text:
    STATE OF CONNECTICUT v. JUAN VAZQUEZ
    (AC 23472)
    Flynn, Bishop and Mihalakos, Js.

      Argued May 27
    officially released September 2, 2003

      Felix Esposito, special public defender, for the appellant (defendant).

      Christopher T. Godialis, assistant state’s attorney, with whom, on the brief, were Christopher L. Morano, chief state’s attorney, Kathleen E. McNamara, senior assistant state’s attorney, and Louis J. Luba, Jr., assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Juan Vazquez, appeals from the judgment of conviction, rendered after a jury trial, of one count of murder in violation of General Statutes § 53a-54a, and one count of conspiracy to commit murder in violation of General Statutes §§ 53a-48 and § 53a-54a. The defendant claims that he was denied a fair trial because of a repeated pattern of prosecutorial misconduct. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the night of July 29, 1996, John Townsend, the victim, and John Okon went to a bar in Southington for a few drinks. At around midnight, the two decided to pool their money and attempt to buy some cocaine. They then drove to a housing project on Willow Street in New Britain. Okon remained in the car as the victim got out and approached some men to ask where cocaine might be purchased. After some discussion, the victim returned to the car with the cocaine. As they began to drive off, something hit the car, and the victim instructed Okon, who was driving, to stop. The victim exited the car to investigate. Moments later, Okon heard a shot, got out of the car and saw the victim lying on the ground, dead. Okon drove away from the scene until he found a police officer to whom to report the event.

At trial, in August, 2001, the state called, inter alios, two witnesses, Madelyn Cruz and Sheila Calderon, who claimed to have seen the defendant shoot the victim in the head and then flee the scene. The defendant also testified. Subsequently, the defendant was convicted of murder and conspiracy to commit murder.

On appeal, the defendant claims that the prosecutor engaged in a pattern of misconduct that deprived the defendant of a fair trial. Although the defendant did not preserve his claims at trial, because he contends that he was deprived of a constitutional right, he requests review pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). In the alternative, he requests plain error review and review in derivation of this court’s inherent supervisory authority over the administration of justice.

Specifically, the defendant claims that the prosecutor (1) improperly impugned the defendant’s character during cross-examination, in particular with evidence of prior bad acts, (2) implied that the defendant was lying, (3) commented negatively on the defendant’s right to assist in his defense, (4) invited the defendant to comment on the credibility of other witnesses, (5) improperly vouched for the credibility of several state’s witnesses and (6) commented on facts not in evidence. Additional facts will be introduced as necessary.

I

As the defendant’s claims were not preserved at trial, he now seeks review under State v. Golding, supra, 213 Conn. 233. Accordingly, “a defendant can prevail on a claim of constitutional error, not preserved at trial only if all of the following conditions are met: (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 violation clearly exists and clearly 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.” (Emphasis in original.) Id., 239-40. “The first two conditions are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself.” State v. Graham, 33 Conn. App. 432, 442, 636 A.2d 852, cert. denied, 229 Conn. 906, 640 A.2d 117 (1994). When any one of those conditions is not satisfied, the claim will fail. State v. Golding, supra, 240.

As an initial matter, we conclude that the first two prongs of Golding have been met. The record is adequate for review, and it is well settled that prosecutorial misconduct can result in the deprivation of a defendant’s due process right to a fair trial. See State v. Singh, 259 Conn. 693, 700-701, 793 A.2d 226 (2002); State v. Alexander, 254 Conn. 290, 303-304, 755 A.2d 868 (2000).

The third prong of Golding requires the defendant to show that the alleged constitutional violation clearly existed and that it clearly deprived him of a fair trial. In cases of prosecutorial misconduct, to make that determination, we employ a two part test. State v. Brown, 71 Conn. App. 121, 128-29, 800 A.2d 674, cert. denied, 261 Conn. 940, 808 A.2d 1133 (2002). First, we determine if the remarks were improper, and, if they are found to be so, we determine whether they caused such substantial prejudice to the defendant as to deny him due process of law. See State v. Yusuf, 70 Conn. App. 594, 622, 800 A.2d 590, cert. denied, 261 Conn. 921, 806 A.2d 1064 (2002).

A

The first part of our inquiry requires us to “determine whether the particular conduct was improper before determining whether the impropriety, if any, deprived the defendant of a fair trial.” State v. Singh, supra, 259 Conn. 702. We examine each of the alleged instances of misconduct, in turn, to assess whether they were, in fact, improper.

1

The first alleged instances of improper conduct by the prosecutor occurred during the cross-examination of the defendant. The defendant claims that the prosecutor exceeded the scope of inquiry established during the direct examination and, in so doing, introduced evidence that was prejudicial to the defendant. In response, the state argues that “the door was opened” to the prosecutor’s line of inquiry by defense counsel on direct examination.

Specifically, the defendant claims that the prosecutor’s inquiry regarding the defendant’s known associates and their proclivity toward guns was improper and prejudicial. Additionally, the prosecutor inquired about previous motor vehicle violations by the defendant and a previous encounter with the police in an empty apartment on Willow Street, and made a reference to the defendant’s familiarity with police questioning techniques. The state claims that those subjects were broached first by defense counsel on direct examination and, thus, were a proper subject of inquiry.

We first examine the level of deference accorded to counsel when cross-examining a witness. In general, the court has wide discretion in setting the scope of cross-examination. State v. Palozie, 165 Conn. 288, 297, 334 A.2d 468 (1973). Although cross-examination is limited to the subject matter of the direct examination; State v. Manning, 162 Conn. 112, 116, 291 A.2d 750 (1971); the cross-examiner may elicit not only any fact that would tend to contradict or to qualify any particular fact stated on direct examination, but also anything that would tend to modify any conclusion or inference resulting from the facts so stated. See Shulman v. Shul man, 150 Conn. 651, 661, 193 A.2d 525 (1963); Levine v. Marcus, 90 Conn. 682, 684-85, 98 A. 348 (1916).

On direct examination, defense counsel asked the defendant about his experience with guns, whether he owned a car, where he lived, whether he lived on Willow Street (where the shooting took place), the proximity of the location where he claimed to be on the night of the shooting and how he transported himself around. The defendant also testified that he had felt threatened by police at his initial interview, although he had submitted voluntarily to that interview.

The subject matter of the direct examination, thus, could lead to many exculpatory inferences, among them, that the defendant was unfamiliar with guns, had no access to guns, was unable to travel to Willow Street on the night of the shooting, did not drive a car, did not live or frequently stay at Willow Street, and was unfamiliar with police protocol and procedure. The prosecutor’s line of inquiry reasonably could be construed as addressing the defendant’s familiarity with guns and gun violence, as well as the defendant’s access to guns, mode of transportation and frequency of his presence in the Willow Street area, and his candor about feeling threatened during a voluntary police interview.

As to the defendant’s claim that the line of questioning was unfairly prejudicial, we note, as we previously have stated, that “[e]vidence that is inadmissibly prejudicial is not to be confused with evidence that is merely damaging. ... All evidence adverse to a party is, to some degree, prejudicial.” (Citation omitted.) Chouinard v. Marjani, 21 Conn. App. 572, 576, 575 A.2d 238 (1990). We therefore conclude that given the considerable leeway allowed to counsel on cross-examination to delve into subjects that have been even tangentially broached or their consequent inferences, the prosecutor’s line of questioning, although perhaps overly zealous, was not improper.

2

The defendant next claims that the prosecutor implied that the defendant was lying at several junctures during cross-examination. In support of his claim, the defendant cites State v. Alexander, supra, 254 Conn. 290, for the proposition that “a prosecutor may not express her own opinion, either directly or indirectly, as to the credibility of a witness or the guilt of the defendant.” (Emphasis added.) Id., 304.

The determination of whether the prosecutor insinuated, i.e., indirectly expressed her opinion, that the defendant was lying or was guilty is a particularly problematic one for this court to make. In essence, it requires us to conclude that the prosecutor meant to communicate something that facially is not reflected in the record. Such inferences, more likely, can be understood only by the tone and posture of the speaker and overall context of the remarks, but they are not supported by the printed record. From the record, we cannot say conclusively that those remarks were improper.

