State v. Bermudez ( 2022 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
STATE OF CONNECTICUT v. NOEL BERMUDEZ
(SC 20461)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Kahn, Ecker and Keller, Js.
Syllabus
Convicted, after a jury trial, of the crime of felony murder, the defendant
appealed. The defendant and his brothers, S and B, had robbed the
victim as he returned home at night after closing the bar he owned,
during or after which the victim was shot and killed. Twelve years after
the incident, A, the estranged wife of S, provided a written statement
to the police that implicated the defendant and his brothers in the
victim’s death. A, who knew that the defendant and his brothers were
affiliated with gangs, delayed providing information to the police, pur-
portedly out of fear that the defendant and his brothers would retaliate
against her or her family. S had regularly abused A throughout their
marriage and, following the victim’s murder, had threatened to kill her,
their children, and A’s mother. While the defendant was incarcerated
on unrelated charges during the twelve years after the shooting, he
instructed A to write salacious letters to him so that he could discredit
her if she were to testify against him. At trial, A’s testimony was crucial
to the state’s case, and, therefore, the reason for her twelve year delay
in coming forward and the credibility of her statement inculpating the
defendant and his brothers were central issues. In affirming the defen-
dant’s conviction, the Appellate Court rejected the defendant’s claim
that the trial court had improperly admitted evidence that he and his
brothers were affiliated with gangs and that A and her children had
been relocated by the state following her statement to the police. The
Appellate Court also rejected the defendant’s claim that his constitu-
tional rights to present a defense and to confront the witnesses against
him was violated insofar as the trial court declined to admit into evidence
the letters that A had sent to the defendant and precluded defense
counsel from questioning A about the circumstances surrounding the
termination of her employment from a hospital and her birth control
practices. On the granting of certification, the defendant appealed to
this court, renewing the evidentiary claims that he raised in the Appellate
Court. Held:
1. The Appellate Court correctly concluded that the trial court had not
abused its discretion in admitting, through A’s testimony, evidence of
the gang affiliations of the defendant and his brothers: that evidence
was probative of the reason why A feared the defendant and his brothers
and why she waited twelve years before providing her statement to the
police, and that evidence was not merely cumulative of other evidence,
as it was the only evidence that explained why A feared not only S, but
the defendant and B as well, why she feared retaliation from individuals
acting on their behalf, and why she believed that there was no place
she could go where she would be safely out of their reach, even while
they were incarcerated for unrelated charges or convictions; moreover,
the trial court minimized the prejudicial impact of the evidence by twice
instructing the jury that it could consider it solely in evaluating A’s
credibility as to why she waited twelve years before coming forward
and by barring any other witness from testifying that the defendant and
his brothers were affiliated with gangs; furthermore, A’s testimony on
this issue was relatively brief, and the prosecutor made only a brief
reference to it in his closing argument.
2. The Appellate Court correctly concluded that the trial court had not abused
its discretion in admitting, through A’s testimony on direct examination,
evidence of the state’s relocation of A and her children following her
statement to the police; that evidence was highly relevant to A’s claimed
fear of the defendant and his brothers and to demonstrate that her fear
remained even after they were incarcerated, which was a central focus
of defense counsel’s efforts to impeach A’s credibility, as the jury reason-
ably 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 and that A’s relocation explained her willingness to testify
against the defendant and his brothers, despite her long-standing fear
of retaliation; moreover, the state did not exploit the relocation evidence,
as A’s testimony on the issue was relatively brief, the questions posed
to her and her responses thereto did not directly implicate the state in
a way that might suggest that the prosecutor was vouching for her
credibility, and the prosecutor made only a brief reference to it during
closing argument; furthermore, the evidence was not presented in such
a way as to suggest that A was in the state’s witness protection program
because of direct threats by the defendant.
3. The trial court did not abuse its discretion in determining that the prejudi-
cial effect of the salacious letters that A had written to the defendant
outweighed their probative value, and, therefore, the defendant could
not establish that his constitutional rights to present a defense and to
confront the witnesses against him were violated by that court’s decision
to preclude the letters from being admitted: the sexually graphic lan-
guage used in the letters and, more generally, the letters themselves,
lacked probative value, and, although the trial court treated the letters
as independently probative of whether A was fearful of the defendant,
the admission of the letters was not necessary to prove that A was not
fearful of the defendant, as she essentially admitted that she had a good
relationship with him and had no reason to fear him, as long as she did
not inculpate him in the crime; moreover, to the extent that the defendant
claimed that the trial court’s exclusion of the letters deprived him of
the opportunity to effectively impeach A’s credibility, he failed to demon-
strate how the specific contents of the letters bore on that issue.
4. The Appellate Court correctly concluded that the defendant’s claim that
his constitutional rights were violated insofar as the trial court precluded
defense counsel from questioning A about the circumstances sur-
rounding the termination of her employment from a hospital and her
birth control practices was not constitutional in nature and that the trial
court did not abuse its discretion in precluding these two lines of inquiry:
the trial court correctly concluded that the circumstances surrounding
the termination of A’s employment were simply too remote and would
have injected a collateral issue into the trial and that further inquiry
into A’s birth control practices, after defense counsel questioned her
about why she continued to have children with S after the victim’s
murder, would have inappropriately focused on a matter far too attenu-
ated from the material issues in the case; moreover, even if this court
concluded that the trial court should have permitted some inquiry into
these two matters, such error was harmless because the defendant had
ample opportunity at trial to impeach A with respect to her purported
fear of S and those lines of inquiry were merely cumulative of other
evidence calling into question the genuineness of that fear.
Argued February 18—officially released November 3, 2021*
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 case was tried to the jury before K.
Murphy, J.; verdict of guilty of felony murder; subse-
quently, the court, K. Murphy, J., declared a mistrial
as to the charge of murder, dismissed the charge of
murder, and rendered judgment of guilty of felony mur-
der, from which the defendant appealed to this court,
which transferred the appeal to the Appellate Court,
Elgo, Moll and Devlin, Js., which affirmed the trial
court’s judgment, and the defendant, on the granting
of certification, appealed to this court. Affirmed.
Pamela S. Nagy, assistant public defender, for the
appellant (defendant).
Timothy F. Costello, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Don E. Therkildsen, Jr., and Cynthia
S. Serafini, senior assistant state’s attorneys, for the
appellee (state).
Opinion
KELLER, J. The defendant, Noel Bermudez, appeals,
following our grant of certification, from the judgment
of the Appellate Court affirming the judgment of convic-
tion, rendered after a jury trial, of felony murder in
violation of General Statutes § 53a-54c. On appeal, the
defendant claims that the Appellate Court should have
reversed the judgment of conviction and ordered a new
trial in light of the trial court’s rulings (1) admitting
testimony regarding the gang affiliations of the defen-
dant and his two brothers and the state’s relocation of
its chief witness, Damaris Algarin-Santiago (Algarin),1
after she provided a statement to the police incriminat-
ing the defendant and the brothers in the murder, (2)
excluding from evidence salacious letters written by
Algarin to the defendant while he was imprisoned, and
(3) preventing the defendant from questioning Algarin
about the circumstances surrounding the termination
of her employment from Waterbury Hospital and her
birth control practices. The defendant contends that
the trial court’s rulings excluding Algarin’s letters and
precluding his inquiry into her termination and birth
control practices violated his rights to confrontation
and to present a defense under the sixth and fourteenth
amendments to the United States constitution, and that
all of the rulings constituted harmful error requiring
a new trial. We disagree and, accordingly, affirm the
judgment of the Appellate Court.
The opinion of the Appellate Court sets forth the
following facts, which the jury reasonably could have
found, and procedural history. ‘‘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, [Algarin], the estranged wife of
the defendant’s brother, Victor Santiago, provided a
written statement to the police. In that statement, Alg-
arin 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 prosecu-
tion of the defendant. Algarin testified that she had
been in a relationship with Santiago since [graduating
from the eighth grade in] 1993 and that they eventually
married in 2004.2 Throughout their time together, Santi-
ago abused Algarin on a regular basis, both physically
and emotionally. The couple had two children at the
time of Morales’ murder [and had two more children
together thereafter].
‘‘In her testimony at trial, Algarin [offered the follow-
ing account of] the events of April 11, 1998. At approxi-
mately 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,3
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.’’
(Footnote omitted; footnotes in original.) State v. Ber-
mudez, 195 Conn. App. 780, 784–85, 228 A.3d 96 (2020).
Algarin learned the following details about the crime
from the defendant and his brothers. ‘‘[T]he defendant
and his . . . brothers were in need of money and thus
sought to rob Morales that night, believing that the
Good Friday holiday would result in a large amount of
cash. To become familiar with Morales’ routine . . .
Santiago stalked Morales for some time. . . . Santiago
planned to act as the driver [and to have] Bonilla and
the defendant . . . commit the robbery. When Bonilla
and the defendant confronted Morales on the night in
question, the defendant shot him to death. The defen-
dant gave Algarin two explanations for doing so: (1) he
believed [that] Morales was reaching for a gun, and (2)
he wanted revenge due to his belief that Morales had
shot Santiago some years earlier.’’4 Id., 785.
