author: HARPER, J.

text:
    STATE OF CONNECTICUT v. RODNEY HANKERSON
    (AC 30738)
    Gruendel, Harper and Pellegrino, Js.
    Argued September 14
    officially released December 15, 2009

      Brendon P. Levesque, special public defender, with whom were Michael S. Taylor and, on the brief, Karen

      L. Dowd and Daniel J. Krisch, for the appellant (defendant).

      Melissa L. Streeto, assistant state’s attorney, with whom, on the brief, was Scott J. Murphy, state’s attorney, for the appellee (state).
   Opinion

HARPER, J.

The defendant, Rodney Hankerson, appeals from the judgment of conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a-54c, robbery in the first degree in violation of General Statutes § 53a-134 (a) (1) and robbery in the first degree in violation of General Statutes § 53a-134 (a) (3). The defendant claims that the court failed to explain the doctrine of proximate causation adequately in its instruction as to the crime of felony murder. We decline to review the claim and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On September 22, 2005, the victim, Luis Bruno, a drug dealer, had agreed to purchase a large quantity of cocaine from Herman Apodaca for $60,000. They agreed to complete the sale on September 24, 2005, at the victim’s apartment in New Britain. On that date, the defendant, Apodaca and Eduardo Davila drove to the victim’s apartment from New York. Upon their arrival, the defendant, carrying a large bag, entered the victim’s apartment with Davila. Apodaca followed the men into the apartment soon thereafter. Several minutes later, Apodaca exited the apartment carrying a plastic bag stuffed with money. Thereafter, the defendant and Dav-ila exited the apartment. Both men had bloodstains on their clothing, and the defendant was carrying the same bag that he had carried into the apartment.

From a vantage point outside of the victim’s apartment, a friend of the victim, Raul Cruz, observed the defendant, Apodaca and Davila enter and leave the apartment. Upon observing the defendant and Davila leave the apartment, Cruz heard the victim calling for help. He approached the door to the apartment to find the victim lying on his kitchen floor, covered in blood. He then observed the defendant and Davila quickly enter a van and drive away from the scene. Cruz brandished a gun and fired a gunshot at the van, to no avail. By this time, Apodaca also had driven away from the scene in an automobile. The victim had been stabbed multiple times with various knives and died soon thereafter.

General Statutes § 53a-54c provides in relevant part: “A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery . . . and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants . . . .” The defendant claims that the court’s instruction regarding the crime was deficient because it is reasonably possible that it misled the jury with regard to the essential element that the victim’s death was caused in the course of and in furtherance of the crime of robbery or flight therefrom. Essentially, the defendant argues that the court did not adequately explain in what manner the victim’s death must be causally connected to his criminal activity. The defendant, acknowledging that he did not take an exception to the court’s charge, affirmatively requests review of his claim under the doctrine set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. . . . The first two Golding requirements involve whether the claim is reviewable . . . and the second two involve whether there was constitutional error requiring a new trial. . . . [I]n the usual Golding situation, the defendant raises a claim on appeal [that], while not preserved at trial, at least was not waived at trial. ... [A] constitutional claim that has been waived does not satisfy the third prong of the Golding test because, in such circumstances, we simply cannot conclude that injustice [has been] done to either party ... or that the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial .... To reach a contrary conclusion would result in an ambush of the trial court by permitting the defendant to raise a claim on appeal that his or her counsel expressly had abandoned in the trial court.” (Citations omitted; internal quotation marks omitted.) State v. Holness, 289 Conn. 535, 542-43, 958 A.2d 754 (2008).

Preliminarily, the state rebuts the defendant’s claim by asserting that the defendant cannot prevail under Golding because he waived any objection to the propriety of the instruction challenged in this appeal. The state relies on the following facts, all of which are supported by the record. The defendant did not submit a written request to charge covering the instructional language at issue in this claim. Also, he did not take exception to the court’s charge on this ground. Practice Book § 42-16 provides in relevant part: “An appellate court shall not be bound to consider error as to the giving of, or failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of exception. . . .”

Prior to delivering its charge to the jury, the court held a charge conference, on the record, with the parties. During the conference, the court discussed several subjects dealt with in its proposed charge as well as several subjects covered in the defendant’s written request to charge. The specific instruction at issue in this claim was not a subject of the conference. During its charge, the court instructed the jury that the state alleged that on September 24, 2005, the defendant, acting alone or with one or more persons, committed or attempted to commit the crime of robbery and, in the course of and in furtherance of that crime or the flight therefrom, he or another person caused the victim’s death. The court discussed the elements of the crime of felony murder, stating in relevant part: “The second element is that the actions of the defendant or another participant in the crime of robbery in the first degree . . . were the proximate cause of the death of [the victim]. The state must prove beyond a reasonable doubt that the defendant, or another participant, caused death. Proximate cause does not necessarily mean the last act of cause, or the act in point of time nearest to death. The concept of proximate cause incorporates the notion that an accused may be charged with a criminal offense even though his acts were not the immediate cause of death. It does not matter whether this particular kind of harm that results from the defendant’s act [was] intended by the defendant. When death is a foreseeable and natural result of the defendant’s conduct, the law considers the chain of legal causation unbroken and holds the defendant criminally responsible.

“The third element is that the defendant or another participant caused the death while in the course of and in furtherance of the commission or attempted commission of the crime of robbery in the first degree and in the course of carrying out its objective, the death was caused. In the course of the robbery means during any part of the defendant’s participation in the robbeiy. Thus, the death of [the victim] must have occurred somewhere within the time span of the occurrence of the facts which constitute the robbery. In furtherance of the robbery means that the killing must in some way be causally connected to or as a result of the robbery, or of flight from the robbery. The actions of the defendant that caused the death of [the victim] must be done to aid the robbery in some way or to further the purpose of the robbery.”

Later, during jury deliberations, the jury sent a note to the court inquiring whether a finding of guilty on the robbery count required a finding of guilty as to the felony murder count. Upon receiving the note, the court informed the jury that it would respond to the note only after discussing the matter with the parties. The court discussed the inquiry with counsel and proposed a supplemental instruction. Specifically, the court proposed responding to the jury’s inquiry by answering it in the negative and simply repeating the felony murder instruction that it had delivered in its initial charge. In discussing the proper response to the jury’s inquiry, the defendant’s counsel noted that, in its initial instruction to the jury concerning the crime, the court had, at several points, used the phrase “immediate flight therefrom,” as opposed to “flight therefrom,” in explaining the elements of felony murder. The defendant’s attorney requested that the court rephrase the instruction on this limited ground. The court discussed its initial instruction and considered the defendant’s request. The court concluded that its misstatement did not prejudice the defendant in any way but, in fact, placed a slightly higher burden of proof on the state. The court declined the request to correct its instruction on this ground. The issue raised by the defendant was related to the court’s supplemental charge but is unrelated to the instructional claim raised here. Beyond noting that the court inadvertently had added the word “immediate” to its instruction concerning flight, the defendant did not raise any objection to the language used in the initial charge. Noting this objection by the defendant to its initial charge, the court asked counsel for the defendant and the state whether there was any other objection to its proposed supplemental charge. The defendant’s counsel replied: “No, Your Honor.”

