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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, assistant state’s attorney, for the appellant (state).

Katherine C. Essington, forthe 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 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 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 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 contended that he had been prejudiced by the late amendment, the Appellate Court did not reach that issue

because it determined that the state’s failure to meet the

first two of the three requirements for an amendment of

the information after the commencement of trial under

Practice Book § 36-184

rendered the trial court’s decision an abuse of discretion that required reversal of the

judgment of conviction. Id., 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 whetherthe 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.

I

We begin with the question of whether the Appellate

Court properly determined that the trial court abused

its discretion in allowing the state to amend the information. We underscore that the state does not challenge

the Appellate Court’s conclusions that the state lacked

good cause for the amendment or that the amendment

resulted in the inclusion of additional offenses. Instead,

the state contends that, unless the amendment caused

prejudice to the defendant, such factors do not result

in an abuse of discretion in granting the amendment.

We disagree.5

‘‘Before the commencement of trial, a prosecutor has

broad authority to amend an information under Practice

Book § [36-17]. Once the trial has started, however, the

prosecutor is constrained by the provisions of Practice

Book § [36-18].’’ State v. Tanzella, 226 Conn. 601, 607,

628 A.2d 973 (1993). For purposes of Practice Book

§ 36-18, a trial begins with the commencement of voir

dire. Id., 608.

PracticeBook § 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

orfinding 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 predicates that the state must meet to obtain permission to

amend the information: (1) good cause; (2) no additional or different offense is charged; and (3) no prejudice to the defendant’s substantive rights. State v.

Petitpas, 299 Conn. 99, 104 n.6, 6 A.3d 1159 (2010);

State v. Tanzella, supra, 226 Conn. 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 requirements 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 quotation marks omitted]).

In light of the dual purposes served by the requirements of Practice Book § 36-18, we decline to interpret

its provisions in a way that would disregard either the

good cause requirement or the additional or different

offense prohibition. We are bound to give effect to each

requirement of § 36-18. See generally State v. Strickland, 243 Conn. 339, 347–48, 703 A.2d 109 (1997) (‘‘our

rules of practice should be construed harmoniously and

not in a way that would render one provision superfluous as a result of the existence of another’’). To hold,

as the state urges, that prejudice is the only inquiry in

determining whether a violation of § 36-18 has occurred
would effectively read the good cause requirement, the

additional or different offense prohibition, and the conjunctive ‘‘and’’ preceding the element of prejudice out

of the rule. If that was the intent of the drafters, there

would have been no point to including the good cause

shown and no additional or different offense charged

language; ‘‘it would have been necessary to provide

only that amendment would not be allowed if substantialrights 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 satisfaction of the good cause requirement is not a necessary

predicate to allowing an amendment to the information

because this court observed in Tanzella that § 36-18

‘‘permits amendments to an information after trial has

commenced provided ‘no additional or different

offense is charged and no substantive rights of the

defendant would be prejudiced.’ ’’ (Emphasis added.)

Id., 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 statement in Tanzella to support its contention that an abuse

of discretion arises only from an amendment that

impairs the defendant’s substantive rights. In that case,

we observed: ‘‘For purposes of [Practice Book § 36-18],

the decisive question is whether the defendant was

informed of the charges with sufficient precision to be

able to prepare an adequate defense.’’ State v. Tanzella,
supra, 226 Conn. 608. That statement was made, however, in the context of explaining why we declined to

use a comparison of the elements of each of the offenses

to determine whether the amended charges constituted

additional or different offenses. See id.

Accordingly, in the present case, the trial court

abused its discretion by allowing the state to amend the

information in the absence of a showing, and finding, of

good cause. As the Appellate Court properly observed,

the trial court failed to make any finding regarding good

cause. See State v. Ayala, supra, 154 Conn. App. 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 failure to do so is error’’). Moreover, the record reveals

no basis upon which the trial court could have made

a finding of good cause for the amendment,6 especially

in light of the prosecutor’s repeated assurances, after

amending the information to change the location of the

assault, that the location of the interference was ‘‘still

accurate’’ and ‘‘remain[ed] unchanged.’’7

In addition,

the state conceded at oral argument before this court

that the instances of interference at the intersection of

Hanover and Orange Streets and at the police station

constituted ‘‘two distinct acts or transactions separated

by time and location’’; State v. Ayala, supra, 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,theAppellate Court effectively

determined that a violation of the good cause requirement and the additional or different offense prohibition

is per se reversible error and, consequently, structural

error. Although we disagree with that legal conclusion,

we conclude that the Appellate Court’s judgment should

be affirmed on the ground that the state has failed to

meet its burden of proving that the amendment was

harmless beyond a reasonable doubt.

