author: Callahan, J.

text:
    State of Connecticut v. Monica Golding
    (13508)
    Peters, C. J., Healey, Callahan, Glass, Covello, Hull and Santaniello, Js.
    Argued May 4 and October 3
    decision released December 19, 1989

      Joseph G. Bruckmann, assistant public defender, with whom, on the brief, was Michael Lefebvre, law student intern, for the appellant (defendant).

      Steven M. Sellers, assistant state’s attorney, and Mary H. Lesser, deputy assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Alan Reisner, assistant state’s attorney, for the appellee (state).
   Callahan, J.

The defendant was charged in a four count information with larceny in the second degree in violation of General Statutes § 53a-123 (a) (4), conspiracy to commit larceny in the second degree in violation of General Statutes §§ 53a-123 and 53a-48, general assistance fraud in violation of General Statutes § 17-282, and conspiracy to commit general assist-anee fraud in violation of General Statutes §§ 17-282 and 53a-48. At the close of the state’s case the trial court dismissed both counts of conspiracy. The defendant was thereafter convicted by a jury of larceny in the second degree and of general assistance fraud. The trial court sentenced the defendant to concurrent suspended sentences on both counts, placed her on probation on both counts and ordered as conditions of probation that the defendant make restitution of the sum of $877.90 and perform two hundred hours of community service.

The defendant, thereafter, appealed on several grounds to the Appellate Court; that court upheld the trial court’s judgment. State v. Golding, 14 Conn. App. 272, 541 A.2d 509 (1988). The defendant then requested certification to this court. We granted certification limited to the questions of whether the Appellate Court had erred in refusing to reverse the defendant’s conviction of general assistance fraud because of the lack of an instruction by the trial court concerning the amount involved in the fraud and whether the Appellate Court had erred by refusing to review the defendant’s claim that under the federal and state constitutions the amount involved in the fraud was an essential element of the offense and was therefore required to be charged by the trial court. The claim of the lack of a jury instruction regarding the amount of the fraud was not raised at trial. The defendant therefore sought review in the Appellate Court and seeks review in this court under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).

We initially heard arguments in this case in May, 1989. Thereafter, sua sponte, we requested further briefing and argument as to whether we should revise the standards set out in State v. Evans, supra, for appellate review of constitutional claims not distinctly raised at trial. We now reverse the Appellate Court on the merits and in this opinion adhere to Evans.

I

Prior to July 1,1984, the maximum penalty for general assistance fraud was a fine of $1000, imprisonment for one year, or both. General Statutes (Rev. to 1983) § 17-282. The penalty in the statute bore no relation to the amount fraudulently obtained. Effective July 1, 1984, however, the statute was amended by No. 84-471 of the 1984 Public Acts, to subject a person convicted of general assistance fraud to the penalties for larceny under General Statutes §§ 53a-122 through 53a-125b. Those statutes grade the degree of the crime and the consequent severity of the penalties according to the amount obtained as a result of the defendant’s illegal conduct. Those grades range from larceny in the first degree, a class B felony carrying a maximum possible penalty of twenty years imprisonment and a $10,000 fine, to larceny in the sixth degree, a class C misdemeanor carrying a maximum possible penalty of three months imprisonment and a fine of $250.

The trial court in its charge, however, failed to inform the jury that it must find proven, beyond a reasonable doubt, the amount the defendant obtained by fraud. See In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). The trial court further did not request the jury to make a specific finding as to that amount. Under the circumstances revealed by the evidence, however, the jury could have determined that the defendant obtained varied amounts depending upon the conduct of the defendant the jury found proven to have been fraudulent. The first question to be addressed, therefore, is whether the amount obtained by the defendant is an essential element of the crime of general assistance fraud.

The overwhelming weight of authority is that the value of property stolen or obtained by fraud is an essential element of the crime when the value is used to differentiate between a felony and a misdemeanor or to determine the severity of the offense and the consequent punishment for a convicted offender. State v. Scielzo, 190 Conn. 191, 199-200, 460 A.2d 951 (1983); State v. Baker, 182 Conn. 52, 62, 437 A.2d 843 (1980); Negron v. State, 306 So. 2d 104, 108 (Fla. 1974); People v. Stark, 59 Ill. App. 3d 676, 681-82, 375 N.E.2d 826 (1978); State v. Dilworth, 358 So. 2d 1254, 1256 (La. 1978); State in Interest of Batiste, 359 So. 2d 1077, 1078 (La. App. 1978); People v. Johnson, 133 Mich. App. 150, 153, 348 N.W.2d 716 (1984); People v. Fuzi, 46 Mich. App. 204, 209, 208 N.W.2d 47 (1973); Sanders v. State, 664 S.W.2d 705, 709 (Tex. Crim. App. 1982); Standley v. State, 517 S.W.2d 538, 541 (Tex. Crim. App. 1975); 50 Am. Jur. 2d, Larceny § 159. We conclude therefore that under the present statutory scheme embodied in § 17-282 for determining the degree of the offense and the severity of the permissible punishment the amount obtained by general assistance fraud is an essential element of that crime. Because the amount the defendant obtained by fraud is an essential element of the crime under the applicable statutory scheme, the trial court was obligated to instruct the jury concerning it. State v. Williamson, 206 Conn. 685, 708, 539 A.2d 561 (1988); State v. Harman, 198 Conn. 124, 133-34, 502 A.2d 381 (1985); State v. Mason, 186 Conn. 574, 585, 442 A.2d 1335 (1982); State v. Sumner, 178 Conn. 163, 170, 422 A.2d 299 (1979). Failure to do so was constitutional error; State v. Williamson, supra; and requires reversal because the jury reached its decision without any instruction on, or consideration of, an essential element of the crime charged. Screws v. United States, 325 U.S. 91, 107, 65 S. Ct. 1031, 89 L. Ed. 1495 (1945); State v. Harman, supra, 134; State v. Kurvin, 186 Conn. 555, 561, 442 A.2d 1327 (1982); State v. Sunday, 187 Mont. 292, 299-300, 609 P.2d 1188 (1980).

II

Further, the Appellate Court erred by refusing to review the defendant’s claim since she proffered a constitutional claim and the record was clearly adequate to review that claim. State v. Hill, 201 Conn. 505, 512-13, 523 A.2d 1252 (1986); State v. Kurvin, supra, 558. We have for many years held that claims not raised in the trial court “can and will be considered” on appeal in two “exceptional circumstances.” State v. Evans, supra, 70. One of those circumstances “may arise where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial.” (Emphasis added.) Id.

The state urges us to revise the Evans standard of review for errors not preserved at trial because the words used by the standard though easily said lend themselves to inconsistent application. We have reviewed our own cases and those of the Appellate Court, and we agree with the state that they demonstrate disparate approaches to the Evans criteria. Upon reflection, we have decided neither to adopt a pure plain error standard for alleged constitutional violations, nor to attempt to reconcile past Evans decisions. Instead, we articulate guidelines designed to facilitate a less burdensome, more uniform application of the present Evans standard in future cases involving alleged constitutional violations that are raised for the first time on appeal.

Relying on the methodology of State v. Whistnant, 179 Conn. 576, 427 A.2d 414 (1980), we hold that 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. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.

The defendant bears the responsibility for providing a record that is adequate for review of his claim of constitutional error. If the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, we will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the defendant’s claim. State v. Anderson, 209 Conn. 622, 632-33, 553 A.2d 589 (1989); State v. Wilson, 199 Conn. 417, 438, 513 A.2d 620 (1986); State v. Tyler-Barcomb, 197 Conn. 666, 675-76, 500 A.2d 1324 (1985), cert. denied, 475 U.S. 1109, 106 S. Ct. 1518, 89 L. Ed. 2d 916 (1986); State v. Thompson, 197 Conn. 67, 76 n.7, 495 A.2d 1054 (1985); State v. Conroy, 194 Conn. 623, 627 n.5, 484 A.2d 448 (1984); State v. Baker, supra, 56-57; State v. Evans, supra, 70-71.

The defendant also bears the responsibility of demonstrating that his claim is indeed a violation of a fundamental constitutional right. Patently nonconstitutional claims that are unpreserved at trial do not warrant special consideration simply because they bear a constitutional label. State v. Vilalastra, 207 Conn. 35, 46, 540 A.2d 42 (1988); State v. Douglas, 203 Conn. 445, 455, 525 A.2d 101 (1987); State v. Mullings, 202 Conn. 1, 15, 519 A.2d 58 (1987); State v. McIntosh, 199 Conn. 155, 162, 506 A.2d 104 (1986); State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985); State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982). For example, once identified, unpreserved evidentiary claims masquerading as constitutional claims will be summarily dismissed. State v. Smith, 209 Conn. 423, 425-26, 551 A.2d 742 (1988); State v. Mullings, supra, 15; State v. Tyler-Barcomb, supra, 674; State v. George, 194 Conn. 361, 371-72, 481 A.2d 1068 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 963, 83 L. Ed. 2d 968 (1985).

