State v. Bermudez

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STATE OF CONNECTICUT v. NOEL BERMUDEZ
(AC 41864)
Elgo, Moll and Devlin, Js.

Syllabus

Convicted of the crime of felony murder in connection with the shooting
death of the victim, the defendant appealed, claiming, inter alia, that
certain of the trial court’s evidentiary rulings constituted harmful error
that entitled him to a new trial, and that other evidentiary rulings by
the court deprived him of his constitutional rights to present a defense
and to confront witnesses. The defendant and his brothers, B and S,
robbed the victim when he returned home at night after closing the bar
that he owned. The defendant then shot and killed the victim. Twelve
years later, A, the estranged wife of S, gave the police a written statement
that implicated the defendant, B and S in the victim’s death. A, who
knew that the defendant, B and S were affiliated with gangs, delayed
providing information to the police out of fear that the defendant and
S would retaliate against her or her family. S, who had regularly abused
A throughout their relationship, beat her on the night of the shooting
and threatened to kill her mother. While the defendant was incarcerated
on unrelated charges during the twelve years after the shooting, he
instructed A to write intimate and salacious letters to him so that he
could discredit her in the event that she were to testify against him.
The trial court admitted evidence that the defendant and S were affiliated
with gangs, and that A and her children had been relocated out of state
multiple times after A gave her statement to the police. The court refused
to permit defense counsel to introduce the letters into evidence, limited
his inquiry into A’s birth control practices and precluded him from cross-
examining her about the termination of her employment. Held:
1. The trial court did not abuse its discretion by admitting into evidence
A’s testimony that the defendant and S were affiliated with gangs or
that she and her children were relocated after she gave her statement
to the police:
a. Evidence that the defendant and S were affiliated with gangs was
relevant and highly probative to explain why A delayed twelve years
before informing the police about the victim’s murder, as she testified
that she deeply feared gang reprisals and was afraid for her safety and
that of family members, the court carefully balanced the probative value
of her testimony against its potential for unfair prejudice, the court’s
limiting instructions to the jury after A testified minimized the prejudicial
impact of her testimony, and the court instructed the jury in its final
charge that the purpose of her testimony was to show why she was
afraid to disclose information about the murder or why she disclosed
it at the time that she did; moreover, A’s testimony was not cumulative
in establishing that she feared the defendant, B and S, as S’s threats
and history of physical abuse of A was a distinct and separate basis for
her fear, and evidence of the defendant’s gang affiliation was pertinent
to establish that her fear extended to the defendant and B, and illustrated
the extent to which she feared retaliation by other gang members.
b. Evidence of A’s relocation was highly probative and relevant with
respect to her delay in providing information to the police about the
shooting, which was a central issue in the case, as the jury reasonably
could have concluded that A’s willingness to subject herself to the
upheaval and disruption of moving herself and her children multiple
times was credible evidence of her belief that she and her family were
not safe; moreover, the probative value of A’s relocation testimony was
not outweighed by its prejudicial impact on the defendant, as the court
restricted the prosecutor from referencing the state’s witness protection
program (§§ 54-82t and 54-82u), A testified without referencing the wit-
ness protection program or the phrase, ‘‘at state expense,’’ and, although
the prosecutor’s use of the phrase, ‘‘was relocated,’’ in closing argument
to the jury was prejudicial to the defendant, it did not have the same
unduly prejudicial impact as ‘‘witness protection program’’ or ‘‘at state
expense’’; furthermore, references to the witness protection program
were passive and infrequent, and the prosecutor did not exploit that
evidence.
2. The trial court improperly refused to admit into evidence the letters that
A wrote to the defendant but properly precluded defense counsel from
questioning A about the termination of her employment and limited his
inquiry of her as to her birth control practices:
a. Contrary to the defendant’s assertion that the trial court’s rulings
violated his rights to present a defense and to confront witnesses, the
defendant’s claims were evidentiary, rather than constitutional, as the
record demonstrated that he was afforded multiple avenues of impeach-
ment in cross-examining A, who was the state’s key witness, and that
he took full advantage of that latitude by rigorously cross-examining
her with respect to relevant lines of inquiry, most importantly, her fear
of the defendant, B and S, and that he sought to undermine A’s credibility
through the testimony of other witnesses.
b. The trial court erred in refusing to admit into evidence the letters
that A wrote to the defendant but the defendant did not satisfy his
burden to establish that the error substantially affected the verdict and
therefore was harmful; defense counsel took full advantage of the court’s
permission to provide the gist of the graphic content of the letters and
was entitled to quote the nonsalacious details of the letters, counsel
was afforded wide latitude in his cross-examination of A, which lasted
one and one-half days and included examination about the veracity of
her explanation for authoring the letters, the cross-examination of A
sought to establish the defense theory that she was motivated to come
forward to retaliate against the defendant and S for the ending of her
relationship with S, and there was corroborating evidence that supported
A’s testimony.
c. The trial court did not abuse its discretion in refusing to allow defense
counsel to examine A about the termination of her employment, as the
reasons for the termination would have injected a collateral issue into
the trial.
d. There was no merit to the defendant’s claim that the trial court
improperly restricted his ability to cross-examine A about her birth
control regimen; the court allowed some inquiry into the topic but
properly determined that further questioning was irrelevant because it
would have inappropriately focused on a matter far too attenuated from
the material issues in the case.
3. The defendant could not prevail on his claim that the prosecutor made
numerous statements during closing argument to the jury that referred
to facts not in evidence; the prosecutor’s remark that A had testified
consistently in previous proceedings was based on reasonable inferences
to be drawn from the evidence and was a response to defense counsel’s
having highlighted a single prior inconsistency in A’s testimony, the
prosecutor’s remark that the state had received no benefit from A’s
testimony was merely an inadvertent misstatement in reference to
reward money that was disbursed by the governor’s office for informa-
tion about the shooting, as it was obvious from the context of the
statement that the prosecutor meant to refer to evidence that the state’s
attorney’s office did not provide any reward to A, the prosecutor’s
ambiguous statement about who was with A when she withdrew money
from her bank account was not intended to suggest that A had testified
consistently as to that fact at previous proceedings but that she had
testified consistently as to that fact at the defendant’s trial, the prosecu-
tor’s remark that A knew of the reward at the time of the prior proceed-
ings was clearly an invitation for the jury to draw a reasonable inference
from the fact that she knew of the reward before any proceedings
had taken place, the prosecutor’s remark that B had moved in with A,
uninvited, to keep watch over her when the defendant and S were
incarcerated was a reasonable inference that could be drawn from the
evidence, and the record substantiated the prosecutor’s statement that
the letters A had written to S were a means to discredit her and was a
proper summation of A’s testimony about the letters.
Argued September 6, 2019—officially released February 18, 2020

Procedural History

Substitute information charging the defendant with
the crimes of murder and felony murder, brought to
the Superior Court in the judicial district of Waterbury,
where the court, K. Murphy, J., granted the state’s
motion to preclude certain evidence and granted in part
the defendant’s motion to preclude certain evidence;
thereafter, the matter was tried to the jury; verdict of
guilty of felony murder; subsequently, the court
declared a mistrial as to the charge of murder and
dismissed the charge of murder; judgment of guilty of
felony murder, from which the defendant appealed and
the state, on the granting of permission, appealed; there-
after, this court dismissed the state’s appeal. Affirmed.
Pamela S. Nagy, assistant public defender, for the
appellant (defendant).
Timothy F. Costello, assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attor-
ney, and Don E. Therkildsen, Jr., and Cynthia S. Sera-
fini, senior assistant state’s attorneys, for the appel-
lee (state).
Opinion

ELGO, J. The defendant, Noel Bermudez, appeals
from the judgment of conviction, rendered after a jury
trial, of one count of felony murder in violation of Gen-
eral Statutes § 53a-54c. On appeal, the defendant alleges
evidentiary error, claiming that the trial court improp-
erly (1) admitted testimony that he was a member of
a gang and that a state’s witness had to be relocated
as a result of inculpating the defendant, and (2) refused
to admit into evidence letters written by a state’s wit-
ness to the defendant while the defendant was incarcer-
ated, prevented the defendant from questioning the
state’s witness about the termination of her employ-
ment, and prevented the defendant from questioning
the state’s witness about her birth control practices.
Additionally, the defendant claims that the prosecutor
improperly referred to facts not in evidence during clos-
ing argument to the jury. We affirm the judgment of
the trial court.1
On the basis of the evidence adduced at trial, the
jury reasonably could have found the following facts.
In the early hours of April 11, 1998, Wilfred Morales,
the owner of Morales Café, was closing his bar for the
night. As part of his routine, Morales counted the cash
and checks he received from the patrons and placed
the proceeds in a blue bank bag. At approximately 2:30
a.m. that morning, Morales was shot and killed on a
street near his home in Waterbury.
Twelve years later, Damaris Algarin-Santiago,2 the
estranged wife of the defendant’s brother, Victor Santi-
ago, provided a written statement to the police. In that
statement, Algarin implicated the defendant, Santiago,
and another brother of the defendant, Thomas Bonilla,
in Morales’ death. The defendant ultimately was
charged with the murder of Morales.
Algarin was the state’s chief witness in its prosecution
of the defendant. Algarin testified that she had been in
a relationship with Santiago since 1993 and that they
eventually married in 2004.3 Throughout their time
together, Santiago abused Algarin on a regular basis,
both physically and emotionally. The couple had two
children at the time of Morales’ murder.
In her testimony at trial, Algarin recounted the events
of April 11, 1998. At approximately 3 a.m., Algarin was
awakened by Santiago, who was screaming at her to
come downstairs. Upon doing so, Algarin saw a coffee
table full of money, checks,4 and a blue leather bag with
a zipper. She also saw Bonilla counting the checks and
cash as the defendant dismantled a pistol in the kitchen
and Santiago cleaned the pistol parts with baby oil
to remove fingerprints. When Algarin asked what had
happened, Santiago immediately started to beat her.
The three brothers continued to argue about what had
transpired and were upset about the number of checks
relative to the amount of cash. Algarin again asked what
had happened, and the defendant responded that they
had shot Morales.
Algarin testified that the defendant and his two broth-
ers were in need of money and thus sought to rob
Morales that night, believing that the Good Friday holi-
day would result in a large amount of cash. To become
familiar with Morales’ routine, Algarin testified that San-
tiago stalked Morales for some time. Thereafter, Santi-
ago planned to act as the driver while Bonilla and the
defendant would lie in wait in the bushes to commit the
robbery. When Bonilla and the defendant confronted
Morales on the night in question, the defendant shot
him to death. The defendant gave Algarin two explana-
tions for doing so: (1) he believed Morales was reaching
for a gun, and (2) he wanted revenge due to his belief
that Morales had shot Santiago some years earlier.5
Upon arriving at Algarin’s home after the shooting,
the defendant and his brothers burned the checks in
the kitchen sink,6 cleaned the weapons of fingerprints,
and placed the dismantled pistol parts into three sepa-
rate bags. To further conceal their crime, the three
brothers burned their clothing in a barrel behind the
house and cleaned the car to remove gun residue. When
Santiago returned, he again started to beat Algarin after
her repeated inquiries into what had transpired and
threatened to kill her mother. When she refused to go
with him to dispose of the bags filled with the gun parts,
Santiago continued to beat Algarin until the defendant
intervened. Reluctantly, she agreed and accompanied
Santiago to dispose of the bags. When the third bag
was thrown into the Naugatuck River, Santiago again
threatened to kill Algarin, her mother, and their chil-
dren, stating that ‘‘[n]ow you know what we’re capa-
ble of.’’
