State v. Fernandez , 169 Conn. App. 855 ( 2016 )

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STATE OF CONNECTICUT v. RUFFINO FERNANDEZ
(AC 38088)
DiPentima, C. J., and Keller and West, Js.
Argued October 25—officially released December 27, 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 attor-
ney, and John F. Fahey, senior assistant state’s attor-
ney, for the appellee (state).
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 Stat-
utes § 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 impro-
priety 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 defen-
dant 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 fam-
ily for a period of time, and, thereafter, in another apart-
ment 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 defen-
dant 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, ‘‘cred-
ibility 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 permit-
ted 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 defen-
dant 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
of the opportunity to raise a significant issue that is
reasonably inferable from the facts in evidence. . . .
‘‘In [State v. Malave, supra, 250 Conn. 739], our
Supreme Court abandoned, in criminal cases, the [rule
of Secondino v. New Haven Gas Co., 147 Conn. 672,
165 A.2d 598 (1960)], also known as the missing witness
rule, which sanctioned, under certain circumstances, a
jury instruction that an adverse inference may be drawn
from the failure of a party to produce a witness.
Although our Supreme Court abandoned the Secondino
rule, it did not intend to prohibit counsel from making
appropriate comment, in closing arguments, about the
absence of a particular witness, insofar as that witness’
absence may reflect on the weakness of the opposing
party’s case. . . . Comments in closing argument that
do not directly exhort the jury to draw an adverse infer-
ence by virtue of the witness’ absence do not necessarily
fall under the ambit of Secondino . . . and accordingly
are not forbidden by Malave. Our Supreme Court fur-
ther provided that [o]f course, the trial court retains
wide latitude to permit or preclude such a comment,
and may, in its discretion, allow a party to adduce addi-
tional evidence relative to the missing witness issue.
. . .
‘‘It is within the discretion of the trial court to limit
the scope of final argument to prevent comment on
facts that are not properly in evidence, to prevent the
jury from considering matters in the realm of specula-
tion and to prevent the jury from being influenced by
improper matters that might prejudice its deliberations.
. . . While we are sensitive to the discretion of the
trial court in limiting argument to the actual issues of
the case, tight control over argument is undesirable
when counsel is precluded from raising a significant
issue. . . .
‘‘A missing witness argument is appropriate in limited
circumstances. Counsel may only invite the jury to draw
reasonable inferences on the basis of facts in evidence,
and the court’s exercise of discretion as to whether to
permit such argument is dependent on the facts made
known to it. For this reason, it is necessary for counsel,
through facts and argument, to justify a request to make
a missing witness argument. Our decisional law reflects,
for example, that defense counsel should explain how
the state’s decision not to call [a person as a witness]
exposed a weakness in the state’s case and should make
an offer of proof regarding the substance of [such per-
son’s] potential testimony. . . . Stated otherwise,
counsel must demonstrate that such witness was avail-
able to testify, set forth the substance of the testimony
that such witness would have given had he been called
to the witness stand and explain how his testimony
would have been detrimental to the state’s case. Evi-
dence that would have been merely cumulative or of no
consequence to a reasonable assessment of the state’s
case, for example, would not warrant such an argu-
ment.’’ (Citations omitted; emphasis added; internal
quotation marks omitted.) State v. Mungroo, supra, 104
Conn. App. 675–77.
The defendant argues on appeal that the court abused
its discretion by precluding his missing witness argu-
ment because he established at trial that J’s sister was
available to testify, and that he sufficiently articulated
the substance of such testimony and how it would have
been detrimental to the state’s case. See id., 677. We
disagree for the reasons set forth below.
As to J’s sister’s availability as a witness, the defen-
dant argued before the trial court that ‘‘the law as it
stands suggests that she was apparently available to
both sides, and I could have called her if I wished to
raise this point.’’ In denying the defendant’s request to
make the missing witness argument, the court did not
specifically address the issue of J’s sister’s availability.
