Lead Opinion
[¶ 1.] Rusty Johnson brought this action for negligence and assault against Kela O’Farrell, the owner of a bar, and her husband, Cory O’Farrell, an employee (defendants). Johnson alleged that he suffered personal injuries when Cory threw him against a wall in the bar. At trial, Johnson introduced a police report that included a deputy sheriffs interview of the defendants on the night of the incident. The report was admitted over defendants’ foundation and hearsay objections. The jury returned a verdict in favor of Johnson. Defendants appeal arguing that the report was inadmissible hearsay. We affirm.
Facts and Procedural History
[¶ 2.] On the evening of July 31, 2004, Rusty Johnson, his girlfriend Kim Pinkert, and some of their friends went to a bar in Marvin, South Dakota. Kela O’Farrell served Johnson a beer. According to Kela, she then told Johnson that she would like him to leave when he finished his beer. After Kela spoke to Johnson, Cory O’Farrell, who was seated at the bar, asked Johnson “to go outside.” Johnson testified that once outside, Cory told Johnson that he was not welcome and that Johnson and his friends should leave. It is undisputed that Johnson did not argue with Cory, and Johnson was cooperative. Johnson went back inside and told Pinkert that they needed to leave.
[¶ 3.] There is a sharp conflict as to what happened next. According to Johnson, as they were leaving the bar, Cory “tackled” Johnson from behind and threw him across the bar into a wall. Cory, however, testified that Johnson approached Cory and stood behind him. Cory testified that he then stood up, turned around, and “gently grabbed [Johnson’s] arm to walk him to the door[.]” According to Cory, Pinkert then got between Cory and Johnson, and Johnson grabbed Cory by his shirt. Cory testified that he and Johnson then spun around, and as Cory pushed Johnson away, Johnson “lost his balance,” hit the wall, and fell.
[¶ 4.] Similar to Cory, Kela testified that Pinkert got between Cory and Johnson, and Johnson grabbed Cory by his shirt. Kela testified that she then grabbed Pinkert by her belt and pulled Pinkert out from between Johnson and Cory. According to Kela, at this point Cory was “escorting] [Johnson] toward the door” and Johnson was holding onto Cory’s shirt. Kela indicated that Cory then pushed Johnson away, and Johnson “staggered” and “fell and hit the bottom of the wall.”
[¶ 5.] Grant County Deputy Sheriff Ben Koens investigated the incident that evening. Koens’s report contained Kela’s and Cory’s contemporaneous statements given to Koens. The portion of the report in issue
This officer asked the bartender [Kela] what took place. She stated that Cory O’Farrell walked over to Rusty Johnson and told him to leave the bar. She stated the next thing she saw, Cory O’Farrell had thrown Rusty against the wall. She stated that Rusty fell on the floor.... This Officer asked [Cory] what started the fight. [Cory] stated that Rusty used to go with his girlfriend, and he didn’t want him in the bar. [Cory] stated that he did throw him, but he didn’t know [how] he got hurt.
[¶ 7.] Defendants objected to the admission of Koens’s report on the grounds of foundation and hearsay. In initially sustaining these objections, the court stated: “Basically, what I’m going to do is sustain the objection to the admissibility of this document at this time and [I] indicated to counsel at the bench that the reasons for my sustaining it may be overcome subsequently in this trial and might not. But I’m not receiving it at this time.” After this ruling, Johnson’s counsel asked further questions to establish a business records foundation for the report. McKernan ultimately testified that he believed the report was true and accurate as a result of a conversation with Koens.
[¶ 8.] Notwithstanding the additional foundation, the report was not offered again until Johnson concluded his case, the defense started their case, and counsel for the defendants examined Cory as a witness. During Johnson’s cross-examination of Cory, Johnson asked Cory about the statements he had made to Deputy Koens on the night of the incident:
Q: Did you tell [Deputy Koens] that Rusty [Johnson] used to go with your girlfriend and you didn’t want him in the bar?
A: I might have.
Q: Did you tell him that you did throw [Johnson] but you didn’t know how he got hurt?
A: I don’t recall.