Subsequently, the defendant and his brothers con-
cocted an alibi that they and Algarin had been celebrat-
ing Bonilla’s return from prison by eating fish for Good
Friday at the home of Santiago’s mother. Later that day,
Santiago and Bonilla accompanied Algarin to deposit
the cash into her bank account via an automated teller
machine (ATM). Algarin testified that she deposited
three separate envelopes of cash, which she believed
to have totaled $3000. When the cash was cleared by
the bank on the following Monday, Santiago and Bonilla
went with Algarin to make a withdrawal, at which time
Algarin gave the cash to Santiago.
From 1998 to 2010, Algarin was questioned by the
police on approximately seven occasions. Each time,
she stuck to the manufactured alibi out of fear for her
safety and the safety of her family. Knowing that the
defendant, Santiago, and Bonilla were affiliated with
nationwide gangs,7 Algarin was particularly afraid of
reprisals should she provide the police with any infor-
mation. During this period, however, she did divulge
some information to three people. Approximately one
year after Morales’ murder, Algarin revealed to Ralph C.
Crozier, an attorney whom she knew, that the defendant
and his two brothers had been involved in the homi-
cide.8 She also provided details of the homicide to Sally
Roden-Timko, a coworker at Waterbury Hospital, who
would confirm the interaction in a statement given to
the police in 2010. Algarin later discussed details about
the homicide with Luis Maldonado, a person she began
dating in 2009 while Santiago was incarcerated for an
unrelated matter.
Despite being incarcerated throughout much of the
twelve year interval, Santiago continued to threaten
Algarin. After a newspaper article was published on the
investigation into Morales’ murder, the defendant, who
was also incarcerated on an unrelated criminal matter
during the twelve year interval, instructed Algarin to
write to the defendant three letters that were intimate
and particularly salacious in nature. The defendant had
requested the letters for the purpose of discrediting
Algarin in the event that she were ever to testify
against him.9
In 2010, Maldonado was arrested in connection with
an unrelated crime. Following his arrest, Maldonado
provided the police with details about Morales’ murder
and further indicated that Algarin could provide more
information. Algarin subsequently was visited by a
detective from the Waterbury Police Department and
taken to the police department. Fearing that Maldonado
had disclosed information and concerned that he would
be murdered by Santiago if he were incarcerated, Alg-
arin abandoned the alibi and provided a seven page
statement to the police detailing the events of
Morales’ murder.
On February 16, 2017, the defendant was charged by
substitute information with one count of murder in
violation of General Statutes § 53a-54a and one count
of felony murder in violation of § 53a-54c. Following a
jury trial, the defendant was found guilty of felony mur-
der. When the jury became deadlocked on the charge
of murder, the court declared a mistrial on that charge.10
The court thereafter sentenced the defendant to a total
effective term of sixty years of incarceration. This
appeal followed.
I
On appeal, the defendant first raises two claims of
error with respect to the admission of certain evidence.
The defendant alleges that the court improperly admit-
ted evidence (1) of his and Santiago’s gang affiliations
and (2) that Algarin was relocated by the state.
According to the defendant, these allegedly improper
rulings constituted harmful error. We disagree.
Before addressing each of the challenged evidentiary
rulings, we first set forth the applicable standard of
review. ‘‘To the extent [that] a trial court’s admission
of evidence is based on an interpretation of the [Con-
necticut] Code of Evidence, our standard of review is
plenary. . . . We review the trial court’s decision to
admit evidence, if premised on a correct view of the
law, however, for an abuse of discretion.’’ (Internal
quotation marks omitted.) State v. Santiago, 187 Conn.
App. 350, 357, 202 A.3d 405, cert. denied, 331 Conn. 902,
201 A.3d 403 (2019).
A
We first address the defendant’s claim that the trial
court improperly admitted evidence that both he and
Santiago were gang members. According to the defen-
dant, because the crime charged was not criminal activ-
ity pursuant to gang membership, this evidence was
both irrelevant and highly inflammatory.11 In response,
the state argues that those gang affiliations were highly
probative in explaining why Algarin waited twelve years
to provide a statement to the police. We agree with
the state.
The following additional facts are relevant to this
claim. Prior to his trial, the defendant filed a motion in
limine in response to the state’s notice of its intent to
introduce evidence of the gang affiliations. Specifically,
the state sought to introduce testimony from Algarin
that the defendant and Santiago were members of the
Latin Kings gang. The purpose of this testimony, the
state argued, was to illustrate the extent to which Alg-
arin feared retaliation from Santiago, the defendant, or
other gang members. According to the state, Algarin’s
fear of the defendant and his brothers bore directly on
her reason for waiting twelve years to provide the police
with inculpating evidence.
After balancing the probative value of the evidence
against the danger of unfair prejudice, the court allowed
the testimony for the limited purpose proposed by the
state. As the court explained, ‘‘to the extent that the
state is going to introduce evidence that . . . [Algarin]
was afraid to disclose this [evidence] because . . . the
defendant and/or Victor Santiago was a member of the
Latin Kings street gang; that they are a group of people
that have access to people in many places; and that
they have access to weapons, I would allow it just for
that purpose. I would not allow the introduction of
that evidence to go to whether [the defendant] did this
crime, and so I would do a limiting instruction regarding
the introduction of that evidence if that comes in as an
explanation for her delay in disclosing this.’’
During the state’s direct examination of Algarin, the
defendant again objected to the introduction of testi-
mony concerning the gang affiliations. Outside the pres-
ence of the jury, the court reiterated that it would allow
the testimony to establish Algarin’s fear of reprisals but
cautioned that it would give a limiting instruction that
gang membership was not to be used for any other
purpose. Algarin then testified that the delay was a
result of her fear that she, her family, and Maldonado
would be retaliated against by members of the gangs
with which the defendant and Santiago were affiliated.
Immediately after this testimony, the court provided
a limiting instruction and cautioned the jury that any
evidence of gang affiliations was admitted only ‘‘to show
why the witness delayed or why the witness disclosed
at a certain time.’’
The relevant legal principles governing our review
of this claim are well settled. ‘‘Relevant evidence is
evidence that has a logical tendency to aid the trier in
the determination of an issue. . . . Evidence is rele-
vant if it tend[s] to make the existence or nonexistence
of any other fact more probable or less probable than
it would be without such evidence.’’ (Internal quotation
marks omitted.) State v. Wilson, 308 Conn. 412, 429, 64
A.3d 91 (2013); see also Conn. Code Evid. § 4-1 (‘‘[r]ele-
vant evidence means evidence having any tendency to
make the existence of any fact that is material to the
determination of the proceeding more probable or less
probable than it would be without the evidence’’ (inter-
nal quotation marks omitted)). ‘‘To be relevant, the
evidence need not exclude all other possibilities; it is
sufficient if it tends to support the conclusion [for which
it is offered], even to a slight degree. . . . All that is
required is that the evidence tend[s] to support a rele-
vant fact even to a slight degree, so long as it is not
prejudicial or merely cumulative.’’ (Citation omitted;
internal quotation marks omitted.) State v. Wilson,
supra, 429. ‘‘The trial court has wide discretion to deter-
mine the relevancy of evidence . . . . Thus, [w]e will
make every reasonable presumption in favor of uphold-
ing the trial court’s [rulings on these bases].’’ (Internal
quotation marks omitted.) State v. Taupier, 330 Conn.
149, 181, 193 A.3d 1 (2018), cert. denied, U.S. ,
139 S. Ct. 1188, 203 L. Ed. 2d 202 (2019).
Even if evidence is deemed relevant, § 4-3 of the
Connecticut Code of Evidence provides that such evi-
dence ‘‘may be excluded if its probative value is out-
weighed by the danger of unfair prejudice . . . or by
considerations of . . . needless presentation of cumu-
lative evidence.’’ ‘‘Of course, [a]ll adverse evidence is
damaging to one’s case, but it is inadmissible only if it
creates undue prejudice so that it threatens an injustice
were it to be admitted. . . . The test for determining
whether evidence is unduly prejudicial is not whether
it is damaging to the defendant but whether it will
improperly arouse the emotions of the [jurors].’’ (Inter-
nal quotation marks omitted.) State v. Wilson, supra,
308 Conn. 429–30. Therefore, ‘‘[t]o be unfairly prejudi-
cial, evidence must be likely to cause a disproportionate
emotional response in the jury, thereby threatening to
overwhelm its neutrality and rationality to the detriment
of the opposing party. . . . A mere adverse effect on
the party opposing admission of the evidence is insuffi-
cient. . . . Evidence is prejudicial when it tends to
have some adverse effect [on] a defendant beyond tend-
ing to prove the fact or issue that justified its admission
into evidence.’’ (Internal quotation marks omitted.)
State v. Miguel C., 305 Conn. 562, 575–76, 46 A.3d 126
(2012). Additionally, evidence may be considered cumu-
lative ‘‘if it multiplies witnesses or documentary matter
to any one or more facts that were the subject of previ-
ous proof. . . . The court’s power in that area is discre-
tionary. . . . In precluding evidence solely because it
is cumulative, however, the court should exercise care
to avoid precluding evidence merely because of an over-
lap with the evidence previously admitted.’’ (Internal
quotation marks omitted.) State v. Porfil, 191 Conn.
App. 494, 531, 215 A.3d 161, cert. granted on other
grounds, 333 Conn. 923, 218 A.3d 67 (2019).
We first address the issue of relevancy. Both the
defendant and the state agree that the reason for Algar-
in’s twelve year delay in providing information to the
police—and, therefore, Algarin’s credibility—was a cen-
tral issue at trial. To explain the delay, Algarin testified
that she deeply feared that providing information to
the police would result in gang reprisals. She further
testified that she not only was afraid for her own safety
but also was concerned that her children, Maldonado,
and other family members would be subjected to retal-
iation.
This court has previously held that evidence of gang
membership is relevant ‘‘to aid the trier to determine’’
why a person delayed before reporting a crime. State
v. Cruz, 56 Conn. App. 763, 771–72, 746 A.2d 196 (2000),
aff’d, 260 Conn. 1, 792 A.2d 823 (2002). In that case,
this court noted that the victim’s more than two year
delay in reporting the defendant’s sexual assault of her
was ‘‘an issue directly involving [her] credibility.’’ Id.,
771. The victim’s belief that the defendant was a gang
member ‘‘was probative of that issue raised.’’ Id., 772.
There similarly is little doubt that the evidence at issue
here was relevant to explain Algarin’s state of mind
when she delayed for twelve years before providing the
police with information about Morales’ murder.12
Having concluded that the evidence was relevant, we
next turn to the defendant’s argument that the trial
court abused its discretion by failing to properly balance
the probative value of the evidence with the danger of
unfair prejudice. Moreover, the defendant claims that
the evidence was merely cumulative with respect to
Algarin’s fear of the defendant and his brothers. Upon
a careful review of the record, we are satisfied with
the court’s cautious approach in balancing the probative
value of Algarin’s testimony with its prejudicial effect.
In hearing argument on the defendant’s motion in
limine, the court explicitly noted its need to carefully
balance the probative value of the evidence to ‘‘make
sure that it does not result in unfair prejudice . . . .’’