Algarin then observed the defendant and his brothers
undertake the following activities to dispose of evi-
dence of the crime. ‘‘Upon arriving at Algarin’s home
after the shooting, the defendant and his brothers
burned the checks in the kitchen sink,5 cleaned the
weapons of fingerprints, and placed the dismantled pis-
tol parts into three separate bags. . . . [They also]
burned their clothing in a barrel behind the house and
cleaned the car to remove gun residue. . . . When [Alg-
arin] refused [Santiago’s demand] to go with him to
dispose of the bags filled with the gun parts, Santiago
. . . beat Algarin until the defendant intervened. Reluc-
tantly, [Algarin] agreed [to] accompan[y] Santiago to
dispose of the bags. When the [last] bag was thrown
into the Naugatuck River, Santiago . . . threatened to
kill Algarin, her mother, and their children, stating . . .
‘[n]ow you know what we’re capable of.’ ’’ (Footnote
in original.) Id., 785–86.
‘‘Later that day, Santiago and Bonilla accompanied
Algarin to deposit the [stolen] cash into her bank
account via an automated teller machine (ATM). Algarin
. . . deposited three separate envelopes of cash, which
she believed to have totaled $3000. . . . [T]he follow-
ing Monday, Santiago and Bonilla went with Algarin to
make a withdrawal, at which time Algarin gave the cash
to Santiago. [At some point during the aftermath of the
murder, the defendant and his brothers concocted an
alibi that they and Algarin had been celebrating Bonilla’s
return from prison by eating fish for Good Friday at
their mother’s home.]
‘‘[Between] 1998 [and] 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,6 Algarin was particularly afraid
of reprisals should she provide the police with any
information. During this period, however, she did
divulge some information to three people. Approxi-
mately 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 homicide.7 She also provided details of the homi-
cide to Sally Roden-Timko, a coworker at Waterbury
Hospital, who . . . confirm[ed] the [conversation] in a
statement given to the police in 2010.8 Algarin later
discussed details about the homicide with Luis Maldo-
nado, 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 [between the murder and Algarin’s
statement to the police], Santiago continued to threaten
Algarin. After a newspaper article was published on the
[reopening of the] investigation into Morales’ murder,
the defendant, who was also incarcerated on an unre-
lated criminal matter . . . instructed Algarin to write
[him] three letters that were intimate and particularly
salacious in nature. The defendant had requested the
letters for the [stated] 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 [for questioning]. Fear-
ing that Maldonado had disclosed information and con-
cerned that he would be murdered by Santiago if he
were incarcerated, Algarin abandoned the [brothers’]
alibi [that she had maintained for twelve years] 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.’’ (Footnote
added; footnotes in original.) Id., 786–87.
At trial, Algarin’s testimony was the linchpin of the
state’s case, although the state also produced other
corroborative evidence. The reason for Algarin’s recan-
tation of her prior statements supporting the brothers’
alibi after many years and, in turn, the credibility of
her detailed account inculpating them were thus the
central issues in the case. The state presented evidence
to support the theory that Algarin had been fearful of
retribution against her, her family, and, later, Maldo-
nado because of Santiago’s past physical abuse and
threats, and the three brothers’ gang affiliations. Algarin
also testified that she had been relocated after she gave
her statement to the police.
The defendant attempted to cast doubt on the state’s
theory through evidence demonstrating that Algarin’s
belated inculpation of the defendant and his brothers
was not a product of fear but a desire for revenge.
The defendant proffered evidence demonstrating that
Algarin and Santiago had, and were perceived by others
to have, a loving relationship.10 He also elicited admis-
sions from Algarin that she had written three salacious
letters to the defendant while he was in prison, although
she claimed that the defendant had directed her to write
them, after the police reopened their investigation into
the victim’s murder, to use as an insurance policy
against her disclosing her knowledge about the crime.
The defendant argued that Algarin changed stories for
revenge against Santiago after he ended their relation-
ship as a consequence of the defendant’s disclosing the
letters to him.11
During its rebuttal closing argument, the state coun-
tered the defendant’s claim that Algarin, in 2010, had
implicated the defendant in the victim’s murder out of
spite, pointing to evidence that Algarin had told Crozier
about the murder shortly after it occurred in 1998 and
that she had told a friend about it a few years after that.
The jury found the defendant guilty of felony murder
but deadlocked on the charge of murder. State v. Ber-
mudez, supra, 195 Conn. App. 787–88. The trial court
declared a mistrial on that charge12 and, thereafter, sen-
tenced the defendant to a total effective term of sixty
years of incarceration. Id. 788.
The defendant appealed from his conviction to the
Appellate Court, claiming, among other things, that cer-
tain of the trial court’s evidentiary rulings constituted
harmful error that deprived him of a fair trial. See id.,
783, 788. Specifically, the defendant contended that the
trial court improperly admitted unduly prejudicial evi-
dence of his and his brothers’ gang affiliations and of
Algarin’s relocation by the state following her statement
to the police. See id., 788. The defendant further claimed
that the trial court violated his constitutional rights to
present a defense and to confront witnesses against him
by refusing to admit into evidence the three sexually
explicit letters Algarin had sent to him in prison and
by precluding him from questioning Algarin about two
matters that he claimed undermined her purported fear
of Santiago—the circumstances surrounding the termi-
nation of her employment from Waterbury Hospital and
her birth control practices during the period of her
marriage following the victim’s murder. See id., 783,
805–806. In a thorough and comprehensive decision, the
Appellate Court rejected in turn each of these claims,
concluding that none of the claimed errors was constitu-
tional in nature and that most of the rulings were not
an abuse of the trial court’s discretion. See id., 788–820.
Two of the trial court’s rulings, however, presented a
closer question. The Appellate Court concluded that
the probative value of evidence of Algarin’s relocation
by the state outweighed any undue prejudice but that,
even if the evidence was improperly admitted, its admis-
sion was harmless error. Id., 802–804 and n.19. The
Appellate Court also concluded that exclusion of the
sexually explicit letters was improper but that it was
harmless evidentiary error given the extensive testi-
mony about them. Id., 813–17.
The Appellate Court therefore affirmed the judgment
of conviction; Id., 827; and this certified appeal fol-
lowed. On appeal, the defendant renews his evidentiary
claims raised in the Appellate Court.13 For the reasons
set forth hereinafter, we conclude that the Appellate
Court properly affirmed the judgment of conviction.
I
We begin with the defendant’s claims that he con-
cedes are not constitutional in nature. The defendant
contends that the Appellate Court incorrectly deter-
mined that the trial court had properly admitted evi-
dence of (1) his and his brothers’ gang affiliations, and
(2) Algarin’s relocation by the state following her state-
ment to the police inculpating the defendant and his
brothers in the victim’s murder.
‘‘Our standard of review for evidentiary claims is well
settled. 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. . . . We
review the trial court’s decision to admit [or exclude]
evidence, if premised on a correct view of the law,
however, for an abuse of discretion.’’ (Citation omitted;
internal quotation marks omitted.) State v. Davis, 298
Conn. 1, 10–11, 1 A.3d 76 (2010). Because the defendant
challenges the application and not the interpretation of
our rules of evidence, the trial court’s rulings as to this
evidence are reviewed for an abuse of discretion. ‘‘The
trial court has wide discretion to determine the rele-
vancy of evidence and the scope of cross-examination.
. . . Thus, [w]e will make every reasonable presump-
tion in favor of upholding the trial court’s ruling[s] [on
these bases] . . . .’’ (Citation omitted; internal quota-
tion marks omitted.) Id., 11.
A
We turn first to the defendant’s claim that the trial
court abused its discretion in admitting evidence of his
and his brothers’ gang affiliations because its prejudicial
effect outweighed any probative value. Although the
defendant does not dispute that this evidence was rele-
vant to Algarin’s claimed fear of him and his brothers,
he argues that it was of limited probative value because
it was merely cumulative of other evidence of her state
of mind. He further argues that, contrary to the Appel-
late Court’s conclusion, the trial court’s limiting instruc-
tion did not dissipate the highly prejudicial impact of
this evidence. We agree with the Appellate Court’s reso-
lution of this issue.
The opinion of the Appellate Court sets forth the
following relevant facts and procedural history. ‘‘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 [defendant’s and his brothers’] 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 Algarin feared retaliation from Santi-
ago, 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 [trial] 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 [what she knew about the crime]
because . . . 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, and so I would [provide] a
limiting instruction regarding the introduction of [the]
evidence if [it] comes in as an explanation for her delay
in disclosing this [crime].’ ’’ State v. Bermudez, supra,
195 Conn. App. 789.
The following exchange then ensued during the
state’s direct examination of Algarin:
‘‘[The Prosecutor]: I think where we left off, you
indicated that you were afraid, and that’s why you
decided to tell the police in 2010. What exactly were
you afraid of?
‘‘[Algarin]: I was afraid of their gang affiliations.
‘‘[The Prosecutor]: And when you say gang affilia-
tions, who are you talking about?
‘‘[Algarin]: I’m talking about all three of them.
‘‘[The Prosecutor]: Okay. And when . . . you say
gang affiliation, what exactly do you mean?
‘‘[Algarin]: They’re all in gangs. They’re Latin Kings
and Netas.
‘‘[The Prosecutor]: Okay. Who was [a] Latin King?
‘‘[Algarin]: [The defendant] and [Santiago].
‘‘[The Prosecutor]: And . . . [Bonilla] was in Netas?
‘‘[Algarin]: Yes.
‘‘[The Prosecutor]: And why was that concerning
to you?
‘‘[Algarin]: Because of their past actions.
‘‘[The Prosecutor]: Things that you had actually wit-
nessed?
