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Walker v. Spina

United States District Court, D. New Mexico

February 11, 2019

SHIRLEY J. WALKER, Plaintiff,
v.
GREGORY J. SPINA; VALLEY EXPRESS, INC., and GREAT WEST CASUALTY COMPANY, Defendants.

          Shavon M. Ayala Anthony James Ayala Attorneys for the Plaintiff

          Raul P. Sedillo Allison M. Beaulieu Butt Thornton & Baehr PC Attorneys for the Defendants

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on Plaintiff Shirley Walker's request to introduce at trial, and in response to Defendant Gregory J. Spina's anticipated testimony, the police report for Walker and Spina's automobile accident and the traffic citation for following too closely given to Spina after the accident. See Draft Transcript of Hearing at 3:6-5:11 (taken January 5, 2019)(A. Ayala). The request arose at the Court's February 5, 2019, hearing. The primary issues are: (i) whether the police report and the traffic citation are hearsay; and (ii) whether the Court should admit the police report and the traffic citation pursuant to rule 403 of the Federal Rules of Evidence. The Court assumes that Walker refers to the same police report that she attached to the Plaintiff Shirley J. Walker's Response to Defendnts' [sic] Motion for Partial Summary Judgment on Plaintiff's Claim for Punitive Damages, filed September 6, 2018 (Doc. 77)(attaching State of New Mexico Uniform Crash Report, filed September 6, 2018 (Doc. 77)(hereinafter, “Police Report”)).[1] The Court concludes that: (i) the Police Report and the traffic citation are not hearsay; and (ii) the Police Report and the traffic citation are admissible pursuant to rule 403. The Court first addresses whether the Police Report or the traffic citation violate the prohibition on hearsay. The Court then turns to whether it will admit the Police Report and the traffic citation pursuant to rule 403.

         First, the Court addresses whether the Police Report and the traffic citation violate the prohibition on hearsay. Both documents may violate the prohibition if Walker introduces them for the truth of the matters asserted but not if Walker introduces them to impeach Spina. “‘Hearsay' means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” Fed.R.Evid. 801(c) (bold in original). The New Mexico State Police officer who produced the Police Report and issued the citation, “Q. Webb, ” Police Report at 4, recorded both statements outside court would be hearsay, see Fed.R.Evid. 801(c)(1). If Walker introduces the Police Report and traffic citation for the truth of the matters asserted therein and fulfills rule 801(c)(2), rule 801 will, absent an exception, bar the evidences' introduction. See Fed.R.Evid. 801(c)(2). Walker may, however, introduce the Police Report and the traffic citation for impeachment purposes. Rule 801(c)(2) is not met when a party offers evidence for impeachment. In such situations, the party introduces the evidence for purposes other than the truth of the matters asserted. See Stephen A. Saltzburg, Michael M. Martin, & Daniel J. Capra, Federal Rules of Evidence Manual § 801.03[2][f][ix], at 801-136 to -138 (11th ed. 2015)(citing cases classifying evidence used for impeachment as non-hearsay evidence). Walker explains that she will introduce the Police Report and traffic citation if Spina testifies to information contradicting the sources. If Walker introduces the documents for such purposes, neither the Police Report nor the traffic citation would violate the rule against hearsay.

         If Walker desires to introduce the Police Report and the traffic citation for the truth of the matters asserted, several hearsay exceptions could accommodate the portions of the Police Report describing the officer's observations and factual findings. Rule 803(8)(A)(ii) of the Federal Rules of Evidence makes admissible “a record or statement of a public office” setting out “a matter observed while under a legal duty to report, ” although the rule excludes from the exception, “in a criminal case, a matter observed by law-enforcement personnel.” Fed.R.Evid. 803(8)(A)(ii). Under rule 803(8)(A)(iii) of the Federal Rules of Evidence, “[a] record or statement of a public office . . . [that] sets out . . . factual findings from a legally authorized investigation” is admissible “in a civil case.” Fed.R.Evid. 803(8)(A)(iii). Both exceptions apply only if “the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.” Fed.R.Evid. 803(8)(B). Rule 803(6) of the Federal Rules of Evidence provides:

(6) Records of a Regularly Conducted Activity.
A record of an act, event, condition, opinion, or diagnosis if:
(A) the record was made at or near the time by -- or from information transmitted by -- someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and
(E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.

Fed. R. Evid. 803(6). Courts have held police reports admissible under all the above exceptions. See, e.g., United States v. Snyder, 787 F.2d 1429, 1434 (10th Cir. 1986)(admitting police report under 803(6)); United States v. DeLeon, 316 F.Supp.3d 1303, 1306 (D.N.M. 2018)(Browning, J.)(admitting police report under 803(A)(iii)); Dorato v. Smith, 108 F.Supp.3d 1064, 1071 n.6 (D.N.M. 2015)(Browning, J.)(noting that police reports are admissible under 803(A)(ii)); Sanchez v. Cano-Marquez, No. CIV 14-0926 MV/GBW, 2015 WL 13662863, at *4 (D.N.M. April 20, 2015)(Wormuth, M.J.), report and recommendation adopted, No. CIV 14-0926 MV/GBW, 2015 WL 13662864 (D.N.M. May 21, 2015)(Vazquez, J.)(same); Wood v. Millar, No. CIV 13-0923 RB/CG, 2015 WL 12661926, at *4 (D.N.M. Feb. 19, 2015)(Brack, J.)(same); Michell v. Thompson, No. CIV 12-0316 KBM/GBW, 2013 WL 12333985, at *1 (D.N.M. March 5, 2013)(Molzen, MJ.)(same); Lunsford v. Howard, No. CIV 11-0169 LH/LAM, 2012 WL 13081663, at *6 (D.N.M. March 31, 2012)(Hansen, J.)(admitting police report under 803(6)); United States v. Goad, 739 F.Supp. 1459, 1461 (D. Kan. 1990)(Theis, J.)(same). Only a police officer's observations and knowledge, however, are admissible under the exceptions above. See, e.g., United States v. Snyder, 787 F.2d at 1434 (“[I]t is well established that although entries in a police or investigating officer's report which result from the officer's own observations and knowledge may be admitted, statements made to the officer by third parties under no business duty to report may not.” (citing United States v. Pazsint, 703 F.2d 420, 424 (9th Cir. 1983)); Meder v. Everest & Jennings, Inc., 637 F.2d 1182, 1186-87 (8th Cir. 1981); United States v. Yates, 553 F.2d 518, 521 (6th Cir. 1977); United States v. Smith, 521 F.2d 957, 964 (D.C. Cir. 1975)); Dorato v. Smith, 108 F.Supp.3d at 1071 n.6 (noting that third parties' statements in police reports require separate hearsay exceptions (citing Walker v. City of Okla. City, 203 F.3d 837, 2000 WL 135166, at *8 (10th Cir. Feb. 7, 2000)(unpublished table opinion))[2]).

         In its Memorandum Opinion and Order, 2018 WL 6519133, filed December 11, 2018 (Doc. 104)(“MOO”), the Court ...


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