Gloria Willingham v. DOUGLAS A. CROOKE, Sergeant

Filed: July 8, 2005
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1548
(CA-00-2053-A)
GLORIA WILLINGHAM,
Plaintiff - Appellant,
and
CARL JACKSON,
Plaintiff,
versus
DOUGLAS A. CROOKE, Sergeant,
Defendant - Appellee,
and
GRAHAM BUCK, Officer; SHERRY A. BASSETT,
Officer; OFFICER BRIAN; J. THOMAS MANGER,
Chief of Police, County of Fairfax; FAIRFAX
COUNTY BOARD OF SUPERVISORS; COUNTY OF
FAIRFAX; ANTHONY GRIFFIN, County Executive,
Defendants.
O R D E R
The court amends its opinion filed June 23, 2005, as follows:

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- 2 -
On page 8, section B., line 9 -- “affirming the denial” is
corrected to read “reversing the granting.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 GLORIA WILLINGHAM,
Plaintiff-Appellant,
and
CARL JACKSON,
Plaintiff,
v.
DOUGLAS A. CROOKE, Sergeant,
Defendant-Appellee, No. 04-1548 and
GRAHAM BUCK, Officer; SHERRY A.
BASSETT, Officer; OFFICER BRIAN; J.
THOMAS MANGER, Chief of Police,
County of Fairfax; FAIRFAX COUNTY
BOARD OF SUPERVISORS; COUNTY OF
FAIRFAX; ANTHONY GRIFFIN, County
Executive,
Defendants. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CA-00-2053-A)
Argued: May 25, 2005
Decided: June 23, 2005
Before WILKINS, Chief Judge, and TRAXLER and
KING, Circuit Judges.

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Vacated and remanded by published opinion. Chief Judge Wilkins
wrote the opinion, in which Judge Traxler and Judge King joined.
COUNSEL
ARGUED: Paul Anthony Gowder, Jr., VICTOR M. GLASBERG &
ASSOCIATES, Alexandria, Virginia, for Appellant. Robert Marvel
Ross, COUNTY ATTORNEY’S OFFICE FOR THE COUNTY OF
FAIRFAX, Fairfax, Virginia, for Appellee. ON BRIEF: Victor M.
Glasberg, Alexandria, Virginia, for Appellant. David P. Bobzien,
County Attorney, Peter D. Andreoli, Jr., Deputy County Attorney,
Fairfax, Virginia, for Appellee.
OPINION
WILKINS, Chief Judge:
Gloria Willingham brought this action pursuant to 42 U.S.C.A.
§ 1983 (West 2003), alleging that she was arrested without probable
cause, in violation of the Fourth Amendment, by Appellee Douglas
A. Crooke, a sergeant with the Fairfax County, Virginia police depart-
ment.1 She appeals an order of the district court denying her motion
for judgment notwithstanding the verdict or a new trial on damages,
primarily maintaining that the district court erred in submitting the
question of qualified immunity to the jury. She also challenges an evi-
dentiary ruling of the district court. We conclude that the district court
erred in instructing the jury on the legal question of whether, on the
facts found by the jury, Sergeant Crooke was entitled to qualified
immunity. Because this error was not harmless, we vacate the judg-
ment and remand for a new trial. For the purpose of giving guidance
to the district court, we also address the disputed evidentiary ruling.
1Sergeant Crooke has since been promoted to the rank of Lieutenant.
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I.
The parties agree that Willingham was arrested for obstruction of
justice, see Va. Code Ann. § 18.2-460(A) (LexisNexis 2004), during
the early morning hours of December 12, 1998. Beyond this, how-
ever, the facts are sharply disputed. We will set forth the facts in a
manner consistent with the verdict, noting Willingham’s differing
version of events where pertinent to the issues before us.
Willingham and Carl Jackson Sr. (Jackson) arrived at Jackson’s
home shortly after midnight on December 12. At the home was Lelia
Jackson (Lelia), the girlfriend of Jackson’s son, Carl Jackson Jr.
(Jackson Jr.). Lelia informed Jackson that she had contacted the
police for assistance with a dispute with Jackson Jr. Jackson resolved
the dispute, told Lelia to go home, and stated that he would inform
the police that the situation had been resolved.