To quell the potential for unfair prejudice in light of
the highly probative value of the evidence, the court
expressed its intent to limit both the scope of Algarin’s
testimony and the purpose for which evidence of gang
affiliation was to be admitted.13 Immediately following
Algarin’s testimony on the topic, the court instructed
the jury that the only purpose of this evidence was
‘‘to show why [Algarin] was afraid to disclose or why
[Algarin] disclosed at the time that she did. And it’s not
admitted for any other purpose.’’ In its jury charge, the
court again cautioned the jury about the use of this
evidence, instructing the jury that the evidence was not
‘‘admitted to prove the bad character, propensity, or
criminal tendencies of the defendant, [Santiago], or
[Bonilla]. . . . You may consider such evidence if you
believe it and further find that it logically . . . supports
the issue for which it is being offered by the state, but
only as it may bear on the issue of fear of [Santiago],
the defendant, and [Bonilla] on the part of [Algarin]
. . . .’’ The court further explained that to use the evi-
dence for any other purpose would ‘‘predispose your
mind uncritically to believe that the defendant and the
others may be guilty of the offenses here charged merely
because of the alleged . . . gang membership.’’
Additionally, we disagree with the defendant that the
evidence was merely cumulative in establishing Algar-
in’s fear of the defendant and his brothers. First, Santi-
ago’s threats and history of physical abuse was a distinct
and separate basis for her fear. It did little to establish
the extent to which she feared Santiago, namely, why
she would fear him despite his having been incarcer-
ated. Second, evidence of the defendant’s gang affilia-
tion was pertinent to establish that, in addition to Santi-
ago, Algarin’s fear extended to both the defendant and
Bonilla.14 Third, this evidence illustrates the extent to
which Algarin feared retaliation by other gang members
against herself and family members. For those reasons,
the court acted well within its ‘‘wide and liberal discre-
tion’’ to determine that the evidence was not ‘‘repeti-
tious, remote or irrelevant.’’ (Internal quotation marks
omitted.) State v. Gutierrez, 132 Conn. App. 233, 237,
31 A.3d 412 (2011).
In sum, the evidence that the defendant and Santiago
were affiliated with nationwide gangs was highly proba-
tive to explain why Algarin delayed twelve years before
coming forward to the police. The court was cognizant
of the potential for this evidence to inflame the jurors’
emotions and thus carefully balanced its probative
value against the potential for unfair prejudice. Because
of the inherently prejudicial nature of this testimony,
we note that the court’s ‘‘[l]imiting instructions serve[d]
to minimize the prejudicial impact’’ of the evidence of
gang affiliations. (Internal quotation marks omitted.)
State v. Brown, 199 Conn. 47, 58, 505 A.2d 1225 (1986).
We therefore conclude that the trial court did not abuse
its discretion by admitting Algarin’s testimony regarding
the gang affiliations of the defendant and Santiago.
B
The defendant next claims that the court improperly
admitted evidence that Algarin was relocated by the
state immediately after providing her statement to the
police. In particular, the defendant argues that this testi-
mony unfairly bolstered her credibility, was unduly prej-
udicial, and suggested that he was a violent person. In
response, the state argues that the evidence was prop-
erly admitted to show the hardship that Algarin endured
and her fear of retaliation as a result of coming forward
to testify.15 The state further argues that, even if the
evidence was improperly admitted, the error was harm-
less. We conclude that the court did not abuse its discre-
tion under the particular circumstances of this case.
The following additional facts are relevant to this
claim. At trial, the prosecutor asked Algarin whether
she continued to live in Waterbury after giving her state-
ment to the police. The defendant immediately
objected, believing that the prosecutor was about to
elicit evidence about the witness protection program.
See footnote 18 of this opinion. Outside the presence
of the jury, the defendant argued that any testimony
regarding Algarin’s placement in the witness protection
program would be unduly prejudicial. The defendant
further asserted that this testimony ‘‘emphasizes the
fact that the government agency, whether it’s a state
or federal, believes [Algarin] is in danger and [has] paid
for her care since the time of this so-called disclosure.’’
In response, the state argued that evidence of Algarin’s
relocation was probative of her fear of retaliation. The
court agreed that Algarin should not refer to the ‘‘wit-
ness protection program’’ but ruled that the state could
elicit details on how her life has been impacted since
the disclosure, including how she was relocated at the
state’s expense. The court thereafter instructed Algarin
not to use the phrase, ‘‘witness protection program.’’16
Algarin subsequently testified that she, her children,
and Maldonado were relocated out of the state and had
continued to be relocated numerous times. The state
referenced this fact in its closing argument, noting that
Algarin was ‘‘immediately relocated with her four chil-
dren’’ after giving her statement to the police, and that
she was ‘‘still in relocation, still in fear of the three indi-
viduals.’’
We now set forth the relevant legal principles govern-
ing this claim. ‘‘In order to establish reversible error on
an evidentiary impropriety . . . the defendant must
prove both an abuse of discretion and a harm that
resulted from such abuse.’’ (Internal quotation marks
omitted.) State v. Alex B., 150 Conn. App. 584, 593, 90
A.3d 1078, cert. denied, 312 Conn. 924, 94 A.3d 1202
(2014). ‘‘When an improper evidentiary ruling is not
constitutional in nature, the defendant bears the burden
of demonstrating that the error was harmful.’’ (Internal
quotation marks omitted.) State v. Grant, 179 Conn.
App. 81, 90, 178 A.3d 437, cert. denied, 328 Conn. 910,
178 A.3d 1041 (2018). ‘‘[W]hether [the improper admis-
sion of a witness’ testimony] is harmless in a particular
case depends upon a number of factors, such as the
importance of the witness’ testimony in the prosecu-
tion’s case, whether the testimony was cumulative, the
presence or absence of evidence corroborating or con-
tradicting the testimony of the witness on material
points, the extent of cross-examination otherwise per-
mitted, and, of course, the overall strength of the prose-
cution’s case.’’ (Internal quotation marks omitted.)
State v. LeBlanc, 148 Conn. App. 503, 509, 84 A.3d 1242,
cert. denied, 311 Conn. 945, 90 A.3d 975 (2014). ‘‘Accord-
ingly, a nonconstitutional error is harmless when an
appellate court has a fair assurance that the error did
not substantially affect the verdict.’’ (Internal quotation
marks omitted.) State v. Miguel C., supra, 305 Conn.
578–79.
We first note that evidence of Algarin’s relocation
was highly probative and relevant with respect to a
central issue in the case: Algarin’s delay in reporting
her knowledge about the murder to the police due to
her fear of retaliation by the defendant and Santiago.
See State v. Cruz, supra, 56 Conn. App. 771–72. The jury
reasonably could conclude that Algarin’s willingness to
subject herself to the upheaval and disruption of moving
herself and her four children multiple times was credi-
ble evidence of her belief that, due to the defendant’s
gang affiliation, she and her family were not safe.
Whether such evidence should have been excluded
because it was unduly prejudicial is a matter of first
impression in this state. ‘‘In the absence of authoritative
Connecticut case law . . . we turn for guidance to fed-
eral law.’’ Bristol v. Tilcon Minerals, Inc., 284 Conn. 55,
88, 931 A.2d 237 (2007); see also Red Maple Properties
v. Zoning Commission, 222 Conn. 730, 736, 610 A.2d
1238 (1992) (looking to federal Circuit Courts of
Appeals for guidance on matter of first impression).
A number of federal Circuit Courts of Appeals that
have addressed the issue have cautioned that admitting
evidence of a testifying witness’ placement in a witness
protection program ‘‘must be handled delicately.’’
United States v. Partin, 552 F.2d 621, 645 (5th Cir.),
cert. denied, 434 U.S. 903, 98 S. Ct. 298, 54 L. Ed. 2d
189 (1977); see also United States v. Melia, 691 F.2d 672,
675 (4th Cir. 1982) (evidence of witness’ participation
in witness protection program should be admitted ‘‘with
great caution’’). ‘‘Although disclosure of such participa-
tion must be handled delicately . . . so as to minimize
the possibility that the jury will infer that the defendant
was the source of danger to the witness, such testimony
is permissible so long as the prosecutor does not
attempt to exploit it.’’ (Citation omitted; internal quota-
tion marks omitted.) United States v. DiFrancesco, 604
F.2d 769, 775 (2d Cir. 1979), rev’d on other grounds,
449 U.S. 117, 101 S. Ct. 426, 66 L. Ed. 2d 328 (1980);
see also United States v. Ciampaglia, 628 F.2d 632,
640 (1st Cir.) (risk of undue prejudice to defendant
by government’s reference to witness’ participation in
‘‘witness protection program’’ generally minimal when
not exploited by prosecution), cert. denied, 449 U.S.
956, 101 S. Ct. 365, 66 L. Ed. 2d 221 (1980), and cert.
denied sub nom. Bancroft v. United States, 449 U.S.
1038, 101 S. Ct. 618, 66 L. Ed. 2d 501 (1980). This is
especially so when testimony implies that the witness’
participation in the witness protection program was
predicated on threats made by the defendant. See
United States v. Frankenberry, 696 F.2d 239, 242 (3d
Cir. 1982) (evidence of witness’ participation in witness
protection program proper when prosecution ‘‘does not
exploit any inference of threat from the defendant’’),
cert. denied, 463 U.S. 1210, 103 S. Ct. 3544, 77 L. Ed.
2d 1392 (1983); cf. United States v. Vastola, 899 F.2d
211, 235–36 (3d Cir.) (only slight potential for prejudice
when testimony ‘‘only vaguely suggests’’ that witness
was placed in witness protection program due to threats
by defendant), vacated and remanded, 497 U.S. 1001,
110 S. Ct. 3233, 111 L. Ed. 2d 744 (1990). However, such
evidence may be introduced ‘‘to counter any inference
of improper motivation or bias and, under some circum-
stances, may [be presented] on direct examination in
anticipation of a defense attack upon the witnesses’
credibility.’’ United States v. Melia, supra, 675; see
United States v. Ciampaglia, supra, 639–40 (no revers-
ible error when evidence of witness’ participation in
witness protection program brought out on direct exam-
ination). As the United States Court of Appeals for the
Fourth Circuit has observed, ‘‘[t]here can be no simple
formula with which to calculate how much evidence
concerning the [w]itness [p]rotection [p]rogram is
appropriate and permissible in a given case to counter
defense attempts to discredit [g]overnment witnesses.
. . . The trial court must exercise its discretion, bearing
in mind the purpose of the evidence—to rebut, in appro-
priate circumstances, the appearance of special treat-
ment and improper motivation or bias.’’ United States
v. Melia, supra, 676. Notably, the previously discussed
authority does not hold that references to a witness
protection program are per se unduly prejudicial.
We believe Melia sets forth a persuasive approach to
balancing these considerations. In that case, the Fourth
Circuit was presented with the question of whether
extensive testimony detailing two key government wit-
nesses’ participation in the federal witness protection
program entitled the defendant to a new trial. Id., 674–
75. During the defendant’s trial on a charge of receiving
stolen goods, the government presented overwhelming
evidence concerning one of its key witness’ participa-
tion in the witness protection program, including testi-
mony from a number of federal agents involved with
the program. Id., 675–76. The court thus concluded that
the ‘‘dramatic’’ testimony regarding the witness protec-
tion program ‘‘was excessive—an abuse by the govern-
ment of its privilege to utilize this potentially volatile
evidence.’’ Id., 676. Because the result of the trial hinged
essentially on credibility, the court reasoned that ‘‘[i]t
[was] quite possible that the jury considered this
impressive testimony as positive evidence of [the defen-
dant’s] bad character and guilt’’ while also bolstering
the credibility of the government witnesses. Id.