On appeal, the defendant points to the fact that ‘‘[J’s
sister] was still a teenager at the time of trial and lived
in the same apartment building as her mother, who
testified, and as [J].’’ The defendant continues: ‘‘As a
family member, there should be little doubt that the
state either knew or could have readily found this wit-
ness through the cooperation of [J], her brother, also
a witness, or [J’s] mother or father who also testified.
Defendant, in order to secure his right to make the
argument, need not show that he himself knows exactly
where this witness was at the time of trial. The state
allegedly did not know. But there was no question it
could have readily found that out.’’
We emphasize that, in order to succeed on a request
to make a missing witness argument, ‘‘it is necessary
for counsel, through facts and argument, to justify
[such] request . . . .’’ (Emphasis added.) State v. Mun-
groo, supra, 104 Conn. App. 677. We conclude that the
defendant’s offer of proof at trial did not sufficiently
establish that J’s sister was available to testify. The
defendant presented nothing to the trial court concern-
ing the availability of J’s sister other than a conclusory
statement that she was available and that the defendant
‘‘could have called her if I wished to raise this point.’’
The defendant points now to evidence of J’s sister’s
living arrangements at the time of the assaults to suggest
that the state could have obtained her testimony with-
out difficulty, but that is simply not the argument that
the defendant made before the trial court.2 In light of
such dearth of information, we reject the defendant’s
argument that his offer of proof adequately demon-
strated that J’s sister was available to testify.
We are likewise not persuaded that the defendant
adequately set forth the substance of J’s sister’s testi-
mony and how it would have been detrimental to the
state’s case. As previously explained, the defendant’s
argument to the court appears to have proceeded as
follows: David, it is claimed, had serious credibility
problems as a witness; therefore, the state needed to
bolster her credibility by presenting J’s sister as a cor-
roborating witness; consequently, the fact that the state
did not present J’s sister’s testimony suggests that such
testimony would have harmed the state’s case. The
defendant, as he must, argues much the same upon
appeal. See Janusauskas v. Fichman, 264 Conn. 796,
807, 826 A.2d 1066 (2003) (‘‘a party may not try its
case on one theory and appeal on another’’ [internal
quotation marks omitted]).
The court did not abuse its discretion by precluding
the defendant’s missing witness argument on the
ground that his offer of proof was based on mere specu-
lation. Aside from hypothesizing that J’s sister’s testi-
mony would not be ‘‘helpful’’ to the state, the defendant
provided no actual information as to the expected con-
tent of the testimony or its prejudicial impact on the
state’s case. ‘‘Where, as here, a defendant’s claimed
entitlement to make a missing witness argument rests
on mere speculation, the court’s exercise of discretion
in denying permission to make such argument does not
reflect an abuse of its discretion.’’ State v. Mungroo,
supra, 104 Conn. App. 678–79; see also State v. Graham,
67 Conn. App. 45, 49, 787 A.2d 11 (2001) (trial court
did not abuse discretion in precluding missing witness
argument because defendant ‘‘offered only a blanket
statement that [the witness’] failure to testify demon-
strated a weakness in the state’s case’’), cert. denied,
259 Conn. 911, 789 A.2d 996 (2002).
Put simply, the defendant’s argument that the state’s
failure to put forth the testimony of J’s sister suggests
that such testimony would have been harmful to the
state’s case does not appear to us to be a ‘‘reasonable
inference’’ based on the record. See State v. Mungroo,
supra, 104 Conn. App. 677 (‘‘[c]ounsel may only invite
the jury to draw reasonable inferences on the basis of
facts in evidence’’). We conclude so for two reasons.
First, contrary to the defendant’s contention, we do
not view David’s testimony as particularly in need of
corroboration. The defendant asserts that David ‘‘testi-
fied with considerable baggage’’ and that ‘‘[h]er testi-
mony was replete with inconsistencies and admitted
discrepancies.’’ The defendant, however, did not iden-
tify any alleged inconsistency or discrepancy at trial,
nor does he do so on appeal. The defendant does point
to the fact that David testified against the defendant in
exchange for a more lenient sentence as damaging to
her credibility. He elides the fact, however, that were
David to lie during her testimony, pursuant to her plea
agreement with the state, she would have faced up
to twenty years in prison. The existence of the plea
agreement alone does not appear to us to warrant con-
cluding that the testimony of J’s sister would have been
harmful to the state’s case.