A

It is well settled that ‘‘[n]ot every deviation from the

specific requirements of a Practice Book rule necessitates reversal.’’ State v. Suggs, 194 Conn. 223, 226–27,

478 A.2d 1008 (1984). ‘‘Ordinarily, our courts apply a

harmless error analysis in determining whether a violation of a rule of practice amounts to reversible error.’’
State v. Pare, 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 innocence . . . and promotes public respect for the criminal process by focusing on the underlying fairness of

the trial rather than on the virtually inevitable presence

of immaterial error. . . . Accordingly, we forgo harmless error analysis only in rare instances involving a

structural defect of constitutional magnitude.’’(Emphasis in original; internal quotation marks omitted.) State

v. Artis, 314 Conn. 131, 149–50, 101 A.3d 915 (2014);

see also Rose v. Clark, 478 U.S. 570, 579, 106 S. Ct. 3101,

92 L. Ed. 2d 460 (1986) (‘‘if the defendant had counsel

and was tried by an impartial adjudicator, there is a

strong presumption that any other errors that may have

occurred are subject to harmless-error analysis’’).

‘‘Structural defect cases defy analysis by harmless

error standards because the ‘entire conduct of the trial,

from beginning to end, is obviously affected . . . .’ Arizona v. Fulminante, [499 U.S. 279, 309–10, 111 S. Ct.

1246, 113 L. Ed. 2d 302 (1991)]. These cases ‘contain a

defect affecting the framework within which the trial

proceeds,ratherthan simply an errorin the trial process

itself. [Id., 310]. Such errors infect the entire trial process . . . and necessarily render a trial fundamentally

unfair . . . . Put another way, these errors deprive

defendants of basic protections without which a criminal trial cannot reliably serve its function as a vehicle

for determination of guilt or innocence . . . and no

criminal punishment may be regarded as fundamentally

fair.’ . . . Neder v. United States, supra, 527 U.S. 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 vindicate 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’’).

Whetherthere 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 taking into consideration whether the amendment caused

prejudice to the defendant. Some Appellate Court decisions rendered shortly after Jacobowitz followed this

holding and concluded that an amendment of an information in violation of the additional or different offense

prohibition made during presentation of the state’s

case-in-chief is, in and of itself, reversible error with

respect to the new charge. See, e.g., State v. Cole, 8

Conn. App. 545, 552, 513 A.2d 752 (1986); State v. Kitt,

8 Conn. App. 478, 488–89, 513 A.2d 731, cert. denied,

202 Conn. 801, 518 A.2d 648 (1986).

Conversely, the mostrecent Appellate Court decision

on this issue employed harmless error review after concluding that when the state amended the information at

the close of its case-in-chief by substituting the original

charge of burglary in the first degree with burglary

in the second degree, that substitution constituted a

different offense. State v. Ramirez, 94 Conn. App. 812,

816–17, 894 A.2d 1032, cert. denied, 278 Conn. 915, 899

A.2d 621 (2006). The court observed that ‘‘the improper

amendment of the information implicates the defendant’s constitutional right to fair notice of the charges

against him . . . [and, consequently] the state must

prove such error was harmless beyond a reasonable

doubt.’’ (Internal quotation marks omitted.) Id., 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 information violating the additional or different offense prohibition results in per se reversible error. When Jacobowitz

was decided, our harmless error jurisprudence, particularly with respect to constitutional error, was not yet

well developed. Compare State v. Cohane, 193 Conn.

474, 485, 479 A.2d 763 (‘‘[i]f error touches a less basic

constitutional right, we sometimes apply the harmless

error exception, but only sparingly, in a few, discrete

circumstances’’ [internal quotation marks omitted]),

cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d

331 (1984), with State v. Anderson, supra, 255 Conn.

444 (acknowledging United States Supreme Court’s recognition 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 Jacobowitz, that the United States Supreme Court emphasized that structural error would be found in a ‘‘very

limited class of cases . . . .’’ Johnson v. United States,

520 U.S. 461, 468, 117 S. Ct. 1544, 137 L. Ed. 2d 718

(1997).

