State v. Brundage ( 2016 )

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STATE OF CONNECTICUT v. RICHARD BRUNDAGE
(SC 19308)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Vertefeuille, Js.
Argued October 8, 2015—officially released March 22, 2016
Raymond L. Durelli, assigned counsel, for the appel-
lant (defendant).
Kathryn W. Bare, assistant state’s attorney, with
whom were Cynthia S. Serafini, senior assistant state’s
attorney, and, on the brief, Maureen Platt, state’s attor-
ney, for the appellee (state).
Opinion
ESPINOSA, J. Both issues in this certified appeal
center on the claim of the defendant, Richard Brundage,
that the state is precluded from filing a substitute infor-
mation bringing new charges against him following his
partially successful appeal challenging his convictions
on charges that were determined to be time barred. The
defendant appeals from the judgment of the Appellate
Court, which concluded that the trial court improperly
determined that the state was barred from filing a sub-
stitute information on remand because the new charges
exceeded the scope of the remand from the Appellate
Court.1 State v. Brundage, 148 Conn. App. 550, 552, 87
A.3d 582 (2014) (Brundage II). The procedural back-
ground of this appeal began in State v. Brundage, 138
Conn. App. 22, 23–24, 50 A.3d 396 (2012) (Brundage I),
in which the Appellate Court reversed the judgments
of conviction of the defendant of two counts of sexual
assault in the first degree in violation of General Stat-
utes § 53a-70 (a) (1) and (2) and two counts of risk of
injury to a child in violation of General Statutes § 53-
21 (a) (2). In resolving the defendant’s statute of limita-
tions challenge to his convictions, the court in Brund-
age I concluded in relevant part that ‘‘[o]f the four
counts in the operative informations, only count one
. . . is completely time barred [under General Statutes
(Rev. to 1993) § 54-193a]. . . . [T]he other three counts
are partially untimely and partially timely.’’ (Footnote
omitted.) Id., 32. The court remanded the case to the
trial court for a new trial ‘‘as to the remaining charges.’’
Id., 40. On remand, the trial court granted the defen-
dant’s motion to dismiss the state’s November 26, 2012
substitute information charging him with two counts
of kidnapping in the first degree in violation of General
Statutes § 53a-92 (a) (2) (A) and (B) (2012 substitute
information). The trial court ruled that the scope of the
remand order precluded the state from amending its
information. After receiving permission from the trial
court, the state appealed from the dismissal and the
Appellate Court reversed the judgment of the trial court.
Brundage II, supra, 565.
The defendant claims that the Appellate Court
improperly concluded: (1) that the trial court abused
its discretion in granting his motion to dismiss the 2012
substitute information filed by the state on the basis
that the remand order from the Appellate Court pre-
cluded the state from amending its information; and
(2) that the trial court properly concluded that the
charges in the 2012 substitute information were not
barred by the doctrine of res judicata. We conclude
that the Appellate Court properly construed its own
rescript order. We further conclude that the doctrine
of res judicata does not apply to the present case, where
the only valid final judgment on which the defendant
could rely to bar the state from filing the 2012 substitute
information is the decision of the Appellate Court in
Brundage I, supra, 138 Conn. App. 22, which authorized
the very proceedings that the defendant claims are
barred by that judgment. Accordingly, we affirm the
judgment of the Appellate Court.
The Appellate Court decisions in Brundage I and
Brundage II set forth the following relevant facts and
procedure. ‘‘In January, 1995, the defendant, the boy-
friend of the victim’s mother,2 moved into the family
home with the victim and her mother in Wolcott. At
that time, the victim was eight years old and in third
grade. Around this time, the defendant began sexually
abusing the victim in the family home when the victim’s
mother was at work or had gone to bed.
‘‘The abuse began with the defendant fondling the
victim’s breasts and vagina and digitally penetrating the
victim’s vagina. When the victim was ten years old and
in sixth grade, the defendant began having forced
penile-vaginal intercourse with her. Initially, the defen-
dant abused the victim approximately twice each
month, but as she became older, the abuse increased
to approximately once each week. The victim did not
report the abuse because she was afraid of the defen-
dant and he threatened to leave her mother if she told
her about the abuse. The abuse continued until approxi-
mately March, 2003, when the victim’s mother discov-
ered that the defendant was having an affair with
another woman and the defendant moved out.
