State v. Ayala ( 2015 )

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STATE OF CONNECTICUT v. ENRIQUE AYALA
(AC 35533)
Lavine, Prescott and Mihalakos, Js.
Argued September 23, 2014—officially released January 13, 2015
(Appeal from Superior Court, judicial district of New
Haven, geographical area number seven, Oliver, J.)
Katherine C. Essington, assigned counsel, for the
appellant (defendant).
Mitchell S. Brody, senior assistant state’s attorney,
with whom, on the brief, were Michael Dearington,
state’s attorney, and Seth R. Garbarsky, senior assistant
state’s attorney, for the appellee (state).
Opinion
LAVINE, J. The defendant, Enrique Ayala, appeals
from the judgment of conviction, rendered after a trial
to a jury, of three counts of interfering with an officer
in violation of General Statutes § 53a-167a. On appeal,
the defendant claims that the trial court abused its
discretion by (1) excluding from evidence a slow-
motion video of events that transpired at the police
station and (2) permitting the state to amend the infor-
mation at the conclusion of evidence. We reverse the
judgment of conviction.1
At trial, the state presented evidence through the
testimony of several Meriden police officers concerning
the defendant’s behavior and actions at a traffic stop
and later at the police station. The defendant presented
evidence to challenge the credibility of the police offi-
cers. The following evidence was before the jury.
Prior to the events that gave rise to this appeal, the
defendant spent the evening with family and friends at
a restaurant in Meriden. At approximately 1 a.m. on
February 9, 2012, the defendant’s girlfriend, Michelle
Sofianos, drove him home in an Avenger motor vehicle,
which was registered and insured in the defendant’s
name. After the defendant had reached his destination
and exited the Avenger, Sofianos made an illegal U-turn
near the intersection of Hanover and Orange Streets in
Meriden. Officer David Buck witnessed the illegal turn
and initiated a traffic stop.
The state presented evidence that before he got out
of his police cruiser, Buck informed the police dis-
patcher of his location. He then walked to the driver’s
side of the Avenger and asked Sofianos for the insur-
ance and registration cards. In the meantime, the dis-
patcher sent Officer Margaret Smusz to the scene. When
Smusz arrived, she parked her cruiser behind Buck’s
and walked to the passenger’s side of the Avenger.
Smusz observed the defendant and used a police code
to warn Buck that a man was approaching him from
behind. Buck turned and saw the defendant approach
him and ask with profanity why Sofianos was being
detained. The defendant appeared to the officers to be
intoxicated and belligerent. Buck ordered him to stand
on the sidewalk, which he did, but he meandered
between the sidewalk and the Avenger, swearing and
yelling at the police officers about the traffic stop. The
defendant was slurring his words, stumbling, and hold-
ing onto a street sign. In Smusz’ view, the defendant
was impeding Buck’s efforts to resolve the motor vehi-
cle stop. She instructed the defendant to be quiet and
let Buck conduct his investigation. Sofianos identified
the defendant, and Buck let her stand outside the
Avenger so she could speak to him, but she was unable
to calm him down.
Smusz again used a police code to inform Buck that
she previously had arrested the defendant for a narcot-
ics violation, and that the police had found an unli-
censed .45 caliber gun under the seat of the vehicle
that the defendant had been driving. Buck noted that
the defendant was wearing a leather vest bearing the
insignia of a motorcycle club. On the basis of his police
training, Buck believed that members of motorcycle
clubs typically carry weapons. He radioed for Officer
Shane Phillips to respond as additional backup. At the
time Phillips arrived, the defendant was milling around
on the sidewalk.
Phillips and Smusz approached the defendant but
feared for their safety. They asked the defendant if he
had any weapons on his person, and he stated that he
did not. Despite the defendant’s response, Smusz and
Phillips informed the defendant that given his police
history and their safety concerns, they were going to
pat him down for weapons. As Phillips began to pat
down the defendant, the defendant tensed up and
appeared to pull away. Phillips and Smusz each grabbed
one of the defendant’s arms and placed him on the hood
of the Avenger. Smusz put handcuffs on the defendant
and arrested him for interfering. The defendant
attempted to raise himself off the Avenger, but the offi-
cers pushed him down again. The officers found no
weapons as a result of the patdowns. Phillips and Smusz
took the defendant to Phillips’ cruiser to place him
inside, but he was uncooperative and pushed himself
away from the cruiser. During the encounter, the defen-
dant bit his lip, causing the lip to bleed. Thereafter,
the officers found blood on the cruiser. According to
Phillips, the defendant was upset and verbally aggres-
sive. Phillips drove the defendant to the police station
on West Main Street.2
At the police station, the defendant got out of the
cruiser in a secure garage and walked inside without
resisting the officers. The officers placed the defendant
against a wall with his legs in a wide stance before
putting him in a holding cell. When the holding cell was
ready, Buck, Phillips, Smusz, and the desk sergeant
took the defendant into a cell to remove the outer layers
of his clothing. According to Buck, the defendant was
compliant until the officers tried to remove his vest. The
defendant refused to cooperate and called the officers
‘‘pigs . . . .’’ Smusz removed the defendant’s handcuffs
to facilitate the removal of his vest. The defendant
uttered profanity and stated: ‘‘[Y]ou’re not taking off
my . . . colors.’’ Phillips kicked the defendant’s legs
out into a wide stance. According to the officers, the
defendant clutched his vest in his hands and moved
them forward to prevent Phillips from removing his
vest. In response to the defendant’s having moved his
hands, Buck testified that the officers ‘‘drove [the defen-
dant] into’’ the corner of the wall to contain him.
