EVIDENCE - CRUSOE V. DAVIS

Crusoe v. Davis, [Ms. 1130798, Feb. 20, 2015] __ So. 3d __ (Ala. 2015). Plaintiff Crusoe alleged and testified that, as she was turning right at an intersection, defendant Davis drove her vehicle into the right side of Crusoe's car. Davis said her car was not moving and Crusoe sideswiped her. Crusoe attempted to introduce into evidence the narrative statement in the police report as an admission by Crusoe to the officer falling outside the hearsay rule. The Court held that the trial court properly excluded the report itself as hearsay. Crusoe put the officer on the stand and tried to use the report to refresh his recollection, but the Court holds that the officer did not indicate that his recollection was revived, but only read what he had written, so he was properly excluded from testifying based on the "present recollection revived" doctrine. The Court next holds that the report was not admissible under the "past recollection recorded" exception to the hearsay rule because the officer did not have firsthand knowledge of what he wrote in the report. As to whether what he wrote in the report was an admission by Ms. Davis, the Court holds that "the admission-by-party-opponent rule does not apply to an inference that a statement was made." The officer's report reported no statements attributable to Davis, but only his opinion as to how the accident occurred. Thus, the Court holds that the circuit court did not exceed its discretion in excluding the accident report or in denying Crusoe's motion for a new trial after a verdict for Davis. The opinion is published under Chief Justice Moore's name, but Chief Justice Moore also concurred specially, saying that neither party cited ¤ 32-10-11, Ala. Code 1975, but he disapproves the interpretation (citing cases) that this statute applies to police accident reports. He notes that if it did, it would provide an independent basis for affirming the judgment. Although this is pure dicta here, it provides the basis for an argument against an effort to use the statute to exclude a police accident report.