1 Opinions of the Colorado Supreme Court are available to the
2 public and can be accessed through the Judicial Branch’s homepage at
3 http://www.courts.state.co.us. Opinions are also posted on the
4 Colorado Bar Association’s homepage at http://www.cobar.org.
5
6 ADVANCE SHEET HEADNOTE
7 June 19, 2017
8
9 2017 CO 71
0
1 No. 13SC68, Nicholls v. People—Criminal Trials—Right of Accused to Confront
2 Witnesses—Exceptions to Hearsay Rule—Statements Against Interest.
3
4 In light of the U.S. Supreme Court’s holding in Davis v. Washington, 547 U.S. 813
5 (2006), the supreme court holds that nontestimonial hearsay statements do not implicate
6 a defendant’s state constitutional right to confrontation, overruling Compan v. People,
7 121 P.3d 876 (Colo. 2005), which held otherwise. Because the hearsay statements at
8 issue in this case were nontestimonial, they did not implicate Colorado’s Confrontation
9 Clause, and the court of appeals did not err in concluding that the defendant’s
0 confrontation right was not violated.
1 The supreme court further holds that the third requirement for the admission of
2 inculpatory hearsay statements against interest, announced in People v. Newton, 966
3 P.2d 563, 576 (Colo. 1998) (requiring corroborating circumstances to demonstrate the
4 statement’s trustworthiness), is not constitutionally required for nontestimonial
5 statements against interest. To admit a third party’s nontestimonial statements against
6 interest under the version of CRE 804(b)(3) that existed at the time of the defendant’s
7 2008 trial, only two conditions needed to be satisfied: (1) the witness must have been
1 unavailable, and (2) the statement must have tended to subject the declarant to criminal
2 liability. The supreme court concludes that the third party’s nontestimonal statements
3 against interest satisfied these two requirements, and the trial court did not abuse its
4 discretion in admitting these statements as a statement against interested under CRE
5 804(b)(3), as that Rule existed at the time of the defendant’s trial.
6 Finally, the supreme court holds that the trial court did not abuse its discretion in
7 admitting testimony about the defendant’s response to the death of her second child
8 because the testimony was relevant and not unduly prejudicial; nor did the trial court
9 plainly err in admitting testimony about the cause second child’s death because the
0 brief, isolated statements did not so undermine the trial’s fairness as to cast serious
1 doubt on the reliability of the defendant’s conviction.
2 Accordingly, the supreme court affirms the judgment of the court of appeals.
1
2
3 The Supreme Court of the State of Colorado
4 2 East 14th Avenue • Denver, Colorado 80203
5 2017 CO 71
6 Supreme Court Case No. 13SC68
7 Certiorari to the Colorado Court of Appeals
8 Court of Appeals Case No. 09CA137
9 Petitioner:
0 Deborah Lee Nicholls,
1 v.
2 Respondent:
3 The People of the State of Colorado.
4 Judgment Affirmed
5 en banc
6 June 19, 2017
7
8 Attorneys for Petitioner:
9 Douglas K. Wilson, Public Defender
0 Andrea R. Gammell, Senior Deputy Public Defender
1 Denver, Colorado
2
3 Attorneys for Respondent:
4 Cynthia H. Coffman, Attorney General
5 Paul Koehler, First Assistant Attorney General
6 Denver, Colorado
7
8
9
0
1
2
3
4
5
6 JUSTICE MÁRQUEZ delivered the Opinion of the Court.
¶1 In November 2008, a jury convicted Deborah Lee Nicholls for the first degree
murders of her three children, and for conspiracy, attempted theft, using a controlled
substance, and possessing methamphetamine. On appeal, Nicholls argued, inter alia,
that the trial court erred in admitting at trial the statements that her then-husband, Tim
Nicholls, made to his cellmate about Nicholls’ involvement in their children’s deaths.
Nicholls contended that these statements violated her state constitutional right of
confrontation and were inadmissible hearsay. Nicholls also argued that the trial court
erroneously admitted her mother’s testimony about Nicholls’ reaction to her second1
child’s death years earlier, and her husband’s cellmate’s testimony about that child’s
cause of death from sudden infant death syndrome (“SIDS”). Nicholls maintained that
this testimony was both irrelevant and unduly prejudicial.
¶2 In an unpublished, unanimous opinion, the court of appeals affirmed Nicholls’
convictions. People v. Nicholls, No. 09CA137, slip op. at 1 (Colo. App. Dec. 13, 2012).
Relevant here, the court of appeals held that the husband’s nontestimonial statements to
his cellmate did not implicate Nicholls’ right of confrontation, and were admissible
under Colorado’s evidentiary rules as statements against interest. Id. at 8–9. It further
held that the trial court did not abuse its discretion in admitting Nicholls’ mother’s
statements, id. at 21, and that any error in the admission of the cellmate’s brief
testimony about her second child’s death from SIDS was not plain error, id. at 22–23.
1The People refer to this child as Nicholls’ first child, as did the court of appeals. We
defer to Nicholls’ description of this child as her second child.
2
We granted Nicholls’ petition for certiorari review2 and now affirm the judgment of the
court of appeals.
I. Facts and Procedural History
¶3 On the night of March 6, 2003, Nicholls’ husband, Tim, set fire to their home
while she was at their business, the Tailgate Bar. The fire killed their three children,
ages eleven, five, and three. After the fire consumed the house, Nicholls returned from
the Tailgate Bar and claimed to have left candles burning inside the house. She showed
little concern for the children and did not attend their funerals.
