v. Brown , 2020 COA 106 ( 2020 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
JULY 9, 2020
2020COA106
No. 19CA0485, Bernache v. Brown — Vehicles and Traffic —
Records to Be Kept by Department — Admission of Records in
Court; Evidence — Hearsay
In this proceeding, a division of the court of appeals considers
whether section 42-2-121(2)(c)(II), C.R.S. 2019, allows automatic
admission of a hearsay statement within a traffic accident report.
The division concludes that the district court misinterpreted the
statute when it admitted a witness’s hearsay statement contained
in the report where the statement did not independently satisfy a
hearsay exception. Because the division reverses the judgment and
remands the case for new trial where a new jury will decide the
matter, it does not consider the claim that a juror committed
misconduct.
COLORADO COURT OF APPEALS 2020COA106
Court of Appeals No. 19CA0485
El Paso County District Court No. 17CV31772
Honorable Chad Clayton Miller, Judge
Celena Esther Jean Bernache,
Plaintiff-Appellant,
v.
Gary Brown,
Defendant-Appellee.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division A
Opinion by JUDGE FOX
Bernard, CJ., and Berger, J., concur
Announced July 9, 2020
McDivitt Law Firm, P.C., David E. McDivitt, Edward Lomena, Colorado Springs,
Colorado, for Plaintiff-Appellant
Park & Metz LLP, Randy S. Metz, Carbondale, Colorado, for Defendant-Appellee
¶1 In this car accident litigation, plaintiff Celena Esther Jean
Bernache appeals a jury verdict in favor of defendant Gary Brown,
arguing that the district court erroneously admitted a hearsay
statement within a traffic accident report (the report). She also
argues that a juror’s failure to disclose her relationship with a fact
witness was misconduct. We conclude that the district court
erroneously admitted the hearsay statement within the report, and
the error was not harmless. So we reverse and remand the case for
a new trial. Because Bernache’s juror misconduct claim will not
arise in the new trial, we do not consider it.
I. Background
¶2 On November 5, 2015, Bernache was driving south on
Highway 85 toward Fountain, Colorado, with her daughter and
grandson. Brown, also driving south on Highway 85 and to the left
of Bernache’s vehicle, hit the median and struck Bernache’s rear
passenger door and wheel well. The parties dispute why Brown hit
the median. Brown, who has no independent recollection of the
collision, insists he suffered a sudden medical emergency while
Bernache alleges he fell asleep.
1
¶3 Fountain Police Department Corporal Galen Steele did not
witness the accident but later responded to the accident and spoke
with an unidentified witness who said that, just before he struck
the median, Brown had “‘[s]tiffen[ed] up’ and lean[ed] towards the
right like he was having a heart attack.” The witness left the scene
before Steele could collect identifying information, but he included
the witness’s statement in his report.
¶4 Bernache filed this lawsuit on July 20, 2017, and later filed a
motion in limine to exclude the unidentified witness’s statement
within the accident report from the trial. Broadly interpreting
section 42-2-121(2)(c)(II), C.R.S. 2019 — which states, among other
things, that official state records are statutory exceptions to
Colorado’s hearsay rule, CRE 802 — the district court ruled that
the report was admissible in its entirety. Relying on the pretrial
ruling, Bernache stipulated during trial to the admission of the
report and did not renew her objection.
¶5 During jury selection, prospective juror F.L. disclosed knowing
Steele through her husband. However, she said that her husband’s
relationship with Steele would not “color [her] thinking” about his
testimony. F.L. was a juror during the trial.
2
¶6 After a two-day trial, the jury found in Brown’s favor. During
a later discussion about the trial, F.L. allegedly told Bernache’s
counsel that she gave Steele’s testimony considerable weight
because she knew how he thought and worked. Bernache now
appeals.
II. Unidentified Witness Statement
¶7 Bernache first argues that the district court erred by admitting
the unidentified witness’s statement. Specifically, Bernache argues
that (1) the witness statement is hearsay and does not satisfy a
hearsay exception; and (2) the district court misinterpreted section
42-2-121(2)(c)(II) by ruling that the witness statement was
admissible. We agree and remand the case for a new trial.
