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State v. Brundage

Supreme Court of Connecticut

March 22, 2016

STATE OF CONNECTICUT
v.
RICHARD BRUNDAGE

         Argued October 8, 2015.

Page 698

[Copyrighted Material Omitted]

Page 699

          Substitute informations, in two cases, charging the defendant with the crimes of sexual assault in the first degree and risk of injury to a child, brought to the Superior Court in the judicial district of Waterbury, where the matter was tried to the jury before Crawford, J.; verdicts and judgments of guilty, from which the defendant appealed to the Appellate Court, Lavine, Robinson and Flynn, Js., which reversed the trial court's judgments and remanded the cases for a new trial; thereafter, the state filed a substitute information in one case charging the defendant with two counts of the crime of kidnapping in the first degree; subsequently, the trial court, Fasano, J., granted the defendant's motion to dismiss the substitute information, and rendered judgment thereon, from which the state, on the granting of permission, appealed to the Appellate Court, Gruendel, Keller and Borden, Js., which reversed the trial court's judgment and remanded the case with direction to reinstate the substitute information and for further proceedings, from which the defendant, on the granting of certification, appealed to this court.

          SYLLABUS

         Convicted of two counts each of the crimes of sexual assault in the first degree and risk of injury to a child for his abuse of the minor victim, the defendant appealed to the Appellate Court, which determined that one of the four counts in the operative informations was time barred and the other three counts were partially time barred, and reversed the trial court's judgments and remanded the case for a new trial " as to the remaining charges." On remand, the state filed a substitute information charging the defendant with two counts of the crime of kidnapping in the first degree to which the defendant objected, arguing that the Appellate Court's remand order limited his retrial to the three partially time barred charges--one count of sexual assault in the first degree and two counts of risk of injury to a child--amended to cure the statute of limitations defect. The trial court granted the defendant's motion to dismiss the substitute information on the basis that the scope of the remand order precluded the state from amending its information, and the state appealed to the Appellate Court, which reversed the trial court's judgment and remanded the case with direction to reinstate the substitute information and for further proceedings. On the granting of certification, the defendant appealed to this court. Held :

         1. The Appellate Court properly concluded that its previous remand order did not preclude the state from filing a substitute information containing new kidnapping charges against the defendant: nothing in that court's decision on the defendant's direct appeal considered whether the state should be allowed to file a substitute information containing new charges or was prohibited from doing so, and that court correctly concluded that its decision held only that the state could not proceed on any charges against the defendant that were time barred.

         2. The defendant could not prevail on his claim that the Appellate Court improperly determined that the kidnapping charges in the state's substitute information were not barred by the doctrine of res judicata, this court having concluded that res judicata does not apply where, as here, the state had filed a substitute information charging new offenses following the defendant's successful appeal from judgments of conviction and a remand for a new trial; the judgments of conviction for sexual assault and risk of injury on which the defendant relied in invoking the doctrine had been vacated and had no preclusive effect, and the only valid final judgment that remained here was the judgment of the Appellate Court, which reversed the defendant's judgments of conviction, remanded the case to the trial court with direction to dismiss the time barred count of sexual assault and expressly directed further proceedings, specifically, a new trial.

         Raymond L. Durelli, assigned counsel, for the appellant (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 attorney, for the appellee (state).

         Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Vertefeuille, Js. ESPINOSA, J. In this opinion ROGERS, C. J., and PALMER, ZARELLA, EVELEIGH and VERTEFEUILLE, Js., concurred. McDONALD, J., dissenting.

          OPINION

Page 700

          [320 Conn. 742] 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 information 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 substitute 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 [320 Conn. 743] A.3d 582 (2014) ( Brundage II ). The procedural background 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 Statutes § 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 limitations challenge to his convictions, the court in Brundage 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 defendant'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 precluded 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 [320 Conn. 744] 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,

Page 701

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 boyfriend 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 defendant 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 defendant and he threatened to leave her mother if she told her about the abuse. The abuse continued until approximately March, 2003, when the victim's mother discovered that the defendant was having an affair with another woman and the defendant moved out.

          [320 Conn. 745] " 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 occasions. The victim also testified as to five specific incidents of sexual abuse that occurred between 1995 and 2003. On November 10, 2009, the jury found the defendant ...


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