v. Brown

2020 COA 106, 471 P.3d 1234

• Court: Colorado Court of Appeals
• Decided: July 9, 2020
• Docket: 19CA0485, Bernache
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY JULY 9, 2020

2020COA106

No. 19CA0485, Bernache v. Brown — Vehicles and Traffic — Records to Be Kept by Department — Admission of Records in Court; Evidence — Hearsay

In this proceeding, a division of the court of appeals considers

whether section 42-2-121(2)(c)(II), C.R.S. 2019, allows automatic

admission of a hearsay statement within a traffic accident report.

The division concludes that the district court misinterpreted the

statute when it admitted a witness’s hearsay statement contained

in the report where the statement did not independently satisfy a

hearsay exception. Because the division reverses the judgment and

remands the case for new trial where a new jury will decide the

matter, it does not consider the claim that a juror committed

misconduct. COLORADO COURT OF APPEALS 2020COA106

Court of Appeals No. 19CA0485 El Paso County District Court No. 17CV31772 Honorable Chad Clayton Miller, Judge

Celena Esther Jean Bernache,

Plaintiff-Appellant,

v.

Gary Brown,

Defendant-Appellee.

JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS

Division A Opinion by JUDGE FOX Bernard, CJ., and Berger, J., concur

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 ¶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.

1 ¶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.

2 ¶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.

3 ¶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 (quoting Dep’t of

Health v. Donahue, 690 P.2d 243, 247 (Colo. 1984)). To hold a

1 But when a party violates the court’s pretrial order, common sense militates in favor of requiring a contemporaneous objection. See People v. Dinapoli, 2015 COA 9, ¶ 22. In this situation, an objection does not merely revive an argument that the court has already rejected. Id. Instead, an objection serves to alert the trial court to the violation of the pretrial order and to the objecting party’s argument against the other party’s action. Id. Indeed, not requiring a contemporaneous objection would create an undesirable incentive: the party who received a favorable pretrial ruling could sit silently while the ruling was violated at trial and then, if the party received an adverse verdict, move for a new trial based on the error. Id.

4 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 (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.

¶ 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

5 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

6 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.

¶ 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

7 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).

8 ¶ 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. A

trial court abuses its discretion if its ruling is manifestly arbitrary,

unreasonable, or unfair, or the court bases its ruling on an

erroneous view of the law or on a clearly erroneous assessment of

the evidence. Front Range Res., LLC v. Colo. Ground Water Comm’n,

2018 CO 25, ¶ 15.

2. Analysis

¶ 20 The witness told Steele that he saw Brown “‘[s]tiffen up’ and

lean towards the right like he was having a heart attack.” Brown

offered this statement at trial as evidence that he suffered a sudden

medical emergency at the time of the accident. Hence, the witness

statement is clearly an out-of-court statement offered for its truth.

See CRE 801(c).

¶ 21 Next, because the witness statement is hearsay within

hearsay, we must consider if it qualifies as a hearsay exception

9 independent of the fact that it appears in a police report. See CRE

805; Orth, 163 Colo. at 138-40, 429 P.2d at 281; Michael, 138 Colo.

at 456, 334 P.2d at 1094; Leiting, 58 P.3d at 1053. While the report

contains no identifying information about the witness, one can infer

that the witness spoke with Steele after the accident occurred.

Without more foundation, we cannot conclude that the statement

automatically qualifies as a present sense impression under CRE

803(1). Further, while it is possible the witness was startled by

what he had observed, this witness was not directly involved in the

accident. Considering that the witness made the statement after

the accident and that Steele recorded no other observations about

the witness’s demeanor, there is simply not enough evidence in the

record for us to conclude that the witness statement is an excited

utterance under CRE 803(2).2 The district court’s in limine ruling

recognized as much.

¶ 22 Accordingly, the record supports the trial court’s conclusion,

in its in limine ruling, that the witness statement did not qualify for

2 While the district court ultimately admitted the witness statement under section 42-2-121(2)(c)(II), C.R.S. 2019, it first concluded that the statement did not qualify as a present sense impression or an excited utterance. This finding is not disputed on appeal.

