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STATE v. AYALA—DISSENT

ESPINOSA, J., dissenting. In the present case the

defendant, Enrique Ayala, was convicted of three

counts of interfering with an officer in violation of General Statutes § 53a-167a, in connection with his conduct

in a single criminal transaction that in its entirety lasted

less than one hour, beginning when he intervened in a

motor vehicle stop and ending approximately 1000 feet

away in a holding cell at the Meriden police station.

The question of whether the defendant interfered with

the officers in the holding cell at the police station was

thoroughly addressed by both parties during trial. With

each of its witnesses, the state forcefully and consistently advanced its theory that the defendant’s interference with the officers began at the motor vehicle stop

and continued at the police station. Defense counsel

meticulously and effectively attempted to parry the

state’s arguments by presenting the theory that the

defendant cooperated with the police officers during

the entire sequence of events, despite their alleged

assaults on his person. I disagree with the majority,

therefore, that the state’s amended information in any

way deprived the defendant of notice, charged him with

an additional offense or prejudiced him. I conclude, to

the contrary, that the amendment merely conformed

the information to the evidence adduced at trial. I would

hold that the Appellate Court improperly concluded

that the trial court abused its discretion in allowing the

amendment. State v. Ayala, 154 Conn. App. 631, 656,

106 A.3d 941 (2015). Accordingly, I respectfully dissent.

This court has explained that Practice Book § 36-18

‘‘is primarily a notice provision. Its purpose is to ensure

that the defendant has adequate notice of the charges

against which he must defend. 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)].’’ State v. Tanzella, 226 Conn. 601, 608,

628 A.2d 973 (1993). Specifically, § 36-18 safeguards a

defendant’s sixth amendment right ‘‘to be informed of

the nature and cause of the accusation . . . .’’ U.S.

Const., amend. VI. ‘‘For purposes of § [36-18], [therefore] 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, 608.

The question of whether the information provided

the defendant with sufficient detail to enable him to

prepare an adequate defense is a pragmatic one. The

analysis properly should begin with a review of the

original information and then proceed to an examination of the record to determine whether the parties

evinced an understanding of the charges that supports

the conclusion of the trial court that the amendment
did not constitute an unfair surprise that deprived the

defendant of notice. That review reveals that the defendant did have sufficient notice of the details of the

charges to enable him to mount a defense.

It is significant that the original information charged

the defendant not only with three counts of interfering

with an officer in violation of § 53a-167a (a), but also

with assault of public safety personnel, specifically a

peace officer, in violation of General Statutes § 53a167c (a) (1). As the majority explains, during voir dire,

the prosecutor noticed that the information incorrectly

stated that the assault occurred at the site of the motor

vehicle stop rather than at the police station, and

requested to amend the information to correct the error.

That amendment was allowed without objection from

the defendant and he does not challenge that amendment in this appeal. It is therefore undisputed that the

state was required to prove that the defendant assaulted

a peace officer at the police station. A person is guilty

of assaulting a peace officer when, ‘‘with intent to prevent a reasonably identifiable peace officer . . . from

performing his or her duties, and while such peace

officer . . . is acting in the performance of his or her

duties . . . such person causes physical injury to such

peace officer . . . .’’ (Emphasis added.) General Statutes § 53a-167c (a) (1). A person is guilty of interfering

with an officer when ‘‘such person obstructs, resists

. . . [or] hinders . . . any peace officer . . . in the

performance of such peace officer’s . . . duties.’’ General Statutes § 53a-167a (a). It is readily apparent that

there is substantial overlap between the elements of

both offenses. Most significantly, in order to prove an

assault of a peace officer, it is not sufficient for the

state to prove that the defendant caused physical injury

to the officer—the state must also prove that, in doing

so, the defendant’s intent was to prevent the officer

from performing his or her duties. The information,

therefore, placed the defendant on notice that, in order

to prove an assault against a peace officer, the state

was required to prove that—at the police station—the

defendant acted with an intent to prevent Officer Margaret Smusz—the officer who the defendant allegedly

assaulted—from performing her duty.