Thereafter, the court summoned the jury to the courtroom and delivered its supplemental instruction. The court instructed the jury that a finding of guilt with regard to the robbery charge did not require a finding of guilt with regard to the felony murder charge. The court stated that each count at issue in the case was separate and distinct and contained elements that must be proven beyond a reasonable doubt. The court then reiterated the felony murder instruction that it had delivered in its initial charge. After delivering this supplemental instruction, the court asked the defendant’s attorney if the defense took exception to the instruction. The defendant’s attorney replied: “No, Your Honor.”

In State v. Ebron, 292 Conn. 656, 682, 975 A.2d 17 (2009), our Supreme Court held that a party will not be held to have waived a claim of instructional error unless it is shown that he “actively induced the trial court to give the . . . instruction that he . . . challenges on appeal . . . .” (Citation omitted.) Likewise, the court reasoned that a party will have waived an objection to an instruction only if it has “actively induce [d] the trial court to act on the challenged portion of the instruction.” Id., 680. In a recent case, State v. Foster, 293 Conn. 327, 339-42, 977 A.2d 199 (2009), our Supreme Court considered whether a defendant had waived a claim of instructional error under procedural facts materially similar to those in the present case. In Foster, the defendant challenged on appeal the trial court’s alibi instruction. Id., 339. The Supreme Court noted that, at trial, defense counsel had not objected to the court’s initial charge and had expressly stated that the court’s instructions were proper. Id., 340. Following the initial charge, the defendant prompted the court to deliver a supplemental instruction, related to the alibi defense. Id. “The court proposed, and defense counsel offered no objection to, a supplemental instruction that essentially repeated a portion of its initial alibi instruction. The trial court then gave the proposed supplemental instruction to the jury. Defense counsel did not object to the court’s supplemental instruction.” Id., 340-41. The Supreme Court in Foster discussed and relied on its prior decisions in State v. Whitford, 260 Conn. 610, 632-33, 799 A.2d 1034 (2002), and State v. Jones, 193 Conn. 70, 86-89, 475 A.2d 1087 (1984), and concluded that the failure of defense counsel to object to the supplemental instruction that had been proposed by the court indicated “defense counsel’s assent to the court’s instructions” and, thus, constituted waiver of any objection related thereto. State v. Foster, supra, 342.

In the present case, the defendant’s counsel did not object to the court’s initial charge as it relates to this claim. After the jury’s note necessitated a supplemental instruction related to the felony murder instruction, the court discussed the matter with counsel. The court proposed, and defense counsel offered no relevant objection to, a supplemental instruction that essentially repeated the portion of the initial charge that the defendant challenges in this appeal. The court then delivered the proposed supplemental instruction to the jury. Defense counsel did not object to the court’s supplemental instruction.

Following Foster, and the cases cited therein, we conclude that the defendant waived this claim. Following the jury’s written inquiry, the court discussed this portion of its initial charge with counsel and the defendant’s counsel acquiesced to the substance of the instruction that the defendant now challenges on appeal, affirmatively inducing the court to retain the instruction in its supplemental charge. The claim, having been waived, fails under Golding’s third prong.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court imposed a total effective sentence of sixty years incarceration. The jury returned a verdict of not guilty as to the crimes of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134 and 53a-48, larceny in the first degree in violation of General Statutes § 53a-122 and conspiracy to commit larceny in the first degree in violation of General Statutes §§ 53a-122 and 53a-48, of which the defendant also stood charged.

       During his trial testimony, the defendant testified that he had accompanied Apodaca and Davila to New Britain on September 24, 2005, unaware of any planned drug sale to the victim. The defendant testified that he had entered the victim’s apartment with Apodaca, at which time he discovered Davila fighting with the victim. The defendant recalled that he had been struck in the face during an attempt to separate Davila and the victim and that, when he had regained the ability to perceive what was transpiring, Apodaca was gone from the scene and Davila was “on top of [the victim] stabbing him repeatedly.” The defendant also testified that he did not harm the victim and that Davila compelled him at gunpoint not to flee the victim’s kitchen and to carry a bag from the apartment.

       We conclude that the relevant procedural facts of Foster are materially similar to those of the present case because, in both cases, the defendant to some extent had participated in the creation of the supplemental instruction being challenged on appeal and had not objected to such instruction after the court delivered it to the jury. We recognize that, unlike the present case, the defendant in Foster also had expressed his satisfaction with the court’s initial instructions, which mirrored the supplemental instruction provided to the jury, and had requested that the court deliver the supplemental instruction at issue on appeal. State v. Foster, supra, 293 Conn. 340, 342. Here, the defendant did not take exception to the court’s initial charge on this ground, and the court delivered the supplemental instruction in response to an inquiry from the jury, not at the defendant’s request.
      We do not view these factual differences as material to our analysis for several reasons. First, in concluding that the defendant had waived his objection to the court’s supplemental instruction, our Supreme Court in Foster focused almost exclusively on the facts that the defendant had participated to some extent in the fashioning of the supplemental instruction and had not objected to such instruction after the court had delivered it to the jury. Id., 341-42. In concluding that the waiver rule applied, the court relied heavily on its prior decisions in Jones and Whitford, noting that in both of those cases, in which the court had applied the waiver rule, defense counsel had objected to the court’s initial instruction to the jury. Id., 341. The Foster court concluded that it “[saw] no relevant distinction between the circumstances presented in this case and the circumstances presented in both Jones and Whitford.” Id., 342. Second, it does not appear that the fact that the defendant in Foster had requested the supplemental instruction was a dispositive factor, or even an important factor, in the court’s analysis. Following Jones and Whitford, in which defense counsel’s objection to the court’s initial instruction occasioned the supplemental instruction, the court in Foster appears to have relied on the fact that the defendant had failed to object to the supplemental instruction after having participated in its creation.


source: Caselaw Access Project

author: MIHALAKOS, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ALLEN ROSARIO
    (AC 29414)
    Flynn, C. X, and Robinson and Mihalakos, Js.

      Argued September 17
    officially released December 15, 2009

      Mary Anne Royle, special public defender, for the appellant (defendant).

