State v. Bourguignon

May 11, 2004

AC 22430

Versions:82 Conn. App. 798

847 A.2d 1031

2004 Conn. App. LEXIS 199

Opinion

PER CURIAM.

In this аppeal from his conviction of burglary in the first degree in violation of General Statutes § 53a-101 (a) (1), two counts of risk of injury to a child in violation of General Statutes § 53-21 and criminal mischief in the first degree in violation of General Statutes § 53a-115 (a) (1), the defendant, Bristout Bour-guignоn, raises claims of (1) ineffective assistance of counsel, (2) prosecutorial misconduсt and (3) improper jury instructions. We affirm the judgment of the trial court.

The jury reasonably could have fоund the following facts. The defendant was employed by an electrical contractor. On July 1, 2000, the defendant broke into his employer’s home and destroyed many of the items contained therein. The employer’s minor children were home at the time of the incident and hid in the basement aftеr hearing the sound of breaking glass. The police arrived shortly thereafter and confronted the defendant exiting the house while he was armed with a rifle. The defendant appeals from his conviction.

The defendant first claims that his court-appointed counsel ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍rendered ineffective assistance because he was *800biased, racist, prejudiced and corrupt. We decline to review the claim.

“Our Supreme Court has consistently concluded that the preferred vehicle for an ineffective assistance of counsel claim is either a petition for writ of hаbeas corpus or a petition for a new trial, not a direct appeal. . . . Absent the. evidentiary hearing available in the collateral action, review in this court of the ineffective assistance claim is at best difficult and sometimes impossible. The evidentiary hearing provides the trial court with the evidence that is often necessary to evaluate the competency of the defense and the harmfulness of any incompetency.” (Citation omitted; internal quоtation marks omitted.) State v. Charles, 56 Conn. App. 722, 729-30, 745 A.2d 842, cert. denied, 252 Conn. 954, 749 A.2d 1203 (2000). Accordingly, we decline to review the claim.

The defendant next claims that three instances of prosecutorial misconduct deprived him of a fair trial. Specifically, he claims that the prosecutor (1) failеd to disclose favorable evidence to the defense,1 (2) failed to provide the defendant with a copy of a videotape that was admitted into evidence and (3) failed to ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍рrovide him with copies of photographs that were admitted into evidence. We declinе to review that claim as well.

The defendant did not object on those grounds at trial, nor did he adеquately brief his claim under State *801v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine; Practice Book § 60-5; on appeal. He made only one passing reference to Golding and plain error review in his reply brief and only with respect to the clаim of prosecutorial misconduct. “It is well established that generally this court will not review claims that were not properly preserved in the trial court. . . . The defendant’s failure to address the four prongs of Golding amounts to an inadequate briefing of the issue and results in the unpreserved claim being аbandoned. . . . [B]ecause the defendant has neglected to analyze the claim of plаin error, he has failed to demonstrate a manifest injustice. ... In his brief, the defendant makes only passing references to Golding and has provided us with no analysis of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍its four prongs. We will not engage in Golding or plаin error review on the basis of such an inadequate brief.” (Citation omitted; internal quotation marks omitted.) State v. Ankerman, 81 Conn. App. 503, 508, 840 A.2d 1182 (2004).

Moreover, even if a claim of plain error had been briefed adequately, this case is not one of those “truly extraordinary situations [in which] the existence of the error is so obviоus that it affects the fairness and integrity of and public confidence in the judicial proceеdings.” (Internal quotation marks omitted.) State v. Nichols, 81 Conn. App. 478, 484, 840 A.2d 54 (2004). On the basis of the defendant’s argument, it appears that he had knowledge of the alleged police report and its contents at the time of his trial.2 In addition, the state filed a disclosure on July 18,2001, making the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍videotape available for review and copying. Defense counsel also *802was provided with copies of the photographs on that same date.

Ill

Finally, we also decline to review the defendant’s claim of improper jury instructiоns because he made no objection to them at trial, did not file requests to charge and does not seek Golding or plain error review on appeal.

The judgment is affirmed.

Notes

The defendant contends that the state had evidence, specifically, apolice report, showing that he was coerced by his employer to “assassinate” his employer’s wife. That incident allegedly occurred prior to the defendant’s visit to his employer’s home on July 1, 2000. We note that the defendant has appealed pro se and that we understand him to argue, on the basis of a careful examination of his briefs, that he, his trial counsel, the prosecutor and the court all knew of that alleged incident at trial. He argues that the prosecutor failed to disclose thepolice report to him because the prosecutor, like everyone else, including the court, considered the alleged event to be irrelevant.

“Evidence known to the defendant or his counsel ... is ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍not considered suppressed as that term is used in [Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)].” (Internal quotation marks omitted.) State v. Reddick, 197 Conn. 115, 121, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986).