*1
parties
requested
law
plied the
[¶ 18.] and Kela O’FARRELL existed. With partnership that a nied Appellants. Defendants denial, for a determination Holm asked No. 25336. i.e., partner a valid whether legal rights, (now re under 48-1-2 ship existed SDCL of South Dakota. Supreme Court legal of that determination pealed). 17, Feb. 2010. Argued law.* Be an action at implicated right have at law and we it is an action cause Aug. Decided 2010. rule, claim the incidental abandoned Rehearing Sept. Denied 2010. 15- SDCL Dakota Constitution South 38(b) right to demand gave Holm 6— trial, did in his answer which he
jury Thus, trial complaint.
Mundhenke’s jury Holm when it denied
court erred partnership of whether
trial on the issue
existed. the circuit court 2. Whether Mun- it concluded
erred when part- Holm formed a
dhenke and
nership de facto disso- and that no the 2005 occurred before
lution
meeting. holding our on Issue Because of 20.]
[¶ ruling on the trial court’s we vacate jury trial on for a and remand
Issue
these issues. remanded for fur- Reversed and opin- with this proceedings consistent
ther
ion. KONENKAMP, ZINTER, SEVERSON,
MEIERHENRY, and
Justices, concur.
* opinion the merits express on parties and no appeal. argues in this party otherwise Neither issue. argued by the of this apply the law we *2 Knight Gunderson, Evenson,
John D. Boyd, LLP, Knight Stoltenburg, & Clear Lake, Dakota, Attorneys South plain- for tiff appellee. Wald,
Larry M. Beardsley, Von Jensen Wald, LLC, & Von Prof. Rapid City, South Dakota, Attorneys for ap- defendants and pellants. Cory and stood behind him.
ZINTER, proached Justice. up, testified that he then stood ac- Rusty brought around, grabbed “gently [John- turned against and assault negligence tion *3 arm to walk him to the son’s] door[.]” bar, O’Farrell, and her the owner of Kela According Cory, got to Pinkert then be- (de- O’Farrell, husband, Cory employee Johnson, Cory tween and and Johnson fendants). alleged that he suf- Johnson Cory by Cory his shirt. grabbed testified injuries Cory when threw personal fered around, then spun that he and Johnson trial, At him a wall in the bar. against Cory pushed away, and as Johnson John- report that police introduced a Johnson balance,” wall, son “lost his hit the and fell. of the deputy included a sheriffs interview night of the incident. defendants on Cory, Similar to Kela testified [¶ 4.] was admitted over defendants’ report got Cory that Pinkert between and John- objections. The and foundation son, grabbed Cory by and his Johnson of John- jury returned a verdict favor grabbed that shirt. Kela testified she then arguing that appeal son. Defendants out pulled Pinkert her belt and Pinkert hearsay. af- was inadmissible We report Cory. from and Accord- between Johnson firm. Kela, Cory ing point at this was “es- corting] toward the door” and History [Johnson]
Facts and Procedural Cory’s holding Johnson was onto shirt. evening July On [¶ 2.] Cory pushed Kela indicated that then Pinkert, Johnson, Kim Rusty girlfriend his away, “staggered” and Johnson Johnson friends went to a bar and some their and hit the bottom of the wall.” and “fell Marvin, Dakota. Kela O’Farrell South According County served Johnson a beer. Grant Sheriff Kela, that she would that investigated she then told Johnson Ben Koens the incident him leave he finished his beer. evening. report like when contained Kela’s Johnson, Cory spoke to O’Far- Cory’s contemporaneous After Kela statements bar, rell, at the asked who was seated portion report to Koens. The of the given Johnson testified go Johnson “to outside.” states: issue1 outside, that Cory that once told Johnson officer asked the bartender [Kela] This not welcome and that Johnson and he was Cory stated that place. what took She undisputed It is his friends should leave. Rusty over to Johnson O’Farrell walked argue Cory, and that Johnson did not with She and told him to leave the bar. cooperative. Johnson went Johnson was saw, Cory thing the next she stated they that and