‘‘On July 31, 2007, after reading a newspaper article
discussing the deportation of the defendant’s wife, the
victim reported the sexual abuse to the Waterbury
police. On October 20, 2007, the victim reported the
sexual abuse to the Wolcott police. On November 13,
2007, the Waterbury police obtained a warrant for the
defendant’s arrest. On November 26, 2007, the Wolcott
police obtained a warrant for the defendant’s arrest.
The defendant was charged with one count of sexual
assault in the first degree and one count of risk of injury
to a child in two separate informations. The victim
testified about the abuse at trial, explaining that the
defendant fondled and digitally penetrated her on more
than 100 occasions and that the defendant had penile-
vaginal intercourse with her on more than 100 occa-
sions. The victim also testified as to five specific inci-
dents of sexual abuse that occurred between 1995 and
2003. On November 10, 2009, the jury found the defen-
dant guilty on all counts in both informations. On Janu-
ary 29, 2010, the court sentenced the defendant to a total
effective term of thirty years imprisonment, execution
suspended after twenty years, and twenty years proba-
tion.’’ (Footnotes altered.) Id., 24–25.
Because the Appellate Court concluded that one of
the four counts was completely time barred, and the
remaining three counts were partially time barred, it
reversed the judgments of conviction and remanded
the case to the trial court ‘‘for a new trial as to the
charges that are not time barred.’’ Id., 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.
‘‘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 [the Appellate Court], which was
dismissed. The trial court heard argument on the defen-
dant’s objection to the substitute information on Janu-
ary 24, 2013. At that time, the state argued that ‘if you
look at the decision 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 regard-
ing the sexual assault charges and that would be it.’ ’’
(Footnote omitted.) Brundage II, supra, 148 Conn. App.
553–54. The trial court agreed with the defendant and
dismissed the 2012 substitute information. The Appel-
late Court reversed the judgment of the trial court and
remanded the case with direction to reinstate the 2012
substitute information and for further proceedings. Id.,
565. This appeal followed.
I
We first address the defendant’s claim that the Appel-
late Court improperly concluded that the trial court
abused its discretion in granting the defendant’s motion
to dismiss the 2012 substitute information. The defen-
dant claims that decisions of this court establish that
the trial court properly concluded that the Appellate
Court’s remand order must be read to allow retrial only
on the charges in the two informations under which he
had previously been tried—amended to cure the statute
of limitations defect—and to preclude the state from
filing different charges in a substitute information. The
defendant argues that the Appellate Court’s remand
order unequivocally limits the defendant’s retrial to the
remaining count of sexual assault in the first degree
and the two counts of risk of injury because those were
the only counts that were presented to and addressed
by the Appellate Court in Brundage I. The state
responds that such a narrow reading of the Appellate
Court’s remand order runs contrary to a basic principle
of appellate adjudication—when a reviewing court has
not decided a particular issue, the trial court, on
remand, is free to consider and rule on that issue. The
state contends that because the issue of whether the
state would be allowed to file a substitute information
bringing new charges against the defendant was neither
raised nor considered by the Appellate Court, its deci-
sion and rescript cannot be read to bar the state from
doing so. We agree with the state.
We begin with the applicable standard of review.
‘‘Determining the scope of a remand is a matter of law
because it requires the trial court to undertake a legal
interpretation of the higher court’s mandate in light of
that court’s analysis. . . . Because a mandate defines
the trial court’s authority to proceed with the case on
remand, determining the scope of a remand is akin to
determining subject matter jurisdiction. . . . We have
long held that because [a] determination regarding a
trial court’s subject matter jurisdiction is a question of
law, our review is plenary.’’ (Internal quotation marks
omitted.) State v. Tabone, 301 Conn. 708, 713–14, 23
A.3d 689 (2011).
‘‘Well established principles govern further proceed-
ings 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 crim-
inal as well as to civil proceedings. . . . The trial court
cannot adjudicate rights and duties not within the scope
of the remand.’’ (Citations omitted; emphasis added;
internal quotation marks omitted.) Id., 714–15. ‘‘It is the
duty of the trial court on remand to comply strictly
with the mandate of the appellate court according to
its true intent and meaning. No judgment other than
that directed or permitted by the reviewing court may
be rendered, even though it may be one that the appel-
late court might have directed.’’ (Internal quotation
marks omitted.) Rizzo Pool Co. v. Del Grosso, 240 Conn.
58, 65, 689 A.2d 1097 (1997).
