author: Borden, J.

text:
    Mary LeConche et al. v. Kenneth W. Elligers et al.
    (13925)
    (13926)
    Peters, C. J., Glass, Covello, Hull and Borden, Js.
    Argued May 8
    decision released July 24, 1990

      Patrick Tomasiewicz, with whom, on the brief, were Benjamin M. Massa, Joseph E. Fazzano and David A. Dee, for the appellants (plaintiffs).

      Lois Tanzer, with whom, on the brief, was Tracey C. Kammerer, for the appellees in the first case (named defendant et al.).

      Louis B. Blumenfeld, with whom, was William J. Scully, for the appellee in the first case (defendant St. Francis Hospital and Medical Center).

      Cynthia A. Jaworski and Michael D. Neubert, with whom was Elizabeth K. McLaughlin, for the appellees in the second case (defendant John T. DeMaio et al.).

      William F. Gallagher and Cynthia C. Bott filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.
   Borden, J.

In these consolidated appeals, the plaintiffs appeal from the judgment of the trial court dismissing for lack of subject matter jurisdiction their medical malpractice complaint against the defendants, Kenneth W. Elligers, Carey Ann Reber, John T. DeMaio, Brendan M. Fox, Hartford Urology Group (urology group), and St. Francis Hospital and Medical Center (hospital). The dispositive issue is whether a certificate of good faith belief of negligence, as required by General Statutes (Rev. to 1987) § 52-190a is a subject matter jurisdictional requirement for a malpractice action against a health provider. We conclude that it is not, and we reverse the judgment of the trial court.

In July, 1988, the plaintiffs brought an action against the defendants, claiming negligence and breach of contract arising out of a course of medical treatment that occurred between October 16,1986, and November 1, 1986. Their complaint failed to contain a certificate stating that they or their attorney had made a reasonable inquiry giving rise to a good faith belief that grounds existed for such an action against each defendant. Each defendant moved to dismiss the complaint for lack of subject matter jurisdiction, on the sole ground that the plaintiffs had failed to file such a certificate of good faith. In response to the motions to dismiss, the plaintiffs moved to amend their complaint to include a certificate by their attorney that he had made a reasonable inquiry to determine whether there were grounds for a good faith belief of negligence in the named plaintiffs treatment, and that he had such a good faith belief.

The motions to dismiss addressed only the plaintiffs’ failure to file a good faith certificate with or as part of their complaint and not the sufficiency of the plaintiffs’ inquiry preceding the filing of their action. The court, however, addressed both issues. In its memorandum of decision, the court held that the statutory requirements of both a precomplaint inquiry and a certificate of good faith were subject matter jurisdictional requirements. Accordingly, the court denied the motion to amend and granted the motions to dismiss. The plaintiffs filed two separate appeals 6to the Appellate Court, and we transferred the appeals to this court pursuant to Practice Book § 4023.

The plaintiffs claim that the trial court should not have dismissed their complaint because: (1) General Statutes (Rev. to 1987) § 52-190a (a), in effect at the time of the named plaintiffs course of treatment, was repealed by Public Acts 1987, No. 87-227, § 9, and that the effect of that legislation was to postpone until October 1,1987, the statutory requirements of a reasonable precomplaint inquiry and good faith certificate; (2) the lack of a good faith certificate contained in the complaint did not deprive the court of subject matter jurisdiction; and (3) the court should have permitted the plaintiffs’ proposed amendment. We disagree with the plaintiffs’ first claim, but agree with their latter two claims.

I

The plaintiffs first claim that the trial court improperly dismissed their complaint because General Statutes (Rev. to 1987) § 52-190a was repealed in 1987 and replaced by Public Acts 1987, No. 87-227, § 9, and that this legislation eliminated the requirements of a precomplaint inquiry and good faith certificate for actions based on injuries occurring prior to October 1, 1987. This claim is without merit.

The precomplaint inquiry and good faith certificate requirements for a medical malpractice action were enacted as part of tort reform legislation in 1986. The first sentence of § 12 (a) of Public Acts 1986, No. 86-338, effective October 1,1986, provided: “No action, accruing on or after the effective date of this act, shall be filed to recover damages for personal injury or wrongful death, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant.” The second sentence provided: “The complaint or initial pleading shall contain a certificate, on a form prescribed by the rules of the superior court, of the attorney or party filing the action that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant.” Section 12 was later codified as General Statutes (Rev. to 1987) § 52-190a.

In 1987, the legislature enacted § 9 of Public Acts 1987, No. 87-227, effective October 1,1987, which provided in pertinent part: “Section 52-190a of the General Statutes is repealed and the following is substituted in lieu thereof: (a) No CIVIL action[, accruing on or after October 1, 1986,] shall be filed to recover damages [for] RESULTING FROM personal injury or wrongful death OCCURRING ON OR AFTER THE EFFECTIVE DATE OF THIS ACT, whether in tort or in contract,” unless such an inquiry has been made. The rest of § 52-190a, including the second sentence, remained unchanged by this public act, which is now codified as General Statutes (Rev. to 1989) § 52-190a.

The plaintiffs argue that the “repeal” of General Statutes (Rev. to 1987) § 52-190a effected by the 1987 public act postponed the application of the precomplaint inquiry and good faith certificate requirements to injuries occurring on or after October 1, 1987. They contend, therefore, that the requirements did not apply to their claim for injuries, which occurred before that date.

The short answer to this claim is that Public Acts 1987, No. 87-227, § 9, did not repeal General Statutes (Rev. to 1987) § 52-190a, but amended it, effective October 1,1987, by eliminating the bracketed language and adding the capitalized language. See General Statutes § 2-18; State v. Blasko, 202 Conn. 541, 554, 522 A.2d 753 (1987); State v. Kozlowski, 199 Conn. 667, 679 n.10, 509 A.2d 20 (1986). The use in the 1987 public act of the words “repeal” and “substituted in lieu thereof” simply reflected the legislature’s drafting convention of amending statutes by “ ‘casting] acts which alter language within existing statutory subsections in the form of repeal and substitution.’ ” State v. Blasko, supra, quoting State v. Kozlowski, supra, 675. The legislative history of the 1987 public act buttresses this conclusion. That history makes clear that the legislature intended to amend the statute with respect to actions for injuries occurring on or after October 1,1987, and to continue the application of the 1986 public act to actions that occurred on or after October 1,1986, but before October 1, 1987. See 30 S. Proe., Pt. 6, 1987 Sess., p. 1969, remarks of Senator Thomas F. Upson; 30 H.R. Proc., Pt. 16,1987 Sess., pp. 5686-87, remarks of Representatives Robert Farr and Richard D. Tulisano. Thus, the provisions of No. 86-338, § 12, of the 1986 Public Acts; General Statutes (Rev. to 1987) § 52-190a; continued to apply to the plaintiffs.

II

The plaintiffs next claim that (1) the trial court had subject matter jurisdiction over the plaintiffs’ action, notwithstanding that the complaint did not contain a good faith certificate, and (2) the court, therefore, should not have dismissed their motion to amend the complaint by adding to it their attorney’s proposed good faith certificate. They argue that, in enacting § 52-190a, the legislature did not intend to make the good faith certificate a jurisdictional requirement. We agree.

