author: Borden, J. Berdon, J.,

text:
    John J. Scinto v. R. David Stamm et al.
    (14538)
    Callahan, Borden, Berdon, Santaniello and F. X. Hennessy, Js.

      (One justice dissenting)

    Argued November 5, 1992
    decision released February 9, 1993

      John J. Scinto, pro se, the appellant (plaintiff).

      Carolyn K. Querijero, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellees (defendants).
   Borden, J.

The principal issues in this appeal are: (1) whether the grading procedures of the Connecticut bar examining committee are arbitrary and capricious and therefore violate due process of law; and (2) whether a bar applicant who receives a failing score on the bar examination is constitutionally entitled to a judicial hearing for the purpose of regrading the applicant’s answers on the essay portion of the examination. The plaintiff, John J. Scinto, appeals from the judgment of the trial court denying his motion for summary judgment and granting the motion for summary judgment of the defendants, the Connecticut bar examining committee, and R. David Stamm, its administrative director. We affirm the judgment of the trial court.

The relevant facts and procedural history are as follows. In July, 1989, the plaintiff took the Connecticut bar examination and received a failing score of 262.79, which was below the standard passing score of 264. The defendant then took the February, 1990 bar examination but again failed, receiving a score of 260.67. The plaintiff thereafter filed this petition in Superior Court seeking, inter alia: (1) a judicial hearing for the purpose of regrading his essay answers for the July, 1989 bar examination; (2) an injunction ordering the defendants to admit him to the Connecticut bar; and (3) a declaratory judgment that the defendants’ regulations governing admission to the bar are invalid because they violate the due process clauses of the federal and state constitutions.

The defendants moved to dismiss the plaintiff’s petition on the grounds that the court lacked subject matter jurisdiction because: (1) the doctrine of sovereign immunity barred the plaintiffs claims; and (2) the plaintiff’s request for a declaratory judgment did not comply with Practice Book § 390 (d) since proper notice had not been given to other interested parties. While this motion was pending, the plaintiff moved for permission to amend his petition by adding a claim arising out of his failure to pass the February, 1990 bar examination. The defendants opposed the motion to amend, but later agreed to withdraw their objection on the condition that the pending motion to dismiss would be made applicable to the claim arising out of the February, 1990 examination.

The trial court, Thim, J., subsequently denied the defendants’ motion to dismiss, ruling that the doctrine of sovereign immunity did not bar the plaintiff’s claims and that the court had subject matter jurisdiction over the declaratory judgment claim because the plaintiff, pursuant to State ex rel. Kelman v. Schaffer, 161 Conn. 522, 528, 290 A.2d 327 (1971), was entitled to cure the lack of notice prior to a final judgment. The defendants then filed an answer to the plaintiffs petition denying all of the plaintiffs claims. The defendants also asserted, by way of special defense, that the doctrine of sovereign immunity barred the action because “the allegations of the complaint do not clearly demonstrate an incursion upon constitutionally protected interests.” The plaintiff then moved to strike the defendants’ special defense, and subsequently the trial court, ThimJ., denied the motion.

Both sides moved for summary judgment. The trial court, McGrath, J., denied the plaintiff’s motion for summary judgment and granted the defendants’ motion for summary judgment. The trial court concluded that: (1) the grading procedures employed by the defendants were not arbitrary or capricious and therefore do not violate due process; (2) the plaintiff was not constitutionally entitled to a judicial hearing for the purpose of regrading his answers to the essay portion of the bar examination; and (3) the trial court lacked subject matter jurisdiction over the declaratory judgment aspect of the plaintiff’s claim because the plaintiff had not attempted to notify any interested parties pursuant to the requirements of Practice Book § 390 (d). On appeal, the plaintiff claims that the trial court improperly: (1) concluded that the grading procedures of the defendants are not arbitrary and capricious and therefore do not violate due process; (2) concluded that he was not constitutionally entitled to a judicial hearing for the purposes of regrading his answers to the essay portion of the examination; and (3) denied his motion to strike the defendants’ special defense.

I

The plaintiff first claims that the trial court improperly denied his motion for summary judgment and improperly granted the defendants’ motion for summary judgment because the grading procedures of the defendants are arbitrary and capricious and therefore violate his due process rights. We disagree.

In July, 1982, after several years of consultation with nationally recognized bar examination experts, the defendants extensively revised the format of the Connecticut bar examination. As revised, the examination consists of two parts: a multiple choice portion, administered in most states and known as the Multistate Bar Examination (multistate), consisting of two hundred questions; and an essay portion consisting of twelve questions. The examination as a whole is designed to test the minimal competency of a candidate to practice law in Connecticut. The present system was designed to standardize passing scores, provide for consistency in grading and to protect against idiosyncratic grading and grading errors. There is no passing or failing score on either portion of the examination.

Grading of the essay answers is done so that the graders do not know the identity of the applicant whose answers they grade. Answers to the essay questions are graded on a scale from zero to seven. In most instances, all of the examination booklets containing the answer to one of the twelve questions are distributed among three graders. Each grader assigns a score to one third of the answer booklets. In order to ensure uniformity and consistency in grading essay answers, the three graders for a particular question meet, prior to grading the essay questions, to develop a model answer and to agree upon the weight to be assigned to each component of the answers.

A candidate’s multistate score is added to the candidate’s converted score on the essay portion of the examination to determine the total score. To pass the examination a candidate must attain a total score of 264. If a candidate’s total score is within ten points, plus or minus, of the passing score, the essay portion of the examination is regraded by a different grader. If this second grader assigns the same score as the previous grader for a particular question, then that score becomes the final score for that question. If the scores of the two graders differ by only one point, then the two scores are averaged. If the two scores differ by more than one point, then the two graders read the answer for a third time and agree upon the final score for that question. If a candidate’s score after this process is 264 or greater, then the candidate has passed the examination, and conversely, a candidate receiving a score below 264 has failed the examination. There is no limitation on the number of times a candidate who has received a failing score may retake the examination.

“The standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Pursuant to Practice Book § 384, summary judgment shall be rendered forthwith if the 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. Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. Practice Book §§ 380, 381; Burns v. Hartford Hospital, [192 Conn. 451, 455, 472 A.2d 1257 (1984)]. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Town Bank & Trust Co. v. Benson, 176 Conn. 304, 309, 407 A.2d 971 (1978). Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). . . (Internal quotation marks omitted.) Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780-81, 595 A.2d 334 (1991).

In light of the similarity of issues raised in the two motions for summary judgment, we consider the trial court’s disposition of the motions together. The plaintiff, in support of his motion for summary judgment and in opposition to the defendants’ motion for summary judgment, filed memoranda, copies of the essay examination questions and his answers, and a personal affidavit. The substance of these documents can be distilled into two particular claims: (1) that his essay answers were scored by impermissibly subjective grading standards that resulted in gross grading errors; and (2) that because he received a score that was close to a passing score, there is no substantial difference between his failing score and a passing score, and thus the defendants arbitrarily and capriciously concluded that he was not minimally competent to practice law in Connecticut.

The United States Supreme Court’s decision in Schware v. Board of Bar Examiners, 353 U.S. 232, 238-39, 77 S. Ct. 752, 1 L. Ed. 2d 796 (1957), established the appropriate standard by which to analyze the plaintiffs claim. “A State cannot exclude a person from the practice of law ... in a manner or for reasons that contravene the Due Process . . . Clause of the Fourteenth Amendment. . . . A State can require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualification must have a rational connection with the applicant’s fitness or capacity to practice law.” (Emphasis added.) Id.; Scott v. State Bar Examining Committee, 220 Conn. 812, 820, 601 A.2d 1021 (1992).

