Banek v. Thomas, 84SC352

• Decision Date: 22 December 1986
• Docket Number: No. 84SC352,84SC352
• Parties: Oren Alfred BANEK, Petitioner, v. J.L. THOMAS, individually and in his official capacity as a Weld County Deputy Sheriff; Thomas C. Reitz, individually and in his official capacity as a Weld County Deputy Sheriff; and Harold L. Andrews, in his official capacity as Weld County Sheriff, Respondents.
• Court: Colorado Supreme Court

Page 1171

733 P.2d 1171

Oren Alfred BANEK, Petitioner, v. J.L. THOMAS, individually and in his official capacity as a

Weld County Deputy Sheriff; Thomas C. Reitz, individually

and in his official capacity as a Weld County Deputy

Sheriff; and Harold L. Andrews, in his official capacity as

Weld County Sheriff, Respondents.

No. 84SC352.

Supreme Court of Colorado,

En Banc.

Dec. 22, 1986.

Rehearing Denied Jan. 26, 1987.

McNew and McNew, Jeb McNew, Barbara Scherer McNew, Nocona, Texas, for petitioner.

Halaby & McCrea, Theodore S. Halaby, Thomas L. Kanan, Jonathan A. Cross, Denver, Thomas O. David, Greeley, for respondents.

QUINN, Chief Justice.

We granted certiorari to review the decision of the court of appeals in Banek v. Thomas, 697 P.2d 743 (Colo.App.1984), which reversed a judgment in favor of the plaintiff-petitioner, Oren Alfred Banek, on his civil claim for assault and battery against the defendants-respondents, Weld County sheriff deputies Jeffrey L. Thomas and Thomas C. Reitz. In reversing the judgment and remanding the case for a new trial, the court of appeals held that the district court erred in excluding as hearsay a prior judgment of conviction entered against Banek for resisting arrest, which conviction was based on the same transaction as Banek's civil claim for assault and battery. In the court of appeals' view, the excluded evidence was not hearsay and should have been admitted for impeachment purposes. We conclude that the judgment of the prior misdemeanor conviction was hearsay evidence which did not qualify for the hearsay exception of CRE 803(22) pertaining to a judgment of a previous conviction, but that the defendants should have been allowed to cross-examine Banek about his prior conviction for the purpose of impeaching his testimony concerning his nonresistance to the arrest. We accordingly affirm the judgment of the court of appeals.

I.

On December 14, 1978, at approximately 11:00 p.m., sheriff deputies Thomas and Reitz were on patrol near Greeley, Colorado, when they observed a car being driven by Banek at a speed which the officers considered too fast for the icy conditions of the road. Banek owned and operated a tavern in Greeley and was returning home at this time. The officers followed Banek for a short distance and then stopped behind him as he pulled his car into the driveway of his residence. Officer Reitz asked Banek for his driver's license and registration. Banek initially refused the officer's request, allegedly because he thought it was a joke. The sequence of events immediately following this part of the confrontation was in considerable dispute.

Banek claimed that as he was reaching into his car for his registration, the officers forced him to the ground, pulled his arm behind his back in an effort to handcuff him, and dislocated his shoulder in the process. The officers, in contrast, claimed that Banek continually refused to produce his license and car registration, that he swung at the officers when informed that he was under arrest and was about to be handcuffed, and that the officers had to physically restrain him in order to place the handcuffs on him.

After handcuffing Banek, the officers took him to the sheriff's department where he was booked on charges of resisting arrest and released on a $250 cash bond. Banek went directly to Weld County Hospital and received treatment for his shoulder. He suffered a dislocation of the shoulder, which was treated without surgery. During the months that followed, Banek experienced five additional incidents of dislocation and eventually underwent reconstructive surgery on his shoulder.

As a result of Banek's altercation with the officers during the arrest, he was charged with resisting arrest, a class 2 misdemeanor carrying a maximum sentence of twelve months imprisonment and a $1,000 fine. §§ 18-8-103 and 18-1-106, 8B C.R.S. (1986). ¹ The resistance charge was tried to a jury in county court on June 18, 1979, and Banek was found guilty.