In order to put handcuffs back on the defendant,
Buck, Phillips, Smusz, and the desk sergeant forced the
defendant onto the floor, face down. The defendant
refused to put his hands behind his back, and the offi-
cers used ‘‘pain compliance techniques’’ to compel the
defendant to stop resisting. Smusz had her knee in the
defendant’s back, Buck held his legs, and the sergeant
pushed his face to the floor. The defendant thrashed
his legs and ‘‘donkey kicked’’3 Smusz in the thigh. When
the defendant failed to follow the officers’ commands
to stop resisting, Buck used a ‘‘dry’’ Taser stun4 on the
defendant’s bare inner thigh to subdue him.
As a result of having been ‘‘driven’’ into the wall,
the defendant sustained a bump on his forehead and a
swollen lip. The officers summoned medical assistance,
but the defendant resisted the officers’ efforts to sit
him up so that the medical personnel could attend to
him. The defendant swore at the medical personnel and
told them to leave him alone. According to Smusz, the
defendant already was in lockup and there was no need
for his behavior. The defendant refused to cooperate
with the booking process and suicide evaluation. The
officers, therefore, cut off his clothing and placed him
in a paper suit in a cell designated for suicide watch.
The defendant remained handcuffed.
The defendant presented the following evidence. The
defendant observed Buck stop Sofianos after she made
a U-turn. He approached the Avenger to help Sofianos
locate the registration and insurance cards. He and Sofi-
anos denied that the defendant was belligerent. They
also were in agreement that the defendant walked to
the curb when Buck instructed him to do so. Smusz
and Phillips arrived at the traffic stop in close succes-
sion, and immediately approached the defendant and
put him in handcuffs. Phillips stated to the defendant
that a person wearing a motorcycle club vest should
not approach a police officer. When the officers placed
the defendant on the hood of the Avenger for a patdown,
they did so with such force that the defendant’s face
hit the vehicle and his teeth penetrated the skin below
his lower lip. Sofianos and the defendant also agreed
that the defendant was not uncooperative when Phillips
and Smusz escorted him to Phillips’ cruiser, and that
the officers had difficulty opening the rear door.
The defendant denied that he called the police names
and swore at them at the police station. He also claimed
that he did not resist the removal of his vest. According
to him, when the officers were attempting to remove
his vest, Phillips and Buck were pulling him in opposite
directions. Phillips kicked his feet apart to put the
defendant in a wide stance. Due to his stance, the defen-
dant lost his balance when the officers were removing
his vest. He put his hands in front of his face to protect
himself from falling against the concrete bench in front
of him in the cell. When he was lying on the floor of
the cell, he was not able to put his hands behind his
back because the officers were twisting his arms.
The events that transpired at the police station were
recorded by a surveillance camera and shown repeat-
edly to the jury. Buck testified that although police
cruisers are equipped with surveillance equipment, the
camera in his cruiser had not been working for several
months. Smusz and Phillips did not activate the surveil-
lance cameras in their cruisers because police policy
directs that the first officer on the scene is responsible
for recording the incident. Smusz and Phillips were
unaware that Buck’s surveillance equipment was not
working. Given the defendant’s theory of defense that
he did not interfere with Buck during the traffic stop,
he cross-examined the officers extensively as to why
there was no recording of the events that took place
at the traffic stop. After the jury found the defendant
guilty of three counts of interfering with an officer in
violation of § 53a-167a,5 the court gave him an effective
sentence of two years of incarceration, consecutive to
a sentence the defendant was then serving.
The following procedural history is relevant to our
resolution of the defendant’s claim that the court
abused its discretion by permitting the state to amend
the charges against him after the commencement of
trial in violation of Practice Book § 36-18. See also State
v. Jordan, 132 Conn. App. 817, 825, 33 A.3d 307, cert.
denied, 304 Conn. 909, 39 A.3d 1119 (2012).
The short form information dated February 9, 2012,
charged the defendant with one count of assault of a
public safety officer in violation of General Statutes
§ 53a-167c and three counts of interfering with an offi-
cer/resisting in violation of § 53a-167a. On January 8,
2013, the day jury selection commenced,6 the state filed
a long form information accusing the defendant of
assault of a peace officer, charging that on ‘‘February
9, 2012, at the intersection of Hanover St. and Orange
St. in . . . Meriden, [the defendant], with the intent to
prevent a reasonably identifiable peace officer from
performing her duties and while said officer was in
performance of her duties, did cause physical injury to
said officer . . . Smusz, said conduct being in violation
of § 53a-167c (a) (1).’’7 Counts two, three, and four
accused the defendant of interfering with Smusz, Buck,
and Phillips, respectively, and charged that on ‘‘Febru-
ary 9, 2012, at the intersection of Hanover St. and
Orange St. in . . . Meriden, [the defendant] did
obstruct, resist and hinder a peace officer in the perfor-
mance of [her/his] duties . . . said conduct being in
violation of § 53a-167a (a) . . . .’’8 (Emphasis added.)
