concurring.
I concur in the opinion of the court and write separately to re-iterate views about “remands” I have expressed previously. See Porter v. United States, 37 A.Sd 251, 268-82 (D.C.2012) (Newman, J., dissenting).
As the court’s opinion states, our remand authority emanates from D.C.Code § 17-306 (2001). Our authority under that section is identical to that of federal courts under 28 U.S.C. § 2106 (2006). Foster v. United States, 290 A.2d 176, 177 n. 6 (D.C. 1972). The Supreme Court has established the jurisprudential standard governing remands pursuant to that statute as whether there are “special circumstances suggesting such an exceptional course.” Giordenello v. United States, 357 U.S. 480, 488, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958) (citation omitted).
Here, the government had a full and fair opportunity to litigate the matter at trial. As the court’s opinion makes clear, the trial judge did in fact “decide” the issue which the government seeks a remand for decision. That ruling was adverse to the government, i.e. the evidence was insufficient to establish guilt beyond a reasonable doubt on the issue of active resistance. That is sufficient to decide this appeal as the court’s opinion does.
However, since the issue of remand is a recurring issue, what the United States Court of Appeals for the District of Columbia said in analogous circumstances bears repeating:
In our jurisprudential system, trial and appellate processes are synchronized in contemplation that review will normally be confined to matters appropriately submitted for determination in the court of first resort. Questions not properly raised and preserved during the proceedings under examination, and points not asserted with sufficient precision to indicate distinctly the party’s thesis, will normally be spurned on appeal. Canons of this tenor reflect, not obeisance to ritual, but considerations of fairness to the court and the parties and of the public interest in bringing litigation to an end after fair opportunity has been afforded to present all issues of law and fact. The injunction that trial ventilation precede appellate exploration best subserves that policy without appreciable imposition upon the litigants. It requires them to deal fairly and frankly with each other and with the trial tribunal with respect to their controversies. It prevents the trial of cases piecemeal or in installment. It tends to put an end to litigation. We think that sound judicial administration embraces importantly the elimination of expenditures of time and energy — by parties as well as courts — incidental to potentially unnecessary appeals.
Miller v. Avirom, 127 U.S.App.D.C. 367, 369-70, 384 F.2d 319, 321-22 (1967) (footnotes and internal quotation marks omitted).
Where there are alternative bases for decision presented to the trial court, we have urged trial judges to rule on both alternatives. For example, where there is a challenge to the admissibility of eyewitness identification as a result of pre-trial identification procedures, see Neil v. Biggers, 409 U.S. 188, 196, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), we have urged trial judges to rule both whether: 1) the pre-trial identification procedures were unduly suggestive or 2) in spite of being unduly suggestive the identification was nevertheless reliable and thus admissible. See Greenwood v. United States, 659 A.2d 825, 828 (D.C.1995).
That advice is equally valid on the issue presented by these recurring “remand” is*149sues. It behooves the trial judge to rule explicitly on both bases for decision. It is incumbent on trial counsel to urge the trial judge to do so. Failure of counsel to do so, in my view, should almost always (if not always) be fatal to counsel’s remand request in this court.