Finally, if we are persuaded that the merits of the defendant’s claim should be addressed, we will review it and arrive at a conclusion as to whether the alleged constitutional violation clearly exists and whether it clearly deprived the defendant of a fair trial. State v. Torrence, 196 Conn. 430, 435, 493 A.2d 865 (1985); State v. Evans, supra, 71-73. In the present case, for example, it was clear constitutional error for the trial court to fail to instruct the jury concerning an essential element of the crime with which the defendant was charged, and the defendant was therefore clearly deprived of a fair trial.

In many cases of an alleged constitutional violation, however, the state is able to demonstrate the harmlessness of such alleged violation beyond a reasonable doubt. See United States v. Hasting, 461 U.S. 499, 507-509, 103 S. Ct. 1974, 76 L. Ed. 2d 96 (1983), on remand, 739 F.2d 1269 (7th Cir. 1984), cert. denied, 469 U.S. 1218, 105 S. Ct. 1199, 84 L. Ed. 2d 343 (1985); Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied, 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967); State v. Morrill, 197 Conn. 507, 539, 498 A.2d 76 (1985); State v. Castonguay, 194 Conn. 416, 434-35, 481 A.2d 56 (1984); Williams v. Salamone, 192 Conn. 116, 120, 470 A.2d 694 (1984); State v. Washington, 182 Conn. 419, 429, 438 A.2d 1144 (1980); Aillon v. State, 168 Conn. 541, 547-48, 363 A.2d 49 (1975). Under such circumstances, it would be a waste of judicial resources, and a pedantic exercise, to delve deeply into the constitutional merits of a claim that can appropriately be resolved in accordance with the relevant harmless error analysis. For example, in a case where, on the whole record, there is overwhelming evidence of guilt and a constitutional claim is raised under Evans concerning the admission of inconsequential tangible evidence that was allegedly illegally seized, there is no reason that we cannot assume the constitutional violation and first address the fair trial issue and, if the alleged violation is harmless beyond a reasonable doubt, not engage in an in-depth discussion of the substantive constitutional claim.

Such an approach would be in keeping with the spirit of what the United States Supreme Court said in United States v. Hasting, supra, 509: “Since [Chapman v. California, supra,] the Court has consistently made clear that it is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations, see, e.g., [Brown v. United States, 411 U.S. 223, 230-32, 93 S. Ct. 1565, 36 L. Ed. 2d 208 (1973)]; Harrington v. California, 395 U.S. 250, [89 S. Ct. 1726, 23 L. Ed. 2d 284] (1969); Milton v. Wainwright, 407 U.S. 371, [92 S. Ct. 2174, 33 L. Ed. 2d 1] (1972). The goal . . . is‘to conserve judicial resources by enabling appellate courts to cleanse the judicial process of prejudicial error without becoming mired in harmless error.’ ”

The decision of the Appellate Court is reversed and a new trial is ordered for the count of the information charging the defendant wdth general assistance fraud in violation of § 17-282 only. The defendant’s conviction of larceny in the second degree in violation of § 53a-123 (a) (4) and the sentence and conditions imposed thereon remain in effect.

In this opinion Peters, C. J., Healey, Glass, Hull and Santaniello, Js., concurred.

Covello, J., concurred in the result.

       General Statutes § 53a-123 (a) (4) provides: “larceny in the second degree: class c felony, (a) A person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119 and . . . (4) the property is obtained by defrauding a public community, and the value of such property is two thousand dollars or less.”

       “[General Statutes] Sec. 17-282. general assistance fraud, penalty. FORFEITURE OF PRIVILEGES OF PARTICIPATION IN PROGRAM. TERMINATION upon conviction, readmission, (a) No vendor of goods or services sold to or performed for any beneficiary of assistance under this part shall, with intent to defraud, present for payment any false claim for goods or services performed, or accept payment for goods or services performed, which exceeds the amounts due for goods or services performed.
      “(b) Any person or vendor who defrauds or assists in defrauding any town as to the support of its paupers, or deceives the selectmen thereof in obtaining support for any person not entitled to the same, or is found in violation of subsection (a) of this section, shall be subject to the penalties for larceny under sections 53a-122 to 53a-125b, inclusive, depending on the amount involved. In addition, any such person or vendor shall be subject to forfeiture of privileges of participation in the program provided under this part after a hearing held by the town according to procedures established by such town. Any person or vendor who is convicted of violating this section shall be terminated from participation in such program, effective upon conviction. No vendor so terminated shall be readmitted to such program for at least three years from the date of termination.”
      See footnote 6, infra.

       The questions certified read as follows: “Where, in a prosecution for general assistance fraud (Section 17-282) the jury was never instructed concerning a finding of ‘the amount involved,’ did the Appellate Court err in refusing to reverse the defendant’s conviction on the ground of the lack of such an instruction and did it err in refusing to review the defendant’s claim that under the United States and Connecticut constitutions ‘the amount involved,’ is necessarily an essential element of the offense since it determines whether the offense is a misdemeanor or a crime as serious as a class B felony?”

       The defendant claimed that the lack of a jury instruction concerning the amount obtained by fraud deprived her of her right to a jury trial on all the essential elements of the crime charged under the sixth and fourteenth amendments to the United States constitution and article first, § 8 of the Connecticut constitution. The right to a trial by jury is a “fundamental” right protected from state action by the due process clause of the fourteenth amendment. Duncan v. Louisiana, 391 U.S. 145, 148-49, 88 S. Ct. 1444, 20 L. Ed. 2d 491, reh. denied, 392 U.S. 947, 88 S. Ct. 2270, 20 L. Ed. 2d 1412 (1968).

       Certification was not granted on any questions concerning the defendant’s conviction of larceny in the second degree in violation of General Statutes § 53a-123 (a) (4).

       Although No. 84-471 of the 1984 Public Acts was not effective until July 1,1984, and some of the defendant’s fraudulent conduct occurred prior to that date, apparently the trial court and certainly the parties and the Appellate Court treated the defendant’s sentence as having been imposed under the amended statute. See State v. Allen, 12 Conn. App. 403, 406, 530 A.2d 670, cert. denied, 205 Conn. 809, 532 A.2d 76 (1987).

       The Appellate Court applied its Thurman test for Evans review and under the second prerequisite of that test found that the amount obtained by fraud was not an essential element of the crime. It, therefore, concluded that the trial court’s failure to charge the jury concerning it was not constitutional error reviewable under Evans. See State v. Thurman, 10 Conn. App. 302, 306-307, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987).

       The other exceptional circumstance is “where a new constitutional right not readily foreseeable has arisen between the time of trial and appeal.” State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). That circumstance is not at issue in this case.

       A review of our cases reveals that the words “adequately supports” in State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), may be translated to read “is adequate to review.” See, e.g., State v. Mercer, 208 Conn. 52, 57, 544 A.2d 611 (1988); State v. Torrence, 196 Conn. 430, 435, 493 A.2d 865 (1985).

       An adequate factual record is especially crucial when dealing with a claim that was not preserved at trial, since consideration is being sought for review of a claim for which we lack a trial court ruling.


source: Caselaw Access Project

author: Hull, J. Covello, J.,

license: Public Domain

text:
    State of Connecticut v. Henry G. Robinson
    (13440)
    Peters, C. J., Healey, Callahan, Covello and Hull, Js.
    Argued October 10
    decision released December 19, 1989

      Wesley W. Horton, with whom was Alexandra Davis, for the appellant (defendant).

      Timothy J. Sugrue, deputy assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Herbert G. Appleton, former assistant state’s attorney, for the appellee (state).
   Hull, J.

A jury found the defendant, Henry G. “Boo” Robinson, guilty of murder in violation of General Statutes § 53a-54a and of conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a. The trial court thereupon sentenced him to a term of imprisonment of twenty-five years to life on the murder conviction and ten to twenty years on the conspiracy conviction, to run concurrently. On appeal from this judgment, the defendant claims that: (1) prearrest delay deprived him of his right to due process of law under the state and federal constitutions; (2) the conspiracy charge was barred by the statute of limitations; (3) the conspiracy charge was foreclosed as a matter of law by the prior acquittal of the sole alleged coconspirator; (4) there was insufficient evidence to sustain the verdicts on either murder or conspiracy to commit murder; (5) the trial court erred in admitting certain irrelevant or hearsay testimony of a witness; and (6) if error is found with respect to his prosecution for conspiracy to commit murder, he is entitled to a new trial on the murder charge. We conclude that the prior acquittal of the sole alleged cocon-spirator foreclosed as a matter of law the conspiracy to commit murder charge. We therefore set aside the judgment of conviction on the charge of conspiracy to commit murder and remand the case to the trial court with direction to dismiss that charge. Given our disposition of the conspiracy charge, we will not address the defendant’s second claim on appeal, and we find no error with respect to the defendant’s remaining claims.

The jury could reasonably have found the following facts. On May 15, 1981, Hartford police found a body in the trunk of a vehicle parked in a cemetery near the Cleveland Avenue Extension in Hartford. The head of the' deceased had been wrapped in a black plastic bag and his hands had been tied. Police later identified the body as that of Henry J. “Rico” Littman and an autopsy showed that he had died from a shotgun wound to the head.