In the present case, in weighing the probative value
of the relocation testimony against its prejudicial
impact on the defendant, we are mindful of the principle
that relevant evidence adverse to a party is always preju-
dicial. E.g., State v. Wilson, supra, 308 Conn. 429; see
also Chouinard v. Marjani, 21 Conn. App. 572, 576,
575 A.2d 238 (1990) (‘‘[a]ll evidence adverse to a party is,
to some degree, prejudicial’’). We, therefore, consider
whether the evidence was unfairly prejudicial to the
defendant. We are further guided by the principle that
‘‘the imprimatur of the [state] . . . may induce the jury
to trust the [state’s] judgment rather than its own view
of the evidence.’’ (Internal quotation marks omitted.)
State v. O’Brien-Veader, 318 Conn. 514, 547, 122 A.3d
555 (2015).
Here, the court restricted the state from explicitly
referencing the witness protection program, although
it allowed the state to question Algarin about her reloca-
tion at ‘‘state expense . . . .’’ As we noted previously,
Algarin testified that she, her four children, and Maldo-
nado ‘‘were relocated,’’ without referencing either the
witness protection program or the phrase, ‘‘at state
expense . . . .’’ In its summation to the jury, the state
argued that Algarin was ‘‘immediately relocated with
her four children’’ after she gave her statement to the
police and that she was ‘‘still in relocation, still in fear
of the three individuals.’’ The prejudice to the defendant
was evoked by the use of the passive voice—‘‘was relo-
cated,’’ which alluded to a third party, presumably the
state, as having facilitated Algarin’s relocation. See foot-
note 15 of this opinion. The state could have elicited
relevant testimony about her fear of retaliation without
implicating the state’s involvement by asking her why
she was no longer living in Waterbury and how many
times she had moved. The offending phrase, ‘‘was relo-
cated,’’ which we conclude was prejudicial, does not,
however, have the same unduly prejudicial impact as
‘‘witness protection program’’ or at ‘‘state expense.’’
The case of United States v. Deitz, 577 F.3d 672, 689
(6th Cir. 2009), cert. denied, 559 U.S. 984, 130 S. Ct.
1720, 176 L. Ed. 2d 201 (2010), is analogous to the
circumstances of the present case. In Deitz, the United
States Court of Appeals for the Sixth Circuit addressed
the question of whether evidence of various witnesses’
participation in the witness protection program was
prejudicial and had no relevance to a charge against
the defendant of conspiracy to possess and to distribute
drugs or to his involvement in a gang related shooting.
Id., 688–90. The court rejected that argument, holding
that the evidence ‘‘was relevant to the [gang’s] history
of violence and reputed practice of retaliating against
witnesses and informants.’’ Id., 689. In doing so, it
stressed its ‘‘disapproval of such references by a prose-
cutor when the need for protection is not obvious, rele-
vant, nor made an issue by defense counsel . . . .’’
(Internal quotation marks omitted.) Id. That the prose-
cutor neither used evidence of the witness protection
program to enhance the witnesses’ credibility nor
implied that the defendant was the source of threats to
the witnesses assuaged any risk of undue prejudice. Id.
Given this guidance, we are persuaded that the proba-
tive value of the relocation testimony was not out-
weighed by the prejudicial impact to the defendant.17
The court, therefore, did not abuse its discretion in
permitting the testimony. We emphasize that this is
so despite the court’s invitation to the prosecutor to
reference that Algarin was relocated ‘‘at state expense
. . . .’’ As the record indicates, the court believed that
the state was entitled to bring out how Algarin’s life
was drastically affected as a prophylactic measure in
anticipation that Algarin would be cross-examined on
her claim that she feared retaliation.18 To the extent
that the court believed that such evidence would in fact
be the subject of cross-examination, its emphasis on
allowing reference to ‘‘state expense’’ because it ‘‘cuts
both ways,’’ has merit. See United States v. Adamo, 742
F.2d 927, 944 (6th Cir. 1984) (evidence that witness is
participant in witness protection program and therefore
paid and protected by government ‘‘simultaneously
enhances and undermines a witness’ credibility’’), cert.
denied sub nom. Freeman v. United States, 469 U.S.
1193, 105 S. Ct. 971, 83 L. Ed. 2d 975 (1985). Therefore,
the better practice would have been for the court to
instruct the state not to implicate its involvement in
relocation efforts in any way on direct examination by
use of the passive voice or the phrase, ‘‘at state expense
. . . .’’ Unless and until further explication in rebuttal
is triggered by the defense in cross-examination, we
emphasize that the reference to state support is unnec-
essarily prejudicial to the defendant. Notwithstanding
these concerns, and given both the passive and infre-
quent references to the witness protection program, as
well as the absence of the prosecutor’s exploitation of
that evidence, we conclude that the court did not abuse
its discretion in allowing testimony that Algarin had
been relocated.19
II
The defendant next claims that the court improperly
(1) refused to admit three sexually explicit letters Alg-
arin wrote to him, (2) precluded questions during cross-
examination of Algarin regarding the termination of her
employment at Waterbury Hospital, and (3) restricted
inquiry into her birth control practices. The defendant
argues that, as a result of these adverse evidentiary
rulings, the court deprived him of his rights to present
a defense and to confrontation. In response, the state
asserts that the court properly exercised its discretion
in deciding all of the challenged evidentiary rulings.
The state further disagrees that these rulings implicated
the defendant’s constitutional rights. The state asserts
that, assuming any errors occurred with respect to the
court’s evidentiary rulings, such errors are neither con-
stitutional in nature nor harmful. We agree with the
state that the defendant’s claims of error are not consti-
tutional in nature and further conclude that any errors
were harmless.20
We begin by setting forth the relevant legal principles
governing our review. ‘‘Upon review of a trial court’s
decision, we will set aside an evidentiary ruling only
when there has been a clear abuse of discretion. . . .
The trial court has wide discretion in determining the
relevancy of evidence and the scope of cross-examina-
tion and [e]very reasonable presumption should be
made in favor of the correctness of the court’s ruling
in determining whether there has been an abuse of
discretion. . . . To establish an abuse of discretion,
[the defendant] must show that the restrictions imposed
upon [the] cross-examination were clearly prejudicial.’’
(Citations omitted; internal quotation marks omitted.)
State v. Peeler, 271 Conn. 338, 379, 857 A.2d 808 (2004),
cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d
110 (2005).
It is well established that ‘‘[t]he sixth amendment to
the [United States] constitution guarantees the right of
an accused in a criminal prosecution to confront the
witnesses against him. . . . The primary interest
secured by confrontation is the right to cross-examina-
tion . . . . Compliance with the constitutionally guar-
anteed right to cross-examination requires that the
defendant be allowed to present the jury with facts from
which it could appropriately draw inferences relating
to the witness’ reliability. . . .
‘‘However, [t]he [c]onfrontation [c]lause guarantees
only an opportunity for effective cross-examination, not
cross-examination that is effective in whatever way,
and to whatever extent, the defense might wish. . . .
Thus, [t]he confrontation clause does not . . . suspend
the rules of evidence to give the defendant the right
to engage in unrestricted cross-examination. . . . Only
relevant evidence may be elicited through cross-exami-
nation. . . . The court determines whether the evi-
dence sought on cross-examination is relevant by
determining whether that evidence renders the exis-
tence of [other facts] either certain or more probable.
. . . [Furthermore, the] trial court has wide discretion
to determine the relevancy of evidence and the scope
of cross-examination. Every reasonable presumption
should be made in favor of the correctness of the court’s
ruling in determining whether there has been an abuse
of discretion.’’ (Internal quotation marks omitted.) State
v. Leconte, 320 Conn. 500, 510–11, 131 A.3d 1132 (2016).
‘‘Every evidentiary ruling which denies a defendant
a line of inquiry to which he thinks he is entitled is not
constitutional error.’’ State v. Vitale, 197 Conn. 396, 403,
497 A.2d 956 (1985). Both this court and our Supreme
Court have stated that, when a defendant is afforded
wide latitude in cross-examining a state’s witness as to
credibility, claims of sixth amendment violations for
restrictions on cross-examination are indicia of ‘‘the
defendant [putting] a constitutional tag on a nonconsti-
tutional claim.’’ Id.; see also State v. Jordan, 329 Conn.
272, 287–88 n.14, 186 A.3d 1 (2018) (claim of improper
exclusion of evidence of victim’s convictions not consti-
tutional in nature when jury heard testimony that, if
credited, would support theory of self-defense); State
v. Durdek, 184 Conn. App. 492, 511 n.10, 195 A.3d 388
(noting that ‘‘multiple avenues of impeachment’’ defen-
dant was afforded in cross-examining ‘‘important state
witness’’ supported conclusion that claimed errors were
evidentiary, not constitutional, and defendant therefore
had burden of establishing harm), cert. denied, 330
Conn. 934, 194 A.3d 1197 (2018); cf. State v. Peeler,
supra, 271 Conn. 383–85 (trial court’s failure to admit
mental health records of state’s witness precluded rele-
vant line of inquiry into witness’ ability to perceive
events and was therefore of constitutional magnitude).
The effect of this determination necessarily dictates the
burden of proof, for if the court determines that the
claimed error is constitutional in nature, the state has
the burden of demonstrating harmlessness beyond a
reasonable doubt, whereas a converse determination
leaves the defendant with the burden to both prove an
abuse of discretion and to demonstrate harm. See, e.g.,
State v. Peeler, supra, 384.
A
For purposes of clarity in assessing each of the three
claimed errors, we believe it prudent in the first instance
to assess whether these claims are constitutional in
nature. Upon a careful review of the record, we con-
clude that they are not. The record plainly reveals that
the defendant was given ample opportunity to ‘‘expose
to the jury the facts from which [the] jurors, as the sole
triers of fact and credibility, could appropriately draw
inferences relating to the reliability of the witness.’’
State v. Leconte, supra, 320 Conn. 512. Indeed, the defen-
dant made numerous attempts to impeach Algarin’s
credibility with respect to inconsistent testimony she
had provided in other proceedings related to the murder
of Morales.21
Moreover, the court allowed the defendant to rigor-
ously cross-examine Algarin with respect to relevant
lines of inquiry, most importantly, her fear of the defen-
dant and his brothers. Algarin was extensively ques-
tioned on this issue by the defendant, including two of
the areas of inquiry complained of.22 For instance, the
defendant questioned Algarin about the intimate nature
of the letters she sent to the defendant, the endearing
letters she wrote to Santiago while he was incarcerated,
about her having routinely sent Santiago money while
he was incarcerated on an unrelated matter, and about
her having continued to have children with Santiago.
The defendant also sought to undermine her credibility
through other means, particularly through his introduc-
tion of testimony from a bail bondsman whom Algarin
had frequented as late as 2007 in her efforts to have
Santiago released on bond in connection with charges
that were unrelated to Morales’ murder. In addition,
defense counsel elicited testimony from Roden-Timko,
who, when asked if she had an impression of Algarin’s
truthfulness and honesty, responded that Algarin was
‘‘unreliable, if I had to sum it up in one word.’’ The
defendant also offered testimony from Norman A.
Pattis, an attorney who had represented Santiago in
another criminal matter. Pattis described Algarin and
Santiago’s relationship as loving and testified that he
had no concerns as to whether she was fearful of
Santiago.23
As the record demonstrates, the defendant was
afforded ‘‘multiple avenues of impeachment’’ in his
cross-examination of the state’s key witness. State v.
Durdek, supra, 184 Conn. App. 511 n.10; see also State
v. Vitale, supra, 197 Conn. 402–403 (noting that wide
latitude of cross-examination by defendant was sugges-
tive that claimed evidentiary errors were nonconstitu-
tional in nature). The defendant took full advantage
of this latitude and attempted to undermine Algarin’s
explanation that her fear of the defendant and Santiago
was the reason for her twelve year delay in providing
information to the police about Morales’ murder. We
therefore conclude that the defendant’s claims are non-
constitutional and are subject to the standard of review
governing claims of evidentiary impropriety.