‘‘[Algarin]: And heard, yes.
‘‘[The Prosecutor]: And when you say heard, heard
them talking about things that they had done?
‘‘[Algarin]: Yes.
‘‘[The Prosecutor]: And so, at that point in time, were
you afraid just for yourself or for anyone else?
‘‘[Algarin]: I was afraid for myself, my family, [Maldo-
nado], my children, my mom, my brother. Everyone.’’
Later in the direct examination, the topic was refer-
enced again in the following brief exchange:
‘‘[The Prosecutor]: And, as you sit here today, are
you still in fear of retaliation?
‘‘[Algarin]: Absolutely.
‘‘[The Prosecutor]: By whom?
‘‘[Algarin]: By all three of them and their gang affilia-
tions.
‘‘[The Prosecutor]: And you talked before about the
Latin Kings, that [the] defendant and [Santiago] were
members of the Latin Kings. Is that a group that’s just
found in Waterbury or is that found in other places as
well? . . .
‘‘[Algarin]: They’re nationwide.’’
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 Algarin delayed in coming forward or why she
disclosed at a certain time. The court also provided a
similar instruction in its final charge to the jury.14
Near the end of his closing argument, the prosecutor
connected Algarin’s twelve year delay in coming for-
ward to the defendant’s and his brothers’ gang affilia-
tions: ‘‘The delay in disclosure. Why did it take [twelve]
years? We’ve talked about that. She was with . . . San-
tiago since her eighth grade graduation. She had a . . .
child with him a year later, four children all together.
She testified the abuse started early and . . . progres-
sively got worse. He beat [her], financially abused [her],
psychologically abused [her], pistol whipped [her], and
broke [her] nose [when she burned French fries]. . . .
Do you think it’s reasonable to believe that, if someone
broke your nose over burnt French fries and . . . told
you they were going to kill you if you [talked to the
police] . . . that you’d believe [them]? Tried to leave
multiple times. She had him . . . arrested. When he
got out of jail . . . [he] beat her with a phone. . . .
‘‘The night of the [murder] . . . [Santiago] beats her.
Told her he was going to kill her mother and her kids.
She knew he was a Latin King, a gang member . . .
from things . . . he and . . . the defendant . . . had
told her and she had seen. . . . Would you be afraid
of that man? Would you be afraid of those other individ-
uals? . . . She testified she believes the Latin Kings
are a nationwide gang, and she is still afraid of them.’’
The following legal principles guide our analysis of
the defendant’s claim that admission of this evidence
was harmful error. ‘‘Relevant evidence is evidence that
has a logical tendency to aid the trier in the determina-
tion of an issue. . . . Evidence is relevant if it tends
to make the existence or nonexistence of any other
fact more probable or less probable than it would be
without such evidence. . . . To be relevant, the evi-
dence need not exclude all other possibilities [or be
conclusive] . . . .’’ (Internal quotation marks omitted.)
State v. Wilson, 308 Conn. 412, 429, 64 A.3d 91 (2013).
‘‘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.’’ (Internal quotation
marks omitted.) Id. Nonetheless, ‘‘relevant . . . evi-
dence may be excluded by the trial court if the court
determines that the prejudicial effect of the evidence
outweighs its probative value. . . . 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 defen-
dant but whether it will improperly arouse the emotions
of the [jurors]. . . . 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.) Id., 429–30.
We agree with the Appellate Court’s thorough and
persuasive analysis and conclusion that the trial court’s
admission of the gang affiliation evidence was not an
abuse of discretion. See State v. Bermudez, supra, 195
Conn. App. 792–95. To be sure, courts must exercise
caution whenever the state seeks to admit evidence of
a defendant’s affiliation with a gang. See, e.g., United
States v. Irvin, 87 F.3d 860, 865 (7th Cir.) (‘‘Gangs . . .
often invoke images of criminal activity and deviant
behavior. There is therefore always the possibility that
a jury will attach a propensity for committing crimes
to defendants who are affiliated with gangs or that a
jury’s negative feelings toward gangs will influence its
verdict.’’), cert. denied, 519 U.S. 903, 117 S. Ct. 259, 136
L. Ed. 2d 184 (1996); Commonwealth v. Akara, 465
Mass. 245, 267, 988 N.E.2d 430 (2013) (‘‘urg[ing] caution
in admitting [gang related] evidence . . . because evi-
dence of a defendant’s gang membership risks prejudice
to the defendant in that it may suggest a propensity
to criminality or violence’’ (internal quotation marks
omitted)). This includes carefully evaluating the prof-
fered purpose of the evidence to ensure its probative
value is significant enough to overcome the potential
for unfair prejudice. See, e.g., State v. Pham, 27 Kan.
App. 2d 996, 1002, 10 P.3d 780 (2000) (‘‘[a]lthough proof
of a criminal defendant’s membership in a street gang
can always be described as prejudicial, it becomes
grossly and unfairly so when it is not balanced by proba-
tive value of some significant magnitude’’). Under no
circumstance should the evidence be admitted to dem-
onstrate the defendant’s criminal propensity or bad
character. See, e.g., United States v. Street, 548 F.3d
618, 632 (8th Cir. 2008) (citing cases in which gang
membership evidence was admitted and noting that in
none of them ‘‘was [it] used to show criminal propensity
or otherwise paint a defendant guilty through mere
association’’); United States v. McKay, 431 F.3d 1085,
1093 (8th Cir. 2005) (‘‘gang affiliation evidence is not
admissible [when] it is meant merely to prejudice the
defendant or [to] prove his guilt by association with
unsavory characters’’), cert. denied, 547 U.S. 1174, 126
S. Ct. 2345, 164 L. Ed. 2d 859 (2006), and cert. denied,
549 U.S. 828, 127 S. Ct. 46, 166 L. Ed. 2d 48 (2006).
Our appellate courts previously have held, however,
that evidence of a defendant’s gang affiliation is admissi-
ble when it is relevant to a material issue in the case,
such as why a witness delayed in coming forward to
the police; see State v. Wilson, supra, 308 Conn. 430;
State v. Cruz, 56 Conn. App. 763, 771–72, 746 A.2d 196(2000), aff’d, 260 Conn. 1, 792 A.2d 823 (2002); and, to
the best of our knowledge, every other court has simi-
larly held. See, e.g., Blackmon v. Booker, 696 F.3d 536,
555 (6th Cir. 2012) (‘‘gang affiliation evidence tended
to make the fact of witness bias in favor of [the] [p]eti-
tioner based on fear more probable’’), cert. denied, 568
U.S. 1217, 133 S. Ct. 1501, 185 L. Ed. 2d 557 (2013);
United States v. Jimenez, Docket No. 94-2625, 1995
WL 135923, *3–4 (7th Cir. March 28, 1995) (defendant’s
membership in Latin Kings was admissible to question
defense witness on whether fear of retaliation caused
him to recant his prior statements to Federal Bureau
of Investgation) (decision without published opinion,
51 F.3d 276), cert. denied, 516 U.S. 847, 116 S. Ct. 139,
133 L. Ed. 2d 86 (1995); United States v. Keys, 899
F.2d 983, 987–88 (10th Cir.) (because ‘‘[c]redibility was
crucial to resolution of this case . . . evidence that the
defense witnesses might have slanted their testimony
because of their fear of [the defendant] and his fellow
gang members had a high probative value’’), cert.
denied, 498 U.S. 858, 111 S. Ct. 160, 112 L. Ed. 2d 125(1990); United States ex rel. Garcia v. Lane, 698 F.2d
900, 902 (7th Cir. 1983) (witness’ testimony that he knew
defendant was member of Latin Kings was properly
admitted to explain his prior inconsistent statement
due to fear of retaliation); People v. Sanchez, 58 Cal.
App. 4th 1435, 1449, 69 Cal. Rptr. 2d 16 (1997) (‘‘[Gang
affiliation] evidence was properly admissible on the
issue of witness credibility. Evidence a witness is afraid
to testify is relevant to the credibility of that witness
and is therefore admissible.’’ (Internal quotation marks
omitted.)); State v. Dean, 310 Kan. 848, 862, 450 P.3d
819 (2019) (‘‘[w]e have held that gang affiliation evi-
dence may be relevant to show bias, prove identity, or
explain an otherwise inexplicable act, but these reasons
are not exclusive’’); Commonwealth v. Holliday, 450
Mass. 794, 814–15, 882 N.E.2d 309 (trial court properly
admitted evidence demonstrating witnesses’ fear of
retaliation in gang related double homicide case to
explain why they had failed to share information
sooner), cert. denied sub nom. Mooltrey v. Massachu-
setts, 555 U.S. 947, 129 S. Ct. 399, 172 L. Ed. 2d 292(2008); State v. Trujillo, 131 N.M. 709, 729–30, 42 P.3d
814 (2002) (undisputed evidence of defendant’s gang
affiliation was properly admitted because witness’ ‘‘fear
of retaliation went to his credibility, by showing that
he had valid reasons—including the safety and well-
being of himself and his family—for being less than
candid about . . . [the] [d]efendant’s involvement in
the shooting’’); State v. Gonzalez, 345 P.3d 1168, 1178
(Utah 2015) (gang related evidence was properly admit-
ted to show ‘‘a key [witness’] fear of gang retaliation’’).
There can be no doubt that whether Algarin delayed
providing the inculpatory information to the police
because she was afraid of violence against her or her
loved ones and whether there was a factual basis for
any such fear for the period preceding her disclosure
were probative of a material issue in the present case.