The defendant was implicated in the Littman murder by the testimony of four individuals. Glenda High-tower, the defendant’s former girlfriend, testified at trial that in March, 1981, the defendant, Littman and Perry Lee Herring had robbed a bank in Hartford, and that during the course of the robbery Littman’s face was not covered. Fearing that Littman would consequently be identified, Herring, in the presence of High-tower, told the defendant that Littman “had to go,” and the defendant concurred. During a subsequent conversation between the defendant and Herring, High-tower heard the defendant discuss with Herring his belief that Littman was cooperating with law enforcement authorities.

T. J. Thomas testified that, on the morning of May 15,1981, he had seen the defendant and another man pass him in the same car in which Littman’s body was subsequently found. While Thomas was watching the car, it turned onto the dirt roadway leading into the cemetery, and came to a stop. The two men then jumped out of the car and ran away.

The testimony of Sheila Adams, another of the defendant’s girlfriends, revealed that she had spoken with the defendant approximately two weeks after the discovery of Littman’s body. In response to her inquiry about the death, the defendant had responded: “I had to kill [him].”

The defendant was further implicated in the Littman murder by Graylon Shannon, a convicted felon, who had shared a jail cell with the defendant and Herring on several occasions while the two were in custody for charges pertaining to Littman’s death. Shannon had discussed with the two men the charges pending against them, ostensibly to offer advice and assistance. During the course of these discussions, the defendant and Herring confided in Shannon that they had wanted to get rid of Littman to prevent him from talking to the police. They told Shannon that Littman had been shot with a shotgun and that his body had been heavy and difficult to move. The defendant and Herring also described the route they had taken to the graveyard where they had dumped the car containing the body.

I

Five and one-half years elapsed between the time of the victim’s death and the arrest of the defendant. The defendant claims that his due process rights under the United States and the Connecticut constitutions were violated by this lapse of time. Initially we note that the defendant failed to raise this claim at trial by way of a motion to dismiss. We have recently held that “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.) State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We conclude that the defendant’s fundamental constitutional rights to due process were not violated.

“ ‘ “The role of due process protections with respect to pre-accusation delay has been characterized as a ‘limited’ one. United States v. Lovasco, 431 U.S. 783, 789, 97 S. Ct. 2044, 52 L. Ed. 2d 752 (1977).” State v. Morrill, [197 Conn. 507, 521, 498 A.2d 76 (1985)].’ State v. Littlejohn, 199 Conn. 631, 645-46, 508 A.2d 1376 (1986). This court need only determine ‘ “whether the action complained of . . . violates those ‘fundamental conceptions of justice which lie at the base of our civil and political institutions,’ Mooney v. Holohan, 294 U.S. 103, 112 [55 S. Ct. 340, 79 L. Ed. 791] (1935), and which define ‘the community’s sense of fair play and decency’. ...” United States v. Lovasco, supra, 790.’ State v. Morrill, supra, 521. ‘The due process clause has not replaced “the applicable statute of limitations . . . [as] . . . the primary guarantee against bringing overly stale criminal charges.” United States v. Marion, [404 U.S. 307, 322, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971)]. ’ State v. Morrill, supra, 521-22.” State v. John, 210 Conn. 652, 685, 557 A.2d 93, cert. denied, U.S. , 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989).

“In order to establish a due process violation because of pre-accusation delay, the defendant must show both that actual substantial prejudice resulted from the delay and that the reasons for the delay were wholly unjustifiable, as where the state seeks to gain a tactical advantage over the defendant.” State v. Morrill, supra, 522, and cases cited therein. The record does not substantiate either of these requirements.

The prejudice identified by the defendant stems from the deprivation of his right to have his case presented to a grand jury. Conceding that this court in State v. Mitchell, 200 Conn. 323, 329-30, 512 A.2d 140 (1986), noted that a probable cause hearing provides a person charged with a crime punishable either by death or by life imprisonment with expansive rights and greater protections than he was afforded under the former grand jury system, the defendant nevertheless claims prejudice in two respects. First, he claims that our determination of the relative protection afforded a criminal defendant by a judicial determination of probable cause as compared to a grand jury determination of probable cause is not dispositive in that “[t]he value of a right is in the eye of the beholder.” Accordingly, argues the defendant, since he was entitled to a particular right that was taken away from him by the state’s delay, he suffered prejudice. The defendant also claims prejudice in that the grand jury might well have returned no true bill on the evidence. The short answer to the defendant’s claims of prejudice is that a due process violation requires proof of “actual substantial prejudice.” Mere perceived prejudice or speculation about potential prejudice is not sufficient to establish a due process violation. See State v. John, supra, 685-87 (delay of nearly five years held insufficient to dismiss charges); State v. Littlejohn, supra, 647 (no due process violation in delay of more than five years).

Additionally, we cannot find in this record that the defendant has shown, as he must, that the reasons for the delay were “wholly unjustifiable.” The defendant relies on the testimony of T. J. Thomas to establish this necessary element of a due process violation. Thomas testified that, soon after the discovery of Liftman’s body, he had informed several police officers that he had earlier seen two men running from the car in which the body was found. According to Thomas, the police did not follow up on this information. The defendant argues that the failure of the police to investigate Thomas’ statement caused the prearrest delay and was “wholly unjustifiable.” The state maintains, however, that the defendant’s ultimate conclusion is not supported by the record. We agree. Even were we to determine that the delay would not have occurred had the police followed up on Thomas’ statement, the record is devoid of evidence concerning the reasons for the police reaction (or inaction) to Thomas’ information. Therefore, on the basis of the record before us, while the defendant may have pointed to a reason for the delay, he has not shown that the reason identified was “wholly unjustifiable.”

II

The defendant next claims that the conspiracy charge was foreclosed as a matter of law after the acquittal of the sole alleged coconspirator. The defendant accurately notes that the state alleged and submitted evidence concerning only one alleged coconspirator, Perry Lee Herring, who had been acquitted of the conspiracy charge in a prior trial. See State v. Herring, 210 Conn. 78, 554 A.2d 686 (1989). The defendant claims that, since he could not have conspired with himself, Herring’s acquittal barred the defendant’s prosecution for conspiracy to commit murder. The state argues, on the other hand, that Herring’s acquittal had no effect on the defendant’s prosecution for or conviction of conspiracy to commit murder. The state argues in the alternative that: (1) Connecticut’s conspiracy statute is “unilateral” and, therefore, Herring’s acquittal had no effect on the defendant’s culpability with respect to the conspiracy charge; and (2) even if the conspiracy statute is “bilateral,” Herring’s acquittal, in a separate trial, is simply an inconsistent verdict that should have no effect on the defendant’s conviction.

During the pendency of the present appeal, we held in State v. Grullon, 212 Conn. 195, 199, 562 A.2d 481 (1989), that our conspiracy statute is bilateral in nature: “Our examination of the definition of the crime of conspiracy in § 53a-48 convinces us that the legislature has determined that conspiracy requires a showing that two or more coconspirators intended to engage in or cause conduct that constitutes a crime.” Given our holding in Grullon, therefore, we need only address the following question: When only two persons are alleged to have conspired to commit a crime and they are tried separately, does the acquittal on the charge of conspiracy of the first person tried bar the state from prosecuting the remaining conspirator for that same conspiracy? We answer this question in the affirmative.

It has traditionally been held that a single conspirator may not be convicted in the same proceeding or prosecution in which all of the alleged coconspirators are acquitted. See generally annot., 19 A.L.R.4th 192, and cases cited therein. “The apparent basis for the traditional rule is the notion that the acquittal of all but one potential conspirator negates the possibility of an agreement between the sole remaining defendant and one of those acquitted of the conspiracy and thereby denies, by definition, the existence of any conspiracy at all. See, e.g., United States v. Goodwin, 492 F.2d 1141, 1144 (5th Cir. 1974); Farnsworth v. Zerbst, 98 F.2d 541, 544 (5th Cir. 1938), cert. denied, 307 U.S. 642, 59 S. Ct. 1046, 83 L. Ed. 1523 (1939) (‘such judgments prove that there was in fact no criminal agreement’); United States v. Austin-Bagley Corp., 31 F.2d 229, 233 (2d Cir.), cert. denied, 279 U.S. 863, 49 S. Ct. 479, 73 L. Ed. 1002 (1920) (per L. Hand, J.; ‘verdict must not itself deny the existence of the essential facts’ of conspiracy); Feder v. United States, 257 F. 694, 697 (2d Cir. 1919) (‘reason for the rule is . . . the indivisibility of the crime’).” United States v. Espinosa-Cerpa, 630 F.2d 328, 331 (5th Cir. 1980). The defendant argues, therefore, that it is a natural extrapolation from this principle that a lone alleged conspirator should also not be susceptible to conviction in a separate prosecution following the acquittal of all of his alleged coconspirators.