      Ronald G. Weller, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Robin D. Krawczyk, senior assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Allen Rosario, appeals from the judgment of conviction, rendered after a jury trial, of burglary in the first degree in violation of General Statutes (Rev. to 2005) § 53a-101 (a) (l), burglary in the second degree in violation of General Statutes (Rev. to 2005) § 53a-102 (a) (l), burglary in the third degree in violation of General Statutes § 53a-103 and robbery in the first degree in violation of General Statutes § 53a-134 (a) (3). On appeal, the defendant claims that the court improperly denied his motion to dismiss because his statutory and constitutional right to a speedy trial was violated. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The events in question occurred during the early morning hours of December 24 and 25, 2005. On the evening that began on December 23, 2005, Michael Dalenta, Adam Friedman and Jonathan Bard, three roommates living in a second floor apartment located at 34 Depot Street in East Windsor, entertained friends for a Christmas party at their apartment. Shortly after midnight, a guest who had stepped out onto the balcony to make a cellular telephone call observed the defendant inside Bard’s car, which was located ten feet below the balcony. The guest yelled to the defendant to “get out of the car,” at which point the defendant exited the vehicle and began walking away. The guest immediately shouted to the three roommates that someone was breaking into Bard’s car. The three roommates and several guests ran down the street in chase and caught up with the defendant, whom they detained until police arrived. Bard’s car door was open and his CD case was found in a nearby snowbank. Jeffrey Capen, an East Windsor police officer, arrived and upon investigation, placed the defendant under arrest. The defendant was found to be in possession of a small folding knife, which was confiscated. Friedman testified that shortly after the defendant was placed in the police cruiser, the defendant yelled to the roommates “angry, threatening things” such as, “I’ll be back, this doesn’t stop me, don’t think you’re safe.” The defendant was booked at the police station and eventually released after being told not to have any contact with the three roommates.

The next evening, December 24, 2005, Dalenta was alone at the roommates’ Depot Street apartment. Friedman and Bard were home for the Christmas holiday. At approximately 4 a.m., then Christmas morning, Dalenta was awakened by a banging sound coming from Bard’s room. Dalenta entered the bedroom and observed the defendant going through his roommate’s dresser. When Dalenta confronted the defendant, the defendant pulled a knife from his jacket and said, “you don’t know who you’re effing with,” and immediately fled the apartment. Shortly thereafter, the police arrived with a canine unit that led police to the defendant’s home. Although the defendant denied having been the perpetrator of the burglary, he was identified by Dalenta and found to be in possession of items missing from the apartment, including $40 in loose change and a silver Paul Jardin watch. The defendant subsequently was arrested and remained in custody thereafter in lieu of bail.

The defendant was arraigned on December 27, 2005, and the case was presented in the part A courtroom on January 19, 2006. The case was the subject of multiple judicial pretrials until June 29, 2006, when the case was placed on the firm jury list. For the next several months, the defendant’s attorney was unavailable because he was trying a capital murder case. On May 7, 2007, the defendant filed a motion for a speedy trial and a motion to dismiss. A hearing on the motion to dismiss was held on May 23, 2007. On June 11, 2007, the court denied the defendant’s motion to dismiss and trial began. Additional facts and procedural history will be provided as necessary.

I

The defendant first claims that his statutoiy right to a speedy trial, pursuant to General Statutes § 54-82m, was violated. The defendant claims that the speedy trial procedures outlined in our rules of practice are contrary to § 54-82m. The defendant further argues that even if our rules of practice comply with this statute, the practices at the Hartford Superior Court are inconsistent with our rules and with the statute. We disagree.

Section 54-82m authorizes the judges of the Superior Court to make rules of procedure to ensure that defendants receive a speedy trial. The statute states that any corresponding rules must require that trial takes place within twelve months after a defendant is charged with a crime, except that if a defendant is incarcerated while awaiting trial, the trial must occur within eight months. The statute further provides that the charges against a defendant must be dismissed if that defendant is not brought to trial within thirty days of a motion for a speedy trial filed after the expiration of the eight or twelve month time period, minus excludable time. Practice Book §§ 43-39, 43-40 and 43-41 provide a strict liability form of protection for a defendant’s right to a speedy trial.

“The determination of whether a defendant has been denied his right to a speedy trial is a finding of fact, which will be reversed on appeal only if it is clearly erroneous. . . . The trial court’s conclusions must stand unless they are legally and logically inconsistent with the facts.” (Internal quotation marks omitted.) State v. Cote, 101 Conn. App. 527, 532, 922 A.2d 322, cert. denied, 284 Conn. 901, 931 A.2d 266 (2007).

In this case, the speedy trial clock began to run when the defendant was arraigned, on December 27, 2005. In ruling on the defendant’s motion to dismiss, the court found that the clock was stopped from January 27 until June 29, 2006, due to continuances that were either at the request of the defendant or by agreement between the state and the defendant. The speedy trial clock resumed on June 29, 2006, and ran for another seven months pursuant to Practice Book § 43-39, until late January, 2007. The defendant filed a motion for a speedy trial as well as a motion to dismiss on May 7, 2007, giving the state thirty days to try him. For pin-poses of ruling on that motion, the court ruled that there was excludable time from May 23 until June 11, 2007, while the court considered the defendant’s motion. Trial officially began on June 11, 2007, within the thirty day requirement.

Considering the evidence available to this court, we cannot conclude that the defendant’s statutory right to a speedy trial was violated. The court’s memorandum of decision offered a thoughtful, well reasoned explanation of its denial of the defendant’s motion to dismiss. Moreover, the record provides no factual basis for the defendant’s claim that either the applicable provisions of our rules of practice conflict with § 54-82m, or that the Hartford Superior Court routinely treats all time before a plea offer as excludable time. Most importantly, neither claim has merit in this case. As such, we choose not to venture down the road of issuing advisory instructions beyond those enumerated in our rules of practice and General Statutes.

II

The defendant also claims that his constitutional right to a speedy trial was violated. See U.S. Const., amend. VI; Conn. Const., art. I, § 8. This claim likewise fails.

The sixth amendment guarantee of a speedy trial is a fundamental right applicable to the states through the fourteenth amendment to the United States constitution. Klopfer v. North Carolina, 386 U.S. 213, 223-24, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967). This right also is guaranteed by the constitution of Connecticut, article first, § 8. “Although the right to a speedy trial is fundamental, it is necessarily relative, since a requirement of unreasonable speed would have an adverse impact both on the accused and on society.” (Internal quotation marks omitted.) State v. Mooney, 218 Conn. 85, 117, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991).

The Supreme Court of the United States and the Connecticut Supreme Court have identified four factors that form the matrix of the defendant’s constitutional right to speedy adjudication: (1) length of delay, (2) the reason for the delay, (3) the defendant’s assertion of his right and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972); State v. Lloyd, 185 Conn. 199, 208, 440 A.2d 867 (1981); State v. Nims, 180 Conn. 589, 591, 430 A.2d 1306 (1980). “A balancing test is to be applied on a case by case basis. None of the factors standing alone demands a set disposition; rather it is the total mix which determines whether the defendant’s right was violated.” (Internal quotation marks omitted.) State v. Lacks, 58 Conn. App. 412, 417, 755 A.2d 254, cert. denied, 254 Conn. 919, 759 A.2d 1026 (2000).

