October 16, 2018
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
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
attorney, and Donald F. Therkildsen, Jr., senior assistant
state's attorney, for the appellee (state).
Sheldon, Prescott and Bear, Js.
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 evidence (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
defendant claims that the prosecutor's alleged violations
of the court's order limiting the scope of uncharged
misconduct evidence constituted prosecutorial impropriety
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.
jury reasonably could have found the following facts from the
evidence presented at trial. 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.
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 defendant, he was extremely abusive
toward her and, as a result of this abuse, she had come to
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 defendant and told to go
downstairs. Upon entering the downstairs 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.
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.
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 Maldonado, 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, Algarin 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.
state thereafter charged the defendant with murder, 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.
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 conclude that
the court did not abuse its discretion in admitting
Algarin's written statement to the police, as redacted,
into evidence for that purpose.
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 recollection, 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.
counsel's cross-examination included questions regarding
Algarin's motive for making the statement 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 counsel 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
statement and had been relocated to another state.
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 introduction 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.
appeal, the defendant claims that Algarin's statement 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. Specifically, 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
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 Code of Evidence, our
standard of review is plenary. For example, 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 decision to admit evidence, if premised on
a correct view of the law, however, for an abuse of
discretion." (Internal quotation marks omitted.)
States. 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 substantial prejudice or injustice. . . .
This deferential standard 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
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 consistent statements of a
witness are inadmissible, we have recognized exceptions in
certain circumstances. . . . Section 6-11 (b) of the
Connecticut Code of Evidence 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 suggestion 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
contrivance . . . ." (Citation omitted; internal
quotation marks omitted.) State v. Henry D., supra,
173 Conn.App. 275. The commentary to § 6-11 (b) further
indicates 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.
present case, defense counsel questioned Algarin 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.
defendant asserts that the trial court's reliance on
State v. Rose, supra, 132 Conn.App. 563, was
misplaced, 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. Therefore, the
defendant claims, because Maldonado was already arrested
prior to Algarin providing her statement 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.
the defendant asserts that Algarin's purported 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 questioned 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 provided 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) ...