State v. Brundage , 148 Conn. App. 550 ( 2014 )

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STATE OF CONNECTICUT v. RICHARD BRUNDAGE
(AC 35419)
Gruendel, Keller and Borden, Js.
Argued November 14, 2013—officially released March 11, 2014
(Appeal from Superior Court, judicial district of
Waterbury, Crawford, J. [judgments in prior case];
Fasano, J. [motion to substitute information].)
Kathryn W. Bare, assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attor-
ney, and Cynthia S. Serafini, senior assistant state’s
attorney, for the appellant (state).
Raymond L. Durelli, assigned counsel, for the appel-
lee (defendant).
Opinion
GRUENDEL, J. This case concerns the proper scope
of a remand order. In State v. Brundage, 138 Conn.
App. 22, 50 A.3d 396 (2012) (Brundage I), this court
reversed the judgments of conviction of the defendant,
Richard Brundage, of two counts of sexual assault in
the first degree in violation of General Statutes § 53a-
70 (a) (2) and two counts of risk of injury to a child in
violation of General Statutes § 53-21 (a) (2). We con-
cluded in relevant part that ‘‘[o]f the four counts in the
operative informations, only count one . . . is com-
pletely time barred [under General Statutes (Rev. to
1993) § 54-193a]. . . . [T]he other three counts are par-
tially untimely and partially timely.’’ (Footnote omit-
ted.) Id., 32. We further rejected the defendant’s claim
that this court ‘‘should set aside the judgments of con-
viction and direct the trial court to dismiss the partially
untimely charges, rather than remand the cases for a
new trial,’’ holding that ‘‘[r]etrial here is not barred by
the double jeopardy clause of the fifth amendment.’’
Id. We thus remanded the matter to the trial court for
a new trial on those charges that are not time barred
under the aforementioned statute. Id.
On remand and prior to the commencement of that
new trial, the state filed a substitute information charg-
ing the defendant with two counts of kidnapping in the
first degree in violation of General Statutes § 53a-92 (a)
(2). The defendant filed an objection to that substitute
information, arguing, inter alia, that the new charges
contained therein exceeded the scope of the remand
from this court. The trial court agreed and sustained
the defendant’s objection. The court thus dismissed the
substitute information and thereafter granted the state
permission to appeal pursuant to General Statutes
§ 54-96.1
In this appeal, the state contends that the court
improperly concluded that the remand order in Brund-
age I precluded the state from amending its information
to charge the defendant with kidnapping in the first
degree at his second trial. We agree and, accordingly,
reverse the judgment of the trial court.
The relevant facts are not disputed. In Brundage I, the
defendant was charged in two separate informations,
which were consolidated for trial. This court reversed
the defendant’s judgments of conviction and remanded
the matter to the trial court ‘‘for a new trial as to the
charges that are not time barred.’’ State v. Brundage,
supra, 138 Conn. App. 32. The rescript to the decision
provides that ‘‘[t]he judgments are reversed and the
cases are remanded with direction to dismiss count one
of the Wolcott information and for a new trial as to the
remaining charges.’’ Id., 39–40. That decision officially
was released on September 11, 2012.
On November 26, 2012, the state filed a substitute
information charging the defendant with two counts of
kidnapping in the first degree, to which the defendant
filed a written objection. In an attempt to resolve any
ambiguity as to the scope of the remand order in Brund-
age I, the state on December 4, 2012, filed a motion for
articulation with this court,2 which was dismissed. The
trial court heard argument on the defendant’s objection
to the substitute information on January 24, 2013. At
that time, the state argued that ‘‘if you look at the deci-
sion of the Appellate Court, there hasn’t been—[it]
didn’t decide the issue of whether or not the state could
amend the charges.’’ Defense counsel argued that ‘‘the
reason we object is because we feel that the Appellate
Court was very, very clear in its decision when it stated
that the case was going to be reversed and remanded
for [a] new trial for charges that are not time barred.
. . . [W]e feel it’s very clear the Appellate Court was
referring to charges not time barred regarding the sex-
ual assault charges and that would be it.’’