Two days later, on January 10, 2013, after the long
form information had been read to a venire panel during
jury selection; see footnote 6 of this opinion; the prose-
cutor informed the court that he intended to amend
count one of the long form information to change the
location of the alleged assault to West Main Street,
where the police station is located in Meriden. The
court asked the prosecutor whether the alleged location
of the interfering charges, Hanover and Orange Streets,
was accurate. The prosecutor stated that the location
of the interfering charges was ‘‘still accurate.’’9
On January 11, 2013, the court stated that it had
received an amended long form information. The court
inquired of both counsel whether the defendant should
be put to a new plea on the basis of the amendment;
both counsel stated, ‘‘[n]o . . . .’’ Defense counsel con-
ceded that the location of the alleged assault was clear
from a reading of the police report and that the amended
information had been discussed with the defendant.
On January 17, 2013, at the end of the state’s case,
the defendant filed a motion for a judgment of acquittal
as to all charges against him. The court denied the
motion for a judgment of acquittal. Also, on that date,
after having reviewed the court’s proposed jury instruc-
tion, defense counsel filed a request to charge the jury
to clarify the ‘‘multiple charges . . . .’’ Counsel repre-
sented his concern as relating to the testimony about
the defendant’s cooperation or lack thereof while
detained at the police station, and stated that the court’s
proposed charge might confuse the jury, as that was
not the way the state had charged the defendant in the
long form information. Defense counsel requested a
clarification to the court’s jury instruction: ‘‘ ‘You may
find that some evidence applies to more than one
count.’ ’’ Defense counsel suggested: ‘‘That evidence
concerning interfering with each or any officer not be
considered in any way as to what interference may or
may not have occurred in connection with the charge of
assault on an officer at the Meriden Police Department.’’
(Internal quotation marks omitted.)
On January 17, 2013, the defendant took the witness
stand to testify on his own behalf, but he did not com-
plete his testimony that day. The following day, before
the defendant resumed his testimony, however, the
prosecutor indicated that he was alleging a continuing
course of conduct with respect to the three counts of
interfering with an officer, that is, that the defendant’s
illegal conduct occurred during the traffic stop and
continued at the police station. The court stated that
it initially was not inclined to permit a continuing course
of conduct argument, but stated that ‘‘after review of the
case law and the annotations to the jury instructions, it’s
clear the law does allow, specifically as to interfering,
for the state to assert a continuing course of conduct
over the course of the contact with law enforcement
and the defendant.’’10 The court also stated that it
intended to craft a unanimity jury instruction.
At the conclusion of the defendant’s testimony on
January 18, 2013, the defense rested, and the state also
rested without presenting rebuttal evidence. On Janu-
ary 22, 2013, the state filed a second amended long
form information (second amended information) with
respect to the three counts of interfering with an officer.
The second amended information charged as to the
defendant’s alleged interference with Smusz, Buck, and
Phillips, respectively, that on February 9, 2012, ‘‘at the
intersection of Hanover St. and Orange St. and at the
Meriden Police Department . . . the [defendant] did
obstruct, resist and hinder a peace officer in the perfor-
mance of [his/her] duties . . . in violation of . . .
§ 53a-167a (a).’’11 (Emphasis added.)
In response, defense counsel stated that the second
amended information came as ‘‘a bit of an unfair sur-
prise coming at the end of evidence or close to the end
of evidence,’’ and could affect and alter final argument
because the defendant was being charged for the first
time with interfering at the police department. The
court, however, permitted the state to amend the infor-
mation after concluding that there was no unfair sur-
prise to the defendant.12 The court stated that it had
reviewed the police report, and that defense counsel
had examined the defendant and cross-examined the
state’s witnesses ‘‘with an eye toward being able to
argue’’ that the defendant had not interfered with the
police at Hanover and Orange Streets and at the
police station.
The state also filed an amended request to charge,
which it referred to as a unanimity charge.13 The court
included the unanimity charge in its instructions to the
jury. See footnote 13 of this opinion.
We now turn to the defendant’s claim that the court
abused its discretion by permitting the state to amend
the information at the conclusion of evidence in viola-
tion of his sixth amendment rights under the federal
constitution14 and his right to due process in that he
did not have adequate notice of the claims against him.15
The defendant posits two arguments in support of his
claim: (1) the amendment adding a new location for
the interfering offenses was not made in good faith16
and constituted an additional charge, and (2) he was
prejudiced by the amendment.17 On the basis of our
review of the record, we find that not only did the court
fail to make a finding of good cause to permit the state
to amend the information but also that the state failed
to carry its burden to demonstrate good cause for the
amendment. In addition, we conclude that the second
amended information charged the defendant with an
additional crime. We conclude, therefore, that the court
abused its discretion by permitting the state to amend
the information at the conclusion of evidence.
The defendant’s claim is governed by Practice Book
§ 36-18, which provides: ‘‘After commencement of the
trial for good cause shown, the judicial authority may
permit the prosecuting authority to amend the informa-
tion at any time before a verdict or finding if no addi-
tional or different offense is charged and no substantive
rights of the defendant would be prejudiced. An amend-
ment may charge an additional or different offense with
the express consent of the defendant.’’18 (Emphasis
added.) The party seeking to amend the information
bears the burden of demonstrating good cause. See
State v. Jordan, supra, 132 Conn. App. 823. Appellate
courts review a trial court’s decision to permit an
amendment to the information after the commence-
ment of trial under the abuse of discretion standard.