Shortly thereafter, Officers Sherry Bassett,2 Brian Buckholtz, and
Graham Buck arrived at the scene. Jackson would not allow the offi-
cers to enter the house. The officers informed Jackson that department
policy required them to enter the residence to be sure that Lelia was
safe. Jackson falsely told the officers that Lelia had had an argument
with someone named "Eric" and that both had left the residence.
When the officers repeated that they needed to enter the home to
assure themselves of Lelia’s safety, Jackson again refused.
The officers again explained to Jackson that they could not simply
take his word about Lelia’s safety. Jackson then informed the officers
that his guest could confirm the story about Eric. The officers agreed
to let Jackson bring his guest to the door, but asked him not to talk
to her and to leave the door open while he went into the house to get
her. Jackson went inside and called for Willingham. Officer Buck
observed Jackson talking to Willingham and asked him to stop. He
then asked Willingham what was going on, and she replied "I’m
sorry, I can’t tell you anything until Carl tells me what’s going on."
2After the events described herein, Officer Bassett married and took
the surname Cooke. Consistent with the practice of the parties and the
district court, we refer to Officer Bassett by her name at the time of the
arrest.
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J.A. 389 (internal quotation marks omitted). Jackson then came back
to the door.
At this point, the officers asked Jackson if there was any way to
contact Lelia. Jackson stated that he had her telephone number, and
he agreed to leave the door open while he retrieved it. While Jackson
was getting his address book, Willingham came to the door and
attempted to close it. Officer Buck explained that Jackson had agreed
to leave the door open, but Willingham nevertheless attempted to
close it. Officer Buck placed his foot in the doorway to stop her from
doing so. Willingham then stated, "Sir, I’m a lawyer. I respect the
law, but you need to allow me to close this door." Id. at 390 (internal
quotation marks omitted). Officer Buck refused this request, at which
time Willingham asked for his name and badge number.3
When Jackson returned to the front door, Willingham went back
into the house. Officer Bassett telephoned Lelia, who told Officer
Bassett that she thought there were outstanding warrants for the arrest
of Jackson Jr. Officer Bassett confirmed that three such warrants were
pending. Each warrant, and records at the Department of Motor Vehi-
cles, listed Jackson’s address as the residence of Jackson Jr. When the
officers approached Jackson with this information, however, Jackson
denied that Jackson Jr. lived there. At this point, Officer Bassett cal-
led for a supervisor, and Sergeant Crooke arrived shortly thereafter.
Sergeant Crooke informed Jackson, who had come outside, that the
officers intended to enter the house to arrest Jackson Jr. and began
walking toward the door. Jackson followed Sergeant Crooke to the
door and attempted to stop him from opening it by grabbing the offi-
cer’s arm. Sergeant Crooke pushed Jackson away and directed Officer
Buck to arrest Jackson for obstruction of justice.
According to the officers, Willingham’s arrest occurred as follows.
Sergeant Crooke, followed closely by Officer Bassett, entered the res-
idence. They did not have their guns drawn at this time. They encoun-
tered Willingham, who immediately began to ask the officers why
3Willingham denied ever attempting to close the door, and she testified
that Officer Buck was rude and made a "snide remark" about her request
to close the door. Id. at 106. She did not testify regarding whether she
had asked for Officer Buck’s name and badge number.
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they were in the home. She was "[v]ery animated, exaggerated, all
theatrical, excited" as she began to walk toward the officers. Id. at
240. When she was within two feet of Sergeant Crooke, he informed
her that they had entered the house to arrest Jackson Jr. and that she
should sit down. Willingham briefly sat down, but then rose and stood
in front of Sergeant Crooke as he tried to proceed. Sergeant Crooke
again asked Willingham to sit down, warning her that she was in dan-
ger of being arrested for obstruction of justice. Willingham stepped
aside. However, by the time Sergeant Crooke had taken two or three
more steps, Willingham was in front of him again. At this point, Ser-
geant Crooke arrested her.