A

The Connecticut rules of practice set out specific time limitations within which a criminal trial must commence. Practice Book §§ 43-39 and 43-40. “Our courts have not held that any particular length of delay is presumptively prejudicial, but have stated that an extensive delay warrants an inquiry into the other factors of Barker. See, e.g., State v. Rodriguez, 47 Conn. App. 91, 100, 702 A.2d 906 (1997) (fourteen months), cert. denied, 243 Conn. 960, 705 A.2d 552 (1998); State v. Flowers, 198 Conn. 542, 544, 503 A.2d 1172 (1986) (eighteen months); State v. Gasparro, 194 Conn. 96, 100, 480 A.2d 509 (1984) (three and one-half years), cert. denied, 474 U.S. 828, 106 S. Ct. 90, 88 L. Ed. 2d 74 (1985); State v. Cleary, 3 Conn. App. 349, 350-51, 488 A.2d 831 (1985) (thirty-eight months). There is no constitutional basis for holding that the speedy trial right can be quantified into a specific number of days or months. Barker v. Wingo, supra, 407 U.S. 523; State v. Ortiz, 252 Conn. 533, 569, 747 A.2d 487 (2000). Although no exact length of time has been established as sufficient to presume prejudice, a delay of approximately seventeen months is sufficient to warrant investigation into the other factors of Barker.

B

The second factor under the Barker matrix concerns the reasons for the delay of trial. Here, there was approximately a seventeen month time interval between the defendant’s arrest and his trial. “In examining the reason for the delay, we focus on whether the state was making a deliberate attempt to delay the trial in order to hamper the defense or whether there existed a valid reason . . . [that] should serve to justify appropriate delay.” (Internal quotation marks omitted.) State v. Brown, 40 Conn. App. 483, 489, 671 A.2d 1316 (1996), aff'd, 242 Conn. 389, 699 A.2d 943 (1997).

There are two principal explanations for the seventeen month delay in this case. Foremost, between Januaiy 26 and June 29, 2006, continuances were requested either by the defendant or jointly by the defendant and the state. See State v. Gaston, 86 Conn. App. 218, 227-28, 860 A.2d 1253 (2004) (“[A] significant reason for the delay of the trial was caused by the defendant’s requests for continuances. . . . [I]t was the actions of the defendant, rather than those of the state, that resulted in the delay of the trial. Accordingly, this factor weighs against the defendant.” [Citation omitted; internal quotation marks omitted.]), cert. denied, 273 Conn. 901, 867 A.2d 840 (2005).

Second, between June 29, 2006, and February 1, 2007, the defendant’s attorney was unavailable because he was trying a capital murder case. This time weighs against the defendant as excludable time, pursuant to Practice Book § 43-40 (2). See State v. Brown, supra, 40 Conn. App. 489 (holding that trial court properly delayed defendant’s trial where defendant’s attorney had another trial because commencing trial without attorney would have deprived defendant of constitutional right to effective assistance of counsel).

The evidence weighs strongly that the reasons for delay were not a result of the state’s actions but, rather, the actions of the defendant.

C

The third Barker factor is the assertion by the defendant of his right to a speedy trial. On May 7, 2007, seventeen months after his arrest and nine days before trial would have commenced, the defendant filed a motion for a speedy trial, along with a motion to dismiss. This factor militates against the defendant’s claim. “The failure to assert the right, while not constituting a waiver, does make it difficult for the defendant to prove that he was denied a speedy trial.” State v. Lacks, supra, 58 Conn. App. 419. While it should be noted that the defendant, on June 26, 2006, complained to the court that his lawyer had not yet filed a motion for a speedy trial, such a motion at that time would not have been ripe. Likewise, because the defendant’s trial commenced within thirty days of filing his motion for a speedy trial, his assertion of his right to a speedy trial is afforded little weight in the Barker balancing test.

D

The final Barker factor, prejudice to the defendant, is the linchpin of the speedy trial claim. Id. “[Ujnlike the right to counsel or the right to be free from compelled self-incrimination, deprivation of the right to speedy trial does not per se prejudice the accused’s ability to defend himself. . . . The right to a speedy trial is designed (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. ... In Barker . . . the court noted that of the three interests served by the right to speedy trial, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” (Citations omitted; internal quotation marks omitted.) State v. Rodriguez, supra, 47 Conn. App. 102-103.

Here, the defendant argues solely that the delay resulted in a breakdown of the attorney-client relationship. At the hearing on his motion to dismiss, the defendant stated that he did not feel comfortable with his attorney’s representation and, most notably, voiced his belief that public defenders are paid a commission to “plead out” their clients. At no point did the defendant offer any testimony that would indicate the delay itself was the cause of friction between himself and his attorney, other than the vague claim that he had requested his attorney to “do certain things for [him] and [he] wouldn’t do them.” On the basis of the evidence presented, we are not persuaded that the delay prejudiced the defendant’s relationship with his attorney.

On the basis of our consideration of the four Barker factors, we conclude that the defendant was not denied his constitutional right to a speedy trial. The court properly denied his motion to dismiss.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 2005) § 53a-101 (a) provides in relevant part: “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and: (1) He is armed with ... a deadly weapon or dangerous instrument . . . .”

       General Statutes (Rev. to 2005) § 53a-102 (a) provides in relevant part: “A person is guilty of burglary in the second degree when such person (1) enters or remains unlawfully in a dwelling at night with intent to commit a crime therein . . . .”

       General Statutes § 53a-103 (a) provides: “A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.”

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he . . . (3) uses or threatens the use of a dangerous instrument . . . .”

       General Statutes § 54-82m, titled, “Rules re speedy trial to be adopted by judges of Superior Court effective July 1,1985,” provides: “In accordance with the provisions of section 51-14, the judges of the superior court shall make such rales as they deem necessary to provide a procedure to assure a speedy trial for any person charged with a criminal offense on or after July 1, 1985. Such rules shall provide that (1) in any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of a criminal offense shall commence within twelve months from the filing date of the information or indictment or from the date of the arrest, whichever is later, except that when such defendant is incarcerated in a correctional institution of this state pending such trial and is not subject to the provisions of section 54-82c, the trial of such defendant shall commence within eight months from the filing date of the information or indictment or from the date of arrest, whichever is later; and (2) if a defendant is not brought to trial within the time limit set forth in subdivision (1) of this section and a trial is not commenced 'within thirty days of a motion for a speedy trial made by the defendant at any time after such time limit has passed, the information or indictment shall be dismissed. Such rules shall include provisions to indentify periods of delay caused by the action of the defendant, or the defendant’s inability to stand trial, to be excluded in computing the time limits set forth in subdivision (1) of this section.”