We recently overruled a case decided in the same

year as Jacobowitz because that case rejected harmless

error analysis in favor of a rule of per se reversibility

when the state uses unreliable eyewitness identification

evidence arising from an unnecessarily suggestive

police procedure. See State v. Artis, supra, 314 Conn.

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 harmless 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’Antonio, 274 Conn. 658, 690–91, 877 A.2d 696 (2005) (trial

judge’s failure to recuse himself from presiding over

trial after having participated in unsuccessful plea bargaining efforts was not plain error requiring reversal);

State v. Washington, 182 Conn. 419, 429, 438 A.2d 1144

(1980) (instruction given early in trial permitting jurors

to discuss case before its submission to them was subject to harmless error review). We further observe that,

although the different/additional offense prohibition is

also found in the rules or statutes of many otherjurisdictions,10 some of these jurisdictions have declined to

reverse a conviction on an improper amendment charging a different or additional offense unless there is prejudice to the defendant. See Sutton v. United States, 140

A.3d 1198, 1203 (D.C. App. 2016); Commonwealth v.

Brown, 556 Pa. 131, 136, 727 A.2d 541 (1999); see also

McGahan v. State, 606 P.2d 396, 397 (Alaska 1980)

(applying harmless error review to improper amendment that went beyond form in violation of permissive statute).11

We are mindful that other jurisdictions view such

amendments as inherently prejudicial and, thus, per se

reversible error.12 See, e.g., Commonwealth v. Souza,

42 Mass. App. 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 ‘‘necessarily render [the] criminal trial fundamentally unfair

or an unreliable vehicle for determining guilt or innocence.’’ (Emphasis in original.) Neder v. United States,

supra, 527 U.S. 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 errorreview outweighs those nonconstitutional public policy considerations. The underlying

purpose of harmless error review is to preserve the

fundamental aim of a criminal trial—the factual determination of guilt or innocence—from being subverted

by the virtually inevitable presence of immaterial error.

See State v. Perkins, 271 Conn. 218, 244–45, 856 A.2d

917 (2004).

In sum, although an amendment thatincludes an additional or different offense will necessarily impact a

defendant’s constitutional right to notice of the charges

against him, a defendant is not entitled to a new trial

if that defect did not impair his ability to prepare for

trial or present his defense. Accordingly, we decline to

extend the limited class of cases involving structural

defects to the error at issue in the present case.

B

Finally, we turn to the question of whether the defendant suffered prejudice to warrant reversal of his judgment of conviction and a new trial on the interference

charges. The state contends that it does not bear the

burden of proving that the trial court’s abuse of discretion was harmless beyond a reasonable doubt. We disagree and conclude that, given the nature and timing

of the amendment, the state cannot meet this burden.

This court has observed that when the trial court has

improperly allowed the state to amend an information

to charge an additional or different offense, the defendant’s ‘‘constitutional right to fair notice, prior to the

commencement of trial, of the charges against which he

must defend himself’’ is infringed. State v. Jacobowitz,

supra, 182 Conn. 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 process’’). We are not persuaded by the state’s contention

that the defendant’s right to fair notice was not impaired

in the present case because he had actual notice of the

officers’ version of events reflecting the defendant’s

resistance during processing at the police station. Simply put, there is a significant difference between the

defendant’s general awareness of the substance of the

officers’ testimony and his awareness that that testimony is going to form the basis of charges against him.

Defense counsel’s request, prior to the amendment at

issue, to preclude the jury’s use of evidence regarding
the incident in the holding cell in considering the interference at the traffic stop belies the argument that the

defendant had actual notice that he would be charged

with interference at the police station.13

It is well settled that, when certain improprieties are

of constitutional dimension, the burden falls on the

state to establish that the impropriety was harmless

beyond a reasonable doubt. See State v. Cohane, supra,

193 Conn. 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 prejudice to the defendant because, prior to the amendment,

he presented a complete defense against the additional

charges when cross-examining the officers and providing his own testimony. Specifically, the state contends

that the defendant attempted to establish that he had

not interfered, but rather had cooperated with the officers at the police station and that any actions of his to

the contrary were not volitional(i.e., losing his balance).

