State v. Ayala, 153 A.3d 588, 324 Conn. 571 (2017)

Feb. 7, 2017 · Connecticut Supreme Court · SC 19466

153 A.3d 588, 324 Conn. 571

STATE of Connecticut
v.
Enrique AYALA

SC 19466

Supreme Court of Connecticut.

Argued September 15, 2016
Officially released February 7, 2017

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, former state's attorney, and Seth R. Garbarsky, assistant state's attorney, for the appellant (state).

Katherine C. Essington, for the appellee (defendant).

Rogers, C.J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.^*

* This case was originally argued before a panel of this court consisting of Chief Justice Rogers and Justices Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson. Thereafter, Justice Zarella retired from this court and did not participate in the consideration of this decision.

McDONALD, J.

We consider in this appeal whether allowing the state to amend an information after the commencement of trial to charge additional offenses without good cause constitutes per se reversible error. The state appeals, upon our grant of certification, from the judgment of the Appellate Court reversing the judgment of conviction of the defendant, Enrique Ayala, of three counts of interfering with an officer in violation of General Statutes § 53a-167a. See State v. Ayala , 154 Conn.App. 631, 656, 106 A.3d 941 (2015). The state contends that, in the absence of prejudice, the trial court's decision to allow a midtrial amendment charging additional offenses was neither an abuse of discretion nor reversible error. We conclude that, although the trial court abused its discretion in allowing the state to amend the information without good cause to charge additional offenses, that impropriety would not require reversal of the defendant's conviction on the amended charges in the absence of prejudice. We further conclude, however, that the Appellate Court's judgment must be affirmed because the improper amendment was not harmless beyond a reasonable doubt under the circumstances of this case.

At trial, the state proffered testimony from three Meriden police officers and an emergency medical technician regarding the defendant's conduct at a motor vehicle stop and later in a holding cell at a police station that gave rise to the charges in this case.¹ On the basis of that evidence, the jury reasonably could have found the following facts.

On February 9, 2012, the defendant's girlfriend, Michelle Sofianos, drove the defendant home in a motor vehicle registered and insured in his name. Shortly after the defendant exited the vehicle, Sofianos made an illegal U-turn near the intersection of Orange and Hanover Streets in Meriden, which prompted Officer David Buck to initiate a traffic stop. Officer Margaret Smusz, who had been dispatched to the scene, arrived shortly thereafter and approached the passenger's side of the vehicle.

The defendant observed the stop and came back toward the vehicle. Smusz warned Buck that a male was approaching him from behind. Using profanity, the defendant asked why Sofianos was being detained. Buck then ordered the defendant to stand on the sidewalk, away from the vehicle. The defendant complied but continued to yell and swear at the officers, and appeared to be intoxicated.

After Sofianos identified the defendant for the officers, facts came to light that caused the officers to become concerned that he might be carrying a weapon. Smusz testified that she recognized the defendant's name as the name of the person she had previously arrested for a narcotics violation, and that in the course of that arrest, the police found an unlicensed handgun in his vehicle. In addition, the officers observed that the defendant was wearing a leather vest bearing the insignia of a motorcycle club. Buck testified that during his police training he learned that members of outlaw motorcycle clubs often carried weapons. Consequently, Buck radioed for additional assistance and Officer Shane Phillips was dispatched to the scene.

Once Phillips arrived, he and Smusz approached the defendant and asked if he had any weapons on him, to which the defendant replied that he did not. Notwithstanding the defendant's answer, Phillips and Smusz instructed the defendant that they were going to pat him down for weapons. When Phillips started patting him down, the defendant "tensed up" and tried to "pull away." Phillips and Smusz immediately grabbed the defendant's arms and placed him on the hood of the defendant's vehicle. The defendant attempted to raise himself off the vehicle, but the officers pushed his head down, causing the defendant to bite his lip, drawing blood. Phillips handcuffed the defendant, arrested him for interfering, and conducted a pat-down search that did not yield a weapon. Phillips thereafter escorted the defendant to the police station on West Main Street.

At the police station, the defendant exited the cruiser and walked inside without incident. Upon entering the holding cell, Buck, Smusz, Phillips, and the desk sergeant made the defendant face the corner of the cell, with his legs spread apart, so they could remove his outer layers of clothing in accordance with standard procedures. The defendant was compliant until the officers tried to remove his motorcycle club vest. At that point, the defendant called the officers pigs and uttered profanity, stating: "[Y]ou're not taking my ... colors." Nevertheless, Phillips began to take off the defendant's vest after Smusz removed his handcuffs. With his hands still behind his back, the defendant "tensed up," clenched down on the vest to prevent its removal, and brought his left arm forward. The officers perceived his actions as a threat and immediately drove the defendant forward into the concrete wall in the corner of the cell.

In order to resecure the handcuffs, Buck, Smusz, Phillips and the desk sergeant forced the defendant to the ground, facedown, and instructed him to place his arms behind his back. The defendant locked his arms under his chest and struggled with the officers until Buck used a Taser device to stun him, after which the officers were able to remove the vest and put the handcuffs back on. The officers summoned medical assistance after noticing that the defendant had sustained an injury to his forehead. The defendant resisted efforts by Smusz and Phillips to position him so that medical personnel could attend to him. Smusz testified that, in the course of thrashing his legs backward toward the officers, the defendant kicked her in the thigh. Afterward, the defendant refused to cooperate with the booking process or answer questions for a suicide evaluation. As a result, the officers cut off his clothing, gave him a paper suit to wear, and placed him in a cell designated for suicide watch.

The defendant attempted to present a starkly different version of the events in his cross-examination of the state's witnesses and through his own testimony and that of Sofianos. The defendant and Sofianos testified that the defendant was neither belligerent nor intoxicated that evening; rather, the defendant wanted to help Sofianos locate the vehicle's registration and insurance information and he immediately complied with Buck's order to stand on the sidewalk. The defendant testified that once Smusz and Phillips arrived, they walked straight toward him and put him in handcuffs. Sofianos and the defendant testified that the defendant was not resisting during the ensuing patdown, but Phillips nevertheless slammed his face into the hood of the vehicle. According to the defendant, Phillips said that he should have known better than to approach a police officer from behind while wearing a motorcycle club vest.

The defendant maintained that he was compliant at the police station because he wanted to get the booking process over with in order to make bond that night. He denied calling the officers "pigs" or swearing at them. He claimed that he did not try to prevent the removal of his vest; rather, the combination of Phillips and Buck pulling him in opposite directions and Phillips kicking his feet into a wide stance caused him to lose his balance and forced him to move his hands forward to catch himself. The defendant denied struggling with the officers while he was on the ground, claiming that it was not possible for him to put his hands behind his back with the officers on top of him. Although the defendant admitted that he had refused medical treatment and asked to be left alone, he denied kicking Smusz.

In addition to these facts, the following procedural history gives rise to the issues before us on appeal. On the day that jury selection was due to commence, the state filed a long form information charging the defendant with one count of assault of a peace officer (Smusz) in violation of General Statutes § 53a-167c and three counts of interfering with an officer (Buck, Smusz, and Phillips) in violation of § 53a-167a. All of the offenses were alleged to have occurred at the intersection of Hanover and Orange Streets, the site of the motor vehicle stop.

On the third day of voir dire, the state requested permission to amend the information to change the location of the assault charge from the site of the motor vehicle stop to West Main Street, the location of the Meriden Police Department. The trial court granted permission for the amendment, noting that it was not a "material change" and that the location of the alleged assault was "clear from the police report, so as not to be surpris[ing] or ... prejudic [ial]." The defendant conceded that he was aware that the police station was the site of the alleged assault and did not object to the amendment. The trial court asked the state whether the location for the interference charges-Hanover and Orange Streets-was still correct, to which the prosecutor responded: "That's still accurate." The prosecutor reiterated the following morning that the location of the three counts of interference "remain[ed] unchanged."

On the third day of evidence, just before direct examination of the last witness for the state recommenced, defense counsel filed a request for a jury instruction explaining that the jury was not to consider "what interference may or may not have occurred in connection with the charge of assault on [Smusz] at the Meriden Police Department." Counsel expressed a concern that the "testimony about the defendant's cooperation or lack thereof while detained at the Meriden Police Department" might confuse the jury because the only charged conduct at the police station was the alleged assault. The state made no objection to this request on the record.

After the state completed its case-in-chief and defense counsel completed direct examination of the defendant, the prosecutor noted for the record that a charging conference had been held off the record, at which time the trial court granted the state permission to allege that the defendant's interference with the three officers constituted "a continuing course of conduct" during his entire encounter with them. The trial court noted that, although it initially had been reluctant to permit the state to pursue this theory, its review of the case law persuaded it that the state could assert a continuing course of conduct over the duration of the defendant's contact with law enforcement as a basis of an interference charge.