B
Having determined that the defendant’s claims are
evidentiary in nature, we set forth the applicable stan-
dard of review as to each claimed evidentiary impropri-
ety. ‘‘[I]n order to establish reversible error . . . the
defendant must prove both an abuse of discretion and
a harm that resulted from such abuse.’’ State v. Kirsch,
263 Conn. 390, 412, 820 A.2d 236 (2003).
1
The defendant first claims that the court improperly
failed to admit three letters Algarin wrote to the defen-
dant. We agree, but, nevertheless, conclude the error
to be harmless.
The following additional facts are relevant to our
resolution of this claim. Prior to trial, the state filed a
motion in limine to preclude the defendant from intro-
ducing letters Algarin wrote to the defendant.24 The
court initially found the letters to be irrelevant and
therefore inadmissible, but underscored that they may
become relevant to counter Algarin’s assertion that she
was afraid of the defendant. During trial, the defendant
notified the court that he still intended to go into the
issue of Algarin’s having sent letters to him while he
was incarcerated and also expressed his intent to intro-
duce the letters into evidence. The defendant argued
that the letters served two purposes. First, the letters
undercut Algarin’s contention that the reason for her
twelve year delay in providing information to the police
was that she feared the defendant. Second, the letters
went to the defense theory that Algarin was motivated
by ill will toward the defendant for having informed
Santiago about the letters, which allegedly resulted in
the breakdown of Algarin and Santiago’s relationship.
The court decided against admitting the letters in their
entirety, finding that their probative value was far out-
weighed by unfair prejudice.25 The court, however, did
rule that the defendant could question Algarin about
the nature of the letters but could not recite language
that was salacious in nature.26
During her testimony, Algarin admitted that she had
sent three sexually explicit letters to the defendant
while he was incarcerated. She explained that the defen-
dant had called and requested the letters as an ‘‘insur-
ance policy’’ against her in the event she were ever to
testify against him. After agreeing to write the letters,
Algarin went to ‘‘one of those raunchy [Internet] sites,
and I wrote everything . . . I saw.’’ After Algarin’s testi-
mony regarding the letters, the defendant again sought
to admit the letters into evidence, and the court again
sustained the state’s objection to their introduction.27
We begin our legal analysis by reiterating that ‘‘[r]ele-
vant evidence may be excluded if its probative value
is outweighed by the danger of unfair prejudice . . . .’’
Conn. Code Evid. § 4-3. ‘‘In determining whether the
prejudicial effect of otherwise relevant evidence out-
weighs its probative value, we consider whether: (1)
. . . the facts offered may unduly arouse the [jurors’]
emotions, hostility or sympathy, (2) . . . the proof and
answering evidence it provokes may create a side issue
that will unduly distract the jury from the main issues,
(3) . . . the evidence offered and the counterproof will
consume an undue amount of time, and (4) . . . the
defendant, having no reasonable ground to anticipate
the evidence, is unfairly surprised and unprepared to
meet it.’’ (Internal quotation marks omitted.) State v.
Winfrey, 302 Conn. 195, 215–16, 24 A.3d 1218 (2011).
‘‘[T]he test for determining whether evidence is unduly
prejudicial is not whether it is damaging to the [party
against whom the evidence is offered] but whether it
will improperly arouse the emotions of the jur[ors].’’
(Internal quotation marks omitted.) State v. Sandoval,
263 Conn. 524, 544, 821 A.2d 247 (2003).
On hearing argument regarding the admissibility of
the letters, the court merely held that ‘‘[their] probative
value is outweighed by unfair prejudice.’’ The court
again reiterated its determination that due to their sala-
cious content, ‘‘the unfair prejudice outweighs [their]
probative value . . . .’’ The state has taken the position
that the court acted within its discretion ‘‘in finding
that the profane language used in the letters posed a
risk of undue prejudice . . . .’’ We disagree.
We acknowledge that evidence that is intimate or
embarrassing may, in certain circumstances, ‘‘give rise
to a real risk of unfair prejudice . . . .’’ State v. Sando-
val, supra, 263 Conn. 545; see id. (trial court improperly
determined that probative value of evidence of sexual
assault victim’s abortion was outweighed by danger
of unfair prejudice). We conclude, however, that such
circumstances did not exist in the present matter. The
state’s argument that the profane language was enough
to warrant exclusion is unavailing. Contrary to this
assertion, it is precisely the fact that the content of the
letters was sexually graphic and intimate, and thus bore
directly on Algarin’s purported reason for authoring the
letters. Whether that explanation was credible was a
matter for the jury to decide. See, e.g., State v. Davis,
283 Conn. 280, 331, 929 A.2d 278 (2007). We therefore
conclude that the court improperly refused to admit
the letters into evidence.28
Having resolved the first inquiry, we now turn to
whether the defendant has satisfied his burden to estab-
lish that the court’s error was harmful. We conclude
that he has not.
As discussed in part I B of this opinion, the principles
of law governing our review of harmlessness with
respect to nonconstitutional evidentiary claims is well
settled. See State v. Calabrese, 279 Conn. 393, 411–12,
902 A.2d 1044 (2006) (‘‘an appellate court may conclude
that a nonconstitutional error is harmless only when it
has a fair assurance that the error did not substantially
affect the verdict’’ (internal quotation marks omitted));
see also State v. Fernando V., 331 Conn. 201, 215, 202
A.3d 350 (2019) (applying same factors for harmless
error analysis to adjudicate claim that evidence was
improperly excluded).
First, although defense counsel could not recite ver-
batim the sexually explicit language in the letters, he
took full advantage of the court’s permission to provide
the gist of their graphic content. Moreover, defense
counsel was fully entitled to recite the affectionate lan-
guage contained therein. The following exchanges dur-
ing Algarin’s cross-examination underline the extent to
which the jury was exposed to the nature of the letters
and defense counsel’s efforts to cross-examine Algarin
on the veracity of her explanation for authoring them:
‘‘[Defense Counsel]: Okay. Do you remember sending
[the defendant] a letter in the jail?
‘‘[Algarin]: Yes.
‘‘[Defense Counsel]: Do you remember sending him
a series, three letters that were sexually explicit?
‘‘[Algarin]: Yes.
‘‘[Defense Counsel]: This is your husband’s
brother, correct?
‘‘[Algarin]: Yes. . . .
‘‘[Defense Counsel]: Do you remember saying I
love you?
‘‘[Algarin]: It says it there.
‘‘[Defense Counsel]: Is that your handwriting?
‘‘[Algarin]: Yeah.
***
‘‘[Defense Counsel]: You did say that you did send
sexually explicit letters to [the defendant], correct?
‘‘[Algarin]: Yes, sir.
‘‘[Defense Counsel]: And you sent at least three,
correct?
‘‘[Algarin]: I believe so.
‘‘[Defense Counsel]: Now, after you sent those letters
to [the defendant], isn’t it true that [Santiago], after
being with you for sixteen years, broke up with you
in 2009?
‘‘[Algarin]: That is not true.
***
‘‘[Defense Counsel]: Now, you said something about
the letter that you wrote to [the defendant], that you
went to a website?
‘‘[Algarin]: AOL.
‘‘[Defense Counsel]: To look up what?
‘‘[Algarin]: I went to an adult website, and I wrote
down what I saw.
‘‘[Defense Counsel]: What you saw on the adult
website?
‘‘[Algarin]: Yes, sir. . . .
‘‘[Algarin]: [The defendant] asked me to write B-Real.
‘‘[Defense Counsel]: Did he ask you in a letter? Did
he send you a letter saying correspond with me with
sexually explicit language and use the—
‘‘[Algarin]: He asked me—he needed something for
reassurance that I was not gonna snitch.
‘‘[Defense Counsel]: That’s a letter that he wrote to
you?
‘‘[Algarin]: No. That’s a conversation we had.
‘‘[Defense Counsel]: When did you have that conver-
sation?
‘‘[Algarin]: After [Bonilla] moved in and that article
came out in the newspaper . . . .
‘‘[Defense Counsel]: And had you used AOL to get
the verbiage out of—for that letter as well?
‘‘[Algarin]: Some of it, yeah.
‘‘[Defense Counsel]: Some of it?
‘‘[Algarin]: Yeah, ‘cause it’s not all sexual and not—
not all saying, you know. Some of it’s saying, hey, how
are you, and some of it’s very sexual.
‘‘[Defense Counsel]: Very sexual, correct?
‘‘[Algarin]: Yeah.
‘‘[Defense Counsel]: Okay. And you say that that was
requested at the behest of my client?
‘‘[Algarin]: Yes, ‘cause this showed up in [Santiago’s]
trial as insurance.’’
Not only did defense counsel elicit testimony from
Algarin in an attempt to undermine her supposed fear
of the defendant and Santiago, but he continued to
question Algarin about how her relationship with Santi-
ago ended.29 This phase of defense counsel’s cross-
examination was an unquestionable attempt to estab-
lish the defense theory that Algarin was motivated to
come forward in an effort to retaliate against the defen-
dant and Santiago for the ending of her relationship
with Santiago.
Importantly, the wide latitude afforded to defense
counsel in his cross-examination of Algarin—spanning
nearly one and one-half days—provided the jury with
other evidence that would have supported his theory
that Algarin was, indeed, not afraid of the defendant
or Santiago.30 In fact, Algarin’s two days of testimony
provided evidence that she (1) continued to send Santi-
ago money while he was incarcerated and during the
twelve year interval, (2) married Santiago in 2004, (3)
remained with him for ten years after Morales’ murder,
(4) received a reward for coming forward, (5) wrote
warm and loving letters to Santiago during his incarcer-
ation, and (6) continued to have children with Santiago.
Given the extensive opportunity that defense counsel
had to cross-examine Algarin, as well as his opportunity
to quote the nonsalacious details of the letters and the
extent of corroborating evidence to support Algarin’s
testimony, we are not persuaded that the error substan-
tially affected the verdict. See, e.g., State v. Jordan,
supra, 329 Conn. 287–88.
2
The defendant next claims that the court improperly
prevented him from examining Algarin about the termi-
nation of her employment at Waterbury Hospital.
According to the defendant, this area of inquiry was
important to further undermine Algarin’s supposed fear
of Santiago. We disagree and conclude that the court
acted well within its discretion in precluding questions
on this topic.
The following additional facts are relevant for the
resolution of this claim. During cross-examination,
defense counsel questioned Algarin about why her rela-
tionship with Santiago ended. Algarin explained that
she ended the relationship after Santiago ‘‘faked a
stroke’’ while he was in prison. See footnote 29 of this
opinion. When Algarin was asked if she felt badly for
Santiago in January, 2004, when he was admitted to
the psychiatric unit at Waterbury Hospital, the court
sustained the state’s objection to that area of inquiry.
The court found that the topic was a collateral issue
that was too remote in time.31
‘‘[I]t is well settled that [a] court . . . [may] exclude
. . . evidence [that] has only slight relevance due to
. . . its tendency to inject a collateral issue into the
trial. . . . An issue is collateral if it is not relevant to
a material issue in the case apart from its tendency to
contradict the witness. . . . This is so even when the
evidence involves untruthfulness and could be used to
impeach a witness’ credibility. . . . Whether a matter
is collateral also is a determination that lies within the
trial court’s sound discretion. . . . Undoubtedly our
case law permits a party to ask a witness about a collat-
eral matter, with the limitation that the party must
accept the witness’ response without having the oppor-
tunity to impeach that witness with extrinsic evidence.