In ruling from the bench, the court agreed with the
defendant, stating in relevant part: ‘‘It would seem to me
what [the Appellate Court in Brundage I] contemplated
was an amendment that would put the remaining
charges within the period of the statute of limitations
and an immediate retrial because, after all, the parties
had been through an entire proceeding, a trial, a sen-
tencing and appellate period, a remand. I don’t think
they contemplated starting again with new charges that
would require discovery, that would require issues
raised just in terms of any new charge that would come
before the court. . . . I think the remand was clear,
and I think the reason, the idea of the remand was that
simply the state would amend the charges to reflect a
time period within the statute of limitations and go back
to trial fairly immediately as opposed to an entirely new
prosecution. . . . Kidnapping was not charged in any
effect during the prior proceedings. They would be, in
effect, new charges that would allow for discovery and
motions to be filed. It would be going back to day one
as far as the arrest and prosecution of this defendant.
So I don’t think it was contemplated by the Appellate
Court. I think I have to strictly construe any remand
order. The remand order . . . [concluded that] the
cases should be remanded for a new trial as to the
charges that are not time barred. And I think that’s what
the state is limited to with respect to this prosecution.
. . . [W]ith respect to this prosecution, the motion for
substitute information charging kidnapping is denied.
So the objection is sustained as to the substituted infor-
mation.’’ From that judgment, the state now appeals.
The state claims that the trial court improperly sus-
tained the defendant’s objection. It argues that the state,
on remand from this court following our decision in
Brundage I, was not precluded from filing additional
charges via substitute information in the defendant’s
prosecution. The defendant maintains that the court
properly dismissed the substitute information as
beyond the bounds of the Brundage I remand and,
further, that the charges contained therein are barred
by the doctrine of res judicata. We agree with the state.
At the outset, we note that the abuse of discretion
standard governs our review of a court’s decision to
permit a pretrial amendment to an information. State
v. Ramos, 176 Conn. 275, 276, 407 A.2d 952 (1978); State
v. Caracoglia, 78 Conn. App. 98, 101, 826 A.2d 192, cert.
denied, 266 Conn. 903, 832 A.2d 65 (2003). Whether a
trial court properly determined the scope of a remand
presents a question of law, over which our review is
plenary. State v. Tabone, 301 Conn. 708, 713–14, 23 A.3d
689 (2011). ‘‘Well established principles govern further
proceedings after a remand by this court. In carrying
out a mandate of this court, the trial court is limited
to the specific direction of the mandate as interpreted
in light of the opinion. . . . This is the guiding principle
that the trial court must observe. . . . The trial court
should examine the mandate and the opinion of the
reviewing court and proceed in conformity with the
views expressed therein. . . . These principles apply
to criminal as well as to civil proceedings.’’ (Citations
omitted; internal quotation marks omitted.) Id., 714–15.
The resounding mandate that emanates from this
court’s decision in Brundage I is that the state could
not proceed on any charges against the defendant that
were time barred under General Statutes (Rev. to 1993)
§ 54-193a. The distinct issue presented to this court was
whether the trial court ‘‘improperly . . . denied [the
defendant’s pretrial] motions to dismiss the sexual
assault charges against him that were time barred by
General Statutes (Rev. to 1993) § 54-193a . . . .’’3 State
v. Brundage, supra, 138 Conn. App. 23. In interpreting
that statute, this court agreed with the parties4 that
‘‘§ 54-193a, as amended on May 23, 2002, does not apply
retroactively and that any offenses that occurred prior
to May 23, 2002, are time barred pursuant to General
Statutes (Rev. to 1993) § 54-193a.’’ Id., 29. We then
applied that determination to the facts on hand, con-
cluding in relevant part: ‘‘Of the four counts in the
operative informations, only count one of the Wolcott
information alleged a time period that is completely
time barred. By alleging time periods up to October 18,
2002, the other three counts are partially untimely and
partially timely. Because the trial court erroneously
concluded that the current version of § 54-193a applied
retroactively, it foreclosed the defendant from offering
proof regarding the dates of the offenses in support of
an affirmative statute of limitations defense. Such a
defense simply no longer was viable in light of the
court’s ruling. Therefore, the court erred in denying the
motions to dismiss.’’ (Footnotes omitted.) Id., 32.