¶4 Nicholls and her husband maintained the fire was an accident. They submitted
insurance claims for the loss of their house and personal property and specifically
inquired about “child riders” to the husband’s life insurance policy that would have
covered a child’s accidental death. Nicholls was upset to learn that her husband’s
policy did not include such coverage.
¶5 Nicholls and her husband were charged and tried separately. The husband was
charged with multiple counts of first degree murder, arson, and other crimes. While
confined at the El Paso County Jail before his trial, the husband confessed to his
cellmate that he had acted with Nicholls to burn down their house and kill their
children to collect insurance proceeds. A jury convicted the husband of multiple counts
2 We granted certiorari to review the following issues:
1. Whether hearsay statements which shift blame to the accused are
admissible as statements against interest.
2. Whether it was error to admit evidence that petitioner’s second child
died of SIDS.
3
in July 2005, and the court of appeals affirmed his convictions. People v. Timothy
Nicholls, No. 07CA1248 (Colo. App. Jan. 14, 2010), cert. denied, No. 10SC124, 2010 WL
3389331 (Colo. Aug. 30, 2010).
¶6 In 2007, a grand jury indicted Nicholls on several charges, including three counts
of first degree murder—felony murder; three counts of first degree murder—child
under twelve; and three counts of child abuse resulting in death. These charges were
joined with an earlier indictment for attempted theft, use of a controlled substance, and
two counts of possession of a controlled substance.
¶7 At trial, the People’s theory was that Nicholls and her husband needed money
for drug-related debts; they conspired to set their house on fire and kill their children so
that they could collect $250,000 in expected insurance proceeds on their children’s lives
and their home’s value.
¶8 Over Nicholls’ objections, the husband’s cellmate testified for the People about
the statements the husband made to him regarding the fire.3 According to the cellmate,
the husband said that he and Nicholls planned the fire together and built fires in an
outdoor fire pit in the months beforehand to accustom their neighbors to seeing flames
in their yard. The husband stated that Nicholls wiped Goof-Off (a highly flammable
solvent) on the furniture before leaving for work, and that he fed the children a snack
on that furniture so that they would get Goof-Off on their pajamas. The husband said
that he sprayed more Goof-Off around the house after putting the children to bed, and
3The jury also saw a video recording of the cellmate’s interview with a detective in
which the cellmate recounted the husband’s statements.
4
then set the house on fire by knocking over a candle. The husband explained that he
opened the garage door to feed the fire, heard his son’s cries, went upstairs, and jumped
out his bedroom window. The husband drew diagrams of the house and surrounding
neighborhood and showed the cellmate where he sprayed Goof-Off. These diagrams
were admitted as exhibits at trial. The husband told the cellmate that Nicholls was the
mastermind of the crime, that she got “strung out” on drugs and convinced him to set
the fire, and that his lawyer advised him not to divorce Nicholls to ensure that neither
could testify against the other. The cellmate also testified that the husband told him
that Nicholls “killed her [second] baby,” and that that child’s death was ruled a SIDS
death.
¶9 Nicholls’ mother also testified, over Nicholls’ objection, that Nicholls cried
non-stop for three days when her second child died years earlier of SIDS, yet she did
not grieve when her three children died in the fire.
¶10 The People’s forensic and physical evidence corroborated the cellmate’s account
about the fire. Investigators discovered cans of Goof-Off in the house and shrubs, and a
chemical analysis confirmed the presence of an accelerant on the children’s pajamas. A
trained fire detection dog alerted to petroleum products in the living room, and forensic
experts testified the fire was intentionally set at several places in that room. Nicholls
maintained her defense that the fire was accidental and that the cellmate fabricated the
statements he claimed the husband made about the fire.
¶11 The jury found Nicholls guilty of all charges. Nicholls was sentenced to three
consecutive life terms for the murders; twenty-four years for conspiracy; and one year
5
each for attempted theft, use of a controlled substance, and possession of a controlled
substance.
¶12 The court of appeals affirmed Nicholls’ convictions.4 Nicholls, slip op. at 41.
This appeal followed.
II. Analysis
¶13 We first address Nicholls’ argument that the trial court’s admission of her
husband’s statements to his cellmate violated her right of confrontation and were
inadmissible hearsay. We then address Nicholls’ contentions that the trial court erred
in permitting her mother and the cellmate to testify about the earlier death of her
second child.
A. Husband’s Statements to His Cellmate
¶14 Nicholls argues that the admission of her husband’s statements to his cellmate
violated her confrontation right under the Colorado Constitution. She further asserts
that the husband’s statements were not admissible as statements against interest under
CRE 804(b)(3) because they shifted blame to her and were self-serving.
¶15 Parties are generally prohibited from introducing hearsay statements into
evidence. See CRE 802. This is because “[h]earsay statements are presumptively
unreliable since the declarant is not present to explain the statement in context.” Blecha
v. People, 962 P.2d 931, 937 (Colo. 1998). “Moreover, since the declarant is not subjected
to cross-examination, the truthfulness of the statement is questionable.” Id.
4 The court of appeals vacated Nicholls’ sentence as to the imposition of prosecution
costs and remanded for a hearing on Nicholls’ ability to pay those costs. Nicholls, slip
op. at 41.
6
¶16 To be admissible, a hearsay statement must: (1) comply with a specific exception
to the hearsay rule, and (2) not offend a defendant’s constitutional right to
confrontation. People v. Newton, 966 P.2d 563, 572 (Colo. 1998). “These two
requirements . . . do not necessarily involve identical inquiries.” Id. at 572–73.