3

The defendant next claims that the prosecutor negatively commented on his right to assist in his defense, thereby impermissibly burdening his right to present a defense. That claim lacks merit. The most substantial claim in that regard concerns comments made by the prosecutor on the defendant’s taking notes during certain witnesses’ testimony. It is difficult to fathom how any negative inferences could be drawn from those comments. At worst, we find them analogous to commentary on the defendant’s ability to tailor his testimony based on the fact that he was the last person to testify. Such comments are not improper. See id., 294. The other instances of allegedly impermissible commentary concern remarks that were not facially improper. See part I A 2.

4

The defendant next claims that the prosecutor improperly invited the defendant to characterize other witnesses’ testimony and, in doing so, improperly argued that for the defendant to be innocent, several witnesses had to be lying.

It is a well established evidentiary rule that it is improper to ask a witness to comment on another witness’ veracity. State v. Singh, supra, 259 Conn. 706. The rationale behind that rule is multifold. First, determinations of credibility are for the jury and not the witnesses. Id., 707. As a result, questions asked of witnesses concerning the veracity of other witnesses invade the province of the jury. Id. Also, such questions have no probative value, are generally argumentative and are improper. Id., 707-708. Those questions can create a serious problem in that a jury may conclude that to acquit the defendant, it must also find that a witness hashed. Id., 708. That potential problem is compounded when the witness about whom the defendant is asked to pass judgment is a law enforcement officer, as juries are likely to be inclined to put faith in such figures. Id.; see also United States v. Fernandez, 145 F.3d 59, 64 (1st Cir. 1998).

When the prosecutor questioned the defendant as to why a witness, Calderon, would identify the defendant as the shooter, the following colloquy occurred:

“[Prosecutor]: And you and [Calderon] and [Cruz] were watching TV.
“[Defendant]: No.
“[Prosecutor]: You weren’t watching TV with them?
“[Defendant]: No, I was not.
“[Prosecutor]: Okay. So [Calderon], who — a fifteen-year-old girl at the time of this murder, out of a clear blue, decides she’s going to pin it on you. Is that right?
“[Defendant]: I guess so. . . .
“[Prosecutor]: So, out of a clear blue, she made up this story to get you.
“[Defendant]: It’s possible.”

The prosecutor next invited the defendant to comment on the veracity of Detectives Thomas Hayes and Cary Carlone, who also were witnesses:

“[Prosecutor]: And Detective Hayes made up this story to get you. Isn’t that right?
“[Defendant]: Detective Hayes — I answered all of Detective Hayes’ questions.
“[Prosecutor]: And Detective Carlone made up all these things, just to get you. Isn’t that right?
“[Defendant]: Like I said, I answered all their questions.”

Those comments are precisely the type of questions admonished against in Singh and they are improper.

5

The defendant next claims that the prosecutor improperly vouched for the credibility of several state’s witnesses during closing argument.

The parameters of proper argument by a prosecutor during closing argument are well established. “[I]n addressing the jury, [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of the argument. . . . The prosecutor [however] may not express his own opinion, directly or indirectly, as to the credibility of the witnesses. . . . Such expressions of personal opinion are a form of unsworn and unchecked testimony, and are particularly difficult for the jury to ignore because of the prosecutor’s special position. . . . Moreover, because the jury is aware that the prosecutor has prepared and presented the case and, consequently, may have access to matters not in evidence ... it is likely to infer that such matters precipitated the personal opinions.” (Citations omitted; internal quotation marks omitted.) State v. Singh, supra, 259 Conn. 712-13.

The statements made by the prosecutor during her closing argument, which the defendant claims fall outside the bounds of propriety as defined by Singh, were as follows: “And [Calderon] came in and told you what she saw, and [Cruz] came in and told you what she saw. And they told you the truth, because they will never forget that night in July.” Later in her closing argument, the prosecutor stated: “[Y]ou may not like John Okon. You may not like Madelyn Cruz. You may not like Sheila Calderon. You may not like their personal habits or their child rearing techniques. . . . Crimes take place with people that they’re comfortable with. And people that they’re comfortable with may not have sterling reputations, but they know the solemnity of their oath. And police officers know their oath. They came into court and raised their hand to tell the truth, and that’s exactly what these witnesses did.” We conclude that those comments constitute impermissible commentary by the prosecutor on the credibility of the state’s witnesses.

Later in her argument, the prosecutor stated: “Now, if they didn’t see John Townsend before the murder and they only saw him lying on the pavement, how would they know how tall he was? How would they know that he was taller than the defendant? Do you know how they knew? Because what Sheila testified to and what Madelyn Crus testified to is the truth. . . . They didn’t go down with a measuring tape, as he lay on the pavement, and measure him and say, hey, he’s six foot; he’s a tall guy. No. They actually observed the murder. They couldn’t make that up.” (Emphasis added.)

The impropriety of the prosecutor’s comments, vouching for the truthfulness of the witnesses’ testimony, is not open to question. It was clearly improper. The propriety of the balance of the prosecutor’s comments in that part of her argument is less easily determined. As the defendant points out, in State v. Alexander, supra, 254 Conn. 301, somewhat similar comments by the prosecutor were found by this court and on review by our Supreme Court to be improper. In State v. Rivera, 61 Conn. App. 763, 765 A.2d 1240, cert. denied, 256 Conn. 901, 772 A.2d 599 (2001), we concluded, however, that “[a] prosecutor may not express his own opinion, either directly or indirectly, as to the credibility of witnesses .... The prosecutor may, however, argue to the jury that the evidence and the reasonable inferences to be drawn therefrom should lead the jury to a conclusion as to the credibility of witnesses.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 775.

We conclude that the prosecutor’s comments in this case, regarding the height of the victim and the inferences to be drawn from the witnesses’ knowledge of it, namely, that they actually had observed the murder, were of the type of permissible commentary approved in Rivera and not of the type barred by Alexander. In Alexander, the prosecutor argued, essentially, that the child witness, because she was a child, was incapable of fabricating the details of her testimony. Here, the prosecutor argued that because the witnesses accurately had testified about the relative heights of the victim and the defendant, the jury should infer that they actually had witnessed the scene. The comments were not so much based on the opinion of the prosecutor as from inferences properly drawn from evidence in the case. We conclude, therefore, that those latter comments by the prosecutor were not improper.

6

The defendant next claims that the prosecutor improperly commented on facts that were not in evidence during closing argument. Our law on the subject dictates that “[w]hile the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or to suggest an inference from, facts not in evidence, or to present matters which the jury have no right to consider.” (Internal quotation marks omitted.) State v. Alexander, supra, 254 Conn. 302.

The comments to which the defendant objects concern an analogy drawn between the experience of the two eyewitnesses who allegedly viewed the murder and the experiences of the jurors who may have witnessed several notable historical events. The danger, the defendant argues, is that the prosecutor was, in effect, giving expert testimony about the reliability of eyewitnesses’ memory.

A similar argument was used by the prosecutor in State v. Briley, 55 Conn. App. 258, 739 A.2d 293, cert. denied, 251 Conn. 927, 742 A.2d 363 (1999). When that conduct was challenged on appeal as demonstrating prosecutorial misconduct, this court determined that the comments had been invited. We therefore did not reach the question of whether they were improper. Although the comments in Briley were similar to the comments made by the prosecutor here, the circumstances are distinguishable. In Briley, the argument was directed at the reliability of an eyewitness identification by a bank teller who was robbed at gunpoint by a stranger. The teller later identified the robber from police photographs. Following the prosecutor’s controversial argument to the jury, the defendant advanced the claim that the prosecutor had, in effect, given expert testimony to the jury that was contrary to modern scholarship on the reliability of eyewitness memory. Id., 261.

Here, the issue is not the ability of the eyewitnesses to identify the defendant. The defendant was a Mend of both eyewitnesses, he had spent the evening with them watching television and had left the apartment moments before the shooting with gun in hand. At trial, no one advanced a theory or put into question the fact that either or both witnesses might have misidentified the defendant. The prosecutor’s argument cannot, then, reasonably be construed as an effort to convince the jurors that because of the shocking nature of the event, their ability to identify the defendant as the shooter was somehow enhanced, as the prosecutor in Briley argued.