A. Preservation, Waiver, and Invited Error
¶8 Brown argues that Bernache failed to preserve her hearsay
argument because she did not contemporaneously object to the
court’s admission of the entire report at trial. Brown also argues
that Bernache waived her right to appeal this issue because she
stipulated to the report’s admission during trial, thereby inviting
any error by referencing the witness statement in her opening
argument.
3
¶9 A court’s definitive ruling on a motion in limine preserves the
issue for appeal. CRE 103(a); see also Uptain v. Huntington Lab,
Inc., 723 P.2d 1322, 1330-31 (Colo. 1986) (pretrial ruling on a
motion in limine sufficiently preserves an issue for appeal); People v.
Mattas, 645 P.2d 254, 260 (Colo. 1982) (“Preservation of a
defendant’s right to challenge a trial court’s evidentiary rulings
requires a [pretrial] motion to suppress the evidence or an objection
at trial to its introduction.”). A party abiding by the court’s order
need not renew an objection at trial to preserve the issue for appeal.
Bennett v. Greeley Gas Co., 969 P.2d 754, 758 (Colo. App. 1998).1
¶ 10 Waiver is “the intentional relinquishment of a known right or
privilege.” People v. Rediger, 2018 CO 32, ¶ 39 (quoting Dep’t of
Health v. Donahue, 690 P.2d 243, 247 (Colo. 1984)). To hold a
1 But when a party violates the court’s pretrial order, common
sense militates in favor of requiring a contemporaneous objection.
See People v. Dinapoli, 2015 COA 9, ¶ 22. In this situation, an
objection does not merely revive an argument that the court has
already rejected. Id. Instead, an objection serves to alert the trial
court to the violation of the pretrial order and to the objecting
party’s argument against the other party’s action. Id. Indeed, not
requiring a contemporaneous objection would create an undesirable
incentive: the party who received a favorable pretrial ruling could sit
silently while the ruling was violated at trial and then, if the party
received an adverse verdict, move for a new trial based on the error.
Id.4
party waived objection to an error, a court must find some record
evidence that the defendant intentionally relinquished a known
right, Rediger, ¶ 39, indulging “every reasonable presumption
against waiver” and examining the totality of the circumstances
surrounding a party’s conduct (or lack thereof), People in Interest of
A.V., 2018 COA 138M, ¶ 13 (quoting Rediger, ¶ 39).
¶ 11 The doctrine of invited error prevents a party from complaining
on appeal of an error that he or she has invited or injected into the
case. Rediger, ¶ 34. The doctrine applies in “situations where an
error was caused by a party’s affirmative, strategic conduct and not
by a party’s inaction or inadvertence.” People v. Garcia, 2018 COA
180, ¶ 7.
¶ 12 Here, the district court definitively ruled that the report —
including the hearsay from the unidentified witness — was
admissible, and the court did not indicate it was willing to
reconsider its ruling at trial. Because Bernache did not need to
renew her objection to the witness statement to preserve it, she had
nothing to gain by resisting the court’s admission of the statement
at trial. The witness statement was a key component of Brown’s
defense, and prudent trial strategy — knowing the court had
5
approved the statement’s admission — favored Bernache addressing
the statement preventatively. Thus, under the totality of the
circumstances, Bernache did not intentionally relinquish her right
to appeal the court’s admission of the witness statement by
stipulating to it at trial. Nor did she invite error by addressing the
witness statement during opening argument. To hold otherwise
would “undermine the benefits provided by the motion in limine
procedure.” Uptain, 723 P.2d at 1330.
¶ 13 Accordingly, we conclude that the court’s ruling on Bernache’s
pretrial motion in limine preserved her hearsay objection, and that
Bernache did not waive her right to appeal or invite error during the
trial. See id. at 1330-31; see also Rediger, ¶ 3.
B. The Record Supports the Trial Court’s Finding that the
Witness Statement Did Not Qualify as a Hearsay Exception
under the Colorado Rules of Evidence
1. Applicable Law and Standard of Review
¶ 14 Hearsay is any “statement other than one made by the
declarant while testifying at the trial or hearing, offered in evidence
to prove the truth of the matter asserted.” CRE 801(c). CRE 802
prohibits the admission of hearsay unless the statement meets a
rule-based or statutory exception. When a statement — such as
6
the report at issue here — contains multiple layers of hearsay, the
trial court must analyze each layer separately to determine whether
a recognized exception applies. CRE 805; People v. Phillips, 2012
COA 176, ¶ 101.