The remaining question concerned the proper
remand. In his appellate brief, the defendant urged this
court ‘‘to set aside the judgment and dismiss the charge
of sexual assault in the first degree, § 53a-70 (a) (2).’’
Although the state agreed with the defendant’s claim
that the trial court improperly applied the statute in
question retroactively, it disagreed that a dismissal was
warranted and instead contended that a remand for a
new trial was appropriate. This court agreed with the
state that a remand for a new trial, and not an outright
dismissal, was the more appropriate order. Indeed, the
decision in Brundage I expressly notes the aforemen-
tioned disagreement between the parties, stating:
‘‘Although the defendant acknowledges on appeal that
prosecution of offenses that occurred after May 22,
2002, is not time barred, he argues that we should set
aside the judgments of conviction and direct the trial
court to dismiss the partially untimely charges, rather
than remand the cases for a new trial. He fails, however,
to provide any legal support for this request. Retrial
here is not barred by the double jeopardy clause of the
amendment. . . . In the absence of any persuasive rea-
son to do otherwise, we conclude that the cases should
be remanded for a new trial as to the charges that are
not time barred.’’ (Citation omitted; footnote omitted.)
State v. Brundage, supra, 138 Conn. App. 32.
The state maintains that this court in Brundage I
simply addressed the distinct question before it con-
cerning retroactive application of § 54-193a, and
thereby determined whether the trial court properly
denied the defendant’s motion to dismiss. We agree. ‘‘It
is axiomatic that an appellate decision stands only for
those issues presented to, and considered by, the court
in that particular appeal.’’ Dept. of Public Safety v. Free-
dom of Information Commission, 103 Conn. App. 571,
582 n.10, 930 A.2d 739, cert. denied, 284 Conn. 930, 934
A.2d 245 (2007). The issue of whether the state on
remand was precluded from amending its information
to add new charges was neither raised by the parties
nor decided by this court. The only reference to the
state’s ability to amend comes in a footnote appended
to the concluding sentence of part I of the opinion,
in which this court noted that ‘‘[t]he defendant also
conceded at trial that the state would have the opportu-
nity to amend the informations if the court accepted
his argument that the current version of § 54-193a is
not retroactive.’’ State v. Brundage, supra, 138 Conn.
App. 32–33 n.13.
Viewed in context of the analysis set forth in Brund-
age I, we cannot say that the order remanding the matter
‘‘with direction to dismiss count one of the Wolcott
information and for a new trial as to the remaining
charges’’; id., 39–40; precluded the state from filing a
pretrial amendment to the information on remand. The
decision merely returned the parties to the position that
they would have been in had the trial court properly
ruled on the defendant’s motion to dismiss, hence the
footnote in part I of that opinion on the defendant’s
concession regarding the state’s ability to amend the
informations.
As our Supreme Court has observed, ‘‘[t]he state’s
attorneys, who are responsible for prosecuting viola-
tions of the criminal laws of this state, are executive
branch officials. . . . There can be no doubt that [t]he
doctrine of separation of powers requires judicial
respect for the independence of the prosecutor. . . .
Prosecutors, therefore, have a wide latitude and broad
discretion in determining when, who, why and whether
to prosecute for violations of the criminal law. . . .