The plaintiff, pursuant to his motion for summary judgment, had the heavy burden of establishing that the grading procedures employed by the defendants are arbitrary and capricious, and that they have no rational connection to achieving the legitimate state interest of requiring minimal competency to practice law. See, e.g., Tofano v. Supreme Court of Nevada, 718 F.2d 313, 315 (9th Cir. 1983); Tyler v. Vickery, 517 F.2d 1089, 1101 (5th Cir. 1975), reh. denied, 521 F.2d 815 (5th Cir.), cert. denied, 426 U.S. 940, 96 S. Ct. 2660, 49 L. Ed. 2d 393 (1976); Chaney v. State Bar of California, 386 F.2d 962, 964 (9th Cir. 1967), cert. denied, 390 U.S. 1011, 88 S. Ct. 1262, 20 L. Ed. 2d 162 (1968); McGinn v. State Bar Board of North Dakota, 399 N.W.2d 864, 867 (N.D. 1987); Petition of Wayland, 510 P.2d 1385, 1387 (Okla. 1973). Courts have uniformly held that an examination consisting of essays is not overly subjective, and is a rational method of assessing a candidate’s competency to practice law. See, e.g., Tofano v. Supreme Court of Nevada, supra; McGinn v. State Bar Board of North Dakota, supra; Dinger v. State Bar Board of North Dakota, 312 N.W.2d 15, 18 (N.D. 1981). Likewise, a state is entitled to establish a minimum score for passing a bar examination without offending due process. In re Fischer, 425 A.2d 601, 602 (Del. 1980); Petition of Pacheco, 85 N.M. 600, 604, 514 P.2d 1297 (1973); Dinger v. State Bar Board of North Dakota, supra; see also Bailey v. Board of Law Examiners of Texas, 508 F. Sup. 106, 108 (W.D. Tex. 1980).

The trial court concluded that “[t]he plaintiff has not submitted any evidence to support his allegations that the [defendants’] procedures resulted in gross grading errors. Further, the plaintiff submits no evidence to rebut the [defendants’] affidavit.” We agree. Nowhere in his supporting documentation does the plaintiff offer anything but his own opinion and conclusions, based primarily on unsworn factual assertions—contained not in his affidavit, but in his accompanying memoranda, that the grading procedures used by the defendants were unfair. Unsworn assertions of fact, summary conclusions of law and unsupported allegations in an affidavit do not entitle a party to a summary judgment. See, e.g., Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 12, 459 A.2d 115 (1983); Rathkopf v. Pearson, 148 Conn. 260, 264, 170 A.2d 135 (1961) (“[a]n allegation setting forth no evidentiary facts avails nothing”).

The plaintiff failed to offer evidence that setting the passing score at 264 is arbitrary or capricious. The defendants’ affidavit in support of their motion for summary judgment, moreover, stated that they arrived at the passing score only after extensive consultation with testing experts. Similarly, the plaintiff, instead of offering evidence that the defendants’ system of grading somehow does not conform to accepted and sound nationwide methods of scoring bar examinations, offered only his opinion that his answers to several of the essay questions should have received higher scores.

The defendants’ extensive affidavit meticulously described the current format of the bar examination, its procedural safeguards and its provision for multiple review of examinations falling within ten points of the passing score. The affidavit set forth a carefully crafted system that is, in fact, designed to reduce the likelihood of any capricious or idiosyncratic scoring by an individual grader. Each answer is compared to the model answer created by three graders at a calibration session, and an answer may be read up to two additional times if the answer is part of an examination whose score falls within ten points of the passing score, and if there is any disagreement as to the proper score for that answer.

According to the undisputed contention of the defendants, this system is “state of the art” and is currently in use in most states. Courts have uniformly upheld grading systems such as the defendants’ that offer multiple protections from arbitrary grading. See, e.g., Tyler v. Vickery, supra, 1105; Singleton v. Louisiana State Bar Assn., 413 F. Sup. 1092, 1099-1100 (E.D. La. 1976); In re Application of Bettine, 840 P.2d 994, 997 (Alaska 1992); Mississippi Board of Bar Admissions v. Applicant F., 582 So. 2d 377, 384 (Miss.), cert. denied sub nom. Zebert v. Mississippi Board of Bar Admissions, U.S. , 112 S. Ct. 591, 116 L. Ed. 2d 616 (1991); Loeb v. New York State Bar Board of Law Examiners, 144 App. Div. 2d 813, 534 N.Y.S.2d 559 (1988); McGinn v. State Bar Board of North Dakota, supra; Dinger v. State Bar Board of North Dakota, supra, 16; Hooban v. Board of Governors of Washington State Bar Assn., 85 Wash. 2d 774, 539 P.2d 686 (1975), appeal dismissed, 424 U.S. 902, 96 S. Ct. 1092, 47 L. Ed. 2d 306 (1976); and other cases cited in annot., Validity, Under Federal Constitution, of State Bar Examination Procedures, 30 A.L.R. Fed. 934 (1976 & Sup. 1992). Under these circumstances, we conclude that the grading procedures employed by the defendants have a rational connection to the state’s substantial interest in assessing an applicant’s competency to practice law. Consequently, the trial court properly denied the plaintiff’s motion for summary judgment and granted the defendants’ motion for summary judgment.

II

The plaintiff next claims that the trial court improperly denied his motion for summary judgment and improperly granted the defendants’ motion for summary judgment because he is constitutionally entitled, as a matter of procedural due process, to a judicial hearing for the purpose of regrading his answers on the essay portion of the bar examination. We disagree.

The United States Supreme Court set forth three factors to consider when analyzing whether an individual is constitutionally entitled to a particular judicial or administrative procedure: “First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). “The ultimate balance involves a determination as to when, under our constitutional system, judicial-type procedures must be imposed upon administrative action to assure fairness.” Id.

Application of the Mathews test to the present case compels the conclusion that a judicial hearing to regrade the applicant’s essay answers is not constitutionally required. Admittedly, under the first prong of Mathews, an applicant has a strong interest in pursuing his chosen profession. Tyler v. Vickery, supra, 1104. An individual does not have, however, an absolute right to practice law. Schware v. Board of Bar Examiners, 353 U.S. 232, 238-39, 77 S. Ct. 752, 1 L. Ed. 2d 796 (1957); Jones v. Board of Commissioners of Alabama State Bar, 737 F.2d 996, 1002 (11th Cir. 1984). Whether the applicant’s interest is of sufficient weight to compel the requested relief can be determined only by analyzing the second and third prongs of Mathews. Lucero v. Ogden, 718 F.2d 355, 358-59 (10th Cir. 1983), cert. denied, 465 U.S. 1035, 104 S. Ct. 1308, 79 L. Ed. 2d 706 (1984).

The applicant’s interest “militates ... in favor of a hearing only if hearings are [a] demonstrably more efficacious means of safeguarding that interest than” the other procedural protections that the defendants currently provide. Tyler v. Vickery, supra, 1104. In the present case, there is no evidence that the defendants’ grading system is not effective in revealing grading errors or that it inadequately guards against the risk, if any, of an erroneous deprivation of an applicant’s interest. On the contrary, there is uncontroverted evidence that the defendants’ system of grading, by providing multiple rereadings of examinations that fall within ten points of a passing score, effectively protects against idiosyncratic or arbitrary grading. Although the grading of any essay examination may involve some inherent subjectivity, the potential capriciousness of any one grader is significantly reduced by: (1) the use of examination numbers to protect the identity of the applicant; (2) the use of a model answer by which to measure an applicant’s answer; (3) the regrading of any examination that falls within ten points of passing; and (4) the consultation between graders, and the use of a consensus grade, if the two graders’ scores differ by more than one point.