Before closing arguments, the state filed a second amended information and an amended request to charge. The second amended information maintained the three counts of interference but alleged in each count that the interference against each officer had occurred at the intersection of Hanover and Orange Streets and at the Meriden Police Department. The amended unanimity charge given by the trial court to the jury was substantially identical to that submitted by the state, and provided: "The state has alleged that the defendant has committed the offenses of interfering with an officer throughout the course of his contacts with police officers on February 9, 2012, both at the intersection of Hanover and Orange Streets and at the Meriden Police Department. You may find the defendant guilty of the offenses only if you all unanimously agree on when and where the defendant committed the offenses. This means you may not find the defendant guilty unless you all agree that the state has proved beyond a reasonable doubt that the defendant committed the ... offense or offenses at the intersection of Hanover and Orange Streets, or you all agree that the state has proved beyond a reasonable doubt that the defendant committed the offense or offenses at the Meriden Police Department."

Defense counsel stated for the record that the second amended information was "an unfair surprise coming at the end of evidence or close to the end of evidence," and "that it may have been possible to argue differently" based on the new interference charges.² The trial court rejected the defendant's contention, concluding that, on the basis of the police report and the testimony elicited at trial, "there was no unfair surprise and ... counsel clearly cross-examined with an eye toward being able to argue when there was interfering and when there was not interfering, both at the police department and ... at the motor vehicle stop at Hanover and Orange Streets." The court thereafter instructed the jury in accordance with the state's unanimity charge. No interrogatories were submitted to the jury to ascertain its verdict with respect to the site of the alleged interferences.

The jury acquitted the defendant of the assault charge but found him guilty of the three counts of interfering with an officer. The court rendered judgment in accordance with the verdict and imposed an effective sentence of two years imprisonment, consecutive to a sentence that the defendant was serving in an unrelated case.

The defendant appealed from the judgment of conviction to the Appellate Court. The defendant's principal claim on appeal was that the trial court had abused its discretion by permitting the state to amend the information in violation of his sixth amendment rights under the federal constitution³ and his due process right to proper notice of the charges against him. State v. Ayala , supra, 154 Conn.App. at 643, 106 A.3d 941. Although the defendant contended that he had been prejudiced by the late amendment, the Appellate Court did not reach that issue because it determined that the state's failure to meet the first two of the three requirements for an amendment of the information after the commencement of trial under Practice Book § 36-18⁴ rendered the trial court's decision an abuse of discretion that required reversal of the judgment of conviction. Id., at 644 n.17, 655-56, 106 A.3d 941.

The Appellate Court first concluded that the record reflected neither a finding by the trial court that there was good cause for the amendment after the commencement of trial nor any basis to support such a finding. Id., at 644, 647-48, 106 A.3d 941. The Appellate Court observed that "the [trial] court made no finding that there was new evidence or evidence that the state had not anticipated to warrant amending the information at that time." Id., at 647, 106 A.3d 941. The Appellate Court rejected the state's argument that Practice Book § 36-18 permits a trial court to allow an amendment even in the absence of good cause. Id., at 648-49, 106 A.3d 941.

The Appellate Court further concluded that, even if the record established good cause, which it did not, the trial court abused its discretion in allowing the second amendment because it alleged additional offenses, thereby violating another limitation under Practice Book § 36-18. Id., at 650, 106 A.3d 941. The Appellate Court observed: "There are two types of amendments that can result in the charging of a different or additional offense. One type of amendment produces what is commonly described as a factually different offense in that it alters the facts alleged, but continues to allege a violation of the same substantive crime as the original pleading; the other type charges a legally separate offense.... The second amended long form information constitutes the addition of a crime on factually distinct grounds. In other words, the defendant was alleged to have interfered with the police officers, the substantive crime, at two separate locations, i.e., two factually different crimes." (Citations omitted.) Id., at 652, 106 A.3d 941. The Appellate Court reasoned that, "[n]otwithstanding the state's attempt to conflate the traffic stop and police station conduct into one event, the evidence demonstrates that the charges of interference were based on two separate, distinct acts of alleged interference occurring at separate places, and separated by the transporting of the defendant from one location to another. See United States v. Chappell , 704 F.3d 551, 552 (8th Cir. 2013) (criminal offense is distinct crime when it occurs in different location and at different time)." State v. Ayala , supra, 154 Conn.App. at 655, 106 A.3d 941. The Appellate Court questioned whether the state's continuing course of conduct theory was even cognizable in this context, but observed that such a theory was in any event inconsistent with the unanimity charge given to the jury. Id., at 643 n.13, 106 A.3d 941. On the basis of the violations of § 36-18 that it identified, the Appellate Court reversed the judgment of conviction and remanded the case for a new trial. Id., at 656, 106 A.3d 941.

We thereafter granted the state's petition for certification to appeal, limited to the following issue: "Did the Appellate Court properly reverse the defendant's conviction based upon its determination that the trial court had abused its discretion by permitting the state to amend its information after the start of the trial?" State v. Ayala , 316 Conn. 908, 111 A.3d 883 (2015). The state's principal contention is that a trial court cannot abuse its discretion in allowing an amendment to the information unless the amendment causes prejudice to the defendant's substantive right to notice of the charges against which he must defend, which the trial court concluded did not exist in this case. The state further argues that, even if a trial court could abuse its discretion in allowing an amendment without good cause to charge additional offenses, the defendant would not be entitled to reversal of his conviction on the new charges without showing that the error was harmful. The state contends that the amendment did not impair the defendant's ability to present his defense and therefore he is not entitled to a new trial.

We agree with the state that it is important to distinguish between the trial court's obligations and the right to relief from trial court error, a distinction that has not always been made clear in appellate case law addressing Practice Book § 36-18. We disagree with the state, however, that the defendant is not entitled to a new trial. We conclude that reversal of the judgment was proper, although for slightly different reasons than those relied on by the Appellate Court.

I

We begin with the question of whether the Appellate Court properly determined that the trial court abused its discretion in allowing the state to amend the information. We underscore that the state does not challenge the Appellate Court's conclusions that the state lacked good cause for the amendment or that the amendment resulted in the inclusion of additional offenses. Instead, the state contends that, unless the amendment caused prejudice to the defendant, such factors do not result in an abuse of discretion in granting the amendment. We disagree.⁵

"Before the commencement of trial, a prosecutor has broad authority to amend an information under Practice Book § [36-17]. Once the trial has started, however, the prosecutor is constrained by the provisions of Practice Book § [36-18]." State v. Tanzella , 226 Conn. 601, 607, 628 A.2d 973 (1993). For purposes of Practice Book § 36-18, a trial begins with the commencement of voir dire. Id., at 608, 628 A.2d 973.

Practice Book § 36-18 provides in relevant part: "After commencement of the trial for good cause shown, the judicial authority may permit the prosecuting authority to amend the information at any time before a verdict or finding if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced...." It is well settled that the state bears the burden of demonstrating that it has complied with the requirements of § 36-18 in seeking permission to amend the information. See State v. Tanzella , supra, 226 Conn. at 614, 628 A.2d 973 ("[l]ike any other party petitioning the court, the state must demonstrate the basis for its request [to amend the information]"). A trial court's decision to allow the state to amend the information is reviewed for an abuse of discretion. See State v. Ramos , 176 Conn. 275, 276, 407 A.2d 952 (1978).

On its face, Practice Book § 36-18 states three predicates that the state must meet to obtain permission to amend the information: (1) good cause; (2) no additional or different offense is charged; and (3) no prejudice to the defendant's substantive rights. State v. Petitpas , 299 Conn. 99, 104 n.6, 6 A.3d 1159 (2010) ; State v. Tanzella , supra, 226 Conn. at 614, 628 A.2d 973.

These requirements serve two purposes. First, they encourage the state to prepare its case carefully. State v. Tanzella , supra, 226 Conn. at 614-15, 628 A.2d 973. Good cause in this context assumes some circumstance that the state could not have reasonably anticipated or safeguarded against before trial commenced. See State v. Victor C. , 145 Conn.App. 54, 65, 75 A.3d 48 ("To comply with the first prong of the test and meet its burden of showing good cause ... the state must provide more than a bare assertion that it is merely conforming the charge to the evidence.... The state must demonstrate why the information necessitated substitution." [Citation omitted; emphasis in original; internal quotation marks omitted.] ), cert. denied, 310 Conn. 933, 78 A.3d 859 (2013). Second, and more fundamentally, the requirements ensure that the defendant has adequate notice of the charges against which he must defend. State v. Tanzella , supra, at 608, 628 A.2d 973 ; State v. Jacobowitz , 182 Conn. 585, 590, 438 A.2d 792 (1981), overruled in part on other grounds by State v. Welch , 224 Conn. 1, 4, 615 A.2d 505 (1992). As such, Practice Book § 36-18 is not only a rule of procedure, but a prophylactic rule designed to protect a criminal defendant's "constitutional right to be informed of the nature and cause of the charges against him with sufficient precision to enable him to meet them at trial." (Internal quotation marks omitted.) State v. Bergin , 214 Conn. 657, 674, 574 A.2d 164 (1990) ; see also State v. Morrill , 197 Conn. 507, 551, 498 A.2d 76 (1985) ("[w]hen the state's pleadings have informed the defendant of the charge against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and were definite enough to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense, they have performed their constitutional duty" [internal quotation marks omitted] ).