Although the defendants’ motions to dismiss relied solely on the lack of a good faith certificate, the trial court held that both the certificate and a reasonable precomplaint inquiry were subject matter jurisdictional requirements under § 52-190a, and the parties have argued this appeal accordingly. The trial court’s finding that there was no reasonable precomplaint inquiry, however, was based solely on its examination of the plaintiffs’ proposed certificate. The court made no further factual inquiry into the extent of the plaintiffs’ precomplaint investigation, nor was it requested to do so by the defendants.

The statute, however, clearly requires a factual inquiry by the court regarding the sufficiency of the precomplaint investigation. That inquiry is to be undertaken after the completion of discovery. See footnote 2, supra. The existence of a report by a medical expert may be, but is not necessarily, sufficient to establish the plaintiffs’ good faith belief. “For purposes of this section, such good faith may be shown to exist if the claimant or his attorney has received a written opinion ... of a similar health care provider as defined in section 52-184c . . . that there appears to be evidence of medical negligence. In addition to such written opinion, the court may consider other factors with regard to the existence of good faith.” General Statutes § 52-190a (a).

Thus, the statute permitted the plaintiffs in this case to establish a reasonable precomplaint inquiry by reference to factors beyond the certificate evidencing their good faith, and beyond any written expert opinion they may have secured. Since the court based its finding of a lack of a reasonable precomplaint inquiry on an unduly limited factual inquiry and record, it would be premature to consider whether that statutory requirement is subject matter jurisdictional. We leave that issue for another day.

We turn, therefore, to the issue of whether the good faith certificate is jurisdictional. We conclude that it is not. “Subject matter jurisdiction is the power of the court to hear and determine cases of the general class to which the proceedings in question belong.” Shea v. First Federal Savings & Loan Assn. of New Haven, 184 Conn. 285, 288, 439 A.2d 997 (1981). We begin with the premise that traditionally the Superior Court has had subject matter jurisdiction of a common law medical malpractice action. The issue presented, therefore, is whether the legislature intended § 52-190a to create an additional subject matter jurisdictional requirement of a good faith certificate in such a case. That determination must be informed by the established principle that every presumption is to be indulged in favor of jurisdiction. Demar v. Open Space & Conservation Commission, 211 Conn. 416, 425, 559 A.2d 1103 (1989).

First, the language of § 52-190a, considered in light of its purposes, does not suggest that such a certificate is jurisdictional. The first sentence of the statute requires that the plaintiff or his attorney make “a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant.” The second sentence, the effect of which is at issue here, provides: “The complaint or initial pleading shall contain a certificate, on a form prescribed by the rules of the superior court, of the attorney or party filing the action that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant.”

Although the operative sentence of § 52-190a provides that the “complaint or initial pleading shall contain” (emphasis added) a good faith certificate, and although “shall” has often been held to be mandatory; see, e.g., Farricielli v. Personnel Appeals Board, 186 Conn. 198, 202-203, 440 A.2d 286 (1982); contrary to the defendants’ argument, its use in this section does not mandate that such a certificate is jurisdictional. The test for determining whether the use of the word “shall” is mandatory or directory is “whether the prescribed mode of action is of the essence of the thing to be accomplished.” Vartuli v. Sotire, 192 Conn. 353, 360, 472 A.2d 336 (1984). That test must be applied with reference to the purpose of the statute. See id.

We agree with the defendants that the general purpose of § 52-190a is to discourage the filing of baseless lawsuits against health care providers. We disagree, however, that the good faith certificate is so central to that purpose that it is “of the essence of the thing to be accomplished.” Id.

The purpose of the certificate is to evidence a plaintiffs good faith derived from the precomplaint inquiry. It serves as an assurance to a defendant that a plaintiff has in fact made a reasonable precomplaint inquiry giving him a good faith belief in the defendant’s negligence. In light of that purpose, the lack of a certificate does not defeat what would otherwise be valid jurisdiction in the court. The purpose is just as well served by viewing the statutory requirement that the complaint contain a good faith certificate as a pleading necessity akin to an essential allegation to support a cause of action. Viewed through that prism, the absence from the complaint of the statutorily required good faith certificate renders the complaint subject to a motion to strike pursuant to Practice Book § 152 (l) for failure to state a claim upon which relief can be granted, and to render that absence curable by timely amendment pursuant to Practice Book §§ 157 and 175.

Second, although § 52-190a (a) does not address the consequences of a failure to file a certificate, it does address the consequences of filing of what is later deemed to be a false certificate. The statute provides: “If the court determines after the completion of discovery, that such certificate was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court upon motion or upon its own initiative, shall impose upon the person who signed such certificate, a represented party or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney’s fee. The court may also submit the matter to the appropriate authority for disciplinary review of the attorney if the claimant’s attorney submitted the certificate.”

Assuming without deciding that “an appropriate sanction” for filing a false certificate includes dismissal, it is clear that such a dismissal would be discretionary, rather than required due to lack of subject matter jurisdiction. Compare Connecticut Ins. Guaranty Assn. v. Raymark Corporation, 215 Conn. 224, 229, 575 A.2d 693 (1990) (failure to comply with Practice Book § 390 [d] requires dismissal for lack of subject matter jurisdiction), with England v. Coventry, 183 Conn. 362, 365-66, 439 A.2d 372 (1981) (Practice Book § 390 [c] authorizes discretionary power in trial court to dismiss a declaratory judgment action where it determines that parties should be left to other form of procedure). The filing of a false certificate that represents that a reasonable precomplaint inquiry was made, where in fact it was not, presents a more compelling scenario for dismissal than the present case. Here, the plaintiffs have merely failed to file a certificate but are prepared to do so and to establish that they have in fact made a sufficient precomplaint inquiry. It would be incongruous to read § 52-190a as providing subject matter jurisdiction in the former case but depriving the court of such jurisdiction in the latter. Statutes are to be read as contemplating sensible, not bizarre, results. Stamford Ridgeway Associates v. Board of Representatives, 214 Conn. 407, 427, 572 A.2d 951 (1990).

Finally, recent legislative action in another area counsels caution about reading statutory requirements as jurisdictional. Prior to 1989, under General Statutes § 4-183 of the Uniform Administrative Procedure Act (UAPA), certain procedural infirmities had been held to deprive the court of subject matter jurisdiction to hear an administrative appeal. See, e.g., Basilicato v. Department of Public Utility Control, 197 Conn. 320, 324, 497 A.2d 48 (1985) (failure to serve party to administrative proceeding deprives court of subject matter jurisdiction); see also Tarnopol v. Connecticut Siting Council, 212 Conn. 157, 162-63, 561 A.2d 931 (1989); Rogers v. Commission on Human Rights & Opportunities, 195 Conn. 543, 550, 489 A.2d 368 (1985) (failure to serve other parties to administrative proceeding with copy of appeal within statutory time limit deprives court of jurisdiction). In 1988, the legislature enacted Public Acts 1988, No. 88-317, § 23 (c), effective July 1, 1989, amending § 4-183 of the UAPA to provide that such infirmities do not deprive the court of jurisdiction. See General Statutes (Rev. to 1989) § 4-183 (c) (failure to make timely service on parties other than agency does not deprive court of jurisdiction); General Statutes (Rev. to 1989) § 4-183 (d) (if failure to make service causes prejudice to any party, court may dismiss the appeal); General Statutes (Rev. to 1989) § 4-183 (e) (if service not made on party, court shall make orders of notice of appeal reasonably calculated to notify each party not yet served). We regard this legislative overruling of judicial decisions in that area as an expression of legislative, policy consistent with the judicial tenet that the court should indulge every presumption in favor of subject matter jurisdiction. See Demar v. Open Space & Conservation Commission, supra.

