State v. Santiago

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STATE OF CONNECTICUT v. VICTOR SANTIAGO
(AC 41228)
Sheldon, Prescott and Bear, Js.

Syllabus

Convicted of the crime of murder in connection with the shooting death of
the victim, the defendant appealed. Held:
1. The trial court did not abuse its discretion in admitting a certain written
statement by the defendant’s wife as a prior consistent statement under
the applicable provision (§ 6-11 [b] [1]) of the Connecticut Code of
Evidence; the written statement was offered following cross-examina-
tion of the defendant’s wife, during which her credibility was challenged
using multiple prior inconsistent statements, and, thus, it was admissible
to rehabilitate her credibility under § 6-11 (b) (1), which requires that the
credibility of a witness first be impeached by an inconsistent statement
before the consistent statement can be admitted as an exhibit.
2. The trial court did not abuse its discretion in admitting, as relevant
evidence, the testimony of the defendant’s wife concerning uncharged
misconduct involving specific instances of domestic violence by the
defendant: that evidence was probative to explain why the defendant’s
wife feared the defendant and waited twelve years before telling the
police about her knowledge of the victim’s murder, and was material to
corroborating crucial prosecution testimony, as it made it more probable
that a jury would credit the wife’s testimony explaining her reliance on
a fabricated alibi and her delay in reporting her knowledge of the victim’s
murder to the police; moreover, the probative value of the domestic
abuse testimony was not outweighed by unfair prejudice to the defendant
because it provided a context and reasonable explanation for the jury
to consider the actions of his wife, and the court made efforts to limit
the risk of unfair prejudice by admitting her description of incidents
that occurred at around the same point in time as the victim’s murder,
and limiting the testimony about incidents at other points in time by
ordering that she not go into detail about them.
3. The defendant’s claim that he was deprived of his due process right to
a fair trial as a result of prosecutorial improprieties was unavailing:
certain challenged questions of the prosecutor were not intended to
elicit inadmissible responses from the defendant’s wife, as they were
broad and open-ended, the defendant’s wife appeared to offer her
responses spontaneously and without prompting, and the prosecutor
did not go into further detail about certain incidents, but instead directly
acknowledged to the trial court that the state would limit its inquiries
to the specific matters that the court had allowed in its order; moreover,
the prosecutor’s references during rebuttal closing argument to specific
instances of domestic violence to which the defendant’s wife had testi-
fied were not improper, as the prosecutor relied exclusively on evidence
admitted during the trial in making her argument that the defendant
and his wife had an abusive relationship, the defendant’s unpreserved
claim that the prosecutor improperly failed to redact certain portions
of the statement of the defendant’s wife to the police was evidentiary
in nature and not reviewable, and the defendant having failed to establish
any prosecutorial improprieties, it was not necessary to address his
claim that this court should exercise its supervisory authority to award
him a new trial.
Argued October 16, 2018—officially released January 22, 2019

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,
and tried to the jury before K. Murphy, J.; verdict and
judgment of guilty of murder, from which the defendant
appealed. Affirmed.
Katherine C. Essington, assigned counsel, for the
appellant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom were Cynthia S. Serafini, senior assistant state’s
attorney, and, on the brief, Maureen Platt, state’s attor-
ney, and Donald F. Therkildsen, Jr., senior assistant
state’s attorney, for the appellee (state).
Opinion

BEAR, J. The defendant, Victor Santiago, appeals
from the judgment of conviction, rendered against him
after a jury trial on the charge of murder in violation
of General Statutes § 53a-54a. On appeal, the defendant
claims that the trial court erred in admitting into evi-
dence (1) his wife’s statement to the police as a prior
consistent statement and (2) her testimony of
uncharged misconduct relating to domestic violence
perpetrated by the defendant. Additionally, the defen-
dant claims that the prosecutor’s alleged violations of
the court’s order limiting the scope of uncharged mis-
conduct evidence constituted prosecutorial impropri-
ety that deprived him of his due process right to a fair
trial. Alternatively, the defendant claims that the alleged
prosecutorial impropriety warrants the exercise of this
court’s supervisory authority to award him a new trial,
based on similar conduct by the prosecutor in at least
one other trial. We affirm the judgment of conviction.
The jury reasonably could have found the following
facts from the evidence presented at trial.1 In the early
morning hours of April 11, 1998, Wilfred Morales was
shot and killed near his home on Middle Street in Water-
bury when he was returning there from a bar he owned
on Baldwin Street. Morales’ murder remained unsolved
for twelve years, until the defendant’s estranged wife,
Damaris Algarin-Santiago (Algarin), provided the police
with a written statement implicating the defendant and
his brothers, Thomas Bonilla and Noel Bermudez, in
the crime.
Algarin was the state’s chief witness in its prosecution
of the defendant. She and the defendant had been in a
relationship from 1993 until 2008, had married in 2004
so that she would not be able to testify against him
concerning Morales’ murder, and had four children
together. During Algarin’s relationship with the defen-
dant, he was extremely abusive toward her and, as a
result of this abuse, she had come to fear him.
On April 10, 1998, Bonilla was released from prison.
The defendant, Bonilla, and Bermudez went out that
night to celebrate Bonilla’s release, while Algarin stayed
home and later went to sleep. At approximately 3 a.m.
on April 11, 1998, Algarin was awakened by the defen-
dant and told to go downstairs. Upon entering the down-
stairs living room, she saw the defendant and Bonilla
sorting cash and checks on the coffee table. She also
saw a blue leather bank bag. Bermudez was in the
kitchen disassembling guns, and Bonilla threatened to
kill her if she said anything about what she was seeing
or hearing. Bermudez then told her that he had shot
Morales because he thought Morales had a gun and
because Morales had previously shot the defendant.
