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STATE OF CONNECTICUT v. LUIS RODRIGUEZ

(SC 18945)

Rogers, C. J., and Norcott, Palmer, Zarella, Eveleigh,

McDonald and Espinosa, Js.*

Argued May 14, 2013—officially released January 28, 2014

Elizabeth M. Inkster, assigned counsel, and Kelly

M. Berwick, deputy assistant public defender, for the

appellant (defendant).

Leon F. Dalbec, Jr., senior assistant state’s attorney,

with whom, on the brief, were Gail P. Hardy, state’s

attorney, and Vicki Melchiorre, senior assistant state’s

attorney, for the appellee (state).
Opinion

PALMER, J. Following an incident in which the defendant, Luis Rodriguez, stabbed and seriously wounded

the victim, Angel Salvador Diaz, a jury found the defendant guilty of assault in the first degree in violation

of General Statutes § 53a-59 (a) (1).1 The trial court

rendered judgment in accordance with the jury verdict,2

and the defendant appealed to the Appellate Court,

claiming that the trial court improperly had permitted

Diaz’ attorney to testify about an immunity agreement

that he had negotiated with the state on behalf of Diaz.

See State v. Rodriguez, 133 Conn. App. 721, 728–32,

36 A.3d 724 (2012). The Appellate Court rejected the

defendant’s claim and affirmed the judgment of the trial

court; id., 732; and we granted the defendant’s petition

for certification to appeal, limited to the following issue:

‘‘Did theAppellate Court properly conclude that the trial

court acted within its discretion in permitting testimony

from the attorney for [Diaz]?’’ State v. Rodriguez, 304

Conn. 915, 40 A.3d 784 (2012). We need not resolve this

issue, however, because, even if we assume, without

deciding, that the trial court improperly permitted Diaz’

attorney to testify, the admission of his testimony was

harmless. Accordingly, we affirm the judgment of the

Appellate Court.

The opinion of the Appellate Court sets forth the

following facts that the jury reasonably could have

found. ‘‘On February 7, 2008, Diaz was working at the

Brook Street Market [market] in [the city of] Hartford

. . . with two other employees, William Ramirez and

Franklin Ramirez. . . . Diaz, William Ramirez and

Franklin Ramirez [knew the defendant] because he

lived in the neighborhood and frequented the market

where the three men worked. On the afternoon of February 7, 2008, the defendant entered the market and

asked Diaz if he could borrow [$20] from him. Diaz gave

the defendant a [$20] bill. The defendant exchanged the

[$20] bill for twenty [$1] bills. Then, as patrons entered

the market, the defendant handed them one or two of

the [$1] bills. After giving away all of the bills, the

defendant left the market. He returned a short time

later and asked Diaz if he could borrow [another $20].

Diaz refused. The defendant told Diaz, ‘fine, we’re not

friends anymore. . . . I’m Espana; you’re going to see

what’s going to happen,’ and left the market.

‘‘At approximately [10:15 p.m. that same day], Diaz

and William Ramirez took garbage out to a dumpster

located in an alley behind the market. As Diaz was

depositing garbage into the dumpster, the defendant

[who apparently had been lying in wait for Diaz] stabbed

Diaz twice in his left side with a knife. After stabbing

Diaz, the defendant ran away with the knife in his hand.

Diaz returned to the market and, while bleeding profusely, told Franklin Ramirez that the defendant had

stabbed him.’’ State v. Rodriguez, supra, 133 Conn.
App. 723.

‘‘[I]mmediately following the attack on Diaz, police

responded to the market. . . . Diaz told [one of the

responding officers] . . . that ‘he was approached by

two black males . . . [that] they demanded his wallet

. . . [that Diaz] declined and [that] one of the black

males stabbed him.’ When asked by the officer whether

he could identify his attackers, Diaz stated that he could

not. During this brief exchange, Diaz was ‘distraught’

and ‘had a blank look on his face.’ ’’ Id., 724. Neither

William Ramirez nor Franklin Ramirez informed the

officers what they had observed that evening regarding

the defendant’s involvementin Diaz’ assault. Thereafter,

‘‘Diaz [underwent] emergency surgery and was hospitalized for a period of approximately five weeks as a result

of the injuries [that] he sustained during the attack.