We also agree with the Appellate Court that the chal-
lenged evidence was not merely cumulative of other
evidence. See State v. Bermudez, supra, 195 Conn. App.
794. As that court explained, that other evidence con-
sisted mainly of Algarin’s testimony detailing Santiago’s
abuse of her, which did not explain why she would fear
harm from the defendant and Bonilla, especially when
there was evidence that neither had ever physically
abused Algarin and that, in fact, the defendant had
intervened ‘‘on multiple occasions’’ when Santiago
abused her. Id., 794 and n.14. Nor did evidence of Santi-
ago’s abuse demonstrate why Algarin would fear retri-
bution from the defendant and his brothers and con-
tinue to corroborate their false alibi, even during their
long periods of incarceration, when they were not physi-
cally present to harm her. See id., 794. Evidence of their
gang affiliations was the only evidence to explain why
Algarin feared all three of them, why she feared retalia-
tion from individuals acting on their behalf, and why
she believed that there was no place she could go where
she would be safely out of their reach, even when they
were incarcerated.
As the Appellate Court also explained, the record
reflects that the trial court was keenly aware of the
potential for the evidence to inflame the jurors’ emo-
tions. See id., 794–95. To minimize its prejudicial
impact, the trial court twice instructed the jury that it
could consider the evidence solely in evaluating Algar-
in’s credibility as to why she waited twelve years to
come forward. The court also barred any other witness
from mentioning the defendant’s and his brothers’ gang
affiliations. We note, moreover, that Algarin’s testimony
regarding this matter was relatively brief in the context
of her two days of testimony, and the prosecutor made
only brief reference to it in closing argument. See, e.g.,
State v. Wilson, supra, 308 Conn. 430–31 (risk of unfair
prejudice from gang related evidence was minimized
when witness referred to gang only once during testi-
mony and prosecutor did not refer to it during closing
argument). In light of the foregoing, we agree with the
Appellate Court that the trial court did not abuse its
discretion in admitting the gang affiliation evidence.
B
We next address the defendant’s claim that the trial
court abused its discretion in admitting evidence that
Algarin ‘‘was relocated,’’ which necessarily implied that
such action was undertaken by the state, after she incul-
pated the defendant and his brothers in the victim’s
murder. The defendant contends not only that the evi-
dence was irrelevant to the issue of Algarin’s credibility,
but also that the trial court failed to recognize its highly
inflammatory nature and, as a result, ‘‘did not properly
balance the prejudicial effect of the evidence [with] its
probative value . . . .’’ The defendant argues that
courts in other jurisdictions recognize that ‘‘great care
must be taken to protect against the very real possibility
that the jury will infer [that] the witness was relocated
as a result of threats by the defendant’’ and that the
trial court in the present case, by failing to provide the
jury with a limiting instruction, failed to exercise that
level of care.
The state responds that the defendant’s argument
‘‘fails to differentiate between evidence that is duly
prejudicial and that which is unfair.’’ (Emphasis omit-
ted.) Specifically, the state contends that, ‘‘to the extent
that Algarin’s testimony implied that she feared the
[defendant and his] brothers, it was duly prejudicial
because it was highly probative of why she had corrobo-
rated their false alibi for twelve years.’’ The state further
contends that the relocation evidence was also proba-
tive of Algarin’s credibility ‘‘in that it established [the]
significant hardship that [she] endured as a result of
providing information [to the police],’’ which courts
have held is relevant to a fact finder’s assessment of a
witness’ credibility. We agree with the state.
The opinion of the Appellate Court sets forth the
following relevant facts and procedural history. ‘‘At
trial, the prosecutor asked Algarin whether she contin-
ued to live in Waterbury after giving her statement to
the police. [Defense counsel] immediately objected,
believing that the prosecutor was about to elicit evi-
dence about [Algarin’s participation in the state’s] wit-
ness protection program. . . . Outside the presence of
the jury, [counsel] argued that any testimony regarding
Algarin’s placement in the witness protection program
would be unduly prejudicial. [Counsel] further asserted
that this testimony ‘emphasizes the fact that the govern-
ment agency, whether it’s a state or federal, believes
[that Algarin] is in danger and [has] paid for her care
since the time of this so-called disclosure.’ In response,
the [prosecutor] argued that evidence of Algarin’s relo-
cation was probative of her fear of retaliation. The court
agreed that Algarin should not refer to the ‘witness
protection program’ but ruled that the [prosecutor]
could elicit details on how [Algarin’s] 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 pro-
tection program.’ Algarin subsequently testified that
she, her children, and Maldonado were relocated out
of the state [after she provided the statement to the
police] and [were] relocated numerous times [there-
after].15 The [prosecutor] referenced this fact in . . .
closing argument, noting that Algarin was ‘immediately
relocated with her four children’ after giving her state-
ment to the police and that she was ‘still in relocation,
still in fear of the [defendant and his brothers].’ ’’ (Cita-
tion omitted; footnote added; footnote omitted.) State
v. Bermudez, supra, 195 Conn. App. 796.
The Appellate Court concluded that evidence of Alg-
arin’s relocation was ‘‘highly probative and relevant’’
to her fear of retaliation from the defendant and his
brothers, which she claimed had prevented her from
coming forward sooner. Id., 797. The court further
observed that whether the trial court should have
excluded the evidence as unduly prejudicial was a mat-
ter of first impression in this state. Id., 798. The Appel-
late Court thus looked to federal precedent for guid-
ance; see id., 798–802; and, on the basis of that
precedent, concluded that ‘‘the probative value of the
relocation testimony was not outweighed by the preju-
dicial impact to the defendant.’’ Id., 802. The Appellate
Court expressed a concern that the prosecutor’s use of
the passive voice when questioning Algarin about her
relocation; see footnote 15 of this opinion; ‘‘alluded to
a third party, presumably the state, as having facilitated
[the] relocation,’’ but noted that this expression was
not as prejudicial as ‘‘witness protection program’’ or
‘‘at state expense.’’ (Internal quotation marks omitted.)
State v. Bermudez, supra, 195 Conn. App. 801. The
Appellate Court also opined that, rather than allow the
state to present the relocation evidence during its direct
examination of Algarin, ‘‘the better practice would have
been for the [trial] court to instruct the [prosecutor]
not to implicate [the state’s] involvement in relocation
efforts in any way on direct examination . . . [u]nless
and until further explication in rebuttal [was] triggered
by the defense in cross-examination . . . .’’ (Internal
quotation marks omitted.) Id., 804. Despite these con-
cerns, the Appellate Court concluded that, ‘‘given both
the passive and infrequent references to the witness
protection program, as well as the absence of the prose-
cutor’s exploitation of that evidence . . . the [trial]
court did not abuse its discretion in allowing testimony
that Algarin had been relocated.’’ Id. We agree with the
Appellate Court.
As that court explained, although an issue of first
impression for this court, ‘‘[a] number of federal . . .
courts of appeals that have addressed the issue have
cautioned that admitting evidence of a testifying wit-
ness’ 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’).’’ State v. Ber-
mudez, supra, 195 Conn. App. 798. The concern with
admitting evidence of this nature is that it implies to
the jury that the witness needed protection from the
defendant and tends to bolster the witness’ credibility
by raising the inference that the witness’ testimony must
be truthful because she would neither need nor be
afforded protection if she were the source of false infor-
mation. See United States v. Adamo, 742 F.2d 927, 944
(6th Cir. 1984), cert. denied sub nom. Freeman v. United
States, 469 U.S. 1193, 105 S. Ct. 971, 83 L. Ed. 2d 975(1985); see also United States v. DiFrancesco, 604 F.2d
769, 775 (2d Cir. 1979) (‘‘disclosure of . . . participa-
tion [in a witness protection program] 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’’ (citation omitted; internal
quotation marks omitted)), rev’d on other grounds, 449
U.S. 117, 101 S. Ct. 426, 66 L. Ed. 2d 328 (1980).
Accordingly, we agree with the Appellate Court that,
as a general matter, in order to minimize the potential
for undue prejudice, the state should not elicit testi-
mony from a witness regarding the witness’ participa-
tion in a witness protection program on direct examina-
tion but, rather, should wait until redirect examination
to do so, and then only if the defense’s cross-examina-
tion of the witness opened the door to such testimony.
See State v. Bermudez, supra, 195 Conn. App. 804. As
that court explained, however, courts are in general
agreement that prosecutors may appropriately intro-
duce evidence of their witnesses’ participation in the
witness protection program ‘‘ ‘to counter any inference
of improper motivation or bias and, under some circum-
stance[s], may [present this evidence] on direct exami-
nation in anticipation of a defense attack [of] the wit-
nesses’ credibility.’ ’’ Id., 799, quoting United States v.