The defendant and his brothers proceeded to destroy
the evidence. They wiped the guns with baby oil as they
broke them down and placed them into bags. They also
burned the checks in the kitchen sink and burned the
bank bag and their clothes in a container in the back
of the house. Bonilla and Bermudez then went to a car
wash to clean any gun residue from the vehicle they
had used that night and, after they returned from the
car wash, the defendant took Algarin to dispose of the
guns which were placed in three separate bags. While
they were disposing of the guns, Algarin asked the
defendant about the murder. He told her that he had
been stalking Morales and planning to rob him because
he knew that Morales always carried cash on him at
the end of the night, that Bermudez and Bonilla had
waited in the bushes for Morales while he waited in
the car, and that Bermudez had shot Morales.
When they returned to the house, the defendant and
his brothers formulated an alibi. This alibi was that they
were all together at their mother’s house celebrating
Bonilla’s release from prison and sharing a Good Friday
meal. Algarin stuck to this story for the next twelve
years, despite repeated questioning by the Waterbury
police. In 2009, however, Algarin began dating Luis Mal-
donado, whom she told about Morales’ murder. In April,
2010, when Maldonado had some legal trouble of his
own, he told the police what Algarin had told him about
Morales’ murder. When confronted by the police, Alg-
arin finally admitted that the defendant and his brothers
had killed Morales, and she provided the police with a
written statement detailing everything she knew about
the murder.
The state thereafter charged the defendant with mur-
der, in violation of § 53a-54a (a), and felony murder, in
violation of General Statutes § 53a-54c. The jury found
the defendant guilty of murder and not guilty of felony
murder, and the court sentenced the defendant to sixty
years of incarceration. This appeal followed. Additional
facts will be set forth as necessary.
I
The defendant claims that the trial court erred in
admitting Algarin’s 2010 written statement to the police
into evidence as a prior consistent statement. We con-
clude that the court did not abuse its discretion in
admitting Algarin’s written statement to the police, as
redacted, into evidence for that purpose.
The following additional facts are relevant to this
claim. On direct examination, Algarin testified that on
April 9, 2010, she provided the written statement about
the 1998 murder to the Waterbury Police Department.
After reviewing the statement to refresh her recollec-
tion, Algarin described in detail the events of April 10
and 11, 1998, including statements that the defendant
had made to her regarding how the incident occurred,
the creation of the alibi, and the depositing of the money
that had been stolen from Morales. Algarin testified that
she had been questioned by police about the murder
three or four times prior to providing them with her
2010 written statement, and that on each occasion she
had made statements supporting the alibi created by
the defendant and his brothers. Algarin also testified
that, in the years following Morales’ murder, she had
told only three people about the murder: Ralph Crozier,
an attorney whom she told in 2002; her former
coworker; and Maldonado, whom she told in 2009. She
stated that she had made the written statement to the
police in 2010, and not sooner, because the defendant
at that time was incarcerated and she felt ‘‘free to speak
and free to live.’’ Additionally, Algarin testified that she
had been aware of a $50,000 reward that had been
offered for information as to Morales’ murder on the
previous occasions when she had been asked by the
police about the incident, but that she did not provide
the police with any information prior to 2010. She
stated, however, that she subsequently received, in
2010, approximately $28,000 of the reward for providing
the information to the police.
Defense counsel’s cross-examination included ques-
tions regarding Algarin’s motive for making the state-
ment in 2010. Specifically, defense counsel asked
Algarin if, prior to her 2010 statement, she had spoken
to the police three or four times about Morales’ murder.
Algarin admitted that on each occasion she had spoken
to police prior to 2010, she had told them a story that
was inconsistent with her trial testimony. Defense coun-
sel also asked Algarin if she told the police that she
needed to save Maldonado from getting hurt in jail
because he had been arrested that day, and she replied
in the affirmative. Algarin, however, denied that her
goal in making the statement was to get Maldonado
out of jail. The court subsequently asked Algarin about
when she applied for the reward she received. Algarin
testified that Crozier, her attorney at the time, applied
for the reward some time after she gave the statement
in 2010. When asked again by defense counsel as to
when she received the award, Algarin testified that she
did not receive the award until after she made the state-
ment and had been relocated to another state.
The state offered Algarin’s statement to the police
into evidence as a prior consistent statement. Defense
counsel objected on the grounds that Algarin had not
been impeached by an inconsistent statement and that
a suggestion of bias, interest, or motive to fabricate was
present at the time Algarin made the written statement.
After oral argument, the court, relying on this court’s
ruling in State v. Rose, 132 Conn. App. 563, 33 A.3d 765
(2011), cert. denied, 303 Conn. 934, 36 A.3d 692 (2012),
decided to admit Algarin’s statement to the police with
certain redactions. The court permitted the state to read
the redacted statement to the jury. Prior to the reading
of the statement, the court provided the jury with a
limiting instruction, stating that the purpose of its intro-
duction was to show its consistency with Algarin’s in-
court testimony and that the jury should consider the
statement only as it related to her credibility and not
as substantive evidence.
