dissenting. I respectfully dissent from the majority’s conclusion that the defendant is entitled *575to a new trial because I do not believe it is reasonably possible that the trial court’s instruction misled the jury.1
An instruction is harmless beyond a reasonable doubt if there is no reasonable possibility the jury could have been misled. State v. Ash, 231 Conn. 484, 493 n.5, 651 A.2d 247 (1994). I agree that the defendant’s claim is reviewable under the precepts of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), because there is an adequate record to review the claim and because the claim is of constitutional magnitude. State v. Walker, 33 Conn. App. 763, 769, 638 A.2d 1084, cert. denied, 229 Conn. 913, 642 A.2d 1209 (1994). An improper instruction as to an element of a defense is a constitutional deprivation. State v. Ash, supra, 493. I do not agree, however, that the state has failed to demonstrate the harmlessness of the alleged instruction, and conclude, therefore, that the defendant cannot prevail on this claim.
“[Tjhe question of harmlessness of a jury instruction is properly gauged by reference to both the language of the entire charge and the evidence in the case . . . .” (Citation omitted.) Id., 496. In this case, the defendant claims that the charge was flawed because it was a misstatement of two aspects of self-defense, the definition of initial aggressor, and the duty to retreat. These aspects of self-defense are related and should be considered together in evaluating whether the statements, in light of the charge as a whole, including all of the instructions given on self-defense, were misleading.
The defendant claims that the jury was misled as to the defendant’s duty to retreat, and isolates one portion of one sentence of the charge to prove his claim. He *576complains that the court improperly instructed the jury that “in most circumstances, a person must retreat from the perceived harm, if they are able to retreat with complete safety.” He claims that this is the improper use of an objective rather than a subjective standard.
The majority relies on State v. Ash, supra, 231 Conn. 484, in determining that the charge to the jury on self-defense was improper. The instruction in this case, however, differs from that given in Ash. In Ash, the only colorable subjective test employed in the charge was whether the defendant “could perceive” that physical force could be avoided. The Supreme Court found those words to be insufficient to allow the jury to evaluate the defendant’s claim of self-defense properly. In the present case, the trial court made numerous references to the situation from the subjective point of view of the defendant. The court stated that the defendant’s belief of the situation was to be tested by what a “reasonable person” would have believed “under the circumstances from the perspective of the defendant” and that “the danger or apparent danger claimed by the defendant is to be determined from his standpoint at the time of the incident considering all the existing circumstances. The act leading to the defendant’s claim of self-defense need not be an actual threat or assault but only some act that a reasonable person seeing it from the defendant’s perspective would reasonably believe to be an assault or threat.” (Emphasis added.) The court further stated that “a defendant 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 by retreating.” (Emphasis added.) The court’s emphasis throughout its charge was on the subjective test, and I would not reverse the conviction on the ground that the jury was misled by the charge on the duty to retreat.
*577The defendant also claims that the jury was misled by one sentence of the charge that improperly instructed the jury that the “defendant is not justified in using physical force on another person if he is the initial aggressor, that is, the first person to use physical force.” It was improper because the first person to use physical force is not necessarily, but may be, the initial aggressor within the meaning of General Statutes § 53a-19 (c). State v. Jimenez, 228 Conn. 335, 342-43, 636 A.2d 782 (1994); State v. Brown, 35 Conn. App. 699, 709, 647 A.2d 17, cert. denied, 231 Conn. 932, 649 A.2d 254 (1994). Although the statement quoted previously was incorrect, it is not reasonably possible that it misled the jury. After the statement, the court then twice instructed the jury “that a person is justified in using reasonable physical force upon another person to defend himself from what he reasonably believes to be the use or imminent use of physical force and he may use such degree of force which he reasonably believes to be necessary for that purpose.” The words “use” or “imminent use” of physical force as employed in the instruction make it clear that the defendant could either believe that he needed to use force where none had yet been employed against him or that he needed to use force because force had already been used against him, and still be entitled to the defense of self-defense. The court thus clarified that being the first to use physical force is not the paramount factor in the determination of who was the initial aggressor. Instead, the paramount factor is whether the use of physical force by the defendant was reasonable regardless of which person struck the initial blow.
In State v. Jimenez, supra, 228 Conn. 338, the court specifically instructed the jury that if it found that the defendant was the first to use physical force, then the state would have disproved the defense of self-defense. In Jimenez, the undisputed facts showed that defendant *578was the first to use physical force and the defendant himself testified that he was the first to use physical force. Upon review of the claim, which had been preserved, the Supreme Court held that a new trial was necessary because the instruction specifically told the jury not to consider the defendant’s claim of self-defense if the jury concluded, in accordance with the undisputed facts, that the defendant was the first to use physical force. Id., 340.
In the present case, the court did not instruct the jury that if it found that the defendant was the first to use physical force, then the state would have disproved the defense of self-defense. The court left it to the jury to decide if the defendant was the initial aggressor. Also, it was not undisputed that the defendant was the first to shoot. In fact, the defendant’s statement was that someone shot at him without provocation and that it was only then that he returned a shot. I would not conclude, therefore, that Jimenez applies and would not conclude that the instruction as to initial aggressor, when read as a whole, misled the jury.
Reviewing the charge as a whole, I believe there is no reasonable possibility that the jury was misled and I would uphold the convictions.2
I agree with the majority’s conclusion that it was not improper to admit the victim’s photograph into evidence.
The majority does not discuss and the parties have not raised the issue of whether the defendant could be convicted of both General Statutes § 53a-59 (a) (1) and (3), respectively. Because the statutory definition of intentional and reckless are mutually exclusive and inconsistent, a defendant usually cannot be guilty of two crimes arising out of the same act that require such mutually exclusive states of mind as essential elements. State v. King, 216 Conn. 585, 594, 583 A.2d 896, on appeal after remand, 218 Conn. 747, 591 A.2d 813 (1990).
Although the defendant was convicted of violating § 53a-59 (a) under both subdivision (1), a crime requiring intent, and subdivision (3), a crime requiring an extreme indifference to human life and recklessness, both convictions should be upheld because the jury could find that the defendant intended to cause serious physical irqury to Boo Battle, while simultaneously engaging in reckless conduct by shooting into a public street. See State v. Hinton, 227 Conn. 301, 314, 630 A.2d 593 (1993).