Willingham’s account of her arrest differs substantially from that
of the officers. According to Willingham, Sergeant Crooke entered
the residence behind Officer Bassett, using his fellow officer as a
shield. Sergeant Crooke had his firearm pointed at Willingham’s head
and kept it there despite Willingham’s pleas for him not to point the
weapon at her. Willingham asked Sergeant Crooke if he had a war-
rant, and he replied, "No, not yet." Id. at 116 (internal quotation marks
omitted). Sergeant Crooke then shouted, "Come and get her," id., at
which point an officer (presumably Officer Buck) entered the resi-
dence and placed Willingham in handcuffs.
Willingham was subsequently tried for obstruction of justice and
acquitted. She thereafter filed this action, asserting various state and
federal claims, including the Fourth Amendment claim at issue in this
appeal.4 Prior to trial, the district court granted summary judgment to
Sergeant Crooke on the Fourth Amendment claim, concluding that he
was entitled to qualified immunity.5 This court reversed, holding that
4Jackson was also a plaintiff in the action, but he is no longer a party
to the litigation. Willingham named as defendants the other officers pres-
ent at the scene, the chief of police, the Fairfax County Board of Supervi-
sors, Fairfax County, and the county executive. Only Sergeant Crooke is
still involved in this litigation.
5Indeed, the district court granted summary judgment to all defendants
on all counts, with the exception of Willingham’s claim against Officer
Buck for excessive force. This claim proceeded to trial during the pen-
dency of Willingham’s appeal of the qualified immunity ruling, and the
jury found in favor of Officer Buck.
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"[t]he evidence reveals a genuine issue of material fact as to whether
Willingham obstructed Crooke and Bassett from searching the house
for [Jackson Jr.]." Willingham v. Crooke, 40 Fed. Appx. 850, 852 (4th
Cir. 2002) (per curiam).
On remand, the case was tried before a jury. Over Willingham’s
objection, the district court gave the jury the following instruction
regarding qualified immunity:
If you find that Ms. Willingham has proven her constitu-
tional claim of being arrested without probable cause, you
must then consider the defense of [Sergeant] Crooke that his
conduct was objectively reasonable in light of the legal rules
clearly established at the time of the incident . . . and that
he is therefore not liable. This is known as the defense of
qualified immunity.
Police officers are presumed to know about the clearly
established constitutional rights of citizens. In this case, Ms.
Willingham’s constitutional right not to be arrested without
probable cause was a clearly established right.
If after considering the scope of discretion and responsi-
bility generally given to police officers in the performance
of their duties and after considering all of the surrounding
circumstances of the case as they would have reasonably
appeared at the time of the arrest you find from a preponder-
ance of the evidence that Ms. Willingham has proved that
[Sergeant] Crooke knowingly violated the law regarding
Ms. Willingham’s constitutional rights, you must find for
Ms. Willingham.
If, however, you find that [Sergeant] Crooke had a rea-
sonable belief that his action did not violate the constitu-
tional rights of Ms. Willingham, then you cannot find
[Sergeant] Crooke liable even if Ms. Willingham’s rights
were, in fact, violated as a result of his objectively reason-
able action.
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Tr. Trans., Vol. III, at 607-08. The jury returned a verdict in favor of
Sergeant Crooke.
II.
Willingham first maintains that the district court erred in submit-
ting the question of qualified immunity to the jury. Her argument is
twofold. First, she maintains that this court resolved the question of
qualified immunity during the prior appeal. Second, she asserts that
even if the issue was not conclusively decided, the question should
have been decided by the district court rather than by the jury.6
A.
Government officials performing discretionary functions are enti-
tled to qualified immunity from liability for civil damages to the
extent that "their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified
immunity protects "all but the plainly incompetent or those who
knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341
(1986). It protects law enforcement officers from "bad guesses in gray
areas" and ensures that they are liable only "for transgressing bright
lines." Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992).
Assertion by a defendant of qualified immunity requires consider-
ation of two questions. The first is "whether a constitutional right
would have been violated on the facts alleged" by the plaintiff. Sau-
cier v. Katz, 533 U.S. 194, 200 (2001). If so, the question then
becomes whether the right asserted was clearly established at the time
of the alleged violation. See id. In answering this latter question, the
relevant inquiry is whether "it would be clear to an objectively rea-
6Willingham also contends that the district court should have given the
jury Willingham’s proposed interrogatories, the first of which asked the
jury whether it found "that Sergeant Crooke pointed a gun at Gloria Wil-
lingham upon entering Carl Jackson’s house[.]" J.A. 58. We agree with
the district court that this question was irrelevant to the issue of whether
Sergeant Crooke had probable cause to arrest Willingham for obstruction
of justice.