In light of the dual purposes served by the requirements of Practice Book § 36-18, we decline to interpret its provisions in a way that would disregard either the good cause requirement or the additional or different offense prohibition. We are bound to give effect to each requirement of § 36-18. See generally State v. Strick land , 243 Conn. 339, 347-48, 703 A.2d 109 (1997) ("our rules of practice should be construed harmoniously and not in a way that would render one provision superfluous as a result of the existence of another"). To hold, as the state urges, that prejudice is the only inquiry in determining whether a violation of § 36-18 has occurred would effectively read the good cause requirement, the additional or different offense prohibition, and the conjunctive "and" preceding the element of prejudice out of the rule. If that was the intent of the drafters, there would have been no point to including the good cause shown and no additional or different offense charged language; "it would have been necessary to provide only that amendment would not be allowed if substantial rights of the defendant are not prejudiced." (Internal quotation marks omitted.) United States v. Personal Finance Co. of New York , 13 F.R.D. 306, 311 (S.D.N.Y. 1952) ; accord Simon v. Government of the Virgin Islands , 47 V.I. 3, 8 (2002), appeal dismissed in part and remanded in part on other grounds, 116 F.Supp.3d 529 (D.V.I. 2015).

Despite this court's unambiguous statement in State v. Tanzella , supra, 226 Conn. at 614, 628 A.2d 973, that there are three requirements that the prosecution must satisfy, the state has seized upon language in that case that it asserts effectively did away with the first two components of Practice Book § 36-18. The state first argues that satisfaction of the good cause requirement is not a necessary predicate to allowing an amendment to the information because this court observed in Tanzella that § 36-18"permits amendments to an information after trial has commenced provided 'no additional or different offense is charged and no substantive rights of the defendant would be prejudiced .' " (Emphasis added.) Id., at 607-608, 628 A.2d 973. Some Appellate Court decisions have since stated that the trial court's discretion pursuant to § 36-18 is "limited only by" the latter two requirements of the provision. See, e.g., State v. Adams , 38 Conn.App. 643, 649, 662 A.2d 1327, cert. denied, 235 Conn. 908, 665 A.2d 902 (1995). Our exclusive focus on those two requirements in Tanzella , however, is readily explained by the fact that the defendant in that case had effectively conceded good cause. See State v. Tanzella , supra, at 608 n.8, 628 A.2d 973. Indeed, numerous Appellate Court decisions have properly recognized that the prosecution must establish good cause at trial. See, e.g., State v. Victor C. , supra, 145 Conn.App. at 65-66, 75 A.3d 48 (assessing whether good cause was shown); State v. Jordan , 132 Conn.App. 817, 824-25, 33 A.3d 307 (same), cert. denied, 304 Conn. 909, 39 A.3d 1119 (2012) ; State v. Grant , 83 Conn.App. 90, 93-95, 98, 848 A.2d 549 (same), cert. denied, 270 Conn. 913, 853 A.2d 529 (2004) ; State v. Wilson F. , 77 Conn.App. 405, 413, 823 A.2d 406 (same), cert. denied, 265 Conn. 905, 831 A.2d 254 (2003).

The state similarly takes out of context another statement in Tanzella to support its contention that an abuse of discretion arises only from an amendment that impairs the defendant's substantive rights. In that case, we observed: "For purposes of [Practice Book § 36-18 ], the decisive question is whether the defendant was informed of the charges with sufficient precision to be able to prepare an adequate defense." State v. Tanzella , supra, 226 Conn. at 608, 628 A.2d 973. That statement was made, however, in the context of explaining why we declined to use a comparison of the elements of each of the offenses to determine whether the amended charges constituted additional or different offenses. See id.

Accordingly, in the present case, the trial court abused its discretion by allowing the state to amend the information in the absence of a showing, and finding, of good cause. As the Appellate Court properly observed, the trial court failed to make any finding regarding good cause. See State v. Ayala , supra, 154 Conn.App. at 644, 647-48, 106 A.3d 941. Indeed, the failure to exercise discretion is an abuse in and of itself. See State v. Martin , 201 Conn. 74, 88, 513 A.2d 116 (1986) ("[w]here ... the trial court is properly called upon to exercise its discretion, its failure to do so is error"). Moreover, the record reveals no basis upon which the trial court could have made a finding of good cause for the amendment,⁶ especially in light of the prosecutor's repeated assurances, after amending the information to change the location of the assault, that the location of the interference was "still accurate" and "remain[ed] unchanged."⁷ In addition, the state conceded at oral argument before this court that the instances of interference at the intersection of Hanover and Orange Streets and at the police station constituted "two distinct acts or transactions separated by time and location"; State v. Ayala , supra, at 655, 106 A.3d 941 ; see also State v. Tweedy , 219 Conn. 489, 494, 594 A.2d 906 (1991) ; the basis for the Appellate Court's conclusion that the amendment resulted in additional offenses.⁸ As such, the Appellate Court properly concluded that the trial court abused its discretion in allowing the amendment.

II

The Appellate Court concluded that the trial court's abuse of discretion required reversal of the judgment. Indeed, the court concluded that it was unnecessary to reach the defendant's claim that he was prejudiced by the amendment. As such, the Appellate Court effectively determined that a violation of the good cause requirement and the additional or different offense prohibition is per se reversible error and, consequently, structural error. Although we disagree with that legal conclusion, we conclude that the Appellate Court's judgment should be affirmed on the ground that the state has failed to meet its burden of proving that the amendment was harmless beyond a reasonable doubt.

A

It is well settled that "[n]ot every deviation from the specific requirements of a Practice Book rule necessitates reversal." State v. Suggs , 194 Conn. 223, 226-27, 478 A.2d 1008 (1984). "Ordinarily, our courts apply a harmless error analysis in determining whether a violation of a rule of practice amounts to reversible error."

State v. Pare , 253 Conn. 611, 636, 755 A.2d 180 (2000). To the extent that a failure to comply with a rule of practice rises to the level of a constitutional violation, "[t]he United States Supreme Court has recognized that 'most constitutional errors can be harmless.' "

State v. Anderson , 255 Conn. 425, 444, 773 A.2d 287 (2001), quoting Neder v. United States , 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999).

"The harmless error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant's guilt or innocence ... and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.... Accordingly, we forgo harmless error analysis only in rare instances involving a structural defect of constitutional magnitude." (Emphasis in original; internal quotation marks omitted.) State v. Artis, 314 Conn. 131, 149-50, 101 A.3d 915 (2014) ; see also Rose v. Clark , 478 U.S. 570, 579, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986) ("if the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis").

"Structural defect cases defy analysis by harmless error standards because the 'entire conduct of the trial, from beginning to end, is obviously affected ....' Arizona v. Fulminante , [499 U.S. 279, 309-10, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) ]. These cases 'contain a defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself. [Id., at 310, 111 S.Ct. 1246 ]. Such errors infect the entire trial process ... and necessarily render a trial fundamentally unfair .... Put another way, these errors deprive defendants of basic protections without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence ... and no criminal punishment may be regarded as fundamentally fair.' ... Neder v. United States , supra, 527 U.S. at 8-9, 119 S.Ct. 1827." (Citations omitted.) State v. Anderson , supra, 255 Conn. at 445, 773 A.2d 287.

With these principles in mind, we turn to the rule of practice at issue. As reflected in our discussion in part I of this opinion, the good cause requirement in Practice Book § 36-18, standing alone, is not intended to vindicate any constitutional right; rather, its purpose is to encourage the state to diligently prepare its case. See State v. Tanzella , supra, 226 Conn. at 614-15, 628 A.2d 973. As such, consistent with our harmless error jurisprudence for nonconstitutional claims, our appellate case law has never treated a lack of good cause, in and of itself, as reversible error. See, e.g., State v. Carlos E. , 158 Conn.App. 646, 653 n.4, 120 A.3d 1239 (considering whether defendant suffered prejudice as result of amendment despite state's failure to make any attempt to articulate good cause and trial court's failure to make explicit finding on good cause), cert. denied, 319 Conn. 909, 125 A.3d 199 (2015) ; see also State v. Petitpas , supra, 299 Conn. at 101, 103-104, 6 A.3d 1159 (affirming judgment of conviction despite defendant's argument that state failed to show good cause for amending information because court was "unable to perceive how the defendant could have been prejudiced by an amendment that deprived the state of a means of proving the offense"). Thus, a trial court's abuse of discretion in allowing the state to amend the information midtrial without a showing of good cause, standing alone, would fall squarely within our jurisprudence requiring the defendant to show that the nonconstitutional error was harmful to reverse the judgment of conviction.⁹ See State v. Payne , 303 Conn. 538, 553, 34 A.3d 370 (2012) ("[w]hen an error is not of constitutional magnitude, the defendant bears the burden of demonstrating that the error was harmful").