This conclusion is in accord with appellate cases in New York, Florida and Illinois that have addressed the failure of medical malpractice plaintiffs to file good faith certificates required by statutes similar to ours. See, e.g., Nash v. Humana Sun Bay Community Hospital, 526 So. 2d 1036, 1039 (Fla. App. 1988) (requirement of good faith certificate not jurisdictional); McCastle v. Sheinkop, 121 Ill. 2d 188, 193, 520 N.E.2d 293 (1987) (failure to file attorney’s affidavit does not require dismissal with prejudice); Sisario v. Amsterdam Memorial Hospital, 146 App. Div. 2d 837, 838, 536 N.Y.S.2d 242 (1989) (failure to file a certificate not jurisdictional in nature).

The defendants argue, relying principally on Lampasona v. Jacobs, 209 Conn. 724, 729-31, 553 A.2d 175, cert. denied, 492 U.S. 919, 109 S. Ct. 3244, 106 L. Ed. 2d 590 (1989), and the cases cited therein, that the good faith certificate is a mandatory condition precedent to the plaintiffs’ cause of action, and its absence was, therefore, a subject matter jurisdictional flaw. We disagree. In Lampasona, the issue was whether the general summary process statute; General Statutes § 47a-23; or the mobile home summary process statute; General Statutes § 21-80; applied to the defendant, who was the owner of a mobile home in the plaintiff’s park. Id., 730. We held that a notice to quit was a jurisdictional condition precedent under both statutes. Id., 729. That decision was based on previous case law concerning summary process cases; see id., 728, citing Sandrew v. Pequot Drug, Inc., 4 Conn. App. 627, 631, 495 A.2d 1127 (1985); O’Keefe v. Atlantic Refining Co., 132 Conn. 613, 622, 46 A.2d 343 (1946); and cases interpreting certain statutory time limitation and notice requirements. See Lampasona v. Jacobs, supra, 729, citing Tucker v. Maher, 192 Conn. 460, 469, 472 A.2d 1261 (1984) (notice of declaratory judgment action to parties affected by the action); Connecticut Steel Co. v. National Amusements, Inc., 166 Conn. 255, 262-63, 348 A.2d 658 (1974) (action to foreclose mechanic’s lien must be brought within statutory time limit or court lacks jurisdiction); Glenn Chaffer, Inc. v. Kennedy, 37 Conn. Sup. 654, 658, 433 A.2d 1018 (1981) (notice of condominium conversion is jurisdictional prerequisite to summary process action).

Those cases are distinguishable. The cases involving summary process, and the case involving foreclosure of a mechanic’s lien, were statutory actions where the court construed certain statutory requirements as jurisdictional in nature. Furthermore, in the declaratory judgment action, notice to affected parties was considered to be jurisdictional because it implicated the due process right to be heard. Tucker v. Maher, supra. In none of those cases did the court confront the issue, present in this case, of whether the legislature intended to engraft an additional jurisdictional requirement onto a common law action that was traditionally within the court’s jurisdiction.

This analysis also leads to the conclusion that the trial court should have permitted the plaintiffs to amend their complaint by filing a certificate, because the court had subject matter jurisdiction and because its denial of the motion to amend was based on a perceived lack thereof. Furthermore, although the proffered certificate did not specifically indicate that the plaintiffs had made a precomplaint inquiry, it did not preclude a finding that such an inquiry had been conducted. See footnote 3, supra. Pleadings should be read broadly and realistically, and not narrowly and technically. Beaudoin v. Town Oil Co., 207 Conn. 575, 588, 542 A.2d 1124 (1988). Thus, the plaintiffs were entitled to amend their complaint, as they sought to do, and to establish pursuant to their amended complaint that they conducted an appropriate precomplaint inquiry.

The judgments are reversed and the case is remanded to the trial court with direction to grant the plaintiffs’ motion to amend their complaint, and for further proceedings according to law.

In this opinion the other justices concurred.

       The plaintiffs are Mary LeConche, and her husband, Charles LeConche, who sought damages for medical expenses and loss of consortium.

       General Statutes (Rev. to 1987) § 52-190a provided as follows: “prior REASONABLE INQUIRY AND CERTIFICATE OF GOOD FAITH REQUIRED IN NEGLIGENCE ACTION AGAINST HEALTH CARE PROVIDER, (a) No action, accruing on or after October 1,1986, shall be filed to recover damages for personal injury or wrongful death, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint or initial pleading shall contain a certificate, on a form prescribed by the rules of the superior court, of the attorney or party filing the action that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant. For purposes of this section, such good faith may be shown to exist if the claimant or his attorney has received a written opinion, which shall not be subject to discovery by any party except for questioning the validity of the certificate, of a similar health care provider as defined in section 52-184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence. In addition to such written opinion, the court may consider other factors with regard to the existence of good faith. If the court determines after the completion of discovery, that such certificate was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court upon motion or upon its own initiative, shall impose upon the person who signed such certificate, a represented party or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney’s fee. The court may also submit the matter to the appropriate authority for disciplinary review of the attorney if the claimant’s attorney submitted the certificate.
      “(b) Upon petition to the clerk of the court where the action will be filed, an automatic ninety-day extension of the statute of limitations shall be granted to allow the reasonable inquiry required by subsection (a) of this section. This period shall be in addition to other tolling periods.”

       The proposed certificate, dated February 3,1989, signed by the plaintiffs’ attorney, stated: “I hereby certify that I have made a reasonable inquiry, as permitted by the circumstances, to determine whether there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. This inquiry has given rise to a good faith belief on my part that grounds exist for an action against each named defendant.”

       Although the court in its memorandum of decision did not formally deny the motion to amend, it implicitly denied it by concluding that the proposed certificate was ineffective to cure the perceived lack of subject matter jurisdiction. Thereafter, on October 16,1989, the court rectified the record by orally denying the motion to amend.

       The two appeals arise from the following procedural morass. Each of the six defendants filed essentially identical motions to dismiss, challenging the court’s subject matter jurisdiction. On February 21,1989, the court heard the motions to dismiss of the defendants Elligers, Reber and the hospital, and, on May 10,1989, issued a memorandum of decision granting the “defendants’ motion to dismiss” (emphasis added) without specifying that only the motions of Elligers, Reber and the hospital were granted. The clerk then rendered a partial judgment, erroneously naming the defendants Fox and the urology group as the beneficiaries of the court’s ruling. The plaintiffs then filed the first appeal, Docket No. 13925, from that judgment, mistakenly naming all of the defendants as appellees. Subsequently, the court corrected the record to reflect that it had only granted the motions of Elligers, Reber and the hospital. Thereafter, on October 16, 1989, the court granted the motions to dismiss of the remaining defendants, namely, DeMaio, Fox and the urology group. At that point, therefore, the complaint was dismissed as against all of the defendants. From that judgment the plaintiffs filed the second appeal, Docket No. 13926, naming DeMaio, Fox and the urology group as appellees. Thereafter, we consolidated the two appeals, and consider them together as raising the same issues with respect to all of the parties.