Authorities are split over whether the defendant’s position is in fact an appropriate expansion of the traditional rule. See generally annot., 19 A.L.R.4th 192, and cases cited therein. Those courts that have refused to extend the rule to a situation where the acquittals of the defendant’s alleged coconspirators occurred in a prior trial before a different jury have argued that an acquittal is not tantamount to a determination of innocence and that the proof may differ from one trial to another. Central to the reasoning of these courts is their contention that consistent verdicts, even as to conspiracy convictions, are not required at separate trials. See United States v. Irvin, 787 F.2d 1506, 1512-14 (11th Cir. 1986); United States v. Espinosa-Cerpa, supra, 332; United States v. Musgrave 483 F.2d 327, 333 (5th Cir.), cert. denied, 414 U.S. 1023, 94 S. Ct. 447, 38 L. Ed. 2d 315 (1973); People v. Superior Court, 44 Cal. App. 3d 494, 500, 118 Cal. Rptr. 702 (1975).

It is our view, supported by our holding in Grullon, that the crime of conspiracy is unique in our criminal justice system in that it is directed at group culpability rather than at individual culpability. It is this qualitative difference from other crimes that prevents us from embracing the view urged by the state, and adopted by the above-cited cases, that different judi: cial dispositions as to various members of a group alleged to have participated in a single conspiracy are merely inconsistent verdicts. “ ‘The gravamen of the crime of conspiracy is the unlawful combination and an act done in pursuance thereof, not the accomplishment of the objective of the conspiracy.’ State v. Stevens, 178 Conn. 649, 655, 425 A.2d 104 (1979). ‘Conspiracy is an inchoate offense the essence of which is an agreement to commit an unlawful act. Iannelli v. United States, 420 U.S. 770, 95 S. Ct. 1284, 43 L. Ed. 2d 616 (1975); United States v. Alvarez, 610 F.2d 1250 (5th Cir. 1980); United States v. Cuesta, 597 F.2d 903 (5th Cir. 1979). The 'prohibition of conspiracy is directed not at the unlawful object, but at the process of agreeing to pursue that object.’ United States v. Simms, 508 F. Sup. 1188, 1196 (W.D. La. 1980).” (Emphasis added.) State v. Beccia, 199 Conn. 1, 3, 505 A.2d 683 (1986). Because the essence of conspiracy is the mental confederation of two or more persons, the crime is in every sense indivisible.

The defendant in the present case could legally have been convicted of conspiracy only if the jury found that another person — specifically Herring — had participated in an illegal agreement. Herring’s culpability was thus an essential element of the defendant’s offense. Tried on the merits of the criminal conspiracy charge, Herring was acquitted of having conspired with the defendant to commit murder. It is our view that the verdict as to Herring vitiated the very essence of the conspiracy: the combination or agreement of two or more persons. Accordingly, we hold that, as a matter of law, the conspiracy charge against the defendant was barred after the acquittal of the sole alleged coconspirator.

III

The defendant next challenges the sufficiency of the evidence presented at trial. At the close of the state’s evidence and again prior to sentencing, the defendant moved for judgments of acquittal. Both motions were denied by the trial court. On appeal, the defendant renews his claim that there was insufficient evidence to sustain the verdicts on either murder or conspiracy to commit murder. Given our finding of error with respect to the conspiracy conviction, we will address the defendant’s sufficiency claim only with respect to the murder conviction. We are not persuaded that the evidence was insufficient to support the defendant’s conviction of murder.

“In accordance with well established principles, appellate analysis of a claim of insufficiency of the evidence requires us to undertake a twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt .... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.’ State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985), and cases there cited.” State v. Rollinson, 203 Conn. 641, 665-66, 526 A.2d 1283 (1987).

The elements of murder with which the defendant was charged under General Statutes § 53a-54a are: (1) intent; (2) causation; and (3) death by killing as opposed to death by accident or suicide. State v. Avcollie, 178 Conn. 450, 460, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015,100 S. Ct. 667, 62 L. Ed. 2d 645 (1980), aff’d, 188 Conn. 626, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S. Ct. 2088, 77 L. Ed. 2d 299 (1983). The disputed elements in the instant case were “intent” and “causation,” to which the state presented the following evidence. Littman participated in a bank robbery with the defendant and Herring in March, 1981. Soon thereafter, the defendant concurred with Herring that Littman “had to go” because he had been unmasked during the course of that robbery. Approximately two weeks after the robbery, the defendant voiced concern that Littman was cooperating with law enforcement authorities. On May 15,1981, the defendant was seen riding in, and running from, the car in which Littman’s body was later found. Two weeks after Littman’s death, the defendant clearly confessed to having killed him. Six years after Littman’s death, the defendant and Herring explained to Shannon the reasons they had wanted to get rid of Littman and the way they had gone about doing it.

The defendant argues that while the testimony outlined above constitutes “some” evidence that the defendant murdered Littman, this court cannot adequately review his sufficiency claim without looking to the credibility of the testimony presented at trial. In particular, the defendant argues that the testimony of Adams and Shannon was necessary to establish the defendant’s guilt of murder beyond a reasonable doubt, but that their testimony was so incredible that the ver-diet must necessarily fall. Adams testified that, after drinking much of a fifth of vodka chased with apple wine, the defendant admitted to having killed Littman. On cross-examination, Adams explained that, on a prior occasion when the defendant had consumed such quantities of alcohol, he had hallucinated that she had killed his brother. The defendant argues that his history of hallucinations casts doubt on the credibility of the confession narrated by Adams. The defendant further argues that it “is difficult to think that anyone would [have] believe[d] anything Shannon said except for the wealth of detail he reported.” The defendant argues that this detail was explained during cross-examination when Shannon admitted to having reviewed the police report and the statements in the arrest warrant application prior to testifying. Shannon’s admission, according to the defendant, rendered his testimony on direct examination less credible. In effect, the defendant is asking us to review the credibility of the testimony given by these witnesses in determining whether sufficient evidence was presented. This we will not do.

“ ‘ “The trier of the facts determines with finality the credibility of the witnesses and the weight to be accorded their testimony. 'We cannot retry the facts or pass upon the credibility of the witnesses.’ Johnson v. Flammia, 169 Conn. 491, 497, 363 A.2d 1048 (1975).” ’ State v. Haddad, 189 Conn. 383, 389, 456 A.2d 316 (1983), quoting State v. Penland, 174 Conn. 153, 157-58, 384 A.2d 356, cert. denied, 436 U.S. 906, 98 S. Ct. 2237, 56 L. Ed. 2d 404 (1978).” State v. Crump, 201 Conn. 489, 491, 518 A.2d 378 (1986). The jury heard the testimony of all the witnesses at trial, including the testimony elicited by the defendant on cross-examination, and rendered its verdict accordingly. It is not our function to determine if the jury properly evaluated the credibility of the confession narrated by Adams and the conversations narrated by Shannon. Rather, it is our function to “review the evidence and construe it as favorably as possible with a view toward sustaining the conviction, and then [to] determine whether, in light of the evidence, the trier of fact could reasonably have reached the conclusion it did reach. State v. Rossier, 175 Conn. 204, 207, 397 A.2d 110 (1978).” State v. McClary, 207 Conn. 233, 249, 541 A.2d 96 (1988). We cannot say that, from the evidence presented, the jury could not reasonably have concluded that the defendant was guilty of murder beyond a reasonable doubt.

IV

The defendant next claims that the trial court erred in admitting into evidence certain testimony given by Glenda Hightower. He claims that, depending upon the purpose for which it was offered, the testimony was either irrelevant or inadmissible hearsay. We agree, but conclude that the trial court’s error in admitting the evidence was harmless.

During direct examination, Hightower was asked by the state where she had been and what she had been doing on May 14,1981, the night before Liftman’s body was discovered. She began her response with, “Well, I had gotten a call and,” but she was interrupted by the state, who cautioned her not to repeat anything that had been said to her in that telephone call. Hightower continued by explaining that she had gone to Adams’ house on that night. When asked her reasons for going to Adams’ house, Hightower explained that she had wanted to see the defendant to talk to him about money and to ask him where Liftman was. Hightower said that she was concerned about Liftman. The defendant objected when Hightower was asked why she had been concerned.

Out of the presence of the jury, Hightower testified that she had been concerned about Littman “because of the phone call and because I just felt that he was not safe” from the defendant and Herring. Responding to questions asked by defense counsel, Hightower said that her concern had been based on the phone call from a person named Concetta, and on her “own belief and something else too.” The defendant argued that the admission was barred either on relevancy grounds or as inadmissible hearsay. The trial court ruled that it would allow the testimony to be admitted to show Hightower’s state of mind. Consequently, in the presence of the jury, Hightower testified that she had gone to Adams’ house to see the defendant due to her belief that Littman was going to be hurt and her concern for his safety.