Whether there has been an abuse of discretion arising from a violation of the additional or different offense prohibition set forth in Practice Book § 36-18 presents a more difficult question. In our seminal case on this issue, State v. Jacobowitz , supra, 182 Conn. at 590-93, 438 A.2d 792, this court reversed the defendant's judgment of conviction on the ground that the trial court improperly allowed the state to amend the information to add a different offense after it concluded its case-in-chief, without taking into consideration whether the amendment caused prejudice to the defendant. Some Appellate Court decisions rendered shortly after Jacobowitz followed this holding and concluded that an amendment of an information in violation of the additional or different offense prohibition made during presentation of the state's case-in-chief is, in and of itself, reversible error with respect to the new charge. See, e.g., State v. Cole , 8 Conn.App. 545, 552, 513 A.2d 752 (1986) ; State v. Kitt , 8 Conn.App. 478, 488-89, 513 A.2d 731, cert. denied, 202 Conn. 801, 518 A.2d 648 (1986).

Conversely, the most recent Appellate Court decision on this issue employed harmless error review after concluding that when the state amended the information at the close of its case-in-chief by substituting the original charge of burglary in the first degree with burglary in the second degree, that substitution constituted a different offense. State v. Ramirez , 94 Conn.App. 812, 816-17, 894 A.2d 1032, cert. denied, 278 Conn. 915, 899 A.2d 621 (2006). The court observed that "the improper amendment of the information implicates the defendant's constitutional right to fair notice of the charges against him ... [and, consequently] the state must prove such error was harmless beyond a reasonable doubt." (Internal quotation marks omitted.) Id., at 819, 894 A.2d 1032. The court determined that the error in that case was harmless beyond a reasonable doubt because "[t]he defense theory [of mistaken identity] ... was not related to the elements of the crime as originally charged or as amended. As a result, the amendment did not prejudice the defense because the effect of the amendment was logically distinct from the defense asserted." Id., at 820, 894 A.2d 1032.

We conclude that Jacobowitz should be overruled insofar as it suggests that any amendment to an information violating the additional or different offense prohibition results in per se reversible error. When Jacobowitz was decided, our harmless error jurisprudence, particularly with respect to constitutional error, was not yet well developed. Compare State v. Cohane , 193 Conn. 474, 485, 479 A.2d 763 ("[i]f error touches a less basic constitutional right, we sometimes apply the harmless error exception, but only sparingly, in a few, discrete circumstances" [internal quotation marks omitted] ), cert. denied, 469 U.S. 990, 105 S.Ct. 397, 83 L.Ed.2d 331 (1984), with State v. Anderson , supra, 255 Conn. at 444, 773 A.2d 287 (acknowledging United States Supreme Court's recognition in its recent opinion, Neder v. United States , supra, 527 U.S. at 8, 119 S.Ct. 1827, that "most constitutional errors can be harmless" [internal quotation marks omitted] ). Indeed, it was not until 1997, sixteen years after Jacobowitz , that the United States Supreme Court emphasized that structural error would be found in a "very limited class of cases ...." Johnson v. United States , 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997).

We recently overruled a case decided in the same year as Jacobowitz because that case rejected harmless error analysis in favor of a rule of per se reversibility when the state uses unreliable eyewitness identification evidence arising from an unnecessarily suggestive police procedure. See State v. Artis , supra, 314 Conn. at 145-46, 101 A.3d 915. In so holding, we recognized that, since that case was decided, there had been substantial changes in the legal landscape regarding the application of harmless error analysis to constitutional violations. Id., at 149, 101 A.3d 915. On that basis, among others, we agreed with the state "that the introduction of such [unreliable eyewitness] testimony in violation of a defendant's right to due process is not one of the rare instances of structural error in which the automatic reversal of a conviction is warranted." Id., at 146, 101 A.3d 915. The Appellate Court's more recent decision in Ramirez applying harmless error analysis, therefore, is more consistent with these developments in our jurisprudence.

It may reasonably be presumed that an amendment to an information that charges an additional or different offense that is made after trial has commenced gives rise to prejudice in the preparation and the presentation of the defense. See State v. Cole , supra, 8 Conn.App. at 551, 513 A.2d 752 (discussing effect on voir dire); State v. Caswell , 551 N.W.2d 252, 255 (Minn. App. 1996) (discussing effect on waiver of jury trial). Indeed, in many cases, prejudice may be self-evident. We are not persuaded, however, that every amendment made after the commencement of trial charging an additional or different offense is necessarily prejudicial or is never amenable to such an inquiry. See State v. Ramirez , supra, 94 Conn.App. at 816-20, 894 A.2d 1032 (trial court's abuse of discretion in allowing amendment was harmless beyond reasonable doubt because defense of mistaken identity was not related to elements of either original or substituted charge). This court previously has declined to view the violation of other substantial constitutional rights as structural error, even where the error occurred at the beginning of trial and could have had an ongoing effect throughout the course of the proceedings. See, e.g., State v. D'Antonio , 274 Conn. 658, 690-91, 877 A.2d 696 (2005) (trial judge's failure to recuse himself from presiding over trial after having participated in unsuccessful plea bargaining efforts was not plain error requiring reversal); State v. Washington , 182 Conn. 419, 429, 438 A.2d 1144 (1980) (instruction given early in trial permitting jurors to discuss case before its submission to them was subject to harmless error review). We further observe that, although the different/additional offense prohibition is also found in the rules or statutes of many other jurisdictions,¹⁰ some of these jurisdictions have declined to reverse a conviction on an improper amendment charging a different or additional offense unless there is prejudice to the defendant. See Sutton v. United States , 140 A.3d 1198, 1203 (D.C. App. 2016) ; Commonwealth v. Brown , 556 Pa. 131, 136, 727 A.2d 541 (1999) ; see also McGahan v. State , 606 P.2d 396, 397 (Alaska 1980) (applying harmless error review to improper amendment that went beyond form in violation of permissive statute).¹¹

We are mindful that other jurisdictions view such amendments as inherently prejudicial and, thus, per se reversible error.¹² See, e.g., Commonwealth v. Souza , 42 Mass.App.Ct. 186, 192-93, 675 N.E.2d 432, review denied, 424 Mass. 1107, 678 N.E.2d 1334 (1997) ; State v. Jackson , 78 Ohio App.3d 479, 483, 605 N.E.2d 426 (1992). Although we can understand why a presumption of prejudice logically is warranted, we cannot justify an irrebuttable presumption, irrespective of the timing of the amendment or the nature of the defense asserted. For example, an amendment made just after voir dire has commenced to charge an additional or different offense would violate Practice Book § 36-18. Yet, in the absence of any indication that the amendment rendered the defendant ill-equipped to defend against the new charge at trial or that he was hampered in his effective questioning of the venire panel; see State v. Cole , supra, 8 Conn.App. at 551, 513 A.2d 752 ; such an impropriety does not "necessarily render [the] criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence." (Emphasis in original.) Neder v. United States , supra, 527 U.S. at 9, 119 S.Ct. 1827. To the extent that the defendant suggests that a bright line rule of reversibility would further the public policy of forcing prosecutors to more carefully prepare their cases before the commencement of trial, we believe that the countervailing policy in favor of harmless error review outweighs those nonconstitutional public policy considerations. The underlying purpose of harmless error review is to preserve the fundamental aim of a criminal trial-the factual determination of guilt or innocence-from being subverted by the virtually inevitable presence of immaterial error. See State v. Perkins , 271 Conn. 218, 244-45, 856 A.2d 917 (2004). In sum, although an amendment that includes an additional or different offense will necessarily impact a defendant's constitutional right to notice of the charges against him, a defendant is not entitled to a new trial if that defect did not impair his ability to prepare for trial or present his defense. Accordingly, we decline to extend the limited class of cases involving structural defects to the error at issue in the present case.

B

Finally, we turn to the question of whether the defendant suffered prejudice to warrant reversal of his judgment of conviction and a new trial on the interference charges. The state contends that it does not bear the burden of proving that the trial court's abuse of discretion was harmless beyond a reasonable doubt. We disagree and conclude that, given the nature and timing of the amendment, the state cannot meet this burden.