Unsurprisingly, in order to prove that the defendant

intended to prevent Smusz from performing her duty,

the state elicited detailed testimony from each of the

three officers involved regarding the defendant’s resistance at the police station, making clear that its theory

was that the defendant interfered with the police officers during the entire sequence of events, including

those that occurred at the police station. During its

examination of the officers, the state used the video

recording of the events that took place at the police

station, reviewing the video in great detail to support

its theory that the defendant was resisting the officers in

the holding cell. Specifically,the state elicited testimony
from the officers that in the holding cell at the police

station, the defendant physically and verbally resisted

when they tried to remove his motorcycle club vest.

The officers testified that the defendant responded to

their attempts by stating, ‘‘fuck you, pigs,’’ and ‘‘fuck

you, you’re not taking my colors.’’ When the officers

released the defendant from his handcuffs so that they

could remove the vest, rather than keeping his hands

behind his back as ordered, the defendant brought his

arms forward, compelling the officers to contain him

by pinning him against the wall in the corner of the

holding cell. The officers then brought the defendant

to the ground in order to place the handcuffs back on

him. There were four officers on top of the defendant

at that point, but he continued to resist. The defendant

was facedown on the floor, and had locked his hands

under his chest. The officers instructed him to place

his hands behind his back, but the defendant refused

to comply, and was kicking with his feet. Officer David

Buck testified that he attempted unsuccessfully to use

compliance techniques to make the defendant stop

struggling, including pressure point techniques. When

Buck’s efforts failed to force the defendant to comply,

he used a Taser to administer a ‘‘dry stun’’ to the defendant. Despite being stunned by the Taser, the defendant

continued to resist the officers as they tried to place

the handcuffs on him.

Defense counsel did not object to the state’s line of

questioning regarding his resistance to the officers in

the holding cell at the police station as irrelevant, and

instead cross-examined each of the three police officers

at great length regarding whether the defendant complied with the officers’ orders at the police station. For

instance, with respect to the events at the police station,

the majority of defense counsel’s cross-examination of

Buck, rather than targeting the alleged assault, focused

on the alleged acts of interfering. Defense counsel used

the police department video of those events to bring

out the defense theory that, rather than resisting police,

the defendant complied with their instructions.

Throughout the cross-examination of the officers, counsel sought to demonstrate the defense theory that the

defendant’s motions were passive in nature—merely

responses to being moved around by the officers.

Defense counsel painstakingly reviewed the video

with Buck, emphasizing every instance in which the

defendant appeared to be cooperating with the officers.

Counsel began by calling Buck’s attention to the beginning of the video, which showed the cruiser arriving in

the sally port at the police station, and the officers

removing the defendant from the cruiser. After playing

that portion of the video, counsel asked Buck whether

at that point in time it appeared that the defendant was

cooperating. Buck answered in the affirmative. At one

point in the video, it appeared that the defendant was

being led into a room, and then led back out of it.
Defense counsel questioned Buck about that sequence,

asking whether he agreed that the defendant was ‘‘not

resist[ing]’’ at that time. Buck agreed with that characterization. Defense counsel then called attention to the

fact that when the officers brought the defendant into

the holding cell, Officer Shane Phillips kicked the defendant’s legs wide apart. Defense counsel then asked:

‘‘[I]s it safe to say that there is no resistance or problem

at this point?’’ Buck responded that the defendant was

not offering any physical resistance at that time. As the

activity captured on the video further unfolded, defense

counsel askedBuck whetherthe defendant was complying as the officers began to remove the defendant’s

clothing. Buck responded in the affirmative. Defense

counsel then elicited testimony from Buck that, when

the officers began to remove the defendant’s handcuffs,

the defendant appeared to be compliant.

Counsel also elicited testimony from Buck that supported the defense theory that the defendant’s movements, as seen in the video, did not constitute

resistance, and instead were involuntary responses to

being physically handled by the officers. Specifically,

Buck testified on cross-examination that when the officers spread the defendant’s legs apart, the purpose was

to put him off balance. Counsel also unsuccessfully

attempted to elicit testimony from Buck that, at one

point during the video, the defendant was being pulled

in one direction by one officer and in a different direction by another officer, suggesting that the officers were

placing him off balance. Defense counsel also asked

Buck whether, when the defendant brought his arms

forward, it was not for the purpose of resisting the

officers, but in order to protect his face from getting

smashed into the stone wall of the holding cell.

