State v. Fernandez
The state does not violate the rule from the 1929 Connecticut Supreme Court case of State v. Guilfoyle by failing to call a witness when the defendant is aware of the witness and the potential substance of the witness' testimony and could take action to procure the testimony of the witness. Following a jury trial, Kadafie Fernandez was convicted of murder in connection with the shooting death of Blake Moore. Fernandez appealed claiming that the court improperly denied his motion for a new trial predicated on alleged prosecutorial impropriety. The Appellate Court affirmed the judgment. The defendant first claimed that the court improperly concluded that the prosecutor did not comment on matters not in evidence and encourage the jury to speculate on events not supported by the record. The defendant claimed that the prosecutor's argument was improper because the state was aware of, but did not call Carmelo Rivera, who testified to looking out a window and seeing the shooter approach the victim from the south not the north. The prosecutor argued that Rivera's testimony did not make sense when compared to other witnesses, that no one knew what happened between the time Moore was seen running down the street and the time two witnesses, including Rivera, saw the defendant shoot Moore. The prosecutor was not precluded from asking the jury to draw reasonable inferences about what happened during that time gap as claimed. The gist of the defendant's argument appeared to be that because the state did not call Rivera as its own witness, the evidence the defendant elicited from Rivera should not have been used by the prosecutor during final argument. However, all evidence before the jury, regardless of who presented it, was available for the prosecutor to argue and for defense counsel to dispute. It was for the jury to determine which version of the facts to believe. Additionally, the prosecutor's failure to call Rivera did not violate Guilfoyle. The defendant acknowledged that the modern interpretation of the doctrine requires only that the state ensure that the defendant is aware of any witness tending to aid in ascertaining the truth as to the relevant facts. Defense counsel knew of Rivera, knew the substance of Rivera's testimony and put it before the jury.