¶ 15 As is relevant to our analysis, a hearsay statement is
admissible as a present sense impression under CRE 803(1), an
excited utterance under CRE 803(2), or a public record or report as
defined under CRE 803(8). A present sense impression is a
statement describing an event made while the declarant was
perceiving the event. CRE 803(1). An excited utterance is a
statement that “relat[es] to a startling event or condition [and is]
made while the declarant was under the stress of excitement
caused by the event or condition.” CRE 803(2).
¶ 16 CRE 803(8)(B) authorizes the admission of certain public
records and reports, even though they are hearsay, unless the
source of information or other circumstances indicate a lack of
trustworthiness. This court has recognized that police reports are
admissible under CRE 803(8). See, e.g., Kelln v. Colo. Dep’t of
Revenue, 719 P.2d 358, 360 (Colo. App. 1986). But statements are
7
not admissible under Rule 803(8) solely because they are contained
in a police report.
¶ 17 While the report itself may be admissible, statements made to
the officer who prepared the report are inadmissible unless they
independently meet a hearsay exception. CRE 805; Orth v. Bauer,
163 Colo. 136, 138-40, 429 P.2d 279, 281 (1967) (hearsay
statements and conclusions of police officers in a police report are
not entitled to preferred status and, thus, trial court acted properly
in excluding such evidence); Michael v. John Hancock Mut. Life Ins.
Co., 138 Colo. 450, 456, 334 P.2d 1090, 1094 (1959) (holding that a
report and its “findings, together with the affidavits, were not
admissible and that their hearsay character was not improved by
giving them the status of ‘official records’”); Leiting v. Mutha, 58
P.3d 1049, 1053 (Colo. App. 2002) (excluding hearsay statements
contained in the report of an administrative law judge (citing
Parsons v. Honeywell, Inc., 929 F.2d 901, 907-08 (2d Cir. 1991)));
Quintana v. City of Westminster, 56 P.3d 1193, 1198 (Colo. App.
2002) (affirming exclusion of eyewitness statements attached to
police reports).
8
¶ 18 Steele did not witness the accident. Aside from repeating the
unidentified witness’s statement, the record discloses nothing about
the circumstances under which the witness saw the accident or
relayed the statement to Steele.
¶ 19 We review evidentiary rulings for an abuse of discretion.
Murray v. Just In Case Bus. Lighthouse, LLC, 2016 CO 47M, ¶ 16. A
trial court abuses its discretion if its ruling is manifestly arbitrary,
unreasonable, or unfair, or the court bases its ruling on an
erroneous view of the law or on a clearly erroneous assessment of
the evidence. Front Range Res., LLC v. Colo. Ground Water Comm’n,
2018 CO 25, ¶ 15.
2. Analysis
¶ 20 The witness told Steele that he saw Brown “‘[s]tiffen up’ and
lean towards the right like he was having a heart attack.” Brown
offered this statement at trial as evidence that he suffered a sudden
medical emergency at the time of the accident. Hence, the witness
statement is clearly an out-of-court statement offered for its truth.
See CRE 801(c).
¶ 21 Next, because the witness statement is hearsay within
hearsay, we must consider if it qualifies as a hearsay exception
9
independent of the fact that it appears in a police report. See CRE
805; Orth, 163 Colo. at 138-40, 429 P.2d at 281; Michael, 138 Colo.
at 456, 334 P.2d at 1094; Leiting, 58 P.3d at 1053. While the report
contains no identifying information about the witness, one can infer
that the witness spoke with Steele after the accident occurred.
Without more foundation, we cannot conclude that the statement
automatically qualifies as a present sense impression under CRE
803(1). Further, while it is possible the witness was startled by
what he had observed, this witness was not directly involved in the
accident. Considering that the witness made the statement after
the accident and that Steele recorded no other observations about
the witness’s demeanor, there is simply not enough evidence in the
record for us to conclude that the witness statement is an excited
utterance under CRE 803(2).2 The district court’s in limine ruling
recognized as much.
