October 25, 2016
from Superior Court, judicial district of Hartford, Kwak, J.
Richard S. Cramer, for the appellant (defendant).
Kathryn W. Bare, assistant state's attorney, with whom,
on the brief, were Gail P. Hardy, state's attorney, and
John F. Fahey, senior assistant state's attorney, for the
DiPentima, C. J., and Keller and West, Js.
defendant, Ruffino Fernandez, appeals following his
conviction of one count each of risk of injury to a child in
violation of General Statutes § 53-21 (a) (2), sexual
assault in the second degree in violation of General Statutes
§ 53a-71 (a) (1), and sexual assault in the fourth
degree in violation of General Statutes § 53a-73a (a)
(1) (B). The defendant claims that (1) the trial court abused
its discretion by not permitting him to make a missing
witness argument during closing remarks; (2) the state
committed prosecutorial impropriety by basing part of its
closing argument on facts not in evidence; and (3) he was
deprived of his rights to an impartial tribunal and a fair
trial when the trial court made comments in front of the jury
that bolstered the credibility of the victim. We disagree
with the defendant and affirm the judgment of conviction.
jury could reasonably have found the following facts. During
the relevant time period, the defendant owned and operated
Keithbel Market, a grocery store on Zion Street in Hartford.
Nearby lived J,  then twelve to thirteen years old, along
with her family. A family friend, Wilnelia
‘‘Wendy'' David, also lived with J's
family for a period of time, and, thereafter, in another
apartment in the same building.
to the events in question, David developed an arrangement
with the defendant whereby she had sex with him in the
basement of the market in exchange for cash or diapers for
her son. Between September and December, 2012, David brought
J along with her during visits to the market. On
approximately four of these occasions, the defendant brought
J down to the basement of the market and sexually assaulted
her. David observed at least one of these assaults. During
some or all of these incidents, the defendant touched and
kissed J's breasts under her clothes; touched her
buttocks over her clothes; and digitally penetrated her
vagina. After at least some of these incidents, the defendant
gave J money.
was charged as an accessory to risk of injury to a child in
violation of § 53-21 (a) (2). In exchange for a sentence
of five years in prison and five years of special parole (the
maximum time to which she was exposed was twenty years),
David testified against the defendant.
four day trial, the jury convicted the defendant of the three
counts set forth previously. The court, Kwak, J.,
sentenced the defendant to a total effective sentence of
forty years to serve, followed by five years of special
parole, and registration for life as a sex offender.
Additional facts will be set forth as necessary.
defendant first claims that the court abused its discretion
by not permitting him to make a missing witness argument
during his closing remarks. We are not persuaded.
following additional facts are relevant to our discussion. At
trial, David testified that on one occasion she
‘‘lost track'' of J during one of their
visits to the defendant's store. At the time, David was
joined by J's sister. David and J's sister called out
for J in an attempt to locate her. David and J's sister
eventually observed J, followed by the defendant, coming up
the basement staircase of the market.
defendant requested leave from the court to make a missing
witness argument during closing remarks. See State v.
Mungroo, 104 Conn.App. 668, 677, 935 A.2d 229 (2007),
cert. denied, 285 Conn. 908, 942 A.2d 415 (2008).
Specifically, the defendant wished to argue that the
state's failure to call J's sister to testify in
corroboration of David's testimony that both observed J
and the defendant ascending the basement staircase suggested
that J's sister's testimony would be detrimental to
the state's case. The defendant argued that because David
had, in the defendant's words, ‘‘credibility
issues, '' it would have been natural for the state
to call J's sister to bolster David's testimony.
Thus, according to the defendant, he should have been
permitted to ask the jury to draw an adverse inference from
the absence of such testimony. The court denied the
defendant's request, reasoning that the defendant's
offer of proof was mere speculation.
following legal principles govern our resolution of this
claim. ‘‘We review the court's decision
allowing the [defendant] to include a missing witness
argument in [his] closing argument for abuse of discretion. .
. . It is within the discretion of the trial court to limit
the scope of final argument. . . . The broad discretion
vested in trial courts by [State v. Malave, 250
Conn. 722, 737 A.2d 442 (1999) (setting forth requirements
for making missing witness argument), cert. denied, 528 U.S.
1170, 120 S.Ct. 1195, 145 L.Ed.2d 1099 (2000)] mirrors the
general standards regarding the trial court's ability to
limit closing argument. [T]he scope of final argument lies
within the sound discretion of the court . . . subject to
appropriate constitutional limitations. . . . We first
determine whether the trial court abused its discretion in
light of the information before the court when it ruled on
the motion. If there was such an abuse of discretion, the
reviewing court must determine whether the defendant has
established that, in light of the totality of evidence at
trial and the trial court's subsequent instructions to
the jury, the impropriety constituted harmful
error.'' (Internal quotation marks omitted.)
State v. Campbell, 149 Conn.App. 405, 419, 88 A.3d
1258, cert. denied, 312 Conn. 907, 93 A.3d 157 (2014).
the sixth and fourteenth amendments to the United States
constitution, a criminal defendant has a constitutionally
protected right to make a closing argument. That right is
violated not only when a defendant is completely denied an
opportunity to argue before the court or the jury after all
the evidence has been admitted, but also when a defendant is