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sonable officer that his conduct violated [the] right." Brown v. Gil-
more, 278 F.3d 362, 367 (4th Cir. 2002).
Ordinarily, the question of qualified immunity should be decided
at the summary judgment stage. See Wilson v. Kittoe, 337 F.3d 392,
397 (4th Cir. 2003); accord Saucier, 533 U.S. at 200 ("Qualified
immunity is an entitlement not to stand trial or face the other burdens
of litigation." (internal quotation marks omitted)). Qualified immunity
does not, however, override the ordinary rules applicable to summary
judgment proceedings. See Pritchett v. Alford, 973 F.2d 307, 313 (4th
Cir. 1992). Thus, while the purely legal question of whether the con-
stitutional right at issue was clearly established "is always capable of
decision at the summary judgment stage," a genuine question of mate-
rial fact regarding "[w]hether the conduct allegedly violative of the
right actually occurred . . . must be reserved for trial." Id.
B.
We reject Willingham’s contention that our prior decision—
holding that Sergeant Crooke was not entitled to summary judgment
on the basis of qualified immunity—finally disposed of the qualified
immunity defense because the evidence presented at trial was essen-
tially the same as the evidence forecasted in the summary judgment
record. Because the prior appeal concerned Willingham’s challenge
to the grant of summary judgment to Sergeant Crooke, we were
required to view the evidence in the light most favorable to her. See
Willingham, 40 Fed. Appx. at 851. And, in reversing the granting of
summary judgment we decided only that the forecasted evidence,
when viewed in the light most favorable to Willingham, established a
violation of clearly established law. See id. at 852. The jury, however,
was not required to view the facts in the light most favorable to Wil-
lingham, and thus could reasonably have found in favor of Wil-
lingham with respect to some facts but not others. Because we did not
decide what a reasonable officer would have known regarding the
lawfulness of his actions under any other version of events, the quali-
fied immunity defense remained viable after our decision.
C.
Although we reject Willingham’s first contention, we agree with
her second. The question of whether Sergeant Crooke was entitled to
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qualified immunity under the facts found by the jury—i.e., whether
a reasonable officer would have known that his actions violated the
law—should not have been submitted to the jury.
There is no question that when the historical facts are undisputed,
whether a reasonable officer should have known of the illegality of
his conduct is a question of law for the court. See, e.g., Wadkins v.
Arnold, 214 F.3d 535, 538 n.4 (4th Cir. 2000). The existence of dis-
puted material facts—which must be submitted to a jury, see Prit-
chett, 973 F.2d at 313—does not alter the "essentially legal" nature
of the question of whether the right at issue was clearly established.
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Indeed, we indicated
in Knussman v. Maryland, 272 F.3d 625, 634 (4th Cir. 2001), that this
legal question should not be submitted to the jury. There, the district
court submitted to the jury both disputed factual issues and the ulti-
mate question of whether the defendant was entitled to qualified
immunity on the basis that he could reasonably have believed that his
actions were lawful. Although the defendant did not challenge the
submission of that question to the jury, we noted our disapproval of
the practice:
[A]lthough the jury may be suited for making factual find-
ings relevant to the question of qualified immunity, we
believe it is far better for the court, not the jury, to answer
the ultimate legal question of whether a defendant is entitled
to qualified immunity. The nature of the analysis—requiring
an examination of current federal law and federal law as it
existed at the time of the alleged violation—makes for an
awkward determination by the jury, at best. But, since the
issue has not been raised, we will leave for another day the
question of whether it is ever appropriate for a jury to
answer the ultimate legal question of a defendant’s entitle-
ment to qualified immunity.
Knussman, 272 F.3d at 634 (citation omitted).
The issue having now come before us, we hold that the legal ques-
tion of a defendant’s entitlement to qualified immunity under a partic-
ular set of facts should be decided by the court, not by the jury. See
Littrell v. Franklin, 388 F.3d 578, 584-86 (8th Cir. 2004); Swain v.