Second, we do not see the particular import of casting
doubt on the event that David described—namely, that
she and J’s sister observed J and the defendant
ascending the market’s basement staircase. In other
words, such event was simply not so central to the
state’s case that a failure to call J’s sister to corroborate
it suggests that her testimony would have been harmful
to the state. For one, David’s testimony about the stair-
case scene did not describe any sexual acts by the
defendant. Additionally, David recounted an entirely
separate incident during which she observed the defen-
dant licking J’s breasts. There is no indication that J’s
sister was present during that event. Finally, J testified
that the defendant assaulted her approximately four
times in the basement of the market, further suggesting
that discrediting David’s testimony about the staircase
scene (which, again, did not describe any sexual con-
tact) would not have cut to the heart of the state’s
case. In light of the foregoing, we fail to see how the
defendant’s argument that J’s sister’s testimony would
have been harmful to the state’s case is a ‘‘reasonable
inference’’ based on the record. Accordingly, we con-
clude that the trial court did not abuse its discretion
in precluding such argument.3
II
The defendant next claims that the state committed
prosecutorial impropriety by basing part of its closing
argument on facts not in evidence. We find no error
with respect to this claim.
The following additional facts are relevant to our
discussion. As previously noted, the defendant was
charged with and convicted of, inter alia, one count of
risk of injury to a child in violation of § 53-21 (a) (2).
Section 53-21 (a) provides, in relevant part: ‘‘Any person
who . . . (2) has contact with the intimate parts . . .
of a child under the age of sixteen years or subjects a
child under sixteen years of age to contact with the
intimate parts of such person, in a sexual and indecent
manner likely to impair the health or morals of such
child . . . shall be guilty of . . . (C) a class B felony
. . . .’’ (Emphasis added.)
At trial, the state called as an expert witness Audrey
Courtney, a pediatric nurse practitioner at Saint Francis
Hospital. Courtney testified that she had performed
child abuse evaluations since 1990 and had examined
child abuse victims who reported digital penetration.
Courtney further testified that she had observed sexu-
ally transmitted diseases among children who had
reported solely digital penetration.
During closing remarks, the state, in arguing for con-
viction under § 53-21 (a) (2), stated: ‘‘[T]he last element
of [§ 53-21 (a) (2)] is that it’s likely to impair the health
or morals of a child. . . . Morals, that’s for you to
decide in the more general sense of a fifty-something
year old man doing this to a thirteen year old child.
‘‘But with respect to health, I would say you had
actually some more specific information, which [was]
Audrey Courtney coming in and talking about the idea
that even through digital penetration there is a likeli-
hood—she has seen cases where there’s been a disclo-
sure of simply digital penetration which resulted in
gonorrhea, HIV, herpes, the like, sexually transmitted
diseases among children. Again, the state doesn’t have
to show she has any of those diseases, just that the
actions of the defendant are such that the impairment
of health would be likely based on his actions.’’
The defendant argues that the state committed prose-
cutorial impropriety because Courtney’s testimony did
not support the state’s contention that digital penetra-
tion by itself would likely result in the transmission of
sexually transmitted diseases. According to the defen-
dant, ‘‘Courtney’s testimony did not state there was a
likelihood nor even implied it nor was there any basis
for the jury to infer it. All the jury knew was that of the
thousands of cases, some of the children had sexually
transmitted diseases.’’ We conclude that the state’s
comment did not deprive the defendant of a fair trial.