10 a hearsay exception under the Colorado Rules of Evidence. See

CRE 803(1)-(2); Leiting, 58 P.3d at 1053. And, as we explain below,

the admissibility of police reports does not immunize other hearsay

within such reports.

C. Section 42-2-121(2)(c)(II) Does Not Allow Admission of Hearsay Statements within Official Reports unless They Independently Qualify as Hearsay Exceptions

¶ 23 Given that the witness statement did not satisfy a hearsay

exception under the Colorado Rules of Evidence, we now consider if

the district court properly relied on section 42-2-121(2)(c)(II) to

admit the statement. Brown argues that the plain language of

section 42-2-121(2)(c)(II) allows the court to admit the full contents

of official reports, including hearsay statements. We disagree.

1. Standard of Review and Applicable Law

¶ 24 We review de novo questions of statutory interpretation. Hall

v. Am. Standard Ins. Co. of Wis., 2012 COA 201, ¶ 19. “[W]hen the

statutory language is clear and unambiguous, we need not look

beyond its plain terms and must apply the statute as written.” Id.

(citing Kyle W. Larson Enters., Inc. v. Allstate Ins. Co., 2012 COA

160M, ¶ 10). If statutory language is ambiguous or if the statute is

silent on an issue that would be expected to be within its scope, we

11 enlist tools of statutory interpretation to discern the legislature’s

intent. In re Marriage of Alvis, 2019 COA 97, ¶ 9 (citing People v.

Ray, 2018 COA 158, ¶ 16). “Those tools include legislative history,

prior law, the consequences of a particular construction, and the

goal of the statutory scheme.” Id. (citing In re Marriage of Ikeler,

161 P.3d 663, 668 (Colo. 2007)). A statute is ambiguous if multiple

reasonable interpretations are possible. Andrews v. Miller, 2019

COA 185, ¶ 21 (citing Carrera v. People, 2019 CO 83, ¶ 18).

¶ 25 “We must interpret the statute ‘to give consistent, harmonious,

and sensible effect to all its parts.’” Alvis, ¶ 9 (quoting Ikeler, 161

P.3d at 667). “A statutory interpretation leading to an illogical or

absurd result will not be followed,” Frazier v. People, 90 P.3d 807,

811 (Colo. 2004), and courts “avoid constructions that are at odds

with the legislative scheme,” Bryant v. Cmty. Choice Credit Union,

160 P.3d 266, 274 (Colo. App. 2007).

¶ 26 We review evidentiary rulings in civil cases for harmless error.

C.R.C.P. 61; Laura A. Newman, LLC v. Roberts, 2016 CO 9, ¶ 24.

We will not disturb a judgment unless a court’s error affected the

substantial rights of the parties. C.R.C.P. 61. An error affects the

substantial rights of the parties if it “substantially influenced the

12 outcome of the case or impaired the basic fairness of the trial itself.”

Laura A. Newman, LLC, ¶ 24 (quoting Bly v. Story, 241 P.3d 529,

535 (Colo. 2010)) (emphasis omitted).

¶ 27 Section 42-2-121(2)(c)(II) provides, in relevant part, as follows:

In any trial or hearing, all official records and documents of the state of Colorado . . . shall be admissible in all municipal, county, and district courts within the state of Colorado without further foundation, shall be statutory exceptions to rule 802 of the Colorado rules of evidence, and shall constitute prima facie proof of the information contained therein.3

The statute has declared, since 1990, that official state reports are

“statutory exceptions to rule 802.”

¶ 28 The parties disagree whether this exception applies to hearsay

within official state reports. Brown argues that the plain language

of section 42-2-121(2)(c)(II) is clear on its face and allows blanket

admission of official reports.

¶ 29 Section 42-2-121 clearly allows a court to admit official state

reports, even if the report itself is hearsay and does not qualify as a

3 There is no dispute that the statute applies to police reports. The record shows that the police report was to be filed with the Division of Motor Vehicles in the Department of Revenue.