See, e.g., State v. Mullien, 140 Conn. App. 299, 311, 58
A.3d 383 (2013).
The defendant first argues that the court failed to
make the requisite finding of good cause to permit the
state to amend the second long form information and
that the state failed to demonstrate good cause. We
agree.
In the original information, the defendant was
charged with one count of assault of a public safety
officer and three counts of interfering/resisting. The
case was called to trial on January 8, 2013. Just before
a venire panel was brought into the courtroom for jury
selection, the prosecutor filed a long form information
charging one count of assault of a peace officer at
Hanover and Orange Streets, and three counts of
interfering with an officer at the same location. On
January 10, 2013, after that long form information was
read to a venire panel; see footnote 6 of this opinion;
the prosecutor sought to amend the first count charging
the defendant with assault of a peace officer by chang-
ing the location of the assault charge to the Meriden
police station.19 Moreover, the prosecutor represented
in response to an inquiry from the court that the location
of the three interfering charges was accurate as alleged,
i.e., Hanover and Orange Streets. See footnote 9 of
this opinion. The record demonstrates that each of the
police officers testified that he or she met with the
prosecutor to discuss his or her testimony prior to trial
and that the surveillance video was available for the
prosecutor’s review.
The procedural history further discloses that after he
reviewed the court’s proposed jury instructions,
defense counsel filed a request for clarification of the
court’s instructions. Defense counsel stated his con-
cern: ‘‘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;
that is not the way the state has charged the defendant
in its long form information.’’
The next day, however, the prosecutor informed the
court that he was alleging a ‘‘continuing course of con-
duct’’20 with respect to the three interfering charges to
include the defendant’s actions at the police station.
The prosecutor provided the court with citations to
three cases for the proposition that time, date, and place
are not elements of an offense.21 After the prosecutor
filed the second amended long form information, the
court stated that it would permit the state to amend the
information to include allegations that the defendant
interfered with the officers at the police station. The
court stated that it had read the cases cited by the
prosecutor, as well as the police report, and that defense
counsel had examined the defendant and cross-exam-
ined the police officers with an eye toward being able
to argue that the defendant had not interfered with
the police at Hanover and Orange Streets and at the
police station.
The court, however, did not make an express finding
that there was good cause to permit the state to amend
the information for a third time at the close of evidence.
That omission is troubling given the prosecutor’s repre-
sentation at the time he sought to amend the long form
information to allege that the assault on Smusz took
place at the police station. At that time, the court specifi-
cally asked the prosecutor whether the alleged location
of the three interference counts at Hanover and Orange
Streets was accurate. The prosecutor represented that
the location of the interference charges was accurate,
i.e., Hanover and Orange Streets. See footnote 9 of this
opinion. When it ruled on the state’s request to amend
after all evidence had been concluded, the 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. The court’s failure to make
a good cause finding is significant because the request
to amend the long form information came after defense
counsel took steps to limit the jury’s use of the evidence
regarding the incident in the holding cell. The court, in
fact, failed to make any finding of good cause to amend
the information after the close of evidence. Moreover,
on this record, we are unable to conclude that there
was any basis on which the court could have made a
finding of good cause to permit the state to file the
second amended long form information.
The state contends on appeal that Practice Book § 36-
18 should be construed to permit the court to exercise
its discretion to permit amendment, even if there is no
good cause. In support of its contention, the state cites
State v. Van Eck, 69 Conn. App. 482, 491, 795 A.2d 582,
cert. denied, 260 Conn. 937, 802 A.2d 92, cert. denied,
261 Conn. 915, 806 A.2d 1057 (2002). Van Eck, however,
is factually distinguishable. The defendant, Herman Van
Eck, was operating a bus on Interstate 95 in Westport
when he was stopped by Officer Richard Valentukonis.
Id., 485. Valentukonis determined that the bus was regis-
tered in Delaware. He issued a citation to Van Eck for
failing to register the bus in Connecticut. Id. The citation
cited General Statutes § 14-12 (a). Id. Following a trial
to the court, Miano, J., the defendant was convicted
of violating General Statutes § 14-12a. Id.
On appeal, Van Eck claimed that ‘‘because the sum-
mons cited § 14-12 (a), rather than § 14-12a, he was not
timely apprised of the charge against him.’’22 Id., 486.
On direct examination, Valentukonis testified regarding
the registration of the vehicle. Id. Van Eck represented
himself and on cross-examination asked Valentukonis:
‘‘You appear to cite [§ 14-12 (a)], but when looking at
the statute book, there’s another statute, which is § 14-
12a without parentheses. Are we to assume that you
intended § 14-12 (a)? That’s what the ticket said. That’s
not clear in my mind.’’ (Internal quotation marks omit-
ted.) Id. ‘‘After a brief discussion with the court regard-
ing notice and the court’s acquiescence that [Van Eck]
should have been charged with § 14-12a, Van Eck con-
tinued his cross-examination of Valentukonis.’’ (Foot-
note omitted.) Id., 486–87. Judge Miano continued the
case during the testimony of one of the state’s wit-
nesses. Id., 488. When the proceedings resumed, Van
Eck cross-examined the witness extensively regarding
the identification of the bus and where it was garaged.
