State v. Bermudez

341 Conn. 233

267 A.3d 44

STATE of Connecticut

v.Noel BERMUDEZ

SC 20461

Supreme Court of Connecticut.

Argued February 18, 2021

Officially released November 3, 2021^*

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).

Robinson, C. J., and McDonald, D'Auria, Mullins, Kahn, Ecker and Keller, Js.

KELLER, J.

The defendant, Noel Bermudez, appeals, following our grant of certification, from the judgment of the Appellate Court affirming the judgment of conviction, 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 defendant 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 incriminating 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, Algarin implicated the defendant, Santiago, and another brother of the defendant, Thomas Bonilla, in Morales’ death. The defendant ultimately was charged with the murder of Morales.

"Algarin was the state's chief witness in its prosecution of the defendant. Algarin testified that she had been in a relationship with Santiago since [graduating from the eighth grade in] 1993 and that they eventually married in 2004.² Throughout their time together, Santiago abused Algarin on a regular basis, both physically and emotionally. The couple had two children at the time of Morales’ murder [and had two more children together thereafter].

"In her testimony at trial, Algarin [offered the following account of] the events of April 11, 1998. At approximately 3 a.m., Algarin was awakened by Santiago, who was screaming at her to come downstairs. Upon doing so, Algarin saw a coffee table full of money, checks,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. Bermudez , 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 defendant 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., at 785, 228 A.3d 96.

Algarin then observed the defendant and his brothers undertake the following activities to dispose of evidence 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 pistol 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 [Algarin] 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. Reluctantly, [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., at 785–86, 228 A.3d 96.

"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 following 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. Approximately one year after Morales’ murder, Algarin revealed to Ralph C. Crozier, an attorney whom she knew, that the defendant and his two brothers had been involved in the homicide.⁷ She also provided details of the homicide 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 Maldonado, a person she began dating in 2009 while Santiago was incarcerated for an unrelated matter.

"Despite being incarcerated throughout much of the twelve year interval [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 unrelated 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]. Fearing that Maldonado had disclosed information and concerned 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., at 786–87, 228 A.3d 96.

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 recantation 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, Maldonado 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...