On appeal, the defendant claims that Algarin’s state-
ment was not admissible as a prior consistent statement
because she did not make the statement prior to when
her bias, interest, or motive to fabricate arose. Specifi-
cally, the defendant argues that Algarin’s motive to give
the statement arose (1) when Maldonado was arrested
and incarcerated, and she became concerned for his
safety in jail, and (2) in the years before the statement
was made when she became aware of the $50,000
reward being offered for information about the 1998
murder.
We first set forth the applicable standard of review.
‘‘To the extent [that] a trial court’s admission of evi-
dence is based on an interpretation of the Code of
Evidence, our standard of review is plenary. For exam-
ple, whether a challenged statement properly may be
classified as hearsay and whether a hearsay exception
properly is identified are legal questions demanding
plenary review. . . . We review the trial court’s deci-
sion to admit evidence, if premised on a correct view of
the law, however, for an abuse of discretion.’’ (Internal
quotation marks omitted.) State v. Griswold, 160 Conn.
App. 528, 536, 127 A.3d 189, cert. denied, 320 Conn. 907,
128 A.3d 952 (2015). As such, ‘‘evidentiary rulings will
be overturned on appeal only where there was an abuse
of discretion and a showing by the defendant of substan-
tial prejudice or injustice. . . . This deferential stan-
dard is applicable to evidentiary questions involving
hearsay, generally . . . and to questions relating to
prior consistent statements, specifically.’’ (Emphasis
added; internal quotation marks omitted.) State v.
Henry D., 173 Conn. App. 265, 274, 163 A.3d 642, cert.
denied, 326 Conn. 912, 166 A.3d 635 (2017).
‘‘The general rule is that a party cannot strengthen
the testimony of his own witness by showing that he
has made previous statements to the same effect as his
testimony . . . .’’ (Internal quotation marks omitted.)
State v. McCarthy, 179 Conn. 1, 18, 425 A.2d 924 (1979);
State v. Albino, 130 Conn. App. 745, 773, 24 A.3d 602
(2011) (‘‘[e]vidence that bolsters a witness’ credibility
before it has come under attack is prohibited’’ [internal
quotation marks omitted]), aff’d, 312 Conn. 763, 97 A.3d
478 (2014). ‘‘Although the general rule is that prior con-
sistent statements of a witness are inadmissible, we
have recognized exceptions in certain circumstances.
. . . Section 6-11 (b) of the Connecticut Code of Evi-
dence sets forth three limited situations in which the
prior consistent statement of a witness is admissible:
If the credibility of a witness is impeached by (1) a
prior inconsistent statement of the witness, (2) a sug-
gestion of bias, interest or improper motive that was
not present at the time the witness made the prior
consistent statement, or (3) a suggestion of recent con-
trivance . . . .’’ (Citation omitted; internal quotation
marks omitted.) State v. Henry D., supra, 173 Conn.
App. 275. The commentary to § 6-11 (b) further indi-
cates in relevant part that ‘‘[c]ommon law permits the
use of a witness’ prior statement consistent with the
witness’ in-court testimony to rehabilitate the witness’
credibility after it has been impeached . . . .’’ Conn.
Code Evid. § 6-11 (b), commentary.
In the present case, defense counsel questioned Alg-
arin on cross-examination regarding her 2010 statement
to the police. Indeed, the defendant stated in his brief
to this court that the ‘‘main focus in cross-examination
was to suggest that Algarin made up the story about her
husband and his brothers’ involvement in the murder
because she was concerned about Maldonado’s safety
in jail and wanted to get favorable treatment for him
in his criminal case.’’ Defense counsel also questioned
Algarin regarding the reward for which she applied, and
suggested that she may have fabricated her testimony
in order to qualify for the reward.
The defendant asserts that the trial court’s reliance
on State v. Rose, supra, 132 Conn. App. 563, was mis-
placed, and distinguishes that decision from the present
case by arguing that Algarin’s motive to lie about the
defendant’s involvement in Morales’ murder arose at
the time of Maldonado’s arrest, which was prior to her
providing her written statement to the police. There-
fore, the defendant claims, because Maldonado was
already arrested prior to Algarin providing her state-
ment to police, her alleged motive to fabricate in order
to secure Maldonado’s safety from the defendant, who
was also incarcerated, existed at the time she made
the statement.
Additionally, the defendant asserts that Algarin’s pur-
ported motive to fabricate arose when she became
aware of the $50,000 reward for information regarding
Morales’ murder, several years before she gave her 2010
statement to the police. Algarin testified that she was
aware of the reward prior to 2010, when she was ques-
tioned by the police about the night of Morales’ murder.
Algarin’s motive to fabricate for the purposes of
obtaining the reward, thus, existed well before she pro-
vided her 2010 statement. Although Algarin testified
during cross-examination and subsequent questioning
by the court that she did not apply for or receive the
reward until after she provided the statement in 2010,
we find this timing to be immaterial. For purposes of
the application of § 6-11 (b) (2) of the Connecticut Code
of Evidence, what matters is when she became aware
of the reward. Accordingly, we conclude that Algarin’s
2010 written statement to police was not properly
admitted as an exhibit pursuant to the § 6-11 (b) (2)
exception requiring that the credibility of a witness
first be impeached by a suggestion of bias, interest, or
improper motive that was not present at the time the
witness made the prior consistent statement before the
consistent statement can be admitted as an exhibit.
