State of Utah v. Borgogno

State of Utah v. Borgogno, Case No. 971232-CA, Filed October 1, 1998. IN THE UTAH COURT OF APPEALS ----ooOoo---- MEMORANDUM DECISION (Not For Official Publication)     State of Utah, Plaintiff and Appellee, v. Gasper A. Borgogno, Defendant and Appellant. Case No. 971232-CA F I L E D (October 1, 1998)   -----  

Third District, Tooele Department

The Honorable Leon A. Dever

Attorneys: Willam B. Parsons, III, Salt Lake City, for Appellant

Jan Graham and Laura B. Dupaix, Salt Lake City, for Appellee -----  

Before Judges Wilkins, Bench, and Orme.

ORME, Judge:

We have determined that "[t]he facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument." Utah R. App. P. 29(a)(3).

When a prosecutor fails to provide evidence to the defense, "regardless of the [evidence's] exculpatory or inculpatory nature, it [is] not improperly withheld by the prosecution [when the defendant] and/or his attorney knew or should have known of it." State v. Penman, 346 Utah Adv. Rep. 11, 15 (Utah Ct. App. 1998). See State v. Kallin, 877 P.2d 138, 143 (Utah 1994) (noting that, notwithstanding prosecution's disclosure duties, "defense counsel also has an affirmative duty to make a reasonable investigation"); State v. Jarrell, 608 P.2d 218, 225 (Utah 1980) ("[E]vidence is not improperly withheld if the defense has knowledge of that evidence and defense counsel simply fails to request it.").

The prosecution furnished a police report to appellant which he concedes informed him that the recording existed and that the police had submitted it for transcribing. The prosecution's Response to Motion for Discovery also instructed appellant that he could review any untranscribed aural evidence by simply making an appointment with the prosecutor. Far from fulfilling his affirmative duty to make a reasonable investigation, appellant completely failed to ascertain the recording's contents. Appellant knew or should have known of the recording and simply failed to request it. Consequently, the prosecution did not improperly withhold the recording from appellant.

As for appellant's ineffective assistance of counsel claim, although defendants must demonstrate both deficient performance and resulting prejudice to establish ineffective assistance of counsel, it is not necessary for us "to address both components of the inquiry if the [defendant] makes an insufficient showing on one." When it is "easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice," we will do so without addressing whether counsel's performance was professionally unreasonable.

Parsons v. Barnes, 871 P.2d 516, 523 (Utah) (quoting Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 2069 (1984)), (other citations omitted), cert. denied, 513 U.S. 966, 115 S. Ct. 431 (1994). In this case, appellant's ineffective assistance claim can be readily disposed of based on lack of prejudice, and we need not address trial counsel's performance.

To establish prejudice, defendants must affirmatively demonstrate a reasonable probability that the trial result would have been different absent trial counsel's alleged error. See State v. Arguelles, 921 P.2d 439, 441 (Utah 1996); Taylor v. Warden, 905 P.2d 277, 282 (Utah 1995). More specifically, defendants who base ineffective assistance claims on their counsels' failure to request discovery of potentially exculpatory evidence must proffer evidence demonstrating that proper discovery actually would have yielded exculpatory evidence. See Parsons v. Barnes, 871 P.2d at 526. "Speculation that [exculpatory evidence] exists is not sufficient to meet the prejudice component of the [ineffective assistance of counsel] test." Id.

Appellant has not offered the recording itself or any other evidence showing the recording was in fact exculpatory. Instead, he relies exclusively on speculation that the recording was exculpatory and would have cleared up testimonial inconsistencies. Absent affirmative proof, such suppositions are legally insufficient to establish a reasonable probability of a different outcome. Consequently, appellant has not shown that his counsel's failure to request and listen to the recording prejudiced him, and he cannot claim ineffective assistance based on this failure given the state of the record before us.(1)

For this same reason, appellant fails to establish ineffective assistance based on his counsel's failure to voir dire the jury regarding the 1990 chemical fire at the building owned by appellant. Appellant contends only that his "name was linked with the incident, as the building's owner, and he was associated with the lab by implication." "The incident" occurred six years before trial in this case. Suggesting that members of the jury could even remember the name of an individual only implicitly linked with an incident occurring six years earlier is speculative at best. Equally conjectural is appellant's claim that media coverage of his role in the incident was pervasive. Appellant has proffered no evidence to support this claim. Consequently, appellant has failed to demonstrate the prejudice necessary to establish ineffective assistance of counsel based on his claim of inadequate voir dire.(2)

Affirmed.
 
 

Gregory K. Orme, Judge -----  

WE CONCUR:
 
 

______________________________

Michael J. Wilkins,

Associate Presiding Judge
 
 

______________________________

Russell W. Bench, Judge

1. Claims of ineffective assistance that cannot be evaluated without recourse to evidence outside the record may ordinarily not be decided on direct appeal, absent proceedings pursuant to Rule 23B of the Utah Rules of Appellate Procedure, and must be treated in habeas corpus or other postconviction proceedings. See State v. Humphries, 818 P.2d 1027, 1029 (Utah 1991); State v. Penman, 346 Utah Adv. Rep. 11, 15 & n.8 (Utah Ct. App. 1998).

2. Noting that this claim is completely unsupported by record facts, the State has moved to strike the portions of appellant's brief relating to this claim. However, given our disposition of this issue on the merits, the motion is denied.