Defense counsel also directly challenged some of the

testimony that the state elicited in support of its theory

that the defendant interfered with officers in the holding

cell. For example, Buck had testified that the defendant

crouched down at one point in the holding cell. Defense

counsel called that testimony into question by eliciting

testimony from both Smusz and Phillips to the contrary.

Defense counsel used the video itself to challenge the

officers’ statements that the defendant had swung his

arms, pointing out during questioning that the video

showed that the officers were holding the defendant’s

right arm.

During the direct examination of the defendant,

defense counsel further developed the defense theory

that the defendant did not interfere with the officers

in the holding cell at the police station. In connection

with the events at the station, defense counsel expressly

asked the defendant: ‘‘So you weren’t interfering with

them?’’ (Emphasis added.) The defendant responded

that he was not, because he did not want to provide

the officers with an excuse to physically abuse him.
The defendant’s position was that during the entire

evening, he cooperated with the officers because he

believed that the more compliant he was, the sooner

he would be able to post bond and be released. For

example, the defendant testified that in the holding cell,

he voluntarily assumed a stance with his legs wide apart

and that, when the officers unlocked his handcuffs, he

kept his hands behind his back. He also denied making

any derogatory statements to the officers during this

time. When the officers threw him against the wall, the

defendant said, he ‘‘just stayed there.’’ When Smusz was

going through the defendant’s pockets, he leaned one

way, then another, to make it easier for her to reach

into his pockets. The defendant further testified that

when Buck warned him not to move, the defendant

responded, ‘‘listen, I’m not—I’m not trying to resist.

Officer Phillips is pulling me one way; you’re pulling

me the other way; I can’t go both ways.’’ The defendant

denied objecting to the removal of his vest, and denied

that he resisted when the officers removed the vest.

The defendant’s testimony reiterated the same theory

that the defense had presented in the cross-examination

of the police officers: that his movements were simply

a response to being placed off balance and being pushed

and pulled by the officers. He testified that because he

was placed in a wide-legged stance, at one point he lost

balance, which prompted the officers to pin him into

a corner of the holding cell. He emphasized, however,

that he did not fight with or struggle with the officers

in any way.

The defendant was clearly on notice that he had to

defend against the state’s allegation that he had interfered with the officers during the course of his actions

on the morning of his arrest. The information’s charge

that he assaulted a peace officer at the police station

placed him on notice that he would have to defend

against the allegation that, at the police station, he acted

with an intent to prevent Smusz from performing her

duties. The line of questioning pursued by the state

during the direct examinations of the three police officers methodically aimed to demonstrate that the defendant interfered with the officers in the holding cell at

the police station. Defense counsel’s questions of those

same witnesses during cross-examination, and his questions of the defendant during direct examination,

sought to dispute the state’s theory, and to suggest an

alternative interpretation of the defendant’s movements

in the video: that they were passive responses to the

officers’ physical handling of him rather than acts of

interference.

Perhaps the best demonstration that the defendant

was on notice that the evidence presented by the state

in support of its charge that the defendant assaulted

Smusz at the police station also supported the state’s

theory that the defendant interfered with the officers
at the police station was defense counsel’s motion, filed

one day before counsel claimed that the amended information was an ‘‘unfair surprise.’’ That motion asked the

court to instruct the jury not to consider that evidence

in connection with the interfering charges. Specifically,

counsel pointed out that the original information did

not state that the interfering conduct occurred both at

the motor vehicle stop and at the police station. Counsel

acknowledged his awareness that the evidence could

support the determination that the defendant had interfered with the officers at the police station, by asserting

that the ‘‘testimony about the defendant’s cooperation

or lack [thereof] while detained at the Meriden Police

Department may confuse the jury as to [whether] the

several counts of interfering with an officer apply to

interfering while being detained at said department

. . . .’’ The following day, the court summarized a prior

off-the-record discussion, noting that the state intended

to argue that the defendant’s interfering conduct that

began at the motor vehicle stop and continued at the

police station constituted a ‘‘continuing course of conduct . . . .’’ In light of this sequence of events, the

state’s subsequent amendment to the information reasonably may be read to have sought to conform the

charges to the evidence. State v. Franko, 199 Conn. 481,

492, 508 A.2d 22 (1986).