Although we conclude that the court did not properly
admit Algarin’s 2010 statement as a prior consistent
statement under § 6-11 (b) (2) of the Connecticut Code
of Evidence, we conclude that the statement was admis-
sible under the § 6-11 (b) (1) exception requiring that
the credibility of a witness first be impeached by an
inconsistent statement of the witness before the consis-
tent statement can be admitted as an exhibit. We may
affirm an erroneous evidentiary ruling if the evidence
is admissible on other grounds. See State v. Vines, 71
Conn. App. 359, 366–67, 801 A.2d 918 (‘‘even if the trial
court did not engage in the proper inquiry as to the
admissibility of evidence, we are mindful of our author-
ity to affirm a judgment of a trial court on a dispositive
alternate ground for which there is support in the trial
court record’’ [internal quotation marks omitted]), cert.
denied, 261 Conn. 939, 808 A.2d 1134 (2002). ‘‘Under
appropriate circumstances, a prior statement, consis-
tent with a witness’ testimony, may be admitted after
introduction of an inconsistent statement. . . . There
is an important qualification appended to this rule:
When a prior consistent statement is received . . .
under the principle we have applied, it is admitted to
affect credibility only, not to establish the truth of the
statement.’’ (Citations omitted; internal quotation
marks omitted.) State v. McCarthy, supra, 179 Conn. 18.
In the present case, Algarin’s 2010 written statement
was admitted after her credibility had been challenged
during cross-examination. Defense counsel challenged
Algarin’s credibility by questioning her regarding how
many times she had given the same alibi to police before
deciding to come forward with different information in
2010. Defense counsel’s reference to the inconsisten-
cies between her testimony and the information she
provided to police three or four times prior to her 2010
statement warranted, in the discretion of the court, the
introduction of her prior consistent written statement
to rehabilitate her credibility. See id., 18–21; State v.
Talton, 63 Conn. App. 851, 855, 859–60, 779 A.2d 166,
cert. denied, 258 Conn. 907, 782 A.2d 1250 (2001). The
court ruled that the statement was admissible not for
the truth of the matters set forth in it, but solely for
the jury to assess Algarin’s credibility. See Marsh v.
Washburn, 11 Conn. App. 447, 462, 528 A.2d 382 (1987)
(‘‘A trial court, in its discretion, may admit a prior con-
sistent statement to rehabilitate a witness impeached
on the basis of his own prior inconsistent statements.
. . . It is incumbent upon the trial court, however, to
instruct the jury that such statement is to be considered
solely on the issue of the witness’ credibility.’’ [Cita-
tions omitted.]).
Applying the standard that ‘‘evidentiary rulings will
be overturned on appeal only where there was an abuse
of discretion and a showing by the defendant of substan-
tial prejudice or injustice,’’ and noting that such stan-
dard is applicable to ‘‘questions relating to prior
consistent statements, specifically’’; (internal quotation
marks omitted) State v. Henry D., supra, 173 Conn.
App. 274; we conclude that the court did not abuse its
discretion in admitting Algarin’s 2010 written statement
as a prior consistent statement following cross-exami-
nation exposing the lies contained in her prior inconsis-
tent statements to the police.
II
The defendant next claims that the trial court erred in
admitting Algarin’s testimony of uncharged misconduct
involving specific instances of domestic violence perpe-
trated by the defendant against her. Specifically, the
defendant argues that evidence of his uncharged mis-
conduct was not relevant to this case and that, even if
it was relevant, it should not have been admitted
because it was more prejudicial than probative.
The following additional facts are relevant to this
claim. Prior to trial, the defendant filed a motion in
limine, arguing that his prior uncharged conduct involv-
ing domestic violence was not relevant and that its
probative value was outweighed by its prejudicial
effect. The state filed an opposition to the motion in
limine, arguing that the defendant’s motion was without
merit because it mistakenly claimed that the uncharged
conduct evidence was being offered to show guilt by
association.2 During direct examination, Algarin testi-
fied that her relationship with the defendant was
‘‘extremely abusive . . . [p]hysically, psychologically,
emotionally, financially.’’ As to the defendant’s physical
abuse, Algarin testified that ‘‘he pistol-whipped, he
stabbed me, broke my nose.’’ After describing the spe-
cific instances in which the defendant broke her nose
and pistol-whipped her, Algarin testified that the abuse
began early in their relationship, and occurred every
day. She further testified that when she called the police
to report an act of abuse, the defendant ‘‘hit [her] over
the head with the phone.’’
Algarin also testified that the defendant always made
threats against her and her family and that she did not
report her knowledge about Morales’ murder to the
police prior to 2010 because ‘‘[t]here was always some-
one around from his family,’’ which concerned her
‘‘[b]ecause they’re dangerous people.’’ Specifically, Alg-
arin stated that the defendant and one of his brothers
were in a gang called the Latin Kings and that another
brother was in a gang referred to as ‘‘NETA.’’
Immediately following Algarin’s direct examination,
the court instructed the jury on its use of the prior
misconduct evidence. The court stated that such evi-
dence was ‘‘not admitted to prove the bad character,
propensity, or criminal tendencies of the defendant,’’
but rather, was ‘‘admitted solely to show and establish
fear on the part of the witness and one of the reasons
for not reporting her observations of April 11, 1998.’’
The court further stated that the jury ‘‘may consider
such evidence if [it] believe[s] it and further find[s] that
it logically and rationally and conclusively supports the
issue, but only as it may bear on the issue of fear on
the part of the witness, as being one of the reasons
[for] her not reporting her observations of April 11,
1998.’’ The court later repeated this same instruction
in its final charge to the jury.
‘‘Relevant evidence is evidence that has a logical ten-
dency to aid the trier in the determination of an issue.