Melia, supra, 691 F.2d 675; see also State v. Harris, 521
N.W.2d 348, 352 (Minn. 1994) (‘‘In anticipation of the
challenge to [a] witness’ credibility, the prosecution
may wish to bring out the witness’ involvement in the
[witness protection] program so as not to appear to be
hiding anything from the jury. . . . To bolster the wit-
ness’ credibility, the prosecution may also want to intro-
duce evidence that the decision to testify has resulted
in negative consequences to the witness.’’ (Citation
omitted.)). These courts have recognized that testimony
about a witness’ participation in a witness protection
program, although prejudicial, ‘‘is permissible so long
as the prosecutor does not attempt to exploit it.’’ United
States v. DiFrancesco, supra, 604 F.2d 775; see id.(‘‘[s]ince a defendant often will seek to impeach a partic-
ipating witness by showing that he has received signifi-
cant benefits while in the program, the government may
desire to bring out the witness’ participation during
direct examination in order to avoid an inference that
the government was attempting to hide the witness’
possible bias’’); see also United States v. Ciampaglia,
628 F.2d 632, 640 (1st Cir.) (‘‘[a]t least when not
exploited by the prosecution, the possibility that . . .
disclosure [that a witness is in the witness protection
program] might cause undue prejudice to defendants
is . . . generally minimal’’), 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). Some courts also
require trial courts to provide limiting instructions
regarding the proper use of this evidence. See State v.
Harris, supra, 352 (‘‘[i]f admitted, the trial court must
give the jury explicit instructions as to the use of the
evidence’’ and ‘‘strictly control the use of the evidence
by the prosecution to prevent its exploitation’’). We
are persuaded that the present case represents a rare
instance in which it was appropriate for the state to
present evidence of a witness’ participation in a witness
protection program during its direct examination of the
witness.
There can be no question that both the prosecutor
and the trial court knew in advance of trial that Algarin’s
reason for waiting twelve years to come forward would
be the central focus of the defense’s attack on the state’s
case. The defendant’s trial was the fourth trial arising
out of the victim’s murder and the second one to be
presided over by the judge in this case. See State v.
Santiago, 187 Conn. App. 350, 202 A.3d 405, cert. denied,
331 Conn. 902, 201 A.3d 403 (2019). As in the present
case, in Santiago, Algarin’s testimony was the linchpin
of the state’s case, and her reasons for coming forward
when she did were as strongly contested in that case
as they were in the present case.16 See id., 365–66 (‘‘[E]vi-
dence of the uncharged misconduct was probative to
explain why Algarin feared [Santiago] and waited
twelve years before telling the police about her knowl-
edge of Morales’ murder. The state argued that admit-
ting evidence of severe domestic abuse was material
to corroborating crucial prosecution testimony. In its
ruling admitting such evidence, 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 significant event that the state must
have some type of explanation for. So it’s an
important—it’s extremely important if the state has any
explanation for a delay in reporting.’ ’’); State v. Santi-
ago, supra, 358 (‘‘[Santiago] stated in his [appellate]
brief . . . that the ‘main focus in [the] cross-examina-
tion [of Algarin] was to suggest that [she] made up the
story about [Santiago’s] and his brothers’ involvement
in the murder because she was concerned about Maldo-
nado’s safety in jail and wanted to get favorable treat-
ment 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.’’).
Because the trial court knew in advance that Algarin’s
purported fear of and need for protection from the
defendant and his brothers would be a central focus of
the trial and that the defense would argue that Algarin
was lying when she claimed that fear had prevented
her from coming forward sooner, we cannot conclude
that it was an abuse of that court’s wide discretion to
allow Algarin to testify, on direct examination, that she
was relocated by the state immediately after giving her
statement to the police due to fear of reprisals from
the defendant and his brothers. See, e.g., United States
v. Deitz, 577 F.3d 672, 689 (6th Cir. 2009) (prosecutor
should not refer to witness protection program unless
need for protection is obvious, relevant, or made an
issue by defense counsel), cert. denied, 559 U.S. 984,
130 S. Ct. 1720, 176 L. Ed. 2d 201 (2010).
In Melia, the United States Court of Appeals for the
Fourth Circuit explained that, when reviewing the
admission of this evidence on appeal, courts ‘‘must con-
sider whether such evidence was in its totality excessive
and likely to excite the [jurors], encouraging them to
make improper inferences linking the defendant to
threats against the witness.’’ United States v. Melia,
supra, 691 F.2d 676. In Deitz, the United States Court
of Appeals for the Sixth Circuit concluded that evidence
that various witnesses participated in the witness pro-
tection program ‘‘was relevant to the . . . history of
violence and reputed practice of retaliating against wit-
nesses and informants [of the defendant’s motorcycle
gang].’’ United States v. Deitz, supra, 577 F.3d 689.
Although the court warned that the evidence could
‘‘[r]aise negative inferences against the defendant if
great care is not employed’’; (internal quotation marks
omitted) id.; it concluded that its admission in that case
was not prejudicial because the government did not
attempt to use it to enhance the credibility of the wit-
nesses or to imply that the defendant himself was threat-
ening the witnesses. See id.; see also United States v.
Vastola, 899 F.2d 211, 236 (3d Cir.) (‘‘the potential for
prejudice is slight [when the witness protection pro-
gram] testimony only vaguely suggests that the witness
was placed in the program because of threats emanating
from the defendant’’), vacated on other grounds, 497
U.S. 1001, 110 S. Ct. 3233, 111 L. Ed. 2d 744 (1990).
As in Deitz, evidence of Algarin’s relocation was
highly relevant to her claimed fear of the defendant and
his brothers and that this fear remained even after they
were incarcerated, a central focus of defense counsel’s
efforts to impeach her at trial. As the Appellate Court
noted, the jury reasonably could have concluded, con-
trary to the defendant’s assertion, ‘‘that Algarin’s will-
ingness to subject herself to the upheaval and disruption
of moving herself and her four children multiple times
was credible evidence of her belief that, due to the . . .
gang affiliation[s] [of the defendant and his brothers],
she and her family were not safe.’’ State v. Bermudez,
supra, 195 Conn. App. 797–98; see also State v. Burney,
288 Conn. 548, 566–67, 954 A.2d 793 (2008) (trial court
did not abuse its discretion in admitting evidence of
victim’s emotional state to explain her delay in reporting
sexual assault when ‘‘the defendant had made such
testimony ‘virtually essential’ by effectively attacking
the victim’s credibility on the basis of the time lapse
between the sexual assault and her first report of it’’).
The jury also reasonably could have concluded that
Algarin’s relocation explained her willingness to testify
against the defendant and his brothers, despite her long-
standing fear of retaliation.
Importantly, the state did not exploit this evidence.
Algarin’s testimony regarding her relocation was rela-
tively brief in the context of her two days of testimony,
the questions posed to her and her responses thereto
did not directly implicate the state in a way that might
suggest that the prosecutor was vouching for her credi-
bility, and the prosecutor made only brief reference to
it in closing argument.17 Cf. United States v. Melia,
supra, 691 F.2d 676 (‘‘dramatic testimony of [five wit-
nesses concerning the witness protection program] was
excessive—an abuse by the government of its privilege
to utilize this potentially volatile evidence’’); State v.
Harris, supra, 521 N.W.2d 352 (‘‘prosecutor’s ques-
tioning of witnesses about their participation in the
[witness] protection program did not just occur once
or with only one witness, but rather was an important
focus of her [direct examination],’’ and, thus, ‘‘created
an inference that [the defendant] was responsible for
the threats to [them], an inference unsupported by any
evidence’’). We note, moreover, that the evidence was
not presented in such a way as to suggest that Algarin
was in the witness protection program because of direct
threats by the defendant. See, e.g., United States v.
Deitz, supra, 577 F.3d 689 (‘‘courts have . . . deter-
mined that . . . references [to the witness protection
program] are admissible as long as they do not directly
implicate the defendant as a source of threats to the
witness’’); United States v. Vastola, supra, 899 F.2d 236(‘‘the potential for prejudice is slight [when the witness
protection program] testimony only vaguely suggests
that the witness was placed in the program because of
threats emanating from the defendant’’). Indeed, Algarin
testified that the defendant never abused her and that,
in fact, he had even intervened on her behalf when
Santiago assaulted her. The purpose of the testimony,
rather, was to rebut the defendant’s argument that Alg-
arin was not genuinely afraid of him and his brothers,
and the record reflects that the prosecutor utilized it
solely for that purpose when he argued in closing argu-
ment that Algarin was ‘‘still in relocation, still in fear
of the [defendant and his brothers].’’ In light of the
foregoing, we conclude that, under the circumstances
of this case, the trial court did not abuse its discretion in
admitting evidence that Algarin was relocated following
her statement to the police inculpating the defendant
and his brothers in the victim’s murder.
II
We next address the defendant’s claim that certain
evidentiary rulings by the trial court were constitutional
in nature and that the state cannot prove that these
constitutional errors were harmless. Specifically, the
defendant contends that the court violated (1) his con-
stitutional right under the sixth and fourteenth amend-
ments to the United States constitution to present a
defense and to confront witnesses against him by refus-
ing to admit into evidence three sexually explicit letters
Algarin had written to him while he was in prison, and
(2) his right to confrontation by preventing him from
questioning her about the termination of her employ-
ment at Waterbury Hospital and her birth control prac-
tices. The defendant sought to admit the letters to prove
that Algarin had a motive for falsely inculpating him and
Santiago in the victim’s murder. He sought to question
Algarin about conduct relating to Santiago, namely, the
reason for the termination of her employment and her
birth control practices, to discredit her testimony that
she was afraid of Santiago. We disagree with the defen-
dant.
A
We begin with the trial court’s exclusion of Algarin’s
letters, in which she professed her love for, and sexual
attraction to, the defendant in passionate and graphic
terms, including descriptions of certain sex acts. The
Appellate Court concluded that, although exclusion of
the letters did not state a claim that was constitutional
in nature in light of the adequate opportunity provided
to the defense to cross-examine Algarin on them, it was
evidentiary error to exclude them but that this error
was harmless. See State v. Bermudez, supra, 195 Conn.
