198 Conn.App. 90
Conn. App. Ct.2020Background
- On Dec. 27, 2015 the victim reported that the defendant, Nector Marrero, kicked in her door and beat her; she gave police the defendant’s cell number and sought a protective order. Medical records and police bodycam footage corroborated visible, serious injuries.
- Police found jailhouse phone records showing calls between the defendant’s then‑girlfriend, Amber Greco (incarcerated), and a phone registered to “Nector Marrero.” Two recorded calls contained a male caller admitting he had "kicked in the door" of a woman’s house, said he was “on the run,” and later changed his number.
- At trial the victim recanted, testifying her injuries were from falling down stairs; the defense presented an alibi (Joseph “Little Joe” Ferraro). The recordings and transcripts of Greco’s calls were admitted into evidence.
- The defendant was convicted of home invasion, first‑degree burglary, and second‑degree assault and appealed. He raised three principal challenges: (1) prosecutorial improprieties (leading questions, improper refreshing, improper closing argument); (2) failure/foreclosure of voice‑authentication of the recordings; and (3) erroneous consciousness of guilt instruction.
- The Appellate Court affirmed, rejecting each claim: it applied State v. Salamon and related authority to analyze alleged prosecutorial misconduct, found the record inadequate on the refreshing‑document claim, concluded closing argument comments were permissible inferences, held authentication objections were largely unpreserved/strategic, and sustained the consciousness‑of‑guilt instruction.
Issues
| Issue | State's Argument | Marrero's Argument | Held |
|---|---|---|---|
| 1. Prosecutor’s use of leading questions on direct | Leading of a hostile witness was proper; good‑faith basis for suggested facts; questions did not vouch or impermissibly put facts before jury | Excessive leading misstated facts (e.g., prior ID of caller, threats) and infringed due process | Rejected — no constitutional impropriety under Salamon; many questions allowed by hostility exception, most objections waived, and questions did not vouch or present facts without good‑faith basis |
| 2. Refreshing a witness with a document different than represented | No record support that an improper document was used; defendant failed to reconstruct record | Prosecutor showed Officer Luciano a different document than the one he said would refresh memory, misleading court and jury | Not reviewable on the record — inadequate record to establish misconduct; claim not factually supported on appeal |
| 3. Closing argument suggesting defendant threatened victim | Argued permissible inference: jury may consider why victim recanted (fear, intimidation) based on evidence of prior statements, injuries, and relationship | Prosecutor advanced facts not in evidence—unsworn testimony—that victim changed testimony due to defendant’s threats | Rejected — prosecutor invited reasonable inferences supported by the evidence; remarks were not vouching or assertion of secret facts; defense did not object at trial |
| 4. Admission/authentication of jail‑call recordings; voice ID | Recordings admitted subject to authentication; state presented circumstantial link (number registered to Marrero, timing, content); defendant had strategic options and challenged identity in closing | Trial court blocked exploration/authentication of voice identification; no witness confirmed it was Marrero’s voice | Rejected — defendant failed to preserve or pursue authentication objections at trial, and the record does not show abuse of discretion; apparent strategic choice to argue identity in closing |
| 5. Consciousness‑of‑guilt jury instruction | Evidence (difficulty locating defendant, calls saying he was “on the run”, changed number, recording content, temporal proximity) supported instruction | Instruction improper because evasive acts did not relate specifically to charged conduct and defense was alibi | Rejected — instruction permissible; reasonable evidence supported inference of guilty consciousness; defendant preserved claim by exception to delivered charge |
Key Cases Cited
- State v. Salamon, 287 Conn. 509 (2008) (framework for evaluating prosecutorial impropriety from leading questions; requires evidentiary and constitutional impropriety)
- State v. Weatherspoon, 332 Conn. 531 (2019) (steps for analyzing prosecutorial impropriety: occurrence and prejudice)
- State v. Stevenson, 269 Conn. 563 (2004) (failure to object at trial suggests counsel did not find argument unfair; defense responsibility to object)
- Filippelli v. Saint Mary’s Hosp., 319 Conn. 113 (2015) (limits on using extrinsic evidence to contradict a witness’ answers; must accept witness’ denials when impeaching)
- State v. Barnes, 232 Conn. 740 (1995) (good‑faith basis required for factual predicate of cross‑examination questions)
- State v. Bruno, 236 Conn. 514 (1996) (law governing refreshing a witness’ recollection and right of adverse party to inspect the memorandum)
- State v. Golding, 213 Conn. 233 (1989) (appellate review limits where record is inadequate to decide constitutional claims)