 550 A.2d 1084 (1988). “Under Rouleau, therefore, because a finding of duress does not negate the element of specific intent for the crime charged, specific intent and duress can coexist.” State v. Aponte, 66 Conn. App. 429, 439, 784 A.2d 991 (2001), cert. denied, 259 Conn. 907, 789 A.2d 995 (2002). Second, the trial court was inordinately careful to ensure that the jury understood its constitutional obligations.26 Accordingly, the trial court’s instructions were not inadequate.
The judgment is affirmed.
In this opinion the other justices concurred.
The court then provided the following additional instructions: “And the answer to that question is that he himself — he himself did not have to display. The third party could have, okay.
“I know that the information you have charging their reason, they’re conjunctive, but the statute reads differently, and that’s just a technical problem in terms of the charging.
“But he himself did not have to represent — display or threaten the use of the weapon. He could have just been present. So that makes what the difference between crime or robbery is that you can be in the room not— just be present and be charged with robbery, okay.
“Accessory, you could be an accessory to robbery and still not be in the room but having aided, importuned, solicited in some way the commission of the robbery even though you were not present in the room for the robbery.”
Specifically, the defendant claims that the trial court should have told the jury the following: “One who is present when a crime is committed but neither assists in its commission nor shares in the criminal intent of its perpetrator cannot be convicted as an accessory. Mere presence as an inactive companion, passive acquiescence, or the doing of innocent acts which may in fact aid the one who commits the crime must be distinguished from the criminal intent and community of unlawful purpose shared by one who knowingly and wilfully assists the perpetrator of the offense in the acts which prepare for, facilitate, or consummate it.”
State v. Laffin, 155 Conn. 531, 536, 235 A.2d 650 (1967); see D. Borden & L. Orland, supra, § 5.3, p. 378.
Indeed, the back and forth between the trial court and the jury in connection with the duress defense; see footnotes 11 through 14 of this opinion and the accompanying text; demonstrates the commitment by both the court and the jury to determine properly whether the state had proven all of the essential elements of the charged offenses beyond a reasonable doubt.