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State v. Santiago

Court of Appeals of Connecticut

January 22, 2019

STATE OF CONNECTICUT
v.
VICTOR SANTIAGO

          Argued October 16, 2018

         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 attorney, and Donald F. Therkildsen, Jr., senior assistant state's attorney, for the appellee (state).

          Sheldon, Prescott and Bear, Js.

          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 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.

         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 defendant, 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 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.

         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 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.

         The 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.

         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 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.

         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 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.

         Defense 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.

         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 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.

         On 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 murder.

         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 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 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 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.

         In the 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.

         The 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.

         Additionally, 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) ...


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