Bernache v. Brown

• Citation: 471 P.3d 1234
• Decision Date: 09 July 2020
• Docket Number: Court of Appeals No. 19CA0485
• Parties: Celena Esther Jean BERNACHE, Plaintiff-Appellant, v. Gary BROWN, Defendant-Appellee.
• Court: Court of Appeals of Colorado

471 P.3d 1234

Celena Esther Jean BERNACHE, Plaintiff-Appellant,

v.Gary BROWN, Defendant-Appellee.

Court of Appeals No. 19CA0485

Colorado Court of Appeals, Division A.

Announced July 9, 2020

McDivitt Law Firm, P.C., David E. McDivitt, Edward Lomena, Colorado Springs, Colorado, for Plaintiff-Appellant

Park & Metz LLP, Randy S. Metz, Carbondale, Colorado, for Defendant-Appellee

Opinion by JUDGE FOX

¶ 1 In this car accident litigation, plaintiff Celena Esther Jean Bernache appeals a jury verdict in favor of defendant Gary Brown, arguing that the district court erroneously admitted a hearsay statement within a traffic accident report (the report). She also argues that a juror's failure to disclose her relationship with a fact witness was misconduct. We conclude that the district court erroneously admitted the hearsay statement within the report, and the error was not harmless. So we reverse and remand the case for a new trial. Because Bernache's juror misconduct claim will not arise in the new trial, we do not consider it.

I. Background

¶ 2 On November 5, 2015, Bernache was driving south on Highway 85 toward Fountain, Colorado, with her daughter and grandson. Brown, also driving south on Highway 85 and to the left of Bernache's vehicle, hit the median and struck Bernache's rear passenger door and wheel well. The parties dispute why Brown hit the median. Brown, who has no independent recollection of the collision, insists he suffered a sudden medical emergency while Bernache alleges he fell asleep.

¶ 3 Fountain Police Department Corporal Galen Steele did not witness the accident but later responded to the accident and spoke with an unidentified witness who said that, just before he struck the median, Brown had " ‘[s]tiffen[ed] up’ and lean[ed] towards the right like he was having a heart attack." The witness left the scene before Steele could collect identifying information, but he included the witness's statement in his report.

¶ 4 Bernache filed this lawsuit on July 20, 2017, and later filed a motion in limine to exclude the unidentified witness's statement within the accident report from the trial. Broadly interpreting section 42-2-121(2)(c)(II), C.R.S. 2019 — which states, among other things, that official state records are statutory exceptions to Colorado's hearsay rule, CRE 802 — the district court ruled that the report was admissible in its entirety. Relying on the pretrial ruling, Bernache stipulated during trial to the admission of the report and did not renew her objection.

¶ 5 During jury selection, prospective juror F.L. disclosed knowing Steele through her husband. However, she said that her husband's relationship with Steele would not "color [her] thinking" about his testimony. F.L. was a juror during the trial.

¶ 6 After a two-day trial, the jury found in Brown's favor. During a later discussion about the trial, F.L. allegedly told Bernache's counsel that she gave Steele's testimony considerable weight because she knew how he thought and worked. Bernache now appeals.

II. Unidentified Witness Statement

¶ 7 Bernache first argues that the district court erred by admitting the unidentified witness's statement. Specifically, Bernache argues that (1) the witness statement is hearsay and does not satisfy a hearsay exception; and (2) the district court misinterpreted section 42-2-121(2)(c)(II) by ruling that the witness statement was admissible. We agree and remand the case for a new trial.

A. Preservation, Waiver, and Invited Error

¶ 8 Brown argues that Bernache failed to preserve her hearsay argument because she did not contemporaneously object to the court's admission of the entire report at trial. Brown also argues that Bernache waived her right to appeal this issue because she stipulated to the report's admission during trial, thereby inviting any error by referencing the witness statement in her opening argument.

¶ 9 A court's definitive ruling on a motion in limine preserves the issue for appeal. CRE 103(a) ; see also Uptain v. Huntington Lab, Inc. , 723 P.2d 1322, 1330-31 (Colo. 1986) (pretrial ruling on a motion in limine sufficiently preserves an issue for appeal); People v. Mattas , 645 P.2d 254, 260 (Colo. 1982) ("Preservation of a defendant's right to challenge a trial court's evidentiary rulings requires a [pretrial] motion to suppress the evidence or an objection at trial to its introduction."). A party abiding by the court's order need not renew an objection at trial to preserve the issue for appeal.