‘‘We have also cautioned, however, that our remand
orders should not be construed so narrowly as to pro-
hibit a trial court from considering matters relevant to
the issues upon which further proceedings are ordered
that may not have been envisioned at the time of the
remand. . . . So long as these matters are not extrane-
ous to the issues and purposes of the remand, they
may be brought into the remand hearing.’’ (Internal
quotation marks omitted.) Id., 65–66.
This court’s decisions consistently have declined to
read our remand orders narrowly to preclude the trial
court from exercising its discretion to manage a case
remanded to that court. See, e.g., State v. Wade, 297
Conn. 262, 276–77, 998 A.2d 1114 (2010) (trial court
did not exceed scope of remand when it resentenced
defendant on all remaining counts rather than only on
reversed count, notwithstanding Appellate Court’s
rescript directing sentence only on reversed count);
Higgins v. Karp, 243 Conn. 495, 498, 706 A.2d 1 (1998)
(trial court misinterpreted remand order, directing trial
court to determine whether good cause existed to set
aside defaults entered against defendant for failure to
plead, to preclude introduction of additional evidence);
Rizzo Pool Co. v. Del Grosso, supra, 240 Conn. 65–66 (in
granting defendants’ postremand motion for attorney’s
fees, trial court acted within scope of remand that
merely directed it to render judgment in favor of defen-
dants); Bauer v. Waste Management of Connecticut,
Inc., 239 Conn. 515, 522–25, 686 A.2d 481 (1996) (trial
court improperly interpreted remand order for further
proceedings ‘‘ ‘for consideration of the zoning enforce-
ment officer’s claim for injunctive relief’ ’’ to prohibit
parties from amending pleadings on remand).
This rule is consistent with the respective roles
served by an appellate tribunal and the trial court. A
reviewing court is limited to the issues presented to it
by the parties to the appeal, and the court cannot and
should not attempt to anticipate in its decision every
procedural and factual eventuality that could arise upon
remand to the trial court. By contrast, the trial court is
in the best position to deal with procedural and factual
developments in a case on remand and is the proper
court to address such eventualities as they arise.
This court’s decision in Beccia v. Waterbury, 192
Conn. 127, 470 A.2d 1202 (1984) (Beccia II), aptly illus-
trates this principle. The plaintiff appealed from the
trial court’s judgment rejecting his statutory challenge
to the certification of another applicant as having
ranked first in an examination for the position of fire
marshal. Beccia v. Waterbury, 185 Conn. 445, 447–48,
441 A.2d 131 (1981) (Beccia I). On the basis of its con-
struction of the language of the applicable statute, Gen-
eral Statutes (Rev. to 1981) § 29-45, this court reversed
the judgment of the trial court and remanded the case
to that court ‘‘for further proceedings not inconsistent
with this opinion.’’ Id., 463. Following this court’s deci-
sion, the plaintiff commenced two independent actions
in the trial court, one of which was an action in quo
warranto that sought to oust the defendant—the appli-
cant who had been given the post of fire marshal—
from that position, and to declare the position vacant.
Beccia II, supra, 129. The defendant attempted to assert
as a defense that General Statutes (Rev. to 1981) § 29-45
was unconstitutional. Id., 131. The trial court declined to
consider the defendant’s constitutional defense, reason-
ing that it was beyond the scope of the remand. Id. This
court disagreed that the failure of the defendant to
raise the constitutional challenge in Beccia I, and the
resulting failure of this court to consider the constitu-
tionality of General Statutes (Rev. to 1981) § 29-45, lim-
ited the scope of the remand. We explained: ‘‘The
constitutional issue was not before us in Beccia I. Our
opinion does not address that question at all and cannot
be read, as the plaintiff suggests, to uphold the statute
sub silentio.’’ Id., 133.
The principles that we relied on in Beccia II apply
with equal force to the present case. In Brundage I,
the Appellate Court did not have before it the question
of whether the state could file, subsequent to a reversal
of the defendant’s judgments of conviction, a substitute
information bringing different charges against the
defendant. That question was completely outside the
scope of the issues presented in the appeal, and to
impose a rule that presumes that a reviewing court
would address such an issue would require the
reviewing court to act with a degree of prescience that
cannot reasonably be expected, and, therefore, is com-
pletely inconsistent with the role played by a reviewing
court. Instead, the court properly confined its decision
to the issues presented to it in that appeal—including
the question of whether the trial court improperly
denied the defendant’s motion to dismiss the sexual
assault and risk of injury charges against him as time
barred. Brundage I, supra, 138 Conn. App. 25. The
court’s remand order was properly tailored to instruct
the trial court that the first count of one information,
which was completely time barred, should be dis-
missed, and that, as to the remaining charges in the
informations, the defendant was entitled to a new trial.