. . . Evidence is relevant if it tends to make the exis-
tence or nonexistence of any other fact more probable
or less probable than it would be without such evidence.
. . . 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 to support a relevant fact even to a slight degree,
so long as it is not prejudicial or merely cumulative.’’
(Emphasis in original; internal quotation marks omit-
ted.) State v. Small, 180 Conn. App. 674, 683, 184 A.3d
816, cert. denied, 328 Conn. 938, 184 A.3d 268 (2018).
Section 4-3 of the Connecticut Code of Evidence pro-
vides in relevant part that ‘‘[r]elevant evidence may be
excluded if its probative value is outweighed by the
danger of unfair prejudice . . . .’’ ‘‘[Our Supreme
Court] has previously enumerated situations in which
the potential prejudicial effect of relevant evidence
would counsel its exclusion. Evidence should be
excluded as unduly prejudicial: (1) where it may unnec-
essarily arouse the jury’s emotions, hostility or sympa-
thy; (2) where it may create distracting side issues; (3)
where the evidence and counterproof will consume an
inordinate amount of time; and (4) where one party
is unfairly surprised and unprepared to meet it. . . .
Furthermore, with respect to a trial court’s ruling on a
prejudicial-probative balancing test, [w]e will indulge
in every reasonable presumption in favor of the trial
court’s ruling.’’ (Citation omitted; internal quotation
marks omitted.) State v. Estrella J.C., 169 Conn. App.
56, 99, 148 A.3d 594 (2016).
Evidence of prior misconduct is generally not admis-
sible to prove bad character or a propensity to engage
in criminal activities. Conn. Code. Evid. § 4-5 (a). Sec-
tion 4-5 (c) of the Connecticut Code of Evidence, how-
ever, provides that ‘‘[e]vidence of other crimes, wrongs
or acts of a person is admissible for purposes other
than those specified in subsection (a) [of § 4-5], such
as to prove intent, identity, malice, motive, common
plan or scheme, absence of mistake or accident, knowl-
edge, a system of criminal activity, or an element of
the crime, or to corroborate crucial prosecution testi-
mony.’’ (Emphasis added.) In determining the admissi-
bility of prior bad acts to corroborate crucial
prosecution testimony, our Supreme Court has
‘‘required the proponent of the evidence to demonstrate
a close relationship between the proffered evidence and
the evidence to be corroborated. Other crimes evidence,
therefore, is only admissible for corroborative pur-
poses, if the corroboration is direct and the matter
corroborated is significant. . . . Under this test, signif-
icant evidence is defined as important, as opposed to
trivial, evidence. . . . Direct corroborating evidence is
that which is not wholly disconnected, remote, or collat-
eral to the matter corroborated. . . . The requirement
that the corroborating evidence be direct is necessary in
order to ensure that the link between the corroborative
evidence and the facts to be inferred therefrom is not
too attenuated or nonprobative; otherwise, the evidence
might unfairly reflect upon the defendant’s propensity
to commit crimes.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Mooney, 218 Conn. 85,
129, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct.
330, 116 L. Ed. 2d 270 (1991).3
The commentary to § 4-5 (c) of the Connecticut Code
of Evidence further provides in relevant part that ‘‘the
purposes enumerated in subsection (c) for which other
crimes, wrongs or acts evidence may be admitted are
intended to be illustrative rather than exhaustive. Nei-
ther subsection (a) nor subsection (c) precludes a court
from recognizing other appropriate purposes for which
other crimes, wrongs or acts evidence may be admitted,
provided the evidence is not introduced to prove a
person’s bad character or criminal tendencies, and the
probative value of its admission is not outweighed by
any of the Section 4-3 balancing factors.’’ As such, evi-
dence of prior bad acts has also been admitted to reha-
bilitate a state’s key witness. See State v. Estrella J.C.,
supra, 169 Conn. App. 96–98.4
‘‘The test for determining whether evidence is unduly
prejudicial is not whether it is damaging to the defen-
dant but whether it will improperly arouse the emotions
of the jury. . . . Reversal is required only whe[n] an
abuse of discretion is manifest or whe[n] injustice
appears to have been done.’’ (Internal quotation marks
omitted.) State v. Small, supra, 180 Conn. App. 683.
In the present case, the evidence of the uncharged
misconduct was probative to explain why Algarin
feared the defendant and waited twelve years before
telling the police about her knowledge of Morales’ mur-
der. The state argued that admitting evidence of severe
domestic abuse was material to corroborating crucial
prosecution testimony. In its ruling admitting such evi-
dence, the court relied on State v. Yusuf, 70 Conn. App.
594, 800 A.2d 590, cert. denied, 261 Conn. 921, 806 A.2d
1064 (2002), noting ‘‘that a delay in disclosing is a signifi-
cant event that the state must have some type of expla-
nation for. So it’s an important—it’s extremely
important if the state has any explanation for a delay
in reporting.’’
The defendant argues that the relevance of Algarin’s
domestic violence testimony was contingent on the
state calling Dr. Evan Stark, an expert on battered
woman syndrome. The defendant, therefore, asserts
that the court’s reliance on Yusuf in its ruling was
misplaced because, unlike in Yusuf, there was no testi-
mony in the present case about battered woman syn-
drome. This court’s ruling in Yusuf, however, does not
require expert testimony about battered woman syn-
drome as a predicate to admitting evidence concerning
domestic violence. Rather, in Yusuf, this court found
that such testimony was relevant where it served to
corroborate crucial prosecution testimony. See id., 608–
609. In the present case, by parallel logic, Algarin’s
domestic violence testimony served to explain her rea-
son for not providing, over an approximately twelve
year period, her knowledge about Morales’ murder.