       This conclusion renders it unnecessary to consider the arguments of the defendants that the 1987 public act was meant simply to clarify its 1986 progenitor and thus to have full retroactive effect; see State v. Magnano, 204 Conn. 259, 284, 528 A.2d 760 (1987); and that the defendants had vested rights in the application of the 1986 version of the statute.

       The plaintiffs in their brief argued that neither the precomplaint inquiry nor the good faith certificate is a jurisdictional requirement. At oral argument in this court, however, they conceded that a reasonable precomplaint inquiry is a subject matter jurisdictional requirement. We are not bound by that concession, however; see State v. Heinz, 193 Conn. 612, 616, 480 A.2d 452 (1984); and we decline to adopt it because it is not necessary to the decision in this case.

       In this connection, we note that the record contains a copy of a medical report from a physician to the plaintiffs’ attorney that the plaintiffs claim establishes the sufficiency of their precomplaint inquiry. Although it is not clear when the plaintiffs brought this report to the attention of the trial court, they referred to it in oral argument to the trial court on October 16, 1989, when the court considered the motions to dismiss of the second group of defendants. See footnote 5, supra. The transcript of that proceeding discloses that the court read the report, and it was subsequently made part of the record on appeal. It is clear, however, from the court’s memorandum of decision, filed on May 10,1989, that the court did not consider the report in dismissing the complaint.

       Practice Book § 152 (1) provides: “[motion TO STRIKE]-in GENERAL
      “Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted

       Practice Book § 157 provides: “[motion to strike]—substitute PLEADING; JUDGMENT
      “Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading; provided that in those instances where an entire complaint, counterclaim or cross complaint has been stricken, and the party whose pleading has been so stricken fails to file a new pleading within that fifteen-day period, the court may upon motion enter judgment against said party on said stricken complaint, counterclaim or cross complaint.”
      Practice Book § 175 provides: “[amendments]—amendment as of RIGHT BY PLAINTIFF
      “The plaintiff may amend any defect, mistake or informality in the writ, complaint or petition and insert new counts in the complaint, which might have been originally inserted therein, without costs, during the first thirty days after the return day.”


source: Caselaw Access Project

author: Glass, J.

license: Public Domain

text:
    State of Connecticut v. Thomas E. Marra, Jr.
    (13537)
    Peters, C. J., Shea, Glass, Covello and Hull, Js.

      Argued May 4
    decision released July 24, 1990

      Timothy P. Pothin, with whom were Frank J. Riccio and, on the brief, Jonathan J. Einhorn, for the appellant (defendant).

      RichardF. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Robert Lacobelle, assistant state’s attorney, for the appellee (state).
   Glass, J.

The charges against the defendant, Thomas E. Marra, Jr., arose in connection with a series of events surrounding the disappearance of Richard Noel on January 23,1984. The state charged the defendant in December, 1987, with one count of conspiracy to commit kidnapping in the first degree in violation of General Statutes §§ 53a-48 and 53a-92 (a) (2) (A), two counts of attempted kidnapping in the first degree in violation of General Statutes §§ 53a-49 and 53a-92, one count of arson in the second degree in violation of General Statutes § 53a-112 (a) (1) (B),* * two counts of larceny in the second degree in violation of General Statutes § 53a-123 (a) (l), and one count of accessory to kidnapping in the first degree in violation of General Statutes §§ 53a-8 6and 53a-92 (a) (2) (A). The jury subsequently found the defendant guilty on all counts, and he was sentenced to a total effective term of sixty-five years imprisonment. We affirm the judgment of the trial court.

On appeal, the defendant claims that the trial court improperly: (1) denied his motion for judgment of acquittal on the charge of accessory to kidnapping in the first degree because the evidence was insufficient to support the verdict; (2) denied his motion for a mistrial when allegedly prejudicial radio, television and newspaper publicity during the trial deprived him of a fair trial; (3) permitted the state’s rebuttal witness, who had a past history of psychological problems, to testify despite the defendant’s inability to obtain his medical or psychological records, thereby denying the defendant an opportunity to cross-examine the witness effectively; (4) denied his motion for a mistrial when the court clerk read previously redacted portions of a warrant affidavit referring to pending murder charges against him and thus deprived him of a fair trial; and (5) allowed the state to introduce prejudicial evidence of his uncharged larcenous misconduct, when two of the charges for which he was on trial involved thefts.

The jury could reasonably have found the following facts. Sometime during 1981, the defendant began selling stolen automobiles to J. W. Ownby, who lived in Kansas City, Missouri. The defendant’s job was to deliver the stolen autos to New York City, where Ownby would pick them up and drive them back to Kansas City. In 1982, the defendant introduced Noel, the victim, to Ownby. When Ownby became too ill, the defendant hired Noel to drive stolen autos to Ownby in Kansas City.

Ownby and Noel proceeded to develop a friendly relationship. When Ownby and the defendant argued over the manner in which Noel would be paid, Ownby opted to pay Noel himself, rather than honor the defendant’s request that Ownby pay the defendant, and allow the defendant to remit part of the payment to Noel. In the summer of 1983, Ownby began dealing directly with Noel. Shortly thereafter, Ownby terminated almost all of his dealings with the defendant, and began dealing primarily with Noel. The defendant was “aggravated” with the situation, and his relationships with Ownby and Noel subsequently deteriorated.

In the meantime, the police had begun investigating auto theft in the Bridgeport area, and the defendant became a subject of that investigation in April, 1983. The police informed the defendant in October, 1983, that he was a subject of their investigation. During the remaining months of 1983, the police conducted continuous, visible surveillance operations outside the defendant’s home so that the defendant was made aware that the police were watching him. In November, 1983, Noel implicated the defendant in statements to the police, and the defendant later became aware of Noel’s conversations with the police.

Near the end of 1983, the defendant asked Frank Spetrino to steal a van for him, specifically requesting a van with no windows. Spetrino then stole a blue van for the defendant on December 21,1983. On the same night, Spetrino called the defendant to arrange for delivery of and payment for the van. Spetrino and the defendant then went to James Kallman’s apartment at Pallisade Avenue in Bridgeport. There, they met Kallman, Nicky Byers, Shawn Burns and Paul Lentine. The defendant asked Spetrino to help him and the others force Noel into the van. The defendant had previously offered to pay Byers several hundred dollars to hit Noel over the head with an axe handle and drag him into the van. Byers, Spetrino, Kallman, Bums and Len-tine, carrying guns and other weapons, rode in the van to 141 French Street in Bridgeport, the location of Noel’s apartment, while the defendant followed in his own car. Spetrino noticed that the van contained a fifty gallon drum that had not been in the van at the time he had stolen it. The group parked outside Noel’s apartment, near his car, and waited approximately one hour for him to appear. When Noel failed to appear, the group abandoned the plan and disbanded.

