six heading of east and they had were going to go to dinner i believe it was at her harris casino and as they are if they headed east end of the car that my client was a passenger and as it went into the eastbound  right turn lane the car was struck violently by a car driven by defendant miss heavy which had entered the highway across route six crossed three and a half lanes of traffic two sets of double yellow lines an hour by her own testimony and then read entering the highway by her own choice according to own testimony against still going forty to forty five miles an hour now this honorable court is being asked today i believe to answer three basic questions the first question is that did the trial court error in permitting the defendant to read into testimony read into evidence in inadmissible police report it contained substantive evidence pertaining conclusions of hearsay witnesses regarding how however i respectfully submit that if you find that answer to any one of those questions is yes you must reverse the lower court's the trial court's judgment in this case now i'll start with the  defendant begins to ask miss writing the question do you recall reading the police report where indicates that the witnesses have attributed now to go to witnesses and drivers people who are not my client and who are in trial who  court says at the bottom of page eight hundred twelve i'm going to let her proceed and see where we're going with this then again the question is do you recall reading from the police report that attributed the statement and then he objects again for the second time eight hundred thirteen and the drivers said they had the defendant was forced off the road by a car came out of him right so mystery on a subject that says if if she's going to read this part about the drivers and the courts if she's going through how over rule then she reads in the hearsay hearsay being according to witnesses and both drivers a vehicle pulled out of northbound ampere's drive under route six causing number one n it is improper if i may say the court in hall states and some sixteen of our brief the court hall says while police reports quote may be used for the limited purpose of the impeach inconsistent statements or to refresh a witness is recollection which is purportedly what was going on here they cannot be used as the defendant did to them to divulge substantive evidence to the jury unquote the court further went further and says quote the court found that the reading of the police report improperly served quote as a substitute for competent evidence and it quote seriously prejudiced the plaintiff's case you during the trial  was any of that substantive you have evidence well actually yes and no one and here's why i say it this way the only person who was a witness that is attributed you know one of the witnesses that was called was her name escapes me it was a certain individual whose names have been woman she had been in an automobile with her husband he was one of the drivers she testified in her testimony in court was much different then the testimony then the a statement attributed to her in this report for instance she did say that she saw an automobile i believe a silver automobile coming north on empress drive and she said was going at a high rate of speed i think i said that was twenty miles an hour and approaching the intersection she dense of testified she did not see it enter the intersection she don't know she did not know if it turned  not see it go near the defendant's car she does not know if it went into the defendant's lane she did not see defendant's car leave the roadway and she did see defend his car for one or two seconds later on the right and the shoulder because of all the dust that was kicked up so did she say she saw a car yes all these other things these conclusions about a forcing this automobile off the roadway that was not there and no other witness of the needed driver was called there were other witnesses of that don't run a police report that were not call so this cut this came in the just so you're saying that that evidence is at variance with what seems to be the consolidated summary by the officer at the scene saying that this sequence of events the witnesses said occurred on the report and now you're saying in trial testimony there's a variance for that one with absolutely right absolutely mishap his defense that i was forced off the road by this mystery car or this car at some point one of the persons saw i was forced off the road and then we have this entire sequence of events which i'll address which i believe were basically impossible to  version of what happened that's the prejudice it's exactly that they took the evilly took this hear say and then wove it in such a way too but comport with what miss hetty said and that was able to argue all the was that he disagreed with but what happened was that and just one little bit of background my client was a passenger she's she's injured she's taken to the hospital i believe the police officer testified you'd come and talk to her but she's you know she's injured i can't recall if she was under sedation or anything at that point but later on some weeks later on she she being my client received a copy of this police report and when she saw the police report she didn't remember part of plaintiff's attorney and my client because the what but defendant argued was you see what happened and this is just shows up in opening and it shows up during the examinations and it shows up on closed see what happened is that he can that's not your thing i would agree on i would agree absolutely well i would say that the the record is replete with instances of the defense changed her testimony story because she was forcing litigation and then as you may recall there were further allegations that she actually made up irrelevant medical complaints which were not ever claimed to be part of this case which were not ever claim to be causally related the judge allowed in inferences that somehow or other that was done purposely to try to cook up additional a complaints and damages and in the last part of our brief or on her sense of what i'm so short of time you'll recall inherently improbable as to be contrary to the experience of human kind just for one one point when she states for instance the defendant does that she chose to leave the highway because of this car it's over there it's going much much slower than her but she's racing at forty to forty five miles an hour west if she says she leaves the highway having her break down the entire time and she goes ten to twelve carling's and then admits that she did nothing about the ro about the childer koester made her get back on she chose to get back on the highway she gets back on going forty to forty five miles an hour hasn't slowed down one iota then she it miss it it's in the police officer states as she told him that she lost control when she gets on the highway she goes across three and a half lanes of traffic it's mashed into my client's car if thirty to thirty five miles an hour by your own admission i said i submit under mayfield u may respond good morning your honor students and faculty with i'm going to first address the alleged errors that were made by the lower court and the first thing that i'm going to say in that