Because the defendant had notice, he was not prejudiced by the amendment. Defense counsel’s crossexamination of the officers was thorough and well executed. The defendant’s testimony provided further support for the defense theory that the video, rather than

demonstrating that the defendant was interfering with

the officers in the holding cell, showed that he was

doing his utmost to comply with their instructions. The

majority cannot point to any avenue of questioning that

the defendant left unexplored. The sole ground upon

which the majority bases its conclusion that the defendant was prejudiced was that he elected to testify. The

majority, however, offers no explanation as to why the

defendant might have made a different decision if the

state had amended the information prior to his testimony, and makes no credible claim that the defendant’s

testimony hurt his case. Instead, rather than providing

even a single detail explaining how the defendant’s testimony caused him any prejudice in light of the amended

information, the majority simply relies on its speculation that the defendant could have decided, in light of

the change, not to testify. The defendant’s testimony

served the purpose of placing the defense theory

squarely in front of the jury. Contrary to the accounts

ofthe police officers thatthe defendant had consistently

interfered with them, the defendant testified that he

had been cooperative throughout the entire encounter,

during which he was the victim of repeated assaults,

verbal and physical, by the police officers. His testimony, therefore, asked the members of the jury to view
the sequence of events in an entirely different light.

That testimony, therefore, was a key part of the defense

strategy, both as to the interfering counts and as to the

assault charge.

As I have explained in this dissenting opinion, the

defendanttestified extensively regarding the events that

took place at the police station—and that testimony

emphasized the defense theory that I have discussed,

that he was the victim of abusive conduct by the police.

Until the amendment, of course, the defense’s focus on

the events in the police station were related to the

felony assault charge. The amendment to the information meant that the very same facts that had been heavily litigated by the parties in connection with a felony

charge now were also relevant to the already existing

misdemeanor charges. The majority hangs its conclusion that the defendant was prejudiced by the amendment on the bizarre notion that the defendant,

undeterred from taking the stand by the prospect of

liability for a felony assault, would have changed his

strategy and not taken the stand because he now faced

liability for misdemeanors in connection with the events

at the station. The majority ignores the fact that the

purpose of Practice Book § 36-18 is to safeguard a

defendant’s right to be provided with notice of the

charges ‘‘with sufficient precision to be able to prepare

an adequate defense.’’ State v. Tanzella, supra, 226

Conn. 608. The amendment did not subject the defendant to any additional criminal liability. That is, no

new counts were added to the information, and the

amendment simply clarified that the state’s theory was

that the defendant interfered with the officers during

the entire course of events, not merely at the motor

vehicle stop.

I also observe that, although the majority suggests

that the defendant might have elected not to testify in

light of the amendment, the majority offers no explanation as to how the defendant’s testimony was not relevant to his theory that he was not interfering with the

officers at the station that night. To the contrary, his

testimony regarding the events at the station, as I have

summarized it here, was entirely consistent with

defense counsel’s cross-examination of the police officers. He testified that he believed that by cooperating

with the officers and offering no resistance, he would

shorten his ordeal, and that, because of that belief,

he complied. The majority appears to suggest that the

defendant’s testimony during direct examination that

he refused medical treatment somehow undercuts his

claim that he did not interfere with the police officers

in the performance of their duties. That testimony, however, relates to the defendant’s interactions with an

emergency medical technician, not to any of the three

officers named in the interfering counts.

Defense counsel’s response to the court’s ruling
granting the state’s motion to amend the information

confirms that—despite counsel’s statement that the

amendment constituted an ‘‘unfair surprise’’—the original information had provided the defendant with sufficient detail to allow him to mount his defense.

Specifically, after the motion to amend the information

was granted, the defendant did not call any witnesses

back to the stand. If, as the defendant now claims,

he lacked notice that he needed to defend against the

allegation that he interfered with the officers at the

police station, one would think that he would have

needed to recall witnesses in order to question them

regarding that issue. Clearly, defense counsel did not

believe that doing so was necessary. My review of the

transcripts leads me to the same conclusion that

defense counsel apparently arrived at—he already had

asked the witnesses all the relevant questions required

to cast doubt on the state’s claim that the defendant

had interfered with the officers in the holding cell at

the police station.