To the extent that by citing in her argument the impact of certain historical events, the prosecutor was suggesting that people who witness terrible and momentous occurrences will not soon forget them, we regard that as within the realm of permissible rhetorical argument. “The occasional use of rhetorical devices is simply fair argument.” (Internal quotation marks omitted.) State v. Singh, supra, 259 Conn. 712. Further, the argument was one made from common sense and was not the subject of expert testimony. The jurors were fully capable of assessing its merits using their experience and without other extrinsic evidence. “It is an abiding principle of jurisprudence that common sense does not take flight when one enters a courtroom. . . . Faced with the evidence before them, the jurors [rely] on their own observations and experience of the affairs of life to determine the credibility of the witnesses in reaching their verdict.” (Citation omitted; internal quotation marks omitted.) State v. Sanchez, 50 Conn. App. 145, 158, 718 A.2d 52, cert. denied, 247 Conn. 922, 722 A.2d 811 (1998). We conclude that the comments were not improper.

B

Having determined that the prosecutor, in cross-examination and in closing argument, acted improperly, we must next determine whether the improprieties created such substantial prejudice as to infringe on the defendant’s constitutional right to a fair trial.

In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, we have focused on several factors. “Those factors include (1) the extent to which the misconduct was invited by defense conduct or argument, (2) the severity of the misconduct, (3) the frequency of the misconduct, (4) the centrality of the misconduct to the critical issues in the case, (5) the strength of the curative measures adopted and (6) the strength of the state’s case.” State v. Brown, supra, 71 Conn. App. 130, citing State v. Singh, supra, 259 Conn. 700-701. From those factors, it is evident that the prosecutor’s conduct alone is not dispositive, but the inquiry is guided primarily by the fairness of the trial as a whole. State v. Singh, supra, 701.

To reiterate, the conduct that we have determined to be improper consisted of the prosecutor’s improperly inviting the defendant to characterize other witnesses’ testimony dining cross-examination and the prosecutor’s improperly vouching for the credibility of several state’s witnesses during closing argument. We examine each instance in turn.

1

First, we apply the factors discussed in State v. Brown, supra, 71 Conn. App. 130, to the comments by the prosecutor asking the defendant to characterize the testimony of the witnesses, Cruz and Calderon, as well as that of the detectives, Hayes and Carlone. Essentially, she asked the defendant whether the witnesses had “made up” their testimony. Aside from the basic premise that the defendant testified that he did not shoot the victim and was elsewhere on the night of the shooting, we find nothing in the record of the defense examination that would invite the prosecutor’s questions.

In asking the defendant to characterize the testimony of the two eyewitnesses to the shooting, the prosecutor invited the defendant to give an opinion on the central evidence in the case. In regard to the attempt by the prosecutor to invite the defendant to comment on the detectives’ testimony, we regard that as less troublesome. Although it is true that generally, inviting such a characterization of a “government [witness] in a criminal case” is particularly dangerous; State v. Singh, supra, 259 Conn. 708; here, the evidence about which the detectives testified was largely circumstantial and less central to the state’s case.

The curative measures for that particular misconduct were diffuse, as the questions were not objected to at trial and no particular curative instructions were requested. The court did, however, give proper instructions defining the role of the jury as the exclusive finder of facts and assessor of credibility. The court’s instructions, in that regard, were extensive and thorough. Additionally, the court, sua sponte, addressed the credibility of police officers as witnesses: “The testimony of a police officer is entitled to no special or exclusive sanctity merely because it comes from a police officer. A police officer who takes the witness stand subjects his testimony to the same examination and the same tests that any other witness does, and in the case of a police officer, you should not believe him . . . merely because he is a police officer.”

Although the testimony of the two eyewitnesses to the shooting was central to the state’s case, their credibility was bolstered by the state’s evidence, which largely reinforced their testimony. Although no weapon was recovered, the police had significant circumstantial evidence to support the eyewitnesses’ version of events. As mentioned, the witnesses were acquaintances of the defendant, both of whom testified that they were watching television with him shortly before the murder. They testified that his friend, Pep, had come to the door and told the defendant that a man was outside trying to “beat him” for his drugs. They both testified that the defendant had retrieved a nine millimeter handgun and left the apartment with Pep. They further testified that they watched as the defendant confronted the victim, pulled the gun from behind his back, reached up to the taller victim and shot him once in the side of the head, at close range, as he was walking away. They both testified that the defendant returned to the house and fled out the back window.

The state produced witnesses to attest that the victim, who was taller than the defendant, was, in fact, shot in the side of the head at close range. A nine millimeter bullet casing was found within five feet of the victim’s body. Okon testified that the victim had been attempting to procure drugs. Crack cocaine was found in the victim’s vest pocket. Furthermore, each witness’ testimony supported the other’s in great detail. Although discrepancies existed as to the color of the gun used and which hand the defendant had used to shoot the victim, the witness’ versions of the evening’s events were in significant accord. Those facts independently corroborated each witness’ testimony.

2

In regard to the second instance of improper conduct by the prosecutor, we again apply the Singh factors. As described in part IA 5, the prosecutor during closing argument improperly vouched for the credibility of several state’s witnesses, including Cruz, Calderon, Okon and, more generally, “the police officers.”

The remarks regarding the truthfulness of Cruz, Calderon and Okon were uninvited. As with the prosecutor’s improper conduct during cross-examination, that misconduct involved the credibility of the state’s witnesses, witnesses who were central to the critical issues in the case. Although at times throughout his closing argument, defense counsel commented on the discrepancies in the eyewitnesses’ testimony, nowhere did he impugn their truthfulness.

Additionally, we are not persuaded by the state’s argument that some of the prosecutor’s comments vouching for witnesses were invited. Although defense counsel did broach the subject of a credibility contest between the defendant and the police, that appropriate argument was not a basis for the prosecutor’s response vouching for the truthfulness of the police officers. For the reasons we have stated, we consider commentary by counsel on witnesses’ credibility to be an invasion of the province of the jury, and, consequently, improper. That particular conduct, however, was relatively isolated and brief. To the extent that the prosecutor improperly commented on the credibility of the police officers and Okon, whose testimony concerned more circumstantial matters, the commentary was of less importance than commentary on the truthfulness of the eyewitnesses.

Regarding curative measures, the discussion in part IB 1 applies equally here. None was requested, but the court was nonetheless extremely thorough, especially when addressing the role and responsibility of the jury. The court stated in relevant part: “[IJt’s the jury’s province and sole responsibility to pass upon the disputed facts .... And in so doing, you ascertain where the truth lies. . . . And no matter what I may say concerning the facts or what the lawyers have said to you, it’s your recollection of the facts which is to guide you in deciding this case. . . . And what the lawyers say to you and what I say to you as to the facts . . . should have weight with you only so far as you approve of it in your minds. . . .

“Now, in this case, you’ve had a number of witnesses appear before you and, therefore, you’ll be interested in the rule of law relating to credibility, that is, how to decide, in your own minds, whether a witness is telling the truth. The credibility of witnesses and the weight to be given their testimony are matters . . . which it is peculiarly your function to determine.”

Additionally, the court gave a limiting instruction on the remarks made by lawyers. The court stated: “[R]emember that certain things are not evidence, and you should not consider them in deciding what the facts are .... Arguments and statements by lawyers. The lawyers are not witnesses. What they have said in their closing arguments and other times during the trial, that’s intended to help you interpret evidence, but it’s not evidence. If the facts as you remember them differ from the way the lawyers have stated them to you, it’s your memory that controls.” Despite the fact that no curative instructions were requested, we consider those instructions to be particularly strong.

