State v. Ampero
Purely evidentiary claims fail to satisfy the second prong of the 1989 Connecticut Supreme Court standard in State v. Golding, as they are not of constitutional magnitude and, here, the defendant's unpreserved claim was a classic evidentiary claim in that it challenged the admission of evidence of the defendant's prior misconduct. In connection with claims that he abducted his former girlfriend and her three children at knife point and held them over night, Alberto Ampero was convicted, following a jury trial, of kidnapping in the second degree and interfering with an officer. Ampero appealed raising three claims. The Appellate Court affirmed the judgment. The defendant first contended that the admission of testimony regarding his prior bad acts constituted reversible error. The record reflected that defense counsel did not object to or seek to strike any of the prior bad acts testimony or request a limiting instruction as to the jury's permissible use of such testimony. The defendant sought review of the unpreserved claims under Golding and the plain error doctrine. The record was adequate for review. However, it is well settled that issues concerning the admission of, and judicial instructions on, prior misconduct evidence are solely evidentiary in nature and the court's failure to give a limiting instruction is not a matter of constitutional magnitude. Because the claim was not of constitutional magnitude, the claim failed to satisfy the second prong of Golding. Further, the defendant could not show manifest injustice for his claim of plain error because defense counsel waived the claim by failing to take action against the admission of the evidence and then strategically used the evidence to his advantage. Defense counsel strategically chose not to object to the prior bad acts testimony. He questioned the state's witnesses about such evidence and incorporated their testimony into his closing argument. Having used the prior bad acts and prior incarceration testimony of the state's witnesses to undermine the state's case against him at trial where he was found not guilty on two of the four charges against him, the defendant could hardly argue that the introduction of such evidence warranted reversal under the plain error doctrine. Finally, the introduction of such evidence did not constitute prosecutorial impropriety.