¶17 We review a trial court’s evidentiary rulings for abuse of discretion. A trial court
abuses its discretion only when its ruling is manifestly arbitrary, unreasonable, or
unfair. People v. Stewart, 55 P.3d 107, 122 (Colo. 2002). Under the non-constitutional
harmless error standard, an erroneous evidentiary ruling does not require reversal
unless the ruling affects the accused’s substantial rights. Yusem v. People, 210 P.3d 458,
469 (Colo. 2009). “If a reviewing court can say with fair assurance that, in light of the
entire record of the trial, the error did not substantially influence the verdict or impair
the fairness of the trial, the error may properly be deemed harmless.” People v.
Gaffney, 769 P.2d 1081, 1088 (Colo. 1989). Confrontation claims are reviewed de novo
and under the constitutional harmless error standard. Bernal v. People, 44 P.3d 184,
198, 200 (Colo. 2002). A constitutional error requires reversal unless the reviewing court
is “confident beyond a reasonable doubt that the error did not contribute to the guilty
verdict.” Id. at 200.
¶18 We first address whether the husband’s statements to the cellmate violate
Nicholls’ right of confrontation. We then address whether the statements are
admissible under our rules of evidence.
7
1. Husband’s Nontestimonial Statements Did Not Implicate the
Confrontation Clause
¶19 The United States Constitution provides that, “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S.
Const. amend. VI. Colorado’s Confrontation Clause similarly provides that “[i]n all
criminal prosecutions, the accused shall have the right . . . to meet the witnesses against
him face to face.” Colo. Const. art. II, § 16. Our decisions “evidence a reasoned attempt
to ‘maintain consistency between Colorado law and federal law’” in this area. Compan
v. People, 121 P.3d 876, 886 (Colo. 2005) (quoting Blecha, 962 P.2d at 941).
¶20 Because “[t]he cases applying the federal right are relevant to our present
inquiry” and “provid[e] useful guidance for our consideration of . . . rights under
[Colorado’s Confrontation Clause],” People v. Dement, 661 P.2d 675, 680–81 (Colo.
1983), abrogated on other grounds by People v. Fry, 92 P.3d 970 (Colo. 2004), we start
with an examination of federal Confrontation Clause jurisprudence.
a. Federal Confrontation Clause Jurisprudence
¶21 In Ohio v. Roberts, 448 U.S. 56 (1980), the U.S. Supreme Court held that the
federal Confrontation Clause countenances the admission of hearsay only if: (1) the
declarant is unavailable to testify, and (2) the statement bears adequate “indicia of
reliability.” Id. at 65–66. Under the Roberts test, the reliability of the statement could be
inferred if it fell “within a firmly rooted hearsay exception” or if the statement bore
“particularized guarantees of trustworthiness.” Id. at 66.
8
¶22 The Supreme Court revisited its Confrontation Clause analysis and the Roberts
test in Crawford v. Washington, 541 U.S. 36 (2004). The Court examined the historical
roots of the Confrontation Clause and concluded that it is principally concerned with
“testimonial” statements, i.e., statements made under circumstances that would lead an
objective witness reasonably to believe that the statement would be available for use at
a later trial. Id. at 51–53. The Court retreated from the “reliability” prong of the Roberts
test for the admission of hearsay, reasoning that where testimonial statements are
involved, it did not think the Framers meant to leave the Sixth Amendment’s
protections to the vagaries of the rules of evidence or amorphous notions of
“reliability.” Id. at 60–61. The Court explained that the Confrontation Clause
“commands, not that evidence be reliable, but that reliability be assessed in a particular
manner: by testing in the crucible of cross-examination.” Id. at 61. The Court thus
concluded that the federal clause bars admission of testimonial hearsay of a witness
unless the declarant is unavailable at trial and the defendant had a prior opportunity to
cross-examine him. In short, Crawford “overruled Roberts . . . by restoring the
unavailability and cross-examination requirements,” Davis v. Washington, 547 U.S. 813,
825 n.4 (2006), and by striking Roberts’ reliability requirement for testimonial hearsay.
Although the Court in Crawford declined to formulate a comprehensive definition of
“testimonial,” it provided some guidance, noting that “it applies at a minimum to prior
testimony at a preliminary hearing, before a grand jury, or at a former trial; and to
police interrogations.” Crawford, 541 U.S. at 68.
9
¶23 In 2006, the Supreme Court held in Davis v. Washington that the federal
Confrontation Clause applies only to testimonial statements and not to nontestimonial
statements. Davis, 547 U.S. at 821–25. Drawing upon its prior analysis in Crawford, the
Court explained:
Only [testimonial statements] cause the declarant to be a “witness” within
the meaning of the Confrontation Clause. It is the testimonial character of
the statement that separates it from other hearsay that, while subject to
traditional limitations upon hearsay evidence, is not subject to the
Confrontation Clause.
Id. at 821 (citing Crawford, 541 U.S. at 51).
b. Colorado Confrontation Clause Jurisprudence
¶24 In 1983, we adopted the Supreme Court’s Roberts test in People v. Dement,
661 P.2d at 681. Fry, 92 P.3d at 975. Thus, under Dement, hearsay is admissible under
Colorado’s Confrontation Clause only if: (1) the declarant is unavailable to testify, and
(2) the statement bears sufficient indicia of reliability. Dement, 661 P.2d at 680–81.