       Practice Book § 43-39 provides in relevant part: “(c) Except as otherwise provided herein and in Section 43-40, the trial of a defendant charged with a criminal offense on or after July 1, 1985, shall commence within twelve months from the filing of the information or from the date of the arrest, whichever is later.
      “(d) The trial of such defendant shall commence within eight months from the filing of the information or from the date of the arrest, whichever is later, if the following conditions are met:
      “(1) the defendant has been continuously incarcerated in a correctional institution of this state pending trial for such offense; and
      “(2) the defendant is not subject to the provisions of General Statutes § 54-82c. . . .”
      Practice Book § 43-40 provides in relevant part: “The following periods of time shall be excluded in computing the time within which the trial of a defendant charged by information with a criminal offense must commence pursuant to Section 43-39:

        “(1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to . . .
      “(D) the time between the commencement of the hearing on any pretrial motion and the issuance of a ruling on such motion . . .
      “(2) Any period of delay resulting from the absence or unavailability of the defendant, counsel for the defendant, or any essential witness for the prosecution or defense. . . .
      “(7) The period of delay resulting from a continuance granted by the judicial authority at the personal request of the defendant. ...”
      Practice Book § 43-41 provides: “If the defendant is not brought to trial within the applicable time limit set forth in Sections 43-39 and 43-40, and, absent good cause shown, a trial is not commenced within thirty days of the filing of a motion for speedy trial by the defendant at any time after such time limit has passed, the information shall be dismissed with prejudice, on motion of the defendant filed after the expiration of such thirty day period. For the purpose of this section, good cause consists of any one of the reasons for delay set forth in Section 43-40. When good cause for delay exists, the trial shall commence as soon as is reasonably possible. Failure of the defendant to file a motion to dismiss prior to the commencement of trial shall constitute a waiver of the right to dismissal under these rules.”

       The defendant claims that it is the practice of the Hartford Superior Court to toll the speedy trial clock until after a plea offer is rejected. The defendant argues that the speedy trial clock did not begin to run until June 29, 2006; however, the court rejected this claim. There is nothing in the record to indicate that the speedy trial clock did not begin at the defendant’s arraignment, on December 27, 2005.

       For much of this time, the defendant’s attorney was unavailable because he was trying a capital murder case. See Practice Book § 43-40 (2).

       See State v. Brown, 242 Conn. 389, 404, 699 A.2d 943 (1997) (“[A]n incarcerated defendant must be brought to trial within eight months, plus any excludable time calculated under the rules promulgated by the judges of the Superior Court, of his arrest or the filing of an information, whichever is later. Once that time has passed, he may then file a motion for a speedy trial.” [Emphasis added.]). It is not until the defendant actually files a timely motion for a speedy trial that the thirty day clock begins. See footnote 6, quoting Practice Book § 43-41.

       We further reject the defendant’s claim that § 54-82m contains a demand-waiver provision that effectively infringes his constitutional right to a speedy trial. Rather, the defendant’s statutory right to a speedy trial is encompassed within his constitutional right to a speedy trial. Even when a defendant fails to make a timely statutoiy speedy trial claim, he certainly is not precluded from bringing a constitutional speedy trial claim. See State v. McKenzieAdams, 281 Conn. 486, 509, 915 A.2d 822 (state governments may choose to afford defendants higher level than provided by federal constitution), cert. denied, 552 U.S. 888, 128 S. Ct. 248, 169 L. Ed. 2d 148 (2007).

       Trial was originally set for April 23, 2007, before a judge trial referee. The defendant chose not to consent to trial before a referee, so the trial date was changed to May 16, 2007. Trial was again delayed when the defendant filed a motion to dismiss on May 7, 2007.

       The court properly concluded that the time spent considering the defendant’s motion to dismiss was excludable for purposes of the thirty day requirement. See State v. Brown, 242 Conn. 389, 405, 699 A.2d 943 (1997) (holding that neither statute nor rules of practice preclude court’s power to suspend running of thirty day period for reasonable time to avoid unworkable results).


author: FLYNN, C. J.

text:
    JOHN A. CURRAN III, ADMINISTRATOR (ESTATE OF LEEANN CURRAN), ET AL. v. SHERRY L. KROLL ET AL.
    (AC 29792)
    Flynn, C. J., and Harper and Hennessy, Js.

      Argued September 10
    officially released December 15, 2009

      Kathleen L. Nastri, with whom was Cynthia C. Bott, for the appellant (substitute plaintiff).

      Michael G. Rigg, with whom were Donna R. Zito, and, on the brief, Stephen V. Manning, for the appellees (named defendant et al.).
   Opinion

FLYNN, C. J.

The substitute plaintiff, Ryan P. Curran (Ryan), the successor administrator of the estate of Leeann Curran (decedent), appeals from the judgment of the trial court directing a verdict in this medical malpractice case in favor of the defendants, Sherry L. Kroll, a physician, and the Medical Center of Northeast Connecticut, LLP, Kroll’s medical office. On appeal, the plaintiff claims that the court improperly granted the defendants’ motion for a directed verdict after concluding that there was no evidence that Dr. Kroll breached the standard of care in her treatment of the decedent. We reverse the judgment of the trial court.

The following facts and inferences, construed in the light most favorable to the plaintiff, reasonably are taken from the record. See Levesque v. Bristol Hospital, Inc., 286 Conn. 234, 253, 943 A.2d 430 (2008). The decedent died on June 8, 2002, as a result of blood clots in her lungs that likely originated in her left thigh, traveled through her venous system and her heart and lodged in her lungs. The official cause of her death was determined to be bilateral pulmonary emboli caused by deep vein thrombosis.

On May 6, 2002, approximately one month before her death, the decedent, a forty-five year old woman, attended a scheduled office visit with her primary care physician, Dr. Kroll, at which time the decedent complained of menopausal symptoms, including mood swings, hot flashes, dysmenorrhea (painful periods), and menometrorrhagia (irregular and heavy periods). To help alleviate those symptoms, Dr. Kroll prescribed Desogen, an oral contraceptive or birth control pill, which was dispensed to the decedent in one of its generic forms, Apii, by her pharmacy. Both medications substantially are the same. Near the end of May, the decedent told her mother, Kathy Stilwell, that she “felt terrible” and did not want to continue taking the pills because she was feeling worse than before she started taking them. The decedent also told Stilwell that she had telephoned Dr. Kroll about this, but the doctor told her to continue on the medication, which she did. Dr. Kroll’s office had no record of the decedent having made this telephone call, however. At some point in time after the decedent’s May 6, 2002 office visit, the defendants lost or misplaced her medical chart, which later was re-created, in part, from a computer file in preparation for trial. Writings, such as some handwritten notations from Dr. Kroll, the decedent’s self-prepared patient information sheet, reports from other doctors, handwritten notations from nurses or assistants in Dr. Kroll’s office and other items, however, could not be reproduced and were lost. Dr. Kroll did testify, however, that it was her practice to dictate the results of a patient’s examination and her recommendations, which then were stored electronically.