Because Algarin’s testimony about the domestic vio-
lence directed against her made it more probable that
a jury would credit her testimony explaining her reli-
ance on the fabricated alibi and her delay in reporting
her knowledge to the police, we conclude that the court
did not abuse its discretion in determining that the
testimony was relevant.
We also conclude that the court did not abuse its
discretion in finding that the probative value of Algarin’s
domestic abuse testimony was not outweighed by unfair
prejudice to the defendant. In the present case, the
probative value of Algarin’s testimony regarding the
uncharged misconduct was strong because it assisted
the jury in understanding why she repeated the fabri-
cated alibi to the police and did not disclose information
to the police pertaining to Morales’ murder for approxi-
mately twelve years. Algarin’s testimony that she feared
the defendant and, thus, did not feel safe offering infor-
mation on Morales’ murder to police, provided a context
and reasonable explanation for the jury to consider her
actions. Moreover, the court made efforts to limit the
risk of unfair prejudice to the defendant. The court
admitted Algarin’s description of the broken nose inci-
dent and the pistol-whipping because they occurred at
around the same time as Morales’ murder. The court
also limited Algarin’s testimony about a number of other
incidents of violence over the years, ordering that she
not go into detail about them. We, therefore, are not
persuaded that the court abused its discretion in admit-
ting Algarin’s testimony, as limited, concerning the inci-
dents of domestic violence, in order to explain to the
jury the approximately twelve year delay in her disclo-
sure to the police of her knowledge of the murder of
Morales.
III
Finally, the defendant claims that the prosecutor
repeatedly violated the court’s order concerning evi-
dence of specific instances of domestic violence and,
thus, deprived him of his due process right to a fair trial.
In particular, the defendant claims that the prosecutor
improperly (1) elicited inadmissible responses from
Algarin during direct examination, which she later
referred to in her rebuttal closing argument, (2) failed
to redact Algarin’s statement to the police as the court
had ordered, and (3) referred to several inadmissible
domestic violence incidents in her rebuttal closing
argument.
The defendant concedes that he failed to properly
preserve these claims at trial. ‘‘It is well established law
. . . that a defendant who fails to preserve claims of
prosecutorial [impropriety] need not seek to prevail
under the specific requirements of State v. Golding, 213
Conn. 233, 239–40, 567 A.2d 823 (1989), and, similarly,
it is unnecessary for a reviewing court to apply the
four-pronged Golding test.’’ (Internal quotation marks
omitted.) State v. Franklin, 175 Conn. App. 22, 48, 166
A.3d 24, cert. denied, 327 Conn. 961, 172 A.3d 801 (2017).
This rule, however, ‘‘does not pertain to mere eviden-
tiary claims masquerading as constitutional violations.’’
(Internal quotation marks omitted.) State v. Small,
supra, 180 Conn. App. 687.
‘‘The principles governing our review of the defen-
dant’s claims are well established. In analyzing claims
of prosecutorial impropriety, we engage in a two step
analytical process. . . . The two steps are separate and
distinct. . . . We first examine whether prosecutorial
impropriety occurred. . . . Second, if an impropriety
exists, we then examine whether it deprived the defen-
dant of his due process right to a fair trial. . . . In other
words, an impropriety is an impropriety, regardless of
its ultimate effect on the fairness of the trial. Whether
that impropriety was harmful and thus caused or con-
tributed to a due process violation involves a separate
and distinct inquiry.’’ (Emphasis added; internal quota-
tion marks omitted.) State v. Campbell, 328 Conn. 444,
541–42, 180 A.3d 882 (2018). Moreover, ‘‘[w]hen a defen-
dant raises on appeal a claim that improper remarks
by the prosecutor deprived the defendant of his consti-
tutional right to a fair trial, the burden is on the defen-
dant to show . . . that the remarks were improper
. . . .’’ (Internal quotation marks omitted.) State v.
Turner, 181 Conn. App. 535, 557, 187 A.3d 454, cert.
granted, 330 Conn. 909, 193 A.3d 48 (2018).
A
The defendant first claims that ‘‘it can reasonably
be inferred that the prosecutor, partly based on her
particular track record, did not intend to comply with
the judge’s ruling limiting [Algarin’s] testimony about
specific claimed instances of domestic violence’’5
because, even after the court’s ruling, the prosecutor
asked questions on direct examination that she should
have known would elicit inadmissible responses from
Algarin. (Footnote omitted.) The defendant identifies
two exchanges that allegedly support his position:
‘‘[The Prosecutor]: And when you said that [the rela-
tionship] was physically abusive, what do you mean?
‘‘[Algarin]: Well, he pistol-whipped, he stabbed me,
broke my nose.
***
‘‘[The Prosecutor]: And was there abuse prior to you
living with [the defendant]?
‘‘[Algarin]: Yeah. He pulled my hair.’’
The defendant objected to the first exchange, and
the court ruled that it did not violate its previous order
on the admissibility of specific instances of domestic
violence. In particular, the court stated: ‘‘[The response]
came out as sort of a full stream. . . . I didn’t think it
violated my previous order in this regard. . . . I did
indicate pistol-whipping was fine, broken nose was fine,
I did not write down stabbing as an—an option. . . .
It certainly is relevant for reasons I mentioned before.
I will provide a limiting instruction, I guess, at this time.’’
