STATE v. RICHARD BRUNDAGE, SC 19308

Judicial District of Waterbury

 

†††† †Criminal; Whether Appellate Court Properly Construed its Rescript as not Barring Additional Charges on Remand and, If So, Whether it Correctly Concluded that Retrial on Those Charges not Barred by Doctrine of Res Judicata. †In 2007, the defendant was convicted of two counts of sexual assault and two counts of risk of injury to a child.† He appealed, claiming that the charges against him were time barred and should have been dismissed.† In State v. Brundage, 138 Conn. App. 22 (2012) (Brundage I), the Appellate Court determined that one count was completely time barred and that the other counts were partially untimely and partially timely, and it reversed and remanded to the trial court with direction to dismiss the time barred count and for a new trial as to the remaining charges.† On remand and prior to the new trial, the state filed a substitute information charging the defendant with two counts of kidnapping in the first degree.† The defendant objected, claiming that the new charges were beyond the scope of the remand.† The trial court sustained the objection and granted the defendant's motion to dismiss the substitute information.† On the state's appeal, the Appellate Court (148 Conn. App. 550) reversed and remanded with direction to reinstate the substitute information on determining that the only mandate of its prior decision was that the state could not proceed on any time barred charges.† The court concluded that, because it was not presented in Brundage I with any claim that the state should be precluded from exercising its broad authority to amend the information on remand, the trial court was not constrained in its ability to permit a pretrial amendment to the information.† After determining that there was a sufficient factual basis on which to predicate the two counts of kidnapping and that those charges were not time barred, the Appellate Court ruled that the trial court improperly dismissed the substitute information.† The court also rejected the defendant's claim that the kidnapping charges were barred by the doctrine of res judicata.† In deciding whether to apply the doctrine of res judicata in this case, where the charges were not actually litigated in the original action, the Appellate Court considered the doctrineís purposes of promoting judicial economy by minimizing repetitive litigation, preventing inconsistent judgments, and preventing a person from being harassed by vexatious litigation.† It concluded that there were no concerns about repetitive litigation, inconsistent judgments or vexatious litigation that would counsel in favor of applying the doctrine here.† Finally, the Appellate Court rejected the defendantís claim that the state was seeking to try him on the kidnapping charges only because, in Brundage I, he had successfully challenged the original prosecution.† It noted that there was no evidence indicating that the state bore such animus.† The Supreme Court granted the defendantís petition for certification to appeal and will decide whether the Appellate Court properly construed its rescript in Brundage I in concluding that the trial court abused its discretion in sustaining the defendant's objection to the substitute information filed by the state after remand, and, if so, whether the Appellate Court properly concluded that the doctrine of res judicata did not bar the defendantís retrial on the kidnapping charges.††