regard is that all of the claims that the appellant is making as to errors in the lower court came about because the apple i introduced that information and to the lower court with the exception of the right cited complaint thinking so when we get to the whole police report issue the question that you have to ask is how did the police report even become at issue what became at issue because during plaintiff's direct one testimony and questioning by her own counsel they asked her did you ever see this car come out of the empress to see you know no never saw it ok well after it all happened were you ever interviewed by the police officer yes i was did you tell the police officer you saw it no no well did you ever see the report after the fact yes i did it came in i saw the report i read the report i reviewed the report oh well what when you saw that report that did anything strike you what have you did you did you respond to it yeah i saw in the report that the police officer was saying that i saw a silver car come out of the inference you know she was listed on a as a witness on the report and then the report had it summary page what did she do she wrote a letter to the police officer that there's no way she could have seen a car come out of the empress casino based on her location and things of that nature so they say well ok they go through it and then they say well why did you write that letter why did you write it i didn't want anybody to think that i was a witness to something that i was no witness it i didn't see it i didn't want anybody to think that i actually went that's how it all went down so then on cross examination i'm asking her  absolutely and we're we're we're dealing with the the second era but they're all interrelated because that's exactly what happened they open the door they asked him why did you write that letter why did you do it so she gave her explanation so then when i get up in cross examination she gets to tell the jury that she saw certain information in the police report that caused her to write the letter but she'll mit's other information in the police report that she would have had to read because it's interwoven together but she'll mix the information where it's being attributed to her that she saw this car cause my client to swerve off the road to avoid an accident she'll miss that so i'm trying to question her about that during my cross examination it she got to report she read it and spectra then i go to say what do you recall any other information in the police report that would have prompted you to write that letter concerning you know the car being forced off the road no i don't recall that being in the police report so what i do i do what i'm supposed to do i take the police report and i asked of course i'm permission to show it to her to refresh her recollection this is all impeachment it all goes to she did introduce all of this  me she did the judge says yes try to refresh your recollection i give her the report and what did she say i don't i don't recall ever reading that i don't even recall ever seeing this before now the judge is like what so i'm trying and then i'm going to trying to read the report there is objection the judge then handles all of the objections and the judge is like well let me see the letter so i show the letter to the judge which they had already gone through had been introduced into evidence and the judge is like well this letter deals with exactly what's in the police report other than the omissions that i'm trying to get in front of the jury and he's like read the police report read the police report because she already introduced the and now she's playing games that she'd never saw it when i'm trying to refresh recollection ironically after i read the statement that the judge told me i could read now she admits that she saw the police report and she saw that statement thank you for this police report would have never had been read that plaintiff wasn't playing games she was playing games and it was within the sound discretion of the trial court to not allow her to play those games it got read because she introduced the content to begin with i had the right to impeach her on what she was claiming to be the reason why she wrote it and what she was relying upon as the basis for why she wrote it which was the very crux in theory of our case that our client was forced off the road so then we get into the whole attorney and when you are right judge there was a motion in limine a you can't bring up the fact that she had an attorney at the time that she wrote the letter to the police department saying she never said what she said we never introduced that information until after they asked her for an explanation well why did you write a letter and then she she provides explanation which i have already told you so during break after launch i go to the judge and said judge before i start my cross examination there is an issue i feel we need to address he knew right away he knew right away and plaintiff's counsel's first words out of his mouth was this doesn't open the door judge that's the first words out of the his mouth well it absolutely open the door because the plaintiff now gets to give an explanation and for why he wrote that letter but we don't get to cross examine her on it they knew that we were blocked out on the motion in limine a so they give an explanation thinking we can't go out for the rebound now that's not the way it works you don't get to have your cake and eat it too but that's what they wanted to do and judge harrison said no it's coming in you open the door there was no prejudice there if there was prejudice they've because their own prejudice but i don't think there was prejudice in any of that all's we established from that point is when you wrote this letter you had already hired an attorney there's sufficient case law that says your actions in litigation are absolutely relevant to your motive your bias your intentions all of those things we established she hired a lawyer she had already hired a lawyer before she wrote that letter are explanation was she was pursuing litigation certainly did she want there to be a statement attributable to her in the police report where she was saying our client had to go off the road the very defense that we're making in the case but she didn't and certainly that was our argument so there was no explanation why she hired an attorney and that redirected she explained she hired an attorney because she'd gotten a call to give a statement she was scared so she wanted to hire an attorney and then during closing the whole you know issue was these people called her and that's why she had to get an attorney and and all of this that had nothing to do with her wanting to change her to you know testimony and and if she hadn't written a letter to correct what was wrong we would be pointing out now that she never  corrected what was wrong when she could have corrected what was wrong earlier so that was all that all was dealt with during the plaintiff's closing argument the jury was allowed to hear their explanation and the argument that plans come from me as far as the  herself the night she saw anything happen before the impact but she couldn't tell by hand and so miss picky gave an account of what happened to say that mistaking never