Because I conclude that the defendant had sufficient

notice that the state’s theory was that the interfering

charges included his conduct at the police station, I

conclude that the trial court did not abuse its discretion

in allowing the amendment. It is therefore unnecessary

for me to consider whether the record demonstrated

good cause1

forthe amendment and whetherthe amendment charged a different or additional offense. State v.

Tanzella, supra, 226 Conn. 608 and n.8. Because I disagree with the majority’s conclusion that the amended

information charged an additional offense, however,

I briefly explain the basis for my disagreement with

that conclusion.2

As I have observed in this dissenting opinion, the

purpose of Practice Book § 36-18 is to protect a defendant’s sixth amendment right ‘‘to be informed of the

nature and cause of the accusation . . . .’’ U.S. Const.,

amend. VI. In light of that overarching purpose, this

court has never rigidly construed the requirement that

an amended information cannot charge an additional

or different offense. Instead, the court has reviewed

amendments with an eye toward determining whether

the original information did not provide the defendant

with notice of the ‘‘nature and cause of the accusation’’

that the state had brought against him. U.S. Const.,

amend. VI. For example, at issue in Tanzella were two

amendments to the original information. State v. Tanzella, supra, 226 Conn. 606. First, the information had

charged the defendant with assault in the third degree

in violation of General Statutes § 53a-61 (a) (2), alleging

that he recklessly caused serious physical injury to

another person. That count was amended to reflect that

the state alleged that the defendant intentionally caused

physical injury to another person in violation of § 53a61 (a) (1). Id., 607. Second, the original information had

charged the defendant with threatening in violation of
General Statutes (Rev. to 1993) § 53a-62 (a) (2), alleging

that the defendant had threatened to commit a crime

of violence with the intent of terrorizing another or

causing serious public inconvenience. That count was

amended to reflect that the state alleged that the defendant, by physical threat, intentionally placed or

attempted to place another person in fear of imminent

serious physical injury in violation of General Statutes

(Rev. to 1993) § 53a-62 (a) (1). Id. This court recognized

that the amendments changed both the mental state

and the nature of the harm. Id., 613. Because the amendments simply specified ‘‘alternative means of committing a single crime,’’ however, the court concluded that

they did not charge any additional or different offenses.

Id., 612–13.

In contrast to the amendments in Tanzella, the

amendments to the information in the present case

merely clarify where the acts of interfering occurred.

The amendments do not change the mental state or the

nature of the harm. They do not change the identity of

the officers with respect to whom the defendant was

charged with interfering, and they do not change the

elements of the offense. The amended counts of the

information simply make clear what already had

become obvious from the questioning by both parties

during the trial—that both sides understood the defendant’s interfering conduct to have begun during the

motor vehicle stop and to have continued at the police

station. Accordingly, rather than charging an additional

or different offense, the amended information merely

conformed the charges to the evidence.

The trial court ruled that the defendant’s actions constituted what it referred to as a ‘‘continuing course of

conduct.’’ I understand the court’s use of that phrase,

which I acknowledge does not constitute a legal term

of art in this particular context, to mean that it viewed

the defendant’s conduct at the police station and at

the motor vehicle stop to comprise a single criminal

transaction. That understanding is supported by the

evidence adduced at trial, which revealed that from

start to finish, the defendant’s charged conduct lasted

less than one hour; the motor vehicle stop occurred a

mere 1000 feet from the police station; and, with the

exception of a few pauses in his interfering conduct,

the defendant persisted in his resistance to the police

throughout the encounter. Specifically, the encounter

began shortly after 1 a.m., when Buck initially stopped

the defendant’s girlfriend, Michelle Sofianos, after

observing her making an illegal U-turn nearthe intersection of Orange and Hanover Streets in Meriden. At

approximately 1:27 a.m., the cruiser, with the defendant

inside, pulled into the sally port at the nearby police

station. The defendant’s alleged assault, which marked

the end of the defendant’s charged conduct, occurred

approximately fifteen minutes into the video—about

forty-five minutes after Buck stopped Sofianos. During
that time, the defendant interfered with the officers.