This broad discretion, which necessarily includes decid-
ing which citizens should be prosecuted and for what
charges they are to be held accountable . . . rests
largely on the recognition that the decision to prosecute
is particularly ill-suited to judicial review. . . . [J]udi-
cial deference to the decisions of these executive offi-
cers . . . also stems from a concern not to
unnecessarily impair the performance of a core execu-
tive constitutional function.’’ (Citations omitted; inter-
nal quotation marks omitted.) State v. Kinchen, 243
Conn. 690, 699–700, 707 A.2d 1255 (1998). Indeed, a
fundamental function of the state’s attorney is ‘‘to deter-
mine [whether] there is reasonable ground to proceed
with a criminal charge . . . .’’ State v. Moynahan, 164
Conn. 560, 568, 325 A.2d 199, cert. denied, 414 U.S. 976,
94 S. Ct. 291, 38 L. Ed. 2d 219 (1973).
It is well established that ‘‘[b]efore a trial begins,
the state has broad authority to amend an information
pursuant to Practice Book § 36-17.’’5 (Internal quotation
marks omitted.) State v. Mullien, 140 Conn. App. 299,
311, 58 A.3d 383 (2013). Because this court in Brundage
I was not presented with, and did not decide, any claim
that the state should be precluded from amending its
information on remand, the trial court was not con-
strained in its ability to permit a pretrial amendment
to the information. As the United States Court of
Appeals for the Second Circuit explained, on remand
‘‘the trial court is barred from reconsidering or modi-
fying any of its prior decisions that have been ruled on
by the court of appeals. Of course, there is a corollary
to this rule—if an issue was not part of the appellate
decision, a trial court may consider the matter. . . .
Put differently, [w]hen an appellate court has once
decided an issue, the trial court, at a later stage in the
litigation, is under a duty to follow the appellate court’s
ruling on that issue.’’ (Citation omitted; emphasis
added; internal quotation marks omitted.) Burrell v.
United States, 467 F.3d 160, 165 (2d Cir. 2006); see also
5 Am. Jur. 2d 498, Appellate Review § 753 (2007) (‘‘[o]n
remand, a trial court is free to make any order or direc-
tion in further progress of [the] case . . . as to any
question not settled by [the] decision [of the appel-
late court]’’).
Accordingly, the salient inquiry before the court in
considering the propriety of the substitute information
was whether the state had proffered a sufficient factual
basis on which to predicate the two counts of kidnap-
ping in the first degree in violation of § 53a-92 (a) (2)
(A) and (B) contained in the amended information. See
State v. Menzies, 26 Conn. App. 674, 681, 603 A.2d 419(discretionary power of state to select appropriate
charge limited by facts prosecutor reasonably expected
to prove at trial), cert. denied, 221 Conn. 924, 608 A.2d
690 (1992). To establish the defendant’s guilt, the state
must prove that he abducted the complainant and
restrained her with the intent to ‘‘inflict physical injury
upon [her] or violate or abuse [her] sexually; or . . .
accomplish or advance the commission of a felony
. . . .’’ General Statutes § 53a-92 (a) (2). The warrants
for the defendant’s arrest provide the requisite factual
basis. The October 19, 2007 arrest warrant alleged in
relevant part that the defendant ‘‘would pick [the com-
plainant] up from school, and was suppose[d] to bring
her right to her mother’s business . . . however, he
would instead take her to parking lots at abandoned
buildings, force her to drink . . . white wine, and then
force her to have sexual intercourse with him in his
vehicle. . . .’’ Similarly, the November 20, 2007 arrest
warrant alleged in relevant part that the defendant
‘‘would pick [the complainant] up after school, and was
suppose[d] to take me to my mom’s business . . . .
On the way [the defendant] would pull into a vacant
lot . . . . [The defendant] would climb over the seat
and get on top of me. [He] would pull up my uniform
skirt, and force my legs apart, and then he would put
his penis inside my vagina, and have sex with me. I
didn’t want to have sex with [him], but I just laid there,
and stared at the door until he got off me. Then he
drove me to my mom’s store. . . .’’
In light of those factual allegations, the state was well
within its broad discretion to charge the defendant with
the aforementioned offenses. The mandate of Brundage
I is that the state could not proceed on any charges
against the defendant that were time barred under Gen-
eral Statutes (Rev. to 1993) § 54-193a. The charges con-
tained in the November 26, 2012 substitute information
are not time barred under that statute. Accordingly,
we conclude that the court improperly dismissed that
substitute information.
That determination, however, does not end our
inquiry. The defendant also argues, as an alternate
ground of affirmance, that the kidnapping in the first
degree charges contained in the substitute information
are barred by the doctrine of res judicata. We do not
agree.
Res judicata is ‘‘a judicial doctrine’’; State v. Ellis,
197 Conn. 436, 465, 497 A.2d 974 (1985); designed to
inhibit the ability of ‘‘a plaintiff to litigate the same
question over and over again, encumbering the mecha-
nisms our society has established to resolve disputes
. . . .’’ (Internal quotation marks omitted.) Sunbury v.