said she was forced off the road she absolutely said she was she said that the lights of the car coming out of the emp were within inches of her when she turned her will to the right she had to avoid an accident under the law there's a statute that says you have to take action to avoid an accident but even if there wasn't what human being in their right mind would just let a  their driver's side that is just human nature to try to avoid that accident and that's what she did and she had a split second time to make that decision and only minimal second to to handle everything that happened afterward gravel on the side of the road the advantage she's trying to control her car but she's not successful in that regard does she have a brake on she does have her brake on is she slamming on or brake no and none of us would you can't base the verdict on highly improbable that out of the realm of ordinary knowledge and i would one has a brake on with one's speed be reduced it may be reduced depending on how hard you have your brake on but there is conflicting testimony in that regard ok she i would disagree that all of the testimony and says claim that there's bits and pieces but there's conflicting testimony as to how fast she was going she at the time she she impacted she was going thirty to thirty five miles an hour so how could she not have her plea on in addition she says that the reason why she left the shoulder was because she had a bump in the shoulder that propelled her arm to the road not that she's automatically steered her car back onto the road she was trying to regain regain control and she couldn't but here's the deal with the jury's instructed that she had to act as a reasonably prudent person would act under similar  and that's what the jury had to deal with not in hindsight as an armchair quarterback but in that period of time the jury heard all of the testimony of mr tate conflicting testimony in some regards perhaps but they were the judges of the credibility they heard all of the testimony and they made the determination that she was not negligent because she was not liable in addition they could have made the decision based on the sole proximate cause instruction that they were given which there's no objection here that that sole proximate cause instruction was given and they could have made the decision that it was a car coming out of the empress which was the sole proximate cause of the plaintiff's injuries as opposed to anything that mistake did or didn't do which was completely a reaction to a very dangerous situation so we don't know why they made the decision they did but they could have made it on either one of those elements not just you know breach of duty or what have you but on proximate cause as well  so what the plaintiff is asking you to do is to subst to to sit in in in the seat of the jury and to substitute your decisions on credibility in the weighing of the evidence and things of that nature and i would submit that that's that's not what this court is for only only if taken all the evidence most favorable to my client only then if it's clearly against me and if that's the decision is against the manifest way should this decision be overturned and i submit they submitted no evidence contrary to what my client had to say about what happened in we've had in addition we had darlene dawson who testified as to what she saw happen that she told the police that a car came out of the empress it was silver and it caused the defendant from the road when she testified that's what she told me at trial she testified that she saw the car come out that it was silver she didn't actually see it make contact or where it went in the roadway but then seen a clue of smoke in the defendant's car on the side on the shoulder so when she talked to the police officer she put it all together and gave that feynman to him at trial she's you know obviously broken down you know and much more detail than when the police officer has taken the statement but it's not an accurate and and mistake he was a hostile witness and a driver on that please from work and she testified that that's exactly what happened and miss reilly was listed as a witness on that was from work and she testified but it that doesn't really matter in the big scheme of things around her with no disrespect to your question of course because they're the one that introduced the content of the police report and mr riley is the one who said claim she didn't remember it anymore that would have never came in would have never to the men had they not introduced him to begin with and five days before her and her doctors that position she would go to the bat her doctor would give testimony that would say that certain injuries aren't related that she claimed before and she would come back and now those injuries she doesn't have any more now they're back to the original we gave a time i but we never said that they were colluding or they were they were suborning over three years and some of the purposes the credibility of her damage complaint she's claiming that she had  you know i'm disabling complaints that they were long term that they had they had heard for russia at that point i think eight years and they were going to can turn and continue into the future that she would need futures surgery things of that nature and our point is is that really credible when you have eighteen months of non treatment so that was the point so if i can just wrap up and conclusion it would be our position that the the decision of the trial court in the jury should stay thank you for your time and  as we all know all the all all of us were practitioners no one walks out and does their opening statement on the fly they have it all prepared and instead just as we knew after opening statement counsel came out and her opening statement and began to attack the letter contesting what they believe they said that now you get to read in and inadmissible hearsay regarding a bunch of other witnesses no cases that fit but i would i'd like to do his  i submit that her motivation was because she was filing this lawsuit and she knew that if she was blaming defender for the action how in the world could she asked you to do it so there is no doubt that the reason she retained a lawyer was for purposes of this litigation and you have to consider that in motivation is why she would have changed her statement was wrong with an argument well the argument is to that attempt to inflate it in in the context of everything else in an attempt to insinuate through innuendo that my client was telling a false story in collusion with her attorney we believe that there is improper it has no place in the courtroom now having said that i would go to her with just discussed a simple fact counsel his forty to forty five miles an hour long after she had been on the the the shoulder as we all know there's a statement that he made that you can only use the shoulder to stop or to accelerate from a stop she i got through and i'm sorry page forty five officer cars testified that his investigation supported defendants test the testimony that when she attempted to reenter the cut roadway she lost control o thank you counsel both of your fine arguments this morning in this matter it will be taken under advisement in a written this position cheryl issue