Banek v. Thomas , 697 P.2d 743 ( 1984 )

BABCOCK, Judge.

Defendants, J.L. Thomas and Thomas C. Reitz, appeal the judgment of joint and several liability entered upon a jury verdict awarding $75,000 compensatory and $10,-000 punitive damages to plaintiff upon his claim for assault and battery by use of excessive force during the course of an arrest. We reverse.

Prior to trial of this civil action, plaintiff was convicted following jury trial of resisting arrest, a class II misdemeanor. This conviction arose out of the same circumstances as plaintiff’s civil claim. During trial on the civil claim, after plaintiff denied on direct examination having resisted the arrest, plaintiff’s misdemeanor conviction was offered by defendants for the limited purpose of impeaching plaintiff’s veracity. The trial court refused to admit it on the grounds that it constituted inadmissible hearsay and did not qualify as an exception to the hearsay rule under CRE 803(22).

Defendants contend that this ruling was erroneous. We agree.

CRE 801(e) defines hearsay as “a statement other than one made by the de-clarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” (emphasis added) Here, the prior misdemeanor conviction is not a statement, CRE 801(a), and was offered to attack plaintiffs veracity, not to prove the truth of the matter asserted. Therefore, it does not constitute hearsay. Unless evidence constitutes hearsay as defined by CRE 801, there is nothing to which the exceptions contained in CRE 803 may apply.

Generally, credibility may not be impeached by evidence of prior misdemeanor convictions. People v. Sasson, 628 P.2d 120 (Colo.App.1980); see People v. Robles, 183 Colo. 4, 514 P.2d 630 (1973). However, evidence of prior misdemeanor convictions may be admitted to attack the veracity of specific testimony. People v. Mejia, 188 Colo. 120, 534 P.2d 779 (1975); People v. Sasson, supra; People v. Terranova, 38 Colo.App. 476, 563 P.2d 363 (1976).

Here, plaintiff specifically denied during direct examination that he had resisted arrest. Therefore, evidence of the prior misdemeanor conviction was admissible to attack the veracity of this specific testimony.

Nor can this error be deemed harmless. See C.R.C.P. 61; CRE 103(a). The parties’ testimony as to what occurred during the arrest was in sharp conflict, and determination of their credibility was critical to the jury’s verdict. Thus, the verdict could have been different had the jury been afforded the excluded evidence which was relevant to the parties’ relative veracity.

Plaintiff also contends that defendants’ offer of proof was inadequate. We disagree and conclude that the offer complied fully with the provisions of CRE 103.

Because of our disposition of these issues, it is unnecessary to address defendants’ remaining contentions.

The judgment is reversed and the cause is remanded for new trial on all issues.

PIERCE, J., concurs. STERNBERG, J., dissents.