Nothing in the court’s decision in Brundage I envi-
sioned that on remand, rather than pursuing the portion
of the sexual assault and risk of injury charges that
were not time barred, the state would elect to file a
substitute information bringing new charges against the
defendant. Therefore, nothing in the Appellate Court’s
decision in Brundage I considered whether the state
should be allowed to file a substitute information or was
prohibited from doing so. The Appellate Court correctly
concluded in Brundage II, supra, 148 Conn. App. 555,
that its decision in Brundage I held only that ‘‘the state
could not proceed on any charges against the defendant
that were time barred . . . .’’ Accordingly, the Appel-
late Court properly concluded that its remand order in
Brundage I did not preclude the state from filing the
2012 substitute information.3 Id., 558.
II
Our conclusion that the Appellate Court’s remand
order did not prohibit the state from filing the 2012
substitute information bringing new charges against the
defendant does not end our inquiry. The defendant also
contends that the Appellate Court improperly con-
cluded that the kidnapping charges in the state’s 2012
substitute information were not barred by the doctrine
of res judicata. We conclude that the doctrine of res
judicata does not apply where the state has filed a
substitute information charging new offenses, following
a defendant’s successful appeal from judgments of con-
viction and a remand for a new trial.
We first observe what is not before the court in this
appeal. The defendant has not claimed that the 2012
substitute information charging him with two counts
of kidnapping violates his constitutional protection
against being placed in double jeopardy, which is akin
to the doctrine of res judicata, and ordinarily serves as
the basis of a criminal defendant’s claim that a former
judgment bars a present prosecution. See Sattazahn v.
Pennsylvania, 537 U.S. 101, 120 n.2, 123 S. Ct. 732, 154
L. Ed. 2d 588 (2003) (Ginsburg, J., dissenting) (noting
that ‘‘[a] primary purpose served by the [d]ouble [j]eop-
ardy [c]lause is akin to that served by the doctrines of
res judicata and collateral estoppel—to preserve the
finality of judgments’’ [internal quotation marks omit-
ted]). Our analysis is therefore confined to whether the
new charges violate the civil doctrine of res judicata.
That doctrine includes two subcategories: issue preclu-
sion, or collateral estoppel;4 and claim preclusion, or
res judicata. Because the defendant argues that the
state is barred from bringing charges that it could have
prosecuted in the original trial, but did not, the defen-
dant in the present case relies on the doctrine of claim
preclusion. We have explained that under ‘‘the doctrine
of res judicata, or claim preclusion, 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 which was offered to
sustain the claim, but also as to any other admissible
matter which might have been offered for that pur-
pose.’’ (Emphasis added; internal quotation marks omit-
ted.) State v. Ellis, 197 Conn. 436, 462–63, 497 A.2d
974 (1985).
This court has expressed some reservations regard-
ing the propriety of importing civil joinder rules to the
criminal context by way of application of the doctrine
of res judicata. Id., 471. Notwithstanding those reserva-
tions, however, the doctrine may be applied to preclude
a claim if the court concludes that the three public
policy principles, or purposes, served by the doctrine
of res judicata, weigh in favor of preclusion. Those
principles include the promotion of judicial economy,
the prevention of inconsistent judgments, and the provi-
sion of repose, ‘‘by preventing a person from being
harassed by vexatious litigation.’’ (Internal quotation
marks omitted.) Id., 465–66. The proper inquiry, this
court stated, ‘‘looks to the actual litigation [that] has
occurred in the former prosecution, to the claims raised,
the issues decided, and the attendant expenditure of
judicial resources. It further looks to the potential for
inconsistent judgments which tend to undermine the
integrity of the judicial system, and to the harassing
effects of repetitious litigation on the defendant.’’ Id.,
473–74. It is unnecessary in the present case, however,
to consider whether the purposes served by the doctrine
of res judicata support preclusion because, given the
procedural background, particularly the substance of
the Appellate Court’s judgment and remand in Brund-
age I, the doctrine is inapplicable.