Initially, we note that it is clear that the introduction of this testimony was intended to present to the jury the fact that, as a result of a telephone call, High-tower was concerned for Liftman’s safety and consequently went to Adams’ house looking for the defendant. Although the actual words stated by the caller during the phone conversation were not repeated, the state presented to the jury by inference that the telephone caller had warned Hightower about Liftman’s peril. An out-of-court statement was thus presented to the jury. The question that must be answered, therefore, is: For what purpose was the state offering this out-of-court statement?

“It is an elementary premise of evidentiary law that a statement made out-of-court that is offered to establish the truth of the facts contained in the statement is hearsay. State v. Silveira, 198 Conn. 454, 473, 503 A.2d 599 (1986); State v. Sharpe, 195 Conn. 651, 661, 491 A.2d 345 (1985); C. Tait & J. LaPlante, Handbook of Connecticut Evidence (2d Ed. 1988) § 11.1.1. A statement that is offered to show its effect upon the hearer, however, is not hearsay. State v. Hull, 210 Conn. 481, 499, 556 A.2d 154 (1989); State v. Silveira, supra; State v. Zdanis, 173 Conn. 189, 192 n.1, 377 A.2d 275 (1977).” State v. John, supra, 680. The substance of the phone call that was implicitly relayed to the jury would not have been hearsay if offered to show the effect it had had on Hightower. It still, however, would not have been admissible for that purpose. Evidence is only admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case. State v. McClendon, 199 Conn. 5, 8, 505 A.2d 685 (1986). Hightower’s conduct was not in issue and the fact that she went to Adams’ house looking for the defendant did not tend to establish that the defendant was guilty of murder. The substance of the telephone call did tend to corroborate Hightower’s earlier testimony that she had heard the defendant and Herring planning to kill Littman. The call was, however, corroborative only if the content of the call was being offered for the truth of the matter asserted, i.e., that Littman’s life was in danger. For this purpose, it was inadmissible hearsay.

Although we find that the trial court erred in admitting this evidence, the question remains whether the error was harmful. The error in this case does not involve, and the defendant does not claim, a constitutional violation. “ ‘When a trial error in a criminal case does not involve a constitutional violation the burden is on the defendant to demonstrate the harmfulness of the court’s error. State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 (1980). The defendant must show that it is more probable than not that the erroneous action of the court affected the result. Id.; State v. McClain, 171 Conn. 293, 300, 370 A.2d 928 (1976).’ State v. Jones, 205 Conn. 723, 732, 535 A.2d 808 (1988).” State v. Vilalastra, 207 Conn. 35, 47, 540 A.2d 42 (1988).

We conclude that the defendant has not shown that it was more probable than not that the erroneously admitted testimony of Hightower affected the result of the trial. Regardless of the purpose for which the testimony was offered and ultimately admitted, it was merely cumulative of other evidence presented. If the testimony was offered to show the effect the phone call had had on Hightower, it was cumulative of information that had already been provided the jury by the defendant. During cross-examination of T. J. Thomas, the defendant inquired if Thomas had ever talked to Glenda Hightower about the case. The following colloquy transpired:

“A. No, I didn’t. No, I didn’t.
“Q. Never once?
“A. No, not talk about the case to her. But I spoke—
“Q. Go ahead.
. “A. — I spoke to her the morning that I seen her— the same morning they dropped the car off, I seen Glenda on Garden Street, on the corner of Garden and Edgewood. They were looking for this — what the boy name? The one that got killed. They were looking for him to tell him that Boo and them were looking for him to kill him. (Emphasis added.) If the testimony was offered to corroborate Hightower’s earlier testimony, the testimony was necessarily cumulative of her narration of the conversation between Herring and the defendant in which they had discussed their plans for Liftman’s future. Accordingly, we conclude that the defendant has not shown that it is more probable than not that the erroneously admitted testimony affected the result.

V

The defendant’s final claim is that our finding of error with respect to his prosecution for conspiracy to commit murder entitles him to a new trial on the murder charge. The defendant argues that had there been no conspiracy charge, “the jury would have had significantly less evidence before it and the Defendant might well have been acquitted.” The defendant derives this conclusion from a remark made by the trial court, prior to the first witness being sworn, while explaining that he was reserving his decision concerning dismissal of the conspiracy count until the completion of the trial: “[I]f I charge out the [conspiracy] count, I’d have to charge out everything that’s material to the [conspiracy] count.” The state claims that ultimately the charging out of evidence as contemplated by the trial court was unnecessary in that all of the evidence admitted to prove a conspiracy was independently admissible to prove the murder. We agree.

The testimony of T. J. Thomas was admissible as testimony of an eyewitness to events directly in issue at the defendant’s trial. The statements attributed to the defendant by Hightower, Adams and Shannon were admissible as admissions of a party-opponent relevant to show motive and intent on the murder charge. State v. Stepney, 191 Conn. 233, 251, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984); State v. DeMatteo, 186 Conn. 696, 702, 443 A.2d 915 (1982): Statements attributed to Herring, and made in the presence of the defendant and High-tower or Shannon were admissible, regardless of the conspiracy count, as adoptive admissions also relevant to show motive and intent. State v. John, supra, 682-85.

The defendant, in his brief and at oral argument, failed to pursue any claim that the above recited evidence was inadmissible on the murder charge. Rather, his argument focused on the admission of the testimony of Hightower concerning the telephone call she had received the night before the discovery of Liftman’s body, discussed in the previous section. He argues that this testimony was concerned only with the conspiracy to commit murder charge, and if that charge should have been dismissed, the evidence should never have been presented to the jury. As we have concluded above, this testimony was erroneously admitted. We, however, incorporate our previous discussion concerning the harmlessness of its admission. Accordingly, since the defendant has not shown that it is more probable than not that this testimony affected the jury verdict on the murder charge, he is not entitled to a new trial on that charge.

There is error in part, the judgment of conviction on the charge of conspiracy to commit murder is set aside and the case is remanded with direction to render judgment dismissing that charge.

In this opinion Peters, C. J., Healey and Callahan, Js., concurred.

Covello, J.,

dissenting. I disagree that the acquittal of the sole coconspirator in a separate trial foreclosed, as a matter of law, the prosecution of this defendant for conspiracy in a later trial. The earlier determination in State v. Grullon, 212 Conn. 195, 562 A.2d 481 (1989), that General Statutes § 53a-48 is a “bilateral” conspiracy statute does not offer any real insight in addressing the present issue. Nor does the line of cases holding that the acquittal of one conspirator forecloses the conviction of other conspirators found guilty in the same trial. This rule, while making obvious sense in the context of a single trial for all of the reasons stated in the majority opinion, has been rejected by a number of jurisdictions where, as here, the acquittal occurs in a separate trial. See United States v. Irvin, 787 F.2d 1506, 1512-14 (11th Cir. 1986); United States v. Roark, 753 F.2d 991, 995-96 (11th Cir.), reh. denied, 761 F.2d 698 (11th Cir. 1985); United States v. Espinosa-Cerpa, 630 F.2d 328, 330-32 (5th Cir. 1980); Gardner v. State, 286 Md. 520, 524-29, 408 A.2d 1317 (1979); Commonwealth v. Brown, 473 Pa. 458, 463-67, 375 A.2d 331 (1977).

An earlier unsuccessful prosecution of an alleged coconspirator in a separate trial means nothing more than that on a given date the prosecution failed to meet its burden of proving the defendant guilty beyond a reasonable doubt of all of the elements constituting conspiracy. It certainly does not mean as the majority now holds, that a conspiracy did not occur. “It has long been recognized that criminal juries in the United States are free to render ‘not guilty’ verdicts resulting from compromise, confusion, mistake, leniency or other legally and logically irrelevant factors. Dunn v. United States, 284 U.S. 390, 393-94, 52 S. Ct. 189, 190-191, 76 L. Ed. 2d 356 (1932). Consequently, an acquittal is not to be taken as the equivalent of a finding of the fact of innocence; nor does it necessarily even reflect a failure of proof on the part of the prosecution.” United States v. Espinosa-Cerpa, supra, 332.

Suppose, for example, that a jury is satisfied that a conspiracy took place, but is not satisfied with the evidence that the person on trial has been properly identified as one of the conspirators. Failure to establish this element in the first trial will now serve to exonerate the other conspirator no matter how strong the proof is as to him. Suppose in the first trial, the alleged conspirator is found guilty. In a subsequent trial, however, all his coconspirators are found not guilty because the principal witness in the first trial is no longer available. Based on the majority’s reasoning in this decision, it only seems logical that the first conviction must now also be set aside.

Hereafter, in the prosecution of coconspirators at separate trials, should all but one of them be found not guilty for whatever the reason, the other also will now go free. I submit that such an outcome is neither legally nor logically correct. I would affirm the decision of the trial court in all respects.

       General Statutes § 53a-54a provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person . . . .”

       “[General Statutes] Sec. 53a-48. conspiracy, renunciation, (a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       Prior to November, 1982, the Connecticut constitution required a grand jury indictment as a prerequisite to the prosecution of anyone charged with a crime punishable by death or life imprisonment. State v. Mitchell, 200 Conn. 323, 326, 512 A.2d 140 (1986). After that date, by virtue of amendment seventeen, directed to article first, § 8 of the Connecticut constitution, individuals similarly charged have a constitutional right to an open and adversarial probable cause hearing. Id., 328-30.