We conclude that any harm that may have been caused by the improper remarks by the prosecutor during cross-examination and in closing arguments was mitigated by the strength of the case against the defendant and the court’s instructions to the jury. Although the prosecutor’s comments in both instances concerned the credibility of the two eyewitnesses whose testimony was central to the state’s case, their testimony was corroborated independently, and the court’s instructions were clear that credibility determinations were the exclusive province of the jury and that remarks by counsel were not to be considered evidence. It is well settled law that jurors “are 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). Here, during their deliberations, the jurors asked to reevaluate the testimony of both eyewitnesses and the defendant, indicating, if anything, that the jurors were determined to make their own credibility determinations and were not reliant on statements made by the prosecutor.

As a final consideration in our analysis, “[e]ven though we review this claim under the third prong of Golding, we note that [w]hen the principal participant in the trial whose function it is to protect the rights of his client does not deem an issue harmful enough to press in the trial court, the appellate claim that the same issue clearly deprived the defendant of a fundamental constitutional right and a fair trial ... is seriously undercut.” (Internal quotation marks omitted.) State v. Cruz, 75 Conn. App. 500, 509-10, 816 A.2d 683, cert. granted on other grounds, 263 Conn. 921, 822 A.2d 243 (2003).

We conclude, finally, that the defendant’s claims fail under the third prong of Golding. Although the defendant has demonstrated that the prosecutor made improper remarks, we cannot conclude that they caused such substantial prejudice or so infected the trial with unfairness as to deny the defendant due process of law.

II

Relying on our reasoning in part I, we further conclude that the defendant’s claims of prosecutorial misconduct do not warrant plain error review. Pursuant to Practice Book § 60-5, this court “may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law. . . .” In cases of alleged prosecutorial misconduct, our law is well established that “a defendant may not prevail under . . . the plain error doctrine unless the prosecutorial impropriety was so pervasive or egregious as to constitute an infringement of the defendant’s right to a fair trial. State v. Satchwell, 244 Conn. 547, 564, 710 A.2d 1348 (1998).” (Internal quotation marks omitted.) State v. Brown, supra, 71 Conn. 139. As we already have concluded, we believe that the defendant was not denied his right to a fair trial.

Ill

Finally, the defendant requests, pursuant to our supervisory authority over the administration of justice, that we reverse the judgment. The defendant cites State v. Brown, 235 Conn. 502, 668 A.2d 1288 (1995), for the proposition that cases implicating a defendant’s right to be tried before an impartial juiy warrant the invocation of that supervisory authority.

In Brown, our Supreme Court stated that “[e]ven in the absence of constitutional violations . . . this court has supervisory authority over the administration of justice to direct trial courts to adopt judicial procedures that will address matters that are of utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole. ... In each case in which we have invoked our supervisory authority, we have acted to provide additional procedural safeguards for some salient aspect of the right to a trial before an impartial jury. See State v. Breton, [235 Conn. 206, 250, 663 A.2d 1026 (1995)] (special jury verdict form in death penalty cases); State v. Jones, 234 Conn. 324, 346-47, 662 A.2d 1199 (1995) (bifurcation of jury proceedings in some death penalty cases); State v. Patterson, [230 Conn. 385, 397-98, 645 A.2d 535 (1994)] (personal judicial supervision of voir dire); State v. Holloway, [209 Conn. 636, 645-46, 553 A.2d 166] (judicial inquiry into bias claims at voir dire) [cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989)]. Similarly, in this case we are persuaded that a trial court must, when presented with any allegations of jury misconduct, conduct a preliminary inquiry, sua sponte if necessary, in order to assure itself that a defendant’s constitutional right to a trial before an impartial jury has been fully protected.” (Citations omitted; internal quotation marks omitted.) State v. Brown, supra, 235 Conn. 528.

In this case, there were no allegations of juror misconduct, but of prosecutorial misconduct that might have usurped the jury’s role as fact finder and determiner of credibility. The defendant’s claims do not equate to allegations of juror bias or judicial impropriety. Furthermore, here, in contrast to Brown, the court did, sua sponte, seek to redress any potential harm caused by the prosecutor’s improper remarks, even though no curative measures were requested by counsel. Therefore, given that we have concluded that the defendant received a fair trial, we believe that in this case it would be inappropriate as a matter of administration and misguided as a matter of justice to reverse the judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       The fourteenth amendment to the United States constitution, § 1, provides in relevant part: “No State shall . . . deprive any person of life, liberty or property, without due process of law . . .

       The question we address is whether the prosecutor’s inquiry was outside the scope of the direct examination. Among the defendant’s claims, in that regard, is that the questions asked and answers given may have been prejudicial to the defendant’s case. If the questions were proper, then it is of no legal consequence whether they, or their answers, prejudiced the defendant. See Chouinard v. Marjani, 21 Conn. App. 572, 576, 575 A.2d 238 (1990).

       The prosecutor cross-examined the defendant in relevant part as follows:
      “[Prosecutor]: Have you ever been around guns?
      “[Defendant]: Yes.
      “[Prosecutor]: Have you ever had friends who had guns? . . .
      “[Defendant]: Yes, yes.
      “[Prosecutor]: Have you ever been around when a gun was shot?
      “[Defendant]: Yes.
      “[Prosecutor]: When?
      “[Defendant]: Years ago.
      “[Prosecutor]: Lots of times?
      “[Defendant]: No.
      “[Prosecutor]: No? Do you know who Darence Delgado is?
      “[Defendant]: Yes.
      “[Prosecutor]: Were you with Mr. Delgado on Willow Street?
      “[Defendant]: Yes.
      “[Prosecutor]: What happened to Mr. Delgado?
      “[Defendant]: He got killed.
      “[Prosecutor]: Were you there?
      “[Defendant]: Yes, I was.
      “[Prosecutor]: So, you saw a — a gun being fired.
      “[Defendant]: Yes, a long time ago. . . .
      “[Prosecutor]: ... Do you know . . . Ariel Martinez?
      “[Defendant]: Yes.
      “[Prosecutor]: Who is Ariel Martinez?
      “[Defendant]: He’s my best friend.
      “[Prosecutor]: And where is Ariel Martinez?
      “[Defendant]: He died.
      “[Prosecutor]: What happened to Ariel Martinez?
      “[Defendant]: He got killed.
      “[Prosecutor]: How?

        “[Defendant]: A shooting in front of—
      “[Prosecutor]: He was shot?
      “[Defendant]: — his kids. Yeah.
      “[Prosecutor]: Who else axe your friends? You didn’t tell [defense counsel] who your friends were. Who else — what other friends do you have?
      “[Defendant]: I have many friends.
      “[Prosecutor]: What are their names?
      “[Defendant]: Ramon, Frankie ....
      “[Prosecutor]: Who’s Frankie?
      “[Defendant]: Frankie is — is one of my best friends.
      “[Prosecutor]: Frankie Figueroa?
      “[Defendant]: Yes he is.
      “[Prosecutor]: What’s his street name?
      “[Defendant]: Don’t know.
      “[Prosecutor]: Scarface?
      “[Defendant]: I don’t know.
      “[Prosecutor]: Frankie Figueroa, one of your friends, and you don’t know his street name?
      “[Defendant]: He doesn’t have a street name.
      “[Prosecutor]: Okay.
      “[Defendant]: To me, he’s Frankie. I grew up—
      “[Prosecutor]: Okay.
      “[Defendant]: — I grew up with him. . . .
      “[Prosecutor]: How about Edwin Sanchez?
      “[Defendant]: Yes.
      “[Prosecutor]: He’s a friend of yours. Isn’t he?
      “[Defendant]: Yes, he is.
      “[Prosecutor]: He was with you the day when Darence Delgado got shot. Wasn’t he?
      “[Defendant]: No, he wasn’t.
      “[Prosecutor]: He wasn’t?
      “[Defendant]: No.
      “[Prosecutor]: Where’s Mr. Sanchez now?
      “[Defendant]: In prison, I think. . . .
      “[Prosecutor]: And he’s in jail for killing Darence Delgado. Isn’t that correct? Just answer the ....
      “[Defendant]: I can’t—
      “[Prosecutor]: Yes or no?
      “[Defendant]: — answer that question . . . because I don’t know. . . .
      “[Prosecutor]: Did you ever have a nine millimeter weapon?
      “[Defendant]: No.
      “[Prosecutor]: Did you ever shoot a nine millimeter weapon with your friends?
      “[Defendant]: No.
      “[Prosecutor]: How many of your friends were shot with nine millimeter weapons?