The unity of the defendant’s criminal conduct at the

motor vehicle stop and the police station is not changed

by the mere fact that while the defendant was interfering with the officers, they moved him to a different

location. Nor is that unity defeated because the defendant did not physically resist during every single

moment of those forty-five minutes. It is particularly

significant that when the defendant was physically compliant, he was handcuffed, thereby preventing him from

physically interfering. Of course, handcuffs could not

stop the defendant from verbally interfering with the

officers, and the officers testified that he did so. Phillips

testified that after the defendant had been placed in

handcuffs at the scene of the motor vehicle stop, he

continued to be ‘‘verbally combative.’’ Phillips

explained that the defendant kept displaying ‘‘a lot of

verbal aggression toward us, calling us pigs and using

profanity toward us.’’ Buck testified that in the sally

port, the defendant, who was intoxicated, told the officers: ‘‘[F]uck you guys. Just leave me the fuck alone.’’

When they brought him to the holding cell, Phillips

testified, the defendant’s ongoing verbal attacks on the

officers continued. When questioned regarding what

the defendant said, Phillips responded, ‘‘more expletives and calling us pigs.’’3 The defendant’s physical

interference resumed almost immediately after they

removed the handcuffs in order to remove his vest, and

he resumed his compliance soon after they placed the

handcuffs back on him. The testimony and evidence

presented at trial, therefore, demonstrated that the

defendant’s interference was ongoing. His conduct at

the police station was part of the same criminal transaction that began at the motor vehicle stop, and the state’s

amended information merely conformed the charges to

the evidence adduced at trial.

I emphasize that the basis for my dissenting opinion

is my conclusion that the original information provided

the defendant with sufficient notice to defend against

the charges. That ability to defend was not affected by

the amendment to the information. He extensively and

thoroughly challenged the state’s position that he interfered with the officers at the police station. The crossexamination of the police officers, taken together with

the defendant’s testimony, presented a coherent

defense theory,that the defendant was a victim of police

abuse. If he had believed that he was prejudiced by the

amendment, he could have recalled witnesses to the

stand or introduced additional evidence. He did not.

The majority’s decision, by ignoring the fact that the

defendant fully litigated this issue, gives the defendant

a windfall.

For all of the foregoing reasons,I would conclude that

the trial court did not abuse its discretion in allowing the

amendment. Accordingly, I respectfully dissent.

1

I note my agreement with the majority’s acknowledgment that if the
record were to reveal that the state lacked good cause for seeking to amend

the information, that alone would not support a conclusion that the trial

court abused its discretion in allowing the amendment. I further observe,

however, that because the amended information conformed the charges to

the evidence, the record reflects that there was good cause for the amendment. See State v. Franko, supra, 199 Conn. 492. I therefore disagree with

the Appellate Court’s suggestion that in order for the record to establish

good cause, there must have been ‘‘new evidence or evidence that the state

had not anticipated to warrant amending the information at that time.’’ State

v. Ayala, supra, 154 Conn. App. 647.

2 As I have explained, I ground this dissenting opinion on my conclusion

that the original information provided the defendant with sufficient notice

to mount a defense, and discuss the issue of whetherthe amendment charged

the defendant with an additional offense solely to explain why I disagree

with the majority that it does so.

As for the majority’s claim that the state conceded this issue at oral

argument, however, I disagree. It is at best unclear whether the state conceded this issue. At one point during argument, the state’s attorney was

comparing the present case with State v. Tanzella, supra, 226 Conn. 601.

By contrast to Tanzella, the state’s attorney argued, in the present case,

‘‘we have an added crime . . . and we have different conduct, but [he was]

able to fully defend against that conduct.’’ A few minutes later, however,

the state’s attorney expressed the opposite view. The Chief Justice asked:

‘‘You’re not really disputing that this was an additional offense?’’ The state’s

attorney responded: ‘‘No, absolutely not. . . . It is the same crime, and

what they provided was an additional separate evidentiary basis for the

conviction. You can call it whatever you want.’’ (Emphasis added.) This

response is inconsistent with the majority’s claim that the state conceded

this issue.

3 Because the defendant ceased to physically interfere with the officers

after being placed in handcuffs, the majority incorrectly states that he was

‘‘fully cooperative . . . .’’ See footnote 8 of the majority opinion. The record

demonstrates that the defendant merely adapted. When he was no longer

able to offer physicalresistance, he continued to resist the officers in the only

means available to him—verbal interference. The interference was ongoing.