State v. Tanzella, 9914

• Citation: 613 A.2d 825,28 Conn.App. 581
• Decision Date: 11 August 1992
• Docket Number: No. 9914,9914
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Richard J. TANZELLA.

Page 825

613 A.2d 825

28 Conn.App. 581

STATE of Connecticut v. Richard J. TANZELLA.

No. 9914.

Appellate Court of Connecticut.

Argued March 31, 1992.

Decided Aug. 11, 1992.

Certification granted for limited question

(state's petition) Oct. 30, 1992.

Certification denied (defendant's petition)

Oct. 30, 1992.

Landau, J., dissented in part, concurred in part, and filed opinion.

Jon L. Schoenhorn, with whom, on the brief, was Christine M. Fiedler, Legal Intern, for appellant (defendant).

Jack W. Fischer, Deputy Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and John H. Malone, Supervisory Asst. State's Atty., for appellee (state).

Before DALY, LANDAU and FREDERICK A. FREEDMAN, JJ.

DALY, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70, assault in the third degree in violation of General Statutes § 53a-61 ¹ threatening in violation of General Statutes § 53a-62 ² and unlawful restraint in the first degree in violation of General Statutes § 53a-95. He claims that the trial court improperly (1) allowed the state to make a substantive amendment to the information after the commencement of trial, (2) admitted extrinsic evidence to impeach the defendant on a collateral matter, and (3) admitted prejudicial hearsay testimony.

The jury reasonably could have found the following facts. On July 16, 1988, the victim went to the Club Car, a Hartford nightclub, to meet some friends. At approximately 1:30 a.m. on July 17, she left the club by herself and walked to her car. As she was walking to her car, the defendant approached her and began a conversation. The defendant identified himself and asked if she would give him a ride to his house in Manchester. The victim initially refused but then changed her mind after the defendant emptied his pockets to show he did not have a weapon. The victim examined the defendant's driver's license after he emptied his pockets. She then drove the defendant to Manchester and stopped at a school parking lot near his apartment.

According to the victim's testimony, when they arrived at the school parking lot, the defendant grabbed her and turned off her car's engine. The defendant told the victim to remove her pants but she attempted to struggle with him. She was able to restart the car but again he removed the keys and threatened her with death if she kept resisting. During the course of the struggle, the defendant punched the victim in the head and she bit him on the forearm. The defendant then sexually assaulted the victim and forced her to engage in sexual intercourse. After intercourse, the victim drove the car, following the defendant's directions, toward his apartment. While driving, the victim saw a house with its lights on and drove into the driveway. She grabbed her keys and fled from the car to a side door of the house. She began to bang on the door and saw that the defendant had exited her car. The defendant ran up the street and the victim returned to her car. As she drove toward a hospital, the victim encountered a Manchester police officer and reported that she had been raped.

After meeting with the victim and further investigation, the police went to the defendant's apartment. The police officers told the defendant he was under investigation for sexual assault. The defendant denied any knowledge of a sexual assault and stated that he had been out with his girl friend all night. The defendant's girl friend, Virginia Cross, was also at his apartment when the police arrived. The police arrested the defendant and took him into custody. The defendant telephoned Cross from the police station. A police officer who overheard the defendant's conversation with Cross testified that he stated, "You are driving a nail into my coffin." According to this officer, the defendant also told Cross to change her story and tell the police that she did not remember anything because she suffered from blackouts. The police photographed a small bitemark on the defendant's forearm.

The defendant testified that after spending the evening with Cross at a club in Hartford, he became separated from her as the club was closing. The defendant stated that he and Cross were getting along very well and had not been fighting that evening. The defendant began to look for Cross outside of the club and during this search he met the victim. According to the defendant's version, the victim offered to drive him home and during the drive placed her hand on his knee. At the school parking lot, they kissed and then had consensual sexual intercourse. After this, the victim asked if she could go to the defendant's apartment with him. The defendant refused because his girl friend was at his apartment. The defendant told the victim that "having sex in a parking lot is not a way to start a relationship for the future." The victim then drove the defendant to a house whereupon she exited the car and walked into the house. The defendant exited the car and took the victim's pants and nylons with him. He deposited the defendant's pants and nylons in a dumpster near his apartment.