This court has observed that when the trial court has improperly allowed the state to amend an information to charge an additional or different offense, the defendant's "constitutional right to fair notice, prior to the commencement of trial, of the charges against which he must defend himself" is infringed. State v. Jacobowitz , supra, 182 Conn. at 590, 438 A.2d 792 ; see also State v. Welch , supra, 224 Conn. at 4, 615 A.2d 505 ("[w]hen the state amends an information after the commencement of trial to add a new count that is not a lesser included offense of any count with which the defendant has properly been charged, the state violates both Practice Book § [36-18] and the defendant's due process right to notice"); In re Steven G. , 210 Conn. 435, 441, 556 A.2d 131 (1989) ("a midtrial amendment to an information adding different charges in an adult criminal proceeding is violative of due process"). We are not persuaded by the state's contention that the defendant's right to fair notice was not impaired in the present case because he had actual notice of the officers' version of events reflecting the defendant's resistance during processing at the police station. Simply put, there is a significant difference between the defendant's general awareness of the substance of the officers' testimony and his awareness that testimony is going to form the basis of charges against him. Defense counsel's request, prior to the amendment at issue, to preclude the jury's use of evidence regarding the incident in the holding cell in considering the interference at the traffic stop belies the argument that the defendant had actual notice that he would be charged with interference at the police station.¹³ It is well settled that, when certain improprieties are of constitutional dimension, the burden falls on the state to establish that the impropriety was harmless beyond a reasonable doubt. See State v. Cohane , supra, 193 Conn. at 484-85, 479 A.2d 763 ; accord State v. Ramirez , supra, 94 Conn.App. at 819, 894 A.2d 1032 ; State v. Ignatowski , 10 Conn.App. 709, 715, 525 A.2d 542, cert. denied, 204 Conn. 812, 528 A.2d 1157 (1987). The state contends that there was no prejudice to the defendant because, prior to the amendment, he presented a complete defense against the additional charges when cross-examining the officers and providing his own testimony. Specifically, the state contends that the defendant attempted to establish that he had not interfered, but rather had cooperated with the officers at the police station and that any actions of his to the contrary were not volitional (i.e., losing his balance). The state further contends that the defendant could have recalled the officers during the presentation of his own case to address any deficiencies in his cross-examination and points to his failure to do so or ask for a continuance as evidence that the defendant was not prejudiced by the amendment. We conclude that, even if the defendant had a full and fair opportunity to examine the officers in a manner that would support a defense against the additional interference charges, the state cannot overcome a more fundamental problem arising from the timing of the amendment.

As the defendant properly emphasizes, the state amended the information after defense counsel completed the defendant's direct examination and immediately before the state commenced its cross-examination of him. Accordingly, the amendment occurred after the defendant exercised his right to testify or to remain silent. It is axiomatic that criminal defendants have a fundamental constitutional right to testify on their own behalf or to decline to do so. See Rock v. Arkansas , 483 U.S. 44, 51-53, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987) ; Malloy v. Hogan , 378 U.S. 1, 6, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). "Whether the defendant is to testify is an important tactical decision as well as a matter of constitutional right." Brooks v. Tennessee , 406 U.S. 605, 612, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972) ; see also Ferguson v. Georgia , 365 U.S. 570, 602, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961) (Clark, J., concurring)

fourteenth amendment protects "the right of a criminal defendant to choose between silence and testifying in his own behalf").

"While the due process clause of the [f]ifth [a]mendment may be understood to grant the accused the right to testify, the if and when of whether the accused will testify is primarily a matter of trial strategy to be decided between the defendant and his attorney." (Internal quotation marks omitted.) State v. Hobson , 68 Conn.App. 40, 45, 789 A.2d 557, cert. denied, 260 Conn. 910, 796 A.2d 557 (2002). "[I]f counsel believes that it would be unwise for the defendant to testify, counsel may, and indeed should, advise the client in the strongest possible terms not to testify. The defendant can then make the choice of whether to take the stand with the advice of competent counsel. It is important to remember that while defense counsel serves as an advocate for the client, it is the client who is the master of his or her own defense.... The wisdom or unwisdom of the defendant's choice does not diminish his right to make it ." (Emphasis added; internal quotation marks omitted.) State v. Francis , 317 Conn. 450, 461, 118 A.3d 529 (2015) ; see also State v. Fisher , 82 Conn.App. 412, 423-24, 844 A.2d 903 ("[t]he accused has the ultimate authority to make the fundamental decision to testify"), cert. denied, 269 Conn. 911, 852 A.2d 741 (2004).

In the present case, the defendant's decision to testify, and the scope of that testimony, was necessarily informed by the nature of the charges against him. Once he exercised his constitutional right to testify, he could not reconsider that decision. In the absence of any admission to the contrary, the state cannot prove that the defendant would have elected to testify even if he had timely notice of the additional interference charges. Indeed, before the defendant knew that he was being charged with interference at the police station, he admitted in his direct examination that he had refused medical treatment there, an admission that the jury might have viewed as bolstering the officers' testimony that the defendant had resisted every effort they had undertaken. Moreover, even in the absence of potentially damaging testimony, the state cannot meet its burden because the decision to testify need not be objectively reasonable. See State v. Francis , supra, 317 Conn. at 461, 118 A.3d 529. Accordingly, the state has not satisfied its burden of proving beyond a reasonable doubt that the improper amendment did not prejudice the defendant's substantive rights.

The judgment of the Appellate Court is affirmed.

In this opinion ROGERS, C.J., and PALMER, EVELEIGH and ROBINSON, Js., concurred.

1 The state also proffered a videotape of the events at the police station. There was no videotape of the motor vehicle stop due to malfunctioning equipment in the police cruiser operated by the officer who initiated the stop. The defendant challenged on appeal the trial court's decision precluding him from proffering his version of the videotape in slow motion. The Appellate Court did not reach this issue, and we need not address the effect of this ruling in this certified appeal.

2 The defendant has not raised, at trial or on appeal, any objection to the form of the second amended information as stating improper duplicitous grounds in each interference count. See State v. Cofone, 164 Conn. 162, 166-68, 319 A.2d 381 (1972) ; State v. Saraceno, 15 Conn.App. 222, 228-29, 545 A.2d 1116, cert. denied, 209 Conn. 823, 824, 552 A.2d 431, 432 (1988).

3 The sixth amendment to the United States constitution provides in relevant part: "In all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation ...."

4 Practice Book § 36-18 provides: "After commencement of the trial for good cause shown, the judicial authority may permit the prosecuting authority to amend the information at any time before a verdict or finding if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced. An amendment may charge an additional or different offense with the express consent of the defendant."

5 In light of our conclusion that Practice Book § 36-18 is violated even without a showing of prejudice, we need not reach the defendant's alternative ground for affirmance that the trial court abused its discretion in allowing the amendment because it improperly concluded that the defendant's substantial rights were not prejudiced by the amendment.

6 The dissent asserts, without citing any authority, that good cause exists when an amendment conforms the charge to the evidence. As an initial matter, the state never argued or represented to the trial court that the amendment was necessary to conform the information to the proof. More significantly, there is a long line of Appellate Court cases plainly to the contrary. See, e.g., State v. Enrique F., 146 Conn.App. 820, 824, 79 A.3d 140 (2013), cert. denied, 311 Conn. 903, 83 A.3d 350 (2014) ; State v. Victor C., supra, 145 Conn.App. at 65, 75 A.3d 48 ; State v. Jordan, supra, 132 Conn.App. at 825, 33 A.3d 307 ; State v. Grant, supra, 83 Conn.App. at 93-95, 98, 848 A.2d 549 ; State v. Wilson F., supra, 77 Conn.App. at 413, 823 A.2d 406.

7 To the extent the state summarily asserts in the course of its prejudice argument that good cause may have been implicit in the trial court's conclusion that defense counsel examined the defendant and the state's witnesses "with an eye toward" defending against interference at the police station, that argument is patently without merit. The existence of good cause is not examined in relation to the adequacy of the defense asserted, but the necessity for the amendment.

8 Undeterred by the state's decision not to challenge the Appellate Court's conclusion that the amendment charged additional offenses, and its concession of that point at oral argument, the dissent cherry picks facts out of the record in order to mount its own challenge to that conclusion, namely, that the relatively short time and distance between the two instances of alleged interference establish a "unity" in the defendant's conduct such that it could be characterized as "ongoing." It is unsurprising that the state has not cited to these facts because they are entirely irrelevant in light of undisputed and uncontestable evidence that the defendant was fully cooperative from the time he was placed in the police cruiser until he was brought into the police station and efforts were made to remove his vest. It was on the basis of that attenuation evidence that the Appellate Court based its unchallenged conclusion that the charges of interference were based on separate, distinct acts of alleged interference.