       In State v. Mitchell, 200 Conn. 323, 326-28, 512 A.2d 140 (1986), we discussed the inequities that arose from the secret operation and ex parte nature of the grand jury system.

       The defendant argues that the grand jury would not have had the benefit of Graylon Shannon’s testimony, since Shannon did not have contact with the defendant until 1986. We note that Shannon did not testify at the probable cause hearing.

       The very reason conspiracy has evolved as an offense distinct from the substantive offense the conspirators agree to commit is the perceived danger of group action. As Justice Frankfurter observed in Callanan v. United States, 364 U.S. 587, 593-94, 81 S. Ct. 321, 5 L. Ed. 2d 312, reh. denied, 365 U.S. 825, 81 S. Ct 687, 5 L. Ed. 2d 703 (1961), “collective criminal agreement — partnership in crime — presents a greater potential threat to the public than individual delicts. Concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality. Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish. Nor is the danger of a conspiratorial group limited to the particular end toward which it has embarked. Combination in crime makes more likely the commission of crimes unrelated to the original purpose for which the group was formed. In sum, the danger which a conspiracy generates is not confined to the substantive offense which is the immediate aim of the enterprise.”

       This notion that the gist of conspiracy is the agreement dates back to 1611 with a decision of the Court of Star Chamber. Poulterers’ Case, 77 Eng. Rep. 813 (1611); see W. LaFave & A. Scott, Criminal Law (1972) p. 453.

       Other courts have likewise taken this position. See United States v. Bruno, 333 F. Sup. 570 (E.D. Pa. 1971); Eyman v. Deutseh, 92 Ariz. 82, 373 P.2d 716 (1962) (even though defendant entered guilty plea after alleged coconspirator was found not guilty of same conspiracy, acquittal of coconspirator operated to deprive court of jurisdiction to render judgment of conviction on defendant’s guilty plea); Pearce v. State, 330 So. 2d 783 (Fla. App,), cert. denied, 341 So. 2d 293 (Fla. 1976) (defendant charged with conspiring with two who stood trial and were acquitted was entitled to dismissal); Rosenberg v. State, 54 Md. App. 673, 460 A.2d 617 (1983) (prior acquittal of coconspirator charged with maintaining bawdy house mandated acquittal of subsequently tried coconspirator).

       The defendant stipulated that the body that was autopsied in this case was that of Henry Littman, and no dispute arose at trial over the fact that Littman died as the result of a close range shotgun blast to the head.

       The defendant asked that this response be stricken, but the trial court denied his request stating, “You asked the question.”

       In view of the fact that the defendant’s ten to twenty year sentence on the conspiracy to commit murder charge was to run concurrently with his twenty-five years to life on the murder charge, resentencing of the defendant is unnecessary.


author: Hull, J.

text:
    Raymond J. Busca et al. v. Nicotra Corporation et al.
    (13771)
    Peteks, C. J., Shea, Callahan, Covello and Hull, Js.
    Argued November 3
    decision released December 19, 1989

      Mark T. Kelly, for the appellant (named defendant).

      Leonard L. Levy, for the appellees (plaintiffs).
   Hull, J.

The sole issue in this mortgage foreclosure is whether the trial court abused its discretion in determining the value of the foreclosed real property and in consequently fixing a law day for the named defendant, owner of the equity of redemption, only four and one-half months from the date of the judgment of foreclosure. We conclude that the court did not abuse its discretion and, therefore, find no error on the named defendant’s appeal.

The underlying facts are not in dispute. On September 14, 1987, the named defendant, Nicotra Corporation (defendant), executed a promissory note in the amount of $552,500 in favor of the plaintiffs, Raymond J. Busca and Vinci Busca, which was secured by a purchase money mortgage on a 6.4 acre parcel of land located in Hamden. Thereafter, the defendant failed to pay certain interest installments due pursuant to the note, and, consequently, on November 1, 1988, the plaintiffs brought a foreclosure action. The court rendered a judgment of strict foreclosure on February 27, 1989, finding the debt to be $590,567.30 and fixing the law day as July 18,1989. The defendant appeals from that judgment claiming that the trial court erred in: (1) determining the fair market value of the premises based on the plaintiffs’ appraisal, which utilized normal marketing conditions and assumptions rather than the purchase price paid, when the evidence indicated that the premises were unique and necessary to the defendant’s completion of a larger subdivision; and (2) refusing to find that the substantial equity in the subdivision parcel, of which the foreclosed premises is an integral part, was relevant and material to the questions of the intent of the defendant to redeem and the probability that the defendant would redeem.

The following relevant evidence was presented at the foreclosure hearing. The plaintiffs' appraiser, George S. Williams, testified that the value of the premises was $347,000. He testified that the highest and best use of the land was as a residential subdivision, that he assumed there would be five or six approved lots, and that he had used the comparable sales method in determining the value of these lots.

Salvatore J. Nicotra, the president of the defendant, testified that the defendant owned approximately 250 acres of land adjacent to the mortgaged property. While it had purchased that land for about $7000 per acre, the purchase price of the mortgaged premises was in excess of $100,000 per acre. Barry Hammons, a land surveyor employed by the defendant, testified that the reason for this price disparity was that the mortgaged property had a uniquely higher value to the defendant because the planning and zoning commission had indicated that a street outlet through that land was necessary for the development of the defendant’s 250 acres located to the rear of that property. Thereafter, counsel stipulated that the premises were purchased to gain access to the rear acreage as was required for subdivision approval. The parties also stipulated that the defendant had paid approximately $100,000 for the premises in addition to the mortgage of $552,000.

The defendant introduced into evidence a contract for the purchase and sale of the entire subdivision, including the mortgaged property. Nicotra testified that the contract contemplated a selling price of the combined parcels that would pay the plaintiffs' note in full. Nicotra testified further that the closing was to be one year after a ninety day contingency period provided for in the contract.

The defendant, however, never offered any other testimony as to the value of the mortgaged property. In the absence of any such testimony by the defendant, the court found the value of the property to be $347,000, the amount testified to by the plaintiffs’ appraiser. Based on this value, the court found no equity in the mortgaged premises, and refused to allow evidence as to the overall equity in the combined premises because the entire parcel included property other than that which was security for the mortgage. The law day was accordingly set as July 18,1989, approximately four and one-half months after the date of foreclosure.

Our review of the defendant’s claims of error is governed by our holding in Brand v. Woolson, 120 Conn. 211, 215, 180 A. 293 (1935), wherein we stated that “[t]he discretion exercised by the court in fixing the law day in a foreclosure is a legal discretion. Its exercise will not be interfered with on appeal to this court except in a case of manifest abuse and when injustice appears to have been done.” The defendant claims that the action of the court in relying solely upon the $347,000 appraisal submitted by the plaintiffs in fixing the value of the premises in order to set the law day amounts to such an abuse of discretion or injustice. The defendant argues that the court failed to consider the “special circumstances” here involved as required by Metropolitan Life Ins. Co. v. Bassford, 120 Conn. 384, 180 A. 692 (1935): “The court will have regard for the value of the mortgaged premises as compared with the amount of the debt, and exercise its discretion in view of all the circumstances of the case so as to prevent a sacrifice of the property.” Id., 389, citing 2 Z. Swift’s Digest p. 197. The defendant argues that the court ignored the economic validity and reasonableness of the defendant’s particular use for the mortgaged property. According to the defendant, had the court not erroneously failed to adjust the value of the mortgaged property to take into account the contract price negotiated by the defendant for the overall parcel, the court would have found sufficient equity in the property to warrant a later law date.

Although the defendant frames the issues in terms of abuse of discretion, its claim is based principally on the court’s failure to allow testimony as to the equity in the overall subdivision property. In the absence of any showing of plain error or manifest injustice, we decline to review the defendant’s evidentiary claim on the merits because of the defendant’s failure to comply with Practice Book § 4065 (d) (3) which requires that, where any evidentiary claim is made, the brief contain: “The question or offer of exhibit; the objection and the ground on which it was based; the ground on which the evidence was claimed to be admissible; the answer, if any; the ruling, and any exception.” See Aspiazu v. Orgera, 205 Conn. 623, 636-37 n.5, 535 A.2d 338 (1987); Gorra Realty, Inc. v. Jetmore, 200 Conn. 151, 171, 510 A.2d 440 (1986); W. Moller & W. Horton, Connecticut Practice (1989) p. 152.

Thus, given the essence of the defendant’s argument on appeal and the defendant’s failure at trial to offer any evidence of the value of the foreclosed land, no further discussion is necessary to demonstrate conclusively that the defendant’s claim does not approach a case of manifest abuse of discretion or injustice so as to warrant a reversal of the trial court’s judgment.

There is no error.

In this opinion the other justices concurred.