¶25 Some twenty years later in People v. Fry, we had the opportunity to revisit
Dement in light of the Supreme Court’s decision in Crawford, which, as discussed
above, rejected the reliability prong of the Roberts test in favor of an inquiry into
whether the defendant had a prior opportunity for cross-examination. Fry, 92 P.3d at
972–74. Reasoning that the holding in Crawford was limited to “testimonial
statements,” we jettisoned the Roberts “indicia of reliability” analysis that we had
adopted in Dement, id. at 976, and held that a witness’s previous testimony is not
admissible at trial unless the witness is unavailable and the defendant had an adequate
prior opportunity for cross-examination, id. at 981.
10
¶26 In 2005, we held in Compan that the Dement-Roberts test still governed the
admission of nontestimonial statements under the Colorado Confrontation Clause.
Compan, 121 P.3d at 885. We recognized that Fry expressly overruled Dement by
rejecting the reliability prong of the Roberts test, but noted that our holding in Fry “was
limited to testimonial statements” and that “nontestimonial statements were not at
issue” in that case. Id. at 884. The following year, we applied Compan in People v.
Vigil, 127 P.3d 916 (Colo. 2006), and reaffirmed that “[t]o admit non-testimonial
evidence when the defendant has not had a prior opportunity for cross-examination,
the prosecution must show that the declarant is unavailable and the statement bears
sufficient indicia of reliability.” Id. at 927 (emphasis added) (citing Dement, 661 P.2d at
679–81; Compan, 121 P.3d at 885).
c. Revisiting Compan in Light of Davis
¶27 Since the Supreme Court held in Davis in 2006 that nontestimonial hearsay does
not implicate the federal Confrontation Clause, we have not squarely addressed how, if
at all, Davis affects the admission of nontestimonial evidence under Colorado’s
Confrontation Clause.5 Davis squarely rejected our conclusion in Compan that
5 We acknowledged Davis’s distinction between testimonial and nontestimonial
statements in Arteaga-Lansaw v. People, 159 P.3d 107, 109 (Colo. 2007), when
discussing a federal Confrontation Clause claim. And we noted in Raile v. People,
148 P.3d 126 (Colo. 2006), that we had decided Vigil (which reaffirmed Compan and its
holding that the Dement-Roberts test controls the admission of nontestimonial hearsay
under Colorado’s Confrontation Clause) “before this Court had the benefit of the Davis
decision and that we are bound to follow later decisions by the United States Supreme
Court.” Id. at 130 n.6 (citing Vigil, 127 P.3d at 921).
11
“Roberts continues to govern federal constitutional scrutiny of nontestimonial
evidence.” See Compan, 121 P.3d at 881.
¶28 The parties agree that the husband’s statements at issue in this case were
nontestimonial. The husband did not confess to a law enforcement officer or in the
course of a formalized proceeding; rather, he confessed to his cellmate while they
shared a cell in the county jail. Nothing in the record suggests that the husband knew
his cellmate was an informant, and the husband told the cellmate not to tell anyone
what he had conveyed.
¶29 Because the husband’s statements were nontestimonial, this case presents the
opportunity to revisit Compan in light of Davis and determine whether nontestimonial
hearsay implicates the Colorado Confrontation Clause. While stare decisis requires this
court to follow the rule of law it established in earlier cases, Bedor v. Johnson,
2013 CO 4, ¶ 23, 292 P.3d 924, 929, the doctrine “does not exclude room for growth in
the law, and the courts are not without power to depart from a prior ruling, or to
overrule it, where sound reasons exist,” Creacy v. Indus. Comm’n, 366 P.2d 384, 386
(Colo. 1961).
¶30 In light of the U.S. Supreme Court’s ruling in Davis, we now overrule Compan
and hold that Colorado’s Confrontation Clause applies only to testimonial statements
and that nontestimonial statements do not implicate a defendant’s state constitutional
right to confrontation. Sound reasons exist for overruling our holding to the contrary in
Compan.
12
¶31 First, we have long interpreted Colorado’s Confrontation Clause as
commensurate with the federal Confrontation Clause. See, e.g., Compan, 121 P.3d at
885–86 (rejecting the petitioner’s argument that the state Confrontation Clause protects
broader rights than the federal Confrontation Clause); Blecha, 962 P.2d at 941
(explaining that Dement adopted the Roberts test “[i]n an effort to maintain consistency
between Colorado law and federal law”); Dement, 661 P.2d at 680–81. Our holding
today maintains the consistency between state and federal law on this issue.
¶32 Second, the Supreme Court’s reasoning in Davis is sound. As the Supreme Court
explained, the text of the federal Confrontation Clause refers to confronting
“witnesses.” Davis, 547 U.S. at 821 (“In all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against him.” (emphasis added)
(quoting U.S. Const. amend. VI)). Only testimonial statements cause a declarant to be a
“witness” within the meaning of the Clause. Davis, 547 U.S. at 821. Indeed, “[i]t is the
testimonial character of the statement that separates it from other hearsay that, while
subject to traditional limitations upon hearsay evidence, is not subject to the
Confrontation Clause.” Id. We conclude that the Supreme Court’s logic in Davis
applies with equal force to Colorado’s Confrontation Clause, which similarly refers to
“witnesses.” Colo. Const. art. II, § 16 (“In criminal prosecutions the accused shall have
the right . . . to meet the witnesses against him face to face.” (emphasis added)).