13 hearsay exception. But the statute does not explicitly address

whether hearsay statements within official state reports are

automatically admissible. Given its silence on that issue, the

statute’s declaration that official state reports are statutory

exemptions to CRE 802 is susceptible of multiple reasonable

interpretations. See Andrews, ¶ 21. Thus, we must use tools of

statutory construction to determine if the legislature intended

section 41-2-121(2)(c)(II) to allow admission of hearsay within

official reports. See Alvis, ¶ 9.

¶ 30 Bernache argues we should interpret section 42-2-121(2)(c)(II)

as courts have interpreted CRE 803(8) and Fed. R. Evid. 803(8), the

analogous federal rule. Colorado cases — before and after the 1990

enactment of the statutory provision at issue — have repeatedly

recognized that hearsay in a police report is inadmissible. See Orth,

163 Colo. at 138-40, 429 P.2d at 281; Michael, 138 Colo. at 456,

334 P.2d at 1094; Leiting, 58 P.3d at 1053; Quintana, 56 P.3d at

1198; see also Schnabel v. Waters, 37 Colo. App. 498, 501-04, 549

P.2d 795, 799-800 (1976) (affirming trial court’s exclusion of

information in a police report); Polster v. Griff’s of Am., Inc., 34 Colo.

App. 161, 165-66, 525 P.2d 1179, 1182 (1974) (police report

14 properly excluded); Watson v. Watson, 507 P.2d 1122, 1126 (Colo.

App. 1973) (not published pursuant to C.A.R. 35(f)) (factual

information in investigative report of state agency not admitted

unless based on personal knowledge). But see Lannon v. Taco Bell,

Inc., 708 P.2d 1370, 1374 (Colo. App. 1985) (police reports could

qualify as business records and admitting the same in a civil case,

but without explaining why the hearsay therein was reliable).

¶ 31 Focusing on the post-enactment cases, in Leiting, a division of

this court held hearsay statements within public records are not

automatically admissible under CRE 803(8).4 58 P.3d at 1053. And

in Quintana, 56 P.3d at 1198, a division of this court concluded that

the trial court properly excluded eyewitness statements that were

attached to police reports because those statements were hearsay.

¶ 32 Brown’s proposed interpretation of section 42-2-121(2)(c)(II)

would create an exception for official state records and reports from

the general rule that hearsay statements within public records are

4 Similarly, in Parsons v. Honeywell, Inc., cited in Leiting v. Mutha, 58 P.3d 1049, 1053 (Colo. App. 2002), the Second Circuit held that, while traffic reports are generally admissible under Fed. R. Evid. 803(8), hearsay statements within them are inadmissible unless they satisfy a hearsay exception. 929 F.2d 901, 907 (2d Cir. 1991).

15 inadmissible unless they independently qualify for a hearsay

exception. See CRE 805; Leiting, 58 P.3d at 1053. To determine if

the legislature intended section 42-2-121(2)(c)(II) to create such an

exception for official state records, we look to the legislative history

underlying section 42-2-121(2)(c)(II).

a. Legislative History of Section 42-2-121(2)(c)(II)

¶ 33 Section 42-2-121 is similar to section 42-2-118 as it existed

before 1994. See Ch. 18, sec. 1, § 42-2-118(2)(c)(II), 1993 Colo.

Sess. Laws 40. The General Assembly first addressed the

admission of official state records in court in 1977, see Ch. 551,

sec. 1, § 42-2-118(2), 1977 Colo. Sess. Laws 1867, but did not add

language addressing CRE 802 until 1990, see Ch. 298 sec. 6, § 42-

2-118(2)(c)(I), 1990 Colo. Sess. Laws 1780. In making that

amendment, the General Assembly did not address hearsay within

official state records; however, it emphasized that the primary

purpose of section 42-2-118(2)(c)(II) was to ensure that state

personnel no longer had to appear before courts could admit official

state records into evidence. See Hearings on H.B. 90-1272 before

the H. Judiciary Comm., 57th Gen. Assemb., 2d Sess. (Feb. 13,

1990); Hearings on H.B. 90-1272 before the S. Judiciary Comm.,

16 57th Gen. Assemb., 2d Sess. (Mar. 20, 1990); Hearings on H.B.

