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Bernache v. Brown

2020 COA 106. No. 19CA0485. Hearsay—CRS § 42-2-121(2)(c)(II)—Admission of Records.

July 9, 2020


Brown was driving on a highway behind Bernache’s vehicle when he hit the median and struck Bernache’s rear passenger door and wheel well. The parties disputed why Brown hit the median. Brown maintained that he couldn’t recall the collision, asserting he suffered a sudden medical emergency; Bernache alleged that he fell asleep. A police officer spoke to an unidentified witness who said that just before he struck the median, Brown had stiffened up and leaned toward the right like he was having a heart attack. The witness left the scene before being identified, but his statement was in the officer’s report.

Bernache filed a lawsuit and later filed a motion in limine to exclude the unidentified witness’s statement within the accident report from the trial. The district court broadly interpreted CRS § 42-2-121(2)(c)(II) and ruled the report was admissible in its entirety. The jury found in Brown’s favor.

On appeal, Bernache argued that the witness’s statement was hearsay and inadmissible. As a preliminary matter, the Court of Appeals concluded that the court’s ruling on Bernache’s pretrial motion in limine preserved her hearsay objection and Bernache did not waive her right to appeal or invite error during the trial.

On the merits, Brown offered the witness’s statement as evidence that he had suffered a sudden medical emergency at the time of the accident. Hence, the statement is clearly an out-of-court statement offered for its truth and is hearsay within hearsay. While the police report was admissible under CRE 803(8), not all statements in it are necessarily admissible solely because they are contained within that report. Statements made to the officer who prepared the report are inadmissible unless they independently meet a hearsay exception. Here, the officer did not witness the accident, and other than repeating the unidentified witness’s statement, the record disclosed nothing about the circumstances under which the witness saw the accident or relayed the statement to the officer. Therefore, there is not enough record evidence to support a conclusion that the statement falls within a hearsay exception. Accordingly, the district court erred by admitting the statement, and because the statement was central to the case, the error was not harmless.

The judgment was reversed and the case was remanded for a new trial.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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