¶33 Finally, neither Compan nor Dement contains independent, state constitutional
reasoning that demands adherence to the Dement-Roberts test for nontestimonial
hearsay. Because the Roberts decision on which Compan and Dement rested is no
13
longer good law under Crawford and Davis, our holding in Compan that Roberts
governs the admission of nontestimonial statements can no longer stand. For these
reasons, we overrule that portion of Compan and hold that nontestimonial statements
do not implicate Colorado’s Confrontation Clause.
¶34 Here, because the husband’s statements were nontestimonial, they did not
implicate the Colorado Confrontation Clause, and the court of appeals did not err in
concluding that Nicholls’ confrontation rights were not violated. See Nicholls, slip. op.
at 9.
2. Husband’s Statements Were Admissible Under
CRE 804(b)(3)
¶35 Having concluded that the admission of the husband’s statements did not violate
Nicholls’ right of confrontation, we now address whether the statements were
admissible under CRE 804(b)(3) as statements against interest.
¶36 At the time of Nicholls’ trial in 2008, CRE 804(b)(3) provided the following
exception to the hearsay rule for a statement against interest:
The following are not excluded by the hearsay rule if the declarant is
unavailable as a witness: . . . (3) Statement against interest. A statement
which was at the time of its making so far contrary to the declarant’s
pecuniary and proprietary interest, or so far tended to subject him to civil
or criminal liability . . . that a reasonable man in his position would not
have made the statement unless he believed it to be true. A statement
tending to expose the declarant to criminal liability and offered to
exculpate the accused is not admissible unless corroborating
circumstances clearly indicate the trustworthiness of the statement.
CRE 804(b)(3) (2008) (emphasis added). Although the text of the rule at that time
required that “corroborating circumstances clearly indicate the trustworthiness of the
14
statement” when it is offered to exculpate the accused, it did not impose a corroboration
requirement for statements against penal interest offered to inculpate the accused, such
as the husband’s statements at issue in this case. See People v. Newton, 966 P.2d 563,
574 (Colo. 1998).
a. Newton’s Framework
¶37 In Newton, we addressed the admissibility of hearsay statements under CRE
804(b)(3) offered to inculpate the defendant. 966 P.2d at 574. There, we considered
whether the trial court erred in admitting a witness’s inculpatory statements to a
detective as statements against interest, where the witness refused to testify at trial. Id.
at 565–66. The witness in that case was the defendant’s girlfriend, who gave a
voluntary statement to a detective indicating her knowledge of an armed robbery and
the defendant’s involvement in it, but invoked her Fifth Amendment right not to testify
at trial. Id. at 565–67.
¶38 Noting that “[t]he text of CRE 804(b)(3) does not impose a corroboration
requirement for inculpatory statements,” we looked to a court of appeals decision and
several federal decisions that nevertheless applied a corroboration requirement to
statements against penal interest offered to inculpate the defendant. Id. at 574–75. We
observed that such a requirement is rooted in the Confrontation Clause:
Most courts that have required corroboration for inculpatory statements
have done so out of concern that such statements comply with the
Confrontation Clause. It therefore makes sense that the corroboration
requirement for inculpatory statements, which is rooted in the
Confrontation Clause, . . . can only be satisfied by looking to the inherent
trustworthiness surrounding the making of the statement.
15
Id. at 575 (citation omitted).
¶39 We therefore concluded in Newton that three conditions must be satisfied to
admit a third party witness’s statement against interest under CRE 804(b)(3) when the
statement is offered to inculpate the defendant. First, the witness must be unavailable
as required by CRE 804(a). Id. at 576. Second, the statement must tend to subject the
declarant to criminal liability; that is, the trial court must determine whether a
reasonable person in the declarant’s position would not have made the statement unless
the person believed it to be true. Id. Both of these requirements were derived from the
text of CRE 804(b)(3). Relevant here, we added a third prong requiring corroborating
circumstances that demonstrate the trustworthiness of the statement:
Third, the People must show by a preponderance of evidence that
corroborating circumstances demonstrate the trustworthiness of the
statement. In conducting this third inquiry, a trial court should limit its
analysis to the circumstances surrounding the making of the statement
and should not rely on other independent evidence that also implicates
the defendant. Appropriate factors for a trial court to consider include:
where and when the statement was made, to whom the statement was
made, what prompted the statement, how the statement was made, and
what the statement contained.
Id. (emphasis added).
b. Revisiting Newton’s Third Prong in Light of Our
Confrontation Clause Holding
¶40 In light of our holding today that the Colorado Confrontation Clause applies
only to testimonial statements, we also now hold that the third prong of Newton’s
analytical framework is not constitutionally required for nontestimonial statements
16
against interest.6 We created this third prong in Newton specifically to protect
confrontation rights, see id. at 575–76, but as discussed above, confrontation rights are
not implicated by the admission of nontestimonial hearsay statements.
¶41 Thus, to admit a third party’s nontestimonial statement against interest under
the version of CRE 804(b)(3) that existed at the time of Nicholls’ 2008 trial, only two
conditions needed to be satisfied: (1) the witness must have been unavailable, and (2)
the statement must have tended to subject the declarant to criminal liability.
6 CRE 804(b)(3) was amended in 2010 to clarify, in light of our holding in Newton, that
corroborating circumstances that demonstrate the trustworthiness of a statement are
required regardless of whether the statement is offered to inculpate or exculpate an
accused. CRE 804(b)(3) now provides:
(3) Statement against interest. A statement that:
(A) a reasonable person in the declarant’s position would have made only
if the person believed it to be true because, when made, it was so contrary
to the declarant's proprietary or pecuniary interest or had so great a
tendency to invalidate the declarant’s claim against someone else or to
expose the declarant to civil or criminal liability; and
(B) is supported by corroborating circumstances that clearly indicate its
trustworthiness, if it is offered in a criminal case as one that tends to
expose the declarant to criminal liability.