¶ 22 Accordingly, the record supports the trial court’s conclusion,
in its in limine ruling, that the witness statement did not qualify for
2 While the district court ultimately admitted the witness statement
under section 42-2-121(2)(c)(II), C.R.S. 2019, it first concluded that
the statement did not qualify as a present sense impression or an
excited utterance. This finding is not disputed on appeal.
10
a hearsay exception under the Colorado Rules of Evidence. See
CRE 803(1)-(2); Leiting, 58 P.3d at 1053. And, as we explain below,
the admissibility of police reports does not immunize other hearsay
within such reports.
C. Section 42-2-121(2)(c)(II) Does Not Allow Admission of Hearsay
Statements within Official Reports unless They Independently
Qualify as Hearsay Exceptions
¶ 23 Given that the witness statement did not satisfy a hearsay
exception under the Colorado Rules of Evidence, we now consider if
the district court properly relied on section 42-2-121(2)(c)(II) to
admit the statement. Brown argues that the plain language of
section 42-2-121(2)(c)(II) allows the court to admit the full contents
of official reports, including hearsay statements. We disagree.
1. Standard of Review and Applicable Law
¶ 24 We review de novo questions of statutory interpretation. Hall
v. Am. Standard Ins. Co. of Wis., 2012 COA 201, ¶ 19. “[W]hen the
statutory language is clear and unambiguous, we need not look
beyond its plain terms and must apply the statute as written.” Id.(citing Kyle W. Larson Enters., Inc. v. Allstate Ins. Co., 2012 COA
160M, ¶ 10). If statutory language is ambiguous or if the statute is
silent on an issue that would be expected to be within its scope, we
11
enlist tools of statutory interpretation to discern the legislature’s
intent. In re Marriage of Alvis, 2019 COA 97, ¶ 9 (citing People v.
Ray, 2018 COA 158, ¶ 16). “Those tools include legislative history,
prior law, the consequences of a particular construction, and the
goal of the statutory scheme.” Id. (citing In re Marriage of Ikeler,
161 P.3d 663, 668 (Colo. 2007)). A statute is ambiguous if multiple
reasonable interpretations are possible. Andrews v. Miller, 2019
COA 185, ¶ 21 (citing Carrera v. People, 2019 CO 83, ¶ 18).
¶ 25 “We must interpret the statute ‘to give consistent, harmonious,
and sensible effect to all its parts.’” Alvis, ¶ 9 (quoting Ikeler, 161
P.3d at 667). “A statutory interpretation leading to an illogical or
absurd result will not be followed,” Frazier v. People, 90 P.3d 807,
811 (Colo. 2004), and courts “avoid constructions that are at odds
with the legislative scheme,” Bryant v. Cmty. Choice Credit Union,
160 P.3d 266, 274 (Colo. App. 2007).
¶ 26 We review evidentiary rulings in civil cases for harmless error.
C.R.C.P. 61; Laura A. Newman, LLC v. Roberts, 2016 CO 9, ¶ 24.
We will not disturb a judgment unless a court’s error affected the
substantial rights of the parties. C.R.C.P. 61. An error affects the
substantial rights of the parties if it “substantially influenced the
12
outcome of the case or impaired the basic fairness of the trial itself.”
Laura A. Newman, LLC, ¶ 24 (quoting Bly v. Story, 241 P.3d 529,
535 (Colo. 2010)) (emphasis omitted).
2. Analysis
¶ 27 Section 42-2-121(2)(c)(II) provides, in relevant part, as follows:
In any trial or hearing, all official records and
documents of the state of Colorado . . . shall be
admissible in all municipal, county, and
district courts within the state of Colorado
without further foundation, shall be statutory
exceptions to rule 802 of the Colorado rules of
evidence, and shall constitute prima facie
proof of the information contained therein.3
The statute has declared, since 1990, that official state reports are
“statutory exceptions to rule 802.”
¶ 28 The parties disagree whether this exception applies to hearsay
within official state reports. Brown argues that the plain language
of section 42-2-121(2)(c)(II) is clear on its face and allows blanket
admission of official reports.