In support of his motion for summary judgment and in opposition to the defendants’ motion for summary judgment, the plaintiff did not offer any evidence that the relief he requested would reduce the likelihood of grading errors. The regrading of an answer by a Superior Court judge would not lessen the inherent subjectivity of grading the essay answers. To the contrary, the risk of arbitrary grading would be likely to increase if a judge were to regrade an answer because: (1) the applicant’s anonymity would be lost; and (2) the scoring judge would not have had the benefit of a calibration session and the experience of grading multiple answers.

Furthermore, the defendants provided evidence, pursuant to their summary judgment burden, of an additional procedural safeguard to protect applicants from arbitrary grading: an unlimited right to retake the bar examination. Most courts have found that the right to retake the examination, by itself, provides adequate procedural protection to a bar applicant. See, e.g., Jones v. Board of Commissioners of Alabama State Bar, supra, 1003 (lack of judicial hearing does not violate due process because candidate may take examination up to five times); Lucero v. Ogden, supra, 358; Poats v. Givan, 651 F.2d 495, 497 (7th Cir. 1981) (right to retake examination four times); Tyler v. Vickery, supra, 1104; In re Mead, 372 Mass. 253, 256, 361 N.E.2d 403 (1977), cert. denied, 434 U.S. 858, 98 S. Ct. 182, 54 L. Ed. 2d 131 (1977). As the United States Court of Appeals for the Fifth Circuit reasoned, even if we assume, generously, that one out of every one hundred applicants who fail the bar examination would have passed but for arbitrary grading, the probability that the same applicant would be the victim of a grading error after two examinations is literally one in ten thousand. Tyler v. Vickery, supra.

With one limited exception, every court addressing the question of whether an applicant is constitutionally entitled to a judicial hearing to regrade essay answers on a bar examination has concluded that a state is not obligated to provide such a hearing. See, e.g., Jones v. Board of Commissioners of Alabama State Bar, supra; Lucero v. Ogden, supra, 358; Tyler v. Vickery, supra; In re Mead, supra; Mississippi Board of Bar Admissions v. Applicant F., supra, 384 (“[w]e decline Applicant F’s invitation that we usurp [the bar examiner’s] duties and responsibilities by regrading his examination”); Petition of Pacheco, supra, 604; Loeb v. New York State Bar Board of Law Examiners, supra; McGinn v. State Bar Board of North Dakota, supra, 867; Petition of Wayland, supra, 1387; and other cases cited in annot., Court Review of Bar Examiners’ Decision on Applicant’s Examination, 39 A.L.R.3d 719 (1971 and Sup. 1992). Courts have consistently refused to embark on any inquiry into the integrity of examination results in the absence of clear and unequivocal allegations of probative facts that would establish fraud, imposition, discrimination or manifest unfairness on the part of the bar examiners. See, e.g., Feldman v. State Board of Bar Examiners, 438 F.2d 699, 704 (8th Cir. 1971); Staley v. State Bar of California, 17 Cal. 2d 119, 121, 109 P.2d 667 (1941); In re Reardon, 378 A.2d 614, 618 (Del. 1977); Petition of Pacheco, supra; In re Thorne, 635 P.2d 22, 23 (Utah 1981); Hooban v. Board of Governors of Washington State Bar Assn., supra. In the present case, the plaintiff has not asserted any facts to support such a claim.

Finally, pursuant to the third prong of Mathews, requiring a judicial hearing for the purpose of regrading an applicant’s essay answers would impose a substantial fiscal and administrative burden on the judicial system. As a practical matter, there is a significant risk that virtually every candidate who failed the bar examination, having little to lose, would request a judicial regrading of the examination answers. A flood of biannual petitions would impose an “intolerable burden” on the court system. See Lucero v. Ogden, supra, 358; Tyler v. Vickery, supra, 1105; Whitfield v. Illinois Board of Law Examiners, 504 F.2d 474, 478 (7th Cir. 1974). Such a burden is unjustified if the procedural protections to be gained from such a burden are minimal or nonexistent.

The ultimate balance of the relevant factors compels the conclusion that a judicial hearing for the purposes of regrading the plaintiffs answers on the essay portion of the examination is not necessary to assure fundamental fairness. Consequently, pursuant to our consideration of the factors set forth in Mathews, we conclude that a bar applicant is not constitutionally entitled to such a hearing, and thus the trial court properly denied the plaintiff’s motion for summary judgment and granted summary judgment for the defendants.

III

The plaintiff’s final claim is that the trial court improperly denied his motion to strike the defendants’ special defense of sovereign immunity. The trial court, however, did not predicate its grant of summary judgment for the defendants on the doctrine of sovereign immunity. Consequently, the plaintiff is not aggrieved by the trial court’s denial of his motion to strike the special defense. Furthermore, the defendants have not raised on appeal the issue of sovereign immunity, either as a basis of a cross appeal, or as an alternate ground to sustain the judgment of the trial court. We need not, therefore, consider this issue.

The judgment is affirmed.

In this opinion Callahan, Santaniello and F. X. Hennessy, Js., concurred.

Berdon, J.,

dissenting. The defendants, the Connecticut bar examining committee and its administrative director, have neatly packaged their procedures with what they consider to be checks and balances to ensure that bar examinations are fairly graded. They fail, however, to address one aspect of due process that I consider to be of great importance—the perception of fairness. The plaintiff’s only avenue for review of his essay examination was by the same committee responsible for his original grade, albeit different examiners. Furthermore, the plaintiff was never given the opportunity to confront the examiners in order to explain his position. In short, the review of his essay examination, which is very subjective, is, in the eyes of the applicant, part and parcel of the “Good Ole Boys” club—that is, by the same persons responsible for preparing, establishing the standards for and grading the examination. I do not believe this passes constitutional muster. I conclude that due process requires another level of review.

It is clear that a bar applicant must be afforded the protections of due process under the fourteenth amendment to the United States constitution. Schware v. Board of Bar Examiners, 353 U.S. 232, 238-39, 77 S. Ct. 752, 1 L. Ed. 2d 796 (1957); note, “Admission to the Bar: A Constitutional Analysis,” 34 Vand. L. Rev. 655, 712 (1981). That process, however, must have “the appearance of evenhanded justice which is at the core of due process.” Mayberry v. Pennsylvania, 400 U.S. 455, 469, 91 S. Ct. 499, 27 L. Ed. 2d 532 (1971) (Harlan, J., concurring) (criminal contempt proceedings); L. Tribe, American Constitutional Law (2d Ed. 1988) § 10-16, p. 745.

The facts of the present case underscore why an applicant should be given a postexamination hearing by a board other than the examining committee that administered the examination. The plaintiff, a graduate of Georgetown Law School, a distinguished law school, obtained a converted score of 262.79 on the July, 1989 bar examination, which was below the passing converted score of 264. Two of the plaintiffs twelve essay questions received grades of only one out of a possible seven points. Another essay question received a mere two out of seven. If the plaintiff had received a raw score of one-half point more on any of the essay questions, including any of the above questions on which he only received one or two out of a possible seven points, he would have obtained the required converted score of 264. The diminutive value of one half of one point of a total of eighty-four possible points on a subjective examination is obvious.

The plaintiff claims that errors were made in the grading of his essay questions and that the grading process was “arbitrary and capricious.” In opposition to the defendants’ motion for summary judgment, the plaintiff submitted the questions and his answers. The majority concedes, as it must, that the essay questions are subjective. And in the field of jurisprudence, that subjectivity is at its highest. I take judicial notice of the fact that the “right” answers in the law today may be the wrong answers for tomorrow. For example, the “separate-but-equal” doctrine endorsed by the United States Supreme Court in Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896), which segregated African-Americans, would not be tolerated as a right answer today. Nor would we accept today as passing constitutional muster a regulation that prohibited women from practicing law as the United States Supreme Court held in Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 21 L. Ed. 442 (1873).