COMMITTEE COMMENT
The rule was revised, consistent with recent amendments to [Fed. R. Evid.
804(b)(3)], only to clarify that corroborating circumstances are required
regardless of whether a statement is offered to inculpate or exculpate an
accused. See People v. Newton, 966 P.2d 563 (Colo. 1998) (prosecutors
seeking to admit statements against the accused must satisfy the
corroboration requirement solely by reference to the circumstances
surrounding its making).
This case concerns the prior version of the rule in effect at Nicholls’ 2008 trial.
17
c. Other Relevant Holdings in Newton Concerning the
Scope of an Admissible “Statement” Remain Good
Law
¶42 Other holdings in Newton concerning the scope of an admissible “statement”
continue to govern the admission of inculpatory statements against interest under CRE
804(b)(3). We underscore two here that are relevant to Nicholls’ arguments.
¶43 First, this court held that in addition to “a narrative’s precise statement against
penal interest,” “related, collaterally neutral statements are admissible under CRE
804(b)(3).” Id. at 578 (emphasis added). We adopted a broad definition of “statement,”
expressly rejecting the Supreme Court’s narrower approach to the federal rule in
Williamson v. United States, 512 U.S. 594 (1994). Newton, 966 P.2d at 578. The
Williamson Court concluded that the federal rule intended the term “statement” to refer
to a single declaration or remark, rather than a “report or narrative.” Williamson, 512
U.S. at 599. The Court then held that collateral, non-self-inculpatory statements are not
admissible under Fed. R. Evid. 804(b)(3), even if they are made within a broader
narrative that is generally self-inculpatory. Id. at 600–02.
¶44 We ultimately rejected the Williamson approach because “Colorado case law has
interpreted CRE 804(b)(3) more broadly than the Supreme Court interpreted Fed. R.
Evid. 804(b)(3) in Williamson.” Newton, 966 P.2d at 577. We concluded that “a more
permissive approach” than Williamson “is consistent with Colorado case law and
represents the better evidentiary policy.” Id. at 577. We noted that Justice Kennedy’s
concurring opinion in Williamson strongly disagreed with the majority’s interpretation
of the federal rule, and instead advocated an approach similar to Dean McCormick’s
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view that collateral statements of a neutral character should be admitted, while
collateral statements of a self-serving character should not. Id. at 576–77. Implicitly
adopting the view expressed in Justice Kennedy’s concurrence, we held that a
narrative’s precise statement against interest and related, collaterally neutral statements
are admissible under CRE 804(b)(3). Id. at 578; see also Williamson, 512 U.S. at 620
(Kennedy, J., concurring in judgment).
¶45 We also adopted from Justice Kennedy’s concurrence two overarching
limitations on the admission of a statement against interest. “First, statements that are
so self-serving as to be unreliable should be excluded. Second, if the trial court
determines that the declarant had a significant motivation to curry favorable treatment,
then the entire narrative is inadmissible.” Newton, 966 P.2d at 579; see also Williamson,
512 U.S. at 620.
d. Application to this Case
¶46 To summarize, we hold that to admit a third party’s nontestimonial statement
against interest under the version of CRE 804(b)(3) that existed at the time of Nicholls’
2008 trial, only two conditions needed to be satisfied: (1) the witness must have been
unavailable, and (2) the statement must have tended to subject the declarant to criminal
liability. If the statement met these requirements, then the court should have admitted
“all statements related to the precise statement against penal interest” unless the
statement was so self-serving as to be unreliable, or unless the declarant had a
significant motivation to curry favorable treatment such that the entire narrative should
be excluded. See Newton, 966 P.2d at 579 (quoting Williamson, 512 U.S. at 620).
19
¶47 Here, the two conditions of CRE 804(b)(3) were satisfied. First, it is undisputed
that the husband was unavailable to testify. Second, the husband’s statements to his
cellmate tended to subject him to criminal liability.
¶48 The husband confessed to his cellmate that he and Nicholls had long planned to
set fire to their home with their children inside to collect insurance proceeds. The
husband described how he executed their plan when he put the children to bed in
pajamas laced with Goof-Off, and purposely knocked a lit candle onto the living room
furniture. He told the cellmate that he opened the garage door to accelerate the fire’s
spread, ignored his son’s cries, and jumped out of his bedroom window. These
statements directly subjected the husband to criminal liability and were against his
penal interest. We agree with the court of appeals that the trial court did not abuse its
discretion in concluding that the husband’s confession was “highly incriminating and
exposed him to criminal liability,” and that the trial court therefore did not err in
admitting it as a statement against interest under CRE 804(b)(3). See Nicholls, slip op.
at 10–11. For the same reasons, we are not persuaded by Nicholls’ assertion that the
majority of her husband’s statements were not actually against his interest but instead
shifted blame to Nicholls as the more culpable party.
¶49 Nicholls’ contention that her husband’s statements were not sufficiently reliable
to satisfy the third prong of the Newton analysis likewise fails. Though the court of
appeals addressed this argument, see id. at 11–12, we need not consider it. As
explained above, we hold that the third prong of the Newton test, which was grounded
20
in the Confrontation Clause, is not constitutionally required for the admission of a
nontestimonial statement against interest.