told Pinkert back inside Rusty against the had thrown O’Farrell to leave. needed Rusty that fell on the wall. She stated [Cory] asked floor.... This Officer sharp conflict as to There is [Cory] stated fight. what started the happened According next. to John- what girlfriend, his bar, Rusty go used to with son, leaving they as were him in the bar. and he didn’t want from behind and threw “tackled” Johnson him, did throw but Cory, [Cory] stated he into a wall. him across the bar got hurt. however, he know he ap- [how] didn’t testified argued subjects never categorizing and victims was boxes 1. The has check evidence, persons subjects Considering and victims. The we see jury. as all of "subject” categorized Cory and John- arising admission of reversible error from no Although “victim.” defendants son as the portion report. this notation, object the reference to also to this case-in-chief, your you During girlfriend Johnson’s didn’t want County Sheriff Mi- him in the bar? Johnson called Grant chael McKernan. McKernan testified might A: I have. familiar inci- he was “somewhat” with the Q: you you tell him that did Did throw dent, investigated that he had not it. but you but didn’t know how [Johnson] Johnson then laid a foundation for Koens’s got he hurt? records excep- under business A: I don’t recall. tion to the rule. Sheriff McKer- At point, po- Johnson offered Koens’s nan testified that Koens’s was “a *4 report lice into evidence. re- Defendants part doing investigation,” routine of and newed their foundation and ob- ordinary in “kept that it was the jections. circuit court admitted the course of business at the sheriffs office.” report authority under of State v. pur- Defendants voir dired McKernan for (S.D.1992). Beynon, 484 N.W.2d poses objection. initially of an McKernan impeached Cory Johnson’s counsel then verify accuracy indicated he could not using report: his statements Koens’s report contacting without Koens. Q: you read for me ... [C]ould what says you Officer Koens that said? objected Defendants to the ad- report grounds mission of Koens’s on the hearsay. of foundation and In initially [Cory] A: that stated he did throw sustaining objections, these the court stat- know [Cory] but [Johnson] didn’t “Basically, going ed: what I’m to do is got how hurt. [Johnson] objection admissibility
sustain the this document at this time and indicat- [I] Well,
ed to counsel at the bench that the Q: reasons you say did it? my may sustaining it be overcome sub- A: I don’t recall. sequently in this trial might and not. But Q: you Are suggesting [Deputy that I’m receiving it at this time.” After up? it made Koens] ruling, Johnson’s counsel asked fur- A: I’m not saying Apparently that. questions ther to establish a business rec- there could have been stuff left out report. ords foundation for the McKernan if sign I didn’t the statement. ultimately testified that he believed the [¶ 9.] Johnson also used Koens’s report was true and accurate as a result of to cross-examine Kela following her direct conversation with Koens. mentioned, previously examination. As Notwithstanding the additional Kela that “Cory original- had testified had foundation, was not offered ly had him arm to escort him case, again until Johnson concluded his Rusty towards the door and had him case, defense started their and counsel for Cory the shirt. And so turned like that Cory the defendants examined a wit- pushed him way, which would During ness. Johnson’s cross-examination have been towards the wall.” She had Cory, Cory Johnson asked about the further testified Johnson “lost his bal- statements he had made to Koens ance,” “staggered,” “hit and then the bot- on night of the incident: cross-examination, tom of the wall.” On Q: you [Deputy Did tell impeached using Koens] that Johnson’s counsel Kela