On or about the same day, all of these men went to Robin O’Neill’s apartment on Charles Street in Bridgeport. They used the blue van for transportation, and carried guns and other weapons. Kallman, in accordance with a scheme concocted by the defendant, gave O’Neill cocaine and asked her to use the drugs to entice Noel out of the Shamrock Pub, a nearby nightclub. The plan, again engineered by the defendant, was to knock Noel out when he entered the apartment, drag him through the back door of the apartment and throw him into the van. The defendant drove O’Neill to the Shamrock Pub, and when she returned alone, the defendant sent Alex Palmieri into the pub to find Noel. Palmieri was also unsuccessful, and this plan was also abandoned. Later, on January 12,1984, Burns burned the blue van.

Subsequently, the defendant asked Spetrino to steal another van for him, and on January 21,1984, Spetrino stole a van that was two-toned in color, white on the top and green or aqua on the bottom. That same evening, Spetrino parked the van, and called the defendant to inform him of the van’s location. The next day, Spetrino noticed that the van was gone. On January 22, 1984, Ownby called the defendant from a hotel in Bridgeport, and asked the defendant to pick him up and drive him to a motel in Fairfield. The defendant picked up Ownby and a Hispanic man named Julio after 9 p.m., and drove them to a motel in Fairfield. During the drive, Ownby indicated to the defendant that after that night, there would be no more problems with Noel.

Early the following morning, on January 23, 1984, Margaret Vias awoke at approximately 2 a.m. to the sound of a male voice, coming from outside, screaming: “No, no!” Vias lived on the second floor of the apartment building at 141 French Street, the same building where Noel lived. Looking out of her window, Vias observed two white men near the doors of the building, quickly carrying the limp body of another man by his arms and legs down the sidewalk towards a van parked in front of the building. The two men tossed the other man into the van, which Vias described as yellow, at least ten years old, with a sliding door on the passenger side. A third person, according to Vias, accompanied the two men. Later that morning, Vias went outside and observed a large puddle of blood near the door of the building, a clump of dark brown hair near the puddle, blood splattered from the puddle over to the place where the van had been parked, and a set of keys.

At approximately 3 a.m. on January 23, 1984, the same morning that Vias viewed the scene from her window, the defendant received a call from Ownby, who requested that the defendant pick him up, help him dispose of a van and drive him to the airport. The defendant picked up Ownby and Julio, and drove them to a restaurant in Stratford. In the restaurant parking lot, the defendant saw a green and white van, and asked Ownby whether Noel’s body was in the van. Ownby replied: “We already took care of it.” The defendant then looked into the van, and observed a large quantity of blood on its floor, door and sides. Followed by Ownby and Julio in the van, the defendant next drove to a factory on Lordship Boulevard in Stratford, stopping along the way to purchase a container full of gasoline. Ownby told the defendant that the van had to be destroyed because it was used in the murder of Noel. The defendant then doused the inside of the van with gasoline, and Julio ignited the van. The police discovered the burning van behind the factory at 5:22 a.m.

After the van was in flames, Ownby asked the defendant to drive him to Union Square dock in Stratford, indicating that he wanted to make sure that the container or barrel went down. The defendant drove Ownby and Julio to the dock, and parked on the ramp with his high beams illuminating the ice below. Ownby got out of the car, and pointed to a drum on the ice, indicating that Noel’s body was in the drum. Ownby then broke the ice below the drum, and the drum sank. When he got back into the car, Ownby told the defendant that “there would be no more problems with Richie [Noel].” The defendant then drove Ownby and Julio to a limousine service in Norwalk, where Ownby and Julio arranged for transportation to the airport.

On January 24, the next day, the defendant called a Stratford garage, identified himself as the manager of a Bridgeport limousine service where Noel was employed, and requested that the garage tow the limousine that Noel drove. The defendant then drove by Noel’s house and noticed that the limousine was gone. Three days later, the defendant called another Stratford garage, identified himself as Noel, and requested that the garage tow Noel’s personal car. The defendant also, at some point, asked Spetrino to break into Noel’s apartment and mailbox for the specified purpose of taking Noel’s personal papers and mail, especially bank mail. Spetrino entered Noel’s apartment and mailbox on several occasions, and stole a bank envelope, other mail and personal papers belonging to Noel, all of which he delivered to the defendant. The defendant also called Nusite Realty Company, the owner of Noel’s apartment building, identified himself as Noel, and obtained keys to Noel’s apartment.

In mid-February of 1984, the defendant gave Tamara Thiel ten dollars, and directed her to open a bank account in the name of Marjorie Shea, Thiel’s aunt. The defendant brought Thiel to his home on or about February 23, 1984, showed her Noel’s driver’s license, and told her to forge Noel’s signature on a check in the amount of $4500, payable to the order of Marjorie Shea. The defendant, wearing gloves, wiped off the check with a towel and placed it in an envelope. The check was presented for deposit in the Shea account on February 27, 1984. Two days after Thiel opened the Shea account, the defendant directed Thiel to call the bank where Noel’s account was located, claim she was Noel’s fiancee, and state that she needed to withdraw money for Noel, who was in Kansas City. The bank, however, refused to release the money.

On or about February 24, 1984, Thiel forged a second check at the defendant’s direction. The second check, in the amount of $700, was made payable to Nusite Realty Company. Nusite had previously received a telephone call by a male caller who identified himself as Noel, stated that he was in Kansas City and that he would forward a check covering two months rent. Nusite’s manager received the forged rent check in an envelope bearing a return address in Kansas City, and deposited it on March 5, 1984. Since Noel’s bank had by this time begun to suspect that someone was tampering with his checks, the check was returned. The bank then closed Noel’s account on March 8,1984. Subsequently, the bank returned two additional checks drawn on Noel’s account that had been made payable to Marjorie Shea. The bank determined that none of these checks had been signed by Noel. Furthermore, on or about March 27,1984, acting with the belief that Noel was dead, the defendant filed a lawsuit to collect on a promissory note in the amount of $18,000, on which Noel appeared as the maker, and the defendant as the payee. The suit resulted in a judgment in favor of the defendant.

I

The defendant’s first claim is that the state’s evidence was insufficient to support a guilty verdict on the charge of accessory to kidnapping in the first degree, and therefore the trial court should not have denied his motion for judgment of acquittal. We disagree.

“When a verdict is challenged because of insufficient evidence, the issue is whether ‘ “ ‘the jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.’ ” ’ State v. Braxton, 196 Conn. 685, 691, 495 A.2d 273 (1985), quoting (State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984). Appellate analysis of a claim of insufficiency of the evidence requires us to undertake a twofold task: We must first review the evidence construing it in the light most favorable to sustaining the trial court’s verdict. State v. Williams, 205 Conn. 456, 468, 534 A.2d 230 (1987); State v. Vincent, 194 Conn. 198, 206, 479 A.2d 237 (1984); State v. D’Antuono, 186 Conn. 414, 421, 441 A.2d 846 (1982); State v. Perez, 102 Conn. 603, 606, 438 A.2d 1149 (1981). ‘ “ ‘We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt .... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.’ ” ’ State v. Plourde, 208 Conn. 455, 458, 545 A.2d 1071 (1988), quoting (State v. Rollinson, 203 Conn. 641, 665-66, 526 A.2d 1283 (1987), and cases cited therein.” State v. Avis, 209 Conn. 290, 308-309, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989).