¶50 Nicholls’ argument that the husband’s non-self-inculpatory statements were not
“collaterally neutral” does not persuade us. This court’s opinion in Newton was the
first time we used the term “collaterally neutral statement,” though we noted that
“[o]ur case law allowed for the admission of a statement against interest that included
collaterally neutral facts” prior to the adoption of the Colorado Rules of Evidence.
Newton, 966 P.2d at 577 (citing West. Auto. Supply Co. v. Washburn, 149 P.2d 804,
805–08 (Colo. 1944); In re Estate of Granberry, 498 P.2d 960, 962–63 (Colo. 1972)).
Because this court drew extensively from Justice Kennedy’s concurring opinion in
Williamson in reaching our holding in Newton, we return to Justice Kennedy’s logic to
define a “collaterally neutral statement.”
¶51 As this court explained in Newton, 966 P.2d at 576–77, Justice Kennedy reviewed
the approaches of commentators Dean Wigmore, Dean McCormick, and Professor
Jefferson regarding the admissibility of collateral statements, Williamson, 512 U.S. at
611–12. Justice Kennedy observed that the Advisory Committee’s Note to Fed. R. Evid.
804(b)(3) referred to McCormick’s treatise for guidance regarding the balancing of self-
serving and disserving aspects of a declaration, and advocated an approach similar to
that espoused by McCormick. See id. at 617–20; Newton, 966 P.2d at 576–77. As Justice
Kennedy explained:
[McCormick] argued for the admissibility of collateral statements of a
neutral character, and for the exclusion of collateral statements of a
self-serving character. For example, in the statement “John and I robbed
21
the bank,” the words “John and” are neutral (save for the possibility of
conspiracy charges). On the other hand, the statement “John, not I, shot
the bank teller” is to some extent self-serving and therefore might be
inadmissible.
Williamson, 512 U.S. at 612 (citing C. McCormick, Law of Evidence § 256, pp. 552–53
(1954)). Though Justice Kennedy’s examples do not comprehensively define a
“collaterally neutral statement,” we agree that they appropriately distinguish between a
collaterally neutral statement (e.g., “John and I robbed the bank.”) and a self-serving
statement (e.g., “John, not I, shot the bank teller.”). Justice Kennedy drew his examples
from Professor Graham’s treatise, which explained that “John and I robbed a bank” is a
collaterally neutral inculpatory statement: “In this example[,] the relevant material is
not contained in the disserving segment (‘I robbed the bank.’); instead, it is in the
collateral portion (‘John robbed the bank.’),” which is neutral as to the declarant’s
interest.7 Mark H. Graham, 30C Fed. Prac. & Proc. Evid. § 7075 n.10 (2017), Westlaw.
¶52 Nicholls claims that her husband’s statements were not collaterally neutral, but
Justice Kennedy’s examples illustrate why her claim fails. The husband’s statements
here were analogous to “John and I robbed the bank,” a paradigmatic collaterally
neutral statement. They were not blame-shifting. As described above, the husband’s
description of Nicholls’ involvement explained their motive for setting their house on
fire with their children inside and detailed how they carried out their plans. Moreover,
the husband admitted to his cellmate that he alone set the fire while Nicholls was out of
the house. It is true that some of the husband’s individual statements were solely about
7McCormick likewise used the term “neutral” in this context to mean “neutral as to the
declarant’s interest.” C. McCormick, Law of Evidence § 256, p. 552 (1954)
22
Nicholls—e.g., that Nicholls got him started “back on [methamphetamine] again” and
that she told him on the night of the fire that “[t]his is going through.” But we squarely
rejected in Newton the Williamson approach of “severing collaterally neutral
statements from each precise self-inculpatory remark” because doing so “deprives the
jury of important context” and “undervalue[es] the need for meaningful evidence in
criminal cases,” and because “the surgical precision called for by Williamson is highly
artificial and nearly impossible to apply.” Newton, 966 P.2d at 578. Taken as a whole,
the husband’s statements were not self-serving or blame-shifting. They were at most
dually inculpatory.8 We therefore reject Nicholls’ third argument.
8 We agree with the People that the husband’s statements can be characterized as dually
inculpatory and thus distinguished from blame-shifting statements. In Stevens v.
People, 29 P.3d 305 (Colo. 2001), overruled on other grounds by Fry, 92 P.3d at 970, we
addressed the admission of statements by a gunman hired by the defendant to kill the
victim. We held that the gunman’s statements were dually inculpatory and rejected the
defendant’s contention that they were blame-shifting:
[The gunman] admitted in his confession that he alone shot and killed the
victim. He did not minimize his involvement in the murder nor did he
shift the responsibility for committing the murder to the defendant. [The
gunman’s] statements inculpating the defendant are closely intertwined
with the self-inculpatory portions of his confession. His description of the
defendant’s involvement in the murder provided the police investigators
with [the gunman’s] motive for killing the victim and explained how [the
gunman] carried out the murder. In addition, [the gunman’s] explanation
of how he and the defendant discussed and planned the murder not only
inculpated the defendant, it also augmented his own guilt by showing that
the murder was premeditated. This dual inculpation distinguishes cases
in which the parts of an accomplice’s statement inculpating the defendant
do not also inculpate the accomplice but rather tend to exculpate the
accomplice by shifting the majority of the blame to the defendant.
Id. at 315 (emphasis added).