As a preliminary matter, we note that the defendant
did not object to the preceding statements at trial. ‘‘It
is well established law, however, that a defendant who
fails to preserve claims of prosecutorial [impropriety]
need not seek to prevail under the specific requirements
of State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823(1989), and, similarly, it is unnecessary for a reviewing
court to apply the four-pronged Golding test. . . . Our
Supreme Court has explained that the defendant’s fail-
ure to object at trial to . . . the [occurrence] that he
now raises as [an instance] of prosecutorial impropri-
ety, though relevant to our inquiry, is not fatal to review
of his [claim]. . . . This does not mean, however, that
the absence of an objection at trial does not play a
significant role in the determination of whether the
challenged statements were, in fact, improper. . . . To
the contrary, we continue to adhere to the well estab-
lished maxim that defense counsel’s failure to object
to the prosecutor’s argument when it was made sug-
gests that defense counsel did not believe that it was
[improper] in light of the record of the case at the time.’’
(Citations omitted; internal quotation marks omitted.)
State v. Maner, 147 Conn. App. 761, 782, 83 A.3d 1182,
cert. denied, 311 Conn. 936, 88 A.3d 550 (2014).
The following legal principles concerning prosecu-
torial impropriety govern our resolution of this claim.
‘‘Our jurisprudence concerning prosecutorial impropri-
ety during closing argument is well established. [I]n
analyzing claims of prosecutorial [impropriety], we
engage in a two step analytical process. The two steps
are separate and distinct: (1) whether [impropriety]
occurred in the first instance; and (2) whether that
[impropriety] deprived a defendant of his due process
right to a fair trial. Put differently, [impropriety] is
[impropriety], regardless of its ultimate effect on the
fairness of the trial; whether that [impropriety] caused
or contributed to a due process violation is a separate
and distinct question . . . . [O]ur determination of
whether any improper conduct by the state’s attorney
violated the defendant’s fair trial rights is predicated
on the factors set forth in State v. Williams, [204 Conn.
523, 540, 529 A.2d 653 (1987)], with due consideration
of whether that [impropriety] was objected to at trial.
. . . These factors include the extent to which the
[impropriety] was invited by defense conduct or argu-
ment, the severity of the [impropriety], the frequency
of the [impropriety], the centrality of the [impropriety]
to the critical issues in the case, the strength of the
curative measures adopted, and the strength of the
state’s case. . . .
‘‘A prosecutor may invite the jury to draw reasonable
inferences from the evidence; however, he or she may
not invite sheer speculation unconnected to evidence.
. . . Moreover, when a prosecutor suggests a fact not
in evidence, there is a risk that the jury may conclude
that he or she has independent knowledge of facts that
could not be presented to the jury.’’ (Citations omitted;
internal quotation marks omitted.) State v. Carras-
quillo, 290 Conn. 209, 222, 962 A.2d 772 (2009).
Assuming, without deciding, that the state’s mention
of the ‘‘likelihood’’ of contracting sexually transmitted
diseases through digital penetration constituted prose-
cutorial impropriety, we conclude that the comment
did not deprive the defendant of his right to a fair trial.
The Williams factors guide our decision. See id. While
the comment was not invited by defense counsel or
argument, we find that the rest of the factors weigh
in the state’s favor. The severity of the comment was
minimal—the state immediately corrected itself by stat-
ing that Courtney had merely observed cases in which
child victims reporting solely digital penetration also
suffered from sexually transmitted diseases. The fre-
quency of the remark—it occurred once—was also
minimal.
The remark was not critical to the state’s case
because the jury could have found the defendant guilty
under § 53-21 (a) (2) on the alternative ground that his
actions were likely to impair J’s morals. See State v.
Romero, 269 Conn. 481, 493, 849 A.2d 760 (2004)
(‘‘[o]nce the jury determined that . . . intercourse and
mutual sexual touching took place . . . it is difficult
to imagine a finding that this conduct could not be
deemed likely—in the context of probably—to impair
[the nine year old victim’s] morals’’ [emphasis in origi-
nal]). In its closing remarks, the state explicitly argued
for a guilty verdict based on the impairment of morals
prong of § 53-21 (a) (2). The court instructed the jury
as to this prong as well. ‘‘The jury [is] presumed to
follow the court’s directions in the absence of a clear
indication to the contrary.’’ (Internal quotation marks
omitted.) State v. Negron, 221 Conn. 315, 331, 603 A.2d
1138 (1992).