¶ 29 Section 42-2-121 clearly allows a court to admit official state
reports, even if the report itself is hearsay and does not qualify as a
3 There is no dispute that the statute applies to police reports. The
record shows that the police report was to be filed with the Division
of Motor Vehicles in the Department of Revenue.
13
hearsay exception. But the statute does not explicitly address
whether hearsay statements within official state reports are
automatically admissible. Given its silence on that issue, the
statute’s declaration that official state reports are statutory
exemptions to CRE 802 is susceptible of multiple reasonable
interpretations. See Andrews, ¶ 21. Thus, we must use tools of
statutory construction to determine if the legislature intended
section 41-2-121(2)(c)(II) to allow admission of hearsay within
official reports. See Alvis, ¶ 9.
¶ 30 Bernache argues we should interpret section 42-2-121(2)(c)(II)
as courts have interpreted CRE 803(8) and Fed. R. Evid. 803(8), the
analogous federal rule. Colorado cases — before and after the 1990
enactment of the statutory provision at issue — have repeatedly
recognized that hearsay in a police report is inadmissible. See Orth,
163 Colo. at 138-40, 429 P.2d at 281; Michael, 138 Colo. at 456,
334 P.2d at 1094; Leiting, 58 P.3d at 1053; Quintana, 56 P.3d at
1198; see also Schnabel v. Waters, 37 Colo. App. 498, 501-04, 549
P.2d 795, 799-800 (1976) (affirming trial court’s exclusion of
information in a police report); Polster v. Griff’s of Am., Inc., 34 Colo.
App. 161, 165-66, 525 P.2d 1179, 1182 (1974) (police report
14
properly excluded); Watson v. Watson, 507 P.2d 1122, 1126 (Colo.
App. 1973) (not published pursuant to C.A.R. 35(f)) (factual
information in investigative report of state agency not admitted
unless based on personal knowledge). But see Lannon v. Taco Bell,
Inc., 708 P.2d 1370, 1374 (Colo. App. 1985) (police reports could
qualify as business records and admitting the same in a civil case,
but without explaining why the hearsay therein was reliable).
¶ 31 Focusing on the post-enactment cases, in Leiting, a division of
this court held hearsay statements within public records are not
automatically admissible under CRE 803(8).4 58 P.3d at 1053. And
in Quintana, 56 P.3d at 1198, a division of this court concluded that
the trial court properly excluded eyewitness statements that were
attached to police reports because those statements were hearsay.
¶ 32 Brown’s proposed interpretation of section 42-2-121(2)(c)(II)
would create an exception for official state records and reports from
the general rule that hearsay statements within public records are
4 Similarly, in Parsons v. Honeywell, Inc., cited in Leiting v. Mutha,
58 P.3d 1049, 1053 (Colo. App. 2002), the Second Circuit held that,
while traffic reports are generally admissible under Fed. R. Evid.
803(8), hearsay statements within them are inadmissible unless
they satisfy a hearsay exception. 929 F.2d 901, 907 (2d Cir. 1991).
15
inadmissible unless they independently qualify for a hearsay
exception. See CRE 805; Leiting, 58 P.3d at 1053. To determine if
the legislature intended section 42-2-121(2)(c)(II) to create such an
exception for official state records, we look to the legislative history
underlying section 42-2-121(2)(c)(II).
a. Legislative History of Section 42-2-121(2)(c)(II)
¶ 33 Section 42-2-121 is similar to section 42-2-118 as it existed
before 1994. See Ch. 18, sec. 1, § 42-2-118(2)(c)(II), 1993 Colo.
Sess. Laws 40. The General Assembly first addressed the
admission of official state records in court in 1977, see Ch. 551,
sec. 1, § 42-2-118(2), 1977 Colo. Sess. Laws 1867, but did not add
language addressing CRE 802 until 1990, see Ch. 298 sec. 6, § 42-
2-118(2)(c)(I), 1990 Colo. Sess. Laws 1780. In making that
amendment, the General Assembly did not address hearsay within
official state records; however, it emphasized that the primary
purpose of section 42-2-118(2)(c)(II) was to ensure that state
personnel no longer had to appear before courts could admit official
state records into evidence. See Hearings on H.B. 90-1272 before
the H. Judiciary Comm., 57th Gen. Assemb., 2d Sess. (Feb. 13,
1990); Hearings on H.B. 90-1272 before the S. Judiciary Comm.,
16
57th Gen. Assemb., 2d Sess. (Mar. 20, 1990); Hearings on H.B.