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¶53 For similar reasons, we reject Nicholls’ argument that the husband’s statements
that Nicholls killed her second child, was a “fucking bitch” and “sick woman,” and that
she was so “spun out” on drugs that she did not attend the children’s funerals, were
inadmissible as collaterally neutral statements. As discussed above, we rejected this
line-by-line approach and such a narrow definition of “statement” in Newton, 966 P.2d
at 576–79, and therefore we decline to review separately each individual comment the
husband made to his cellmate.
¶54 In sum, we conclude that the trial court did not abuse its discretion in admitting
the husband’s confession to his cellmate as a statement against interest under CRE
804(b)(3) as that Rule existed at the time of Nicholls’ trial.
B. Mother’s and Cellmate’s Testimony About the Death of
Nicholls’ Second Child
¶55 Nicholls’ second child died of SIDS several years before the fire and the deaths of
the three children at issue here. Over Nicholls’ objections, the trial court allowed
Nicholls’ mother to testify for the People that Nicholls cried non-stop for three days
when her second child died of SIDS but did not grieve when her three children died in
the fire. The trial court also allowed the cellmate to testify that the husband told him
that Nicholls “killed her [second] baby” and that that child’s death was ruled a SIDS
death. Nicholls argues that this evidence that her second child died of SIDS was
irrelevant and unfairly prejudicial.
¶56 Relevant evidence is “evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less
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probable than it would be without the evidence.” CRE 401. Relevant evidence may be
excluded if “its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.” CRE 403.
Reviewing courts give great deference to trial court decisions under CRE 403 because a
multitude of factors are considered in this balancing process. See Vialpando v. People,
727 P.2d 1090, 1095–96 (Colo. 1986). A reviewing court must afford the evidence the
maximum probative value attributable by a reasonable fact finder and the minimum
unfair prejudice to be reasonably expected. People v. Rath, 44 P.3d 1033, 1043 (Colo.
2002). Absent an abuse of discretion, a trial court’s ruling concerning the relative
probative value and prejudicial impact of the evidence will not be disturbed on review.
People v. Gibbens, 905 P.2d 604, 607 (Colo. 1995). To demonstrate an abuse of
discretion, a petitioner must show that the trial court’s decision was manifestly
arbitrary, unreasonable, or unfair. People v. Nuanez, 973 P.2d 1260, 1263 (Colo. 1999).
1. Mother’s Testimony
¶57 On redirect examination, the People asked Nicholls’ mother if she had seen
Nicholls grieve a loss before and, if so, whether it was different from her reaction to the
deaths of her three children in this case. Defense counsel objected on relevance and
prejudice grounds, concerned that this line of questioning would lead the jury to draw
unspecified “improper inferences.” The trial court inferred that defense counsel was
concerned that Nicholls would be “implicat[ed] . . . in somehow causing the death” of
her second child. The trial court overruled the objection on the condition that the
25
People lead the witness “so that she doesn’t add anything to that with regard to
thinking that [Nicholls] had some sort of responsibility” for her second child’s death.
The People then asked the mother about how Nicholls’ reaction to her second child’s
death compared with her reaction in this case. Again, defense counsel objected, and the
trial court overruled the objection. Nicholls’ mother stated Nicholls’ reactions were
“[c]ompletely different. [Nicholls] was sobbing and wailing after [her second child]
died. I can see her sitting there crying for days. And that was not the case at the
hospital after [the three children] died” in the fire.
¶58 We conclude that the trial court did not abuse its discretion in admitting this
testimony. Although the trial court made no express findings regarding relevance, we
agree with the court of appeals that the testimony was relevant to show how differently
Nicholls grieved the second child’s death as compared to the deaths of the three child
victims here. See Nicholls, slip op. at 22. This evidence supported the People’s theory
that Nicholls conspired to kill the children for insurance money. Moreover, the court’s
explanation, and specifically its direction that the People lead the witness to prevent her
from suggesting that Nicholls was responsible for the child’s death, indicates that the
trial court properly balanced the danger of unfair prejudice (based on potential juror
speculation about Nicholls’ responsibility for the second child’s death) with the
probative value of her mother’s testimony. Ascribing the maximum probative value
that a reasonable fact finder might give such evidence, and the minimum unfair
prejudice to be reasonably expected from its admission, we conclude that the trial court
26
did not abuse its discretion in allowing Nicholls’ mother to testify about Nicholls’
grieving.
2. Cellmate’s Testimony
¶59 The cellmate also testified briefly about the second child’s death, stating that the
husband said, “Man, [Nicholls] killed her [second] baby,” and later confirming on
redirect that the husband told him the child’s death was ruled a SIDS death.
¶60 Nicholls did not object at trial to this testimony under CRE 401 or 403 and
therefore did not properly preserve this issue. Consequently, we review only for plain
error. People v. Bowers, 801 P.2d 511, 519 (Colo. 1990). Under plain error review,
reversal is required only if the appellate court, “after reviewing the entire record, can
say with fair assurance that the error so undermined the fundamental fairness of the
trial itself as to cast serious doubt on the reliability of the judgment of conviction.”
Wilson v. People, 743 P.2d 415, 420 (Colo. 1987).
¶61 We conclude that the trial court did not plainly err by admitting the cellmate’s
testimony about the second child’s death. We agree with the court of appeals that these
brief, isolated statements did not so undermine the trial’s fairness as to cast serious
doubt on the reliability of Nicholls’ conviction. See Nicholls, slip op. at 23. The People
did not rely at all on this testimony, and Nicholls’ conviction was amply supported by
substantial, properly admitted evidence.
III. Conclusion
¶62 For the foregoing reasons, we affirm the judgment of the court of appeals.
27