1. AUTOMOBILES — Accident Reports — Persons Involved in Accident — Not Admissible — Distinguished — Police Investigation Reports — Public Records — — Admissible. Under the statute making certain automobile accident reports confidential, those reports required to be made "by any driver, owner, or person involved in any accident" are not admissible in evidence in any court proceeding, but such reports are to be distinguished from police investigation reports which are public records and are thus admissible in evidence.
Opinion by JUDGE STERNBERG.
The defendant, Jose Reyes, appeals his conviction of vehicular homicide. He contends that testimony concerning certain inculpatory statements he made to police officers should not have been admitted into evidence; that receipt into evidence of a photograph of the deceased was reversible error; and that the court abused its discretion in not granting him probation. We affirm.
The relevant facts are not disputed: An automobile owned by Reyes failed to negotiate a curve, left the highway, and overturned. One of the passengers was thrown from the vehicle and killed. The accident having occurred near the Wyoming border, Reyes and three other occupants of the car were taken to a hospital in that state by ambulance.
Shortly after the accident, and in response to a request from the Colorado State Patrol, two Wyoming Highway Patrol officers questioned several of the men at the hospital. The officers later testified that one of the men, giving them a driver's license with Reyes' name on it, admitted to them that he was driving the car, that he had been drinking, and that the car may have had mechanical problems. That man submitted to a blood alcohol test, the results of which showed him to be under the influence of alcohol. Reyes was released from the hospital almost immediately after the interrogation and returned to his home in Greeley.
Thereafter two Colorado Highway Patrol officers went to Reyes' home to investigate the accident. They had been informed by the coroner's office that Reyes was the driver of the car. One of the Colorado officers testified at the trial that Reyes had admitted to him that he was the driver. At the request of the Colorado officer, Reyes accompanied him to the State Patrol headquarters. There Reyes again said that he was the driver, that he had been drinking, that the car may have had mechanical problems, and that he was traveling at about 65 m.p.h. Reyes was then arrested for vehicular homicide.
Three weeks later, when Reyes was questioned by another police officer, he denied that he had been driving the car, explaining he had made the previous contrary statements to protect his companions, who were illegal aliens. Reyes also told this officer that he had been in the backseat asleep at the time of the accident, and thus, did not know who was driving.
Because the other occupants of the vehicle were not available to testify at the trial, the police officers' testimony as to Reyes' inculpatory statements was the only significant evidence to support the jury's conclusion that Reyes was the driver. Relying solely upon § 42-4-1410, C.R.S. 1973, Reyes contends that the testimony of these officers was inadmissible, because that statute renders his statements to them confidential. Reyes argues that all accident reports, whether made by motorists, or law enforcement officers, are to be excluded from trial. We do not agree.
The statute Reyes relies upon provides in pertinent part:
"All accident reports and supplemental reports required by law to be made by any driver, owner, or person involved in any accident shall be without prejudice to the individual so reporting and shall be for the confidential use of the department. . . . No such report shall be used as evidence in any trial, civil or criminal, arising out of an accident. . . . This section shall not be construed to mean that reports of investigation or other reports made by sheriffs, police officers, coroners, or other peace officers shall be confidential, but the same shall be public records and shall be subject to the provisions of section 42-1-206."
Section 42-4-1401 et seq., C.R.S. 1973, sets forth the duties of motorists involved in accidents. Section 42-4-1406, C.R.S. 1973, requires that, if the accident involves injury, death, or property damage in excess of $100, the motorist file a written report with the Department of Revenue, and that law enforcement officers shall conduct an accident investigation and file a written report.
[1] The confidentiality provision quoted above distinguishes between the reports required to be made "by any driver, owner, or person involved in any accident" as being reports that are not admissible in evidence, and police investigation reports which are public records. See Davis v. Brooks Transportation Co., 186 F. Supp. 366 (D. 1960); Willmore v. Hertz Corp., 322 F. Supp. 444 (W.D. Mich. 1969).
Reyes' reliance on Clark v. Reichman, 130 Colo. 329, 275 P.2d 952 (1954) for the proposition that all accident reports are inadmissible is misplaced. Clark involved only the admission of a driver's written report, which we agree would properly be excluded, but that is not the issue here, because no written report was ever filed by Reyes. Likewise, the excluded information was part of the motorists' reports in the cases from other jurisdictions relied on by Reyes. E.g., Morrison v. City of Butte, 150 Mont. 106, 431 P.2d 79 (1967); Stevens v. Duke, 42 So.2d 361 (Fla. 1949); Ehrhardt v. Ruan Transport Corp., 245 Iowa 193, 61 N.W.2d 696 (1953).
[2] The question then becomes whether, when telling the various officers that he was the driver, Reyes was giving a report of the accident as required by § 42-4-1406, C.R.S. 1973, or volunteering the information. We conclude that Reyes was not fulfilling the report requirements because at the time of his statements, Reyes was not required by § 42-4-1406, C.R.S. 1973, to tell any of the officers anything. Under the circumstances here, where no law enforcement officer was at the accident scene before Reyes was taken to the hospital, he was free to wait and give notice of the accident "to the nearest office of a duly authorized police authority," to be followed by a written report within ten days. Thus, not being part of either the notice, or report, requirements of the statute, Reyes' inculpatory statements were not protected by the confidentiality provision, and the law enforcement officers' testimony as to those statements was properly admitted.
Reyes also asserts that his conviction must be reversed because the court erroneously received in evidence a "gruesome" photograph of the deceased. The alleged error not having been raised in the motion for new trial, the issue is not properly before us. Crim. P. 33(a). It does not rise to the level of plain error under Crim. P. 52(b). See People v. Barker, 180 Colo. 28, 501 P.2d 1041 (1972).
[3] Reyes also seeks reduction of his indeterminate not to exceed 3-1/3 years sentence, which is the statutory minimum for vehicular homicide, contending the trial court's failure to grant probation was an abuse of discretion. He is in effect requesting that this court grant him probation. This we cannot do. C.A.R. 4(c)(2)(IV). See also People v. McKnight, 41 Colo. App. 372, 588 P.2d 886, (No. 77-1030, announced October 5, 1978).
The judgment is affirmed.
JUDGE ENOCH and JUDGE KELLY concur.
Comments