Id. Van Eck then presented his own case. Id.
This court affirmed the judgment of the trial court
in Van Eck, reasoning that ‘‘the state neglected to amend
the information formally after [Van Eck] had elicited
the discrepancy between the ticket citation and the
arresting officer’s testimony as to the charge. Both par-
ties proceeded on the basis of § 14-12a, and the court
rendered judgment on that basis.’’ Id., 490. The purpose
of Practice Book § 36-18 is to put the defendant on
notice, and Van Eck had ‘‘actual notice of the offense
with which he was charged.’’ Id. That is not the circum-
stance in the case before us now, where the state filed
a second amended information after the defendant had
rested his case. He defended his case with notice of an
assault on Smusz that took place at the police station
and an interference charge that took place during the
traffic stop. He did not have notice until the end of
evidence that the state was charging him with interfer-
ence at the police station.
Even if the record supported a finding of good cause,
which it does not, the state was not entitled to amend
the information because the second amended long form
information alleged an additional charge, as the defen-
dant argues. Whether the charges of interfering at the
traffic stop and at the police station arose out of the
same transaction or are separate crimes is a question
of law. See State v. Tweedy, 219 Conn. 489, 494, 594
A.2d 906 (1991) (whether conviction of two counts of
same offense that arose out of same transaction consti-
tuted violation of double jeopardy clause). The plenary
standard of review applies to questions of law. See State
v. Burnell, 290 Conn. 634, 642, 966 A.2d 168 (2009)
(double jeopardy claims present question of law).
‘‘Practice Book § [36-18] is primarily a notice provi-
sion. Its purpose is to ensure that the defendant has
adequate notice of the charges against which he must
defend. . . . Consequently, we do not determine
whether offenses are different or additional by compar-
ing the elements of the respective offenses as we do
when we consider certain claims concerning double
jeopardy. . . . Instead, the decisive question is
whether the defendant was informed of the charges
with sufficient precision to be able to prepare an ade-
quate defense.’’ (Citations omitted; internal quotation
marks omitted.) State v. Rodriguez, 69 Conn. App. 779,
793, 796 A.2d 611, cert. denied, 260 Conn. 938, 802 A.2d
91 (2002).
‘‘A criminal defendant has a 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 U.S. Const., amend. VI. ‘‘When the state’s plead-
ings 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.) State v. Morrill, 197
Conn. 507, 551, 498 A.2d 76 (1985).
‘‘The trial court’s discretion pursuant to Practice
Book [§ 36-18] is limited only by the requirement that
no additional or different offense may be charged in
and no substantive rights of the defendant may be preju-
diced by an amended information.’’ (Internal quotation
marks omitted.) State v. Ryan, 53 Conn. App. 606, 620,
733 A.2d 273 (1999). In the present case, the second
amended information added a new offense. ‘‘If the state
seeks to amend charges after the commencement of
trial, it shoulders the burden of establishing that no
substantive rights of the defendant would be preju-
diced. . . . Like any other party petitioning the court,
the state must demonstrate the basis for its request.
Under [§ 36-18], the state must show: (1) good cause
for the amendment; (2) that no additional or different
offense is charged; and (3) that no substantive right of
the defendant will be prejudiced. This allocation of
burden encourages the state to prepare its case care-
fully because it bears the burden to justify subsequent
adjustments.’’23 (Citation omitted; emphasis added.)
State v. Tanzella, 226 Conn. 601, 614–15, 628 A.2d
973 (1993).
The timing of an amendment to the information is
central to the determination as to whether it should
be permitted, with a distinction being drawn between
amendments proposed before and during trial. A critical
consideration is whether the amendment made during
trial came before the defense presented its evidence.
People v. Jefferson, 934 P.2d 870, 872 (Colo. App. 1996);
5 W. LaFave et al., Criminal Procedure (3d Ed. 2007)
§ 19.5 (b), p. 311. Generally, an amendment to the infor-
mation may be permitted during trial provided the
amendment does not (1) result in prejudice to the
accused or (2) charge a different crime. See 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) (ordering new trial
after improper amendment).
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. 5 W.
LaFave et al., supra, § 19.5 (b), p. 312; see, e.g., McGahan
v. State, 606 P.2d 396, 397 (Alaska 1980) (amendment
altered charge from attempting to destroy evidence to
attempting to destroy and conceal evidence improper).
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 inter-
fered with the police officers, the substantive crime, at
two separate locations, i.e., two factually different
crimes.
At trial, the defendant objected to the second
amended information as a surprise that could affect or
alter his final argument because for the first time he
was being charged with interference that allegedly
occurred at the police station. The state argued in
response that the defendant’s actions at the scene of
the traffic stop and in the holding cell constituted a
continuing course of conduct. We conclude that the
charge that the defendant interfered with the officers
at the police station was based on discrete acts of inter-
ference constituting an additional crime and was not
part of a ‘‘continuing course of conduct.’’
In concluding that the defendant’s alleged acts at the
traffic stop and at the police station were separate and
distinct acts or transactions, we are guided by State v.