‘‘On February 16, 2008, nine days after the attack on

Diaz, the defendant returned to the market. William

Ramirez and Franklin Ramirez were working at the

market that day. The defendant, who was intoxicated,

threatened William Ramirez . . . and made a gesture

[by running] his finger across his [own] neck. The defendant stated to the two men that he had stabbed Diaz.

Police were called to the market and arrested the defendant, who was belligerent, resisted arrest and threatened the arresting officer.’’ Id., 723–24.

‘‘On March 19, 2008, after he was released from the

hospital, Diaz [who had heard from others that the

defendant intended to find and kill him] went to the

police station and met with a detective. Diaz [disclaimed

his earlier statements to the police and] stated that he

could identify his attacker, whom he called ‘Espana,’

and gave a written statement to the detective. The detective presented Diaz with an array of eight photographs,

from which Diaz identified . . . the defendant [as the

person who had stabbed him].’’ Id., 725. The defendant

subsequently was arrested and charged with assault in

the first degree, threatening in the second degree, and

interfering with an officer. See footnote 1 of this opinion

and accompanying text.

On the eve ofthe defendant’s trial,the assistant state’s

attorney discovered that Diaz, a citizen of the Dominican Republic, was not a legal resident of the United

States.3

In addition, over a period of four years, Diaz

had been using the social security card of a United

States citizen named Juan Suarez to obtain more than

$250,000 in treatment for medical problems both related

and unrelated to the injuries that he had sustained from

the stabbing.4 Attorney Aaron Romano was appointed

to advise Diaz of his rights and to counsel him in light

his exposure to prosecution for identity theft and immigration violations. Romano ultimately negotiated an

agreement with the state pursuant to which the state

agreed (1) to grant Diaz immunity from prosecution for

any fraud or identity theft that he may have committed
while impersonating Suarez, (2) not to share any such

information with any other state or federal agency, and

(3) to assist Diaz in obtaining United States citizenship.

In return, Diaz promised to testify truthfully for the

state at the defendant’s trial.

At trial, William Ramirez testified that, on the night

of February 7, 2008, he was with Diaz near the dumpster

in the alley outside of the market when he heard Diaz

exclaim that he had been stabbed and, immediately

thereafter, saw the defendant run out of the alley with

a knife in his hand. Franklin Ramirez, who was inside

the market when Diaz was stabbed, testified that, after

Diaz was assaulted, he came into the market and stated

that ‘‘Espana’’ had stabbed him. Franklin Ramirez also

testified that, on February 16, 2008, the defendant, who

had returned to the market, stated openly that he had

stabbed Diaz. Diaz testified about the stabbing and the

events leading up to it, and he also made an in-court

identification of the defendant as his assailant. Diaz

also admitted to using a false identity to obtain valuable

medical services; he acknowledged that, under the

express terms of the immunity agreement, his cooperation with the state shielded him from prosecution for

that fraud, and he denied initially informing the police

that he was confronted by two black males.

Following Diaz’ testimony, the state sought to call

Romano as a witness. According to the state, Romano’s

testimony was relevant because Diaz had been unable

to provide the jury with a coherent explanation about

his agreement with the state, and the state claimed that

Romano’s testimony would assist the jury in understanding the nature and scope of that agreement.

Defense counsel objected to Romano’s proffered testimony, claiming that it was irrelevant and would improperly bolster Diaz’ credibility. The trial court overruled

defense counsel’s objection, stating: ‘‘[Romano] can

[testify to] explain [the agreement]. He can’t explain if

[Diaz] is going to testify truthfully, [and] he cannot

bolster the credibility of [Diaz]. . . . [There are] parts

of it that I don’t understand, and [Romano] can explain

those parts. . . . And he can testify that he negotiated

this agreement on behalf of [Diaz] because of the fifth

amendment [to] the [United States] constitution, and

that’s it.’’ Following the ruling, Romano testified about

the purpose of immunity agreements in general and the

details of Diaz’ immunity agreement in particular, as

well as his role in negotiating the agreement for Diaz.