90-1272 before the S. Judiciary Comm., 57th Gen. Assemb., 2d
Sess. (Mar. 21, 1990). The General Assembly also emphasized that
parties could still challenge the contents of official reports. See,
e.g., Hearings on H.B. 90-1272 before the S. Judiciary Comm., 57th
Gen. Assemb., 2d Sess. (Mar. 20, 1990).
¶ 34 Thus, it is apparent that the legislature never intended to
exempt official state records from any challenge under the rules of
evidence; rather, the legislature sought to exempt official state
records from rules of evidence that would require state officials to
appear in court.
¶ 35 With this background in mind, we conclude that section 42-2-
121(2)(c)(II) does not allow admission of hearsay statements within
official state reports unless those statements independently satisfy
a hearsay exception. The purpose of section 42-2-121(2)(c)(II) is to
prevent state officials from having to appear in court, but even if an
official appears and testifies to the facts contained in a report — as
was the case here — that official cannot testify to the truth of
statements made by others regarding matters the official did not
personally observe. Westinghouse Elec. Corp. v. Dolly Madison
17
Leasing & Furniture Corp., 326 N.E.2d 651, 657 (Ohio 1975). The
testimony of a state official in court authenticating an official state
record alone does not render a third-party hearsay statement
admissible. Thus, we do not believe the legislature, in reducing the
burden on public record custodians and other state officials,
intended to allow admission of otherwise inadmissible hearsay
statements merely because they appear in an official state record.
See Orth, 163 Colo. at 141, 429 P.2d at 282 (“[I]t is obvious that the
mere writing down of hearsay does not remove the bar to its
admission”).5
5 Orth v. Bauer, 163 Colo. 136, 141, 429 P.2d 279, 282 (1967), and
Westinghouse Electric Corp. v. Dolly Madison Leasing & Furniture
Corp., 326 N.E.2d 651, 657 (Ohio 1975), predate the adoption of the
Federal (and Colorado) Rules of Evidence. However, the Federal
Rules of Evidence, which the Colorado rules largely track, are
“organic growths out of our common law, . . . and must be
construed with that pedigree in mind.” United States v. Fryberg,
854 F.3d 1126, 1132 (9th Cir. 2017) (citations omitted). Thus, we
rely on these cases for their articulation of the principles that
underlie statutory public records exceptions to rules against
hearsay. Interestingly, the comments to Fed. R. Evid. 803(6)
include the following explanation concerning the limited
admissibility of police reports:
Sources of information presented no substantial
problem with ordinary business records. All
participants, including the observer or participant
furnishing the information to be recorded, were
18
¶ 36 Our interpretation of section 42-2-121(2)(c)(II) is consistent
with the rationale behind the general rule against admitting
hearsay: opponents cannot cross-examine the out-of-court speaker.
See Nicholls v. People, 2017 CO 71, ¶ 15 (“[H]earsay statements are
presumptively unreliable since the declarant is not present to
explain the statement in context. . . . Moreover, since the declarant
is not subjected to cross-examination, the truthfulness of the
statement is questionable.” (quoting Blecha v. People, 962 P.2d 931,
937 (Colo. 1998))); see also People v. Dist. Court, 719 P.2d 722, 727
(Colo. 1986) (recognizing that parties to “civil litigation also have a
acting routinely, under a duty of accuracy, with
employer reliance on the result, or in short “in the
regular course of business.” If, however, the
supplier of the information does not act in the
regular course, an essential link is broken; the
assurance of accuracy does not extend to the
information itself, and the fact that it may be
recorded with scrupulous accuracy is of no avail.
An illustration is the police report incorporating
information obtained from a bystander: the officer
qualifies as acting in the regular course but the
informant does not. The leading case, Johnson v.
Lutz, 253 N.Y. 124, 170 N.E. 517 (1930), held that a
report thus prepared was inadmissible. Most of the
authorities have agreed with the decision.