Rusty go report: used to with Koens’s [Johnson] In [Deputy closing arguments, asked Johnson’s Q: Okay. Koens] And portions counsel read defendants’ state- place; right? what took is you ments to attack defen- I recall that. A: No. don’t credibility. argued: dants’ Counsel [Deputy what Q: But at least that’s think thing pretty I that one is clear says he did? Koens] about this case and that is that one side A: I don’t recall. not being completely truthful or tell- Q: Okay. [Deputy Koens’s] ing the truth.... And to start out with says he I asked the bartend- where just you I point again want out to er, this officer asked the bartender deputy reported report[.] what the his place. you tell the what took Can ... happened exactly What was what jury says you responded? he what night. told the officer that [defendants] [Johnson], Cory got up, came over to A: O’Farrell She stated grabbed him and threw him across Rusty walked over to into the wall.... bar For them to come him stat- told to leave bar. She *5 in say here now and that either it didn’t saw, Cory thing ed the next she had happen they telling or don’t remember Rusty against thrown the wall. She deputy, the that no sense.... makes Rusty stated that fell on the floor. [U]nfortunately they already for them Q: years you And so five later are tell- gave they their truthful statements and him ing jury you the that didn’t tell those, they are stuck with get don’t Cory that O’Farrell walked over to in you something come here and tell Rusty and told him to Johnson different. Remember when I asked bar, and that the next leave the question last if Kela the what’s true you Cory had thrown— thing saw report, happened the if it’s true what Cory That excuse me. had thrown report, then that’s inconsistent with Rusty against the wall? your story, yes. isn’t it? She said Her that, A: I I don’t believe said no. happened version of what can’t be if true is true.2 Following closing arguments, accurate, Q: Rusty, And if so if that’s if jury in favor of returned verdict me, Cory if walked over to excuse damages and awarded in the sum Rusty thing you saw and the next $68,000 plus pre-judgment interest. wall, Cory Rusty into the was threw appeal claiming prejudicial Defendants er- accurate, if part that then what police report. ror in the admission of the accurate, you saying today are isn’t Decision is it? saying today hap- I’m review a trial 12.]
A: What
is what
‘We
[¶
ruling
admissibility of
pened.
court’s
on the
evi-
They
They
2.
counsel elaborated that Kela and
hadn’t had time to think of that.
Johnson’s
being
story
about the
up
"weren’t
truthful
hadn’t had time to come with an excuse
they
jury]”
light
[the
told
of the statements
leg.
why Rusty
his
That’s what
for
broke
Regarding
they gave Koens.
later,
happened
they gave
story.
after
contradictory story
defendants’
at trial that
decide, oh,
might
they
we
have a
Later
Johnson was so intoxicated he lost his bal-
here,
figure
we
problem
we better
out what
fell,
ance and
Johnson’s counsel noted
leg,
say happened that he broke his
can
of the
defendants did not “have
version
Rusty
now let's blame
for that.
night.”
story that
He continued:
had been
today,
portion
stan-
er
no
an abuse of discretion
dence under
¶
Williams,
11, 8,
the re-
previously
2006 SD
admitted.
State v.
dard.”
427,
Although “admis-
not
under the doctrine
port
480.
was
admissible
710 N.W.2d
Furthermore,
in violation of a rule of
completeness.
sion of evidence
non-hearsay pri-
of law that constitutes
evidence is an error
was not offered as
discretion,” DuBray v. S.D.
an abuse of
or
statements used to rehabili-
consistent
¶
Servs.,
130, 8,
2004 SD
used to
Dep’t
Social
tate a declarant. The
was
661,
admitting evidence
impeach
690 N.W.2d
and as substantive evidence of
be affirmed if
ground
an
will
injuries.
on
incorrect
caused
There-
what
Johnson’s
on a different
fore,
was admissible
in relying upon
the evidence
the circuit court erred
State,
285 Md.
ground.
authority
See Robeson
Beynon
admitting
(1979)
403 A.2d
report.
(“[Wjhere
adequately
in a case
the record
point
Beynon
Defendants
out
decision of the trial
demonstrates
that, generally, police reports
also stated
correct, al-
[admitting
was
evidence]
court
hearsay.