Romano also explained the state’s role in assisting Diaz

to become a United States citizen. In addition, Romano

opined that, when Diaz initially agreed to testify against

the defendant, he did not understand his fifth amendment rights or his potential exposure to criminal prosecution arising out of his immigration status and his

incriminating statements to the police concerning his

fraudulent use of Suarez’ identity. Finally,Romano clarified that the assistant state’s attorney retained the right
to determine whether Diaz had fulfilled his obligations

under the agreement and, further, that Diaz would forfeit the benefits afforded to him under the agreement

if the assistant state’s attorney were to determine that

he had not fulfilled his promise to testify truthfully.

The jury subsequently returned a guilty verdict on the

assault charge.

On appeal to the Appellate Court, the defendant challenged his assault conviction on the ground that the trial

court had abused its discretion in permitting Romano to

testify.5 See State v. Rodriguez, supra, 133 Conn. App.

728–32. In support of his contention, the defendant

asserted that Romano’s testimony was both irrelevant

and prejudicial because its sole purpose and effect was

to bolster Diaz’ credibility. See id., 728, 731. The defendant also maintained that, because Romano represented a witness in the case, the trial court improperly

permitted him to serve as a witness in the absence of

a showing by the state that it had a compelling need

for his testimony.6 See id., 728 n.4. The Appellate Court

rejected the defendant’s claim, concluding that

Romano’s testimony was relevant and not unduly prejudicial because his explanation of the purpose and conditions of the immunity agreement aided the jury in

understanding and evaluating Diaz’ testimony in light

of that agreement.7 See id., 731–32. The Appellate Court

declined to consider the defendant’s contention that

the state, in calling Romano as a witness, had failed to

meet the compelling need standard, because the defendant had not raised that claim in the trial court. Id., 728

n.4. The Appellate Court therefore concluded that the

trial court did not abuse its discretion in admitting

Romano’s testimony. See id., 732.

On appeal to this court following our grant of certification to appeal, the defendant renews the claims that

he raised in the Appellate Court. Although Romano’s

testimony clearly was relevant,8 we need not address

the defendant’s other reasons in support of his contention that the testimony was inadmissible because,

even if we assume, without deciding, that the trial court

should have excluded the testimony, its admission

was harmless.

We turn to the parties’ arguments with respect to

harm. The defendant contends thatRomano’s testimony

was prejudicial because it tended to bolsterthe credibility of Diaz, who had been impeached extensively with

his admitted identity theft and his initial statement to

the police that he had been confronted by two black

males. The defendant further claims that the trial testimony of the state’s two other key witnesses, William

Ramirez and Franklin Ramirez, was not trustworthy

because they initially failed to provide the police with

the substance of that information despite the opportunity to do so. The defendant argues that Romano’s testimony bolstering Diaz’ version of the events was
important to the state’s case, and therefore was likely

to have affected the outcome of the trial, because the

state’s case rested so heavily on Diaz’ credibility. We

are not persuaded.

The following well established principles guide our

analysis of the defendant’s claim. ‘‘When an improper

evidentiary ruling is not constitutional in nature, the

defendant bears the burden of demonstrating that the

error was harmful. . . . [A] nonconstitutional error is

harmless when an appellate court has a fair assurance

that the error did not substantially affect the verdict.

. . . [O]ur determination [of whether] the defendant

was harmed by the trial court’s . . . [evidentiary ruling] is guided by the various factors that we have articulated as relevant [to] the inquiry of evidentiary

harmlessness . . . such as the importance of the . . .

testimony in the [state’s] case, whether the testimony

was cumulative, the presence or absence of evidence

corroborating or contradicting the testimony . . . on

material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of

the [state’s] case. . . . Most importantly, we must

examine the impact of the evidence on the trier of fact

and the result of the trial.’’ (Citations omitted; internal

quotation marks omitted.) State v. Ritrovato, 280 Conn.

36, 56–57, 905 A.2d 1079 (2006).

We begin our evaluation with an assessment of the

importance of Romano’s testimony to the state’s case.