. . . This does not mean, however, that the trial court
is obligated to permit such questioning. In considering
whether the court abused its discretion in this regard,
the question is not whether any one of us, had we
been sitting as the trial judge, would have exercised
our discretion differently. . . . Rather, our inquiry is
limited to whether the trial court’s ruling was arbitrary
or unreasonable.’’ (Citations omitted; emphasis in origi-
nal; internal quotation marks omitted.) State v. Annulli,
309 Conn. 482, 493–95, 71 A.3d 530 (2013).
Upon a careful review of the record, we agree with the
court that the reasons for the termination of Algarin’s
employment at Waterbury Hospital would have injected
a collateral issue into the trial. Accordingly, we con-
clude that the court did not abuse its discretion in
refusing to allow further inquiry.
3
The defendant’s final claim of evidentiary error con-
cerns the court’s restriction on his ability to cross-exam-
ine Algarin about her birth control regimen. We con-
clude that this claim has no merit.
The following additional facts are relevant to this
claim. During cross-examination of Algarin, defense
counsel asked why she continued to have children with
Santiago despite her fear of him. Algarin explained that
Santiago would often hide her birth control, and she
therefore had no choice but to continue having children
with him. When defense counsel pressed Algarin about
other manners in which she could have prevented hav-
ing children with Santiago, the court sustained the
state’s objection to continued inquiry on the topic. The
following day, the court again disallowed further inquiry
into Algarin’s birth control practices, finding the subject
matter irrelevant.32
We conclude that the court did not abuse its discre-
tion in preventing the defendant from further inquiring
into this subject area. Although the court allowed some
inquiry into the topic, it properly found that further
questioning was irrelevant, as it would have inappropri-
ately focused on a matter far too attenuated from the
material issues in the case. See, e.g., State v. Crespo,
114 Conn. App. 346, 363, 969 A.2d 231 (2009), aff’d, 303
Conn. 589, 35 A.3d 243 (2012). Accordingly, we conclude
that the court’s ruling was proper.
III
Last, we turn to the defendant’s claim of prosecutorial
impropriety. The defendant argues that the prosecutor
made numerous statements during the state’s rebuttal
closing argument to the jury that referred to facts not in
evidence. We disagree that any improprieties occurred.
We begin by setting forth the general principles under
which we review claims of prosecutorial impropriety.
‘‘[W]hen a defendant raises on appeal a claim that
improper remarks by the prosecutor deprived the defen-
dant of his constitutional right to a fair trial, the burden
is on the defendant to show, not only that the remarks
were improper, but also that, considered in light of the
whole trial, the improprieties were so egregious that
they amounted to a denial of due process.’’ State v.
Payne, 303 Conn. 538, 562–63, 34 A.3d 370 (2012). ‘‘In
analyzing whether the prosecutor’s comments deprived
the defendant of a fair trial, we generally determine,
first, whether the [prosecutor] committed any impropri-
ety and, second, whether the impropriety or improprie-
ties deprived the defendant of a fair trial.’’ (Internal
quotation marks omitted.) State v. Felix R., 319 Conn.
1, 9, 124 A.3d 871 (2015).
‘‘[P]rosecutorial [impropriety] of a constitutional
magnitude can occur in the course of closing argu-
ments. . . . In determining whether such [impropriety]
has occurred, the reviewing court must give due defer-
ence to the fact that [c]ounsel must be allowed a gener-
ous latitude in argument, as the limits of legitimate
argument and fair comment cannot be determined pre-
cisely by rule and line, and something must be allowed
for the zeal of counsel in the heat of argument.’’ (Internal
quotation marks omitted.) State v. Grant, 286 Conn.
499, 537, 944 A.2d 947, cert. denied, 555 U.S. 916, 129
S. Ct. 271, 172 L. Ed. 2d 200 (2008). With these principles
in mind, we now examine each of the challenged
remarks in this matter.
A
The defendant’s first claim of prosecutorial impropri-
ety concerns a remark that indicated that Algarin had
testified about Morales’ murder consistently at previous
proceedings. In his closing argument to the jury, defense
counsel underlined instances when Algarin admitted to
having testified inconsistently on a number of topics
during prior proceedings.33 Specifically, defense coun-
sel noted that, during a 2010 proceeding, Algarin testi-
fied that she had counted the money before depositing
it, thus contradicting her trial testimony that she had
not. During rebuttal argument, the prosecutor stated
that Algarin had testified on occasions prior to trial that
she did not count the money before making the ATM
deposits. After the jury was excused, the defendant
argued to the court that there was no evidence that
Algarin had testified that she did not count the money
during proceedings subsequent to 2010. The court first
noted that there was evidence before the jury that Alg-
arin had testified in approximately five proceedings
prior to trial.34 In addressing the objection, the court
concluded that a jury could properly draw an inference
that if there were subsequent instances of Algarin’s
testimony being inconsistent other than in the 2010
proceeding, ‘‘we would have heard about it . . . .’’ On
appeal, both parties submit that the court overruled the
objection, and we thus analyze the claim accordingly.
The state asserts that, contrary to the defendant’s posi-
tion, the evidence produced at trial provided a factual
basis to argue that Algarin had consistently testified at
previous proceedings that she did not count the money.
We agree.
In assessing whether this statement was improper,
we note that, ‘‘as the state’s advocate, a prosecutor may
argue the state’s case forcefully, [provided the argument
is] fair and based upon the facts in evidence and the
reasonable inferences to be drawn therefrom.’’ (Internal
quotation marks omitted.) State v. Luster, 279 Conn.
414, 428–29, 902 A.2d 636 (2006). A review of the record
indicates that the remark at issue here was an attempt
to have the jury draw an inference from the testimony
elicited from Algarin during trial. In particular, the infer-
ence that Algarin had testified consistently in previous
proceedings on this particular issue was a response to
the fact that defense counsel highlighted only a single
inconsistency, which occurred during the 2010 proceed-
ing. Importantly, one of the defendant’s own exhibits—
a transcript of Algarin’s testimony during an August
18, 2016 proceeding—contains testimony in which she
explicitly stated that it was not her, but Bonilla, who
counted the cash. This evidence provided yet another
factual basis for the argument that the defendant has
challenged. For these reasons, the court ruled that the
prosecutor’s statement provided a sufficient basis for
the inference that Algarin’s testimony was not inconsis-
tent in subsequent proceedings. We agree with the
court’s characterization and are therefore persuaded
that the prosecutor’s remark was based on ‘‘the reason-
able inferences to be drawn’’ from the evidence adduced
at trial. (Internal quotation marks omitted.) Id., 429.
B
The defendant next takes issue with the prosecutor’s
statement that ‘‘[the state’s attorney’s office] receive[s]
no benefit from [Algarin]’s . . . testimony.’’ The defen-
dant claims that this statement was both unsubstanti-
ated and untruthful. In response, the state asserts that
it was obvious from the context of the prosecutor’s
argument that he clearly meant to refer to evidence
that the state’s attorney’s office did not provide any
reward to Algarin. According to the state, the prosecu-
tor merely misspoke in reference to the reward money
that had been offered for information about Morales’
murder and disbursed by the governor’s office in this
case.
A fair reading of the record supports the state’s con-
tention. Importantly, the defendant excludes both the
preceding and subsequent sentences of the remark with
which he takes issue. The entire passage reads as fol-
lows: ‘‘You also heard that the police don’t give her
money. They’re not in charge of the reward. The state’s
attorney’s office isn’t in charge of the reward, either.
We receive no benefit from her test—testimony. That’s
decided by another entity.’’ It is clear from the entire
record that the prosecutor in this instance merely mis-
spoke. Providing further context to this statement is
the fact that Algarin, Crozier, and police Lieutenant
Michael Slavin all testified that the reward was not
disbursed by the police or the state’s attorney’s office.
In fact, the latter two testified that the governor’s office
was the only entity that authorized the reward. From
this testimony and the context of the statement at issue,
it is clear that the remark was ‘‘merely an inadvertent
misstatement. . . . Not every mistake by a prosecutor
in closing argument, not every misstep, amounts to an
impropriety.’’ (Citations omitted.) State v. Roberts, 158
Conn. App. 144, 150–52, 118 A.3d 631 (2015).
C
The defendant claims that the following statement
by the prosecutor was also improper: ‘‘What [Algarin]
was consistent about was brought out by [another pros-
ecutor in the case] that [Algarin]’s husband and [Bonilla]
went to the bank with her. It had to be that Monday
morning because she was always consistent about they
were with her at the bank to take the money out.’’
According to the defendant, there was no evidence that
Algarin had testified consistently to this effect in previ-
ous proceedings. However, the state argues that this
statement, although ambiguous, was not intended to
refer to previous proceedings. According to the state,
the intent of this statement was to indicate to the jury
that Algarin was consistent during the defendant’s trial
about who was with her when she made the withdrawal.
We recognize that ‘‘closing arguments of counsel
. . . are seldom carefully constructed in toto before
the event; improvisation frequently results in syntax
left imperfect and meaning less than crystal clear. While
these general observations in no way justify prosecu-
torial [impropriety], they do suggest that a court should
not lightly infer that a prosecutor intends an ambiguous
remark to have its most damaging meaning or that a
jury, sitting through lengthy exhortation, will draw that
meaning from the plethora of less damaging interpreta-
tions.’’ (Internal quotation marks omitted.) State v. Lus-
ter, supra, 279 Conn. 441.
The record supports the state’s argument that this
statement, although ambiguous, was not intended to
suggest that Algarin had testified consistently to this
fact at previous proceedings. Rather, during the defen-
dant’s trial, Algarin testified that Santiago and Bonilla
accompanied her to withdraw the cash, and she reiter-
ated Santiago’s presence on two other occasions during
trial to pinpoint the exact date of the withdrawal.
Because the prosecutor’s argument is supported by the
evidence, we decline to assume that it referenced Algar-
in’s testimony from other proceedings.
D
The defendant also asserts that the following state-
ment by the prosecutor was a reference to a fact not
in evidence: that Algarin had ‘‘testified at a previous
proceeding, and before you, [that] the reward had been
out there for years.’’ The state argues that the remark
has been taken out of context. We agree.
The following provides the proper context to the
statement of which the defendant complains: ‘‘[Algarin]
testified at a previous proceeding, and before you, [that]
the reward had been out there for years. She knew
about it. When she was questioned by the police about
that incident before she came clean that night in 2010,
she knew the reward was out there and she still didn’t
say anything. And her reasoning—she told you why
she didn’t say anything. She testified because it wasn’t
worth her life. The money wasn’t worth her life. She
stuck to the alibi story as she was told to do.’’
On review of the record, Algarin’s testimony reflects
that she knew of the reward as soon as it was offered
and was aware of it when she continued to provide
the police with the false alibi. As the state reasonably
argues, this statement, placed in its context, was a ‘‘fair,
though possibly inartful, summary of Algarin’s testi-
mony . . . .’’ The prosecutor’s remark—that Algarin
knew of the reward at the time of the prior proceed-
ings—was clearly an invitation for the jury to draw a
reasonable inference from the fact that she knew of
the reward before any proceedings had taken place.
See State v. Stevenson, 269 Conn. 563, 587–88, 849 A.2d
626 (2004) (prosecutor’s remarks in closing argument
that defendant cooperated with police to receive favor-
able plea deal was not mere speculation but was reason-
able inference for jury to draw from evidence adduced
at trial).
E
The defendant next takes issue with the prosecutor’s
remark that, when the defendant and Santiago were
incarcerated, Bonilla moved in with Algarin uninvited
‘‘to keep an eye on her.’’ The state contends that this
is a reasonable inference that can be drawn from the
evidence adduced at trial. A careful review of the record
clearly supports the state’s argument.