On June 6, 2002, the decedent and Stilwell attended a meeting together. The decedent had considerable leg pain, however, and had to leave the meeting because of her discomfort. The decedent had no idea what was causing her pain. Although she went to work the next day, she had to leave work early due to continuing, significant leg pain. She speculated to Stilwell that perhaps she had done something to herself such as pull a muscle, but “she truly had no idea what was wrong with her.” The decedent also told her husband that she had pain in her groin and that she could not figure out why. She speculated to him that perhaps she had pulled a muscle. She continued to complain about the pain through the evening of June 7, 2002. She and her husband were babysitting their two grandchildren that weekend. During the night, the decedent’s son, Ryan, heard her grunting in pain as the decedent’s husband helped her get from their bedroom down the stairs. She was continuing to experience leg pain. Ryan asked if they needed help, but the decedent’s husband declined, explaining that he was taking the decedent downstairs so that she could elevate her leg. The decedent stayed on the couch because of the pain. Ryan left for work at approximately 4 a.m. and kissed the decedent goodbye as she lay on the couch. The decedent reassured him that she was okay.

At approximately 6 a.m. on the morning of June 8, 2002, the decedent’s seven year old granddaughter woke the decedent’s husband to tell him that the decedent had fallen; the granddaughter was quite upset. The decedent had fallen and hit her head in the bathroom. Her husband helped the decedent get onto the couch, and he telephoned 911. The decedent complained to her husband that she was unable to breathe. The Plainfield fire department responded quickly, as did the Canterbury fire department. Members thereof began providing assistance to the decedent, but she lost consciousness and stopped breathing. They continued in their attempts to revive her while she was taken by

ambulance to a hospital. The decedent never regained consciousness. The cause of the decedent’s death was bilateral pulmonary emboli caused by deep vein thrombosis.

In his third amended complaint, the plaintiff alleged a claim of medical malpractice against the defendants, claiming that Dr. Kroll was negligent in failing to advise the decedent of the risks of her recommended treatment of birth control pills and in failing to inform the decedent of the signs and symptoms associated with such risks. The parties agreed that the standard of care requires a treating physician to provide such warnings and instruction to a patient. After the plaintiff presented his evidence, the defendants moved for a directed verdict. Because the defendants’ medical expert, Peter Schnatz, a board certified internist and obstetrician-gynecologist, was available to testify only on February 28, 2008, the court permitted his testimony before hearing the motion for a directed verdict. Following argument on the motion, the court concluded that there was no evidence that Dr. Kroll had breached the standard of care and that a failure to warn claim could not be based solely on an inference that might be drawn from the decedent’s failure to seek help. Accordingly, the court directed a verdict in favor of the defendants and rendered judgment accordingly. This appeal followed.

The plaintiff claims that the court improperly granted the defendants’ motion for a directed verdict and that the case should have stayed in the hands of the jury. The defendants argue that the court properly directed a verdict because the plaintiff failed to establish a “prima facie case that Dr. Kroll failed to advise the decedent of the appropriate signs and symptoms and risks associated with taking oral contraceptives.” We agree with the plaintiff.

Initially, we set forth the legal principles that govern our review of the plaintiffs claim. “The standards for appellate review of a directed verdict are well settled. Directed verdicts are not favored. ... A trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion. ... In reviewing the trial court’s decision to direct a verdict in favor of a defendant we must consider the evidence in the light most favorable to the plaintiff. . . . Although it is the jury’s right to draw logical deductions and make reasonable inferences from the facts proven ... it may not resort to mere conjecture and speculation. ... A directed verdict is justified if . . . the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party.” (Internal quotation marks omitted.) Levesque v. Bristol Hospital, Inc., supra, 286 Conn. 253. “A verdict may be directed . . . where the claim is that there is insufficient evidence to sustain a favorable verdict.” (Internal quotation marks omitted.) Beale v. Yale-New Haven Hospital, 89 Conn. App. 556, 566, 874 A.2d 259 (2005).

“Negligence involves the violation of a legal duty [that] one owes to another, in respect to care for the safety of the person or property of that other.” Sharkey v. Skilton, 83 Conn. 503, 508, 77 A. 950 (1910). The “essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury.” (Internal quotation marks omitted.) Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 687 n.13, 849 A.2d 813 (2004). “[W]hether the plaintiff has established a prima facie case is a question of law, over which our review is plenary.” (Internal quotation marks omitted.) John H. Kolb & Sons, Inc. v. G & L Execavating, Inc., 76 Conn. App. 599, 605, 821 A.2d 774, cert. denied, 264 Conn. 919, 828 A.2d 617 (2003).

In this case, in which the court directed a verdict after concluding that the plaintiff had failed to provide any evidence, either direct or circumstantial, from which the jury reasonably could have concluded that Dr. Kroll had breached the standard of care by failing to advise the decedent of the signs and symptoms associated with the risks of birth control pills, we need only determine whether the court properly concluded that such evidence was absent from the case. We agree that there was no direct evidence that Dr. Kroll breached the standard of care; this was so because the person who could have provided such evidence was dead. We disagree, however, that there was no circumstantial evidence that could have led to a reasonable inference if the jury had chosen to credit such evidence. “[T]here is no distinction between direct and circumstantial evidence [so] far as probative force is concerned .... In fact, circumstantial evidence may be more certain, satisfying and persuasive than direct evidence.” (Internal quotation marks omitted.) Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 834, 955 A.2d 15 (2008). After thoroughly reviewing the record, we conclude that there was evidence to support a reasonable inference that Dr. Kroll had not advised the decedent in accordance with the proper standard of care.

Unlike Aristotelian and Thomistic logic, law does not demand metaphysical certainty in its proofs. In law, we recognize three principal proofs: beyond a reasonable doubt, which is the very high burden in a criminal case; clear and convincing evidence, required to prove fraud and certain other claims, which equates to a very high probability; and preponderance of the evidence, applied to civil claims generally, which means it is more probable than not. None of these varying proofs require absolute certainty.

To meet one’s burden of proof, evidence is necessary. This evidence comes in two forms, direct and circumstantial. “The basic distinction between direct and circumstantial evidence is that in the former instance the witnesses testify directly of their own knowledge as to the main facts to be proved, while in the latter case proof is given of facts and circumstances from which the jury may infer other connected facts which reasonably follow, according to common experience.” 29 Am. Jur. 2d 329, Evidence § 313 (1994). “Proof of a fact by the use of circumstantial evidence usually involves a two-step process. A fact is first established by direct evidence, which is ordinarily eyewitness or other direct testimony. That direct evidence can serve as a basis from which the jury infers another fact. Thus, the direct evidence may operate as circumstantial evidence from which a fact is inferred by the jury.” State v. Sullivan, 11 Conn. App. 80, 97, 525 A.2d 1353 (1987), citing State v. Rome, 64 Conn. 329, 334, 30 A. 57 (1894). “When the necessity to resort to circumstantial evidence arises either from the nature of the inquiry or the failure of direct proof, considerable latitude is allowed in its reception.” 29 Am. Jur. 2d 331, Evidence § 315 (2008).