Tweedy, supra, 219 Conn. 489. In Tweedy, our Supreme
Court determined that the conviction of the defendant,
Larry Tweedy, of two counts of robbery in the first
degree did not constitute double jeopardy. Tweedy’s
conviction was based on two counts of a ‘‘substitute
information, in which the state respectively alleged that
[Tweedy] had robbed the victim at approximately 8:30
a.m. on October 2, 1988, at [her apartment] in the City
of New Haven, and then had robbed her again at approx-
imately 9:00 a.m. on October 2, 1988 at 77 Broadway [her
bank] in New Haven . . . . According to [Tweedy], the
events at the victim’s apartment and the bank were part
of a continuing transaction during which he committed
a single robbery. The separation of this transaction to
form the basis of two robbery charges and convictions,
[Tweedy] maintains, contravenes the legislature’s intent
that the unit of prosecution for the crime of robbery
turn upon the number of victims intimidated for a defen-
dant’s use or threatened use of force. Where, as here,
a single victim is subjected to continuous intimidation
by a defendant’s unceasing forcible conduct, [Tweedy]
claims that the legislature intended that such a course
of conduct be punished as a single robbery.’’ (Internal
quotation marks omitted.) Id., 496–97.
In resolving Tweedy’s claim, our Supreme Court rea-
soned that ‘‘[d]ouble jeopardy prohibits multiple pun-
ishments for the same offense in the context of a single
trial. Nonetheless, distinct repetitions of a prohibited
act, however closely they may follow each other . . .
may be punished as separate crimes without offending
the double jeopardy clause. . . . The same transaction,
in other words, may constitute separate and distinct
crimes where it is susceptible of separation into parts,
each of which in itself constitutes a completed offense.
. . . [T]he test is not whether the criminal intent is one
and the same and inspiring the whole transaction, but
whether separate acts have been committed with the
requisite criminal intent and are such as are made pun-
ishable by the [statute].’’ (Citations omitted; internal
quotation marks omitted.) Id., 497–98.
‘‘If a violation of law is not continuous in its nature,
separate indictments may be maintained for each viola-
tion. Thus, a distinct repetition of a prohibited act con-
stitutes a second offense and subjects the offender to
an additional penalty. 21 Am. Jur. 2d, Criminal Law
§ 267.’’ (Internal quotation marks omitted.) State v.
Snook, 210 Conn. 244, 261, 555 A.2d 390, cert. denied,
492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989).
‘‘[E]ach separate act of forcible sexual intercourse con-
stitutes a separate crime.’’ (Internal quotation marks
omitted.) Id., 262.24
In this case, the state’s initial long form information
charged three counts in which the defendant interfered
with an officer ‘‘at the intersection of Hanover St. and
Orange St. . . .’’ Near the conclusion of evidence, the
defendant filed a request to charge that the jury not
consider the evidence presented as to the assault
against Smusz when considering the interfering
charges. Thereafter, the state filed the second amended
information charging that the defendant interfered with
the officers at the police station, claiming that it was
a continuing course of conduct. Notwithstanding the
state’s attempt to conflate the traffic stop and police
station conduct into one event, the evidence demon-
strates that the charges of interference were based on
two separate, distinct acts of alleged interference
occurring at separate places, and separated by the trans-
porting 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).
The defendant was arrested at the scene of the traffic
stop for disrupting Buck’s motor vehicle investigation.
Thereafter, the defendant was placed in Phillips’ police
cruiser and taken to the police station where he exited
the cruiser in a secure garage. The surveillance video
demonstrates that the defendant exited the police vehi-
cle and walked into the police station where he was
placed against a wall while the holding cell was readied
for him. None of the officers claimed that the defen-
dant’s behavior from the time he entered the police
cruiser until he entered the holding cell was disruptive
or constituted interference. The officers claimed that
the defendant became disruptive and interfered when
they attempted to remove his vest. We conclude that
the defendant’s alleged interference at the traffic stop
on Hanover and Orange Streets and his alleged refusal
to let the officers remove his vest at the police station
comprised not one, but two distinct acts or transactions
separated by time and location.
Because we conclude that the state failed to demon-
strate good cause to permit the information to be
amended at the conclusion of evidence, and because
the second amended long form information alleged an
additional crime, the court abused its discretion by per-
mitting the amendment. We therefore reverse the judg-
ment of conviction.
The judgment is reversed and the case is remanded
for a new trial.
In this opinion the other judges concurred.
1
Because we conclude that the court abused its discretion by permitting
the state to amend the information, we do not address the defendant’s
evidentiary claim.
2
Buck did not issue a traffic citation to Sofianos and released her.
3
According to Smusz, a ‘‘donkey kick’’ is a backward kick.
4
A dry stun is given when the Taser cartridge has been removed from
the device ‘‘so the prongs don’t shoot.’’
5
The jury also found the defendant not guilty of one count of assault of
a peace officer in violation of General Statutes § 53a-167c (a) (1),
6
For purposes of Practice Book § 36-18, a trial begins with the voir dire.