The court then asked the prosecution whether it was
going to go into specific details on the stabbing. The
prosecutor replied that she was only going to ask about
details of the broken nose and pistol-whipping inci-
dents, pursuant to the court’s order. The defendant did
not object to the second exchange.
We cannot conclude on the basis of the record before
us that the prosecutor’s questions were intended to
elicit inadmissible responses from Algarin. The prose-
cutor’s questions were broad and open-ended, and Alg-
arin appeared to the court to offer her responses
spontaneously and without prompting. Additionally, the
prosecutor did not go into further detail about the stab-
bing or hair pulling incidents but, instead, directly
acknowledged to the court that the state would limit
its inquiries to the specific matters that the court had
allowed in its order.
B
The defendant next claims that the prosecutor’s fail-
ure to redact references in the 2010 statement, to the
defendant stabbing Algarin and beating her while she
was pregnant, rose to the level of impropriety. The
record, however, reveals that the defendant had the
opportunity to request the court to order additional
redactions of the 2010 statement. Specifically, when
discussing redactions to the statement with both par-
ties, the court asked whether there was ‘‘anything else
in the statement that is not consistent with the [c]ourt’s
ruling that this is admissible under [Rose]?’’ The defen-
dant did not respond that the references to the defen-
dant stabbing Algarin and beating her while she was
pregnant should be redacted. The defendant did not
subsequently object to the statement as redacted or
request further redactions of the portions of the state-
ment that he alleges on appeal should also have been
redacted.
The defendant’s claim that the prosecutor improperly
failed to redact certain portions of Algarin’s statement
is purely evidentiary. ‘‘[A] defendant may not transform
an unpreserved evidentiary claim into one of prosecu-
torial impropriety to obtain review of that claim . . . .’’
(Internal quotation marks omitted.) State v. Devito, 159
Conn. App. 560, 574, 124 A.3d 14, cert. denied, 319 Conn.
947, 125 A.3d 1012 (2015). Accordingly, we decline to
review this unpreserved evidentiary claim.
C
Finally, the defendant claims that the prosecutor
improperly referred to several inadmissible incidents
of alleged domestic violence in her rebuttal closing
argument and that such references were intended to
arouse the passions and sympathies of the jurors. In
particular, the defendant takes issue with the prosecu-
tor’s following statement: ‘‘How did she describe the
relationship? Abuse was breakfast, lunch, and dinner. It
was physical, emotional, financial, psychological abuse.
Burned her with cigarettes, stabbed her, punched her,
kicked her. She learned that if you screamed you’d only
get hit more and harder. So she learned how not to
scream. He would lie on top of her, she said during this
abuse, and say, I own you. Pistol-whipped her, he said
that was for—that he needed money for his addiction
she wouldn’t give it to him so he pistol-whipped her.
***
‘‘He didn’t recall stabbing her in the leg, not that it
didn’t happen. If someone stabbed you do you think that
that would [be] memorable to you? It was to [Algarin].’’
We have previously recognized that ‘‘prosecutorial
[impropriety] of a constitutional magnitude can occur
in the course of closing arguments. . . . When making
closing arguments to the jury, [however] [c]ounsel must
be allowed a generous latitude in argument, as the limits
of legitimate argument and fair comment cannot be
determined precisely by rule and line, and something
must be allowed for the zeal of counsel in the heat of
argument. . . . Thus, as the state’s advocate, a prose-
cutor may argue the state’s case forcefully, [provided
the argument is] fair and based upon the facts in evi-
dence and the reasonable inferences to be drawn there-
from. . . .
‘‘Nevertheless, the prosecutor has a heightened duty
to avoid argument that strays from the evidence or
[The prosecutor] is not only an officer of the court,
like every attorney, but is also a high public officer,
representing the people of the [s]tate, who seek impar-
tial justice for the guilty as much as for the innocent.
. . . While the privilege of counsel in addressing the
jury should not be too closely narrowed or unduly ham-
pered, it must never be used as a license to state, or
to comment upon, or to suggest an inference from, facts
not in evidence, or to present matters which the jury
[has] no right to consider.’’ (Internal quotation marks
omitted.) State v. Reddick, 174 Conn. App. 536, 559,
166 A.3d 754, cert. denied, 327 Conn. 921, 171 A.3d 58
(2017), cert. denied, U.S. , 138 S. Ct. 1027, 200
L. Ed. 2d 285 (2018). Additionally, ‘‘[i]t is well settled
that [a] prosecutor may not seek to sway the jury by
unfair appeals to emotion and prejudice . . . .’’ (Inter-
nal quotation marks omitted.) State v. Holley, 144 Conn.
App. 558, 569, 72 A.3d 1279, cert. denied, 310 Conn. 946,
80 A.3d 907 (2013).
After a careful review of the record, we cannot con-
clude that the prosecutor’s references, during her rebut-
tal closing argument, to specific instances of domestic
violence to which Algarin had testified, were improper.
The prosecutor relied exclusively on evidence admitted
during the trial in making her argument that Algarin
and the defendant had an abusive relationship. Specifi-
cally, the prosecutor referenced Algarin’s testimony
that the defendant was ‘‘extremely abusive . . . [p]hys-
ically, psychologically, emotionally, financially,’’ that
the defendant pistol-whipped her, stabbed her, broke
her nose, and pulled her hair, and that various other
instances of physical abuse occurred ‘‘every day’’ over
the course of their relationship. The prosecutor also
referenced the following exchange that occurred during
Algarin’s direct examination:
‘‘[The Prosecutor]: And you indicated that there was,
I think you said the abuse that you suffered was break-
fast, lunch and dinner, was that during pretty much the
entire relationship or how long in your relationship was
that with the defendant?
