v. Brown

     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

                               

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                                     

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., 

 (Colo. 1986) (pretrial ruling on a

  motion in limine sufficiently preserves an issue for appeal); People v.

  Mattas, 

 (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., 

 (Colo. App. 1998).1

¶ 10   Waiver is “the intentional relinquishment of a known right or

  privilege.” People v. Rediger, 

 (quoting Dep’t of

  Health v. Donahue, 

 (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, 

. In this situation, an
  objection does not merely revive an argument that the court has
  already rejected. 

 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. 

 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.
  

                                     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., 

, ¶ 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, 

, ¶ 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, 

.

¶ 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 

; 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, 

.

¶ 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, 

 (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,

  

, 

 (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., 

, 

 (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, 

 (Colo. App. 2002) (excluding hearsay statements

  contained in the report of an administrative law judge (citing

  Parsons v. Honeywell, Inc., 

 (2d Cir. 1991)));

  Quintana v. City of Westminster, 

 (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, 

, ¶ 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,

  

, ¶ 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, 

, 

; Michael, 

, 

; Leiting, 

. 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, 

. 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., 

. “[W]hen the

  statutory language is clear and unambiguous, we need not look

  beyond its plain terms and must apply the statute as written.” 

  (citing Kyle W. Larson Enters., Inc. v. Allstate Ins. Co., 

, ¶ 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, 

 (citing People v.

  Ray, 

). “Those tools include legislative history,

  prior law, the consequences of a particular construction, and the

  goal of the statutory scheme.” 

 (citing In re Marriage of Ikeler,

  

 (Colo. 2007)). A statute is ambiguous if multiple

  reasonable interpretations are possible. Andrews v. Miller, 

 (citing Carrera v. People, 

).

¶ 25   “We must interpret the statute ‘to give consistent, harmonious,

  and sensible effect to all its parts.’” Alvis, ¶ 9 (quoting Ikeler, 

). “A statutory interpretation leading to an illogical or

  absurd result will not be followed,” Frazier v. People, 

 (Colo. 2004), and courts “avoid constructions that are at odds

  with the legislative scheme,” Bryant v. Cmty. Choice Credit Union,

  

 (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, 

.

  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, 

 (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,

  

, 

; Michael, 

,

  

; Leiting, 

; Quintana, 

; see also Schnabel v. Waters, 

, 501-04, 

 (1976) (affirming trial court’s exclusion of

  information in a police report); Polster v. Griff’s of Am., Inc., 

, 

 (1974) (police report


                                      14
  properly excluded); Watson v. Watson, 

 (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., 

 (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 

. And

  in Quintana, 

, 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,
  

 (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. 

, 907 (2d Cir. 1991).

                                    15
  inadmissible unless they independently qualify for a hearsay

  exception. See CRE 805; Leiting, 

. 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), 

. The General Assembly first addressed the

  admission of official state records in court in 1977, see Ch. 551,

  sec. 1, § 42-2-118(2), 

, but did not add

  language addressing CRE 802 until 1990, see Ch. 298 sec. 6, § 42-

  2-118(2)(c)(I), 

. 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., 

 (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, 

, 

 (“[I]t is obvious that the

mere writing down of hearsay does not remove the bar to its

admission”).5


5 Orth v. Bauer, 

, 

 (1967), and
Westinghouse Electric Corp. v. Dolly Madison Leasing & Furniture
Corp., 

 (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,

 (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, 

 (“[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, 

 (Colo. 1998))); see also People v. Dist. Court, 

  (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, 

, 

 (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, 

 (9th Cir. 2017) (quoting United States

  v. Orellana-Blanco, 

 (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, 

  (“[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, 

, 

; Leiting, 

.

           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, 

 (“[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, 

  (“[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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