        “[Defendant]: I don’t know. . . .
      “[Prosecutor]: February 13, 1995, when you and Mr. Sanchez were sitting at 32 Willow Street and Mr. Sanchez was shot, were you there?
      “[Defendant]: Mr. Sanchez was shot?
      “[Prosecutor]: Yeah.
      “[Defendant]: Oh, yeah. When he — yes, when he got shot on the head, yeah.
      “[Prosecutor]: You were there.
      “[Defendant]: Yes, I was.
      “[Prosecutor]: Violence again comes close to you.
      “[Defendant]: Huh?
      “[Prosecutor]: Violence again comes close to you. You’re always in the wrong place. Huh?
      “[Defendant]: I guess so.”

       The defendant admitted, during cross-examination, to having been stopped by police once while driving a car with Maine license plates. He denied another incident.

       The defendant admitted, during cross-examination, to an incident in which he was found by police in an empty apartment on Willow Street, at night, less than two months from the date of the shooting. We note that the prosecutor made no mention that this incident was an “illegal trespass,” as characterized by the defendant.

       Defense counsel inquired in relevant part as follows:
      “[Defense Counsel]: Did you ever own a gun?
      “[Defendant]: No.
      “[Defense Counsel]: Did you ever have a gun in your possession?
      “[Defendant]: A real gun?.
      “[Defense Counsel]: Yeah.
      “[Defendant]: No.
      “[Defense Counsel]: Did you ever fire a — a real gun?
      “[Defendant]: No, never.”
      Additionally, on direct examination, the defense counsel brought up Calderon’s testimony regarding a purported conversation between Calderon and the defendant:
      “[Defense Counsel]: . . . Now, you heard — you heard Sheila Calderon mention that she saw you a couple weeks . . . alter the shooting, and she asked you, ‘How could you do that?’ And you said, ‘I’m used to it; you just don’t look at them in the eyes; that way ... it doesn’t haunt you for life,’ something to that effect. Did that conversation ever happen?
      “[Defendant]: It never took place.”

       The defendant also claimed, on cross-examination, that he had never driven a car.

       As an example of the remarks in question, the prosecutor asked the defendant: “[Y]ou wouldn’t, make anything up. Would you?” It is not hard to imagine that being spoken in a tone laden with sarcasm, insinuating the opposite of what the question expresses. If asked by the prosecutor of a state’s witness, it could be imagined to mean exactly what it, expresses. The record speaks only in monotone.

       The defendant cites, as another example of that allegedly improper conduct, a question by the prosecutor during cross-examination regarding the veracity of a police officer’s report concerning the defendant’s alleged motor vehicle violation. We note that the reporting officer was not a witness in this case, nor was the report in evidence.

       The defendant additionally claims that the prosecutor invited several state's witnesses to comment on their own credibility. We interpret the remarks in question as inquiries into their potential motivation for lying and their awareness of the ramifications of not telling the truth. We have long held that “[a]n important function of cross-examination is the exposure of a witness’ motivation in testifying. Greene v. McElroy, 360 U.S. 474, 496, 79 S. Ct. 1400, 3 L. Ed. 2d 1377 (1959).” (Internal quotation marks omitted.) State v. Privitera, 1 Conn. App. 709, 712, 476 A.2d 605 (1984). We conclude that this is equally true of direct examination. Those questions, therefore, were not improper.

       The state, at oral argument, conceded that those remarks by the prosecutor were improper.

       See State v. Alexander, 50 Conn. App. 242, 718 A.2d 66 (1998), rev’d in part, 254 Conn. 290, 755 A.2d 868 (2000). In Alexander, the prosecutor argued that “[the victim] knew when she came to court she had to tell the truth. And that’s what she did. . . . And how does she remember she was eight? Because I didn’t know him when I was seven. That’s how little kids think. They can’t make this up. .. . And, if she was lying, she would have changed her story. . . . And, why didn’t she do it? Because she told the truth." (Emphasis in original; internal quotation marks omitted.) State v. Alexander, supra, 254 Conn. 301. Our Supreme Court found that “[t]hese statements are improper vouchers for the victim’s credibility.” Id., 305.

       The prosecutor argued as follows: “Sheila Calderon, a fifteen year old girl at that time, will never forget [the shooting], . . . Yeah, she didn’t remember where the children were. Sheila didn’t remember exactly who was in the apartment. She didn’t remember where she went

        “Well, I’m going to ask you to recall, yourself, back to the [John F.] Kennedy assassination, for those of us that are old enough to remember. You can probably remember very distinctly where you were, who told you. Can you remember what color shoes you had on that day? Can you remember who you rode home with that day? Can you remember what you had for lunch that day? Can you remember any of those facts, as that video played and played throughout the weekend of President Kennedy being assassinated? No. Why is that?
      “This event, like the Kennedy assassination, the Martin Luther King assassination, the Challenger [space shuttle] crash, left an indelible impression on their minds, as those things left on yours. Some things in life you never forget.: The tragic death of a loved one, a tragic scene you see on TV that you can’t believe as it unfolds, but that will stay with you [throughout] your life.”

       “It is apparent that the remarks of the state’s attorney were invited by the comments of defense counsel in challenging the reliability of [the witnesses’] identification of the defendant, which was based on the short period of time in which she saw him in the bank.” State v. Briley, supra, 55 Conn. App. 263.

       The two witnesses gave written statements in July, 1997, and also testified at the trial in August, 2001. In the written statements, both attested that they had watched the murder from a bedroom window. At trial, Calderon testified that she walked out to the parking lot with the defendant. Cruz testified that she watched from a bedroom window.

       Defense counsel argued: “Now, once again, because it’s the police, we’re supposed to just believe the police, and if it’s [the defendant], you just don’t believe him. And that’s — that’s the way . . . they want the game to be played, and that’s not the way the game is to be played. It’s for you, the jury, to decide who you want to believe here.”


source: Caselaw Access Project

author: DiPENTIMA, J.

license: Public Domain

text:
    IN RE VICTORIA B.

    (AC 23174)
    Lavery, C. J., and West and DiPentima, Js.
    Argued May 28
    officially released September 2, 2003

      David B. Rozwaski, for the appellant (respondent mother).

      Benjamin Zivyon, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman and Tracey Hammer, assistant attorneys general, for the appellee (petitioner).

      Carrie B. Taylor, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

DiPENTIMA, J.

The respondent mother appeals from the judgment of the trial court terminating her parental rights with respect to her minor child. On appeal, the respondent claims that the court improperly determined that (1) she had failed to achieve a sufficient degree of personal rehabilitation pursuant to General Statutes § 17a-112 (j) (3) (B) and (2) it was in the best interest of the child to terminate the respondent’s parental rights. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the respondent’s appeal. The child was bom on April 25, 1997. On January 28, 2000, the commissioner of children and families (commissioner) invoked a ninety-six hour hold on the child and on February 1, 2000, secured an order of temporary custody on the ground that the child was in immediate physical danger from her surroundings. A concomitant neglect petition was filed, alleging that the child was neglected in that (1) she was being denied proper care and attention physically, educationally, emotionally or morally, and (2) she was being permitted to live under conditions, circumstances or associations injurious to her well-being. On February 10, 2000, the order of temporary custody was confimied by the court, and preliminary specific steps were agreed to by the respondent and approved by the court. On September 5, 2000, the respondent entered an admission to an amended ground that the child was “uncared for.” The respondent was canvassed, and the admission was accepted by the court. The disposition resulted in the commitment of the child to the commissioner from September 5, 2000, to September 5, 2001. Also on September 5, 2000, final specific steps were signed by the respondent and approved by the court.

On May 2, 2001, the commissioner filed a petition to terminate the respondent’s parental rights, alleging two grounds for termination: (1) the child had been found in a prior proceeding to have been neglected and uncared for, and the respondent failed to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, that the respondent could assume a responsible position in the child’s life, and (2) there was no ongoing parent-child relationship between the respondent and the child. On August 1, 2001, a finding was made that reasonable efforts to reunify the respondent and the child were no longer appropriate.

