2020 COA 106
Colo. Ct. App.2020Background
- On Nov. 5, 2015, Celena Bernache sued Gary Brown after Brown's vehicle struck the rear side of her car; Brown claimed a sudden medical emergency, Bernache alleged he fell asleep.
- Fountain Police Corporal Galen Steele (a non‑witness) prepared an accident report that included an unidentified bystander's statement that Brown had “stiffen[ed] up” and leaned right “like he was having a heart attack.”
- Bernache filed a pretrial motion in limine to exclude that unidentified witness statement; the district court ruled the entire police report admissible under § 42‑2‑121(2)(c)(II) and Bernache stipulated to its admission at trial.
- A juror who knew Corporal Steele served on the jury; after trial Bernache alleged that juror later said she gave Steele’s testimony extra weight because of that relationship.
- The jury returned a verdict for Brown; on appeal the Colorado Court of Appeals held the trial court erred by admitting the unidentified witness’s hearsay statement and that the error was not harmless, reversed and remanded for a new trial, and did not reach the juror‑misconduct claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preservation / waiver of hearsay objection | Bernache argues her in‑limine ruling preserved the objection and she need not renew it at trial. | Brown contends Bernache waived or invited error by stipulating to the report at trial. | Preserved: pretrial ruling on motion in limine preserved the issue; Bernache did not waive or invite error. |
| Whether the unidentified bystander statement fits CRE 803(1) or (2) | The statement is not shown to be a present sense impression or excited utterance. | Brown relied on the report as a whole. | Held: record lacks foundation to admit the bystander statement as a present sense impression or excited utterance. |
| Whether § 42‑2‑121(2)(c)(II) authorizes automatic admission of hearsay within official reports | Bernache: statute does not override hearsay‑within‑hearsay rules; such statements must still meet hearsay exceptions. | Brown: statute’s plain language makes official state reports admissible in full without further foundation (including hearsay within). | Held: § 42‑2‑121(2)(c)(II) does not permit automatic admission of third‑party hearsay in official reports; such statements must independently qualify for a hearsay exception. |
| Prejudice / harmless‑error | Bernache: the bystander statement was central to Brown’s defense and likely affected the verdict. | Brown: other evidence (expert testimony, Brown’s own account) supported verdict. | Held: error was not harmless; the bystander statement was central to the defense and might have changed the outcome. |
Key Cases Cited
- Orth v. Bauer, 429 P.2d 279 (Colo. 1967) (police report hearsay and officer conclusions not entitled to preferred status)
- Michael v. John Hancock Mut. Life Ins. Co., 334 P.2d 1090 (Colo. 1959) (reports and their hearsay findings inadmissible simply by being official)
- Leiting v. Mutha, 58 P.3d 1049 (Colo. App. 2002) (hearsay within public records not automatically admissible under public‑record exception)
- Quintana v. City of Westminster, 56 P.3d 1193 (Colo. App. 2002) (eyewitness statements attached to police reports are hearsay and may be excluded)
- Parsons v. Honeywell, Inc., 929 F.2d 901 (2d Cir. 1991) (traffic reports admissible under Fed. R. Evid. 803(8) but hearsay within them remains inadmissible absent exception)
- United States v. Fryberg, 854 F.3d 1126 (9th Cir. 2017) (public‑record exceptions admit routine documents; hearsay within those records may lack necessary trustworthiness)
- Westinghouse Elec. Corp. v. Dolly Madison Leasing & Furniture Corp., 326 N.E.2d 651 (Ohio 1975) (official report does not render third‑party hearsay admissible)