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Spinney, 117 F.3d 1, 9-10 & n.3 (1st Cir. 1997); Cottrell v. Caldwell,
85 F.3d 1480, 1487-88 (11th Cir. 1996); Warlick v. Cross, 969 F.2d
303, 305 (7th Cir. 1992). But see Oliveira v. Mayer, 23 F.3d 642, 649-
50 (2d Cir. 1994) (holding that the district court erred in failing to
submit the question of reasonableness to the jury); but cf. Curley v.
Klem, 298 F.3d 271, 278-79 (3d Cir. 2002) (holding that once dis-
puted factual questions are resolved, the question of the reasonable-
ness of an officer’s actions may be decided either by the jury or by
the court); but cf. also Maestas v. Lujan, 351 F.3d 1001, 1008-10
(10th Cir. 2003) (holding that the jury may decide the question of rea-
sonableness if disputed facts are dispositive of that question); Fisher
v. City of Memphis, 234 F.3d 312, 317 (6th Cir. 2000) (similar); Sny-
der v. Trepagnier, 142 F.3d 791, 799-800 (5th Cir. 1998) (similar),
cert. granted, 525 U.S. 1098 (1999), cert. dismissed, 526 U.S. 1083
(1999).
As we explained in Knussman, juries are ill-suited to make the
determinations of law required by the qualified immunity analysis.
See Knussman, 272 F.3d at 634. Therefore, to the extent that a dispute
of material fact precludes a conclusive ruling on qualified immunity
at the summary judgment stage, the district court should submit fac-
tual questions to the jury and reserve for itself the legal question of
whether the defendant is entitled to qualified immunity on the facts
found by the jury.
Having concluded that the district court erred in instructing the jury
on qualified immunity, we next consider whether the error was harm-
less.7 We will not set aside a jury verdict based on an instructional
error "unless the erroneous instruction seriously prejudiced the chal-
lenging party’s case." College Loan Corp. v. SLM Corp., 396 F.3d
7The district court stated that any error in giving the qualified immu-
nity instruction was harmless because even if the jury had returned a ver-
dict in favor of Willingham, the court would have granted judgment as
a matter of law to Sergeant Crooke. This conclusion of the district court
appears to have been based largely on its conclusion that Willingham
was not a credible witness. However, the court is not permitted to con-
sider witnesses’ credibility in ruling on a motion for judgment as a matter
of law. See Randall v. Prince George’s County, 302 F.3d 188, 201 (4th
Cir. 2002).
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588, 595 (4th Cir. 2005) (internal quotation marks omitted). In assess-
ing prejudice, we must avoid making our own credibility determina-
tions. See Webber v. Sobba, 322 F.3d 1032, 1038 (8th Cir. 2003)
(holding that erroneous jury instruction was not harmless, in part
because the outcome depended "largely on credibility determinations
that are for the trial jury to make"); accord United States v. Lowe, 65
F.3d 1137, 1142 (4th Cir. 1995) ("Credibility determinations are
within the sole province of the jury . . . .").
We cannot say that the error of instructing the jury on qualified
immunity was harmless. In order to render a verdict, the jury was
required to assess the credibility of the witnesses and reach conclu-
sions as to the historical facts, given the witnesses’ various stories.
The testimony of the witnesses was in accord with respect to some
events, and utterly inconsistent with respect to others. Under these cir-
cumstances, we cannot conclude with any certainty that the verdict
rested on the determination of the jury that there was probable cause
for Willingham’s arrest, rather than on a determination that probable
cause was lacking (thus creating a constitutional violation) but that
Sergeant Crooke could have reasonably believed otherwise (and thus
was entitled to qualified immunity). See Webber, 322 F.3d at 1038
(holding that an erroneous jury instruction was not harmless because
the reviewing court had "no way of knowing that the general verdict
. . . was not a product of the improper . . . instruction"). Therefore,
we vacate the judgment and remand for a new trial.
III.
Willingham also contends that the district court erred in refusing
to admit notes taken by her treating physicians following her arrest.
In light of our remand on the qualified immunity issue, we will
address this issue in order to provide guidance to the district court.
We conclude that the district court should not have excluded the
notes.