The termination of parental rights hearing was held on October 9 and 30, November 20 and December 11, 2001, and concluded on January 29, 2002. The respondent opposed the termination of her parental rights and was represented by counsel throughout the proceedings, as was the child. During the adjudicatory phase of the proceedings, the court found that the commissioner had proven one of the two grounds alleged for termination. Specifically, the court found that the commissioner had proved by clear and convincing evidence that the respondent had “failed to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, [the respondent] could assume a responsible position in the life of [the child].” See General Statutes § 17a-112 Q) (3) (B). With respect to the second ground, however, the court determined that “while [the respondent] and [the child] have far from a perfect parent-child relationship, [the commissioner] failed to maintain [her] burden of proof on the ground of no parent-child relationship existing between [the child] and [the respondent].” See General Statutes § 17a-112 0) (3) (D).* *****

In the dispositional phase of the proceedings, the court considered and made written findings regarding the seven factors listed in § 17a-l 12 (k). The court recognized that the respondent had “made strides in addressing her problems,” but determined that clear and convincing evidence established that termination of her parental rights was in the best interest of the child. Consequently, on April 30,2002, the court granted the petition to terminate the respondent’s parental rights. This appeal followed. Additional facts will be set forth as necessary.

“Our standard of review on appeal from a termination of parental rights is whether the challenged findings are clearly erroneous. . . . The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous. . . .

“On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling. . . .

“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. ... In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights [under § 17a-112 (j)] exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child.” (Internal quotation marks omitted.) In re Brea B., 75 Conn. App. 466, 469-70, 816 A.2d 707 (2003).

I

The respondent’s first claim is that the court improperly found that the commissioner had proved by clear and convincing evidence that the respondent had failed to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time she could assume a responsible position in the life of her child. The respondent asserts that the evidence presented supports a finding that she had been making efforts to rehabilitate herself and that she could assume a role of responsibility for the care of her child within the foreseeable future. Both the commissioner and the child’s attorney maintain that the court’s conclusion that the respondent had failed to achieve a sufficient degree of rehabilitation within the meaning of § 17a-112 (j) is legally correct and factually supported by the record.

“On appeal, we review a trial court’s finding that a parent has failed to rehabilitate herself in accordance with the rules that apply generally to a trier’s finding of fact. We will overturn such a finding of fact only if it is clearly erroneous in light of the evidence in the whole record. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. . . . [0]n review by this court every reasonable presumption is made in favor of the trial court’s ruling.” (Internal quotation marks omitted.) In re Jennifer W., 75 Conn. App. 485, 498-99, 816 A.2d 697, cert. denied, 263 Conn. 917, 821 A.2d 770 (2003).

Here, the court determined that there was a statutory basis, § 17a-112 (j) (3) (B), for terminating the respondent’s parental rights because she had failed to achieve personal rehabilitation to such a degree as to be able to assume a responsible position in her child’s life. “Personal rehabilitation refers to the reasonable foreseeability of the restoration of a parent to his or her former constructive and useful role as a parent, not merely the ability to manage his or her own life.” (Internal quotation marks omitted.) Id., 494.

In considering whether the respondent had failed to achieve the requisite degree of personal rehabilitation within the meaning of § 17a-112 (j) (3) (B), the court undertook a bifurcated analysis in which it first sought to determine whether she had achieved such rehabilitation by the time of the filing of the petition in May, 2001, and second, if not, whether her rehabilitation was foreseeable within a reasonable period of time. The court determined that the respondent had failed to achieve the requisite degree of personal rehabilitation because she failed to engage in the services recommended by the commissioner and did not comply with the final specific steps requested to facilitate the return of the child to her care. Specifically, the court found that the respondent had failed to engage in various mental health programs recommended by the commissioner and had failed to comply with the final specific steps that she had agreed to take on September 5, 2000, in that she had not successfully completed counseling programs or maintained adequate housing, legal income or employment, and that she had been involved with the criminal justice system for motor vehicle offenses.

Consequently, the court proceeded to determine whether the respondent’s rehabilitation was foreseeable within a reasonable amount of time so that she could assume a responsible position in the life of her child. In analyzing that question, the court examined the testimony of mental health professionals and the other evidence presented by the parties. The court summarized its findings and conclusion as follows: “Given the number and seriousness of mental health conditions of [the respondent] and their effect on her ability to parent [the child], the difficulty in treating these conditions, [the respondent’s] lack of insight into these conditions and her failure to take advantage of programs offered to address these conditions prior to August, 2001, the fact that [the respondent’s] progress since August, 2001, may be only temporary, the fact that possibly the only reason for the treatment is the pending [petition to terminate parental rights], the possible time required for treatment and the unsure prognosis that the treatment will be effective, [the] court concludes that [the respondent] cannot achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, she could assume a responsible position in the life of the child.” The court, therefore, determined that the commissioner had proven by clear and convincing evidence that there was a statutory ground for terminating the respondent’s parental rights in accordance with § 17a-112 (j) (3) (B).

The respondent correctly asserts that rehabilitation does not require that a parent be able to assume the full responsibility for a child without the use of available support programs such as those recommended by the petitioner. See In re Jennifer W., supra, 75 Conn. App. 499; see also In re Luis C., 210 Conn. 157, 167, 554 A.2d 722 (1989); In re Migdalia M., 6 Conn. App. 194, 203, 504 A.2d 533, cert. denied, 199 Conn. 809, 508 A.2d 770 (1986). The respondent argues that the court ignored the significant strides that she had made in stabilizing her life and addressing her mental health problems, and the positive interactions she had had with the child during telephone calls and visits. The court, however, properly made an inquiry into the full history of the respondent’s parenting abilities. See In re Jennifer W., supra, 499; In re Galen F., 54 Conn. App. 590, 594, 737 A.2d 499 (1999).

“[T]he adjudicatory determination to be made by the trial court is whether the parent of a child who has been found by the [S]uperior [C]ourt to have been neglected [or] uncared for in a prior proceeding has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child. ... In conducting this inquiry, the trial court must analyze the respondent’s rehabilitative status as it relates to the needs of the particular child .... The trial court must also determine whether the prospects for rehabilitation can be realized within a reasonable time given the age and needs of the child.” (Internal quotation marks omitted.) In re Jennifer W., supra, 75 Conn. App. 499-500. “What constitutes a reasonable time is a factual determination that must be made on a case-by-case basis.” In re Stanley D., 61 Conn. App. 224, 231, 763 A.2d 83 (2000); In re Michael L., 56 Conn. App. 688, 694, 745 A.2d 847 (2000).

“Although the standard is not full rehabilitation, the parent must show more than ‘any’ rehabilitation. . . . Successful completion of the petitioner’s expressly articulated expectations is not sufficient to defeat the petitioner’s claim that the parent has not achieved sufficient rehabilitation.” (Citations omitted.) In re Jennifer W., supra, 75 Conn. App. 500. “[I]n assessing rehabilitation, the critical issue is not whether the parent has improved [her] ability to manage [her] own life, but rather whether [she] has gained the ability to care for the particular needs of the child at issue.” (Internal quotation marks omitted.) In re Amneris P., 66 Conn. App. 377, 384, 784 A.2d 457 (2001). Thus, even if aparent has made successful strides in her ability to manage her life and may have achieved a level of stability within her limitations, such improvements, although commendable, are not dispositive on the issue of whether, within a reasonable period of time, she could assume a responsible position in the life of her child. See, e.g., In re Eden F., 250 Conn. 674, 699-708, 741 A.2d 873 (1999); In re Jennifer W., supra, 498-500; In re Amneris P., supra, 383-85; In re Sheila J., 62 Conn. App. 470, 479-82, 771 A.2d 244 (2001); In re Mariah S., 61 Conn. App. 248, 260-67, 763 A.2d 71 (2000), cert. denied, 255 Conn. 934, 767 A.2d 104 (2001).