The defendant’s challenge to the sufficiency of the evidence in this case is a limited one. He claims only that the state failed to adduce evidence sufficient to prove beyond a reasonable doubt that Noel was in fact abducted, and that the defendant actually aided in the abduction of Noel. Having charged the defendant with accessory to kidnapping in the first degree in violation of General Statutes §§ 53a-92 (a) (2) (A) and 53a-8, it was the state’s burden to prove each of these elements beyond a reasonable doubt. General Statutes § 53a-91 (2) defines, in part, the parameters of the state’s burden with respect to the element of abduction, providing that the word “abduct” means “to restrain a person with the intent to prevent his liberation by either (a) secreting or holding him in a place where he is not likely to be found, or (b) using or threatening to use physical force or intimidation.” This definition is clarified by § 53a-91 (l), which provides in pertinent part that the phrase “to restrain” means “to restrict a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by moving him from one place to another.” As for the defendant’s actual role in Noel’s abduction, the state was required under § 53a-8 to prove that the defendant “intentionally aide[d] another person” to commit the crime of kidnapping in the first degree. Construing the evidence adduced at trial in the light most favorable to sustaining the jury’s verdict, we believe that the jury could reasonably have concluded that such evidence, albeit primarily circumstantial, established beyond a reasonable doubt that Noel was in fact abducted, and that the defendant actually aided in that abduction.

To prove that Noel was in fact abducted, the state established at trial that he resided in an apartment building located at 141 French Street in Bridgeport. Eyewitness testimony further established that at approximately 2 a.m. on January 23,1984, and within a time span of ten seconds, a male screamed and was physically carried by the arms and legs from that same apartment building and thrown into a waiting van. The defendant himself stated in an interview, admitted into evidence, that Ownby claimed to have murdered Noel the same morning, and indicated to him that Noel’s body was in a drum that eventually sank beneath the icy waters at Union Square dock in Stratford. From this evidence, coupled with the fact that Noel was reported missing by his mother on March 10,1984, and that he has not been seen or heard from since January 23, 1984, we conclude that the jury could reasonably have inferred that the man who was physically moved from Noel’s residence to the waiting van was in fact Noel.

Moreover, we cannot say that the jury could not reasonably have inferred, in light of the sheer volume of circumstantial evidence adduced at trial, that the defendant actually aided in the abduction of Noel. Testimony by Spetrino established that he stole a green and white van at the defendant’s request on January 21,1984. The defendant was informed on that date of the van’s location, and the van was moved from that location by January 22,1984. From this evidence, the jury could reasonably have inferred that the defendant procured a green and white van from Spetrino, and was in possession of that van on January 22,1984, the day before Noel was abducted. The fact that an eyewitness described the van used in Noel’s abduction as yellow is not a fatal flaw in the state’s evidence. The jury could reasonably have inferred that the green and white van was actually used to kidnap Noel, and that the witness merely mistook the van’s color for yellow, or that the lighting conditions at 2 a.m. distorted the witness’s perception of the van’s color. Furthermore, the witness’s description of the van used in the kidnapping, aside from its color, coincided with the green and white van in several pertinent respects, such as its approximate age, physical condition, and physical attributes including the presence of a sliding door on the passenger side. Consequently, it was reasonable for the jury to infer that the green and white van was actually used in the kidnapping of Noel.

It was also reasonable for the jury to conclude that the defendant supplied the green and white van to Ownby as the means to transport Noel. The defendant’s testimony that Ownby, Noel’s kidnapper, did not arrive in Connecticut until 7 p.m. on January 22,1984, supports such an inference, and this inference is strengthened by: (1) the defendant’s admitted participation in the destruction of the green and white van, which evidenced his consciousness of guilt; (2) his towing of Noel’s business and personal cars; and (3) his attempt to pay Noel’s rent. Of even greater significance, however, were the defendant’s two prior attempts to kidnap Noel in a manner strikingly similar to that of Noel’s actual kidnapping. In each of the attempts, the defendant directed various assistants to hit Noel in the head, drag him out of an apartment building, and throw him into a waiting van stolen by Spetrino. This scenario is virtually identical to the one observed by the eyewitness to the kidnapping of Noel. From the similarity of the attempts to the kidnapping, it was reasonable for the jury to infer that the defendant’s role in the kidnapping was at least to supply the van to the actual kidnapper, who then accomplished what the defendant himself had attempted to do at an earlier date. We cannot say, therefore, that the jury could not reasonably have inferred that the defendant actually aided in the kidnapping of Noel.

II

The defendant next claims that the trial court should have granted his motion for a mistrial alleging that inflammatory radio, television and newspaper publicity during his trial deprived him of a fair trial. He maintains that the trial court should have found the publicity so inherently prejudicial as to create a presumption of prejudice on the part of the jury. The publicity claimed to be prejudicial focused on a scuba diving operation conducted in Stratford by the Bridgeport police, and designed to uncover evidence related to the disappearance of Noel, as well as other associates of the defendant. Apparently, divers discovered a partial skeleton and pieces of a metal barrel. Accounts of the discovery and the circumstances surrounding the defendant’s case were released over a period of three days by the Bridgeport Telegram, the Bridgeport Post, WICC radio in Bridgeport, WTNH channel 8 television in New Haven and Cablevision 12 in Fairfield. In support of his motion for a mistrial, the defendant proffered evidence of such accounts including six newspaper articles, transcripts of seventeen short radio broadcasts, and two videotapes of televised news segments.

The trial court responded to the defendant’s motion for a mistrial by questioning the jurors as to whether they had been exposed to any news accounts concerning the case. Two jurors admitted to having heard radio broadcasts discussing the case. The court further questioned these two jurors out of the presence of the other jurors, and excused one juror, who revealed that he believed that the defendant was guilty as a result of hearing the broadcast. The second juror, having heard only part of a broadcast, was permitted to remain on the jury after explaining that he had promptly turned off the radio, had not formed any opinion as a result of hearing the broadcast, and believed that he could decide the case on the basis of the evidence presented in the courtroom. Although the court offered defense counsel an opportunity to question this juror, counsel declined. The trial court then denied the defendant’s motion for a mistrial.

The defendant contends that inherent prejudice grew from the media’s speculations that the newly discovered evidence directly linked him to the disappearances of Noel, and a second associate, and also to the murder of a third associate, Alex Palmieri, with respect to whom a murder charge was then pending against the defendant. The defendant claims that the media reports therefore connected him “at least implicitly to three possible murders.” Further, the defendant argues that inherent prejudice stemmed from the media’s references to his prior convictions. He concludes that the effect of such publicity was “to make a spectacle of the trial.”

At the outset, we note that “[a] motion for a mistrial is granted only where it is apparent to the court that some occurrence during the trial has deprived a party of the opportunity for a fair trial.” State v. Cruz, 212 Conn. 351, 364, 562 A.2d 1071 (1989). “The trial court’s exercise of its broad discretion to determine whether a motion for a mistrial should be granted will be reversed on appeal only if that discretion has been abused.” Id. “ ‘ “The general rule is that on appeal a defendant has the burden of proving actual jury prejudice if a conviction is to be reversed on grounds of prejudicial publicity . . . . ” ’ ” State v. Miller, 202 Conn. 463, 477, 522 A.2d 249 (1987), quoting State v. Marra, 195 Conn. 421, 428, 489 A.2d 350 (1985).