We acknowledge, as the defendant asserts, that it is

conceivable that the jury might have misperceived

Romano’s willingness to testify for the state concerning

his representation of Diaz as a general voucher for Diaz’

credibility. Indeed, it may be said that that risk always

exists when a witness’ attorney testifies for the purpose

of explaining the witness’ testimony, especially when,

as ordinarily will be the case, that testimony is corroborative of the witness’ own testimony. It is also possible

that Romano’s testimony may have served to bolster

Diaz’ credibility with respect to certain specific, albeit

limited, aspects of Diaz’ testimony. For example,

Romano testified that, before he was appointed to represent Diaz, Diaz did not appreciate the criminal implications of his admissions about his fraudulent receipt

of medical services. This testimony was consistent with,

and therefore tended to reinforce, Diaz’ assertion that

his decision to testify for the state was motivated by a

desire to see the defendant brought to justice, and not

made for the purpose of securing the benefits granted

to him under the immunity agreement.

It is apparent, however, that the likely effect of

Romano’s testimony on the jury was minimal. Romano

did not address any ultimate issue in the case, and

at no time did he directly opine on Diaz’ credibility.

Furthermore, in many respects, Romano’s explanation

of the terms, purpose, and effect of the immunity
agreement was no less helpful to the defendant than

to the state. For example, on the basis of Romano’s

testimony concerning the terms of the immunity

agreement, the jury could have concluded that, because

the determination of whether Diaz had testified in

accordance with that agreement rested with the assistant state’s attorney, Diaz had an incentive to curry

favor with the state by falsely implicating the defendant.

Indeed, during closing arguments, defense counsel

urged the jury to reach this very conclusion. In addition,

it was undisputed that Diaz agreed to cooperate with

the state long before Romano was appointed to represent him and negotiated the immunity agreement on

his behalf. Because this is strong evidence that the

immunity agreement had little if anything to do with

Diaz’ motivation to testify against the defendant, it is

difficult to see how Romano’s testimony about that

agreement had any material bearing on the manner in

which the jury was likely to view Diaz’ testimony.

Furthermore, Diaz was examined and cross-examined extensively about his fraudulent use of a social

security card to obtain more than $250,000 in medical

services over an extended period of time, his status

as an illegal alien, and his initial identification of his

assailants as two black males. Moreover, the trial court

expressly instructed the jury that it was entitled to

consider Diaz’ unlawful conduct, stating: ‘‘It is your

duty to determine whether [Diaz] is to be believed

wholly, partly, or not at all. You may consider [Diaz’]

prior misconduct in weighing the credibility of [Diaz]

and give such weight to those facts as you decide is

fair and reasonable in determining the credibility of

[Diaz].’’ Consequently, the jury was aware that, by virtue

of his previous dishonest conduct, Diaz’ integrity and

truthfulness were highly suspect, to say the least.

Finally, Diaz’ in-court identification of the defendant

as his assailant was corroborated in all respects by

credible, independent evidence. Specifically, William

Ramirez, who was very familiar with the defendant,

testified that he was with Diaz when the assault

occurred and that he observed the defendant fleeing

the scene with a knife in his hand immediately after Diaz

exclaimed that he had been stabbed. Another witness,

Franklin Ramirez, testified that Diaz, after returning to

the market immediately following the assault, told him

that the defendant had stabbed him. Franklin Ramirez

also stated that he had observed the defendant threaten

to harm Diaz earlier that day when Diaz declined to give

the defendant another $20. Finally, Franklin Ramirez

testified that, nine days after the assault on Diaz, the

defendant returned to the market and admitted that he

had stabbed Diaz.

In sum, this strong, independent evidence that the

defendant stabbed Diaz, coupled with the minimal

import of Romano’s testimony, causes us to conclude
that the defendant cannot establish that the admission

of Romano’s testimony was harmful. Compare State

v. Boyd, 295 Conn. 707, 743–44, 992 A.2d 1071 (2010)

(admission of prior misconduct evidence was harmless

because, inter alia, state’s strong case included testimony from witness who explained defendant’s motive

and stated that defendant had confessed his crime to

her), cert. denied, U.S. , 131 S. Ct. 1474, 179 L.

Ed. 2d 314 (2011), and State v. Bonner, 290 Conn. 468,

501, 964 A.2d 73 (2009) (even if trial court improperly

had admitted certain testimony, error was harmless

because state’s case included, inter alia, testimony of

eyewitnesses who had heard defendant confess or who

had observed defendant point gun at victim and flee

scene shortly thereafter), with State v. Finan, 275 Conn.