I

The defendant first claims that the trial court improperly allowed the state to amend the information after the completion of jury selection. The defendant argues that the amended information charged offenses different from the original information in violation of Practice Book § 624.

The following facts are relevant to the disposition of this claim. Before the commencement of jury selection, the third count of the state's information charged the defendant with assault in the third degree in violation of General Statutes § 53a-61(a)(2). The fourth count of the state's information charged the defendant with threatening in violation of General Statutes § 53a-62(a)(3). After jury selection, the trial court clerk read the information to the jury. After this reading, the assistant state's attorney, outside the presence of the jury stated that he discovered for the first time that the third and fourth counts of the information were incorrect and claimed that a drafting error resulted in the wrong subdivisions being cited in the original information. He stated that the third count should have alleged a violation of subdivision (1) instead of subdivision (2) of § 53a-61(a), and the fourth count should have alleged a violation of subdivision (1) instead of subdivision (3) of § 53a-62(a). The defendant, relying on Practice Book § 624, objected to the state's attempt to amend the original information. The defendant argued that the state could amend the information after the commencement of trial only if the amendment substituted a lesser included offense. He argued that the amendment changed the nature, elements and proof as to both the assault and threatening counts. According to the defendant's argument, the change in subdivisions of the assault count resulted in a clearly different substantive offense's being charged. The state argued that the amendment did not add extra or different charges and that the defendant faced the same penalty under the original and amended information. The defendant focused on the change related to the third count concerning assault in the third degree because the state originally had to prove serious physical injury and, under the amendment, had to prove only physical injury. ³ The defendant argued that the amendment changed the theory of the case and prejudiced his defense because he lacked proper notice of the new charges. The trial court allowed the amendment, concluding that it did not amount to a substantive change because the offenses remained the same and the amendment altered only the manner in which the offense was committed. The trial court asked defense counsel whether he needed any additional time to address the changes in the amendment. Defense counsel felt that he did not need additional time at that point but stated that he would inform the court if the amendment resulted in a time problem.

Because this amendment occurred after the jury was selected, the trial had commenced and Practice Book § 624 governed the amendment. State v. Cole, 8 Conn.App. 545, 551-52, 513 A.2d 752 (1986). After the commencement of trial, the state can amend the information without the defendant's consent as long as "no additional or different offense is charged and no substantive rights of the defendant would be prejudiced." Practice Book § 624. "The state's right to amend must be limited to substitutions that do not charge the defendant with an additional or different offense because the defendant has a constitutional right to fair notice, prior to the commencement of trial, of the charges against which he must defend himself. See U.S. Const., amend. VI; Conn. Const., art. I, § 8." State v. Jacobowitz, 182 Conn. 585, 590, 438 A.2d 792 (1981). "Unless the original and the amended informations charge the defendant with the same crime, as was the case in State v. Wallace, 181 Conn. 237, 435 A.2d 20 (1980), amendment is permissible only to charge a lesser included offense." Id., 182 Conn. at 590-91, 438 A.2d 792.

Under the state's original information, it was required to prove that the defendant acted recklessly and thereby caused a serious physical injury to another person to secure a conviction based on § 53a-61(a)(2). Under the amended information, to secure a conviction based on § 53a-61(a)(1), the state had to prove that the defendant intentionally caused another to suffer a physical injury. Although both subdivisions (1) and (2) of subsection (a) are generally classified as the crime of assault in the third degree, we conclude that, for purposes of Practice Book § 624 they are not the same offense. Each subdivision within § 53a-61(a) requires proof of different mental states as well as different resulting physical injuries from the defendant's...