App. 809–10. The defendant argues that being permitted
to cross-examine Algarin about the letters was insuffi-
cient and that precluding the jury from seeing the letters
themselves was not harmless because the letters ‘‘went
to the heart of [his] defense and explained Algarin’s
motive to fabricate her allegations.’’ Although we dis-
agree with the defendant, we reach that conclusion by
a different route than that taken by the Appellate Court.
At the outset, it is important to clarify the purpose
for which the defendant intended to use the letters and
the trial court’s ground for precluding their admission.
Prior to trial, the state filed a motion in limine to pre-
clude admission of three letters Algarin had written to
the defendant while he was in prison, citing several
grounds, including that they were more prejudicial than
probative. In its memorandum in support of its motion
in limine, the state argued that the letters were unduly
prejudicial for the following reason: ‘‘[B]ecause some
portions of the letters are sexually graphic, it may
unduly arouse the [jurors’] emotions of prejudice, hos-
tility or sympathy or may have an adverse effect [on]
the witness beyond tending to prove the fact or issue
that may justify its admission. . . . Allowing admission
. . . would subject [Algarin] to ridicule and scorn, and
would not, in any way, be relevant to the issues at trial,
or the credibility of the witness.’’
The trial court did not rule on the motion until the
state concluded its direct examination of Algarin. On
direct examination, Algarin testified that, although San-
tiago had threatened to harm her or her loved ones on
more than one occasion, she had never had a problem
with the defendant and he had in fact intervened to
protect her from Santiago’s physical abuse on more
than one occasion. She admitted, however, that she
feared ‘‘retaliation’’ by the defendant and his brothers,
and the gangs with which they were affiliated. Before
the defense commenced its cross-examination, the
court heard argument on the state’s motion in limine to
preclude admission of Algarin’s letters to the defendant.
Defense counsel contended that the letters were highly
relevant because, although Algarin claimed that she was
afraid of the defendant and his brothers, the letters
constituted evidence of her motive to falsely implicate
the defendant in the victim’s murder. Specifically,
defense counsel asserted that the defendant had given
the letters to Santiago, through their mother, that the
letters had prompted Santiago to end his sixteen year
relationship with Algarin, and that Algarin had con-
cocted her story implicating the defendant as revenge
for the breakup of that relationship.18
The trial court ruled that there was no reason to
introduce the letters themselves but that defense coun-
sel could question Algarin about the letters and specifi-
cally refer to them as ‘‘graphic letters about having sex
with the defendant . . . .’’ The trial court furthered
stated that it would allow defense counsel to ‘‘go line
by line talking about [the] various sex acts that [Algarin
wanted] to do with the defendant’’ but that it ‘‘[did not]
think [that there was] a need to read the exact language
in the letter . . . .’’
The next day, during his cross-examination of Alg-
arin, defense counsel sought to admit one of the letters
in redacted form. At that time, outside the jury’s pres-
ence, the following colloquy occurred:
‘‘The Court: It’s not being admitted at all. I’ve already
ruled. . . . I believe [that] the prejudicial impact . . .
outweighs its probative value [and that] the probative
value can be explored . . . by cross-examining the wit-
ness . . . but I will not allow . . . the defense to use
any of the [salacious] language in the letter. . . .
‘‘[Defense Counsel]: I agree with the court regarding
the language. The [salacious] language is taken out of
this [letter] . . . . It’s just one letter . . . [that] I again
say . . . is vital to the defense.
‘‘The Court: What is? What’s vital? Let me see what
it is that you want in . . . that I haven’t allowed in. It
says ‘Pooch Baby, I love you.’
‘‘[Defense Counsel]: Yeah.
‘‘The Court: Okay, you can ask her about that. . . .
You don’t need to have the letter in. . . . What else in
this letter is vital to the defense that I’m missing? ‘I
miss you, baby.’ [You can ask her] [d]idn’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 that.
‘‘[Defense Counsel]: ‘You look blazing.’
‘‘The Court: You what?
‘‘[Defense Counsel]: ‘You look blazing.’
‘‘The Court: Whatever. I said you can ask [that]. Those
aren’t what I would view as salacious comments. You
can ask any question that goes to her affection toward
[the defendant]. . . . I mean, it cuts both ways [coun-
sel]. One of the things I instruct the jury is that [it]
consider any motive to lie, any animosity toward [the
defendant]. In some ways you’re creating a case for the
state that . . . she has no animosity toward [the defen-
dant] and that she wouldn’t have made this up. But
that’s your choice.’’
Thereafter, defense counsel resumed his questioning
of Algarin, during which he asked her about the content
of the letters within the parameters set by the trial
court. Specifically, he asked her whether she had sent
the defendant three ‘‘sexually explicit’’ letters in which
she had expressed her love for him, which Algarin
admitted having done.19 He did not go through the letters
line by line with her, as the court had permitted him
to do, however. Nor did he recite aloud any of the
nonsalacious portions of the letters, as the court also
had permitted him to do. In accordance with his stated
purpose for introducing the letters, he asked her
whether it was true that Santiago broke up with her
‘‘after [she] sent [the] letters . . . in 2009,’’ to which
Algarin responded, ‘‘[t]hat is not true.’’ She then claimed
that it was she who had ended the relationship with
Santiago because of an unrelated incident in 2008. On
redirect examination, Algarin explained that she had
written the letters because, after the police reopened
their investigation into the victim’s murder, the defen-
dant asked her to write them as insurance against her
reporting him to the police because they would discredit
her. She stated that the defendant had not forced her
to write the letters; he simply asked, and she complied.
Although Algarin denied that the letters were the cause
of the end of her relationship with Santiago, the defen-
dant never proffered any other evidence to prove that
he had provided the letters to his mother, that Santiago
had seen the letters or learned of their existence, or
that Santiago had initiated the breakup of the relation-
ship with Algarin.
The defendant’s challenge to the trial court’s ruling
precluding admission of the letters is governed by the
following settled principles. ‘‘Generally, an accused
must comply with established rules of procedure and
evidence in exercising his right to present a defense.’’
State v. Cerreta, 260 Conn. 251, 261, 796 A.2d 1176(2002). ‘‘While the [c]onstitution . . . prohibits the
exclusion of defense evidence under rules that serve
no legitimate purpose or that are disproportionate to
the ends that they are asserted to promote, [well estab-
lished] rules of evidence permit trial judges to exclude
evidence if its probative value is outweighed by certain
other factors such as unfair prejudice, confusion of the
issues, or potential to mislead the jury.’’ Holmes v. South
Carolina, 547 U.S. 319, 326, 126 S. Ct. 1727, 164 L. Ed.
2d 503 (2006); see, e.g., State v. Sandoval, 263 Conn.
524, 545, 821 A.2d 247 (2003) (‘‘evidence of [a witness’]
abortion, in certain circumstances, may give rise to
a real risk of unfair prejudice because such evidence
necessarily implicates a woman’s sexual history and
her highly personal decision to terminate a pregnancy’’);
State v. Swain, 101 Conn. App. 253, 269, 921 A.2d 712(‘‘[T]he fact that [the complaining witness] was incar-
cerated might be expected to cause a negative reaction
in the eyes of the [jurors]. It is not difficult to presume
that such negative feeling could unduly prejudice a wit-
ness.’’ (Emphasis omitted; footnote omitted.)), cert.
denied, 283 Conn. 909, 928 A.2d 539 (2007). ‘‘[T]he expo-
sure of a witness’ motivation in testifying is a proper
and important function of the constitutionally protected
right of cross-examination. . . . It does not follow, of
course, that the [c]onfrontation [c]lause of the [s]ixth
[a]mendment prevents a trial judge from imposing any
limits on defense counsel’s inquiry into the potential
bias of a prosecution witness. On the contrary, trial
judges retain wide latitude insofar as the [c]onfronta-
tion [c]lause is concerned to impose reasonable limits
on such cross-examination based on concerns about,
among other things, harassment, prejudice, confusion
of the issues, the witness’ safety, or interrogation that
is repetitive or only marginally relevant. . . . [T]he
[c]onfrontation [c]lause guarantees an opportunity for
effective cross-examination, not cross-examination that
is effective in whatever way, and to whatever extent,
the defense might wish.’’ (Citation omitted; emphasis
omitted; internal quotation marks omitted.) Delaware
v. Van Arsdall, 475 U.S. 673, 678–79, 106 S. Ct. 1431,
89 L. Ed. 2d 674 (1986); see also State v. Gaynor, 182
Conn. 501, 508, 438 A.2d 749 (1980) (right of accused
to cross-examine adverse witness ‘‘may be limited
[when] the sixth amendment interest is outweighed by
the danger of harassing witnesses or unduly prejudicing
the jury’’ (internal quotation marks omitted)).
Thus, ‘‘[t]he defendant’s right to cross-examination
. . . is not absolute [but rather] is subject to reasonable
limitation by the court. . . . The general rule is that
restrictions on the scope of cross-examination are
within the sound discretion of the trial judge. This dis-
cretion comes into play . . . after the defendant has
been permitted cross-examination sufficient to satisfy
the sixth amendment. . . . The constitutional standard
is met when defense counsel is permitted to expose to
the jury the facts from which the jurors, as the sole
triers of the facts and credibility, can appropriately
draw inferences relating to the reliability of the wit-
ness.’’ (Citations omitted; internal quotation marks
omitted.) State v. Dobson, 221 Conn. 128, 137, 602 A.2d
977 (1992).