       The defendants Salvatore J. Nicotra and Mechanics and Farmers Savings Bank of Bridgeport did not join in this appeal.

       The court was informed at oral argument that despite the delay from the law day of July 18, 1989, to the date of the hearing on this appeal, November 3, 1989, the contract for the sale of the combined parcels was never closed.


author: Shea, J.

text:
    Town of Plainfield v. Commissioner of Revenue Services
    (13718)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.
    Argued October 6
    decision released December 19, 1989

      Thomas B. Wilson, town attorney, for the appellant (plaintiff).

      Jane D. Comerford, assistant attorney general, with whom, on the brief, was Clarine Nardi Riddle, attorney general, for the appellee (defendant).
   Shea, J.

The principal issue in this appeal is whether the plaintiff town of Plainfield, when it furnished police protection pursuant to General Statutes § 7-284, provided a taxable service under General Statutes § 12-407 (2) (i) (E) and § 12-426-27 (b) (5) of the Regulations of Connecticut State Agencies. As a result of an audit, the defendant tax commissioner assessed sales taxes upon the amount charged by the plaintiff for rendering police protection to the Plainfield Dog Track. The plaintiff appealed to the Superior Court, which ruled that the assessment was lawful and, therefore, dismissed the appeal. We find no error.

The trial court found the following facts. The town of Plainfield maintains a police department headed by a chief of police and operating under a board of police commissioners. The dog track regularly attracts a large number of patrons during racing performances. Pursuant to § 7-284, the police chief determined that police protection was required during these performances and, thereafter, provided the services he deemed to be necessary. The officers providing those services were assigned by means of a permanent weekly schedule, were responsible for performing the duty as assigned, worked in uniform, and were under the supervision and control of the chief during their tours of duty. The collective bargaining contract between the plaintiff and the police union provided that service at the dog track was “extra duty,” for which the officers were paid one and one-half times their regular hourly rate. The officers’ services at the track were paid for by the plaintiff, which also made the necessary deductions for income tax and social security. The track paid the plaintiff $91,000 per year for the services rendered by these officers, with no profit being realized by the plaintiff as a result of the payments.* **

On appeal, the plaintiff claims that the trial court erred in concluding that the services rendered by the police officers were taxable because: (1) the services were of a “public” rather than a “private” nature; (2) the services were excluded from the sales tax by virtue of being rendered by “on-duty” police officers; (3) the services were excluded from the imposition of a sales tax by virtue of being rendered as a function of an employee-employer relationship; and (4) the applicable regulation was beyond the authority conferred by the relevant statutes. We conclude, relying partly on our recent decision in Berlin v. Commissioner, 207 Conn. 289, 540 A.2d 1051 (1988), that there is no error.

I

The plaintiff first claims that its police services do not fall within the statutory confines of § 12-407 (2) (i) (E), which defines as taxable sale “the rendering of certain services for a consideration . . . [including] private investigation, protection, patrol work, watchman and armored car services.” The plaintiff maintains that, under this statute, only those activities are taxable that are performed on a “private” rather than on a “public” basis. From this premise, the plaintiff then argues that because § 7-284 “mandates” police protection at such establishments as the dog track, there can be no sales tax due for the services rendered by the plaintiff’s police officers in protecting the public.

When this argument was presented at trial, the court refused to decide whether the legislature intended to confine “protection” and “patrol work” solely to private protection and private patrol work. The court did conclude, however, that if the plaintiff had provided a public service to the dog track, “similar to normal public police services provided to residents of the Town of Plainfield, then no payment would be required of the Track just as no resident of the Town is required to pay for public police services.” The court concluded that the services rendered by the officers were “in the nature of ‘private’ and not ‘public’ services.” It declared that the “service provided is not to the public at large but to a profit-making institution.” The court relied upon the undisputed applicability of § 7-284 to the dog track, requiring it to pay for the services it received from the police department, as an indication that these services were not “normal everyday public police services regularly rendered to Town residents.” We agree with the trial court.

Section 7-284 provides that when police protection is “necessary” at any listed event, “the amount of such protection necessary shall be determined and shall be furnished by” the chief of police. The flaw in the plaintiffs argument is that § 7-284 does not “mandate” public protection at the enumerated events. Section 7-284 represents, rather, a legislative determination that in some circumstances the security arrangements, if any, provided by the promoter of an event may not be adequate and, further, that the ultimate determination of adequacy is to be made by a police official rather than the promoter. With this understanding, we conclude that the police services rendered to the dog track by the plaintiffs police officers are indistinguishable from the police services that we determined, in Berlin v. Commissioner, supra, were subject to a sales tax assessment.

In Berlin, the furnishing of off-duty police officers, requested and paid for by private citizens, was held to be subject to collection of a sales tax. Here, the nature of the actual service provided by the plaintiffs police officers is identical to that provided by the officers in Berlin — protection for private citizens above and beyond that required during the normal course of the officer’s duties. The only difference in this case is that the determination of whether those services were required at the dog track was made by a police official rather than the owners of the track.

Section 12-407 (2) (i) (E) looks to the type of service actually rendered, and not to the status of the person who decides that it should be rendered. Our conclusion that the services rendered here were private in nature and therefore taxable is reinforced further by the legislature’s specific mandate, in § 7-284, that the cost of such protective services is to be borne by the promoter rather than the town. As the trial court correctly concluded, if the services rendered pursuant to § 7-284 were truly of a “public” nature, the legislature would not have provided that the dog track must shoulder the cost of providing them. We conclude that the trial court’s resolution of this issue was not erroneous.

II

In its next claim of error, the plaintiff argues that since, under § 12-426-27 (b) (5) of the Regulations of Connecticut State Agencies, it is the rendering of protective services by “off-duty” police officers that is subject to a sales tax, there can be no such tax in this case, because the officers working at the dog track were “on-duty.” The plaintiff concedes that duty at the dog track “is denominated as extra-duty in the collective bargaining agreement, and overtime rates apply,” but argues, nevertheless, that since the officer’s duty at the track is under the control of the chief of police, the term “extra-duty” is equivalent to “on-duty” rather than “off-duty.” The trial court concluded that whatever distinction could be made between “extra-duty” and “off-duty” was irrelevant, as it was the plaintiff, and not the police officers, upon which a sales tax for the services rendered was being imposed.

On the basis of Berlin, we hold that the court’s conclusion was correct. In Berlin, an assessment against the town for payment of a sales tax was upheld despite the fact that the police officers rendering services “off-duty” were found to be employees of the private citizens desiring their assistance. We decided that by furnishing its officers for off-duty assignments, in accordance with a collective bargaining agreement, the town had “benefited to the extent that such a contract provision contributed to labor peace with its police officers.” Berlin v. Commissioner, supra, 294. We stated that it was “reasonable to conclude further that the plaintiff also benefited from the added police presence in the town.” Id., 294-95. The trial court noted that, beyond the indirect benefits present in Berlin, in this case “a direct monetary benefit was received by the Town[,] making an even stronger case for the finding that the services were rendered for ‘consideration’. . . .”

Having concluded that the plaintiff had rendered “certain services for a consideration,” in accordance with § 12-407 (2) (i), the trial court ruled that the “duty” status of the officers working at the dog track was irrelevant, since “it is the Town which is being taxed on the services which it rendered to the Track.” The court’s conclusion was implicitly based on its ruling that the services rendered by the plaintiff were “private” rather than “public” and were thus taxable, under the applicable regulation, as “private protection” or “private patrol” services rather than as “the rendering of police services by an off-duty policeman.” We agree with the trial court’s analysis and its conclusion that the police department’s services were of a “private” rather than “public” nature. The plaintiff, by furnishing officers to the track, stands in essentially the same position as would a private contractor furnishing security personnel for the same purpose. Since the plaintiff concedes that such a private contractor would have been subject to the sales tax, we hold that the trial court did not err in resolving this issue in favor of the defendant commissioner.

Our conclusion regarding this issue is also disposi-tive of the plaintiffs further claim that the services it rendered to the dog track were excluded from an assessment of a sales tax by virtue of the fact that the police officers’ services were “rendered by an employee for his employer.” General Statutes § 12-407 (2) (i). As the trial court correctly ruled, “the issue is not the relationship of the officers to the Town, but whether the Town is rendering services to the Dog Track.” Since we have concluded that those services were of a private nature and thus, subject to an assessment of a sales tax, the exclusion provided in § 12-407 (2) (i), for services rendered by an employee for his employer, is simply inapplicable in the present case.

Ill

The plaintiff’s final claim is that § 12-426-27 (b) (5) of the Regulations of Connecticut State Agencies, which requires the assessment of a sales tax for “the rendering of police services by an off-duty policeman,” is invalid, since it is beyond the scope of General Statutes § 12-407 (2) (i) (E). We decline to review this issue, since the trial court’s decision did not rest upon a determination that the plaintiff was rendering police services through off-duty police officers.