As to curative measures taken by the court, while
the court did not provide a curative instruction specifi-
cally in response to the state’s comment because the
defendant did not object to the remark at trial, the court
instructed the jury that the statements and arguments
of the attorneys were not evidence, and that ‘‘[i]f the
facts as you remember them differ from the way the
lawyers have stated them[,] your memory of them
controls.’’
Finally, as to the strength of the state’s case, we
conclude that it was ‘‘sufficiently strong so as to not
be overshadowed by the [state’s comment].’’ State v.
Angel T., 292 Conn. 262, 293, 973 A.2d 1207 (2009).
While the state’s case as to the impairment of health
prong of § 53-21 (a) (2) appears to us not to be particu-
larly strong,4 as previously explained, the jury could
have found the defendant guilty under the statute on
the alternative ground that his abuse of J was likely to
impair her morals. Although the defendant argues that
the jury could not have convicted him under the impair-
ment of morals prong because the state’s argument and
the trial court’s instructions as to that prong were, for
various reasons, inadequate,5 we find that not to be the
case. Again, in closing argument, the state argued for
conviction under both the health and morals prongs of
§ 53-21 (a) (2), and the judge instructed the jury as
to both bases of liability as well. As to the evidence
presented by the state, the jury heard the testimony of
two eyewitnesses—J and David—who attested to the
sexual abuse. J’s father and brother testified as con-
stancy of accusation witnesses. Three police officers
who investigated the case also testified for the state.
One officer testified that J accurately identified the
defendant and David in photographic arrays. The officer
also testified as to the defendant’s statements and
behavior during an interview the officer conducted dur-
ing the investigation. According to the officer, although
the defendant denied the allegations against him in the
interview, he indicated that he had brought adult
women down to the store’s basement for sex. When
the officer showed the defendant a picture of David, the
officer observed the defendant’s hand tremble. Another
officer testified that, during his investigation of the alle-
gations, he took photographs of the market, including
of the market’s basement. Those photographs were
entered as trial exhibits. Certain photographs bore simi-
larities to a picture J drew of the basement during an
interview at Saint Francis Hospital about the allega-
tions. In light of such evidence, the defendant himself
acknowledged in his appellate brief that ‘‘the jury had
sufficient evidence from which it could have found that
the defendant’s actions were likely to impair the child’s
morals . . . .’’ The state’s case for the impairment of
morals under § 53-21 (a) (2)—sexual contact with a
twelve to thirteen year old and paying her money after-
wards—was strong enough to withstand the alleged
impropriety. For the foregoing reasons, the Williams
factors are unavailing to the defendant. Accordingly,
the defendant cannot prevail on his claim of prosecu-
torial impropriety.
III
Finally, the defendant claims that 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 do
not agree.
The following additional facts are relevant to our
discussion. The state called J as a witness during the
trial. When the state asked J where on her body the
defendant had touched her, J was unwilling or unable
to respond verbally, and was instead allowed to write
certain anatomical terms on a piece of paper. When J
failed to respond verbally to one such question, the trial
court told J, ‘‘Take your time; I know this is difficult’’
and ‘‘You don’t have to be nervous.’’ Later in J’s testi-
mony, the court again told her, ‘‘I know it’s difficult for
you’’ and ‘‘I know this was very difficult.’’6 All of these
statements were made in front of the jury. The defen-
dant did not object to them during the trial. He argues
on appeal that these statements deprived him of a fair
trial and impartial tribunal because they bolstered J’s
credibility. According to the defendant, the court’s com-
ments conveyed to the jury that it believed J’s allega-
tions because the only reason it would be ‘‘difficult’’
for her to testify was if the allegations were true. ‘‘[I]n
showing compassion to a witness and empathizing with
the great difficulty which she had in testifying about
her ordeal,’’ the defendant argues, ‘‘[the court] blatantly
enhanced her credibility in the minds of the jury.’’ As
the defendant did not object to the court’s statements
at trial, he pursues relief under State v. Golding, supra,
213 Conn. 233. We do not find the defendant’s argu-
ment persuasive.