“An inference is a factual conclusion that can rationally be drawn from other facts. If fact A rationally supports the conclusion that fact B is also true, then B may be inferred from A. The process of drawing inferences based on a rough assessment of probabilities is what makes indirect or circumstantial evidence relevant at trial. If the inference (fact B from fact A) is strong enough, then fact A is relevant to prove fact B. Inferences are by their nature permissive, not mandatory: although the fact proved rationally supports the conclusion the offering party hopes will be inferred, the factfinder is free to accept or reject the inference.” (Emphasis in original.) 1C. Fishman, Jones on Evidence (1992) § 4:1, pp. 299-300; see also D. Faulkner & S. Graves, Connecticut Trial Evidence Notebook (2d Ed. 2008 Rev.) 1-14. Much has been written about the jury’s ability to draw inferences, but, as explained by Professor McCormick, “in few areas of the law have so many words been spoken by the courts with so little conviction.” 2 C. McCormick, Evidence (5th Ed. 1999) § 338, p. 418.

Just because a jury could, but is not required to, draw an inference does not mean that it is resorting to speculation. “Inferences are based on common experience and probability. Reasonable inferences permit the jury to find the inferred fact without direct proof of that fact. Direct evidence of a fact or facts will often give rise to circumstance evidence of other fact or facts. Such inferences, if reasonable, permit the fact finder to find the inferred fact without direct proof of that fact. C. Tait & E. Prescott, Connecticut Evidence (4th Ed. 2008) § 3.12.3” (a), p. 123.

“A trier is entitled to draw all reasonable and logical inferences based on the facts proved. . . . Inferences should be based on probabilities, not possibilities, surmise, or conjecture. ... To state a truism, the only kind of inference the law recognizes is a reasonable one. . . . Connecticut does not subscribe to the oft-repeated rule that an inference cannot be based on an inference. Successive inferences are permissible if justified by the facts. . . . Thus, one inference can be founded upon facts whose determination is the result of other inferences. . . . The only question is whether the successive inferences are rationally justified by the facts.” (Citations omitted.) Id.,§ 4.3.1, p. 139; see State v. Crafts, 226 Conn. 237, 245, 627 A.2d 877 (1993) (“ [t] here is, in fact, no rule of law that forbids the resting of one inference upon facts whose determination is the result of other inferences” [internal quotation marks omitted]).

The following additional facts are relevant to our analysis. Dr. Kroll prescribed an oral contraceptive or birth control pill to the decedent on May 6, 2002, to help alleviate menopausal symptoms. Dr. Kroll testified that her training included information about the risks and side effects of birth control pills. She further testified that the risks of “blood clots are associated with the older formulations of birth control pills. The newer [formulation] of pills were designed specifically to try to reduce the risk. So, the data that is available is unclear to the degree that the risk was still present.” She then acknowledged that “one of the risks associated with birth control pills can be blood clots,” but she also stated that she did not know if that same risk was associated with Desogen because the studies citing an increased risk were based on the older formulations of birth control pills.

Despite stating that she did not know if the risks were associated with Desogen, Dr. Kroll later testified that she “[definitely” would have advised the decedent of the risk associated with Desogen and deep vein thrombosis and that she also would have discussed with the decedent all side effects and the symptoms associated therewith before prescribing the medication. The decedent’s patient file, which was a computer generated file created to replace the file lost by the defendants, had no indication that Dr. Kroll had given an advisement to the decedent or the content of such an advisement, despite Dr. Kroll’s testimony that it was her practice to dictate the results of a patient’s examination and her recommendations, which then were stored electronically. Nevertheless, Dr. Kroll testified that she told the decedent and all her patients for whom she prescribed birth control pills that there is an increased risk of blood clots, that blood clots are potentially life threatening, and that the symptoms of blood clots are pain, as a result of leg swelling, and redness. Counsel for the plaintiff then pointed out to Dr. Kroll that when Dr. Kroll was questioned in a deposition on March 2, 2005, she had never mentioned telling the decedent to watch for pain but only that she should watch for swelling; Dr. Kroll then stated that she stood by her deposition testimony. Counsel for the plaintiff then asked: “And standing by your deposition, doctor, would mean that when you counsel the patient about warning signs, the warning sign that you counsel is swelling. Right?” Dr. Kroll answered: “Swelling. Yes.” Dr. Kroll also stated that she would expect a patient, who has been properly counseled by her physician, to seek medical treatment when symptoms develop.

The plaintiffs expert, Kenneth R. Ackerman, a board certified physician in internal medicine, testified that patients “put on birth control pills . . . have a statistically increased risk of forming blood clots.” He also stated that his opinion would not change on the basis of the name of the birth control pill, whether it was Desogen, Apri or some other formulation. Dr. Ackerman also stated that “[a]n internist would expect that a reasonable patient, who has been advised properly, will recognize the appropriate side effects of the medication . . . and receive medical attention . . . should those symptoms or signs appear.”

The deposition testimony of the decedent’s husband was read for the jury. In relevant part, her husband had testified that the decedent had told him that she had pain in her groin but that she could not figure out why. She speculated to him that perhaps she had pulled a muscle. Stilwell, the decedent’s mother, testified at trial that the decedent told her when she started taking the prescribed birth control pills and that the decedent also told her that she telephoned Dr. Kroll’s office near the end of May because she was not feeling well taking the medication, and she wanted to stop but that Dr. Kroll asked her to continue taking it. She further testified that she and the decedent attended a meeting the Thursday evening before the decedent died but that the decedent had to leave the meeting because she was experiencing considerable leg pain of an unknown cause. Further, Stilwell testified that the decedent went to work the following day but had to leave work early because of significant and continued leg pain. The decedent then speculated to Stilwell that maybe she had pulled a muscle; Stilwell said that the decedent “truly had no idea what was wrong with her.”

In this case, the court directed a verdict on the ground that a failure to warn claim could not be based solely on an inference drawn from the decedent’s failure to seek help. Although we agree with such a statement, we conclude that there was other evidence from which such an inference reasonably could have been drawn. “[T]he line between permissible inference and impermissible speculation is not always easy to discern. When we infer, we derive a conclusion from proven facts because such considerations as experience, or history, or science have demonstrated that there is a likely correlation between those facts and the conclusion. If that correlation is sufficiently compelling, the inference is reasonable. But if the con-elation between the facts and the conclusion is slight, or if a different conclusion is more closely correlated with the facts than the chosen conclusion, the inference is less reasonable. At some point, the link between the facts and the conclusion becomes so tenuous that we call it speculation. When that point is reached is, frankly, a matter of judgment.” (Internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 93, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004).

Viewing the evidence in the light most favorable to the plaintiff, we conclude the jury reasonably could have found that the decedent did not seek help from the medical community because she had no idea what was the cause of her severe leg pain; such an inference would have been reasonable in this case because the decedent had told her husband that she could not figure out why she was experiencing pain in her groin, and she had expressed to her mother that she had no idea what was the cause of her pain, and further, this puzzlement occurred one month after her office visit with Dr. Kroll. The jury could have inferred that the reason the decedent had no idea what was the cause of her leg pain was because Dr. Kroll had not informed her adequately of the risks associated with birth control pills and had not explained fully the signs and symptoms associated with such risks, especially that the use of the pill increased the possibility of blood clots, that blood clots could be life threatening and that severe leg pain was a symptom associated with blood clots, which must be dealt with immediately. See State v. Crafts, supra, 226 Conn. 245 (“[t]here is, in fact, no rule of law that forbids the resting of one inference upon facts whose determination is the result of other inferences” [internal quotation marks omitted]). The jury also could have drawn an inference from the absence of a statement in the computer generated patient file indicating that Dr. Kroll had provided such information to the decedent, namely, that no such advice had been given about the side effects.