90-1272 before the S. Judiciary Comm., 57th Gen. Assemb., 2d

Sess. (Mar. 21, 1990). The General Assembly also emphasized that

parties could still challenge the contents of official reports. See,

e.g., Hearings on H.B. 90-1272 before the S. Judiciary Comm., 57th

Gen. Assemb., 2d Sess. (Mar. 20, 1990).

¶ 34 Thus, it is apparent that the legislature never intended to

exempt official state records from any challenge under the rules of

evidence; rather, the legislature sought to exempt official state

records from rules of evidence that would require state officials to

appear in court.

¶ 35 With this background in mind, we conclude that section 42-2-

121(2)(c)(II) does not allow admission of hearsay statements within

official state reports unless those statements independently satisfy

a hearsay exception. The purpose of section 42-2-121(2)(c)(II) is to

prevent state officials from having to appear in court, but even if an

official appears and testifies to the facts contained in a report — as

was the case here — that official cannot testify to the truth of

statements made by others regarding matters the official did not

personally observe. Westinghouse Elec. Corp. v. Dolly Madison

17 Leasing & Furniture Corp., 326 N.E.2d 651, 657 (Ohio 1975). The

testimony of a state official in court authenticating an official state

record alone does not render a third-party hearsay statement

admissible. Thus, we do not believe the legislature, in reducing the

burden on public record custodians and other state officials,

intended to allow admission of otherwise inadmissible hearsay

statements merely because they appear in an official state record.

See Orth, 163 Colo. at 141, 429 P.2d at 282 (“[I]t is obvious that the

mere writing down of hearsay does not remove the bar to its

admission”).5

5 Orth v. Bauer, 163 Colo. 136, 141, 429 P.2d 279, 282 (1967), and Westinghouse Electric Corp. v. Dolly Madison Leasing & Furniture Corp., 326 N.E.2d 651, 657 (Ohio 1975), predate the adoption of the Federal (and Colorado) Rules of Evidence. However, the Federal Rules of Evidence, which the Colorado rules largely track, are “organic growths out of our common law, . . . and must be construed with that pedigree in mind.” United States v. Fryberg, 854 F.3d 1126, 1132 (9th Cir. 2017) (citations omitted). Thus, we rely on these cases for their articulation of the principles that underlie statutory public records exceptions to rules against hearsay. Interestingly, the comments to Fed. R. Evid. 803(6) include the following explanation concerning the limited admissibility of police reports: Sources of information presented no substantial problem with ordinary business records. All participants, including the observer or participant furnishing the information to be recorded, were

18 ¶ 36 Our interpretation of section 42-2-121(2)(c)(II) is consistent

with the rationale behind the general rule against admitting

hearsay: opponents cannot cross-examine the out-of-court speaker.

See Nicholls v. People, 2017 CO 71, ¶ 15 (“[H]earsay statements are

presumptively unreliable since the declarant is not present to

explain the statement in context. . . . Moreover, since the declarant

is not subjected to cross-examination, the truthfulness of the

statement is questionable.” (quoting Blecha v. People, 962 P.2d 931,

937 (Colo. 1998))); see also People v. Dist. Court, 719 P.2d 722, 727

(Colo. 1986) (recognizing that parties to “civil litigation also have a

acting routinely, under a duty of accuracy, with employer reliance on the result, or in short “in the regular course of business.” If, however, the supplier of the information does not act in the regular course, an essential link is broken; the assurance of accuracy does not extend to the information itself, and the fact that it may be recorded with scrupulous accuracy is of no avail. An illustration is the police report incorporating information obtained from a bystander: the officer qualifies as acting in the regular course but the informant does not. The leading case, Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517 (1930), held that a report thus prepared was inadmissible. Most of the authorities have agreed with the decision. Fed. R. Evid. 803 advisory committee’s note to paragraph 6 (emphasis added).