Willingham sought medical treatment on December 12, following
her release from detention. Doctor Olympia Dallas’ notes reveal that
Willingham complained of anxiety and of pain in her wrist, shoulder,
and back stemming from the incidents surrounding her arrest. Dr.
Dallas’ notes also contain Willingham’s account of events from the
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time the police arrived at Jackson’s home until her release from
detention, including the statement that she "was told by officer point-
ing a gun at her to sit down." J.A. 54. On December 14, Willingham
had a follow-up visit with Dr. Foster Montalbano for "trauma that she
sustained in an altercation with police." Id. at 56. Doctor Montalbano
recorded that Willingham was suffering from pain and emotional
trauma—including nightmares and difficulty sleeping—stemming
from her arrest. The physician’s notes also contain the following per-
tinent statements regarding the source of Willingham’s injuries:
[Willingham] alleges that she was at [a] friend’s house when
police came to the door. She was assisting her friend when
she was arrested for obstruction of justice. She was hand-
cuffed with her hands behind her and placed in a cold squad
car with inadequate ventilation. She was intimidated with a
gun pointed at her face and then not provided with adequate
clothing as she was transported to the police station.
Id.
The district court excluded both sets of physicians’ notes on the
basis that Willingham’s "statements regarding the gun were not suffi-
ciently related to treatment of her physical injuries." J.A. 47. We con-
clude that this ruling was an abuse of discretion. See United States v.
Leftenant, 341 F.3d 338, 342 (4th Cir. 2003) (stating standard of
review), cert. denied, 540 U.S. 1166 (2004).
Rule 803(4) of the Federal Rules of Evidence allows the admission
of hearsay statements "made for purposes of medical diagnosis or
treatment and describing . . . present symptoms, pain, or sensations,
or the inception or general character of the cause or external source
thereof insofar as reasonably pertinent to diagnosis or treatment."
This exception to the hearsay rule is premised on the notion that a
declarant seeking treatment "has a selfish motive to be truthful"
because "the effectiveness of medical treatment depends upon the
accuracy of the information provided." 5 Jack B. Weinstein & Marga-
ret A. Berger, Weinstein’s Federal Evidence § 803.06[1] (Joseph M.
McLaughlin, ed., 2d ed. 2004); see Morgan v. Foretich, 846 F.2d 941,
949 (4th Cir. 1988). Admissibility of a statement pursuant to Rule
803(4) is governed by a two-part test: "(1) the declarant’s motive in
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making the statement must be consistent with the purposes of promot-
ing treatment; and, (2) the content of the statement must be such as
is reasonably relied on by a physician in treatment or diagnosis."
Morgan, 846 F.2d at 949 (internal quotation marks & footnote omit-
ted). With respect to the second prong, we note that "[i]n general, a
patient’s statement describing how an injury occurred is pertinent to
a physician’s diagnosis and treatment." United States v. Gabe, 237
F.3d 954, 957-58 (8th Cir. 2001).
Contrary to the district court, we believe that most of Willingham’s
statements to her doctors "related . . . to the cause of her present con-
dition, [and] were relevant in diagnosing that condition." United
States v. Iron Thunder, 714 F.2d 765, 773 (8th Cir. 1983). While the
district court was correct that Willingham’s statements about a fire-
arm being pointed at her were not relevant to her physical injuries, it
is clear from the physicians’ notes that Willingham was also seeking
treatment for emotional trauma. Willingham’s statements to her doc-
tors indicate that her emotional trauma stemmed, in part, from having
a firearm pointed at her; therefore, these statements were relevant to
her diagnosis and treatment.
We do not believe, however, that Willingham is entitled to the
admission of the entirety of her statement as recorded by Dr. Dallas.
In particular, we conclude as a matter of law that the first portion of
Willingham’s statement—in which she relates events between her
arrival at Jackson’s home and her use of the upstairs bathroom just
before the officers’ entry into the home—was not relevant to the diag-
nosis and treatment of any injury suffered by Willingham. The
remainder of her statements to Drs. Dallas and Montalbano, however,
are admissible under Rule 803(4) to the extent they are relevant to the
issues presented at trial.
IV.
For the reasons set forth above, we vacate the judgment and
remand for a new trial.
VACATED AND REMANDED
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