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STATE v. BRUNDAGE—DISSENT

McDONALD, J., dissenting. I cannot square the majority’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 interpreted so broadly that it allows a party who is disenchanted 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 circumstances, 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 . . . .’’ (Internal 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 undeniably and directly deviates from the remand order. Moreover, a trial on new charges indisputably requires the

trial court and the parties to consider extraneous matters 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 whetherthe 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 impermissibly 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 principalreliance 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 afterthat 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 permission 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 directions 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 defendant’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 purpose 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 containing entirely new charges against the defendant, the
majority allows the state to expand, rather than narrow,

the issues as the case has proceeded, thereby undermining the wisdom of our rule that ‘‘a case cannot be presented 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 Transportation Line, 50 Conn. 341, 343 (1882). Accordingly, I cannot 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 successful 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 presentation 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 foresee 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.