State v. Tanzella, 226 Conn. 601, 608, 628 A.2d 973 (1993). Section 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. . . . The
importance of notice is the reason that [§ 36-18] defines the commencement
of trial as the voir dire rather than the swearing-in of the jury: the defendant
needs to know the nature of the accusations against him in order to question
jurors effectively.’’ (Citation omitted.) Id.
7
General Statutes (Rev. to 2011) § 53a-167c (a) provides in relevant part:
‘‘A person is guilty of assault of public safety . . . personnel when, with
intent to prevent a reasonably identifiable peace officer . . . from per-
forming his or her duties, and while such peace officer . . . is acting in
the performance of his or her duties, (1) such person causes physical injury
to such peace officer . . . .’’
8
General Statutes (Rev. to 2011) § 53a-167a (a) provides in relevant part:
‘‘A person is guilty of interfering with an officer when such person obstructs,
resists, hinders or endangers any peace officer . . . in the performance of
such peace officer’s . . . duties.’’
9
The record reveals the following colloquy between the court and the pros-
ecutor:
‘‘[The Prosecutor]: . . . When madam clerk was reading the information
today, one of the charges had the incorrect street address for which the
assault on an officer occurred. So, I do intend, with the court’s permission,
just to amend that. I know it’s not an element of the crime, but I think it
should be accurately listed in the information. I think it’s the first charge
that has the incorrect address.
‘‘The Court: Hanover Street and Orange Street.
‘‘[The Prosecutor]: Yeah. It’s actually on West Main Street. It occurred—
the allegation is that it occurred at the police station, which is actually on
West Main Street.
‘‘The Court: The interfering, it says Hanover and Orange. Is that accurate?
‘‘[The Prosecutor]: That’s still accurate. I’m going to just double check
the police report and make sure that all the T’s are, so called, crossed, but
I will have that tomorrow morning.
‘‘The Court: All right. So, we’ll—that certainly doesn’t sound like a material
change. It certainly may be once [defense counsel] has the opportunity to
think about it, as to where the alleged assault or the assault is alleged to
occur, whether that’s clear from the police report, so as not to be surprise
or any prejudice. And as long as no jurors live on whatever street, West
Main Street . . . .’’ (Emphasis added.)
10
The court did not identify the cases to which it was referring, and the
parties have not identified those cases on appeal. We know of no case in
which an appellate court of this state has considered whether the state may
charge a continuing course of conduct for the offense of interfering with
an officer.
11
Counsel for the parties agreed that the second amended information
did not have to be read to the jury. The court stated that it was the operative
charging document.
12
The following colloquy transpired when the prosecutor offered the sec-
ond amended information:
‘‘[The Prosecutor]: We did discuss this briefly last week in regard to the
unanimity instruction, which was likely going to come from the court. The
state felt that by amending the information, that would actually make it a
little bit easier for the jurors to comprehend that unanimity instruction.
Therefore, I am requesting that that be allowed to be amended. The case
law is relatively clear in regard to amending informations during, and even
after . . . evidence . . . . I also noted that I charged that in the conjunctive
to prove in the disjunctive; therefore, there’s obviously notice that both of
the places are being alleged and the jury can find, based on unanimity, one
or the other. So, that is the state’s request.
‘‘The Court: Thank you . . . this had been obviously the subject of much
discussion and argument Friday. However, we now have a formal
amended information.
‘‘[Defense Counsel]: Correct. Only for the record, that it is my opinion
that it’s a bit of 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 . . . assuming that now he’s being charged with interfering at the
holding part at the police station. So, I’ll note for the record that . . . as
far as I’m concerned, I believe it’s an unfair surprise.
‘‘The Court: Thank you. That is noted and the record will reflect that the
conversations related to this topic were brought up and argued last week
and the court’s conclusion remained the same; that based on the substance
of the testimony, what’s in the police report the court has reviewed generally,
and the—the way in which cross-examination of the police officers was
conducted and the direct examination of [the defendant] was conducted,
that there was no unfair surprise and that 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, based
on the testimony, at the motor vehicle stop at Hanover and Orange Streets.
But counsel’s comments are noted for the record. And the court ruled on
this Friday.’’
The state’s brief implies that the conversations and arguments to which
the court made reference took place during an in-chambers charging confer-
ence of which there is no record.
13
The state’s amended request to charge stated: ‘‘The state has alleged that
the defendant has committed the offense[s] of interfering at two different
locations, the intersection of Hanover and Orange Streets AND at the Meri-
den Police Department. You may find the defendant guilty of the offense only
if you all unanimously agree on which of the two locations the defendant
committed the offense[s]. 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 of interfering 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 of
interfering at the Meriden Police Department.’’ (Emphasis added.)
The defendant correctly points out in his brief on appeal that the unanimity
charge is inconsistent with the state’s claim of a continuing course of
conduct.
14
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 . . . .’’
15
In its brief, the state argues that the defendant failed to distinctly raise
his claim in the trial court or assert a bypass doctrine for unpreserved claims
on appeal. The state also argues that the defendant waived his good cause
claim by limiting his objection at trial to the prejudicial effect of the amend-
ments. We disagree on the basis of the precedent established by our Supreme
Court and this court. Although the defendant did not use the words of
Practice Book § 36-18, he made known to the court that an amendment
coming at the close of evidence was an unfair surprise, which functionally
preserved the claim for appeal. See State v. Fernando A., 294 Conn. 1, 31
n.26, 981 A.2d 427 (2009) (eschewing hypertechnical and unduly restrictive
application of preservation rules); Rowe v. Superior Court, 289 Conn. 649,
660–63, 960 A.2d 256 (2008) (despite inartful objection, trial court understood
its basis and was not ambushed on appeal).
