State v. Bermudez

• Citation: 228 A.3d 96,195 Conn.App. 780
• Decision Date: 18 February 2020
• Docket Number: AC 41864
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Noel BERMUDEZ

195 Conn.App. 780

228 A.3d 96

STATE of Connecticut

v.Noel BERMUDEZ

AC 41864

Appellate Court of Connecticut.

Argued September 6, 2019

Officially released February 18, 2020

Pamela S. Nagy, assistant public defender, for the appellant (defendant).

Timothy F. Costello, 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).

Elgo, Moll and Devlin, Js.

ELGO, J.

The defendant, Noel Bermudez, appeals from the judgment of conviction, rendered after a jury trial, of one count of felony murder in violation of General Statutes § 53a-54c. On appeal, the defendant alleges evidentiary error, claiming that the trial court improperly (1) admitted testimony that he was a member of a gang and that a state's witness had to be relocated as a result of inculpating the defendant, and (2) refused to admit into evidence letters written by a state's witness to the defendant while the defendant was incarcerated, prevented the defendant from questioning the state's witness about the termination of her employment, and prevented the defendant from questioning the state's witness about her birth control practices. Additionally, the defendant claims that the prosecutor improperly referred to facts not in evidence during closing argument to the jury. We affirm the judgment of the trial court.¹

On the basis of the evidence adduced at trial, the jury reasonably could have found the following facts. 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, Damaris Algarin-Santiago,² 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 1993 and that they eventually married in 2004.³ 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.

In her testimony at trial, Algarin recounted 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,⁴ 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.

Algarin testified that the defendant and his two 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, Algarin testified that Santiago stalked Morales for some time. Thereafter, Santiago planned to act as the driver while Bonilla and the defendant would lie in wait in the bushes to 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 Morales was reaching for a gun, and (2) he wanted revenge due to his belief that Morales had shot Santiago some years earlier.⁵

Upon arriving at Algarin's home after the shooting, the defendant and his brothers burned the checks in the kitchen sink,⁶ cleaned the weapons of fingerprints, and placed the dismantled pistol parts into three separate bags. To further conceal their crime, the three brothers burned their clothing in a barrel behind the house and cleaned the car to remove gun residue. When Santiago returned, he again started to beat Algarin after her repeated inquiries into what had transpired and threatened to kill her mother. When she refused to go with him to dispose of the bags filled with the gun parts, Santiago continued to beat Algarin until the defendant intervened. Reluctantly, she agreed and accompanied Santiago to dispose of the bags. When the third bag was thrown into the Naugatuck River, Santiago again threatened to kill Algarin, her mother, and their children, stating that "[n]ow you know what we're capable of."

Subsequently, 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 the home of Santiago's mother. Later that day, Santiago and Bonilla accompanied Algarin to deposit the cash into her bank account via an automated teller machine (ATM). Algarin testified that she deposited three separate envelopes of cash, which she believed to have totaled $3000. When the cash was cleared by the bank on the following Monday, Santiago and Bonilla went with Algarin to make a withdrawal, at which time Algarin gave the cash to Santiago.

From 1998 to 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,⁷ 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.⁸ She also provided details of the homicide to Sally Roden-Timko, a coworker at Waterbury Hospital, who would confirm the interaction in a statement given to the police in 2010. 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, Santiago continued to threaten Algarin. After a newspaper article was published on the investigation into Morales' murder, the defendant, who was also incarcerated on an unrelated criminal matter during the twelve year interval, instructed Algarin to write to the defendant three letters that were intimate and particularly salacious in nature. The defendant had requested the letters for the 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. Fearing that Maldonado had disclosed information and concerned that he would be murdered by Santiago if he were incarcerated, Algarin abandoned the alibi 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. Following a jury trial, the defendant was found guilty of felony murder. When the jury became deadlocked on the charge of murder, the court declared a mistrial on that charge.¹⁰ The court thereafter sentenced the defendant to a total effective term of sixty years of incarceration. This appeal followed.

I

On appeal, the defendant first raises two claims of error with respect to the admission of certain evidence. The defendant alleges that the court improperly admitted evidence (1) of his and Santiago's gang affiliations and (2) that Algarin was relocated by the state. According to the defendant, these allegedly improper rulings constituted harmful error. We disagree.

Before addressing each of the challenged evidentiary rulings, we first set forth the applicable standard of review. "To the extent [that] a trial court's admission of evidence is based on an interpretation of the [Connecticut] Code of Evidence, our standard of review is plenary.... We review the trial court's decision to admit evidence, if premised on a correct view of the law, however, for an abuse of discretion." (Internal quotation marks omitted.) State v. Santiago , 187 Conn. App. 350, 357, 202 A.3d 405, cert. denied, 331 Conn. 902, 201 A.3d 403 (2019).

A

We first address the defendant's claim that the trial court improperly admitted evidence that both he and Santiago were gang members. According to the defendant, because the crime charged was not criminal activity pursuant to gang membership, this evidence was both irrelevant and highly inflammatory.¹¹ In response, the state argues that those gang affiliations were highly probative in explaining why Algarin waited twelve years to provide a statement to the police. We agree with the state.

The following additional facts are relevant to this claim. 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 gang affiliations. Specifically, the state sought...