At this point, Johnson offered Koens’s police report into evidence. Defendants renewed their foundation and hearsay objections. The circuit court admitted the report under the authority of State v. Beynon,
Q: [C]ould you read for me ... what Officer Koens says that you said?
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A: [Cory] stated that he did throw [Johnson] but [Cory] didn’t know how [Johnson] got hurt.
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Q: Well, did you say it?
A: I don’t recall.
Q: Are you suggesting that [Deputy Koens] made it up?
A: I’m not saying that. Apparently there could have been stuff left out if I didn’t sign the statement.
[¶ 9.] Johnson also used Koens’s report to cross-examine Kela following her direct examination. As previously mentioned, Kela had testified that “Cory had originally had him by the arm to escort him towards the door and Rusty had him by the shirt. And so Cory turned like that and pushed him that way, which would have been towards the wall.” She had further testified that Johnson “lost his balance,” “staggered,” and then “hit the bottom of the wall.” On cross-examination, Johnson’s counsel impeached Kela using Koens’s report:
*311 Q: Okay. And [Deputy Koens] asked you what took place; is that right?
A: No. I don’t recall that.
Q: But at least that’s what [Deputy Koens] says he did?
A: I don’t recall.
Q: Okay. In [Deputy Koens’s] report where he says I asked the bartender, this officer asked the bartender what took place. Can you tell the jury what he says you responded?
A: She stated that Cory O’Farrell walked over to Rusty Johnson and told him to leave the bar. She stated the next thing she saw, Cory had thrown Rusty against the wall. She stated that Rusty fell on the floor.
Q: And so five years later are you telling the jury that you didn’t tell him that Cory O’Farrell walked over to Rusty Johnson and told him to leave the bar, and that the next thing you saw Cory had thrown— excuse me. That Cory had thrown Rusty against the wall?
A: I don’t believe I said that, no.
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Q: And if so if that’s accurate, if Rusty, excuse me, if Cory walked over to Rusty and the next thing you saw was Cory threw Rusty into the wall, if that part is accurate, then what you are saying today isn’t accurate, is it?
A: What I’m saying today is what happened.
[¶ 10.] In closing arguments, Johnson’s counsel read portions of defendants’ statements in Koens’s report to attack defendants’ credibility. Counsel argued:
I think that one thing is pretty clear about this case and that is that one side is not being completely truthful or telling the truth.... And to start out with I want to just point out to you again what the deputy reported in his report[.] ... What happened was exactly what [defendants] told the officer that night. Cory got up, came over to [Johnson], grabbed him and threw him across the bar into the wall.... For them to come in here now and say that either it didn’t happen or they don’t remember telling the deputy, that makes no sense.... [U]nfortunately for them they already gave their truthful statements and they are stuck with those, they don’t get to come in here and tell you something different. Remember when I asked Kela the last question if what’s true in the report, if it’s true what happened in the report, then that’s inconsistent with your story, isn’t it? She said yes. Her version of what happened can’t be true if this is true.2
[¶ 11.] Following closing arguments, the jury returned a verdict in favor of Johnson and awarded damages in the sum of $68,000 plus pre-judgment interest. Defendants appeal claiming prejudicial error in the admission of the police report.
Decision
[¶ 12.] ‘We review a trial court’s ruling on the admissibility of evi
[¶ 13.] In admitting Koens’s report, the circuit court cited State v. Beynon. In Beynon, we affirmed the admission of police reports because part of the reports had been extensively referred to by the opposing party and the entire reports were necessary under the doctrine of completeness.
[¶ 14.] Defendants point out Beynon also stated that, generally, police reports are inadmissible hearsay. Id. at 905. Defendants further note that in DuBray we indicated that, generally, the narrative portion of a police report does not meet the business or public records exceptions to the hearsay rule.
[¶ 15.] “ ‘Hearsay’ is a 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.” SDCL 19-16-1(3) (Rule 801(c)). This case involves two levels of out-of-court statements that, when contained in a written report, become hearsay within hearsay. Deputy Koens’s report itself is first-level-reporter hearsay: it is Koens’s out-of-court statement of what he recorded the defendants stating to him.