Id. at 905. De-
are inadmissible
upon by
relied
though
ground
on
in DuBray
further note that
we
fendants
not even raised
perhaps
trial court and
that, generally,
indicated
the narrative
appellate
court will affirm.
parties,
portion
police report
of a
does not meet
words,
may
a trial court’s decision
public
exceptions
or
records
the business
although for a different reason
be correct
¶¶ 21,
rule. 2004 SD
court.”).3
than relied on
*6
Therefore,
23,
3i3 qualify hearsay” The defendants’ statements Koens are as “not under Rule 801(d)). hearsay: they second-level-witness are the defendants’ substantive statements made respect with to police to Koens at the time of the incident. To reports, the may be admitted if the testimony be admissible without Koens’s at declarant officer’s statement meets the trial, each level must come within a hear exception business record and the declar- (Rule 805) say exception. 19-16-36 SDCL ant witness’s statement qualifies as a non- “[hjearsay provides included within hearsay Although admission. not admit- hearsay hearsay is not excluded under the ting case, in a frequently if part rule each of the combined state cited federal opinion district court de- ments conforms with an exception analysis: scribes the §§ in hearsay provided rule 19-16-5 to 19- Since the was made the ordi- 16-35, inclusive.” See also United States nary course of the under-sheriffs busi- (5th Dotson, 821 F.2d Cir. ness, and it was his business to record 1987) that, (concluding purposes statement, the defendant’s analysis, Rule 805 each level with the statements were admissible un- police report detailing statement of a der business exception] only [the non-hearsay
witness must be or meet a to show that these statements were in hearsay exception). fact made if defendant relevant. it Once is established that the Although SDCL 19-16-36 (a defendant made the statement state- 805) (Rule requires that each level meet position ment inconsistent with her at “exception” sections 19-16-5 to trial), the substantive contents of the 19-16-35, purposes of the hear “[f]or admissible, statement are not under [the say-within-hearsay principle expressed in exception] business record but rather 805, ‘non-hearsay’ Rule statements under exception under the admission 801(d) rule ... should be con [admissions] *7 hearsay rule. equivalent sidered ... as the ... an of Dotson, exception to the rule.” Inc., v. Transp., F.Supp. Yates Bair 249 821 F.2d at See also 1035. 5 Federal (S.D.N.Y.1965). 681, Thus, 685 we must (3d ed.) (2009) § Evidence (stating 8:136 Deputy first determine whether that it generally recognized is that “each report containing the defendants’ state- excep statement in the chain must fit ‘an qualifies ments for admission under the tion,’ and this term should be read also exception business record qualify reach that ‘not statements as hear rule. 801(d) say’ under Rule and of statements Hearsay: First-Level The Business Record nonhearsay purposes”) (citing
fered for (Rule ception Ex 19-16-10 — SDCL 92, Lang, v. United States 589 F.2d 98-99 803(6)) (2d Cir.1978)) n. 2 that (concluding (Rule SDCL 19-16-10 logic apply of Rule 805 would to an admis 803(6)), exception, the business records sion); Paving United States v. Portsmouth provides part: (4th Cir.1982) Corp., 694 F.2d 321-23 acts, events, (considering non-hearsay A ... ... of condi- statements tions, agents co-conspirators); opinions, diagnoses, or made at or United States Calabrese, (N.D.Ill. by, v. 2008 4274453 near the time or from information WL 2008) (noting “exception” by, person the term in Rule transmitted a with knowl- edge, kept regularly 805 should be read to include statements if in the course of a 314 record, “gener- are police reports but activity, and if it was ness business
conducted
because of the inherent
ally inadmissible
that
ac-
practice of
business
regular
in-
the ultimate sources of
unreliability of
..., all
the ...
as
tivity to make
5
¶ 18,
690
2004 SD
formation.”
testimony of the custodian
by the
shown
They are also inadmissible
N.W.2d at 663.
witness,
not exclud-
is
qualified
or other
bystanders
of
because “the statements
19-16-4,
the de-
though
§
even
ed
incorporate within the
police
that
officers
witness,
unless
clarant is available as
pursuant to
typically
are
not made
record
the method
of information or
the source
¶ 19, 690
Id.
duty.”
business
a routine
indicate
preparation
or circumstances of
Thus, DuBray only pro-
N.W.2d at 664.
lack of trustworthiness.
excep-
use of the business record
hibited
ex-
records
“Prior to use of
business
substantively prove the contents of
tion to
must be made
foundation
ception, proper
DuBray did not consider
ad-
report.