Our review of the record reveals that the evidence credited by the court supports its conclusion that the respondent had failed to attain a degree of rehabilitation sufficient to warrant the belief that within a reasonable period of time, she would be capable of assuming a responsible position with respect to the child. The court reasonably relied on the testimony of mental health experts regarding the depth and seriousness of the respondent’s mental health problems and the uncertainty they expressed as to how long it could take before she might be in a position to parent the child. See In re Tabitha P., 39 Conn. App. 353, 365 n.8, 664 A.2d 1168 (1995) (courts entitled to give great weight to testimony from professionals in termination of parental rights cases).

Although the respondent has made successful strides in her ability to manage her life and has achieved a level of stability within her limitations, the court had ample evidence to support its finding that her personal gains were not made in a timely way, nor were they sufficiently reliable so as to assist her child. The court had reasonable concerns that the degree of the rehabilitation the respondent had achieved was not enough for her to assume a responsible position in her child’s life. We conclude that the court’s finding, by clear and convincing evidence, that the respondent had failed to achieve such a degree of rehabilitation as would encourage the belief that within a reasonable period of time she could assume a responsible position in the child’s life was not clearly erroneous.

II

Next, the respondent claims that the court improperly determined that the seven statutory factors of § 17a-112 (k) all weighed in favor of the termination of her parental rights and that termination was in the best interest of the child. In response, both the commissioner and the child’s attorney maintain that the court’s finding that termination of parental rights was in the child’s best interest is legally correct and factually supported by the record.

The respondent first attacks the court’s findings and conclusions in the adjudicatory phase concerning reunification. See General Statutes § 17a-112 (j). She then challenges the court’s findings in the dispositional phase concerning reunification as part of its determination of the best interest of the child. See General Statutes § 17a-112 (k) (1) and (2).

There is a distinction between a finding on reasonable reunification efforts under § 17a-112 (j) and consideration of the same under § 17a-112 (k). Section 17a-112 (j) (1) requires the court to make a finding by clear and convincing evidence in the adjudicatory phase concerning the reasonable efforts made by the department of children and families (department) to reunify the child with the parent as a prerequisite to terminating parental rights. See In re Vincent B., 73 Conn. App. 637, 640, 809 A.2d 1119 (2002), cert. denied, 262 Conn. 934, 815 A.2d 136 (2003); In re Ebony H., 68 Conn. App. 342, 348, 789 A.2d 1158 (2002). “A court need not make that finding, however, if the evidence establishes that the parent is unable or unwilling to benefit from reunification efforts or if the court determines at a hearing pursuant to General Statutes § 17a-110 (b) or General Statutes § 17a-lllb that such efforts are inappropriate.” In re Gary B., 66 Conn. App. 286, 290, 784 A.2d 412 (2001), citing General Statutes § 17a-112 (j) (1).

By contrast, section 17a-112 (k) requires the court in the dispositional phase to make written findings regarding seven statutory factors, including “[t]he timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent” and whether the department “has made reasonable efforts to reunite the family . . . .” General Statutes § 17a-112 (k) (1) and (2). The factors, however, serve simply as guidelines to assist the court in its determination of the child’s best interest, and each factor need not be proven by clear and convincing evidence. See In re Quanitra M., 60 Conn. App. 96, 104-105, 758 A.2d 863, cert. denied, 255 Conn. 903, 762 A.2d 909 (2000).

In the present case, the court was mindful of the distinction between § 17a-112 (j) (1) and (k) (1) and (2), as its memorandum of decision contains separate discussions concerning reunification efforts under each subsection. In its discussion of reunification in the adjudicatory phase under § 17a-112 (j) (1), the court stated that “ [reasonable efforts to reunify [the child] with [the respondent] were deemed no longer appropriate on August 1, 2001.” The court was not required to make another finding as to the department’s reunification efforts because the court had determined at a prior hearing pursuant to § 17a-110 that such efforts were not appropriate. See In re Gary B., supra, 66 Conn. App. 290-91. Notwithstanding, we note that in the adjudicatory phase, the court proceeded to review the department’s efforts to reunify the child with the respondent. See footnote 7. The court found by clear and convincing evidence that the department had made reasonable efforts to reunify the child with the respondent. See General Statutes § 17a-112 (j) (1).

Thereafter, in the dispositional phase, the court separately considered the timeliness of and the nature and extent of services offered, provided and made available to facilitate the reunion of the child with the respondent, and whether the department had made reasonable reunification efforts. See General Statutes § 17a-112 (k) (1) and (2). The court determined that the department had offered appropriate services and sufficient time for reunification of the respondent with the child, that the respondent had not taken advantage of the services offered and that, despite her recent progress, given the nature and severity of her mental health problems and the uncertain prognosis for her achieving stable mental health, it was unreasonable to conclude that she would be able to parent the child effectively within a reasonable amount of time. We cannot conclude that the court’s adjudicatory or dispositional findings and conclusions regarding reasonable reunification efforts were either legally incorrect or not factually supported.

In the remainder of the respondent’s second claim, she does not challenge the court’s findings on the factors enumerated in § 17a-112 (k) as being factually unsupported by the record. Instead, she asserts that the court could have or should have made other findings, which, in her view, would demonstrate that in light of the totality of the circumstances of this case, it was not in the best interest of the child to terminate the respondent’s parental rights. Specifically, the respondent focuses on the evidence indicating her desire for reunification and need for additional time, and the parent-child bond existing between her and the child. She contends that the court placed an inappropriate emphasis on the relationship existing between the child and the foster parents with whom the child has resided, and on selective portions of the testimony elicited from the experts at trial.

In the dispositional phase of a termination of parental rights hearing, “the emphasis appropriately shifts from the conduct of the parent to the best interest of the child.” In re Romance M., 229 Conn. 345, 356-57, 641 A.2d 378 (1994). “In the dispositional phase . . . the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent’s parental rights is not in the best interest of the child. In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in § 17a-112 [k].” (Internal quotation marks omitted.) In re Clark K., 70 Conn. App. 665, 677, 799 A.2d 1099, cert. denied, 261 Conn. 925, 806 A.2d 1059 (2002). The seven factors serve simply as guidelines for the court and are not statutory prerequisites that need to be proven before termination can be ordered. In re Quanitra M., supra, 60 Conn. App. 104-105. There is no requirement that each factor be proven by clear and convincing evidence. Id., 104.

In the present case, the court determined that the seven statutory factors weighed in favor of the termination of the respondent’s parental rights, and the court’s analysis of the child’s best interest properly focused on the child’s positive and significant improvements since her placement with a foster family. Although the court acknowledged the existence of a parent-child bond between the respondent and child and the progress made by the respondent in treating her mental health problems and stabilizing her life, the court also relied on evidence showing that the child had thrived and fit in well with the foster family and viewed her foster parents as her psychological parents. The court noted that the child, then five years old, was described by witnesses as a bright child, and the court considered her express wish and desire to live with the foster parents and not with the respondent. The court relied on certain statements made by the respondent supporting the continuation of care or the adoption of the child by the foster parents.

Finally, the court relied on the opinion of Derek A. Franklin, an expert in adult and child psychology, who testified that the decision regarding the child’s permanency should be pursued with some immediacy, given that at the time of the court’s decision, the child had been in the custody of the commissioner for twenty-seven months. The court found that returning the child to the respondent would be detrimental to the child and that the child was emotionally equipped to adjust to any loss she might feel due to a termination of parental rights. The court further relied on and agreed with Franklin’s opinion that the child’s emotional stability, developmental needs and best interests would be served by remaining with the foster parents, who had expressed their intent to adopt her if she became available for adoption, and by terminating the respondent’s parental rights. The court’s findings and conclusion are legally correct and supported by the record.

