State v. Santiago

143 Conn.App. 26

66 A.3d 520

STATE of Connecticut

v.Victor SANTIAGO.

No. 34699.

Appellate Court of Connecticut.

Argued Jan. 14, 2013.

Decided May 28, 2013.

Katherine C. Essington, assigned counsel, for the appellant (defendant).

Timothy J. Sugrue, assistant state's attorney, with whom were Terence D. Mariani, Jr., senior assistant state's attorney, and, on the brief, Maureen Platt, state's attorney, for the appellee (state).

ROBINSON, ALVORD and SHELDON, Js.

SHELDON, J.

The defendant, Victor Santiago, appeals from his conviction of felony murder in violation of General Statutes § 53a–54c and murder in violation of General Statutes § 53a–54a, claiming that he was deprived of his due process right to a fair trial due to improper comments made by the prosecutor, Terence D. Mariani, Jr., during his closing and rebuttal arguments to the jury.¹ He also asks this court to invoke its inherent supervisory authority over the administration of justice to reverse his conviction in light of Mariani's improper comments made during his closing argument to the jury and his deliberate pattern of making such comments in numerous other cases. Because we conclude that Mariani has engaged in a deliberate pattern of improper conduct in this case and others, and he remains undeterred by pronouncements by this court and our Supreme Court that his conduct was improper, we believe that nothing short of reversal will have the effect of deterring him. We thus reverse the defendant's judgment of conviction and remand the case for a new trial.²

The following factual and procedural history provides context for our analysis of the defendant's claims on appeal. In April, 1998, Wilfred Morales owned a bar, the Morales Cafe', which was located on Baldwin Street in Bridgeport. After closing the bar in the early morning hours of April 11, 1998, Morales left the bar with a blue bank bag containing the cash and checks received from the bar's patrons the previous day. At approximately 2:30 a.m. on April 11, 1998, Morales was shot and killed in the street near his home on Middle Street in Bridgeport. The defendant was ultimately charged with the murder of Morales.

The state's chief witness in its prosecution of the defendant was the defendant's estranged wife, Damaris Algarin–Santiago (Algarin). Algarin testified that she had been in a relationship with the defendant for sixteen years, beginning when she was in the eighth grade; that they had gotten married in 2004 so that she “couldn't testify against him”; and that they had four children together. She stated that, in the course of her relationship with the defendant, she had come to fear him because he was physically and verbally abusive, he had threatened her and he was a member and the one-time president of the Latin Kings street gang.

The defendant had two brothers, Thomas Bonilla and Noel Bermudez. Algarin testified that Bonilla was released from prison on April 10, 1998, which was a cause for celebration because it was “the first time in a long time [that] ... these [three] brothers were ... out [of prison] at the same time.” At approximately 8 p.m., the defendant and his brothers went out to celebrate, while Algarin stayed home and later went to sleep.

In the early morning hours of April 11, 1998, at approximately 3 a.m., Algarin was awakened by the defendant yelling for her to come downstairs. Algarin testified that, when she entered the living room downstairs, she saw cash, checks and a blue bank bag on the coffee table, which the defendant and Bonilla were sorting through. Algarin testified that Bermudez was in the kitchen taking apart a gun. Bonilla threatened to kill Algarin and her mother if she said anything about what she was seeing or hearing. Algarin testified that Bermudez told her that he shot Morales because he thought that he had a gun and because Morales previously had shot the defendant.

Algarin explained that the defendant and his brothers next proceeded to destroy the evidence. First, they burned the checks and the bank bag in the kitchen sink. Then they burned the black clothes, which they had been wearing, in a metal bin in the backyard, and put the remaining debris and ashes from that bin and the kitchen sink into a garbage bag which the defendant threw into a dumpster. Algarin testified that Bonilla and Bermudez went to clean any gun residue from the vehicle that they had used the previous night, while the defendant wiped the pieces of the gun with a towel and baby oil to get rid of the fingerprints. The defendant then put the pieces of the gun into three separate bags and took Algarin with him to dispose of them. Algarin recalled that the defendant threw the first bag in the dumpster across the street from their house; the second bag into another dumpster down the hill from where they lived; and the third bag into a river that was near a car wash. The defendant forced Algarin to go with him to dispose of the pieces of the gun so that she would not be able to “snitch” on him. Algarin testified that, while they were in the car, she again asked the defendant about the murder. He told her that he had been stalking Morales because he and his brothers needed money to start selling drugs; that Bermudez and Bonilla had waited in the bushes for Morales while he waited in the car; and that Bermudez had shot Morales.

When they all returned to the house, the defendant and his brothers began formulating an alibi. They instructed Algarin to tell the police that they were celebrating Bonilla's release from prison and, because April 10, 1998, had fallen on Good Friday, they had all gone to their mother's house to eat fish. Algarin agreed to go along with the alibi. Algarin testified that she deposited the $3000 cash that had been in Morales' bank bag into her bank account in three increments, using three different ATM machines. When the deposits cleared a day or two later, Algarin withdrewthe money for the defendant and his brothers.

Algarin stuck to her story for the next twelve years, despite repeated questioning by the police. In 2009, however, Algarin began dating a man with whom she shared her knowledge about Morales' murder. In April, 2010, when that man had some legal troubles of his own, he told the police what Algarin had told him about Morales' murder. When confronted by the police, Algarin finally admitted that the defendant and his brothers had killed Morales and told the police everything she knew regarding the murder.

The defendant thereafter was charged with murder in violation of General Statutes §§ 53a–8 and 53a–54a (a), murder in violation of § 53a–54a (a) and felony murder in violation of § 53a–54c. The jury found the defendant not guilty of murder in violation of §§ 53a–8 and 53a–54a (a). The jury found the defendant guilty of both murder in violation of § 53a–54a (a) and felony murder in violation of § 53a–54c. The court merged the conviction of murder into the conviction of felony murder and sentenced the defendant to a term of sixty years of incarceration. This appeal followed. Additional facts will be set forth as necessary.

The defendant claims that Mariani made several improper comments during his closing and rebuttal arguments to the jury, which deprived him of his constitutional right to a fair trial. “[P]rosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments.... In determining whether such [impropriety] has occurred, the reviewing court must give due deference to the fact that [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument.... Thus, as the state's advocate, a prosecutor may argue the state's case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom.... Moreover, [i]t does not follow ... that every use of rhetorical language or device [by the prosecutor] is improper.... The occasional use of rhetorical devices is simply fair argument.... Nevertheless, the prosecutor has a heightened duty to avoid argument that strays from the evidence or diverts the jury's attention from the facts of the case.... This heightened duty derives from our long recognition of the special role played by the state's attorney in a criminal trial. He is not only an officer of the court, like every attorney, but is also a high public officer, representing the people of the [s]tate, who seek impartial justice for the guilty as much as for the innocent. In discharging his most important duties, he deserves and receives in peculiar degree the support of the court and the respect of the citizens of the county. By reason of his office, he usually exercises great influence upon jurors. His conduct and language in the trial of cases in which human life or liberty [is] at stake should be forceful, but fair, because he represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice, or resentment. If the accused be guilty, he should [nonetheless] be convicted only after a fair trial, conducted strictly according to the sound and well-established rules which the laws prescribe. While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or to suggest an inference from, facts not in evidence, or to present matters which the jury ha[s] no right to consider....

“Or to put it another way while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.... A prosecutor must draw a careful line. On the one hand, he should be fair; h...