Opinion
Nos. CR 05 0123681, MV 05 0341440
May 17, 2006
RULING ON THE DEFENDANT'S MOTION TO DISMISS THE STATE'S AMENDED PART B INFORMATION
By information dated July 19, 2005, the state charged the defendant with possession of narcotics in violation of General Statutes § 21a-279a, possession of drug paraphernalia in violation of General Statutes § 21a-267a and operating under the influence in violation of General Statutes § 14-227a. On April 11, 2006, prior to the commencement of jury selection, the state filed a two-count part B information charging him as a second time offender for drug possession and driving while intoxicated. The original part B alleged that the defendant was previously convicted for driving while intoxicated "on or about 5/2/95 . . ." Jury selection began on April 11, 2006. Thereafter, on April 28, 2006, the state filed an amended part B alleging that the defendant was previously convicted for driving while intoxicated "on or about 5/2/95 or 3/11/96 . . ." (Emphasis added.)
At a hearing on May 5, 2006, the defendant orally objected to the additional language contained in the amended part B arguing that it should not be allowed. On May 12, 2006, the defendant filed a memorandum of law in support of his argument. Also on May 12, 2006, the state filed a memorandum of law in objection to the defendant's argument and petitioning the court to allow the amendment.
"Before a trial begins, the state has broad authority to amend an information pursuant to Practice Book § 36-17. Once the trial has started, however, the prosecutor is constrained by the provisions of Practice Book § 36-18." (Internal quotation marks omitted.) State v. Grant, 83 Conn.App. 90, 97, 848 A.2d 549, cert. denied, 270 Conn. 913, 853 A.2d 529 (2004). "[F]or purposes of Practice Book . . . § 36-17 . . . and . . . § 36-18 . . . a criminal trial begins with the voir dire of the prospective jurors." State v. Lee, 86 Conn.App. 323, 327, 860 A.2d 1268 (2004), cert. denied, 272 Conn. 921, 867 A.2d 839 (2005).
In the present case, the state contends that Practice Book § 36-17 controls because the defendant's trial on part B of the information had not commenced when the state filed the amendment. The court disagrees. " State v. Delmonto, 110 Conn. 298, 147 A. 825 [(1929)], made it clear that the allegations of prior offenses in part [B] of an information affect penalty only and are part and parcel of one information so that, if these allegations are not included in the information charging the crime, they are ineffective and cannot be alleged in a separate information. In State v. Holloway, 144 Conn. 295, 130 A.2d 562 [(1957)], [our Supreme Court] reiterated that a prosecution for a current offense by a prior offender is a prosecution for one crime in one information, but which involves different penalties depending on proof of the allegations of prior offenses in part [B] of the information. In State v. Grady, 153 Conn. 26, 211 A.2d 674 [(1967)], it was again recognized that a prosecution involving a two-part information, although requiring two separate procedures, is a prosecution under one information." (Emphasis added.) State v. La Selva, 163 Conn. 229, 233, 303 A.2d 721 (1972). "The difficulty, if there is a difficulty, in determining the effect of a two-part information is recognizing that the information does not charge one crime in the first part and a second crime in the second part, but that only one information charging one crime is involved." (Emphasis added.) Id. Thus, the start of trial on charges contained in one information necessarily constitutes the beginning of trial for both parts of the information, and as our cases and rules of practice make clear, an amendment to an information after the commencement of trial is governed by Practice Book § 36-18. See Practice Book § 36-18; State v. Grant, supra, 83 Conn.App. 97.
In the present case, voir dire began on April 11, 2006, and, as such, trial began on this date. State v. Lee, 86 Conn.App. 327. On April 28, 2006, the state amended part B of the information after the commencement of voir dire and, therefore, after the beginning of trial. Thus, because the amendment occurred after trial began, the prosecutor is constrained by the provisions of Practice Book § 36-18. See State v. Grant, supra, 83 Conn.App. 97.
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." "If the state seeks to amend charges after the commencement of trial, it shoulders the burden of establishing that no substantive rights of the defendant would be prejudiced . . . Like any other party petitioning the court, the state must demonstrate the basis for its request. Under [Practice Book § 36-18], the state must show: (1) good cause for the amendment; (2) that no additional or different offense is charged; and (3) that no substantive right of the defendant will be prejudiced. This allocation of burden encourages the state to prepare its case carefully because it bears the burden of justifying subsequent adjustments." (Internal quotation marks omitted.) State v. Grant, supra, 83 Conn.App. 97.