Fed. R. Evid. 803 advisory committee’s note to paragraph 6
(emphasis added).
19
limited constitutional right to thoroughly cross-examine adverse
witnesses”).
¶ 37 The purpose of public and official record exceptions is “to
admit the sundry sorts of public documents for which no serious
controversy ordinarily arises about their truth.” United States v.
Fryberg, 854 F.3d 1126, 1132 (9th Cir. 2017) (quoting United States
v. Orellana-Blanco, 294 F.3d 1143, 1150 (9th Cir. 2002)). But,
unlike official records generally, hearsay statements within official
records are not necessarily trustworthy, and opponents should have
the opportunity to test the accuracy of those statements through
cross-examination. See Westinghouse, 326 N.E.2d at 657
(“[Hearsay statements are] not made competent by commitment to
writing in an official report, since it remains evidence not subject to
cross-examination and not based on first-hand knowledge.”).
¶ 38 Accordingly, we conclude that section 42-2-121(2)(c)(II) does
not exempt official state records from the rules regarding hearsay
within hearsay and that the district court erred by admitting the
20
unidentified witness statement.6 See CRE 805; Orth, 163 Colo. at
141, 429 P.2d at 282; Leiting, 58 P.3d at 1053.
b. The District Court’s Error Was Not Harmless
¶ 39 Having concluded that section 42-2-121(2)(c)(II) does not allow
admission of hearsay within official state reports unless the
statements independently qualify as hearsay exceptions, we now
consider whether the district court’s error was harmless. We
conclude it was not.
¶ 40 Brown’s entire defense was that he suffered a sudden medical
emergency during the accident, and the witness statement was the
strongest evidence of his claimed medical emergency. While a
neurologist testified as an expert about Brown’s possible medical
emergency, the neurologist could not say what medical condition or
event caused Brown to lose control of his vehicle. Moreover, Brown
himself claimed he had no recollection of why or how the accident
6 The inclusion of the unidentified witness statement does not
render the entire report inadmissible; the district court could have
required the parties to redact the witness statement and admitted
the portions of the report that memorialized Steele’s personal
observations. See, e.g., Leiting, 58 P.3d at 1052 (“[P]ortions of a
record or report that set forth factual findings resulting from an
investigation made pursuant to authority granted by law are
admissible under CRE 803(8)(C).”).
21
occurred. Thus, the jury must have relied heavily — if not entirely
— on Steele’s testimony and the unidentified witness statement in
reaching its verdict. Indeed, a substantial number of the jurors’
questions centered on Brown’s condition. For example, one juror
asked Steele, “[i]f the witness didn’t mention the medical
emergency, would you have [reached] the same conclusion? Why?
Did Mr. Brown mention a medical problem?” The question was
posed with the parties’ agreement. Steele responded that he
concluded Brown suffered a medical emergency because of the
witness’s statement and that he did not recall Brown mentioning a
medical problem. Another juror inquired: “If the witness said it
looked like a heart attack, which you thought was the cause of the
accident, why would you not follow up to check for a heart attack?”7
Steele responded that the medical team is responsible for evaluating
an individual’s medical condition and that the police cannot force
individuals involved in an accident to go to the hospital. These
7 The jurors posed additional questions on this subject, some of
which the parties agreed should not be posed to Steele. Even the
questions that were not posed to Steele show that the witness’s
statement about Brown was central to the jurors’ thought
processes.
22
questions highlight the centrality of the hearsay statement to the
case.
¶ 41 Because the jury might have reached a different verdict had
the court excluded the unidentified witness statement from the
trial, the error here was not harmless. See Leiting, 58 P.3d at 1053(“[E]rror is not harmless if a different result might have been
reached had the inadmissible evidence been excluded”); C.R.C.P.
61; Laura A. Newman, LLC, ¶ 24. Accordingly, we remand the case
for a new trial.
¶ 42 Given our disposition, we need not address Bernache’s juror
misconduct claim.
III. Conclusion
¶ 43 The judgment is reversed, and the case is remanded for a new
trial.
CHIEF JUDGE BERNARD and JUDGE BERGER concur.
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