Given the fact that essay examinations are extremely subjective, that the plaintiff’s converted score of 262.79 missed the mark by a mere one half of 1 percent, and that he was never given an opportunity to argue his position directly to the examiners who reviewed his initial score, it is understandable why he or any other person in his position would perceive that those who judged his examination were not evenhanded and that the system is not fair.

The majority, however, has a bottom line answer to this due process claim—that is, the plaintiff and others similarly situated can always retake the examination. I cannot accept this bottom line. In response to a similar argument, the Fourth Circuit Court of Appeals replied “once is enough.” (Emphasis added.) Richardson v. McFadden, 540 F.2d 744, 752 (4th Cir. 1976) (“To our knowledge, a person is not required by any state to repeatedly demonstrate his competence to practice law. The rule is: once is enough. And the reason for the rule is that it takes work, effort, and, nowadays, money to prepare for a bar examination. Moreover, the license is deemed of sufficient value that delay in getting it is an injury.”). I am sure that this sentiment would be echoed by most law school graduates, even those who have been admitted to the bar.

Accordingly, I would reverse the trial court’s granting the defendants’ motion for summary judgment and remand the matter for further proceedings.

       The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       The defendant had failed the exam on at least two occasions prior to the July, 1989 exam. He does not contest, however, the procedures for grading his examinations on the occasions prior to the July, 1989 examination.

       Practice Book § 390 provides in relevant part: “The court will not render declaratory judgments upon the complaint of any person . . . (d) unless all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof.”

       The plaintiff claims that, because the defendants’ answer does not deny his allegations that he passed the February, 1990 bar examination, he was entitled to summary judgment on that claim. Although the trial court did not address this issue in its memorandum of decision on the motions for summary judgment, the plaintiff’s claim is without merit.
      The plaintiff never filed an amended petition to include the February, 1990 bar examination. Consequently, when the defendants filed their answer to the plaintiff’s petition, they responded to all of the allegations contained in the petition. That petition asserted claims related to the July, 1989 examination only and, therefore, the defendants could not have answered a claim regarding the February, 1990 examination that was not included in that petition.

       The plaintiff also appears to claim in his reply brief that the trial court improperly concluded that it lacked subject matter jurisdiction over the plaintiff’s declaratory judgment claim. Absent exceptional circumstances, we will not review claims raised for the first time in an appellant’s reply brief. See Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 716, 535 A.2d 799 (1988); Clark v. Gibbs, 184 Conn. 410, 420, 439 A.2d 1060 (1981). An appellant’s failure to raise a claim until its reply brief does not give the appellee a proper opportunity to respond. DeLucia v. Burns, 11 Conn. App. 439, 444, 527 A.2d 1234, cert. denied, 205 Conn. 803, 531 A.2d 935 (1987). We therefore conclude that this issue is not properly before this court.

       The answers to the multistate are scored by computer. The raw score equals the number of questions answered correctly out of the two hundred questions. The Multistate Bar Examining Committee then scales the raw score to compensate for any degree of difficulty of the test in comparison to prior administrations of the multistate in previous years. The defendants use the multistate scaled score in calculating an applicant’s total score for the Connecticut bar examination.

       The Connecticut bar examination is administered twice a year: once in February and once in July. Because the number of candidates that sit for the February examination is significantly lower than the number that sit in July, the defendants sometimes assign only two graders to a particular essay question on the February examination.

       The defendants use a complex mathematical formula to convert the essay scores to the multistate scale. The formula is as follows:
      SS = Xb + Sb/Sa (Rs - Xa) where
      SS = Essay examination score on the multistate scale.
      Xb = Average Connecticut applicant’s multistate score.
      Sb = Standard deviation of Connecticut applicant’s multistate score.
      Sa = Standard deviation of essay portion raw scores.
      Rs = Applicant’s essay portion raw score.
      Xa = Average essay portion raw score.

       Although the plaintiff purports to rely on both the federal and state constitutions, he has failed to brief or analyze independently any state constitutional provision. Consequently, we limit our discussion to the relevant federal constitutional claim. State v. Joly, 219 Conn. 234, 258 n.16, 593 A.2d 96 (1991).
      The fourteenth amendment to the United States constitution provides in relevant part: “No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law . . . .”

       The plaintiff has not claimed that the defendants committed a mathematical error in computing his total score. His claim is simply that he was entitled to a higher score on several of his answers to the essay questions.

       We note that the Fifth Circuit Court of Appeals in Tyler v. Vickery, 517 F.2d 1089, 1104 (5th Cir.), reh. denied, 521 F.2d 815 (5th Cir. 1975), cert. denied, 426 U.S. 940, 96 S. Ct. 2660, 49 L. Ed. 2d 393 (1976), stated the probability that the same applicant would be the victim of a grading error after two examinations is “literally one in a million.” Although we do not profess to any particular acumen for the theory of probabilities, our research reveals that, under the assumptions applied by the Fifth Circuit, the probability of failure is one in ten thousand. See generally R. Epstein, The Theory of Gambling and Statistical Logic (Rev. Ed. 1977) pp. 12-24. We conclude, nevertheless, that a one in ten thousand chance of a grading error does not constitute, as a matter of law, an arbitrary or capricious procedure in violation of the applicant’s due process rights.

       In Richardson v. McFadden, 540 F.2d 744, 752 (4th Cir. 1976), cert. denied, 435 U.S. 968, 98 S. Ct. 1606, 56 L. Ed. 2d 59 (1978), the United States Court of Appeals for the Fourth Circuit stated that it was not persuaded that reexamination is a more effective remedy than judicial review. The court, however, did not analyze whether reexamination satisfies due process, but only concluded that “reexamination is [not] a more effective remedy than review.” Id. No court has cited this statement in Richardson with approval. Moreover, the court did not need to reach that issue, and thus the statement was dicta. See Lucero v. Ogden, 718 F.2d 355, 357 (10th Cir. 1983), cert. denied, 465 U.S. 1035, 104 S. Ct. 1308, 79 L. Ed. 2d 706 (1984).

       The plaintiff also argues that, despite the lack of a statutory or Practice Book provision providing for a right to a judicial hearing for the purpose of regrading his answers, he is nonetheless entitled to this procedure because of an “informal” state history of allowing such hearings. The plaintiff does not cite, however, nor does our research uncover, any case in which a court regraded an applicant’s answers. Although we have reviewed the defendants’ denial of a candidate’s application for admission on character grounds; see, e.g., Fairfield Bar Committee v. Esterman, 174 Conn. 548, 392 A.2d 452 (1978); In re Application of Dinan, 157 Conn. 67, 244 A.2d 608 (1968); we have not inquired into the defendants’ decision that a given applicant is not minimally competent to practice law in Connecticut. Consequently, we decline to hold that the plaintiff is entitled to a proceeding that simply does not exist, and has not existed, under our law.

       On the February, 1990 bar exam he received a score of 260.67.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Willis F. Zieger v. Village Brook Plaza Limited Partnership et al.
    (14527)
    Peters, C. J., Callahan, Borden, Berdon and Katz, Js.
    Argued December 9, 1992
    decision released February 9, 1993

      Michael D. O’Connell, for the appellant (defendant New England Savings Bank).

      Thomas F. McGarry, for the appellee (plaintiff).
   Per Curiam.