[¶ 16.] Although SDCL 19-16-36 (Rule 805) requires that each level meet a hearsay “exception” in sections 19-16-5 to 19-16-35, “[f]or the purposes of the hearsay-within-hearsay principle expressed in Rule 805, ‘non-hearsay’ statements under rule 801(d) [admissions] ... should be considered ... as the equivalent of ... an exception to the hearsay rule.” Dotson,
[¶ 17.] Therefore, with respect to police reports, the report may be admitted if the declarant officer’s statement meets the business record exception and the declar-ant witness’s statement qualifies as a non-hearsay admission. Although not admitting the report in the case, a frequently cited federal district court opinion describes the analysis:
Since the report was made in the ordinary course of the under-sheriffs business, and it was his business to record the defendant’s statement, the report with the statements were admissible under [the business record exception] only to show that these statements were in fact made by the defendant if that is relevant. Once it is established that the defendant made the statement (a statement inconsistent with her position at trial), the substantive contents of the statement are admissible, not under [the business record exception] but rather under the admission exception to the hearsay rule.
Yates v. Bair Transp., Inc.,
First-Level Hearsay: The Business Record Exception—SDCL 19-16-10 (Rule 803(6))
[¶ 18.] SDCL 19-16-10 (Rule 803(6)), the business records exception, provides in part:
A ... report ... of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly*314 conducted business activity, and if it was the regular practice of that business activity to make the ... report ..., all as shown by the testimony of the custodian or other qualified witness, is not excluded by § 19-16-4, even though the de-clarant is available as a witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.
“Prior to use of the business records exception, a proper foundation must be made through the ‘testimony of the custodian or other qualified witness.’ ” DuBray,
[¶ 19.] Defendants, however, point out that DuBray generally prohibited the admission of narrative police investigatory reports. The holding in DuBray was that the narrative portion of a police report meets the technical requirements of a business record, but police reports are “generally inadmissible because of the inherent unreliability of the ultimate sources of information.”
[¶ 20.] Admission of police reports for this limited purpose is in accord with Fed. R.Evid. 803(6). The advisory committee note to Rule 803(6) specifically states that when information from witnesses is recorded in a police report, the police report qualifies under the business record exception but the substantive statements do not because “the officer qualifies as acting in the regular course but the informant does not.” Fed.R.Evid. 803(6) advisory committee’s note. Thus, it is uniformly held that where the technical requirements of Rule 803(6) are met, a police report is admissible as a business record at the reporter level, as distinguished from the witness level. See Colvin v. United States,
[¶ 21.] Like virtually all other courts, we therefore conclude that the business record exception applies to Koens’s first-level hearsay; i.e., to prove that the report contained Koens’s statements of what he recorded. We now must determine whether defendants’ statements in the report were admissible at the second level; i.e., to substantively prove the statements. “[W]hile such hearsay in a business record is not admissible under the business record exception, the hearsay is admissible if it falls within any other exeeption[,] for instance ... an admission.” Smith,
Second-Level Hearsay: Admission of Party Opponent — SDCL 19-16-8(1) (Rule 801(d)(2)(D)
[¶ 22.] SDCL 19-16-3(1) (Rule 801(d)(2)(l)) provides that an admission offered against a party is not hearsay: “A statement is not hearsay if it is offered against a party and is: [h]is own statement, in either his individual or a representative capaeity[.]” “It is not necessary that the out-of-court statement be against the declarant’s interest at the time it is made. The statement must be adverse to the party’s case at the time of trial and be offered against the party[.]” Fritzmeier v. Krause Gentle Corp.,
Any prior statement of a party is admissible if it is offered against the party at trial. The test is whether the statement is being offered at trial for a purpose that is relevant to the lawsuit.... The admission can be oral or written, or nonverbal conduct if intended as an assertion.
Id.