‘testimony
the custodian or
through the
report merely prove
police
mission of a
” DuBray, 2004
qualified
witness.’
i.e.,
hearsay;
prove
first-level-reporter
(citation
¶
at 662
SD
690 N.W.2d
a statement of a
that the officer recorded
omitted). “The custodian of the records
witness.
have
...
‘need not
in control of or
be
police reports
Admission
...
knowledge
particular
of the
individual
is in accord with Fed.
purpose
this limited
...,
only
need
be familiar with
records
but
803(6).
advisory
committee
R.Evid.
”
practices.’
recordkeeping
the [business’s]
803(6)
specifically
note to Rule
states
Weinstock,
v.
Id.
United States
153
(citing
information from witnesses is re-
when
(6th Cir.1998)).
proper
“[A]
F.3d
police report,
police report
in a
corded
testimony
‘that a
foundation consists
excep-
qualifies under the business
prepared
kept
has been
document
the substantive statements do not
tion but
regularly-conducted
the course of a
busi-
acting in
qualifies
because “the officer
as
”
Brown,
v.
Id.
State
(citing
activity.’
ness
regular
course but the informant does
(S.D.1992)).
761, 763
Sheriff
480 N.W.2d
803(6) advisory commit-
not.” Fed.R.Evid.
foundation for
provided
McKernan
Thus,
uniformly
it
tee’s note.
held
report.
the admission of Koens’s
McKer-
of Rule
requirements
where the technical
prepara-
nan
testified
803(6)
met,
police report
are
is admissi-
part
was a routine
tion of the
at
reporter
ble as a business record
doing
investigation
and that the
level,
distinguished
from the witness
kept
ordinary
was a record
in the
course of
States,
See Colvin United
level.
*8
in
business
his office.
(9th Cir.1973);
Spina,
Smith v.
F.2d
998
Defendants, however, point out
(3d
Cir.1973); Gray
v. L.J.
477
1140
F.2d
DuBray generally prohibited
Co.,
(6th
the ad-
Navy Trucking
315
Line, Inc.,
Cir.1969);
Larson,
Lindberg
ring specially) (citing
v. Short
John W.
(1st
(1991)).
Cir.1968);
Evidence,
Dakota
F.2d 482
United States
South
801.3
In
399
(6th
Graham,
Cir.1968);
such cases:
v.
391
439
F.2d
(2d
Nardin,
F.2d 373
Cir.
Juaire v.
395
Any prior statement of a party is admis-
1968);
Kaufman,
v.
A.L.R. Fed. 457 to po- include[s] defendant’s statements courts, virtually all other Like Margaret B. lice[.]” Jack Weinstein & A. we therefore conclude business Evidence, Berger, Federal Weinstien’s exception to Koens’s applies first- (2d 2009). case, § ed 801.30[2] this i.e., hearsay; prove level that the Deputy both defendants told Koens on the contained Koens’s statements of what he night Cory of the incident threw determine must recorded. We now wheth- trial, against the At wall. both er defendants’ statements defendants testified that rather than level; i.e., were admissible at the second Johnson, throwing gently was escort- substantively prove statements. ing Johnson out of the bar when Johnson hearsay in such a business record “[W]hile staggered fell. Their earlier state- is not admissible under the business rec- clearly against ments offered were them exception, ord is admissible if and were adverse to their case at trial. any exeeption[,] it falls within for Therefore, qualified their statements Smith, ... an instance admission.” 521 non-hearsay party admissions. F.2d at 964. DuBray prohibit [¶ does 24.] Hearsay: Second-Level Admission type party-opponent admission. 19-16-8(1) (Rule
Party Opponent —SDCL Koens’s recitation of the defendants’ state 801(d)(2)(D) “investiga ments is not a narrative of his 19-16-3(1) tion, interviews, (Rule ... and ... contacts” that
[¶ 22.] SDCL
beliefs,
801(d)(2)(l))
may
“heavily
be
influenced
provides that an admission of
and,
times,
impressions,
at
hunches of the
against
party
hearsay:
fered
is not
“A
investigating
DuBray,
officer.”
