State v. Brundage

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STATE v. BRUNDAGE—DISSENT
McDONALD, J., dissenting. I cannot square the major-
ity’s conclusion that the state was entitled to file a
substitute information containing exclusively new
charges against the defendant, Richard Brundage, with
the focused and definite terms of the Appellate Court’s
remand order under our established law. Moreover, I
am troubled by the institutional implications that await
the Judicial Branch if a specific remand order is inter-
preted so broadly that it allows a party who is disen-
chanted with the outcome of an appeal to reinvent its
case after the conclusion of that appeal. Because I do
not agree that an unsuccessful litigant to an appeal
should be permitted a judicial mulligan in such circum-
stances, I respectfully dissent.
I begin by emphasizing the significance of the fact
that the Appellate Court’s remand order was directed
to a specific end. The order instructed the trial court
to conduct a ‘‘new trial as to the remaining charges.’’
(Emphasis added.) State v. Brundage, 138 Conn. App.
22, 40, 50 A.3d 396 (2012); cf. Beccia v. Waterbury,
185 Conn. 445, 463, 441 A.2d 131 (1981) (‘‘the case is
remanded for further proceedings not inconsistent with
this opinion’’). As the majority properly recognizes, a
trial court must strictly comply with a remand order
and cannot consider matters that are extraneous to the
issues and purposes of the remand. See Hurley v. Heart
Physicians, P.C., 298 Conn. 371, 384, 3 A.3d 892 (2010),
and cases cited therein. Compliance with a remand
order ‘‘means that the direction is not deviated from.
. . . No judgment other than that directed or permitted
by the reviewing court may be rendered . . . .’’ (Inter-
nal quotation marks omitted.) Id.
It is manifest that a trial on new charges, rather than
a new trial on the remaining charges, does not satisfy
these plain requirements. A trial on new charges undeni-
ably and directly deviates from the remand order. More-
over, a trial on new charges indisputably requires the
trial court and the parties to consider extraneous mat-
ters not within the purview of the original information
because the state must prove the distinct elements of
the newly charged crimes, the defendant must assert
any applicable defenses to those new charges and the
trial court must instruct the jury on those charges and
any associated defenses that never were the subject of
the original case. Regardless of whether the state proves
those elements, the judgment that is rendered will be
one that was not permitted by the remand order because
it is not a judgment on the remaining charges (which
the state here abandoned after remand). As such,
allowing the state to file a substitute information imper-
missibly exceeds the scope of the Appellate Court’s
limited remand order. See Fair Haven & Westville Rail-
road Co. v. New Haven, 77 Conn. 667, 672–73, 60 A.
651 (1905) (plaintiff not allowed to amend pleading
where remand order was specific and new trial was
not ordered); Oldani v. Oldani, 154 Conn. App. 766, 776,
778, 108 A.3d 272 (new claims in amended complaint
extraneous to remand for specific purpose), cert.
denied, 315 Conn. 930, 110 A.3d 433 (2015); see also
Jackson v. Commissioner of Correction, 227 Conn. 124,
128–29, 629 A.2d 413 (1993) (lower court exceeded
scope of limited remand); Mazzotta v. Bornstein, 105
Conn. 242, 244, 135 A. 38 (1926) (same); Patron v.
Konover, 43 Conn. App. 645, 653, 685 A.2d 1133 (1996)
(same), cert. denied, 240 Conn. 911, 690 A.2d 400 (1997);
Grady v. Schmitz, 21 Conn. App. 111, 115, 572 A.2d 71
(same), cert. denied, 215 Conn. 806, 576 A.2d 537 (1990).
The majority’s principal reliance on a case that issued
an open-ended remand order ‘‘for further proceedings
not inconsistent with [the court’s] opinion’’; Beccia v.
Waterbury, supra, 185 Conn. 463; and on the fact that
the Appellate Court’s opinion was silent about whether
a substitute information could be filed is unpersuasive.
The Appellate Court did not issue an open-ended
remand for a new trial, but instead ordered a new trial
on those charges in the original information that
remained after that court concluded that the state could
not prosecute the defendant on certain charges.
Although the Appellate Court’s opinion did not address
whether a substitute information could be filed, we
cannot construe the absence of something as permis-
sion for such an action, as such a construction conflicts
with the remand. ‘‘[W]here the language used in the
body of an appellate decision conflicts with the direc-
tions given for remand, the directions given for remand
control.’’ 5 Am. Jur. 2d 482, Appellate Review § 732
(2007). Nor can we construe such a void as similar to
circumstances in which we have allowed a party to
pursue a claim or defense based on events that occurred
subsequent to the initial proceeding on appeal. See, e.g.,
Bauer v. Waste Management of Connecticut, Inc., 239
Conn. 515, 522, 686 A.2d 481 (1996) (defendant could
be allowed to amend answer on remand to raise defense
based on events that occurred after trial). The charges
advanced in the substitute information in the present
case could have been brought at the outset of the defen-
dant’s trial.
In addition to violating our remand jurisprudence, I
am concerned that the majority’s view allows for the
reinvention of this case. Like civil pleadings, the pur-
pose of an information ‘‘is to frame, present, define,
and narrow the issues and to form the foundation of,
and to limit, the proof to be submitted’’ at trial. (Internal
quotation marks omitted.) Perez v. Cumba, 138 Conn.
App. 351, 367, 51 A.3d 1156, cert. denied, 307 Conn. 935,
56 A.3d 712 (2012); 71 C.J.S. 33, Pleading § 2 (2011). By
permitting the filing of a substitute information con-
taining entirely new charges against the defendant, the
majority allows the state to expand, rather than narrow,
the issues as the case has proceeded, thereby undermin-
ing the wisdom of our rule that ‘‘a case cannot be pre-
sented by halves.’’ Fitch v. State, 139 Conn. 456, 460,
95 A.2d 255 (1953). More importantly, the majority gives
the state an unwarranted second bite at the apple. We
have stated that parties should never be permitted ‘‘to
go back [after] all that had been done, and be allowed
to change their pleadings and try the case de novo,
when they had taken their chance of success in the
course they had chosen to pursue, and had lost. Indeed,
the door would have been closed to them if the request
had been made . . . .’’ Crane v. Eastern Transporta-
tion Line, 50 Conn. 341, 343 (1882). Accordingly, I can-
not agree that it is proper to allow the state to file a
substitute information charging the defendant with new
offenses after it recognized that it could not obtain a
conviction on the crimes on which it chose to originally
charge the defendant following the defendant’s success-
ful appeal. While I do not suggest that the state should
overcharge in anticipation of the possibility of such a
failure of proof, I am of the opinion that litigants should
frame and present all of the good faith claims or charges
that the facts warrant at the outset of a case, in order
to conserve the resources of the parties and the judicial
system, and to spare all involved the piecemeal presen-
tation of a case.
To be clear, I do not dispute the majority’s assertion
that the state could have filed a new information or
that doing so would have been more disadvantageous
to the defendant than allowing the filing of a substitute
information. In fact, that is precisely what should have
happened under the circumstances of this case. The
efficient operation of our judicial system depends on
strict compliance with remand orders as issued. I fore-
see a day, probably in the not too distant future, where
this court will be forced to distance itself from today’s
holding because of the mischief that it will yield in both
our criminal and civil courts.