This is a mortgage foreclosure action in which the defendant New England Savings Bank (bank) appeals from a judgment of foreclosure by sale rendered by the trial court, Koletsky, J. The judgment of foreclosure rested on the previous resolution by the trial court, Leuba, J., of a priority dispute between two mortgagees of the property, the plaintiff, Willis F. Zieger, and the bank. The court, Leuba, J., had resolved that dispute by granting a motion for summary judgment filed by Zieger and denying a similar motion filed by the bank. The bank appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

At issue is the propriety of the rulings on the two motions for summary judgment regarding priorities. The bank claims that the trial court, Leuba, J., improperly applied the doctrine of res judicata in granting Zieger’s motion for summary judgment. We agree.

In its ruling, the trial court noted that this foreclosure action “involves the same parties and the same documentation as the case of New England Savings Bank v. Village Brook Plaza Limited Partnership, Docket No. 51 53 44 in the Superior Court for the Judicial District of New London at New London.” Eight months earlier, the same trial judge had, in that case, ruled on motions for summary judgment filed by Ziéger and the bank that were essentially identical to the summary judgment motions in this case, and granted Zieger’s motion. That case, however, has not yet gone to final judgment.

In this case, the trial court viewed the question before it as “whether or not the issue of priorities having been previously determined is now res judicata as to the parties herein.” The court concluded: “All parties had a full opportunity to argue this issue in the previous case. Because of that the court finds . . . the prior determination of the matter of priorities to be res judicata as to the parties involved in the Motions for Summary Judgment. Gionfriddo v. Gartenhaus Cafe, 15 Conn. App. 392 [546 A.2d 284 (1988), aff’d, 211 Conn. 67, 552 A.2d 540 (1989)]; Corey v. Avco-Lycoming Division, 163 Conn. 309, 317 [307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 (1973)].” Accordingly, the court granted Zieger’s motion and denied the bank’s motion.

We first note that, although the court in this case took judicial notice of the file in the first case, it did not, either explicitly or implicitly, incorporate by reference its memorandum of decision in the first case. Thus, it cannot be said that in this case the court separately considered the legal issues involved and resolved them by adopting the first memorandum of decision as applicable to and dispositive of the issues involved in this case. Instead, the court rested its decision in this case solely on the doctrine of res judicata. That is clear, not only from the specific language of the trial court’s memorandum of decision, but from its citations to the Corey and Gionfriddo cases, both of which involve the doctrine of res judicata.

It is axiomatic, however, that the application of the doctrine of res judicata requires the existence of a valid final judgment. See, e.g., Beccia v. Waterbury, 192 Conn. 127, 132, 470 A.2d 1202 (1984); Wade’s Dairy, Inc. v. Fairfield, 181 Conn. 556, 559, 436 A.2d 24 (1980). This rule applies whether we view the trial court’s decision as resting on the issue preclusion aspect of the doctrine; Scalzo v. Danbury, 224 Conn. 124, 127-28, 617 A.2d 440 (1992); or the claim preclusion aspect of the doctrine. See Corey v. Avco-Lycoming Division, supra, 317.

In this case, the previous decision upon which the trial court rested its application of the doctrine of res judicata was not final. The court, therefore, was incorrect in applying the doctrine.

The judgment is reversed and the case is remanded for further proceedings according to law.

       The other defendant is the named defendant, Village Brook Plaza Limited Partnership, the owner of the equity of redemption.

       For this reason, we decline the plaintiffs invitation to take judicial notice of the decision in the other case and treat it as if it were a full decision on the merits of the motions for summary judgment. We therefore do not review those merits as presented in the briefs of the parties in this case.


author: Katz, J.

text:
    State of Connecticut v. Douglas W. Buster
    (14545)
    Peters, C. J., Callahan, Borden, Berdon and Katz, Js.
    Argued December 1, 1992
    decision released February 9, 1993

      Michael A. Fitzpatrick, special public defender, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and John Smriga, assistant state’s attorney, for the appellee (state).
   Katz, J.

The defendant, Douglas W. Buster, appeals from the judgment of the Appellate Court affirming the trial court’s ruling allowing the introduction into evidence of certain portions of a witness’ out-of-court written statement. After a jury trial, the defendant was convicted of manslaughter in the first degree in violation of General Statutes § 53a-55a (a) and carrying a pistol without a permit in violation of General Statutes §§ 29-35 (a) and 29-37 (b). On appeal to the Appellate Court, the defendant claimed that, contrary to State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), the trial court had improperly admitted into evidence certain statements of a nonparty witness contained in the written statement of another witness. The Appellate Court, however, concluded that the statements had been properly admitted by the trial court as a prior inconsistent statement under the three-pronged Whe lan test, and affirmed the judgment. State v. Buster, 27 Conn. App. 263, 273, 606 A.2d 9 (1992).

We granted the defendant’s petition for certification limited to the following two issues: (1) “Was the Appellate Court correct in holding that the trial court properly admitted into evidence certain remarks attributed to a nonparty witness contained in the written statement of another witness, pursuant to State v. Whelan, [supra]?” and (2) “If the ruling was erroneous, was it harmful?” State v. Buster, 222 Conn. 909-10, 608 A.2d 692 (1992). We conclude that the trial court improperly admitted the remarks, but that their admission was harmless. Accordingly, the judgment of the Appellate Court is affirmed.

The relevant facts were stated by the Appellate Court in its opinion. “The victim, Robert J. Cioppa, Jr., and a friend, Gary Lester, drove into the parking lot of a Bridgeport housing project at about 12:30 a.m. on March 4, 1989, seeking to buy crack cocaine. Cioppa and Lester had bought drugs there twice earlier in the evening of March 3, 1989. Upon driving into the lot, Cioppa was approached by a drug dealer named Sean, who had sold him narcotics earlier that night. The defendant then approached Cioppa’s car window in an attempt to sell him drugs. When Cioppa indicated that he wanted to buy drugs from Sean instead, the defendant drew a gun.

“Behind Sean and the defendant was Ronell Hanks, with whom Cioppa had attended high school. Cioppa asked Hanks to intervene in order to prevent the defendant from doing anything with the gun. When the defendant threatened to shoot Hanks, Cioppa attempted to drive away. The defendant, however, fired at Cioppa, fatally wounding him. From the car’s front passenger seat, Lester backed the vehicle into the street and steered it along the road until he could get behind the steering wheel and drive to Griffin Hospital in Derby, where Cioppa was pronounced dead.

“At trial, the state presented evidence from several witnesses that it was the defendant who fatally shot Cioppa. Lester testified that although he did not see the defendant’s face, the assailant was large and heavyset. Lester testified that one shot was fired from a weapon with a large barrel between seven and eight inches long. Ala Carter, a resident of the housing project, testified that she saw a car enter the parking lot and heard its driver ask for drugs. She testified that the driver was not seeking out the defendant, who ran to the car, and that just prior to the shooting, she heard the defendant tell Hanks to ‘mind [his] business.’ Carter testified that the defendant shot the driver with a small gun after being rebuffed in his attempt to sell him drugs. She testified that she did not see anyone else there with a gun other than the defendant. Later, the defendant elicited testimony showing that Carter was not in the parking lot at the time of the shooting.

“Jared Fleming also testified that he saw Cioppa’s car enter the lot and heard the discussion between the defendant and Cioppa. He testified that both the defendant and Hanks had guns, and that he heard a gunshot but did not see who shot Cioppa. At this point, pursuant to State v. Whelan, supra, the court admitted into evidence, as a prior inconsistent statement, a written statement Fleming had given to the police subsequent to the shooting. In the statement, which mirrored Carter’s testimony, Fleming said he heard the defendant threaten to kill Cioppa and then watched as the defendant shot him. He did not tell the police, however, that Hanks had a gun.

