State v. Tanzella, 14627

Decision Date27 July 1993
Docket NumberNo. 14627,14627
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Richard J. TANZELLA.

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

Jon L. Schoenhorn, Hartford, for appellee (defendant).

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON and NORCOTT, JJ.

BORDEN, Associate Justice.

The certified issue in this appeal is whether, pursuant to Practice Book § 624, 1 the trial court properly permitted the state to amend a criminal information after the commencement of trial. The defendant, Richard J. Tanzella, was convicted after a jury trial of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70, 2 and one count each of assault in the third degree in violation of General Statutes § 53a-61(a)(1), 3 threatening in violation of General Statutes § 53a-62(a)(1), 4 and unlawful restraint in the first degree in violation of General Statutes § 53a-95. 5 He appealed to the Appellate Court from the judgment of conviction. The Appellate Court affirmed the judgment of conviction on the first, second and fifth counts, namely, both counts of sexual assault in the first degree and the count of unlawful restraint. With regard to the third and fourth counts, namely, assault in the third degree and threatening, however, the Appellate Court reversed the judgment of conviction and ordered a judgment of acquittal 6 because the trial court had improperly permitted the state to amend the information by alleging different or additional offenses in violation of Practice Book § 624. State v. Tanzella, 28 Conn.App. 581, 590, 613 A.2d 825 (1992). We granted the state's petition for certification to appeal regarding the third and fourth counts 7 and now reverse the judgment of the Appellate Court.

The Appellate Court opinion sets forth the following relevant 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." State v. Tanzella, supra, 28 Conn.App. at 583-85, 613 A.2d 825.

The state charged the defendant in a five count information. After the jury had been selected and sworn, the trial court clerk read the information to the jury. During the reading, the state's attorney noticed errors in the third and fourth counts of the information. Although the third count charged the defendant with assault in the third degree in violation of General Statutes § 53a-61(a)(2), the state's attorney had intended to charge a violation of subsection (a)(1) rather than (a)(2). Also, the fourth count charged the defendant with threatening in violation of General Statutes § 53a-62(a)(3); the state's attorney, however, had intended to charge a violation of subsection (a)(1) rather than (a)(3).

Relying on Practice Book § 624, the state's attorney moved to amend the information to correct the errors, and the defendant objected. The trial court granted the motion and the state amended the information accordingly. The third count of the amended information charged the defendant with assault in the third degree in violation of § 53a-61(a)(1) and the fourth count charged him with threatening in violation of § 53a-62(a)(1). The trial court offered the defendant the option of a continuance to remedy any possible surprise, but the defendant declined. The defendant was subsequently convicted on all five counts of the amended information. The defendant's appeal to the Appellate Court and the state's appeal to this court followed.

I

The state first claims that the Appellate Court improperly concluded that the amendment to the information violated Practice Book § 624 by charging different or additional offenses. We agree.

The amendment to the third count of the information, the charge of assault in the third degree, changed the allegation from an assault in which the defendant had recklessly caused serious physical injury to an assault with intent to cause physical injury. The Appellate Court held that the amended charge of assault in the third degree constituted a different offense because it changed: (1) the requisite mental state from recklessness to intent; and (2) the level of harm from serious physical injury to physical injury. Id., at 587-88, 613 A.2d 825.

The amendment to the fourth count, the charge of threatening, changed the proscribed conduct from threatening in reckless disregard of terror or inconvenience to threatening by intentionally placing a person in fear of imminent physical injury. The Appellate Court concluded that the amended charge of threatening constituted a different offense because it changed: (1) the mental state from recklessness to intent; and (2) the nature of the harm. Id., at 590, 613 A.2d 825.

Before the commencement of trial, a prosecutor has broad authority to amend an information under Practice Book § 623. Once the trial has started, however, the prosecutor is constrained by the provisions of Practice Book § 624.

Section 624 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." We agree with the decision of the Appellate Court in State v. Cole, 8 Conn.App. 545, 551-52, 513 A.2d 752 (1986), that for purposes of § 624, a trial begins with the voir dire. In this case, the voir dire was complete and the jury had been sworn and read the information before the state's attorney moved to amend. Thus, trial had commenced and § 624 applied.

We disagree, however, with the Appellate Court's conclusion that the amended charges created different or additional offenses. 8 Practice Book § 624 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). The importance of notice is the reason that § 624 defines the commencement of trial as the voir dire rather than the swearing-in of the jury: the defendant needs to know the nature of the accusations against him in order to question jurors effectively. State v. Cole, supra, 8 Conn.App. at 551, 513 A.2d 752.

Because § 624 is...

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