State v. Ayala ( 2017 )

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STATE OF CONNECTICUT v. ENRIQUE AYALA
(SC 19466)
Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.*
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, assis-
tant state’s attorney, for the appellant (state).
Katherine C. Essington, for the appellee (defendant).
Opinion
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 judg-
ment 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 con-
clude, 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 Meri-
den police officers and an emergency medical techni-
cian 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 ille-
gal 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 there-
after 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 side-
walk, 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 offi-
cers, 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. Notwith-
standing 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 ser-
geant 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 offi-
cers 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 sus-
tained 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 differ-
ent 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 testi-
fied 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 defen-
dant 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 Phil-
lips 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 offi-
cers 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 defen-
dant 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 intersec-
tion 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 prosecu-
tor 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 exami-
nation 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 inter-
ference 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 defen-
dant 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 commit-
ted 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 Han-
over and Orange Streets.’’ The court thereafter
instructed the jury in accordance with the state’s una-
nimity 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 accor-
dance with the verdict and imposed an effective sen-
tence of two years imprisonment, consecutive to a
sentence that the defendant was serving in an unre-
lated case.
The defendant appealed from the judgment of convic-
tion 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 informa-
tion 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. 643. Although the defendant con-
tended that he had been prejudiced by the late amend-
ment, 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 deci-
sion 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 com-
mencement 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 antici-
pated 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 inter-
fered 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 sepa-
rate 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 ques-
tioned 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 inconsis-
tent 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 certifica-
tion to appeal, limited to the following issue: ‘‘Did the
Appellate Court properly reverse the defendant’s con-
viction 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 defen-
dant’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 distin-
guish 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 informa-
tion. 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 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 predi-
cates that the state must meet to obtain permission to
amend the information: (1) good cause; (2) no addi-
tional or different offense is charged; and (3) no preju-
dice 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. 614.
These requirements serve two purposes. First, they
encourage the state to prepare its case carefully. State
v. Tanzella, supra, 226 Conn. 614–15. 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 require-
ments ensure that the defendant has adequate notice
of the charges against which he must defend. State v.
Tanzella, supra, 608; 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 quo-
tation marks omitted]).
In light of the dual purposes served by the require-
ments 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 superflu-
ous 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 con-
junctive ‘‘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 substan-
tial 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. 614, 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 satis-
faction 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., 607–608. 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, 608
n.8. 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. 65–66 (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 state-
ment 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. 608. That statement was made, how-
ever, 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. 644,
647–48. 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 fail-
ure 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, 655; 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 require-
ment 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 necessi-
tates 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 viola-
tion of a rule of practice amounts to reversible error.’’
State v. Pare, supra, 253 Conn. 636. 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 inno-
cence . . . and promotes public respect for the crimi-
nal process by focusing on the underlying fairness of
the trial rather than on the virtually inevitable presence
of immaterial error. . . . Accordingly, we forgo harm-
less error analysis only in rare instances involving a
structural defect of constitutional magnitude.’’ (Empha-
sis 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 . . . .’ Ari-
zona 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., 310]. Such errors infect the entire trial pro-
cess . . . and necessarily render a trial fundamentally
unfair . . . . Put another way, these errors deprive
defendants of basic protections without which a crimi-
nal 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. 8–9.’’
(Citations omitted.) State v. Anderson, supra, 255
Conn. 445.
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 vindi-
cate any constitutional right; rather, its purpose is to
encourage the state to diligently prepare its case. See
State v. Tanzella, supra, 226 Conn. 614–15. 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. 101, 103–104 (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. 590–93, 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 tak-
ing into consideration whether the amendment caused
prejudice to the defendant. Some Appellate Court deci-
sions rendered shortly after Jacobowitz followed this
holding and concluded that an amendment of an infor-
mation 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 con-
cluding 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 defen-
dant’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., 819.
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., 820.
We conclude that Jacobowitz should be overruled
insofar as it suggests that any amendment to an informa-
tion violating the additional or different offense prohibi-
tion results in per se reversible error. When Jacobowitz
was decided, our harmless error jurisprudence, particu-
larly 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.
444 (acknowledging United States Supreme Court’s rec-
ognition in its recent opinion, Neder v. United States,
supra, 527 U.S. 8, that ‘‘most constitutional errors can
be harmless’’ [internal quotation marks omitted]).
Indeed, it was not until 1997, sixteen years after Jaco-
bowitz, that the United States Supreme Court empha-
sized 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.
145–46. In so holding, we recognized that, since that
case was decided, there had been substantial changes
in the legal landscape regarding the application of harm-
less error analysis to constitutional violations. Id., 149.
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., 146. 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.
551 (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.
816–20 (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’An-
tonio, 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 bar-
gaining 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 sub-
ject 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 jurisdic-
tions,10 some of these jurisdictions have declined to
reverse a conviction on an improper amendment charg-
ing a different or additional offense unless there is preju-
dice 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 amend-
ment that went beyond form in violation of permis-
sive 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. 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. 551; such an impropriety does not ‘‘neces-
sarily render [the] criminal trial fundamentally unfair
or an unreliable vehicle for determining guilt or inno-
cence.’’ (Emphasis in original.) Neder v. United States,
supra, 527 U.S. 9. 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 noncon-
stitutional public policy considerations. The underlying
purpose of harmless error review is to preserve the
fundamental aim of a criminal trial—the factual deter-
mination 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 addi-
tional 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 defen-
dant suffered prejudice to warrant reversal of his judg-
ment 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 discre-
tion was harmless beyond a reasonable doubt. We dis-
agree 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 defen-
dant’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. 590; see also State v. Welch, supra,
224 Conn. 4 (‘‘[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 pro-
cess’’). 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. Sim-
ply put, there is a significant difference between the
defendant’s general awareness of the substance of the
officers’ testimony and his awareness that that testi-
mony 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 inter-
ference 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. 484–85; accord State v. Ramirez, supra, 94
Conn. App. 819; 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 preju-
dice to the defendant because, prior to the amendment,
he presented a complete defense against the additional
charges when cross-examining the officers and provid-
ing his own testimony. Specifically, the state contends
that the defendant attempted to establish that he had
not interfered, but rather had cooperated with the offi-
cers 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 com-
pleted the defendant’s direct examination and immedi-
ately 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]mend-
ment 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 strong-
est 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 advo-
cate 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 tes-
tify, 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 poten-
tially 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. 461. 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, EVE-
LEIGH and ROBINSON, Js., concurred.
* 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.
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 rele-
vant 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 author-
ity 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. 65; State v. Jordan, supra, 132 Conn. App. 825;
State v. Grant, supra, 83 Conn. App. 93–95, 98; State v. Wilson F., supra,
77 Conn. App. 413.
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 conclu-
sion 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 neces-
sity 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 conces-
sion 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 unequivo-
cally 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 prerequi-
sites. 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 prelim-
inary 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 inter-
ference charge to the site of the vehicle stop.