‘‘To prevail on his unpreserved constitutional claim,
the defendant must satisfy all four conditions set forth
in Golding. He must show that (1) the record is adequate
to review the alleged claim of error; (2) the claim is
of constitutional magnitude alleging the violation of a
fundamental right; (3) the alleged constitutional viola-
tion . . . exists and . . . deprived the defendant of a
fair trial; and (4) if subject to harmless error analysis,
the state has failed to demonstrate harmlessness of the
alleged constitutional violation beyond a reasonable
doubt. . . . Failure to satisfy any of the four conditions
will cause the defendant’s claim to fail. . . . The appel-
late tribunal is free, therefore, to respond to the defen-
dant’s claim by focusing on whichever condition is most
relevant in the particular circumstances.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Eason, 116 Conn. App. 601, 603–604, 976 A.2d 797, cert.
denied, 294 Conn. 902, 982 A.2d 646 (2009); see also In
re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015)
(modifying third prong of Golding). In the present case,
we conclude that the record is adequate to review the
claim and that the claim is of constitutional magnitude
alleging violation of a fundamental right. We therefore
proceed to Golding’s third prong.
The following legal principles pertaining to the
judge’s role in conducting a criminal trial guide our
analysis. ‘‘While no precise theorem can be laid down,
we have held that it is proper for a trial court to . . .
[intervene] where the witness is embarrassed, has a
language problem or may not understand a question.’’
(Internal quotation marks omitted.) State v. Iban C.,
275 Conn. 624, 652, 881 A.2d 1005 (2005); see also State
v. Graham, 21 Conn. App. 688, 692–93, 575 A.2d 1057(‘‘[a] trial court has a discretionary right to intervene in
the examination of witnesses where such intervention is
necessary to clarify confusing testimony, restrain an
obstreperous witness, or elucidate a witness’ under-
standing of a question’’), cert. denied, 216 Conn. 805,
577 A.2d 1063 (1990). ‘‘If the judge chooses to intervene
in a criminal trial, such intervention must reach a signif-
icant extent and be adverse to the defendant to a sub-
stantial degree before risking impaired functioning of
the finder of fact or the appearance of an impartial
judge.’’ (Emphasis added; internal quotation marks
omitted.) State v. Eason, supra, 116 Conn. App. 605.
While there are perhaps more neutral ways of
obtaining cooperation from a reluctant witness whose
testimony is key to the case than stating ‘‘I know this
is difficult’’ and ‘‘You don’t have to be nervous’’ in the
presence of the jury, we cannot say that such statements
were so significant, and the harm to the defendant so
substantial, as to deprive the defendant of a fair trial
and an impartial tribunal. In our view, the court’s state-
ments did not imply that the court found J a credible
witness or that the defendant had done anything wrong,
but were, rather, an attempt by the court to elicit testi-
mony from a young witness who was noticeably ner-
vous while testifying. Moreover, in its instructions to the
jury, the court cured any potential misapprehensions
by stating that ‘‘[y]ou should not be influenced by my
actions during the trial . . . in questions to witnesses
. . . . You are not to take my actions as any indication
of my opinion as to how you should determine the
issues of fact.’’ As previously explained, ‘‘[t]he jury [is]
presumed to follow the court’s directions in the absence
of a clear indication to the contrary.’’ (Internal quotation
marks omitted.) State v. Negron, supra, 221 Conn. 331.
Consequently, we conclude that these comments did
not deprive the defendant of his rights to a fair trial
and an impartial tribunal.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In accordance with our policy of protecting the privacy interests of the
victims of the crime of risk of injury to a child, we decline to identify the
victim or others through whom the victim’s identity may be ascertained.
See General Statutes § 54-86e.
2
For this reason we also reject the defendant’s analogy to State v. Daniels,
180 Conn. 101, 429 A.2d 813 (1980). In Daniels, the defendant objected to
the state’s missing witness argument on the ground that the availability of
the witness was not established. Id., 107. On trial for sexual assault, the
defendant in Daniels testified in his own defense that he was asleep in bed
with another woman at the time the assault was alleged to have occurred.