We also find two decisions from other states to be informative to our analysis in the present case. In Healy v. Langdon, 245 Neb. 1, 511 N.W.2d 498 (1994), the plaintiff, James Healy, acting as the administrator of his deceased wife’s estate, commenced an action against a physician, asserting that the physician had failed to inform the decedent that death was a possible side effect of chemotherapy. Both sides agreed as to the standard of care and that such warning was necessary. Id., 8. The physician moved for summary judgment and submitted an affidavit attesting that he had given the decedent the proper warning. Id., 7-8. The plaintiff, however, offered his own affidavit, which stated that he had attended all of the decedent’s office visits with the physician and that the physician had not informed the decedent that death was a potential side effect of the chemotherapy. Id., 8-9. The record also had contained a form from the physician’s file that was entitled “ ‘Consent to Chemotherapy,’ ” which was signed by the decedent. Id. Although many side effects were listed on this form, death was not listed as a possible side effect. Id. The court explained: “For purposes of summary judgment, the affidavit presented by [the plaintiff] raises the question that [the decedent] was never warned that death could result from the chemotherapy. . . . The consent form raises a similar inference. These inferences directly conflict with the evidence presented by [the physician]. Such a conflict signals the presence of a genuine issue of material fact; the relative credibility of [the plaintiff and the physician] is a question which can only be resolved by a jury.” Id. The Nebraska Supreme Court then reversed the trial court’s rendering of summary judgment and remanded the case for further proceedings. Id.

The present case is distinguishable from Healy because no one was with the decedent and Dr. Kroll during their office visit. Nevertheless, we conclude that the cases are similar enough; evidence that the decedent stated to others, one month after her office visit with Dr. Kroll, that she had no idea what could be the cause of her severe leg pain, combined with the lack of a statement in the medical file that the doctor had provided the necessary warnings to the decedent, could have provided a sufficient basis for the jury to have drawn a reasonable inference that Dr. Kroll had not provided the decedent with the necessary warnings and instructions.

In Wozniak v. Lipoff, 242 Kan. 583, 750 P.2d 971 (1988), a medical malpractice action brought on behalf of the survivors of the decedent, who suffered from Graves’ disease, the plaintiffs alleged that the decedent’s physician had been negligent in several ways, all leading to the decedent’s suicide. One of the specifications of negligence alleged that the physician had failed to formulate and communicate a definitive treatment plan to the decedent. Id., 588. The standard of care required that “the disease, with its complications, treatments, and side effects, be carefully explained to the patient.” Id., 588. The physician testified that he had discussed these things with the decedent, and a member of his office staff testified that she saw the physician reading a pamphlet about the disease. Id., 588-89. Despite this testimony, the medical record contained no notation that such an explanation had been given to the decedent. On appeal, the Kansas Supreme Court concluded that because there was a conflict in the evidence, a directed verdict was inappropriate. Id., 589.

In the present case, the evidence, viewed in the light most favorable to the plaintiff, reasonably could have led the jury to find that Dr. Kroll prescribed the birth control pill to the decedent slightly more than four weeks before the decedent’s death, and that Dr. Kroll made no notation that she had given the decedent a proper warning of the risks and the signs and symptoms associated with such risks. Further, the jury could have found that the decedent experienced feelings of ill

health shortly after beginning the pills and that she telephoned Dr. Kroll’s office about this but was told to continue taking the pills. A short time later, when the decedent experienced severe leg pain over the course of a couple of days, she had no idea what was the cause of that pain. Additionally, the jury could have found that persons generally seek to follow instructions of a medical nature concerning the serious symptoms associated with the side effects of medication. These findings could have led the jury to the reasonable inference that Dr. Kroll, four weeks before the decedent’s death, had not discussed the signs and symptoms associated with the risks of birth control pills adequately with the decedent, because, if she had discussed them adequately, the decedent would have known that this might be the cause of her pain. The decedent’s complete lack of knowledge and puzzlement as to the cause of her pain, combined with other evidence, reasonably could have led the jury to the inference that the decedent had not been informed adequately by Dr. Kroll. Accordingly, we conclude that the court should not have directed a verdict in favor of the defendants but should have given the jury the opportunity to weigh this evidence and decide the issue.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       During the pendency of the lawsuit, the plaintiff John A. Curran III, the husband of Leeann Curran, died, and Ryan P. Curran, their son, was substituted as the administrator of Leeann Curran’s estate. We refer in this opinion to the substitute plaintiff, Ryan P. Curran, as the plaintiff.
      In addition to Kroll and the Medical Center of Northeast Connecticut, LLP, other defendants were named in the complaint, but the action was withdrawn as to them prior to trial. We therefore refer in this opinion to Kroll and the Medical Center of Northeast Connecticut, LLP, as the defendants.

       A deep vein thrombosis is a “blood clot in the deep [vein] system of the legs,” which occurs primarily in the thigh and the calf. If one of the clots breaks off from the vein where it has formed and travels through the venous system, through the heart, lodging in the pulmonary artery, it causes what is known as a pulmonary embolism, or a blood clot in the lung. “Bilateral pulmonary emboli” refers to blood clots in both lungs.

       “The function of the burden of proof employed by the court is to allocate] the risk of error between the litigants and indicate] the relative importance of the ultimate decision. . . . For example, the proof beyond a reasonable doubt standard implies that the party on whom that burden is imposed should bear almost the entire risk of error. . . . Proof by clear and convincing evidence is an intermediate standard generally used in civil cases involving allegations of fraud or some other quasi-criminal wrongdoing, or when particularly important individual rights are involved. . . . The preponderance of the evidence standard indicates that the litigants should share equally the risk of error . . . because the interests at stake have roughly equal societal importance.” (Citations omitted; internal quotation marks omitted.) State v. Davis, 229 Conn. 285, 293-94, 641 A.2d 370 (1994).

       “Connecticut has adopted a ‘dead man’s statute,’ which provides that in actions by or against the representative of deceased persons, the entries, memoranda and declarations of the deceased relevant to the matter at issue may be received as evidence.” J. Lagnese, C. Anderson & F. Santoro, Connecticut Medical Malpractice (2007) § 17-6, p. 143; see General Statutes § 52-172.

       In addition to the testimony on this issue, such a finding could be based on the same rationale that justifies the introduction of statements made for the purpose of obtaining medical treatment, namely that the patient has an interest in preserving her own health. See Conn. Code Evid. § 8-3 (5).