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State v. Fernandez

Court of Appeals of Connecticut

December 27, 2016

STATE OF CONNECTICUT
v.
RUFFINO FERNANDEZ

          Argued October 25, 2016

         Appeal 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 appellee (state).

          DiPentima, C. J., and Keller and West, Js.

          OPINION

          KELLER, J.

         The 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.

         The 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, [1] 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.

         Prior 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.

         David 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.

         After a 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.

         I

         The 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.

         The 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.

         The 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.

         The 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).

         ‘‘Under 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 deprived ...


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