Considering first, the second requirement, that no additional or different offense is charged in an amendment, the court recognizes that part B of an information which includes a sentence enhancement provision, does not charge an additional or different offense. Id., n. 2; State v. Nicholson, 71 Conn.App. 585, 803 A.2d 391, cert. denied, 261 Conn. 941, 808 A.2d 1134 (2002). Thus, in this case, because the amendment to the second part of the information sought a sentence enhancement, no additional or different offense has been charged. The court finds, therefore, that the second requirement is satisfied.
With regard to good cause, however, the court finds that the state has not met its burden. The state, in fact, has offered no reason for its amendment. The court notes, however, that the original part B information most likely would not have led to the defendant's conviction as a second offender because the offense alleged in the original information did not occur within the ten-year statutory mandate. See General Statutes § 14-227a(g) (stating in relevant part: "Any person who violates any provision of subsection (a) of this section shall . . . (2) for conviction of a second violation within ten years after a prior conviction for the same offense . . . be fined . . . imprisoned . . . and . . . have [their] motor vehicle operator's license . . . privilege suspended . . .") (Emphasis added.)
With regard to prejudice, the overaged prior conviction originally alleged in part B of the information also factors into the court's analysis. "Nothing is more elementary in criminal law than that an accused is required to defend only against the charge[s] alleged . . . The information serves the very important function of informing the defendant of the nature and cause of the accusation as required by our federal and state constitutions. U.S. Const., amend. VI; Conn. Const., art. I, § 8." (Internal quotation marks omitted.) State v. Ward, 76 Conn.App. 779, 787, 821 A.2d 822 (2003), cert. denied, 271 Conn. 902, 859 A.2d 566 (2004). Moreover, by giving notice, an information serves a defendant's fundamental due process right to a fair trial. See State v. Harris, 49 Conn.App. 121, 129-30, 714 A.2d 12 (1998) (amended information charging defendant as accessory did not violate defendant's constitutional rights to due process and to a fair trial). In light of the constitutional importance of an information, improperly amending it implicates a defendant's constitutional rights. See id.; see also State v. Ignatowski, 10 Conn.App. 709, 715, 525 A.2d 542, cert. denied, 204 Conn. 812, 528 A.2d 1157 (1987) (improper addition of three separate and distinct offenses to outstanding information after commencement of trial implicates the defendant's constitutional right to fair notice of the charges against him). As such, when confronted with the issue of whether a defendant's constitutional rights were prejudiced by an amendment to an information, a "court considers the totality of the circumstances in deciding whether the defendant was surprised by the changes and whether the defense was hampered." (Internal quotation marks omitted.) State v. Van Eck, 69 Conn.App. 482, 491, 795 A.2d 582, cert. denied, 261 Conn. 915, 806 A.2d 1057, 2002 (2002).
In the present case, the court finds that the amendment prejudiced the defendant's rights because it contravenes due process notions of a fair trial and it hampered his ability to make meaningful defensive decisions. As previously stated, the original part B alleged that the defendant had a prior driving while intoxicated conviction which occurred on or about May 2, 1995. The amended part B, however, alleged a prior driving while intoxicated conviction which occurred on or about March 11, 1996. The state filed its amended part B seventeen days after the original part B information was filed, and seventeen days after trial began. Additionally, the defendant was not given notice of the amended part B information until May 5, 2006, twenty-four days after the original part B was filed and seven days after being convicted on part A of the information. Under these circumstances, the court finds that the state's attempt to legitimatize the original part B containing an overaged prior conviction, after the defendant relied on the invalidity of the prior offense contained therein, interfered with the defendant's fundamental due process right to a fair trial because it significantly changed the stakes of the prosecution after the beginning of trial, after the defendant's conviction, and after the rules of the prosecution had already been established.
Moreover, the court finds that the defendant's defense was hampered by the amendment since his reliance on the original part B information influenced his defense and defensive strategy. The amended information significantly changed the circumstances surrounding his prosecution as it changed his status from a first time offender to a second time offender in which the defendant faced a much greater penalty. The defendant's reliance on the dated offense contained in the original part B prevented him from even considering the greater penalty as a second offender and, therefore, hindered his ability to formulate a proper defense or defense strategy.
CONCLUSION
For the foregoing reasons the amended information is dismissed and the state is limited to pursuing the charges alleged in the original part B information filed on April 11, 2006.