Johnson v. O'farrell, 25336.
| Decision Date | 11 August 2010 |
| Docket Number | No. 25336.,25336. |
| Citation | 2010 S.D. 68,787 N.W.2d 307 |
| Parties | Rusty JOHNSON, Plaintiff and Appellee,v.Kela O'FARRELL and Cory O'Farrell, Defendants and Appellants. |
| Court | South Dakota Supreme Court |
John D. Knight of Gunderson, Evenson, Boyd, Knight & Stoltenburg, LLP, Clear Lake, South Dakota, Attorneys for plaintiff and appellee.
Larry M. Von Wald, Beardsley, Jensen & Von Wald, Prof. LLC, Rapid City, South Dakota, Attorneys for defendants and appellants.
[¶ 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 sheriff's 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.
[¶ 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 “escort[ing] [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 1 states:
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.
[¶ 6.] During Johnson's case-in-chief, Johnson called Grant County Sheriff Michael McKernan. McKernan testified that he was “somewhat” familiar with the incident, but that he had not investigated it. Johnson then laid a foundation for Koens's report under the business records exception to the hearsay rule. Sheriff McKernan testified that Koens's report was “a routine part of doing an investigation,” and that it was a record “kept in the ordinary course of business at the sheriff's office.” Defendants voir dired McKernan for purposes of an objection. McKernan initially indicated he could not verify the accuracy of Koens's report without contacting Koens.
[¶ 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: 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:
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, 484 N.W.2d 898 (S.D.1992). Johnson's counsel then impeached Cory using his statements in Koens's report:
[¶ 9.] Johnson also used Koens's report to cross-examine Kela following her direct examination. As previously mentioned, Kela had testified that 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:
[¶ 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.
[¶ 12.] “We review a trial court's ruling on the admissibility of evidence under an abuse of discretion standard.” State v. Williams, 2006 SD 11, ¶ 8, 710 N.W.2d 427, 430. Although “admission of evidence in violation of a rule of evidence is an error of law that constitutes an abuse of discretion,” DuBray v. S.D. Dep't of Social Servs., 2004 SD 130, ¶ 8, 690 N.W.2d 657, 661, admitting evidence on an incorrect ground will be affirmed if the evidence was admissible on a different ground. See Robeson v. State, 285 Md. 498, 502, 403 A.2d 1221, 1223 (1979) (...
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