[¶ 23.] One type of “[p]arty admission[] commonly admitted into evidence include[s] a defendant’s statements to police[.]” Jack B. Weinstein & Margaret A. Berger, Weinstien’s Federal Evidence, § 801.30[2] (2d ed 2009). In this case, both defendants told Deputy Koens on the night of the incident that Cory threw Johnson against the wall. At trial, both defendants testified that rather than throwing Johnson, Cory was gently escorting Johnson out of the bar when Johnson staggered and fell. Their earlier statements were clearly offered against them and were adverse to their case at trial. Therefore, their statements qualified as non-hearsay party admissions.
[¶ 24.] DuBray does not prohibit this type of party-opponent admission. Deputy Koens’s recitation of the defendants’ statements is not a narrative of his “investigation, ... interviews, and ... contacts” that may be “heavily influenced by the beliefs, impressions, and, at times, hunches of the investigating officer.” See DuBray,
Conclusion
[¶ 25.] Koens’s police report was admissible under the business record exception, SDCL 19-16-10 (Rule 803(6)), to prove that Koens recorded the defendants’ statements. The defendants’ statements themselves were substantively admissible under SDCL 19-16-3(1) (Rule 801(d)(2)(D) as non-hearsay admissions of party opponents. Because each level of the statements qualified for admission under a hearsay rule, the report was admissible as hearsay within hearsay under SDCL 19-16-36 (Rule 805).
[¶ 26.] Affirmed.
Notes
. The report has check boxes categorizing persons as subjects and victims. The report categorized Cory as the "subject” and Johnson as the “victim.” Although defendants also object to this notation, the reference to subjects and victims was never argued to the jury. Considering all of the evidence, we see no reversible error arising from admission of this portion of the report.
. Johnson’s counsel elaborated that Kela and Cory "weren’t being truthful about the story they told [the jury]” in light of the statements they gave to Deputy Koens. Regarding the defendants’ contradictory story at trial that Johnson was so intoxicated he lost his balance and fell, Johnson’s counsel noted that defendants did not “have that version of the story that night.” He continued:
They hadn’t had time to think of that. They hadn’t had time to come up with an excuse for why Rusty broke his leg. That’s what happened later, after they gave the story. Later they decide, oh, we might have a problem here, we better figure out what we can say happened that he broke his leg, now let's blame Rusty for that.
. See also United States v. Ledford,
. SDCL 19-9-13 (Rule 106) provides: "When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.”
. McKernan testified that Koens also interviewed Johnson, but McKernan did not have a copy of that interview. Therefore, defendants argue that Koens’s report “lacked trustworthiness.” Koens's report, however, makes no mention of an interview with Johnson. The report only mentions that Koens "got a written statement from [Johnson’s] girlfriend, Kimberly Pinkert.” Additionally, we fail to see how Sheriff McKernan's failure to possess a copy of Koens’s interview of Johnson affects the trustworthiness of Koens’s separate report containing statements of the defendants.
Concurrence Opinion
(concurring in result).
[¶ 29.] I concur in result. I would decide this case under SDCL 19-16-12(3) (Rule 803(8)). SDCL 19-16-12(3) (Rule 803(8)) provides in part:
Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth:
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(3) In civil actions and proceedings and against the state in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, are not excluded by § 19-16-4, even though the de- ■ clarant is available as a witness, unless the sources of information or other circumstances indicate lack of trustworthiness.
This rule allows public office or agency reports to be admitted in civil cases as an exception to the hearsay rule. See supra ¶ 12 (citing Robeson,
[¶ 30.] Other jurisdictions have used a similar rule in admitting information from police reports in civil cases. See Gaddy v. Hartford Life Ins. Co.,
[¶ 31.] Once Koens’s report met the requirements of SDCL 19-16-12(3) (Rule 803(8)), its contents could then be viewed for admissibility under the rules of evidence without reference to how the parties presented the issue. Supra ¶¶ 12, 20. Having concluded that Koens’s report met the requirements of SDCL 19-16-12(3) (Rule 803(8)), I agree with Justice Zinter’s analysis that defendants’ statements within the report were admissible as non-hearsay admissions by party opponents under SDCL 19-16-3 (Rule 801(d)(2)).
[¶ 32.] SEVERSON, Justice, joins this special writing.