Bennett v. Greeley Gas Co. , 969 P.2d 754, 758 (Colo. App. 1998).¹

¶ 10 Waiver is "the intentional relinquishment of a known right or privilege." People v. Rediger , 2018 CO 32, ¶ 39, 416 P.3d 893 (quoting Dep't of Health v. Donahue , 690 P.2d 243, 247 (Colo. 1984) ). To hold a party waived objection to an error, a court must find some record evidence that the defendant intentionally relinquished a known right, Rediger , ¶ 39, indulging "every reasonable presumption against waiver" and examining the totality of the circumstances surrounding a party's conduct (or lack thereof), People in Interest of A.V. , 2018 COA 138M, ¶ 13, 446 P.3d 887 (quoting Rediger , ¶ 39 ).

¶ 11 The doctrine of invited error prevents a party from complaining on appeal of an error that he or she has invited or injected into the case. Rediger , ¶ 34. The doctrine applies in "situations where an error was caused by a party's affirmative, strategic conduct and not by a party's inaction or inadvertence." People v. Garcia , 2018 COA 180, ¶ 7, 446 P.3d 922.

¶ 12 Here, the district court definitively ruled that the report — including the hearsay from the unidentified witness — was admissible, and the court did not indicate it was willing to reconsider its ruling at trial. Because Bernache did not need to renew her objection to the witness statement to preserve it, she had nothing to gain by resisting the court's admission of the statement at trial. The witness statement was a key component of Brown's defense, and prudent trial strategy — knowing the court had approved the statement's admission — favored Bernache addressing the statement preventatively. Thus, under the totality of the circumstances, Bernache did not intentionally relinquish her right to appeal the court's admission of the witness statement by stipulating to it at trial. Nor did she invite error by addressing the witness statement during opening argument. To hold otherwise would "undermine the benefits provided by the motion in limine procedure." Uptain , 723 P.2d at 1330.

¶ 13 Accordingly, we conclude that the court's ruling on Bernache's pretrial motion in limine preserved her hearsay objection, and that Bernache did not waive her right to appeal or invite error during the trial. See id. at 1330-31 ; see also Rediger , ¶ 3.

B. The Record Supports the Trial Court's Finding that the Witness Statement Did Not Qualify as a Hearsay Exception under the Colorado Rules of Evidence

1. Applicable Law and Standard of Review

¶ 14 Hearsay is any "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." CRE 801(c). CRE 802 prohibits the admission of hearsay unless the statement meets a rule-based or statutory exception. When a statement — such as the report at issue here — contains multiple layers of hearsay, the trial court must analyze each layer separately to determine whether a recognized exception applies. CRE 805 ; People v. Phillips , 2012 COA 176, ¶ 101, 315 P.3d 136.

¶ 15 As is relevant to our analysis, a hearsay statement is admissible as a present sense impression under CRE 803(1), an excited utterance under CRE 803(2), or a public record or report as defined under CRE 803(8). A present sense impression is a statement describing an event made while the declarant was perceiving the event. CRE 803(1). An excited utterance is a statement that "relat[es] to a startling event or condition [and is] made while the declarant was under the stress of excitement caused by the event or condition." CRE 803(2).

¶ 16 CRE 803(8)(B) authorizes the admission of certain public records and reports, even though they are hearsay, unless the source of information or other circumstances indicate a lack of trustworthiness. This court has recognized that police reports are admissible under CRE 803(8). See, e.g. , Kelln v. Colo. Dep't of Revenue , 719 P.2d 358, 360 (Colo. App. 1986). But statements are not admissible under Rule 803(8) solely because they are contained in a police report.

¶ 17 While the report itself may be admissible, statements made to the officer who prepared the report are inadmissible unless they independently meet a hearsay exception. CRE 805 ; Orth v. Bauer , 163 Colo. 136, 138-40, 429 P.2d 279, 281 (1967) (hearsay statements and conclusions of police officers in a police report are not entitled to preferred status and, thus, trial court acted properly in excluding such evidence); Michael v. John Hancock Mut. Life Ins. Co. , 138 Colo. 450, 456, 334 P.2d 1090, 1094 (1959) (holding that a report and its "findings, together with the affidavits, were not admissible and that their hearsay character was not improved by giving them the status of ‘official records’ "); Leiting v. Mutha , 58 P.3d 1049, 1053 (Colo. App. 2002) (excluding hearsay statements contained in the report of an administrative law judge (citing Parsons v. Honeywell, Inc. , 929 F.2d 901, 907-08 (2d Cir. 1991) )); Quintana v. City of Westminster , 56 P.3d 1193, 1198 (Colo. App. 2002) (affirming exclusion of eyewitness statements attached to police reports).

¶ 18 Steele did not witness the accident. Aside from repeating the unidentified witness's statement, the record discloses nothing about the circumstances under which the witness saw the accident or relayed the statement to Steele.

¶ 19 We review evidentiary rulings for an abuse of discretion. Murray v. Just In Case Bus. Lighthouse, LLC , 2016 CO 47M, ¶ 16, 374 P.3d 443. A...