19 limited constitutional right to thoroughly cross-examine adverse

witnesses”).

¶ 37 The purpose of public and official record exceptions is “to

admit the sundry sorts of public documents for which no serious

controversy ordinarily arises about their truth.” United States v.

Fryberg, 854 F.3d 1126, 1132 (9th Cir. 2017) (quoting United States

v. Orellana-Blanco, 294 F.3d 1143, 1150 (9th Cir. 2002)). But,

unlike official records generally, hearsay statements within official

records are not necessarily trustworthy, and opponents should have

the opportunity to test the accuracy of those statements through

cross-examination. See Westinghouse, 326 N.E.2d at 657

(“[Hearsay statements are] not made competent by commitment to

writing in an official report, since it remains evidence not subject to

cross-examination and not based on first-hand knowledge.”).

¶ 38 Accordingly, we conclude that section 42-2-121(2)(c)(II) does

not exempt official state records from the rules regarding hearsay

within hearsay and that the district court erred by admitting the

20 unidentified witness statement.6 See CRE 805; Orth, 163 Colo. at

141, 429 P.2d at 282; Leiting, 58 P.3d at 1053.

b. The District Court’s Error Was Not Harmless

¶ 39 Having concluded that section 42-2-121(2)(c)(II) does not allow

admission of hearsay within official state reports unless the

statements independently qualify as hearsay exceptions, we now

consider whether the district court’s error was harmless. We

conclude it was not.

¶ 40 Brown’s entire defense was that he suffered a sudden medical

emergency during the accident, and the witness statement was the

strongest evidence of his claimed medical emergency. While a

neurologist testified as an expert about Brown’s possible medical

emergency, the neurologist could not say what medical condition or

event caused Brown to lose control of his vehicle. Moreover, Brown

himself claimed he had no recollection of why or how the accident

6 The inclusion of the unidentified witness statement does not render the entire report inadmissible; the district court could have required the parties to redact the witness statement and admitted the portions of the report that memorialized Steele’s personal observations. See, e.g., Leiting, 58 P.3d at 1052 (“[P]ortions of a record or report that set forth factual findings resulting from an investigation made pursuant to authority granted by law are admissible under CRE 803(8)(C).”).

21 occurred. Thus, the jury must have relied heavily — if not entirely

— on Steele’s testimony and the unidentified witness statement in

reaching its verdict. Indeed, a substantial number of the jurors’

questions centered on Brown’s condition. For example, one juror

asked Steele, “[i]f the witness didn’t mention the medical

emergency, would you have [reached] the same conclusion? Why?

Did Mr. Brown mention a medical problem?” The question was

posed with the parties’ agreement. Steele responded that he

concluded Brown suffered a medical emergency because of the

witness’s statement and that he did not recall Brown mentioning a

medical problem. Another juror inquired: “If the witness said it

looked like a heart attack, which you thought was the cause of the

accident, why would you not follow up to check for a heart attack?”7

Steele responded that the medical team is responsible for evaluating

an individual’s medical condition and that the police cannot force

individuals involved in an accident to go to the hospital. These

7 The jurors posed additional questions on this subject, some of which the parties agreed should not be posed to Steele. Even the questions that were not posed to Steele show that the witness’s statement about Brown was central to the jurors’ thought processes.

22 questions highlight the centrality of the hearsay statement to the

case.

¶ 41 Because the jury might have reached a different verdict had

the court excluded the unidentified witness statement from the

trial, the error here was not harmless. See Leiting, 58 P.3d at 1053

(“[E]rror is not harmless if a different result might have been

reached had the inadmissible evidence been excluded”); C.R.C.P.

61; Laura A. Newman, LLC, ¶ 24. Accordingly, we remand the case

for a new trial.

¶ 42 Given our disposition, we need not address Bernache’s juror

misconduct claim.

III. Conclusion

¶ 43 The judgment is reversed, and the case is remanded for a new

trial.

CHIEF JUDGE BERNARD and JUDGE BERGER concur.