“Tremayne Newsome testified that he saw a car enter the lot and that a conversation that he could not hear ensued between Hanks, the driver and the defendant, who had a gun. Newsome testified that after going into his house, he heard a gunshot outside. At this point, pursuant to State v. Whelan, supra, the court admitted into evidence, as a prior inconsistent statement, a written statement Newsome had given to the police. The content of Newsome’s statement mirrored Carter’s testimony and the statement Fleming had given to the police. In his statement, Newsome said he was outside his house when he saw the defendant and Cioppa arguing about drugs. He said that after he went inside his house, he opened the door, looked out and saw the defendant draw a gun and shoot Cioppa. Hanks also testified that it was the defendant who shot Cioppa. Hanks testified that he had walked away from the defendant and Cioppa’s car after the defendant pointed a gun at him and said he would shoot him.

“In his case-in-chief, the defendant presented evidence to show that it was Hanks who shot Cioppa. Beverly Bass testified that she witnessed the incident from a window in the nearby apartment of a friend she was visiting that night. Bass testified that she saw a car drive into the lot and heard an argument about drugs and money. She testified that she heard shots and saw Hanks fire a gun. At the time of the shooting, Bass testified, the defendant was standing near a garbage dumpster, three to four feet from Cioppa’s car. She testified that after the shooting, the defendant ran from the scene with a woman named Clara Cummings. Bass did not see a gun in the defendant’s hand. [She added that following the incident Hanks fired several additional shots from behind a building. Bass testified that she did not share any of this information with the police because of threats Hanks had made to her. Bass also disputed Carter’s presence in the parking lot at the time of the shooting.]

“Cummings testified that she and the defendant were near the dumpster at about 11:30 p.m., when she saw Hanks, armed with a gun, approach a car that entered the lot. Cummings testified that she heard a shot while she was hiding behind the dumpster and that afterward she and the defendant fled. She testified that the defendant did not have a gun and that he was within her view when Cioppa was shot.

“Another witness, Jermaine Kenney, testified that he was nearby on Trumbull Street talking with a young lady when he saw the defendant running from the parking lot while Hanks was firing a gun. Finally, the defendant elicited testimony from Kenneth Jones that three days after the defendant’s arrest, he and Hanks drove to a wooded area off Alba Avenue, where Hanks retrieved a long barreled gun he then sold to Jones for $50. Jones’ mother, Rita Holmes, then testified that she found a gun in her home and disposed of it in the household garbage.” State v. Buster, supra, 27 Conn. App. 265-68.

The defendant also called Hanks to the stand. Hanks admitted that he had been present in the parking lot when a car had pulled in. He approached and conversed with the driver. He denied having had any argument and disclaimed any responsibility for the homicide. Hanks gave two separate statements to the police implicating the defendant. On cross-examination, he explained that prior to the shooting, Cioppa had asked him to “get my friend,” in response to which the defendant had grabbed Hanks, pointed the gun at him and said “Ronell ain’t got nothing to do with this, I’ll shoot him too.” Hanks testified that as he had walked away, he heard a shot, heard the car pull away striking a van, and heard the defendant continue shooting.

To rebut the defendant’s claim that Hanks was the assailant, the state called Anthony Michael Brown. Brown testified that during the early morning hours of March 4,1989, he had been at home when he heard gunshots, but that he had not seen the shooting. Brown could not recall much about a meeting with the police at his home on the Sunday after the shooting, nor could he recall what he had told the police in his written statement. After refreshing his recollection by reviewing his statement, Brown remembered having told the police that he had seen a long grayish colored .38 revolver in a bag at his home on the Sunday after the shooting. He also recalled having told the police that a conversation regarding the gun had taken place in the presence of the defendant, the defendant’s cousin, Kenneth “Dimpy” Buster (Dimpy), and his own cousin, Jehu. Brown repudiated the statement, however, claiming he had given it while under the influence of narcotics and in response to police threats. He claimed that he had never seen a gun and that the three named individuals had not been to his home on that Sunday.

At this point, the state sought to introduce Brown’s written statement pursuant to State v. Whelan, supra. The pertinent portions of the statement are as follow:

“Q. Did you see a gun?
“A. Yes, I think it was on Sunday.
“Q. What did the gun you saw look like?
“A. It was a long grayish color .38, it was in a bag.
“Q. Who was it that showed you the gun?
“A. Dimpy, [the defendant’s] cousin, had it.
“Q. Is the gun now or was it ever in your house?
“A. It [is] not in my house, the only time it was in my house was when Dimpy showed it to me, and he said he was going to bury it at Samuel Johnson School.
“Q. Why was Dimpy going to bury the gun?
“A. Because he didn’t want [the police] to get it, it was the gun used to shoot the guy.
“Q. Who was there when you saw the gun, beside you and Dimpy?
“A. My cousin Jehu and [the defendant].
“Q. Have you heard anything further about the gun since you saw it?
“A. Well, while Dimpy was at my house with it, after he had said he was going to bury it, he changed his mind and said he was going to put it in Ronell Hanks’ car.
“Q. Why was Dimpy going to put the gun in Ronell’s car?
“A. I guess so you all, could find it in there, so Ronell could be in ... trouble.
“Q. So then [the defendant] and your cousin Jehu were there when Dimpy had the gun and said how he was going to hide it.
“A. Yes.”

Outside the presence of the jury, the defendant objected to the introduction of the remarks attributable to Dimpy and claimed that they constituted hearsay. In response, the state argued that the remarks attributable to Dimpy were not hearsay, but rather were admissible to show their effect on the defendant and to explain his subsequent conduct. The defendant, upon his arrest, had given a written statement to the police that implicated Hanks in the shooting and reported that the gun Hanks had used might be located in Hanks’ car. According to the state, Dimpy’s alleged remarks had given meaning to the defendant’s otherwise innocuous statement regarding the location of the gun.

Following a brief recess, the trial court ruled that the remarks attributable to Dimpy were admissible to establish “the state of mind of the defendant, and to explain [the defendant’s] subsequent statement” to the police. Hie trial court also ruled that the probative value of the evidence outweighed any prejudice to the defendant. As to the balance of Brown’s written statement, the court held that it was admissible for its truth. The defendant’s exceptions to the court’s ruling were duly noted.

When the jury returned, the trial court reiterated its ruling and explained that the statements attributable to Dimpy were being offered to indicate the state of mind of the defendant and to explain the defendant’s subsequent conduct. At the conclusion of the evidence the court explicitly charged the jury regarding the permissible use of Brown’s written statement.

In this court, the defendant claims that the trial court improperly admitted the remarks in Brown’s written statement in which Brown stated his belief, opinion or surmise (1) that Dimpy had been planning to bury the gun so that the police would not get it and (2) that Dimpy had later decided to place it in Hanks’ car to get Hanks in trouble. Specifically, the defendant argues that the trial court should not have admitted Brown's responses to the questions, “Why was Dimpy going to bury the gun?” and “Why was Dimpy going to put the gun in Ronell’s car?” The defendant claims that the answers to these two questions violate the personal knowledge prong of State v. Whelan, supra, and, therefore, are inadmissible.

The admission of prior inconsistent statements in writing for substantive purposes is governed by State v. Whelan, supra, 753. See also State v. Grant, 221 Conn. 93, 99, 602 A.2d 581 (1992). In Whelan, we held that such a statement is admissible for substantive purposes if the declarant: (1) signs the statement; (2) has personal knowledge of the facts stated; and (3) testifies at trial and is subject to cross-examination. State v. Whelan, supra; State v. Grant, supra.