During the state’s redirect examination, Algarin testi-
fied that while the defendant and Santiago were incar-
cerated, a newspaper article reported that the investiga-
tion into Morales’ murder was being reopened. After
the article’s publication, Bonilla moved into Algarin’s
apartment uninvited. The fair—if not the only reason-
able—inference to extract from this series of events
was that Bonilla’s purpose was to watch over Algarin.
Although the court sustained the defendant’s objection
to Algarin speculating as to Bonilla’s purpose, the prose-
cutor was nevertheless entitled to argue this point to
the jury as a reasonable inference that could be drawn
from the evidence admitted at trial.
F
The defendant’s last claim of prosecutorial impropri-
ety concerns the prosecutor’s remark that ‘‘the next
time [Algarin saw the letters] is in a proceeding with
[Santiago] trying to discredit her. . . . They were try-
ing to cash in their insurance policy.’’ According to
the defendant, no evidence was produced at trial to
establish that Algarin had not seen the letters written
to the defendant until a prior proceeding or that those
letters were being used to discredit her at Santiago’s
trial. In response, the state asserts that this remark was
a proper summation of Algarin’s testimony. The record
substantiates the state’s position.
In her testimony, Algarin repeatedly stated that she
was requested to write the letters so that they could
be used against her if she ever were to testify against
the defendant or Santiago. By her own words, the letters
were ‘‘an insurance policy to discredit me.’’ When asked
by defense counsel whether the letters were requested
by the defendant, Algarin responded ‘‘[y]es, ‘cause this
showed up in [Santiago’s] trial as insurance.’’ The clear
import from her testimony was that (1) the letters were
written at the behest of Santiago and the defendant,
(2) the reason why she was asked to write the letters
was to provide the defendant and Santiago with means
to discredit her, and (3) Algarin was confronted with
the letters while testifying against Santiago at his trial.
Therefore, we conclude that the defendant’s claim is
without merit.
The judgment is affirmed.
In this opinion the other judges concurred.
1
On March 27, 2019, this court granted the defendant’s motion to dismiss
the state’s appeal from the trial court’s dismissal of the murder charge. In
the order of dismissal, this court permitted the parties to file supplemental
briefing on that issue, which would be addressed in the event that the
defendant were awarded a new trial. Because we affirm the judgment of
conviction, we need not reach that issue.
2
For clarity, we refer to Algarin-Santiago as Algarin.
3
Algarin testified that the two married so that she would not be able to
testify against Santiago.
4
Algarin testified that she recognized some of these checks as Social
Security checks.
5
Santiago was frustrated that Morales had been acquitted of shooting him
and was further enraged that his civil action against Morales was unlikely
to result in a large monetary reward.
6
The brothers decided to burn the checks after Algarin refused to deposit
them in her account.
7
Algarin testified that the defendant and Santiago were members of the
Latin Kings, while Bonilla was a member of ‘‘Netas.’’
8
Crozier had represented Algarin, the defendant, Santiago, and various
family members on numerous matters prior to the 1998 murder of Morales.
In fact, Crozier represented Santiago in his civil action against Morales.
Crozier also testified that Algarin attempted to get away from Santiago on
multiple occasions and that she stayed with Santiago because she feared
him. He also stated that had Algarin gone to the police with information
about the murder, ‘‘she would have definitely been murdered, based on who
the people were.’’
9
Algarin also wrote a series of letters to Santiago during his incarceration
for an unrelated matter. These letters did not contain the sexually graphic
content found in the letters she wrote to the defendant.
10
The court would eventually dismiss the murder charge on June 9, 2017.
11
In his brief, the defendant states, in part, that testimony of his and his
brothers’ gang affiliations was ‘‘irrelevant propensity’’ evidence. Although
the defendant asserts that the state ‘‘exploited [the evidence of the defen-
dant’s gang affiliation] and used it for propensity,’’ he concedes in his reply
brief that he is not claiming such evidence would be admissible only if it
fell within one of the exceptions set forth in § 4-5 of the Connecticut Code
of Evidence. We therefore do not address that issue.
12
The defendant further suggests that evidence of gang membership may
be admitted only if the crime charged is related to gang activity or is probative
of a defendant’s motive. We believe this argument to be unavailing. First,
neither of the two cases from our state cited by the defendant stands for
that proposition. See State v. Johnson, 82 Conn. App. 777, 783–84, 848 A.2d
526 (2004) (trial court did not abuse its discretion in admitting evidence of
gang membership to establish motive and that was further relevant to issues
in case); State v. Watts, 71 Conn. App. 27, 36–37, 800 A.2d 619 (2002) (trial
court did not abuse its discretion in admitting evidence of defendant’s gang
membership to prove motive). Second, as discussed, this court has implicitly
rejected that argument. See State v. Cruz, supra, 56 Conn. App. 771–72
(no abuse of discretion in admission of testimony as to defendant’s gang
membership to explain delay in reporting crime, despite crime having been
unrelated to gang activity).
13
We again note that, at the hearing on the motion in limine, the court
expressly stated that, ‘‘to the extent that the state is going to introduce
evidence, that is, Algarin . . . was afraid to disclose this because of the
defendant and/or [Santiago] was a member of the Latin Kings street gang;
that they are a group of people that have access to people in many places;
and that they have access to weapons, I would allow it just for that purpose.
I would not allow the introduction of that evidence to go to whether [the
defendant] did this crime, so I would do a limiting instruction regarding the
introduction of that evidence if that comes in as an explanation for her
delay in disclosing this.’’
14
This evidence became particularly relevant considering Algarin’s later
testimony. Specifically, Algarin subsequently admitted that she did not have
problems with the defendant and that the defendant had, in fact, intervened
on her behalf on multiple occasions when Santiago became physically abu-
sive. In light of this testimony, the defendant’s gang affiliations became
especially significant to explain why Algarin continued to fear the defendant
and his cohorts despite his history of acting on her behalf.
15
The state contends that at no point did it ‘‘[elicit] testimony that [Algarin]
was in the ‘witness protection program’ or that she had relocated at state
expense.’’ See General Statutes §§ 54-82t and 54-82u (codifying state’s protec-
tive services program for witnesses). According to the state, the only testi-
mony elicited from Algarin on this issue was that ‘‘she and her family
relocated outside of Connecticut multiple times’’ after she provided a state-
ment to the police. The state fails to appreciate the implications of its use
of the passive voice in its direct examination of Algarin, as the following
exchange illustrates:
‘‘[The Prosecutor]: After you gave the statement to the Waterbury police
in April of 2010, you never continued to live in Waterbury, did you?
‘‘[Algarin]: No.
‘‘[The Prosecutor]: And in fact, you were relocated out of this state with
your four children, correct?
‘‘[Algarin]: Yes.
‘‘[The Prosecutor]: And Mr. Maldonado was relocated as well, correct?
‘‘[Algarin]: Yes.
‘‘[The Prosecutor]: And you were relocated on more than one occasion,
correct?
‘‘[Algarin]: Yes.’’ (Emphasis added.)
The state’s posing of the question in the passive voice—that Algarin was
relocated—clearly connotes that a third party, presumably the state, was
actively involved in her relocation. Taking Algarin’s testimony in its entirety,
we conclude that evidence that Algarin was relocated alludes to her partici-
pation in the witness protection program.
16
According to the court, using the phrase ‘‘witness protection program’’
had a ‘‘more official sound to it.’’
17
To support his argument, the defendant heavily relies on State v. Harris,
521 N.W.2d 348 (Minn. 1994). However, unlike the circumstances here, the
prosecutor in that case ‘‘did precisely what the Melia court warned against’’
by making the witness’ participation in the witness protection program ‘‘an
important focus’’ of her direct examination. Id., 352. Accordingly, for the
same reasons that Melia is distinguishable here, so, too, is Harris.
18
We note that the record of the court’s deliberations on the relocation
testimony reveals some confusion between the court and defense counsel
regarding the court’s observation that the defendant could use the relocation
testimony in his favor. In particular, the court suggested that the defendant
could cross-examine the witness on the value of relocation benefits she
received as animating the witness’ motivation to lie. The record indicates
that, in response, defense counsel appears to confirm that he would elicit
testimony, for impeachment purposes, as to how much Algarin received in
state benefits as to relocation, as the following colloquy demonstrates:
‘‘The Court: All right. Remind me, what is it—is there an objection to
something at this point?
‘‘[Defense Counsel]: Yes. I think [the prosecutor is] trying to get into the
witness protection program. . . .
‘‘The Court: And what’s the objection to that evidence?
‘‘[Defense Counsel]: Because I think it’s unfair to the defendant.
‘‘The Court: Why?
‘‘[Defense Counsel]: Because it lends credibility to her story, which is a
story, I believe, at this point.
‘‘The Court: Well, the truth is—again, you’re subject to cross-examination.
I instruct the jury when they evaluate witnesses to determine whether they
have any motive to lie, whether they receive any benefit to, on one hand,
you can argue they receive the benefit because they’re relocated to another
state. On the other hand, the state could argue that it has caused extreme
disruption in their life, and so therefore, it’s a lack of motive to get involved
in this. So, again, I think it cuts both ways, but it’s certainly relevant. I don’t
see that it’s prejudicial to the defendant.
‘‘[Defense Counsel]: I suspect that it is unduly prejudicial to my client.
‘‘The Court: And why?
‘‘[Defense Counsel]: Because it emphasizes the fact that the government
agency, whether it’s a state or federal, believes she is in danger and have
paid money, however much money they paid for her care since the time of
this so-called disclosure.
‘‘The Court: Well there is no indication of how much they paid or anything
like that.
‘‘[Defense Counsel]: We’ll certainly get into it.
‘‘The Court: If [you do], then that’s your choice. But at this point for the
state to say, has your life been disrupted, obviously it shouldn’t be leading
questions. But what’s the result of this? I had to move. I mean, I don’t think
the state needs to say they’re in witness protection. That may be something
you raise and then the state can cover that on redirect. But I had to move
multiple times. Is there any reason that the state has to say, isn’t it true you
are in witness protection. I mean, I don’t see why that might be relevant.
‘‘[The Prosecutor]: It goes to her fear of retaliation, Judge. That’s why
she’s in that program.
‘‘The Court: Well, then you’re asking the jury to make a conclusion. If
you’re saying a finding that she’s in witness protection, show she’s in fear,
I mean, I think you can say that she had to relocate a number of times and
keep her identity, her relocation safe and things like that. I don’t think you
need to refer to the fact that she’s in the witness protection program, which
is your objection anyway.
‘‘[Defense Counsel]: Yes.
‘‘The Court: So, I mean, I think you can go into the details of how her
life has been impacted since this disclosure, the negative impacts. Obviously,
the defense is aware if they want to go into details as to how much money
is spent or what benefits she receives, sometimes the state could break the
ice and go into that, but if there’s an objection to—I guess the objection is
to the finding that you’re in the witness protection program. So, I think you
could—I don’t have a problem with the state saying at state expense, you
were relocated somewhere else. I think, I guess my main concern is the
use of the term witness protection program.
‘‘[Defense Counsel]: I think by saying at state expense, it’s the same thing.
‘‘The Court: Well, I disagree. If the state wants to soften the blow of an
argued motive to lie by saying that the state has paid for your expenses to
be relocated or whatever, I think that that’s a fair inquiry. To use the witness
protection program has a more official sound to it.
‘‘[Defense Counsel]: Your Honor, will the court entertain me; the question
simply is, did you leave town.