‘‘[A]pplication of the [doctrine] of res judicata . . .
depend[s] on the existence of a valid final judgment
. . . .’’ (Internal quotation marks omitted.) Beccia II,
supra, 192 Conn. 132. Our first task in determining
whether the doctrine applies, therefore, is to identify
the valid final judgment on which the defendant relies
in invoking the doctrine. Because the defendant’s judg-
ments of conviction for sexual assault and risk of injury
have been vacated, those judgments have no preclusive
effect. 46 Am. Jur. 2d 739, Judgments § 449 (2006); see
Omimex Canada, Ltd. v. State, 378 Mont. 490, 495, 346
P.3d 1125 (2015) (‘‘when a judgment is reversed, the
judgment cannot serve as the basis for a disposition on
the grounds of res judicata or collateral estoppel [issue
preclusion]’’ [internal quotation marks omitted]); Cali-
fornia Dept. of Social Services v. Thompson, 321 F.3d
835, 847 (9th Cir. 2003) (same). The only valid final
judgment that remains in the present case is the judg-
ment of the Appellate Court in Brundage I, which
reversed the defendant’s judgments of conviction and
remanded the case to the trial court ‘‘with direction to
dismiss count one . . . and for a new trial as to the
remaining charges.’’ (Emphasis added.) Brundage I,
supra, 138 Conn. App. 39–40.
As we have explained in part I of this opinion, the
Appellate Court properly held that its decision in
Brundage I was limited to the conclusion that ‘‘the state
could not proceed on any charges against the defendant
that were time barred . . . .’’ Brundage II, supra, 148
Conn. App. 555. Accordingly, the only existing valid
final judgment in the present case—the judgment of
the Appellate Court—expressly directed further pro-
ceedings, specifically, a new trial. The doctrine of claim
preclusion, therefore, is simply inapplicable given the
substance of the Appellate Court’s judgment and the
remand. Claim preclusion, when it applies, ‘‘is an abso-
lute bar to a subsequent action . . . between the same
parties or those in privity with them, upon the same
claim.’’ (Emphasis added; internal quotation marks
omitted.) Rocco v. Garrison, 268 Conn. 541, 555, 848
A.2d 352 (2004). The substance of the judgment of the
Appellate Court in the present case, however, prevents
it from being an absolute bar to further proceedings.
Indeed, it would be bizarre to conclude that the judg-
ment of the Appellate Court had a claim preclusive
effect on the retrial of the defendant in light of the fact
that the court’s decision expressly ordered that there
be a retrial. Put another way, the application of the
doctrine of res judicata would require rendering the
remand order of the Appellate Court a nullity. The
Appellate Court properly concluded that the kidnapping
charges are not barred by the doctrine of res judicata.
The judgment of the Appellate Court is affirmed.
In this opinion ROGERS, C. J., and PALMER, ZARE-
LLA, EVELEIGH and VERTEFEUILLE, Js., concurred.
1
We granted the defendant’s petition for certification to appeal from the
judgment of the Appellate Court, limited to the following issues: (1) ‘‘Did
the Appellate Court correctly construe its own rescript in State v. Brundage,
138 Conn. App. 22, 50 A.3d 396 (2012), and thereby properly conclude that
the trial court abused its discretion in sustaining the defendant’s objection
to a substitute information filed by the state after remand?’’; and (2) ‘‘If the
answer to the first question is in the affirmative, did the Appellate Court
properly conclude that the doctrine of res judicata did not bar a retrial
on the kidnapping charges?’’ State v. Brundage, 311 Conn. 943, 89 A.3d
351 (2014).
2
In accordance with our policy of protecting the privacy interests of the
victims of sexual assault and the crime of risk of injury to a child, we decline
to identify the victim or others through whom the victim’s identity may be
ascertained. See General Statutes § 54-86e.
3
We observe that the defendant conceded at oral argument before this
court that the Appellate Court’s remand order would not preclude the state
from entering a nolle prosequi on the sexual assault and risk of injury
charges in the present case, then filing a new information charging the
defendant with kidnapping under a different docket number. In that event,
the defendant would not be entitled to any credit for the time that he
has served in connection with the present prosecution. Accordingly, the
procedure followed by the state in the present case is more beneficial for
the defendant.
4
The doctrine of collateral estoppel or issue preclusion ‘‘is that aspect
of res judicata which prohibits the relitigation of an issue when that issue
was actually litigated and necessarily determined in a prior action between
the same parties upon a different claim.’’ (Internal quotation marks omitted.)
State v. Ellis, 197 Conn. 436, 463, 497 A.2d 974 (1985). The defendant con-
cedes that the state’s kidnapping charges were not actually litigated and
determined in the first trial, so the doctrine of collateral estoppel is inapplica-
ble to his claim that the state is precluded from filing the 2012 substitute infor-
mation.