On December 11, 1979, Banek filed a civil action in the Weld County District Court for assault and battery against Reitz and Thomas. Banek sought actual and punitive damages for injuries suffered as a result of allegedly excessive force used by the officers in arresting him on December 14, 1978. ² The defendants denied liability and as an affirmative defense claimed that they used no more force than was reasonably necessary to overcome Banek's unlawful resistance to his arrest. Immediately prior to the commencement of trial on August 3, 1982, Banek filed a motion for the exclusion of any evidence pertaining to his conviction for resisting arrest, claiming that such evidence was not probative of any material fact in issue, was not proper impeachment evidence, and would be highly prejudicial if admitted. The trial court did not rule on the motion until later in the trial.

During the trial, Banek testified to the following sequence of events concerning the arrest. When he realized that the officers were not playing a joke on him, he initially told them that they were not entitled to see his driver's license until they told him the speed at which he had been driving. He then produced his wallet for the officers and was told that his license had expired. As Banek was reaching into his car for his automobile registration, one of the officers pulled him to the ground, and with Banek's face in the ground the officer placed his knee on his back and both officers then pulled Banek's arms behind him in order to handcuff him. Banek at this time felt a sharp pain in his right shoulder and sensed that it had given out. He denied fighting with the officers and stated that while he was on the ground he said to the officers, "Let me up ... you can handcuff me," but the officers kept shouting, "You're under arrest, ... you're resisting." On cross-examination, Banek gave the following testimony:

Q Isn't it true, sir, that while you were being patted down, it was at that time Officer Thomas who said you were under arrest?

A No, sir.

Q Isn't it true that as he went to reach for your hand to handcuff you, you then pivoted around and took a swing at Officer Reitz that was standing just to the rear of him?

A No, sir.

Q Isn't it true that at that moment Officer Thomas tried to grab you from behind, and you kept struggling from behind, and he had to kick your foot out and you both fell to the ground at that time?

A No, sir.

Q None of that is true?

A No, sir.

* * *

* * *

Q You were ready to cooperate with them in every respect as soon as they told you you were under arrest; is that right?

A I had no choice. I had to cooperate with them.

Q That was your intent, right?

A Yes, sir.

Q You're telling the jury that in no way did you ever resist after they told you you were under arrest?

A That answers the question. I did not resist arrest.

After Banek gave this testimony, defense counsel, outside the presence of the jury, requested permission to offer into evidence Banek's prior conviction for resisting arrest. Although defense counsel argued that the prior conviction estopped Banek from denying that he resisted, it was clear from the context of the argument that defense counsel was also seeking to cross-examine Banek about the prior conviction in order to impeach his testimony that he had not resisted arrest. ³ The trial court ruled that the prior judgment of conviction did not qualify for the hearsay exception created by CRE 803(22) because the maximum sentence for resisting arrest was not in excess of one year and that the defendants would not be permitted to ask any questions or offer any evidence regarding the prior conviction.

Upon conclusion of Banek's evidence, Officers Thomas and Reitz gave their version of the circumstances surrounding the arrest. According to their testimony, Banek protested the initial stop, arguing that the officers had no jurisdiction to stop him on his own property. Banek refused to produce his driver's license and registration until the officers told him the speed at which he had been traveling. When Reitz made two further requests for the license and registration, Banek responded with obscenities. At that point Thomas told Banek that if he didn't produce his license and registration he would be placed under arrest. When Banek again responded with an obscenity Thomas placed him under arrest for failure to exhibit his driver's license on demand. § 42-2-113, 17 C.R.S. (1984). While the officers were conducting a pat down search, Banek placed his hands on the back of his vehicle and spread his legs apart. As Thomas was in the process of bringing Banek's left arm around to the rear of Banek's body in order to handcuff him at the wrists, Banek whirled around and threw a punch at Reitz. A fight ensued during which Thomas was eventually able to kick Banek's foot from under him and bring him to the ground. The officers then wrestled Banek under control. Due to Banek's upper body strength, his wide shoulders, and his continued struggling, they had to link together two sets of handcuffs in order to cuff both wrists behind his back.

The jury returned verdicts in favor of Banek, assessed his compensatory damages at $75,000, and imposed $10,000 punitive damages against each defendant. The district court entered judgment on the jury verdicts and denied the defendants' motion for a new trial. ⁴

The defendants appealed, and the court of appeals reversed the judgment and ordered a new trial. It held that Banek's prior misdemeanor conviction did not qualify as a hearsay statement under CRE 801 and hence the hearsay exception of 803(22) was inapplicable to the case, that evidence of the prior conviction was nonetheless admissible to impeach Banek's testimony that he did not resist arrest, and that the trial court's exclusion of this evidence could not be deemed harmless error. We granted certiorari to consider the correctness of the court of appeals' decision. We conclude...