“The rationale for that rule is that its requirements— that the declarant testify and be subject to cross-examination, that he have personal knowledge of the facts stated, and that the statement be in writing and signed by him—justified ‘an exception to the hearsay rule . . . to allow the trial court to admit for substantive purposes prior inconsistent statements given under prescribed circumstances reasonably assuring reliability.’ ” State v. Montanez, 219 Conn. 16, 26, 592 A.2d 149 (1991), quoting State v. Whelan, supra, 752. “[The] court has previously adopted exceptions to the hearsay rule where the statements are made under conditions deemed to render them equal in reliability and trustworthiness to those made under the sanction of an oath and the test of cross-examination. Cherniske v. Jajer, 171 Conn. 372, 376-77, 370 A.2d 981 (1976); General Motors Acceptance Corporation v. Capitol Garage, Inc., 154 Conn 593, 597, 227 A.2d 548 (1967). State v. McClendon, 199 Conn. 5, 10, 505 A.2d 685 (1986).” (Internal quotation marks omitted.) State v. Whelan, supra. “Substantive admissibility of prior oral statements [however] presented] a hazard of error in reporting and inerease[ed] the temptation and opportunity for fabrication and distortion by witnesses called to report them,” and were for that reason excluded from the rule. Id., 752-53. We noted that “[s]uch oral statements, especially when other persuasive circumstantial evidence of guilt exists, would be inordinately difficult for the declarant to explain and might be critical in convincing the trier of the defendant’s guilt.” Id., 753.

Of significance to this court in our departure from the common law rule prohibiting the substantive use of prior inconsistent statements was the fact that “the oath is not as strong a guaranty of trustworthiness as it once may have been”; id., 749; and the fact that “when the declarant is in court, under oath, and subject to cross-examination before the factfinder concerning both his out-of-court and in-court statements, ‘the usual dangers of hearsay are largely nonexistent. . . .’” Id., 750-51, quoting California v. Green, 399 U.S. 149, 155, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970). This is true because, “ ‘[i]f, from all that the jury see[s] of the witness, they conclude that what he says now is not the truth, but what he said before, they are none the less deciding from what they see and hear of that person and in court.’ ” State v. Whelan, supra, 750, quoting DiCarlo v. United States, 6 F.2d 364, 368 (2d Cir.), cert. denied, 268 U.S. 706, 45 S. Ct. 640, 69 L. Ed. 1168 (1925). “The jury can, therefore, determine whether to believe the present testimony, the prior statement, or neither. Moreover, prior statements are, necessarily, made closer to the event in question, when memories are fresher and when there is less likelihood that the statement is the product of corruption, false suggestion, intimidation or appeals to sympathy.” State v. Whelan, supra.

By asserting that the statements attributable to Dimpy were only Brown’s opinions or assumptions, the defendant essentially mounts a challenge to the trial court’s ruling based on the second prong of Whelan. The Appellate Court appears to have concluded that the objectionable statements complied with the Whelan rule, were admissible to show state of mind, or, in any event, constituted harmless error. State v. Buster, supra, 27 Conn. App. 273. In applying the principles of State v. Grant, supra, the Appellate Court concluded that, “even if the statements at issue were Brown’s and not [Dimpy’s], Brown need not have had personal knowledge of their underlying facts. Brown need not have witnessed the shooting of Cioppa, and he need not have had personal knowledge that [Dimpy] intended to implicate Hanks by putting the gun in his car. Further, because Brown signed the statement he gave to the police and was cross-examined at trial, his statement was properly admitted as a prior inconsistent statement under the three-pronged Whelan test. . . .Finally, the remarks at issue were not offered for the truth of what they assert, but to show the state of mind of the defendant at the time and to explain his subsequent conduct. As such, they were not hearsay and were properly admitted. The court clearly instructed the jury as to the purposes for which the remarks were admitted not once, but twice. Under these circumstances, we find no manifest injustice affecting the fairness or integrity of the defendant’s trial.” (Citations omitted.) State v. Buster, supra, 27 Conn. App. 273.

In State v. Grant, supra, we considered the admissibility of the out-of-court, tape-recorded statements of two witnesses that implicated the defendant in a fatal shooting. We held that the “personal knowledge” prong of the Whelan rule does not require that the declarant have witnessed the commission of the crime that is the subject of the prior inconsistent written or recorded statement. Id., 99. We concluded that the circumstances therein reasonably assured the reliability of the statements. Id., 100; see also State v. Estrada, 26 Conn. App. 641, 657-58, 603 A.2d 1179, cert. denied, 221 Conn. 923, 608 A.2d 688 (1992), in which the Appellate Court reiterated that “the declarant must have personal knowledge of the facts contained within the statement sought to be introduced,” though the declarant need not have witnessed the commission of the crime. The court observed that the declarant’s “presence or absence at the scene of the crime is merely one factor that may be considered in determining whether the declarant has . . . personal knowledge” of the facts contained within the statement. Id., 658.

In reviewing the remarks contained in Brown’s written statement, we conclude that Brown was not repeating assertions made by Dimpy, but rather was expressing his own assumptions. For instance, Detective David Silva asked, “Why was Dimpy going to bury the gun?” Brown responded, "Because he didn’t want [the police] to get it, it was the gun used to shoot the guy.” Later, Silva asked, "Why was Dimpy going to put the gun in Ronell’s car?” Brown responded, “I guess so you all, could find it in there, so Ronell could be in ... trouble.” These remarks cannot be attributed to Dimpy. The most that can be said of these remarks is that they are Brown’s opinions.

This court in State v. Whelan, supra, 752, created an exception to the hearsay rule "to admit for substantive purposes a prior inconsistent statement given under prescribed circumstances reasonably assuring reliability.” As even the defendant acknowledged, this exception allowed the introduction of certain responses in Brown’s statements, for example: “[The gun is] not in my house, the only time it was in my house was when Dimpy showed it to me, and he said he was going to bury it at Samuel Johnson School”; and, “Well, while Dimpy was at my house with it, after he had said he was going to bury it, he changed his mind and said he was going to put it in Ronell Hanks’ car.” The rule of State v. Whelan, supra, sanctions only those portions of an out-of-court statement to which the witness could testify while on the stand. The two answers contained within Brown’s statement to which the defendant objected constitute improper opinion testimony by a witness who lacked personal knowledge of the facts asserted. He would not have been permitted to offer the opinions in person in front of the jury because he would not have been competent to give such testimony. Johnson v. Newell, 160 Conn. 269, 277, 278 A.2d 776 (1971). The fact that these assertions were expressed in a written statement does not serve to enhance their admissibility. Therefore, the trial court should not have allowed their introduction into evidence.

The defendant does not claim that the trial court’s improper ruling deprived him of any constitutional right. “Because his claim is evidentiary and not constitutional, the defendant bears the burden of establishing that the trial court’s erroneous ruling was harmful to him in that it probably affected the outcome of the trial.” (Internal quotation marks omitted.) State v. Paulino, 223 Conn. 461, 478, 613 A.2d 720 (1992). Specifically, “the defendant must demonstrate that it is more probable than not that the erroneous action of the court affected the result.” (Internal quotation marks omitted.) State v. Tatum, 219 Conn. 721, 738, 595 A.2d 322 (1991). The defendant has not satisfied this burden.