9 Although we conclude that a violation of the good cause requirement is not sufficient, in and of itself, to mandate reversal of a judgment of conviction, we fully expect our trial courts to preclude an amendment in the absence of a showing of good cause now that we have stated unequivocally that to do otherwise would be an abuse of discretion. Indeed, in a case like the present one, we would fully expect the trial court not only to require such a showing, but also to inquire why the state had failed to make its request at the earliest juncture possible. We are particularly troubled by the state's belated request in light of its first amendment to the information on the assault charge, its assurances that this amended information reflected the proper location for the interference charges, and its silence in the face of a request by defense counsel seeking a clarifying instruction to limit the jury's use of evidence regarding the incident in the holding cell in determining whether the defendant interfered with the officers.

10 Although it appears that almost every jurisdiction imposes by rule or statute similar requirements to those in the second and third requirements of Practice Book § 36-18, Connecticut appears to be alone in including a good cause requirement explicitly in our law.

11 These cases do not clearly state which party bears the burden or by what standard of proof.

12 A few other jurisdictions require reversal on different grounds, namely, that such amendments violate certain procedural or jurisdictional prerequisites. See, e.g., State v. Colwell, 124 Idaho 560, 566, 861 P.2d 1225 (1993) ("any amendment which charges the accused with a crime of greater degree or a different nature than that for which the accused was bound over for trial by the committing magistrate is barred by the Idaho [c]onstitution" [emphasis omitted] ); State v. McKeehan, 894 S.W.2d 216, 223 (Mo. App. 1995) (amendment that charges new or different offense violates permissive statute and deprives defendant of constitutional and statutory right to preliminary hearing on new charge). This prohibition on broadening an information beyond that which was authorized by the authority prescribed by law is the traditional justification for the common-law rule against the amendment of an indictment. See Russell v. United States, 369 U.S. 749, 770, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962) ("an indictment may not be amended except by resubmission to the grand jury, unless the change is merely a matter of form"); accord Stirone v. United States, 361 U.S. 212, 215-16, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). No issue has been raised in the present case that any procedural barrier existed to amending the information other than compliance with Practice Book § 36-18.

13 The dissent points to the charge of assault at the police station and the defendant's request for an instruction that the jury could not consider his conduct at the police station to support the interference charge as evidence that the defendant was on notice that the state was advancing the theory that the defendant had committed interference at the police station. The dissent apparently deems irrelevant the difference between having notice of facts to be put in evidence and having notice of the legal significance of those facts, as well as how that difference could bear on a defendant's decision whether to testify. Insofar as intent to interfere is an element of the charge of assault, the state was required to prove that the defendant had such intent when he kicked (assaulted) Smusz. Although the assault charge provided notice that conduct preceding the alleged assault could be relevant to the defendant's intent when he purportedly kicked Smusz, it did not give the defendant notice that such evidence would be used as a basis for independent criminal liability. With respect to the defendant's requested limiting instruction, the dissent ignores the context in which that request was made, namely, the defendant's justifiable reliance on the state's previous two unequivocal affirmations that the information properly limited the interference charge to the site of the vehicle stop.

ESPINOSA, J., dissenting.

In the present case the defendant, Enrique Ayala, was convicted of three counts of interfering with an officer in violation of General Statutes § 53a-167a, in connection with his conduct in a single criminal transaction that in its entirety lasted less than one hour, beginning when he intervened in a motor vehicle stop and ending approximately 1000 feet away in a holding cell at the Meriden police station. The question of whether the defendant interfered with the officers in the holding cell at the police station was thoroughly addressed by both parties during trial. With each of its witnesses, the state forcefully and consistently advanced its theory that the defendant's interference with the officers began at the motor vehicle stop and continued at the police station. Defense counsel meticulously and effectively attempted to parry the state's arguments by presenting the theory that the defendant cooperated with the police officers during the entire sequence of events, despite their alleged assaults on his person. I disagree with the majority, therefore, that the state's amended information in any way deprived the defendant of notice, charged him with an additional offense or prejudiced him. I conclude, to the contrary, that the amendment merely conformed the information to the evidence adduced at trial. I would hold that the Appellate Court improperly concluded that the trial court abused its discretion in allowing the amendment. State v. Ayala , 154 Conn.App. 631, 656, 106 A.3d 941 (2015). Accordingly, I respectfully dissent.

This court has explained that Practice Book § 36-18"is primarily a notice provision. Its purpose is to ensure that the defendant has adequate notice of the charges against which he must defend. State v. Jacobowitz , 182 Conn. 585, 590, 438 A.2d 792 (1981) [overruled in part on other grounds by State v. Welch , 224 Conn. 1, 4, 615 A.2d 505 (1992) ]." State v. Tanzella , 226 Conn. 601, 608, 628 A.2d 973 (1993). Specifically, § 36-18 safeguards a defendant's sixth amendment right "to be informed of the nature and cause of the accusation ...." U.S. Const., amend. VI. "For purposes of § [36-18], [therefore] the decisive question is whether the defendant was informed of the charges with sufficient precision to be able to prepare an adequate defense." State v. Tanzella , supra, at 608, 628 A.2d 973.

The question of whether the information provided the defendant with sufficient detail to enable him to prepare an adequate defense is a pragmatic one. The analysis properly should begin with a review of the original information and then proceed to an examination of the record to determine whether the parties evinced an understanding of the charges that supports the conclusion of the trial court that the amendment did not constitute an unfair surprise that deprived the defendant of notice. That review reveals that the defendant did have sufficient notice of the details of the charges to enable him to mount a defense.

It is significant that the original information charged the defendant not only with three counts of interfering with an officer in violation of § 53a-167a(a), but also with assault of public safety personnel, specifically a peace officer, in violation of General Statutes § 53a-167c(a)(1). As the majority explains, during voir dire, the prosecutor noticed that the information incorrectly stated that the assault occurred at the site of the motor vehicle stop rather than at the police station, and requested to amend the information to correct the error. That amendment was allowed without objection from the defendant and he does not challenge that amendment in this appeal. It is therefore undisputed that the state was required to prove that the defendant assaulted a peace officer at the police station. A person is guilty of assaulting a peace officer when, "with intent to prevent a reasonably identifiable peace officer ... from performing his or her duties , and while such peace officer ... is acting in the performance of his or her duties ... such person causes physical injury to such peace officer ...." (Emphasis added.) General Statutes § 53a-167c(a)(1). A person is guilty of interfering with an officer when "such person obstructs, resists ... [or] hinders ... any peace officer ... in the performance of such peace officer's ... duties." General Statutes § 53a-167a(a). It is readily apparent that there is substantial overlap between the elements of both offenses. Most significantly, in order to prove an assault of a peace officer, it is not sufficient for the state to prove that the defendant caused physical injury to the officer-the state must also prove that, in doing so, the defendant's intent was to prevent the officer from performing his or her duties. The information, therefore, placed the defendant on notice that, in order to prove an assault against a peace officer, the state was required to prove that-at the police station -the defendant acted with an intent to prevent Officer Margaret Smusz-the officer who the defendant allegedly assaulted-from performing her duty. Unsurprisingly, in order to prove that the defendant intended to prevent Smusz from performing her duty, the state elicited detailed testimony from each of the three officers involved regarding the defendant's resistance at the police station, making clear that its theory was that the defendant interfered with the police officers during the entire sequence of events, including those that occurred at the police station. During its examination of the officers, the state used the video recording of the events that took place at the police station, reviewing the video in great detail to support its theory that the defendant was resisting the officers in the holding cell. Specifically, the state elicited testimony from the officers that in the holding cell at the police station, the defendant physically and verbally resisted when they tried to remove his motorcycle club vest. The officers testified that the defendant responded to their attempts by stating, "fuck you, pigs," and "fuck you, you're not taking my colors." When the officers released the defendant from his handcuffs so that they could remove the vest, rather than keeping his hands behind his back as ordered, the defendant brought his arms forward, compelling the officers to contain him by pinning him against the wall in the corner of the holding cell. The officers then brought the defendant to the ground in order to place the handcuffs back on him. There were four officers on top of the defendant at that point, but he continued to resist. The defendant was facedown on the floor, and had locked his hands under his chest. The officers instructed him to place his hands behind his back, but the defendant refused to comply, and was kicking with his feet. Officer David Buck testified that he attempted unsuccessfully to use compliance techniques to make the defendant stop struggling, including pressure point techniques. When Buck's efforts failed to force the defendant to comply, he used a Taser to administer a "dry stun" to the defendant. Despite being stunned by the Taser, the defendant continued to resist the officers as they tried to place the handcuffs on him.

Defense counsel did not object to the state's line of questioning regarding his resistance to the officers in the holding cell at the police station as irrelevant, and instead cross-examined each of the three police officers at great length regarding whether the defendant complied with the officers' orders at the police station. For instance, with respect to the events at the police station, the majority of defense counsel's cross-examination of Buck, rather than targeting the alleged assault, focused on the alleged acts of interfering. Defense counsel used the police department video of those events to bring out the defense theory that, rather than resisting police, the defendant complied with their instructions. Throughout the cross-examination of the officers, counsel sought to demonstrate the defense theory that the defendant's motions were passive in nature-merely responses to being moved around by the officers.