Unlike the Appellate Court, we begin with the ques-
tion of whether the trial court correctly concluded that
the letters were more prejudicial than probative. See
State v. Sandoval, supra, 263 Conn. 544–46 (considering
whether trial court abused its discretion in ruling that
prejudicial effect of proffered evidence outweighed its
probative value before assessing whether ruling was
of constitutional magnitude or merely evidentiary in
nature); see also State v. Christian, 267 Conn. 710, 750,
841 A.2d 1158 (2004) (considering whether trial court
improperly excluded witness’ testimony before assessing
whether that ruling was of constitutional magnitude
or merely evidentiary in nature). We cannot help but
observe that the trial court’s ruling appears to be
directed more at protecting the assumed delicate sensi-
bilities of the jurors from exposure to offensive words
than at protecting Algarin from undue embarrassment.
We question whether Algarin would have been apprecia-
bly less humiliated by having the jurors read the letters
than having them hear about the sex acts described
therein, line by line, in more clinical terms in cross-
examination, as permitted by the trial court’s ruling. If
the specific terminology was probative of facts relevant
to the defendant’s revenge theory, the trial court would
have abused its discretion in precluding the defendant
from introducing the letters into evidence simply because
they contained vulgar language. Cf. United States v.
Schweihs, 971 F.2d 1302, 1314 (7th Cir. 1992) (conclud-
ing that District Court did not abuse its discretion in
denying in part defense motion in limine to redact from
videotape evidence offensive language, either racially
or ethnically derogatory or coarse and vulgar, because
offensive language had probative value to issues in
case); see also United States v. Soltero-Olivas, 285 Fed.
Appx. 476, 478 (9th Cir. 2008) (concluding that District
Court did not abuse its discretion in admitting transcript
of defendant’s telephone conversation containing vul-
gar language when risk of unfair prejudice did not sub-
stantially outweigh transcript’s probative value).
Several factors, however, persuade us that the sexu-
ally graphic language and the letters more generally
were of little to no probative value. The lack of proba-
tive value of the sexually graphic aspects of the letters
is evidenced by defense counsel’s express concession
that he ‘‘agree[d]’’ with the court that the jury did not
need to see the salacious language when he requested
the admission of a redacted form of one letter. Consis-
tent with that concession, he declined to ask Algarin a
single question about the sexual aspect of the letters,
other than whether she had sent the defendant ‘‘sexually
explicit’’ letters. See footnote 19 of this opinion. More
important, the defendant’s failure to introduce any evi-
dence to support the factual predicates to his theory
of relevance negated the probative value of the letters.
In order for the letters to be relevant to the defendant’s
revenge theory, Santiago would have had to see them
or, at the very least, learned of their existence and
contents. No evidence was proffered from which the
jury could have inferred either fact, let alone that Santi-
ago was the one who had ended the relationship. ‘‘When
the admissibility of evidence depends upon connecting
facts, the court may admit the evidence upon proof of
the connecting facts or subject to later proof of the
connecting facts.’’ (Emphasis added.) Conn. Code Evid.
§ 1-3 (b). ‘‘If the proponent fails to introduce evidence
sufficient to prove the connecting facts, the court may
instruct the jury to disregard the evidence or order the
earlier testimony stricken. State v. Ferraro, 160 Conn.
42, 45, 273 A.2d 694 (1970); State v. Johnson, 160 Conn.
28, 32–33, 273 A.2d 702 (1970).’’ Conn. Code Evid. § 1-
3 (b), commentary. The trial court did not issue such
an order, but its discretion to do so evidences the lack
of probative value of the letters in the absence of proof
of the connecting facts.20
Although the trial court treated the letters as indepen-
dently probative of whether Algarin was fearful of the
defendant; see State v. Bermudez, supra, 195 Conn.
App. 810–11; the defendant did not seek admission of
the letters on that basis. Indeed, the trial court overruled
the state’s hearsay objection on the ground that the
content of the letters was not being admitted for its
truth. It is true that, if the jury had accepted the defen-
dant’s revenge theory, that theory would have discred-
ited Algarin’s claim that she had delayed disclosing what
she knew about the defendant’s and his brothers’
involvement in the victim’s murder because she feared
retribution. The defendant evidenced no intention, how-
ever, to use the letters themselves as direct proof of
Algarin’s state of mind. The defendant never asked Alg-
arin any questions about the letters with regard to her
state of mind, and the only reference to the letters in
defense counsel’s closing argument was in connection
with the revenge theory. Moreover, there was no reason
for the defendant to offer the letters to prove that Alg-
arin was not fearful of the defendant. Algarin essentially
admitted that she had a good relationship with the
defendant; she had no reason to fear him, as long as
she did not inculpate him in the crime. The prosecutor
in fact used Algarin’s testimony about her good relation-
ship with the defendant to argue in closing argument
that Algarin had no motive to lie about the defendant.21
Insofar as the defendant contends that the trial
court’s exclusion of the letters deprived him of the
opportunity to effectively impeach Algarin’s credibility,
he has failed to demonstrate how the specific contents
of the letters bore on that issue.22 Therefore, we con-
clude that the trial court did not abuse its discretion
in concluding that the prejudicial effect of the letters
outweighed their probative value. In the absence of
evidentiary error or a colorable claim that application
of the rules of evidence resulted in a manifest injustice,
the defendant cannot establish a violation of his consti-
tutional rights to confront witnesses or to present a
defense.
B
Last, we turn to the defendant’s claim that the trial
court committed harmful, constitutional error when it
prevented him from questioning Algarin about the cir-
cumstances surrounding the termination of her employ-
ment from Waterbury Hospital and her birth control
practices during her marriage to Santiago. The defen-
dant contends that ‘‘[b]oth of these matters were directly
relevant to the central issue at trial—[Algarin’s] fear of
Santiago as the reason why she delayed going to the
police for [twelve] years.’’ Although we might have
decided these evidentiary questions differently from the
trial court, we agree with the Appellate Court that the
exclusion of these matters was not constitutional in
nature and that the trial court did not abuse its discre-
tion in precluding the two lines of inquiry.
The following facts and procedural history are rele-
vant to our resolution of the defendant’s claim. In an
effort to further impeach Algarin, defense counsel
asked her whether she felt sorry for Santiago in January,
2004, when he was admitted to the psychiatric unit at
her place of employment, Waterbury Hospital. The trial
court sustained the prosecutor’s objection on relevancy
grounds. Outside the presence of the jury, defense coun-
sel explained that Algarin’s purported fear of Santiago
was contradicted by her objection to the treatment San-
tiago received at the hospital in 2004, which was so
‘‘disruptive’’ that it ultimately resulted in her employ-
ment being terminated. Defense counsel argued: ‘‘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 reaffirmed its ruling sustaining the
prosecutor’s objection, finding that the evidence was
‘‘totally irrelevant,’’ that the defense had various other
avenues of impeachment, and that, to the extent the
evidence possessed any relevance, its ‘‘probative value
[was] far outweighed by [its] prejudicial impact.’’ The
following day, the defense again sought to introduce
evidence of Algarin’s behavior at the hospital, this time
through examination of Crozier. The court sustained
the prosecutor’s objection, concluding that the evi-
dence was irrelevant, did not go to truth and veracity,
was cumulative of other evidence contradicting Algar-
in’s fear of Santiago, and was too remote in time, and
that, even if it were relevant, its prejudicial effect out-
weighed its probative value.
During cross-examination, defense counsel also
asked Algarin why she had conceived two more children
with Santiago after the victim’s murder, despite her
purported fear of him, to which Algarin responded that
Santiago had hid her birth control and had prevented
her from seeing her gynecologist to get more. When
defense counsel pressed Algarin whether there were
other means by which she could have prevented becom-
ing pregnant, the court sustained the prosecutor’s
objection to continued inquiry on the topic. The follow-
ing day, the court again disallowed further inquiry into
Algarin’s birth control practices, finding that the subject
matter was irrelevant.
The Appellate Court’s reasoning in concluding that
the trial court did not abuse its discretion in precluding
the two lines of inquiry equally demonstrates why these
rulings were not constitutional in nature. See State v.
Dobson, supra, 221 Conn. 137 (‘‘[t]he constitutional
standard is met when defense counsel is permitted to
expose to the jury the facts from which the jurors, as the
sole triers of the facts and credibility, can appropriately
draw inferences relating to the reliability of the witness’’
(internal quotation marks omitted)). As the Appellate
Court explained, quoting State v. Annulli, 309 Conn.
482, 493–95, 71 A.3d 530 (2013), ‘‘[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 mat-
ter 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
collateral 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.’’ (Emphasis in original; internal quota-
tion marks omitted.) State v. Bermudez, supra, 195
Conn. App. 819.
Like the Appellate Court, we conclude that it was a
proper exercise of the trial court’s discretion to con-
clude that the circumstances surrounding the termina-
tion of Algarin’s employment from Waterbury Hospital
were simply too remote and ‘‘would have injected a
collateral issue into the trial.’’ Id. We also agree with
the Appellate Court that the trial court properly found
that further inquiry into Algarin’s birth control prac-
tices, after defense counsel questioned her about why
she continued to have children with Santiago after the
victim’s murder, ‘‘would have inappropriately focused
on a matter far too attenuated from the material issues
in the case.’’ Id., 820.
