State v. Ayala

324 Conn. 571

153 A.3d 588

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.^*

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...