60, 70–71, 881 A.2d 187 (2005) (harmful error in admitting testimony of four police officers identifying defendant as perpetrator due to substantial weight of

challenged testimony and lack of credible, independent

evidence of defendant’s participation in crime). Accordingly, because the reliability of the verdict is not called

into question by virtue of the trial court’s alleged impropriety in admitting Romano’s testimony, the defendant

cannot prevail on his claim that he is entitled to a

new trial.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

* The listing of justices reflects their seniority status on this court as of

the date of oral argument.

1

In a separate information, the defendant also was charged with threatening in the second degree in violation of General Statutes § 53a-62 (a) (2),

and interfering with an officer in violation of General Statutes (Rev. to 2007)

§ 53a-167a. The jury found the defendant guilty of these charges, and the

trial court rendered judgment in accordance with the jury’s verdict. The

defendant’s conviction on these charges is not at issue in this appeal.

2 The trial court imposed a total effective sentence of sixteen years imprisonment, execution suspended after eight years, and four years of probation.

3 Diaz had been issued a temporary visa permitting his entry into the

United States but had remained here after the expiration of that visa.

4

In addition, during the investigation of the stabbing, Diaz identified himself to the police as Suarez.

5 The defendant also raised a claim of evidentiary insufficiency with

respect to the assault conviction. See State v. Rodriguez, supra, 133 Conn.

App. 724. The Appellate Court rejected this claim; id., 728; which is not at

issue in the present appeal.

6 This high bar to admissibility applies to both prosecutors and defense

attorneys in criminal cases. E.g., State v. Peeler, 265 Conn. 460, 474, 828

A.2d 1216 (2003) (‘‘When either side in a criminal case seeks to call as

a witness either a prosecutor or a defense attorney who is or has been

professionally involved in the case, that party must demonstrate that the

testimony is necessary and not merely relevant, and that all other available

sources of comparably probative evidence have been exhausted. . . . This

compelling need test strikes the appropriate balance between, on the one

hand, the need for information and, on the other hand, the potential adverse

effects on the attorney-client relationship and the judicial process in general.’’ [Citation omitted; internal quotation marks omitted.]), cert. denied,

541 U.S. 1029, 124 S. Ct. 2094, 158 L. Ed. 2d 710 (2004). The defendant

claimed that the compelling need test also applies to an attorney who, like

Romano, represents a witness in a criminal case.

7 More specifically, the Appellate Court explained: ‘‘We are not convinced

that the court committed reversible error in admitting the testimony by

Romano. Because Diaz was testifying pursuant to the immunity agreement,

the jury was entitled to know its terms and the details thereof. Romano

gave detailed testimony as to the purpose and conditions of the immunity
agreement, which was admitted into evidence. Romano testified that his

purpose in representing Diaz was to explain the possible legal ramifications

of Diaz’ testimony at trial—that he could be prosecuted as a result of his

statements admitting to using someone else’s name and social security card

and staying in the United States after his visa had expired—and that he had

sought to minimize any harm to Diaz.

‘‘Romano’s testimony concerning his appointment to represent Diaz and

the details of the immunity agreement was [helpful] to the jury’s understanding of Diaz’ presence as a witness and to [its] evaluation of his credibility.

This is especially true in light of the fact that Diaz was examined and crossexamined extensively about his use of the false identity. Accordingly, we

conclude that the court did not commit reversible error in permitting testimony by Romano.’’ (Footnotes omitted.) State v. Rodriguez, supra, 133

Conn. App. 731–32.

8

It is well established that ‘‘[r]elevant evidence is evidence that has a

logical tendency to aid the trier in the determination 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 evidence need not exclude all other

possibilities; it is sufficient [for relevancy purposes] if it tends to support

the conclusion [for which it is offered], even to a slight degree.’’ (Internal

quotation marks omitted.) State v. Wilson, 308 Conn. 412, 429, 64 A.3d 91

(2013). Romano’s testimony focused on how and why Diaz’ agreement with

the state emerged, the nature and meaning of that agreement, and Diaz’

understanding of the purpose of and need for the agreement. Romano’s

testimony about those matters was relevant to Diaz’ credibility because the

agreement and Diaz’ understanding of its terms bore directly on any motive,

bias, or interest that Diaz may have had in testifying for the state.