Even if we were to conclude that the trial court should
have permitted some inquiry into these two areas, we
nevertheless would conclude that the error was harm-
less in light of the ample opportunity defense counsel
had at trial to impeach Algarin’s purported fear of Santi-
ago. To the extent that the excluded lines of inquiry
were relevant to this issue, they were merely cumulative
of other defense evidence calling into question the genu-
ineness of her fear. We note, moreover, that the defense’s
theory that Algarin could not have been genuinely afraid
of the defendant and his brothers in light of the loyalty
she demonstrated to them over the years was not a
particularly strong defense. It is common knowledge
that many victims of spousal abuse stay with their abus-
ers for years, often appearing to the outside world to
be in happy, loving relationships. Many undoubtedly
love their spouses and try to make them happy. Many,
like Algarin, have children with their abusers, even after
the abuse starts. To argue, therefore, that Algarin’s sup-
port of Santiago during their marriage was proof that
she was not genuinely afraid of him and could not have
seriously believed that he would hurt her if she turned
him into the police simply flies in the face of reality.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
* November 3, 2021, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
For purposes of clarity, we refer in this opinion to Algarin-Santiago as
Algarin to distinguish her from her estranged husband, Victor Santiago.
2
‘‘Algarin testified that the two married so that she would not be able to
testify against Santiago.’’ State v. Bermudez, 195 Conn. App. 780, 784 n.3,
228 A.3d 96 (2020).
3
‘‘Algarin testified that she recognized some of these checks as Social
Security checks.’’ State v. Bermudez, 195 Conn. App. 780, 784 n.4, 228 A.3d
96 (2020).
4
There was evidence that, as a consequence of this incident, the state
brought criminal charges against Morales, and Santiago later initiated a civil
action against him. ‘‘Santiago was frustrated that Morales had been acquitted
of shooting him and was further enraged that his civil action against [him]
was unlikely to result in a large monetary [award].’’ State v. Bermudez,
supra, 195 Conn. App. 785 n.5.
5
‘‘The [defendant and his] brothers decided to burn the checks after
Algarin refused to deposit them in her account.’’ State v. Bermudez, supra,
195 Conn. App. 785 n.6.
6
‘‘Algarin testified that the defendant and Santiago were members of the
Latin Kings, while Bonilla was a member of ‘Netas.’ ’’ State v. Bermudez,
supra, 195 Conn. App. 786 n.7.
7
‘‘Crozier had represented Algarin, the defendant, Santiago, and various
family members [in] 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.’ ’’ State v. Bermudez, supra, 195 Conn. App. 786 n.8.
8
At trial, Roden-Timko repudiated the statement she had given to the
police. The jury was permitted to credit her prior statement under State v.
Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.
Ct. 597, 93 L. Ed. 2d 598 (1986), in which we adopted a hearsay exception
allowing the substantive use of prior written inconsistent statements, signed
by the declarant, who has personal knowledge of the facts stated, when the
declarant testifies at trial and is subject to cross-examination.
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.’’ State v. Bermudez,
supra, 195 Conn. App. 787 n.9.
10
The defendant adduced evidence that, in the years following the victim’s
murder, Algarin had written Santiago love letters and sent him money when-
ever he was imprisoned. Attorney Norman A. Pattis and a bail bondsman,
Ismael Santiago, testified that, in their professional experiences working
with Santiago and Algarin on unrelated matters, the couple appeared to
have a normal, loving, and nonabusive relationship. Defense counsel also
argued that, when Algarin had dated another man during one of Santiago’s
stints in prison in the early 2000s, Santiago did not threaten to kill Algarin
or her boyfriend.
11
Defense counsel argued: ‘‘[Algarin] spent [sixteen] years of her life with
[Santiago]. She was committed to him despite his problems. Why would
she leave him? . . . We submit that [Santiago] found out . . . about the
sexually explicit letters . . . and he broke up with her after he found out
that she was writing these sexually explicit letters to [the defendant], and
. . . what happened then? He broke up with her, and she was alone in her
life after [sixteen] years with [Santiago], and she weaved this tale with the
help of [the police] . . . for revenge on [Santiago] for ending the relation-
ship, and she got a $50,000 bonus to start a new life, and she also was
able to [exact] her revenge on [the defendant] for sending the letters [to
Santiago] . . . .’’
12
The trial court ultimately dismissed the murder charge. See State v.
Bermudez, supra, 195 Conn. App. 788 n.10.
13
This court granted the defendant’s petition for certification to appeal,
limited to the following issues: (1) ‘‘Did the Appellate Court properly uphold
the trial court’s admission of evidence that the defendant was a gang member
and that the state’s chief witness was relocated out of state after providing
her statement to the police inculpating the defendant?’’ (2) ‘‘Did the Appellate
Court correctly conclude that the trial court’s erroneous preclusion of sexu-
ally explicit letters the state’s chief witness wrote to the defendant was
harmless and that the trial court’s limitation on the defendant’s cross-exami-
nation of her was proper?’’ And (3) ‘‘[d]id the Appellate Court properly
uphold the trial court’s rulings limiting the defendant’s cross-examination
of the state’s chief witness on topics regarding her credibility?’’ State v.
Bermudez, 335 Conn. 908, 227 A.3d 521 (2020).
14
During its final charge to the jury, the trial court reiterated this limitation
in a lengthy instruction, emphasizing that this evidence could not be consid-
ered ‘‘as establishing a predisposition on the part of the defendant [and his
brothers] to commit any of the crimes charged or to demonstrate a criminal
propensity,’’ and that it could be considered only to the extent that ‘‘it may
bear on the issue of fear of [them] on the part of [Algarin], and some of
her reasons for not immediately reporting her observations of April 11, 1998,
and to explain the timing of her disclosure in 2010.’’ The court further
explained to the jury that it was not obligated to credit the evidence for
this purpose.
15
Algarin’s testimony concerning her relocation proceeded as follows:
‘‘[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 occa-
sion, correct?
‘‘[Algarin]: Yes.’’
16
It appears that Algarin’s testimony was not as crucial in the trial of
Bonilla, who gave a detailed confession to the police at the time of his
arrest. See State v. Bonilla, 317 Conn. 758, 761–62, 120 A.3d 481 (2015).
The principle issue on appeal in Bonilla was whether there was sufficient
evidence to establish the intent element of Bonilla’s murder as an accessory
conviction. Id., 765–66.
17
Although the trial court did not provide the jury with a limiting instruc-
tion concerning this evidence, we note that the defendant did not request
one. Nonetheless, we agree with the Minnesota Supreme Court that, when
admitting evidence of this sort, the best course is for the trial court to
provide the jury with a limiting instruction as to its proper use in order to
reduce the potential prejudice to the defendant. See State v. Harris, supra,
521 N.W.2d 352. Such an instruction in the present case would have informed
the jury that Algarin’s testimony regarding her relocation was to be used
solely in assessing her credibility as to her reasons for waiting twelve years
to come forward.
18
Defense counsel replied to the court’s relevance inquiry as follows:
‘‘Because she is contending that she was in fear of not only . . . Santiago
and [Bonilla], but also [the defendant]; she was in fear. The information
is—and this is what I want to inquire into—is that, once those letters
were written to [the defendant], [he] gave them to his mother, and his
mother was able to get those—send those letters to [Santiago]. After . . .
Santiago read those letters to [the defendant] . . . he called [Algarin] up
and said, ‘It’s over, baby; it’s over.’ So, after she [became] aware that their
relationship was over—this is after, what, sixteen years . . . she finds out
that he’s breaking up with her, she’s history. She then has a motive to
concoct this scenario.’’ (Emphasis added.)
19
The following constitutes the entirety of defense counsel’s cross-exami-
nation of Algarin about the letters:
‘‘[Defense Counsel]: Do you remember sending [the defendant] 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]: Do you remember when you sent that to him?
‘‘[Algarin]: No.
***
‘‘[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]: 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.’’
On recross-examination, the following exchange ensued:
‘‘[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.
***
‘‘[Defense Counsel]: And you referred to [the defendant] as B-Real in that
letter, correct? . . .
‘‘[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 conversation?
‘‘[Algarin]: After [Bonilla] moved in and that article came out in the newspa-
per.
***
‘‘[Defense Counsel]: And had you used AOL to get the verbiage out of—
for [another] 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 [the defendant]?
‘‘[Algarin]: Yes, ‘cause this showed up in [Santiago’s] trial as insurance.’’
20
The prosecutor never moved to strike the testimony related to the letters
due to the absence of evidence to support the breakup theory, but the
prosecutor did object to a defense question on this basis and did point out
this omission in its rebuttal argument to the jury.
21
The prosecutor argued: ‘‘When you judge [Algarin’s] credibility, consider
this: No motive to lie about the defendant. He was nice to her. . . . She
never had a problem with him. She testified to that. That night she was
getting beat, the night of the incident . . . the defendant stops her from
getting beat. . . . He had stopped . . . Santiago from beating her on other
occasions. Why would she lie about this defendant? . . . Why implicate the
defendant unless it was true?’’
22
We note that, after Algarin testified that she had written the salacious
letters at the behest of the defendant and that she had drawn on an online
adult website for some of the sexually explicit language in at least one of
the letters, defense counsel never renewed his objection to the exclusion
of the letters on the ground that they were relevant impeachment evidence
with regard to those facts.