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Johnson v. O'Farrell

August 11, 2010

RUSTY JOHNSON, PLAINTIFF AND APPELLEE,
v.
KELA O'FARRELL AND CORY O'FARRELL, DEFENDANTS AND APPELLANTS.



APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT GRANT COUNTY, SOUTH DAKOTA HONORABLE DAVID R. GIENAPP Judge.

The opinion of the court was delivered by: Zinter, Justice

ARGUED FEBRUARY 17, 2010

[¶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.

Facts and Procedural History

[¶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*fn1 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: "Basically, what I'm going to do is sustain the objection to the admissibility of this document at this time and [I] indicated to counsel at the bench that the reasons for my sustaining it may be overcome subsequently in this trial and might not. But I'm not receiving it at this time." 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:

Q: Did you tell [Deputy Koens] that Rusty [Johnson] used to go with your girlfriend and you didn't want him in the bar?

A: I might have.

Q: Did you tell him that you did throw [Johnson] but you didn't know how he got hurt?

A: I don't recall.

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 NW2d 898 (SD 1992). Johnson's counsel then impeached Cory using his statements in Koens's report:

Q: [C]ould you read for me... what Officer Koens says that you said?

A: [Cory] stated that he did throw [Johnson] but [Cory] didn't know how [Johnson] got hurt.

***

Q: Well, did you ...


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