‘‘[Algarin]: The entire relationship this is, I don’t know
if I could show it, but I got a cigarette burn right here
on the palm of my hand.’’
Finally, the prosecutor referenced Algarin’s testi-
mony regarding how the defendant reacted to her ques-
tions on the night of Morales’ murder:
‘‘[The Prosecutor]: And you indicated that he put a
beating on you, what do you mean by that?
‘‘[Algarin]: He started punching me on the head, until
I got to the floor and he started kicking me, repeatedly.
‘‘[The Prosecutor]: Where was he kicking you?
‘‘[Algarin]: In my back.’’
The court explicitly allowed testimony describing the
broken nose incident in its ruling limiting the testimony
to specific incidents of domestic violence, as it occurred
close to the time of Morales’ murder. See footnote 5
of this opinion. Similarly, the court admitted Algarin’s
testimony as to being punched and kicked because it
occurred on the night of Morales’ murder. Finally,
although Algarin’s testimony as to being burned by a
cigarette was not explicitly ruled to be admissible by
the court, defense counsel did not object to it at the
time it was made or thereafter. The prosecutor’s delin-
eation of the defendant’s abusive relationship with Alg-
arin during her rebuttal closing argument directly
related to the state’s position that Algarin delayed pro-
viding information to the police for approximately
twelve years because she feared the defendant. See part
II of this opinion.
Because we conclude that no prosecutorial impropri-
eties were established by the defendant, we need not
engage in an analysis of the factors set forth in State
v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987)6
to determine whether the defendant was deprived of
his due process right to a fair trial. See State v. Campbell,
supra, 328 Conn. 541–42. Similarly, we need not address
the defendant’s claim as to whether the court should
exercise its supervisory authority.7
The judgment is affirmed.
In this opinion the other judges concurred.
1
The facts in the present case are nearly identical to those underlying
the judgment appealed from in State v. Santiago, 143 Conn. App. 26, 28–31,
66 A.3d 520 (2013). In that case, ‘‘[t]he defendant . . . was charged with
murder in violation of General Statutes §§ 53a-8 and 53a-54a (a), murder in
violation of § 53a-54a (a) and felony murder in violation of § 53a-54c. The
jury found the defendant not guilty of murder in violation of §§ 53a-8 and
53a-54a (a). The jury found the defendant guilty of both murder in violation
of § 53a-54a (a) and felony murder in violation of § 53a-54c. The court merged
the conviction of murder into the conviction of felony murder and sentenced
the defendant to a term of sixty years of incarceration.’’ Id., 31.
The defendant appealed that conviction. This court invoked its supervisory
authority to overturn the defendant’s conviction of felony murder in violation
of § 53a-54c, holding that the prosecutor’s improper comments in that case,
and repeated and deliberate use of improper argument in other cases, war-
ranted reversal and a new trial. Id., 51.
2
The court granted the motion in part, and denied it in part, from the
bench after argument on July 14, 2016. See footnote 5 of this opinion.
3
In State v. Mooney, supra, 218 Conn. 129, our Supreme Court found a
witness’ testimony of the defendant’s prior bad acts significant because it
strengthened the testimony of another critical state witness. Additionally,
the court found the testimony admissible because it reinforced the testimony
of the state’s critical witness and linked the defendant to the ultimate facts
to be proven. Id., 129–30.
4
In State v. Estrella J.C., supra, 169 Conn. App. 99–100, this court found
that the probative value of uncharged misconduct evidence was not out-
weighed by its prejudicial effect where such evidence ‘‘did not tend to arouse
the emotions of the jury . . . pertained to the credibility of the state’s key
witness, which was the essence of the state’s case . . . [and] was not
consumed by an inordinate amount of time, but rather was resolved quite
summarily at the beginning of two days of the trial.’’
5
The court ruled in relevant part: ‘‘I think that at some point the introduc-
tion of this type of evidence becomes cumulative and therefore, perhaps
overly prejudicial, but I think that I will allow the state to have the witness
describe the broken nose incident in 1998, which was the same time as the
murder in this case, and as well as the pistol-whipping in 1998. I will not
allow the state to go into detail on the sexual assault in [1999] or struck in
the head with a [twenty-five] pound weight. What I will allow the state to
do is have the witness indicate that there were a number of other incidents
of violence over the years without going into detail.’’
6
‘‘In determining whether prosecutorial misconduct was so serious as to
amount to a denial of due process, this court, in conformity with courts in
other jurisdictions, has focused on several factors. Among them are the
extent to which the misconduct was invited by defense conduct or argument
. . . the severity of the misconduct . . . the frequency of the misconduct
. . . the centrality of the misconduct to the critical issues in the case . . .
the strength of the curative measures adopted . . . and the strength of the
state’s case.’’ (Citations omitted.) State v. Williams, supra, 204 Conn. 540.
7
‘‘[W]hen prosecutorial [impropriety] is not so egregious as to implicate
the defendant’s right to a fair trial, an appellate court may invoke its supervi-
sory authority to reverse a criminal conviction when the prosecutor deliber-
ately engages in conduct that he or she knows, or ought to know, is
improper.’’ (Emphasis added; internal quotation marks omitted.) State v.
Santiago, 143 Conn. App. 26, 48, 66 A.3d 520 (2013). No such conduct was
demonstrated by the defendant in the present case.