Id. During cross-examination of the defendant, the state asked if he knew
where this purported alibi witness was. Id., 110. The defendant responded,
‘‘She’s home, I guess.’’ (Internal quotation marks omitted.) Id. Our Supreme
Court concluded that such testimony was sufficient to support a finding by
the jury that the missing witness was available to testify. Id. The defendant
in the present appeal argues that Daniels establishes that ‘‘the party seeking
permission to make the missing witness argument need not show certainty
of the availability of the witness when a family is involved.’’ In the present
case, the defendant not only failed to show, in his words, ‘‘certainty’’ that
J’s sister was available to testify, but failed to provide any factual basis
at all in support of such conclusion. Daniels, therefore, is unavailing to
the defendant.
3
We briefly dispose of two ancillary arguments made by the defendant:
The defendant first argues that ‘‘[t]he state’s claim that [J’s] sister would
be cumulative to the testimony of [David] is simply no basis for the court
to have denied the motion.’’ The premise of this argument is belied by the
record. The trial court did not deny the defendant’s request because it
concluded that J’s sister’s testimony would be cumulative. Rather, the court
denied the request because the defendant’s offer of proof was speculative.
The defendant’s reliance on State v. Saunders, 114 Conn. App. 493, 969 A.2d
868, cert. denied, 292 Conn. 917, 973 A.2d 1277 (2009), is misplaced. In
Saunders, this court declined to review the merits of the defendant’s missing
witness argument claim, concluding that it was unpreserved. Id., 504. We
decline to revisit Saunders here.
Second, the defendant argues that J’s sister’s testimony was critical to
the state’s case, and therefore merited a missing witness argument, because
there was evidence adduced at trial that, during a police interview with the
defendant prior to trial, the defendant explicitly denied that any minors had
been in the market’s basement. The defendant argues in part: ‘‘It would
appear . . . that the only witness who could . . . partially refute the defen-
dant’s exculpatory statement was [J’s] sister.’’ This argument fails for two
reasons. First, the defendant did not make this particular argument before
the trial court. Second, the defendant’s interview statement is a peripheral
matter. The defendant was not charged and convicted for merely bringing
J down to the basement, but for sexually assaulting her there. It therefore
does not appear to us to have been critical to corroborate David’s testimony
that she and J’s sister observed J and the defendant ascending the market’s
basement staircase.
4
Nothing from Courtney’s testimony suggests to us that contraction of a
sexually transmitted disease is a likely consequence of child sexual assault
by means of digital penetration. At most, the testimony conveyed that a
subset of children—whether it is 1 percent or 99 percent is unclear—
reporting abuse solely in the form of digital penetration whom Courtney
observed also suffered from a sexually transmitted disease.
5
The defendant argues that the state’s comment on the likelihood of
contracting sexually transmitted diseases by means of digital penetration
so dominated the state’s closing argument that the jury could have convicted
the defendant under § 53-21 (a) (2) only on the basis of the impairment of
J’s health. The defendant also claims that the court’s instructions to the
jury were insufficient to apprise them of the impairment of morals prong
of § 53-21 (a) (2). The defendant further contends that the court’s instructions
to the jury that they were ‘‘the sole judges of the facts’’ were insufficient
because they did not convey that ‘‘statements by the prosecutor as to his
recollection of the facts was not to be relied on.’’ (Emphasis added.) For
the reasons previously set forth in this opinion, we conclude that these
arguments lack merit.
6
The defendant asserts in his appellate brief that the trial court also told
J that it ‘‘understood why she was ‘nervous and distressed’ . . . .’’ (Empha-
sis added.) Although, as noted previously in this opinion, the trial court did
tell J, ‘‘You don’t have to be nervous,’’ our review of the trial transcripts
does not disclose, and the defendant has not identified through citation to
the transcripts, an instance in which the court used the word ‘‘distressed’’
in this context.