The state further contends that the defendant could

have recalled the officers during the presentation of

his own case to address any deficiencies in his crossexamination and points to his failure to do so or ask

for a continuance as evidence that the defendant was

not prejudiced by the amendment. We conclude that,

even if the defendant had a full and fair opportunity to

examine the officers in a manner that would support

a defense against the additional interference charges,

the state cannot overcome a more fundamental problem

arising from the timing of the amendment.

As the defendant properly emphasizes, the state

amended the information after defense counsel completed the defendant’s direct examination and immediately before the state commenced its cross-examination

of him. Accordingly, the amendment occurred after the

defendant exercised his right to testify or to remain

silent. It is axiomatic that criminal defendants have a

fundamental constitutional right to testify on their own

behalf or to decline to do so. See Rock v. Arkansas,

483 U.S. 44, 51–53, 107 S. Ct. 2704, 97 L. Ed. 2d 37

(1987); Malloy v. Hogan, 378 U.S. 1, 6, 84 S. Ct. 1489,

12 L. Ed. 2d 653 (1964). ‘‘Whether the defendant is to

testify is an important tactical decision as well as a

matter of constitutionalright.’’ Brooks v. Tennessee, 406

U.S. 605, 612, 92 S. Ct. 1891, 32 L. Ed. 2d 358 (1972);

see also Ferguson v. Georgia, 365 U.S. 570, 602, 81 S.

Ct. 756, 5 L. Ed. 2d 783 (1961) (Clark, J., concurring)

(fourteenth amendment protects ‘‘the right of a criminal

defendant to choose between silence and testifying in

his own behalf’’).

‘‘While the due process clause of the [f]ifth [a]mendment may be understood to grant the accused the right

to testify, the if and when of whether the accused will

testify is primarily a matter of trial strategy to be
decided between the defendant and his attorney.’’

(Internal quotation marks omitted.) State v. Hobson, 68

Conn. App. 40, 45, 789 A.2d 557, cert. denied, 260 Conn.

910, 796 A.2d 557 (2002). ‘‘[I]f counsel believes that it

would be unwise for the defendant to testify, counsel

may, and indeed should, advise the client in the strongest possible terms not to testify. The defendant can

then make the choice of whether to take the stand with

the advice of competent counsel. It is important to

rememberthat while defense counsel serves as an advocate for the client, it is the client who is the master of

his or her own defense. . . . The wisdom or unwisdom

of the defendant’s choice does not diminish his right

to make it.’’ (Emphasis added; internal quotation marks

omitted.) State v. Francis, 317 Conn. 450, 461, 118 A.3d

529 (2015); see also State v. Fisher, 82 Conn. App. 412,

423–24, 844 A.2d 903 (‘‘[t]he accused has the ultimate

authority to make the fundamental decision to testify’’),

cert. denied, 269 Conn. 911, 852 A.2d 741 (2004).

In the present case, the defendant’s decision to testify, and the scope of that testimony, was necessarily

informed by the nature of the charges against him. Once

he exercised his constitutional right to testify, he could

not reconsider that decision. In the absence of any

admission to the contrary, the state cannot prove that

the defendant would have elected to testify even if he

had timely notice of the additional interference charges.

Indeed, before the defendant knew that he was being

charged with interference at the police station, he

admitted in his direct examination that he had refused

medical treatment there, an admission that the jury

might have viewed as bolstering the officers’ testimony

that the defendant had resisted every effort they had

undertaken. Moreover, even in the absence of potentially damaging testimony, the state cannot meet its

burden because the decision to testify need not be

objectively reasonable. See State v. Francis, supra, 317

Conn. 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, EVELEIGH 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 relevant part: ‘‘In all criminal prosecutions, the accused shall enjoy the right

. . . to be informed of the nature and cause of the accusation . . . .’’

4 Practice Book § 36-18 provides: ‘‘After commencement of the trial for

good cause shown, the judicial authority may permit the prosecuting authority to amend the information at any time before a verdict or finding if no

additional or different offense is charged and no substantive rights of the

defendant would be prejudiced. An amendment may charge an additional

or different offense with the express consent of the defendant.’’

5

In light of our conclusion that Practice Book § 36-18 is violated even

without a showing of prejudice, we need notreach the defendant’s alternative

ground for affirmance that the trial court abused its discretion in allowing the

amendment because itimproperly 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 conclusion that defense counsel examined the defendant and the state’s witnesses

‘‘with an eye toward’’ defending against interference at the police station,

that argument is patently without merit. The existence of good cause is not

examined in relation to the adequacy of the defense asserted, but the necessity for the amendment.