Sunbury, 216 Conn. 673, 677, 583 A.2d 636 (1990). At
the same time, our Supreme Court has instructed that
this doctrine of preclusion ‘‘should be flexible and must
give way when [its] mechanical application would frus-
trate other social policies based on values equally or
more important than the convenience afforded by final-
ity in legal controversies.’’ In re Juvenile Appeal (83-
DE), 190 Conn. 310, 318, 460 A.2d 1277 (1983). For that
reason, ‘‘the scope of matters precluded necessarily
depends on what has occurred in the former adjudica-
tion.’’ State v. Ellis, supra, 467.
‘‘Under the doctrine of res judicata, or claim preclu-
sion, a former judgment on a claim, if rendered on the
merits, is an absolute bar to a subsequent action on the
same claim. A judgment is final not only as to every
matter [that] was offered to sustain the claim, but also
as to any other admissible matter [that] might have
been offered for that purpose. . . . Nonetheless, in
applying the doctrine of res judicata to a [criminal]
defendant’s constitutional claim, special policy consid-
erations must be taken into account. The interest in
achieving finality in criminal proceedings must be bal-
anced against the interest in assuring that no individual
is deprived of his liberty in violation of his constitutional
rights. . . . Whether two claims in a criminal case are
the same for the purposes of res judicata should there-
fore be considered in a practical frame and viewed with
an eye to all the circumstances of the proceedings. . . .
Because the doctrine has dramatic consequences for
the party against whom it is applied . . . we should
be careful that the effect of the doctrine does not work
an injustice.’’ (Citations omitted; internal quotation
marks omitted.) State v. Long, 301 Conn. 216, 236–37,
19 A.3d 1242, cert. denied, U.S. , 132 S. Ct. 827,
181 L. Ed. 2d 535 (2011). In ruling on the defendant’s
objection to the substitute information, the trial court in
the present case concluded that the kidnapping charges
were not barred by res judicata. Our review of that
determination is plenary. State v. McCarroll, 113 Conn.
App. 274, 277, 967 A.2d 323 (2009).
It is undisputed that the crimes of sexual assault in
the first degree and risk of injury to a child differ from
the crime of kidnapping in the first degree, in that they
do not contain the same statutory elements. It also is
undisputed that the kidnapping claims were not actually
litigated in the original action. The defendant neverthe-
less contends that the state should be precluded from
amending its information to include kidnapping claims.6
‘‘The decision whether to apply res judicata to mat-
ters not actually litigated should be made in light of
the policies underlying that doctrine—the competing
interests of the defendant and of the courts in bringing
litigation to a close and of the plaintiff in the vindication
of a just claim.’’ (Internal quotation marks omitted.)
State v. Ellis, supra, 197 Conn. 465. The underlying
purposes of the doctrine ‘‘are generally identified as
being (1) to promote judicial economy by minimizing
repetitive litigation; (2) to prevent inconsistent judg-
ments which undermine the integrity of the judicial
system; and (3) to provide repose by preventing a per-
son from being harrassed by vexatious litigation.’’ Id.,465–66. Consideration of those purposes in light of the
facts of this case persuades us that the defendant’s
claim is without merit.
First and foremost, because this court remanded the
matter to the trial court for a new trial prior to the filing
of the kidnapping charges, judicial resources would not
be conserved by application of the preclusion doctrine.
There likewise is no danger of inconsistent judgments
resulting from the defendant’s prosecution on kidnap-
ping charges. As the Supreme Court noted, ‘‘[o]ur stat-
ute of limitations distinguishes between offenses
according to their severity, and there is nothing incon-
sistent in the fact that some prosecutions are barred
where others are not.’’7 Id., 476. Finally, this is not a case
in which the defendant has been harassed by vexatious
litigation. Following his successful appeal in Brundage
I, this court remanded the matter to the trial court,
effectively placing the parties in the same position
which they would have been in had the trial court prop-
erly ruled on the defendant’s original motion to dismiss.