Defense counsel painstakingly reviewed the video with Buck, emphasizing every instance in which the defendant appeared to be cooperating with the officers. Counsel began by calling Buck's attention to the beginning of the video, which showed the cruiser arriving in the sally port at the police station, and the officers removing the defendant from the cruiser. After playing that portion of the video, counsel asked Buck whether at that point in time it appeared that the defendant was cooperating. Buck answered in the affirmative. At one point in the video, it appeared that the defendant was being led into a room, and then led back out of it. Defense counsel questioned Buck about that sequence, asking whether he agreed that the defendant was "not resist[ing]" at that time. Buck agreed with that characterization. Defense counsel then called attention to the fact that when the officers brought the defendant into the holding cell, Officer Shane Phillips kicked the defendant's legs wide apart. Defense counsel then asked: "[I]s it safe to say that there is no resistance or problem at this point?" Buck responded that the defendant was not offering any physical resistance at that time. As the activity captured on the video further unfolded, defense counsel asked Buck whether the defendant was complying as the officers began to remove the defendant's clothing. Buck responded in the affirmative. Defense counsel then elicited testimony from Buck that, when the officers began to remove the defendant's handcuffs, the defendant appeared to be compliant.

Counsel also elicited testimony from Buck that supported the defense theory that the defendant's movements, as seen in the video, did not constitute resistance, and instead were involuntary responses to being physically handled by the officers. Specifically, Buck testified on cross-examination that when the officers spread the defendant's legs apart, the purpose was to put him off balance. Counsel also unsuccessfully attempted to elicit testimony from Buck that, at one point during the video, the defendant was being pulled in one direction by one officer and in a different direction by another officer, suggesting that the officers were placing him off balance. Defense counsel also asked Buck whether, when the defendant brought his arms forward, it was not for the purpose of resisting the officers, but in order to protect his face from getting smashed into the stone wall of the holding cell.

Defense counsel also directly challenged some of the testimony that the state elicited in support of its theory that the defendant interfered with officers in the holding cell. For example, Buck had testified that the defendant crouched down at one point in the holding cell. Defense counsel called that testimony into question by eliciting testimony from both Smusz and Phillips to the contrary. Defense counsel used the video itself to challenge the officers' statements that the defendant had swung his arms, pointing out during questioning that the video showed that the officers were holding the defendant's right arm.

During the direct examination of the defendant, defense counsel further developed the defense theory that the defendant did not interfere with the officers in the holding cell at the police station. In connection with the events at the station, defense counsel expressly asked the defendant: "So you weren't interfering with them? " (Emphasis added.) The defendant responded that he was not, because he did not want to provide the officers with an excuse to physically abuse him. The defendant's position was that during the entire evening, he cooperated with the officers because he believed that the more compliant he was, the sooner he would be able to post bond and be released. For example, the defendant testified that in the holding cell, he voluntarily assumed a stance with his legs wide apart and that, when the officers unlocked his handcuffs, he kept his hands behind his back. He also denied making any derogatory statements to the officers during this time. When the officers threw him against the wall, the defendant said, he "just stayed there." When Smusz was going through the defendant's pockets, he leaned one way, then another, to make it easier for her to reach into his pockets. The defendant further testified that when Buck warned him not to move, the defendant responded, "listen, I'm not-I'm not trying to resist. Officer Phillips is pulling me one way; you're pulling me the other way; I can't go both ways." The defendant denied objecting to the removal of his vest, and denied that he resisted when the officers removed the vest.

The defendant's testimony reiterated the same theory that the defense had presented in the cross-examination of the police officers: that his movements were simply a response to being placed off balance and being pushed and pulled by the officers. He testified that because he was placed in a wide-legged stance, at one point he lost balance, which prompted the officers to pin him into a corner of the holding cell. He emphasized, however, that he did not fight with or struggle with the officers in any way.

The defendant was clearly on notice that he had to defend against the state's allegation that he had interfered with the officers during the course of his actions on the morning of his arrest. The information's charge that he assaulted a peace officer at the police station placed him on notice that he would have to defend against the allegation that, at the police station, he acted with an intent to prevent Smusz from performing her duties. The line of questioning pursued by the state during the direct examinations of the three police officers methodically aimed to demonstrate that the defendant interfered with the officers in the holding cell at the police station. Defense counsel's questions of those same witnesses during cross-examination, and his questions of the defendant during direct examination, sought to dispute the state's theory, and to suggest an alternative interpretation of the defendant's movements in the video: that they were passive responses to the officers' physical handling of him rather than acts of interference.

Perhaps the best demonstration that the defendant was on notice that the evidence presented by the state in support of its charge that the defendant assaulted Smusz at the police station also supported the state's theory that the defendant interfered with the officers at the police station was defense counsel's motion, filed one day before counsel claimed that the amended information was an "unfair surprise." That motion asked the court to instruct the jury not to consider that evidence in connection with the interfering charges. Specifically, counsel pointed out that the original information did not state that the interfering conduct occurred both at the motor vehicle stop and at the police station. Counsel acknowledged his awareness that the evidence could support the determination that the defendant had interfered with the officers at the police station, by asserting that the "testimony about the defendant's cooperation or lack [thereof] while detained at the Meriden Police Department may confuse the jury as to [whether] the several counts of interfering with an officer apply to interfering while being detained at said department ...." The following day, the court summarized a prior off-the-record discussion, noting that the state intended to argue that the defendant's interfering conduct that began at the motor vehicle stop and continued at the police station constituted a "continuing course of conduct ...." In light of this sequence of events, the state's subsequent amendment to the information reasonably may be read to have sought to conform the charges to the evidence. State v. Franko , 199 Conn. 481, 492, 508 A.2d 22 (1986).

Because the defendant had notice, he was not prejudiced by the amendment. Defense counsel's cross-examination of the officers was thorough and well executed. The defendant's testimony provided further support for the defense theory that the video, rather than demonstrating that the defendant was interfering with the officers in the holding cell, showed that he was doing his utmost to comply with their instructions. The majority cannot point to any avenue of questioning that the defendant left unexplored. The sole ground upon which the majority bases its conclusion that the defendant was prejudiced was that he elected to testify. The majority, however, offers no explanation as to why the defendant might have made a different decision if the state had amended the information prior to his testimony, and makes no credible claim that the defendant's testimony hurt his case. Instead, rather than providing even a single detail explaining how the defendant's testimony caused him any prejudice in light of the amended information, the majority simply relies on its speculation that the defendant could have decided, in light of the change, not to testify. The defendant's testimony served the purpose of placing the defense theory squarely in front of the jury. Contrary to the accounts of the police officers that the defendant had consistently interfered with them, the defendant testified that he had been cooperative throughout the entire encounter, during which he was the victim of repeated assaults, verbal and physical, by the police officers. His testimony, therefore, asked the members of the jury to view the sequence of events in an entirely different light. That testimony, therefore, was a key part of the defense strategy, both as to the interfering counts and as to the assault charge.

As I have explained in this dissenting opinion, the defendant testified extensively regarding the events that took place at the police station-and that testimony emphasized the defense theory that I have discussed, that he was the victim of abusive conduct by the police. Until the amendment, of course, the defense's focus on the events in the police station were related to the felony assault charge. The amendment to the information meant that the very same facts that had been heavily litigated by the parties in connection with a felony charge now were also relevant to the already existing misdemeanor charges. The majority hangs its conclusion that the defendant was prejudiced by the amendment on the bizarre notion that the defendant, undeterred from taking the stand by the prospect of liability for a felony assault, would have changed his strategy and not taken the stand because he now faced liability for misdemeanors in connection with the events at the station. The majority ignores the fact that the purpose of Practice Book § 36-18 is to safeguard a defendant's right to be provided with notice of the charges "with sufficient precision to be able to prepare an adequate defense." State v. Tanzella , supra, 226 Conn. at 608, 628 A.2d 973. The amendment did not subject the defendant to any additional criminal liability. That is, no new counts were added to the information, and the amendment simply clarified that the state's theory was that the defendant interfered with the officers during the entire course of events, not merely at the motor vehicle stop.

I also observe that, although the majority suggests that the defendant might have elected not to testify in light of the amendment, the majority offers no explanation as to how the defendant's testimony was not relevant to his theory that he was not interfering with the officers at the station that night. To the contrary, his testimony regarding the events at the station, as I have summarized it here, was entirely consistent with defense counsel's cross-examination of the police officers. He testified that he believed that by cooperating with the officers and offering no resistance, he would shorten his ordeal, and that, because of that belief, he complied. The majority appears to suggest that the defendant's testimony during direct examination that he refused medical treatment somehow undercuts his claim that he did not interfere with the police officers in the performance of their duties. That testimony, however, relates to the defendant's interactions with an emergency medical technician, not to any of the three officers named in the interfering counts.