The respondent argues that the court ignored or undervalued other evidence that indicates that termination of her parental rights was not in the child’s best interest. “Our function as an appellate court is to review and not retry the proceeding of the trial court. . . . The probative force of conflicting evidence is for the trier to determine.” (Citation omitted.) In re Ashley E., 62 Conn. App. 307, 316, 771 A.2d 160, cert. denied, 256 Conn. 910, 772 A.2d 601 (2001). “We defer to the trier of fact’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. The trier is the judge of the credibility of all the witnesses and the weight to be given their testimony, and may accept part, all or none of the testimony. . . . Where, as here, the record reveals that the trial court’s ultimate conclusions are supported by clear and convincing evidence, we will not reach an opposite conclusion on the basis of any one segment of the many factors considered in a termination proceeding.” (Citation omitted; internal quotation marks omitted.) Id.

In its thorough and thoughtful decision, the court found by clear and convincing evidence that the child’s best interest would be served by granting the petition to terminate the respondent’s parental rights. In support of that finding, the court noted that much of the child’s short life had been spent in the custody of the commissioner and that the child needed stability and permanency in her life. We conclude that the court’s findings and conclusions are not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       The identify of the biological father has not been ascertained. Paternity testing ruled out an individual named by the respondent mother as being the father. Notice of the proceedings to the child’s unknown biological father, John Doe, was effected by publication in a newspaper of general circulation; however, a default ultimately was entered against him. The trial court thereafter terminated the parental rights of John Doe as to the child. No appeal has been filed on behalf of John Doe. We therefore refer in this opinion to the respondent mother as the respondent.

       General Statutes § 17a-112 CD provides in relevant part: “The Superior Court, upon hearing and notice . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence ... (3) that . . . (B) the child (i) has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding, or (ii) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent . . . and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .”

       Upon removal from the respondent’s care on January 28, 2000, the child was placed in a foster home where she has remained throughout the proceedings underlying this appeal.

       The finding that further reunification efforts were not appropriate was made at a hearing on the commissioner’s motion to extend the child’s commitment and to review a permanency plan pursuant to General Statutes § 46b-129 (k). On August 1,2001, the commitment of the child to the commissioner was extended from September 5, 2001, to September 5, 2002.

       The child has been represented by counsel since her initial placement with the commissioner in January, 2000, and throughout the proceedings in the trial court and on appeal. On appeal, the child’s attorney adopted the commissioner’s brief and was heard at oral argument.

       The court also found that clear and convincing evidence established that the department of children and families had made reasonable efforts to reunify the child with the respondent. Specifically, the court reviewed the department’s efforts to reunify the child with the respondent, listing the agencies, programs and services identified by the department to engage the respondent and to address her mental health, domestic violence, anger management, substance abuse and parenting issues. The court found that the respondent had been provided with case management services, including visitation with the child and transportation to visitation and to service providers. The court found further that the respondent had failed to follow through with several referrals and their recommendations or had been discharged for noncompliance. The court then found, by clear and convincing evidence, that the department had made reasonable efforts to reunify the child with the respondent. See General Statutes § 17a-112 (j) (1).

       General Statutes § 17a-112 Q) (3) (D) provides that the court may grant a petition to terminate parental rights if it finds by clear and convincing evidence that “there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child . . . .”

       The court addressed what it considered to be “a troubling aspect of this case.” The court stated: “[The respondent] has made progress in treating her mental health needs and has stabilized her life in many ways — she has gotten her [general equivalency diploma] and is attending . . . college, she has entered into a stable relationship which has resulted in marriage and she has stable housing. She has made strides in addressing her problems. It troubles [the] court greatly that a decision to grant the [petition] may adversely affect the seeming progress that [the respondent] has made. However, the focus ... is not the effect that granting the [petition] may have on [the respondent], but what is in the best interest of [the child].”

       On June 7, 2002, the respondent filed a motion to open the judgment and to allow for the presentation of new evidence concerning, inter alia, her treatment, progress and ability to parent the child. On July 15, 2002, the court denied the motion. The respondent did not file an amended appeal.

       Specifically, the court considered the evidence in light of the foEowing factors: The nature of the respondent’s mental health problems; the effect of those problems on her abiEty to parent the child; any problems associated with treating individuals with the respondent’s mental conditions; the progress made by the respondent in addressing her mental health problems to and after August, 2001; the length of time that would be required before the respondent would be in a position to parent the cldld; the extent to which the termination petition motivated the respondent; and the respondent’s prognosis.
      The court found that the respondent suffered from borderline personaEty disorder, bipolar disorder and posttraumatic stress disorder; the depth and seriousness of her conditions had negatively impacted her parenting abilities; such conditions could be very resistant to treatment; prior to August, 2001, she had not addressed her mental health problems sufficiently; since August, 2001, although she had gained some insight into her problems and her lifestyle had improved, her progress was to be viewed critically, given the changeable moods she still demonstrated, and the high and low periods generally associated with her conditions; a significant amount of time and treatment would be required before she might be in a position to parent the child; and, although the respondent was receiving appropriate treatment during the pendency of the petition to terminate her parental rights, there was concern as to whether her motivation and progress would continue if the threat of the petition was removed.

       We reject the respondent’s additional argument that the court’s finding regarding rehabilitation was inconsistent with its finding regarding the existence of a parent-child relationship. In so arguing, the respondent refers to the portion of the court’s memorandum of decision in which the court determined that the commissioner had failed to maintain her burden of proof on the other statutory ground alleged under General Statutes § 17a-112 (j) (D) of no ongoing parent-child relationship existing between the respondent and child.
      “Because the statutory grounds necessary to grant a petition for termination of parental rights are expressed in the disjunctive, the court need find only one ground to grant the petition. Thus, we may affirm the court’s decision if we find that it properly concluded that any one of the statutory circumstances existed.” In re Brea B., supra, 75 Conn. App. 473, citing In re Alexander C., 67 Conn. App. 417, 427, 787 A.2d 608 (2001), aff'd, 262 Conn. 308, 813 A.2d 87 (2003). Because we have determined that the court properly concluded that the statutory ground of failure to achieve sufficient rehabilitation had been established in accordance with § 17a-112 Q) (3) (B), the respondent’s argument must fail.

       At, oral argument before this court, the child’s attorney discussed the best interest of the child. She explained that as the child’s attorney, her responsibilities have been twofold: First, to act as the child’s voice in court proceedings and second, to make sure that, her client’s best interest is considered. With respect to the first responsibility, the child’s attorney represented to us that the child’s clear desire is to remain with the foster family with whom she has resided since her initial placement with the department in January, 2000. With respect to her second responsibility, after careful consideration of several factors, the child’s attorney agrees with the court that it is in the child’s best interest to remain with the foster family and to be made available for adoption as soon as possible.

       General Statutes § 17a-112 Q) provides in relevant part: “The Superior Court, upon hearing and notice . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence (1) that the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts provided such finding is not required if the court has determined at a hearing pursuant to subsection (b) of section 17a-110 or section 17a-lllb that such efforts are not appropriate . . .

       General Statutes § 17a-112 (k) provides in relevant part: “[I]n determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended; (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (4) the feelings and emotional ties of the child with respect to the child’s parents, any guardian of such child’s person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (5) the age of the child; (6) the efforts the parent has made to adjust such parent’s circumstances, conduct, or conditions to make it in the best interest of the child to return such child home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions, and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.”

       Specifically, the court’s prior determination had been made at a hearing pursuant to General Statutes § 46b-129 (k) extending the child’s commitment and finding that reunification efforts were no longer appropriate. See footnote 5. Such a hearing pursuant to § 46b-129 (k) is one that may be held in accordance with General Statutes § 17a-110 (b), and the concomitant finding regarding the inappropriateness of further reunification efforts satisfies the express requirements of General Statutes § 17a-112 Q) (1).
      Moreover, a decision following a hearing pursuant to § 46b-129 (k), extending commitment and finding iha,t further reunification efforts are not appropriate is an immediately appealable final judgment, and the issue of reunification cannot be raised as a collateral attack on a judgment terminating parental rights. See In re Kachainy C., 67 Conn. App. 401, 412, 787 A.2d 592 (2001). Because the respondent failed to file an appeal from the court,’s prior order of August 1, 2001, that part of her claim is not reviewable. See id.

       See footnote 3.

       See footnote 8.

       Franklin performed two court-ordered evaluations of the respondent and interactive assessments of the respondent, the child and the foster parents.