Nonetheless, “there is no need to show actual prejudice in the jury box ‘in extreme circumstances where there has been inherently prejudicial publicity such as to make the possibility of prejudice highly likely or almost unavoidable. See Estes v. Texas, 381 U.S. 532, 542-43, 85 S. Ct. 1628, 14 L. Ed. 2d 543, reh. denied, 382 U.S. 875, 86 S. Ct. 18, 15 L. Ed. 2d 118 (1965).’ Calley v. Callaway, 519 F.2d 184, 204 (5th Cir.), cert. denied sub nom. Calley v. Hoffman, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 [1976].” State v. Piskorski, 177 Conn. 677, 686, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). Our decision in Piskorski extensively analyzed those United States Supreme Court cases in which prejudice was presumed. Id., 686-89; see Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966); Estes v. Texas, supra; Rideau v. Louisiana, 373 U.S. 723, 83 S. Ct. 1417, 10 L. Ed. 2d 663 (1963). In this case, however, unlike the cases discussed in Piskorski, both the nature and the extent of the publicity claimed to be prejudicial by the defendant fail to rise to the level where prejudice may be presumed.

The extent of the publicity in this case, though released by all segments of the media, was limited in duration to a three day period. The defendant has made no showing, moreover, that the press, in gathering its information, disrupted the courtroom such that “the trial proceedings were conducted in an atmosphere ‘utterly corrupted by press coverage.’ ” State v. Miller, supra, 478, quoting Murphy v. Florida, 421 U.S. 794, 798, 95 S. Ct. 2031, 44 L. Ed. 2d 589 (1975); see Sheppard v. Maxwell, supra, 336-38. It is also significant that only two jurors were exposed to the publicity, and that the trial court immediately excused and replaced the juror who had admitted prejudice from the exposure. To prevent further media exposure, the trial court repeatedly admonished the jury not to read, listen to, or watch accounts of the trial. The trial court was entitled to assume, as do we, that the jurors followed its instructions. State v. Vitale, 190 Conn. 219, 230, 460 A.2d 961 (1983).

As for the nature of the publicity, it was primarily repetitive and factual, and only a few accounts speculated on the connection between the newly uncovered evidence and the defendant’s involvement in other crimes. The publicity cannot be characterized as inflammatory, sensationalized or unfair. See State v. Piskorski, supra, 689. Only a single account referred to the defendant as “the convicted head of a stolen car ring,” and whatever prejudice was engendered by this reference was rendered moot by the defendant’s own testimony at trial regarding his involvement in an extensive stolen car network and his numerous convictions resulting therefrom. See State v. Marra, supra, 430. Consequently, we conclude that the publicity in this case was not so inherently prejudicial as to deprive the defendant of a fair trial, and therefore the trial court properly denied the defendant’s motion for a mistrial.

Ill

Next, the defendant claims that the trial court denied him the opportunity to cross-examine Ownby effectively by permitting Ownby to testify for the state in rebuttal despite the defendant’s inability to obtain his medical or psychological records. Although Ownby’s name was on the state’s witness list since the beginning of the trial, the defendant claimed that he had been unable to locate Ownby to secure his consent for release of the records, and that he had not attempted to subpoena the records because, he maintained, a subpoena would have been ineffective. After the state presented to the trial court an authorization for release of the records signed by Ownby, and the court ascertained that it would take approximately three weeks to obtain the records, and that the records might not be released despite Ownby’s consent, the trial court permitted the defense counsel to voir dire Ownby and to inquire into his psychiatric history on cross-examination. The defendant did not formally object to the trial court’s ruling, but argued his claim of inadmissibility to the court and was granted an exception. Cross-examination revealed that Ownby had been diagnosed as a paranoid schizophrenic, and had been found incompetent four times and hospitalized for mental disorders five times since 1962.

The state now argues that because the defendant did not formally object to the trial court’s ruling, he failed to preserve the issue for appellate review. The defendant maintains that the issue was properly preserved, and alternatively that he is entitled to review under the principles set forth in State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). We need not reach the preliminary question of whether the defendant properly preserved the issue for review, or whether he is entitled to Evans review, however, because the defendant has failed to fulfill his duty to provide this court with an adequate record for review. See Practice Book § 4061; State v. Snook, 210 Conn. 244, 256, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989). Almost two years have elapsed between the date that Ownby signed an authorization for release of the records and the date that the defendant’s appeal was scheduled for hearing, and yet the defendant has not produced the records, nor has he made any showing to this court that he attempted to obtain the records, or that such an attempt would have been unsuccessful. Without examining the records, we cannot assess whether the defendant’s constitutional right to confrontation was impaired by his inability to gain access to the records. We therefore decline to review this claim further.

IV

The defendant also argues that the trial court should have granted his motion for a mistrial because of the court clerk’s reading of previously redacted portions of a warrant affidavit referring to murder charges pending against him that allegedly resulted in denying him a fair trial. The affidavit read by the clerk contained an excerpt of a letter written by the defendant to Kallman, in which the defendant wrote that “they are going to charge me with four murders.” Initially, the state offered the full warrant into evidence, and then amended its offer to include only four paragraphs of the warrant affidavit, one of which contained the above quoted excerpt of the defendant’s letter, with the references to the murder charges redacted. Defense counsel objected to the state’s limited offer, and stated that “on recross, with the permission of [the defendant] who is aware of the full content of the application for search and seizure warrant, I will offer the entire version including those references to four murders and anything else pertaining to the entire investigation that [the police officer] originally put into that application and—because I don’t want to have to call him back for purposes of additional testimony in view of his military commitments. ... I discussed the matter with [the defendant] and I believe he is in accord with that, what my effort will be to get the entire affidavit into evidence.” Over the defendant’s objection, the court admitted only the four paragraphs of the affidavit into evidence. The clerk, however, inadvertently failed to redact the affidavit properly, and the original excerpt of the defendant’s letter referring to four murder charges was read to the jury.

The defendant immediately moved for a mistrial, stating that he moved for such “notwithstanding the trial strategy that [he had] demonstrated to the Court that [he] was about to embark upon . . . .” After denying the defendant’s motion, the court promptly instructed the jury as follows: “[Disregard any mention of the word murder or charges of murder. ... Do not pay any heed to those words. . . . We are not concerned in this case whatever with any charges other than the charges on which there is evidence in this courtroom and the charges against [the] defendant.” Although the defendant took no exception to the trial court’s instruction, he now contends that the trial court’s instruction was ineffective to cure the substantial, irreparable prejudice caused by the clerk’s error, and hence he was deprived of a fair trial. We do not agree.

“ ‘The general principle is that a mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial.’ ” State v. Gooch, 186 Conn. 17, 25, 438 A.2d 867 (1982), quoting State v. Turcio, 178 Conn. 116, 143, 422 A.2d 749 (1979). “The trial court’s exercise of its broad discretion to determine whether a motion for a mistrial should be granted will be reversed on appeal only if that discretion has been abused.” State v. Cruz, supra, 364.