‘‘The Court: No. That’s not the question. The issue is, why would she
make this thing up. You’re going to say she’s making it up, the state is going
to say she’s not. The state is entitled to bring out how her life has changed
for the worse as a result of her testifying in this case or her providing
this information.’’
19
Even if it were error to admit the evidence, we conclude that it was
harmless error. E.g., State v. Grant, supra, 179 Conn. App. 90. The extent
to which the state utilized evidence of Algarin’s relocation was relatively
brief. In fact, references to her relocation occurred in only two instances
and were a small part of the state’s case. See State v. Tony M., 332 Conn.
810, 825–26, 213 A.3d 1128 (2019) (considering sparse references by state to
improperly admitted testimony in evaluation of whether error was harmless).
These sparse and infrequent references easily distinguish this matter from
Melia, in which extensive and detailed testimony of participation in the
witness protection program was highlighted by the government throughout
trial. See United States v. Melia, supra, 691 F.2d 675–76; see also United
States v. Martino, 648 F.2d 367, 388–89 (5th Cir. 1981) (single instance of
reference to witness’ participation in witness protection program was not
unfair exploitation), aff’d on rehearing en banc, 681 F.2d 952 (5th Cir. 1982),
aff’d sub nom. Russello v. United States, 464 U.S. 16, 104 S. Ct. 296, 78 L.
Ed. 2d 17 (1983), cert. denied, 456 U.S. 949, 102 S. Ct. 2020, 72 L. Ed. 2d
474 (1982), and cert. denied sub nom. Lazzara v. United States, 456 U.S.
943, 102 S. Ct. 2006, 72 L. Ed. 2d 465 (1982), and cert. denied sub nom.
Farina v. United States, 456 U.S. 943, 102 S. Ct. 2006, 72 L. Ed. 2d 465
(1982), and cert. denied sub nom. Russello v. United States, 456 U.S. 943,
102 S. Ct. 2006, 72 L. Ed. 2d 465 (1982), and cert. denied sub nom. Macaluso
v. United States, 456 U.S. 943, 102 S. Ct. 2007, 72 L. Ed. 2d 465 (1982), and
cert. denied sub nom. Scionti v. United States, 456 U.S. 943, 102 S. Ct. 2007,
72 L. Ed. 2d 465 (1982), and cert. denied sub nom. Morgado v. United States,
456 U.S. 943, 102 S. Ct. 2007, 72 L. Ed. 2d 465 (1982), and cert. denied sub
nom. Fisher v. United States, 456 U.S. 943, 102 S. Ct. 2007, 72 L. Ed. 2d 465
(1982), and cert. denied sub nom. Palermo v. United States, 456 U.S. 943,
102 S. Ct. 2007, 72 L. Ed. 2d 465 (1982); United States v. Caliendo, 910 F.2d
429, 435–36 (7th Cir. 1990) (three isolated references by government to
witness’ participation in witness protection program not reversible error).
The state additionally relied on other evidence to establish Algarin’s credi-
bility with respect to her fear of the defendant and Santiago, including
evidence of Santiago’s constant physical abuse of Algarin and her testimony
concerning her belief that the defendant and his brothers were affiliated
with nationwide gangs. This fear was further corroborated by Crozier and
Roden-Timko, thus rendering the testimony complained of cumulative. See,
e.g., State v. Gonzalez, 272 Conn. 515, 528–29, 864 A.2d 847 (2005) (improp-
erly admitted evidence that is merely cumulative does not require reversal
of judgment). We further note that the defendant made several attempts,
through a range of topics, to undermine Algarin’s alleged fear of the defen-
dant and Santiago.
Finally, there was additional evidence corroborating Algarin’s version of
events, which provided a sufficient basis for the jury to conclude that Algarin
was a credible witness. This included Morales’ coworker confirming that
on the night of Morales’ death, Morales had placed the proceeds—including
cash and checks—into a blue bank bag with a zipper along the top. Addition-
ally, Crozier testified to the various details Algarin provided him with respect
to the events leading to Morales’ death, including the defendant’s motive
for committing the murder. Roden-Timko also gave a statement to the police
in 2010, in which she reported that Algarin had told her that ‘‘[Santiago]
and some other people were involved in a shooting and that [Santiago] made
[Algarin] go with him to throw the gun into a river. . . . When [Algarin]
was telling me this story, she seemed scared for her life.’’
Therefore, we have a fair assurance that, even if the relocation testimony
was admitted in error, it did not substantially affect the verdict.
20
We note that, although the defendant couches these claims under both
his right to confrontation and his right to present a defense, the latter ‘‘has
roots in the confrontation clause [of the sixth amendment to the United
States constitution] and is applicable to the states through the due process
clause of the fourteenth amendment . . . .’’ (Citation omitted.) State v.
Santos, 318 Conn. 412, 422, 121 A.3d 697 (2015). For that reason, we analyze
this claim under the legal principles governing our review of alleged viola-
tions of the sixth amendment. See id., 422–25 (reviewing claims of alleged
violation of rights to present defense and to confrontation concerning trial
court’s restrictions on lines of questioning during cross-examination and
introduction of extrinsic evidence).
21
For instance, the defendant brought up instances in which Algarin had
testified previously that she came downstairs with Santiago after being
awakened, as opposed to Santiago yelling at her to come downstairs; how
many guns she had actually seen the defendant dismantling; whether she
recalled guns ever being present; that she previously testified that the money
she deposited in the bank was in bags, not envelopes; and whether she
could recall the specific day that she went with Santiago and Bonilla to
withdraw the money from the bank.
22
As discussed in part II B 1 of this opinion, the trial court allowed cross-
examination of Algarin with respect to the letters she wrote to the defendant.
The only restriction placed on this cross-examination concerned the particu-
larly salacious content. The court did not preclude any and all inquiries into
the content of the letters.
23
Pattis testified that he believed Algarin ‘‘seemed very much to care for
[Santiago]’’ and described their relationship as ‘‘loving . . . .’’ When asked
if he ever had concerns that Algarin was fearful of Santiago, Pattis responded:
‘‘No. None.’’
24
The content was particularly graphic in nature, especially with respect
to the description of salacious acts that the two had engaged in and hoped
to engage in. Aside from the graphic content, the letters also referenced
Algarin’s affection for the defendant with remarks such as, ‘‘[b]aby I love
you,’’ ‘‘your picture is the first thing I look at, ‘‘I knew no matter what I
could always depend on you,’’ ‘‘my only regret is not kissing you on Burton
Street,’’ and ‘‘I love you trust I wake up to you . . . .’’
25
The court also did not allow the defendant to introduce the letters into
evidence in redacted form.
26
The following exchange provides context for the specific language that
the defendant was allowed to recite during his cross-examination of Algarin:
‘‘The Court: —that I haven’t allowed in. It says [Bermudez] [b]aby, I
love you.
‘‘[Defense Counsel]: Yeah.
‘‘The Court: Okay. You can ask her about that.
‘‘[Defense Counsel]: Okay.
‘‘The Court: You don’t need to have the letter in. Didn’t you say, I love
you? What else in this letter is vital to the defense that I’m missing? I miss
you, baby. Didn’t you say, I miss you, baby?
‘‘[Defense Counsel]: Okay. Baby, your picture is the first thing I look at.
‘‘The Court: Go ahead, you can ask her that.
‘‘[Defense Counsel]: You look blazing.
‘‘The Court: You what?
‘‘[Defense Counsel]: You look blazing.
‘‘The Court: Whatever. . . . Those aren’t what I would view as salacious
comments. You can ask any question that goes to her affection toward
[the defendant].’’
27
In his closing argument to the jury, defense counsel discussed the three
letters, described them as ‘‘sexually explicit,’’ and labeled Algarin’s reasoning
for writing the letters ‘‘nonsense.’’
28
We also note that the appearance of some of the letters, with writing
filling the entirety of the page from left to right and top to bottom, was
relevant to the jury’s evaluation of the letters.
29
The following colloquy occurred between defense counsel and Algarin:
‘‘[Defense Counsel]: Now, after you sent those letters to [the defendant],
isn’t it true that [Santiago], after being with you for sixteen years, broke up
with you in 2009?
‘‘[Algarin]: That is not true.
‘‘[Defense Counsel]: When did he break up with you?
‘‘[Algarin]: I broke up with him because he faked a stroke in federal prison
and had someone call me at work to tell me that he was dying, and that’s
when I called the federal penitentiary and told them I do not want any more
contact with him, no phone call, no e-mail, no letter, no nothing.’’
Defense counsel also questioned Algarin about when her relationship with
Santiago ended:
‘‘[Defense Counsel]: [Santiago] broke up with you after the—seeing
those letters?
‘‘[Algarin]: [Santiago] and I broke up in 2008. This came out in 2010, so
unless there’s a time travel machine, there’s no way he would of known.’’
30
Not only was the defendant entitled to cross-examine Algarin with regard
to the letters she wrote to Santiago, but the court explicitly permitted the
defendant to move for the admission of those letters into evidence.
31
Outside the presence of the jury, the defendant explained that he was
seeking to cross-examine Algarin about the incident that led to the termina-
tion of her employment at Waterbury Hospital in 2004. When questioned by
the court to establish how this area of inquiry was relevant, the defendant
explained that in 2004, Algarin ‘‘became very upset—and disruptive on the
unit where she was working in . . . Waterbury Hospital because [Santiago]
was admitted to the psych ward at that time. She’s claiming that . . . she’s
terrified of this guy, she doesn’t want to be with him, but in 2004 she gets
so worked up, yelling at people, being rude to people at the . . . hospital,
and she’s dismissed for that reason . . . .’’
The court sustained the state’s objection to this area of inquiry, finding
that ‘‘[a]ny probative value is far outweighed by prejudicial impact. . . . It
is totally irrelevant. . . . There’s plenty of opportunity to probe her in the
area . . . the letters, which we don’t know what the dates are. She’s admit-
ted to sending money around—up to the time 2008. There’s plenty of opportu-
nity to do that. You don’t need an incident in 2004 where she’s fired for it.
. . . I don’t see how getting into whether her husband was in the psychiatric
ward and she got fired is relevant here, and I can’t imagine why you [ques-
tioned Algarin about it].’’
Later at trial and prior to his cross-examination of Crozier, the defendant
sought the court’s permission to ask Crozier about representing Algarin
with respect to the termination of her employment at Waterbury Hospital.
The court sustained the state’s objection to the area of inquiry, finding that
(1) it was irrelevant, (2) it did not go to truth and veracity, (3) even if it
was relevant, its probative value was outweighed by undue prejudice, and (4)
the defendant was already able to establish a positive relationship between
Algarin and Santiago.
32
Frustrated with the defendant’s persistence on the matter, the court
stated that ‘‘[w]e are not spending the afternoon talking about her birth
control practices . . . in 1998 or 2009 or whatever we’re talking about. . . .
We are not spending any more time on birth control, whether she was hiding
the birth control in the locker or in the bottom of her purse or wherever
she was hiding it. That’s it.’’
33
For instance, defense counsel noted that Algarin had admitted at trial
to testifying inconsistently about the number of guns she saw being disman-
tled in the kitchen, whether she actually saw the guns being dismantled,
the date she deposited the money in the bank, the number of days that had
passed before withdrawing the money from the bank, and whether she used
bags or envelopes to deposit the money.
34
During trial, defense counsel cross-examined Algarin at length about
her testimony in prior proceedings. On redirect examination, the state also
examined Algarin on these prior proceedings in an effort to rehabilitate her
credibility with respect to her consistent testimony, with Algarin further
acknowledging that she had testified in five proceedings prior to the defen-
dant’s trial.