statement
is not
if it is offered
See
¶¶
663.
against
party and is:
own state
SD
N.W.2d
[h]is
ment,
repre
DuBray
or a
The declarants’ statements
either his individual
*9
“bystanders,”
spe
capaeity[.]”
necessary
“It is not
were also from
who we
sentative
the ac
against
cifically
parties
that the out-of-court statement be
noted were not
¶ 19,
the
at the time it is
tion.
Id.
mation is ¶ Robeson, at 403 12 285 Md. per- (citing was statements use of the defendants’ un- that hear- proposition admissions A.2d at 1223 for the party-opponent missible as 801(d)(2)(D). 19-16-3(1) (Rule a rea- may be admissible for say evidence der SDCL court or by on the circuit son relied Conclusion parties). raised report was ad- police Koens’s 25.] [¶ jurisdictions have used 30.] Other [¶ excep- under the business missible admitting information from similar rule (Rule 803(6)), tion, 19-16-10 SDCL reports Gaddy in civil cases. See police the defendants’ that Koens recorded prove Co., F.Supp.2d 218 Ins. Life Hartford statements The defendants’ statements. (E.D.Mo.2002). See also Foster substantively admissible themselves were (8th Corp., 20 F.3d v. Gen. Motors 19-16-3(1) (Rule 801(d)(2)(D) under SDCL Cir.1994). Although report con- party oppo- of non-hearsay admissions hearsay, portion the relevant tains of the state- nents. Because each level report would have been admissible under a qualified for admission ments 19-16-12(3) (Rule 803(8))’s under SDCL rule, hearsay report was admissible as (1) The exception because: was 19- within under SDCL office, County i.e. the Grant public from (Rule 805). 16-36 Office, acting and Koens was Sheriffs Affirmed. [¶ 26.] Sheriff; authority within his as a (2) “forth ... factual find- The sets GILBERTSON, Justice, Chief [¶ 27.] investigation ings resulting from an made KONENKAMP, Justice, concur. (3) law”; authority granted by pursuant MEIERHENRY and action; offered in a civil was SEVERSON, Justices, concur in result. (4) and, of information or source “[T]he MEIERHENRY, (concurring in Justice other circumstances indicate [did not] [a] result). lack of trustworthiness.” I concur in result. I would de- 29.] [¶ report met the re- Once Koens’s 19-16-12(3) cide this case under SDCL 19-16-12(3) (Rule quirements SDCL (Rule 803(8)). 19-16-12(3) (Rule SDCL 803(8)), then its contents could be viewed 803(8)) part: provides of evi- admissibility under the rules Records, statements, or data reports, parties dence without reference to how form, any public of- compilations, ¶¶ 12, 20. presented Supra the issue. agencies, setting fices or forth: report met Having concluded that Koens’s 19-16-12(3) requirements SDCL (Rule (3) 803(8)), agree I with Justice Zinter’s proceedings In civil actions and cases, the state in criminal statements within against analysis that defendants’ an in- findings resulting non-hearsay factual from were admissible as vestigation pursuant made to author- under by party opponents admissions law, ity granted by (Rule 801(d)(2)). are not excluded SDCL 19-16-3 19-16-4, though § even the de- n SEVERSON, Justice, joins this witness, clarant un- is available as special writing. the sources of information or less lack of other circumstances indicate
trustworthiness. *10 public agency rule allows office or
This
reports to be admitted civil cases as