Moreover, the record discloses, and the state acknowledged, that the
parties had an off-the-record discussion with the court regarding the unanim-
ity instruction. The court acknowledged that there had been much discussion
and argument of the matter. See footnote 12 of this opinion. The court
therefore was well aware of the defendant’s position regarding the use of
evidence with respect to the charges in the amended long form information.
See State v. Favoccia, 119 Conn. App. 1, 16, 986 A.2d 1081 (2010) (purpose
of preservation requirement to provide notice to court and opposing party
of legal question; court’s response demonstrates notice), aff’d, 306 Conn.
770, 51 A.3d 1002 (2012); State v. Guckian, 27 Conn. App. 225, 239 n.7, 605
A.2d 874 (1992) (review afforded where party did not object to testimony
but previously alerted trial court to precise question of law), aff’d, 226 Conn.
191, 627 A.2d 407 (1993).
16
The defendant has used the term good faith with respect to the state’s
amending the long form information after the close of evidence. We need
not decide whether the state amended the information in good faith, as the
defendant’s claim requires us to determine whether the court found good
cause to permit the state to amend the information. See Practice Book § 36-
18. The defendant has conflated the terms good faith and good cause in his
brief. Because we review the actions of the court pursuant to Practice Book
§ 36-18, we use the term good cause.
17
Because we conclude that the court did not find good cause to permit
the state to amend the information after the close of evidence and that
the amendment added an additional charge, we do not reach the question
of prejudice.
18
In this case, the defendant did not consent to the state’s second
amended information.
19
The defendant does not claim that the amendment to count one was
improper.
20
The state has failed to identify a legal basis in Connecticut law for its
charging theory that the defendant’s acts at the traffic stop and later at the
police station constitute a ‘‘continuing course of conduct.’’ The ‘‘continuing
course of conduct’’ doctrine is most commonly used in an attempt to avoid
a statute of limitations defense in medical malpractice actions. See, e.g.,
Watts v. Chittenden, 301 Conn. 575, 583, 22 A.3d 1214 (2001). We are unaware
of its having been endorsed by our courts in a criminal case such as this one.
21
The prosecutor identified State v. Beverly, 224 Conn. 372, 379, 618 A.2d
1335 (1993) (place not element of crime); State v. Bergen, 214 Conn. 657,
670, 574 A.2d 164 (1990) (time not element of offense); State v. Morrill, 197
Conn. 507, 551–52, 498 A.2d 76 (1985) (place not element of crime); State
v. Parsons, 28 Conn. App. 91, 98, 612 A.2d 73 (time not element of crime),
cert. denied, 223 Conn. 920, 614 A.2d 829 (1992)
Although we agree that the date, time, and place are not elements of the
crime of interfering with an officer, the cases cited by the prosecutor do
not stand for the proposition that discrete acts of interference separated
by time constitute a continuing course of conduct. Neither the parties nor
we have found a case in Connecticut holding that a continuing course of
conduct theory can apply to the facts of the present case. See footnote 20
of this opinion.
22
‘‘Section 14-12 (a) provides in relevant part that ‘[n]o motor vehicle
shall be operated or towed on any highway, except as otherwise expressly
provided, unless it is registered with the commissioner [of motor vehicles]
. . . .’ Section 14-12a (a) specifically governs the registration of commercial
motor vehicles and requires the registration of a commercial vehicle if it is
most frequently garaged in this state or if it most frequently travels in and
out of the state in the normal course of its operations. ‘Where there are
two provisions in a statute, one of which is general and designed to apply
to cases generally, and the other is particular and relates to only one case
or subject within the scope of a general provision, then the particular provi-
sion must prevail . . . and be treated as an exception to the general provi-
sion.’ ’’ (Emphasis in original.) State v. Van Eck, supra, 69 Conn. App. 488–89.
23
It does not escape our notice that the state amended the long form
information twice after a venire panel was sworn in. See footnote 6 of
this opinion.
24
Compare State v. Thompson, 197 Conn. 67, 72–73, 495 A.2d 1054 (1985)
(sales of narcotics between parties five days apart constitute separate trans-
actions); State v. Browne, 84 Conn. App. 351, 373–77, 854 A.2d 13 (engaging
officers in pursuit in Middletown and on Route 9 and Interstate 95 two
separate acts), cert. denied, 271 Conn. 931, 859 A.2d 930 (2004); State v.
Williams, 59 Conn. App. 603, 607, 757 A.2d 1191 (carrying pistol without
permit on different but uninterrupted days not continuing course of con-
duct), cert. denied, 254 Conn. 946, 762 A.2d 907 (2000); but see State v.
Channer, 28 Conn. App. 161, 166, 612 A.2d 95 (defendant engaged in continu-
ing course of conduct by swerving vehicle to impede victim’s travel, cutting
off vehicle, threatening victim, brandishing gun, stealing vehicle), cert.
denied, 223 Conn. 921, 614 A.2d 826 (1992).