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State v. Ayala

Supreme Court of Connecticut

February 7, 2017


          Argued September 15, 2016

          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. [*]


          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 in to 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 per- mission 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 constitution[3] and his due process right to proper notice of the charges against him. State v. Ayala, supra, 154 Conn.App. 643. 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 § 36-18[4] rendered the trial court's decision an abuse of discretion that required reversal of the judgment of conviction. Id., 644 n.17, 655-56.

         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., 644, 647-48. 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., 647. 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., 648-49.

         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., 650. 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., 652. 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. 655. 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., 643 n.13. 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., 656.

         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.


         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., 608.

         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. 614 (‘‘[l]ike any other party petitioning the court, the state must demonstrate the basis for its request [to amend the ...

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