8 Undeterred by the state’s decision not to challenge the Appellate Court’s

conclusion that the amendment charged additional offenses, and its concession of that point at oral argument, the dissent cherry picks facts out of the

record in order to mount its own challenge to that conclusion, namely, that

the relatively short time and distance between the two instances of alleged

interference establish a ‘‘unity’’ in the defendant’s conduct such that it could

be characterized as ‘‘ongoing.’’ It is unsurprising that the state has not cited

to these facts because they are entirely irrelevant in light of undisputed and

uncontestable evidence that the defendant was fully cooperative from the

time he was placed in the police cruiser until he was brought into the police

station and efforts were made to remove his vest. It was on the basis of

that attenuation evidence that the Appellate Court based its unchallenged

conclusion that the charges of interference were based on separate, distinct

acts of alleged interference.

9 Although we conclude that a violation of the good cause requirement

is not sufficient, in and of itself, to mandate reversal of a judgment of

conviction, we fully expect our trial courts to preclude an amendment in

the absence of a showing of good cause now that we have stated unequivocally that to do otherwise would be an abuse of discretion. Indeed, in a

case like the present one, we would fully expect the trial court not only to

require such a showing, but also to inquire why the state had failed to make

its request at the earliest juncture possible. We are particularly troubled by

the state’s belated request in light of its first amendment to the information

on the assault charge, its assurances that this amended information reflected

the proper location for the interference charges, and its silence in the face

of a request by defense counsel seeking a clarifying instruction to limit the

jury’s use of evidence regarding the incident in the holding cell in determining

whether the defendant interfered with the officers.

10 Although it appears that almost every jurisdiction imposes by rule or

statute similar requirements to those in the second and third requirements

of Practice Book § 36-18, Connecticut appears to be alone in including a

good cause requirement explicitly in our law.

11 These cases do not clearly state which party bears the burden or by

what standard of proof.

12 A few other jurisdictions require reversal on different grounds, namely,

that such amendments violate certain procedural or jurisdictional prerequisites. See, e.g., State v. Colwell, 124 Idaho 560, 566, 861 P.2d 1225 (1993)
(‘‘any amendment which charges the accused with a crime of greater degree

or a different nature than that for which the accused was bound over for

trial by the committing magistrate is barred by the Idaho [c]onstitution’’

[emphasis omitted]); State v. McKeehan, 894 S.W.2d 216, 223 (Mo. App.

1995) (amendment that charges new or different offense violates permissive

statute and deprives defendant of constitutional and statutory rightto preliminary hearing on new charge). This prohibition on broadening an information

beyond that which was authorized by the authority prescribed by law is the

traditional justification for the common-law rule against the amendment of

an indictment. See Russell v. United States, 369 U.S. 749, 770, 82 S. Ct. 1038,

8 L. Ed. 2d 240 (1962) (‘‘an indictment may not be amended except by

resubmission to the grand jury, unless the change is merely a matter of

form’’); accord Stirone v. United States, 361 U.S. 212, 215–16, 80 S. Ct. 270,

4 L. Ed. 2d 252 (1960). No issue has been raised in the present case that

any procedural barrier existed to amending the information other than

compliance with Practice Book § 36-18.

13 The dissent points to the charge of assault at the police station and the

defendant’s request for an instruction that the jury could not consider his

conduct at the police station to support the interference charge as evidence

that the defendant was on notice that the state was advancing the theory

that the defendant had committed interference at the police station. The

dissent apparently deems irrelevant the difference between having notice

of facts to be put in evidence and having notice of the legal significance of

those facts, as well as how that difference could bear on a defendant’s

decision whether to testify. Insofar as intent to interfere is an element of

the charge of assault, the state was required to prove that the defendant

had such intent when he kicked (assaulted) Smusz. Although the assault

charge provided notice that conduct preceding the alleged assault could be

relevant to the defendant’s intent when he purportedly kicked Smusz, it did

not give the defendant notice that such evidence would be used as a basis

for independent criminal liability. With respect to the defendant’s requested

limiting instruction, the dissent ignores the context in which that request

was made, namely, the defendant’s justifiable reliance on the state’s previous

two unequivocal affirmations that the information properly limited the interference charge to the site of the vehicle stop.