As we have previously stated, the trial court ruled that the duty status of the police officers was irrelevant, since the plaintiff was found to be providing “private” rather than “public” protection to the dog track. While the trial court did conclude that “[i]n the absence of any claim to the contrary, the court may assume that the regulation was promulgated in accordance with the procedures prescribed by the Uniform Administrative Procedure Act,” there is no indication in the court’s memorandum of decision that its ultimate conclusion rested upon a finding that the plaintiff was rendering police services to the dog track through off-duty police officers. To the contrary, the trial court’s memorandum of decision discloses that its dismissal of the plaintiff’s appeal was based upon its finding that the plaintiff was providing private protection or patrol work as specified in § 12-407 (2) (i) (E).

There is no error.

In this opinion the other justices concurred.

       General Statutes § 7-284 provides in part: “When police protection is necessary or required at any boxing bout or wrestling match, place of public amusement, sport contest or hockey, baseball or basketball game, or any other exhibition or contest, which is being held or is to be held in any municipality, the amount of such protection necessary shall be determined and shall be furnished by (1) the chief or superintendent of the police department in any municipality having an organized or paid police department .... Any such protection shall be paid for by the person or persons operating, conducting or promoting such game, exhibition or contest.”

       General Statutes (Rev. to 1985) § 12-407 (2) (i) (E) provides: “(2) ‘Sale’ and ‘selling’ mean and include . . . (i) the rendering of certain services for a consideration, exclusive of such services rendered by an employee for his employer, as follows . . . (E) private investigation, protection, patrol work, watchman and armored car services.”

       Section 12-426-27 of the Regulations of Connecticut State Agencies provides in part: “(a) The rendering of the following enumerated services for a consideration, defined in subsection (b) of this regulation . . . shall be a sale and subject to the sales tax. . . .
      “(b) Enumerated services. . . .
      “(5) Private investigation, protection, patrol, watchman and armored car services.
      “Such services mean and include providing personnel or canines to patrol or guard property; engaging in detective or investigative duties; safeguarding or maintaining a surveillance of an individual; maintaining and monitoring mechanical protective devices, such as burglar and fire alarm systems; providing armored cars for the transportation of valuables; wrapping coins; setting up a payroll; and the rendering of police services by an off-duty policeman.”

       The fee of $91,000 per year was arrived at in 1986, as part of the settlement of a suit brought by the town after the dog track had refused to make any payment for the services rendered by the police department.

       While the trial court made no finding of fact regarding the amount of protective service provided by the dog track itself, counsel for the plaintiff did indicate, during oral argument, that the dog track employs its own security force. In its brief the plaintiff concedes that a contract for such “private” protection would be subject to payment of a sales tax. The plaintiffs chief of police determined, however, that two uniformed officers were necessary in addition to the security force provided by the dog track. The propriety of the police chiefs exercise of discretion in making that determination is not before us in this appeal.


author: Santaniello, J.

text:
    Richard W. Wilson v. City of New Haven et al.
    (13606)
    Shea, Callahan, Covello, Hull and Santaniello, Js.
    Argued October 3
    decision released December 26, 1989

      Jackson T. King, with whom, on the brief, was Susan King Shaw, for the appellant (plaintiff).

      William C. Turney, for the appellee (defendant Yale University Elizabethan Club Corporation).
   Santaniello, J.

The plaintiff brought this action against the defendants, the city of New Haven and the Yale University Elizabethan Club Corporation (Elizabethan Club), seeking damages for injuries sustained as a result of a fall on October 3,1981, caused by a raised, broken and uneven section of sidewalk located on College Street in New Haven. Count one was directed against the city for breach of a statutory duty. Count two alleged negligence against the Elizabethan Club, the abutting landowner.

The Elizabethan Club filed a motion for summary judgment asserting that there were no material issues of fact and that it owed no duty to the plaintiff. The motion was granted by the trial court and affirmed by the Appellate Court in a per curiam opinion, Wilson v. New Haven, 17 Conn. App. 806, 550 A.2d 902 (1988).

We granted certification of the plaintiff’s appeal from the Appellate Court limited to the question of whether the Appellate Court erred in affirming the trial court’s granting of the Elizabethan Club’s motion for summary judgment.

The plaintiff argues that the Appellate Court erred in: (1) failing to consider the common law exceptions to the general rule of no liability of an abutting landowner; (2) ruling that repairs subsequent to the accident by the abutting landowner did not raise a material issue of fact because the abutting landowner owed no duty at the time of the accident; and (3) ruling that the location of the accident did not raise a material issue of fact regarding the abutting landowner’s duty.

The factual background of this case is as follows: The plaintiff instituted an action to recover damages for injuries he sustained when he allegedly fell on a section of public sidewalk that abuts property owned and occupied by the Elizabethan Club. The Elizabethan Club filed a motion for summary judgment. The affidavits submitted in support of the motion for summary judgment indicated that the street on which the accident occurred contained a ten foot wide public sidewalk. The city had designated a five foot area extending from the curb to the center of the sidewalk as a “treebelt” strip, apparently because there were unpaved sections of sidewalk at intermittent points designed for the planting of trees. The site of the accident was alleged to be two feet from the curb, which would place it within the “treebelt” portion of the sidewalk. Repairs were made to the site by the abutting landowner approximately two months after the accident, but there was no claim of any repairs prior to the accident. This court must therefore decide under these facts whether the trial court erred in granting the motion for summary judgment.

Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Practice Book § 380; Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 316-17, 477 A.2d 1005 (1984). The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried. See Dowling v. Kielak, 160 Conn. 14, 16, 273 A.2d 716 (1970). The test for granting summary judgment is whether the moving party would be entitled to a directed verdict on the same facts. Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982).

The abutting landowner argues that under the facts of this case it owes no duty to the plaintiff. An abutting landowner, in the absence of statute or ordinance, ordinarily is under no duty to keep the public sidewalk in front of his property in a reasonably safe condition for travel. Tenney v. Pleasant Realty Corporation, 136 Conn. 325, 329, 70 A.2d 138 (1949); Jankowski v. Bridgeport, 34 Conn. Sup. 1, 3, 373 A.2d 1 (1977). In the instant case the plaintiff does not claim that there is a statute or ordinance that created a duty owed to the plaintiff by the abutting landowner. The plaintiff argues that under the common law a showing of control or maintenance of the area of the accident may give rise to a duty owed by the abutting landowner, and that he has raised issues of fact concerning control or maintenance of the sidewalk. None of the affidavits submitted supports this contention.

The trial court found that repairs made subsequent to the accident do not raise a material issue of fact because control after the accident does not establish a duty at the time of the accident. In reaching this decision the trial court clearly took into consideration possible common law exceptions to the general rule of nonliability. Had the trial court not considered any common law exceptions there would have been no need to discuss the issue of subsequent repairs because the general rule would have been dispositive. The plaintiffs first claim of error is therefore without support.

The decision of the trial court on the issue of subsequent repairs is supported by the affidavits. In answers to interrogatories the Elizabethan Club stated that it had made repairs to the site of the accident in December, 1981, or early 1982, at least two months after the accident. An affidavit of a city public works employee reveals only that repairs had been made sometime within two years before May, 1987. There is no evidence of repairs prior to the accident nor any other indication of control or maintenance of the sidewalk by the abutting landowner at the time of the accident. Evidence of subsequent repairs does not necessarily indicate control at the time of the accident. See C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.) § 11.5.4.; see also Mulligan v. New York University, 254 App. Div. 107, 3 N.Y.S.2d 982 (1938). A good faith effort by an abutting landowner to remove a hazardous condition on a public sidewalk after an accident is insufficient to raise a material issue of fact concerning control of the sidewalk at the time of the accident.

This is not a situation where a hazardous condition was created by the abutting landowner. See, e.g., Perkins v. Weibel, 132 Conn. 50, 42 A.2d 360 (1945); Han-lon v. Waterbury, 108 Conn. 197, 142 A. 681 (1928). Under these facts there is no duty owed by the Elizabethan Club to the plaintiff.

It is further argued by the plaintiff that the location of the accident raises material issues of fact as to the Elizabethan Club’s liability. There is no merit to this claim. The complaint is very specific in identifying the site of the accident, and there is no dispute over this location. The only source of confusion appears to be whether the site of the accident is labeled a public sidewalk or a “treebelt.” As the trial court correctly determined, this distinction is irrelevant under these facts. The plaintiff alleged a fall on a raised and broken piece of sidewalk. The designation of this portion of the sidewalk as part of an area in which some trees will be planted does not create a duty owed by the abutting landowner.

We find that the plaintiff has not raised material issues of fact regarding the creation of a duty owed by the abutting landowner. The plaintiff fell on a public sidewalk as a result of a condition that was not created by and was not within the control of the abutting landowner.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       The facts of this case are clearly distinguishable from Allen v. Mussen, 129 Conn. 151, 26 A.2d 776 (1942), where an abutting landowner was held to a duty of reasonable care after the abutter erected a small fence around a grassy area between the curb and sidewalk. A local ordinance required the landowner to mow the grass. In the instant case the plaintiff fell in an area designed for public travel, and the abutting landowner did not create any structure that could create a hazardous condition.