Had the court done so, there is little doubt the state at
that time would have been free to amend its informa-
tions to include the kidnapping charges the defendant
now wishes to preclude.
In his appellate brief, the defendant alleges that ‘‘[t]he
state is seeking to retry the defendant on the kidnapping
charges only because the defendant successfully exer-
cised his constitutional and statutory rights to contest
the validity of the original prosecution.’’ That bald asser-
tion is not accompanied by analysis or reference to
any evidence indicative of such animus. As the state
persuasively has argued in this appeal, its decision not
to pursue the kidnapping charges at the defendant’s
first trial ‘‘very well may have been influenced by the
state of flux that existed in our kidnapping law in 2008
and 2009 . . . .’’ See State v. Salamon, 287 Conn. 509,
531, 949 A.2d 1092 (2008); see also State v. DeJesus,
288 Conn. 418, 426, 953 A.2d 45 (2008); State v. Sansev-
erino, 287 Conn. 608, 612, 949 A.2d 1156 (2008), over-
ruled in part by State v. DeJesus, supra, 437, superseded
in part after reconsideration by State v. Sanseverino,
291 Conn. 574, 969 A.2d 710 (2009). Absent any evidence
to the contrary, we presume that the state did not harbor
such animus toward the defendant, but rather acted
to vindicate its legitimate interest in the prosecution
of crime.
Our Supreme Court has observed that ‘‘[e]very prose-
cution is necessarily ‘harrassing’ and ‘vexatious’ from
the standpoint of the defendant . . . . Principles of
finality are offended only by that harassment which
results from repetitious attempts to relitigate matters
previously decided. Weighing against the minimal inter-
ests in finality presented by this case are strong social
and legislative policies aimed at the effective adminis-
tration of criminal justice.’’ State v. Ellis, supra, 197
Conn. 477. That logic applies with equal force in the
present case. We therefore conclude that the doctrine
of res judicata does not bar the state from amending
its information to include the kidnapping in the first
degree charges.
The judgment is reversed and the case is remanded
with direction to reinstate the November 26, 2012 sub-
stitute information and for further proceedings.
In this opinion the other judges concurred.
1
General Statutes § 54-96 provides: ‘‘Appeals from the rulings and deci-
sions of the Superior Court, upon all questions of law arising on the trial
of criminal cases, may be taken by the state, with the permission of the
presiding judge, to the Supreme Court or to the Appellate Court, in the same
manner and to the same effect as if made by the accused.’’
2
The state’s motion for articulation explained that, on remand before the
trial court, ‘‘a question has arisen concerning the scope of [the Appellate]
Court’s rescript. The state has construed the rescript as permitting it to
proceed on any charges which are not time barred. Because the trial court
can only adjudicate rights and duties within the scope of the remand, the state
respectfully submits that further clarification of the rescript in [Brundage I]
is necessary to the proper litigation of the case on remand.’’
3
Brundage I also addressed the defendant’s claim that the court improp-
erly permitted the state’s expert witness to give an opinion in response to
a hypothetical question. Noting that the issue ‘‘is likely to recur on retrial’’;
State v. Brundage, supra, 138 Conn. App. 33 n.14; we addressed the merits
of that claim and determined that the court did not abuse its discretion. Id.,
39. That analysis has little bearing on the issue presented in this appeal.
4
On appeal, the state concurred with the defendant’s claim that the trial
court improperly determined that § 54-193a, as amended on May 23, 2002,
applied retroactively, and thus improperly denied in part the defendant’s
motion to dismiss.
5
Practice Book § 36-17 provides in relevant part: ‘‘If the trial has not
commenced, the prosecuting authority may amend the information, or add
additional counts, or file a substitute information. . . .’’
6
At oral argument before this court, counsel for the defendant conceded
that the state is permitted to file a new information with a different docket
number charging the defendant with the two counts of kidnapping in the
first degree contained in the substitute information.
7
To the contrary, the state submits that application of the doctrine of res
judicata would create inconsistent judgments in that no statute of limitations
exists for the crime of kidnapping, evincing the legislature’s intent to have
that crime prosecuted at any time.