It is our view that the trial court did not abuse its discretion in denying the defendant’s motion for a mistrial. Immediately after the affidavit was read to the jury, the trial court gave a curative instruction to the jury, thereby minimizing any prejudice to the defendant. See State v. Cruz, supra; State v. Fernandez, 198 Conn. 1, 17, 501 A.2d 1195 (1985); State v. Ubaldi, 190 Conn. 559, 563, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983). “It is to be presumed that the jury followed the court’s instructions unless the contrary appears.” State v. Rouleau, 204 Conn. 240, 254, 528 A.2d 343 (1987). Furthermore, counsel initially objected to the redactions for strategic reasons, while the court, especially sensitive to the defendant’s rights, supported the redaction. Counsel obviously did not believe at that time that the introduction of the unadulterated affidavit would be prejudicial, and his representations to the court appear almost to have invited error. In this context, and because the trial court immediately cured the clerk’s error by instruction, we do not find that the trial court’s denial of the defendant’s motion for a mistrial constituted an abuse of discretion.

V

Finally, the defendant argues that the trial court should not have allowed the state to introduce prejudicial evidence of his uncharged larcenous misconduct, because he was on trial, in part, for larceny. The particular evidence of which the defendant complains includes the testimony elicited from Spetrino and Thiel, tending to show that the defendant directed Spetrino to break into Noel’s apartment, directed Thiel to open the Shea account and forge Noel’s name on Noel’s checks, directed the forgery of Noel’s name on a promissory note, and later brought suit on the note when he believed that Noel was dead. While the state maintains that this evidence was offered for the purpose of showing the defendant’s motive to aid in Noel’s kidnapping, that is, to gain access to his bank accounts, the defendant claims that the evidence was not probative of motive.

We have repeatedly stated that evidence otherwise relevant and material is not rendered inadmissible because it tends to prove that an accused committed other crimes. See State v. James, 211 Conn. 555, 578, 560 A.2d 426 (1989). “It is widely recognized that other misconduct evidence is admissible to prove motive, as an exception to the general prohibition against such evidence.” Id. Nevertheless, prior to ruling on its admissibility the trial court must still consider whether the prejudicial effect of such evidence outweighs its probative value. State v. Sierra, 213 Conn. 422, 434-35, 568 A.2d 448 (1990). We recognize that this balancing process is an inherently difficult one, and will reverse the trial court’s decision only when it is manifest that ' an abuse of discretion or an injustice has occurred. Id.; State v. Braman, 191 Conn. 670, 676, 469 A.2d 760 (1983). A review of the record reveals that the disputed evidence proffered by the state was in fact probative, and that its probative value outweighed its prejudicial effect on the defendant. We thus conclude that the trial court properly admitted the evidence.

The evidence was probative of the defendant’s motive because if the jury believed that he directed a break-in of Noel’s apartment in search of bank mail, and otherwise attempted to gain access to Noel’s bank account through check forgeries and a lawsuit to collect on a forged promissory note, such evidence would tend to make it more probable that the defendant assisted in bringing about Noel’s absence. Obviously, Noel’s absence would facilitate and simplify the defendant’s task of gaining access to his funds, for Noel, being absent, could not detect and object to the unexplained debits on his account statements, and would not attempt to defend the defendant’s action on the forged promissory note. The probative value of this evidence, moreover, outweighed the minimal prejudice flowing to the defendant from its admission. This particular uncharged larcenous misconduct evidence was, in the words of the state, “only a drop in the bucket” in light of the defendant’s testimony on the stand regarding his commission of numerous other larcenous acts. The defendant testified, for example, that he was then serving a sentence for selling stolen autos and forging cashiers’ checks. He also testified that he had been in the stolen car business for approximately ten years, and had been convicted over fifty times for larceny of autos and for forgery of documents relating to the autos. Against this backdrop, we conclude that the evidence claimed to be prejudicial by the defendant was not more prejudicial than it was probative of the defendant’s motive in aiding in the kidnapping of Noel.

The judgment of the trial court is affirmed.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-48. CONSPIRACY. RENUNCIATION, (a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.
      “(b) It shall be a defense to a charge of conspiracy that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”
      “[General Statutes] Sec. 53a-92. kidnapping in the first degree, (a) A person is guilty of kidnapping in the first degree when he abducts another person and when ... (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually. . . .”

       “[General Statutes] Sec. 53a-49. criminal attempt: sufficiency of conduct; renunciation as defense, (a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission of constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
      “(b) Conduct shall not be held to constitute a substantial step under subdivision (2) of subsection (a) unless it is strongly corroborative of the actor’s criminal purpose. Without negating the sufficiency of other conduct, the following, if strongly corroborative of the actor’s criminal purpose, shall not be held insufficient as a matter of law: (1) Lying in wait, searching for or following the contemplated victim of the crime; (2) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission; (3) reconnoitering the place contemplated for the commission of the crime; (4) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed; (5) possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances; (6) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances; (7) soliciting an innocent agent to engage in conduct constituting an element of the crime.
      “(c) When the actor’s conduct would otherwise constitute an attempt under subsection (a), it shall be a defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”

       “[General Statutes] Sec. 53a-112. arson in the second degree: class b felony, (a) A person is guilty of arson in the second degree when, with intent to destroy or damage a building, as defined in section 53a-100, (1) he starts a fire or causes an explosion and . . . (B) such fire or explosion was intended to conceal some other criminal act . . . .”

       “[General Statutes (Rev. to 1983)] Sec. 53a-123. larceny in the second degree: class c felony, (a) A person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119 and: (1) The property consists of a motor vehicle, the value of which is two thousand dollars or less . . . .”

       “[General Statutes] Sec. 53a-8. criminal liability for acts of another. 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.”

       “[General Stautes] See. 53a-91. definitions. The following definitions are applicable to this part ....
      “(2) ‘Abduct’ means to restrain a person with intent to prevent his liberation by either (a) secreting or holding him in a place where he is not likely to be found, or (b) using or threatening to use physical force or intimidation.”

       “[General Statutes] Sec. 53a-91. definitions. The following definitions are applicable to this part:
      “(1) ‘Restrain’ means to restrict a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by moving Mm from one place to another, or by confining Mm either in the place where the restriction commences or in a place to which he has been moved, without consent. As used herein ‘without consent’ means, but is not limited to, (a) deception and (b) any means whatever, including acquiescence of the victim, if he is a child less than sixteen years old or an incompetent person and the parent, guardian or other person or institution having lawful control or custody of him has not acquiesced in the movement or confinement.”

       The defendant also claims on appeal that the state’s attorney’s office initiated the scuba diving operation, deliberately chose to undertake the operation mid-trial, and supervised the operation outside the courtroom, all of which provided the impetus for the publicity that deprived him of a fair trial. Further, since several of the media releases quoted a witness for the state, the defendant argues that the state’s attorney violated rule 3.6 of the Rules of Professional Conduct. Since the defendant did not preserve this issue in the trial court, however, we decline to review the issue on appeal. Practice Book § 4185; State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989); State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).