Defense counsel's response to the court's ruling granting the state's motion to amend the information confirms that-despite counsel's statement that the amendment constituted an "unfair surprise"-the original information had provided the defendant with sufficient detail to allow him to mount his defense. Specifically, after the motion to amend the information was granted, the defendant did not call any witnesses back to the stand. If, as the defendant now claims, he lacked notice that he needed to defend against the allegation that he interfered with the officers at the police station, one would think that he would have needed to recall witnesses in order to question them regarding that issue. Clearly, defense counsel did not believe that doing so was necessary. My review of the transcripts leads me to the same conclusion that defense counsel apparently arrived at-he already had asked the witnesses all the relevant questions required to cast doubt on the state's claim that the defendant had interfered with the officers in the holding cell at the police station.

Because I conclude that the defendant had sufficient notice that the state's theory was that the interfering charges included his conduct at the police station, I conclude that the trial court did not abuse its discretion in allowing the amendment. It is therefore unnecessary for me to consider whether the record demonstrated good cause¹ for the amendment and whether the amendment charged a different or additional offense. State v. Tanzella , supra, 226 Conn. at 608 and n.8, 628 A.2d 973. Because I disagree with the majority's conclusion that the amended information charged an additional offense, however, I briefly explain the basis for my disagreement with that conclusion.²

As I have observed in this dissenting opinion, the purpose of Practice Book § 36-18 is to protect a defendant's sixth amendment right "to be informed of the nature and cause of the accusation ...." U.S. Const., amend. VI. In light of that overarching purpose, this court has never rigidly construed the requirement that an amended information cannot charge an additional or different offense. Instead, the court has reviewed amendments with an eye toward determining whether the original information did not provide the defendant with notice of the "nature and cause of the accusation" that the state had brought against him. U.S. Const., amend. VI. For example, at issue in Tanzella were two amendments to the original information. State v. Tanzella , supra, 226 Conn. at 606, 628 A.2d 973. First, the information had charged the defendant with assault in the third degree in violation of General Statutes § 53a-61(a)(2), alleging that he recklessly caused serious physical injury to another person. That count was amended to reflect that the state alleged that the defendant intentionally caused physical injury to another person in violation of § 53a-61(a)(1). Id., at 607, 628 A.2d 973. Second, the original information had charged the defendant with threatening in violation of General Statutes (Rev. to 1993) § 53a-62 (a) (2), alleging that the defendant had threatened to commit a crime of violence with the intent of terrorizing another or causing serious public inconvenience. That count was amended to reflect that the state alleged that the defendant, by physical threat, intentionally placed or attempted to place another person in fear of imminent serious physical injury in violation of General Statutes (Rev. to 1993) § 53a-62 (a) (1). Id. This court recognized that the amendments changed both the mental state and the nature of the harm. Id., at 613, 628 A.2d 973. Because the amendments simply specified "alternative means of committing a single crime," however, the court concluded that they did not charge any additional or different offenses. Id., at 612-13, 628 A.2d 973.

In contrast to the amendments in Tanzella , the amendments to the information in the present case merely clarify where the acts of interfering occurred. The amendments do not change the mental state or the nature of the harm. They do not change the identity of the officers with respect to whom the defendant was charged with interfering, and they do not change the elements of the offense. The amended counts of the information simply make clear what already had become obvious from the questioning by both parties during the trial-that both sides understood the defendant's interfering conduct to have begun during the motor vehicle stop and to have continued at the police station. Accordingly, rather than charging an additional or different offense, the amended information merely conformed the charges to the evidence.

The trial court ruled that the defendant's actions constituted what it referred to as a "continuing course of conduct." I understand the court's use of that phrase, which I acknowledge does not constitute a legal term of art in this particular context, to mean that it viewed the defendant's conduct at the police station and at the motor vehicle stop to comprise a single criminal transaction. That understanding is supported by the evidence adduced at trial, which revealed that from start to finish, the defendant's charged conduct lasted less than one hour; the motor vehicle stop occurred a mere 1000 feet from the police station; and, with the exception of a few pauses in his interfering conduct, the defendant persisted in his resistance to the police throughout the encounter. Specifically, the encounter began shortly after 1 a.m., when Buck initially stopped the defendant's girlfriend, Michelle Sofianos, after observing her making an illegal U-turn near the intersection of Orange and Hanover Streets in Meriden. At approximately 1:27 a.m., the cruiser, with the defendant inside, pulled into the sally port at the nearby police station. The defendant's alleged assault, which marked the end of the defendant's charged conduct, occurred approximately fifteen minutes into the video-about forty-five minutes after Buck stopped Sofianos. During that time, the defendant interfered with the officers. The unity of the defendant's criminal conduct at the motor vehicle stop and the police station is not changed by the mere fact that while the defendant was interfering with the officers, they moved him to a different location. Nor is that unity defeated because the defendant did not physically resist during every single moment of those forty-five minutes. It is particularly significant that when the defendant was physically compliant, he was handcuffed, thereby preventing him from physically interfering. Of course, handcuffs could not stop the defendant from verbally interfering with the officers, and the officers testified that he did so. Phillips testified that after the defendant had been placed in handcuffs at the scene of the motor vehicle stop, he continued to be "verbally combative." Phillips explained that the defendant kept displaying "a lot of verbal aggression toward us, calling us pigs and using profanity toward us." Buck testified that in the sally port, the defendant, who was intoxicated, told the officers: "[F]uck you guys. Just leave me the fuck alone." When they brought him to the holding cell, Phillips testified, the defendant's ongoing verbal attacks on the officers continued. When questioned regarding what the defendant said, Phillips responded, "more expletives and calling us pigs."³ The defendant's physical interference resumed almost immediately after they removed the handcuffs in order to remove his vest, and he resumed his compliance soon after they placed the handcuffs back on him. The testimony and evidence presented at trial, therefore, demonstrated that the defendant's interference was ongoing. His conduct at the police station was part of the same criminal transaction that began at the motor vehicle stop, and the state's amended information merely conformed the charges to the evidence adduced at trial.

I emphasize that the basis for my dissenting opinion is my conclusion that the original information provided the defendant with sufficient notice to defend against the charges. That ability to defend was not affected by the amendment to the information. He extensively and thoroughly challenged the state's position that he interfered with the officers at the police station. The cross-examination of the police officers, taken together with the defendant's testimony, presented a coherent defense theory, that the defendant was a victim of police abuse. If he had believed that he was prejudiced by the amendment, he could have recalled witnesses to the stand or introduced additional evidence. He did not. The majority's decision, by ignoring the fact that the defendant fully litigated this issue, gives the defendant a windfall.

For all of the foregoing reasons, I would conclude that the trial court did not abuse its discretion in allowing the amendment. Accordingly, I respectfully dissent.

1 I note my agreement with the majority's acknowledgment that if the record were to reveal that the state lacked good cause for seeking to amend the information, that alone would not support a conclusion that the trial court abused its discretion in allowing the amendment. I further observe, however, that because the amended information conformed the charges to the evidence, the record reflects that there was good cause for the amendment. See State v. Franko, supra, 199 Conn. at 492, 508 A.2d 22. I therefore disagree with the Appellate Court's suggestion that in order for the record to establish good cause, there must have been "new evidence or evidence that the state had not anticipated to warrant amending the information at that time."State v. Ayala, supra, 154 Conn.App. at 647, 106 A.3d 941.

2 As I have explained, I ground this dissenting opinion on my conclusion that the original information provided the defendant with sufficient notice to mount a defense, and discuss the issue of whether the amendment charged the defendant with an additional offense solely to explain why I disagree with the majority that it does so.

As for the majority's claim that the state conceded this issue at oral argument, however, I disagree. It is at best unclear whether the state conceded this issue. At one point during argument, the state's attorney was comparing the present case with State v. Tanzella, supra, 226 Conn. at 601, 628 A.2d 973. By contrast to Tanzella, the state's attorney argued, in the present case, "we have an added crime ... and we have different conduct, but [he was] able to fully defend against that conduct." A few minutes later, however, the state's attorney expressed the opposite view. The Chief Justice asked: "You're not really disputing that this was an additional offense?" The state's attorney responded: "No, absolutely not. ... It is the same crime, and what they provided was an additional separate evidentiary basis for the conviction. You can call it whatever you want." (Emphasis added.) This response is inconsistent with the majority's claim that the state conceded this issue.

3 Because the defendant ceased to physically interfere with the officers after being placed in handcuffs, the majority incorrectly states that he was "fully cooperative ...." See footnote 8 of the majority opinion. The record demonstrates that the defendant merely adapted. When he was no longer able to offer physical resistance, he continued to resist the officers in the only means available to him-verbal interference. The interference was ongoing.