Even if Brown’s statements concerning Dimpy not wanting the police to find the gun, and his placing of it in Hanks’ car to get him into trouble had been redacted from the exhibit, there would still remain that portion of Brown’s statement that established that a conversation had occurred in the defendant’s presence during which Dimpy stated that he was going to bury the gun on the grounds of a school, but later changed his mind and decided to put it in Hanks’ car. On the basis of this evidence alone, the jury would have been free to draw the reasonable, logical and common sense inference that the defendant and Dimpy envisioned a plan by which blame could be attributed to Hanks. The improperly admitted portions of Brown’s statement are his own interpretation of Dimpy’s remarks and they suggest nothing more. Once the portion concerning the burial of the gun and the placing of it in Hanks’ vehicle was before the jury, it was free to draw this same conclusion.

The defendant’s statement given at the time of his arrest was also offered as part of the state’s rebuttal in order to corroborate the state’s theory that the defendant had been part of a plot to blame Hanks for the killing. In that statement, the defendant told Detective Leo Krusinski that the gun was either in Hanks’ car or in his home. The combination of the properly admitted sections of Brown’s statement that revealed the defendant’s presence at Brown’s home when plans were made to frame Hanks and the defendant’s own written statement that he also believed that Hanks had the gun, strongly suggest that the defense was a fabrication. Certainly the jury could draw the inference that the defendant was part of a plan to dispose of the gun in an effort to conceal his own involvement with the crime. Brown’s inadmissible speculation contributed nothing more than the obvious.

Finally, the defendant presented his defense that Hanks was the assailant through several other independent witnesses. Bass and Kenney testified that Hanks had had a gun and that they had seen him fire it into Cioppa’s automobile. Cummings and Linda King testified that the defendant had been unarmed at the time of the shooting. Jones testified that he had seen Hanks retrieve from a wooded area a gun that Jones later purchased from him. Had the jury wanted to believe that Hanks, and not the defendant, was the assailant, it had ample evidence upon which to make that finding based upon the testimony of witnesses who were not at Brown’s home the night plans were made to frame Hanks. The state’s rebuttal evidence impeached only the defendant and no evidence was offered by the state in rebuttal to challenge any of these other defense witnesses. Therefore, even if the jury might have been skeptical of the defense based upon the improperly admitted portions of Brown’s statement, there remained other defense evidence upon which it could rely. That evidence, moreover, was introduced through witnesses who had not been at Brown’s home and who thus had not been implicated in Dimpy’s apparent plan to frame Hanks. We cannot say, and there has been no serious suggestion made, that the jury rejected all the other defense witnesses solely as a result of Brown’s improperly admitted speculation which, in effect, told the jury nothing more than what it was already free to infer. The improper ruling, therefore, could not reasonably have affected the verdict. State v. Sierra, 213 Conn. 422, 437, 568 A.2d 448 (1990). Under these circumstances, the defendant has failed to establish the harmfulness of the trial court’s ruling.

The judgment is affirmed.

In this opinion the other justices concurred.

       Before the Appellate Court, the defendant also argued that the trial court had abused its discretion by denying the defendant the opportunity to present certain surrebuttal evidence and improperly denied motions for judgment of acquittal because there was insufficient evidence to support the convictions. State v. Buster, 27 Conn. App. 263, 265, 606 A.2d 9 (1992).
      These issues are not within the certified questions and, therefore, will not be reviewed by this court.

       On redirect examination, when asked how he came up with the fabricated story, Brown initially asserted that he had never told the detective that there had been a conversation between anyone. Moments later, he conceded that he may have told the detective about a conversation, although he did not recall doing so.

       The state subsequently introduced the defendant’s written statement as a full exhibit. Significantly, the defendant remarked that “Ronell has the gun that shot the man. It may be in his car, a 1977 Oldsmobile, black with a board in the back that is used as the bumper. The car is unregistered. If the gun is not in his car, it’s in his house.”

       The court stated: “There are some statements which are attributed to a third party in this; and as to those statements, the state is, not claiming for the truth of the matter asserted as they are with objective statements. What he saw for instance is in the statement as you indie—as you heard this before so I’m not surprising you. It’s an indication that he saw a gun. That comes in for the truth of the matter asserted; at least as far as the [state is] concerned. The rest is up to you.
      “But the statements attributed to the gentleman known as Dimpy for instance come in, and are offered by the state strictly to indicate a state of mind of the defendant who was sitting there at the time; and to explain as the state indicates, conduct, which we will get to.”

       The court stated: “Now ladies and gentlemen, despite the general rule on prior inconsistent statements, there are three statements that the Court has treated differently under Connecticut law. There was a claim that Jared Fleming and Tremayne Newsome gave written statements to the police; and that they contained statements somewhat inconsistent with their testimony in court. These statements came into evidence as state exhibits; Exhibit I and Exhibit J to be used substantively for the truth of the matter asserted in them.
      “The state claims that these statements cast doubt on some of the witnesses’ present testimony in court. You will also recall this is testimony in court as to these inconsistencies. You heard counsel refer to the statements as Whelan statements.
      “With regard to these earlier written statements to the police made by Jared Fleming and Tremayne Newsome, the Court is satisfied that the jury should have the right to consider the truth of the fact contained in those statements. Therefore, I charge you that you have the right to believe Jared Fleming, Tremayne Newsome’s present testimony in court; or you may believe the prior written signed statement. Or, you may believe neither. Remember, you are the sole judges in what evidence is to be believed.
      “What I have just said is also true of the statement of Anthony Michael Brown which was introduced by the state on rebuttal which is State’s Exhibit K. The state claims it cast doubt on the witness’ present testimony in court with which it is inconsistent.
      “You will recall the witness’ testimony in court as to the contents of the statement. With the exception of statements contained in Exhibit K, which are attributable to the defendant’s cousin. I believe the name was Dimpy. The Court is satisfied that it may consider the truth of the facts contained in the statement. Therefore, you may believe Mr. Brown’s present testimony in court; or you may believe the prior written signed statement. Or, you may believe neither if you choose.
      “The statements of the defendant’s cousin, Dimpy, since they are hearsay have been offered by the state not to prove whether or not they’re true or false; but only to establish they were made in the presence of the defendant in order to show the state of mind of the defendant; and to explain his subsequent actions. And you have heard argument from the state in that regard.”

       Although Brown could not recall giving the statement, he never contested that the signature on the statement was his and thus the first prong of the Whelan test was not contested.

       Specifically, in State v. Grant, 221 Conn. 93, 602 A.2d 581 (1992), the witness, Billie, had personal knowledge that the victim worked for a rival drug dealer and operated out of a house that was across the street from a location where the defendants also sold drugs. Billie was aware of a feud among the dealers and, in fact, had been told by the defendant “that he was unhappy about ‘green-eyed Dave’s boys’ selling drugs in the . . . area and that ‘he was gonna take somebody out.’ ” Id., 101. “Billie [also] observed the defendant carrying a loaded gun the day before the shooting.” Id., 101-102. When Billie arrived at the scene after the shooting, he observed the defendant standing on the corner smiling. Id., 102.
      The witness, Rice, arrived at the scene following the shooting and discovered that the victim, Albright, had been shot. Shortly thereafter, Rice saw the defendant, who was his cousin, at an apartment not far from the scene of the shooting. The defendant was holding a handgun with an empty clip and told Rice that he had shot and killed Albright. Id.

       Had Brown stated that Dimpy said he had done something with the gun, Brown would have met the “personal knowledge” prong of Whelan and the state could have introduced it to show what Dimpy said. The actual content of Dimpy’s statement, however, could not have come in for substantive purposes unless another hearsay exception applied. Hearsay within hearsay, or double hearsay, can be introduced for the truth of the matter only if it falls within another exception. See State v. Palozie, 165 Conn. 288, 295, 334 A.2d 468 (1973); Brown v. Butler, 71 Conn. 576, 581-82, 42 A. 654 (1899); see generally C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) §§ 11.14.5, 11.8.6.