and County of Denver District Court No. 11CR2819 Honorable
Sheila A. Rappaport, Judge
Cynthia H. Coffman, Attorney General, Jay C. Fisher,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Anne
Stockham, Deputy State Public Defender, Denver, Colorado, for
1 Jonathan Ray McFee was convicted of first degree murder in
the stabbing death of his girlfriend, L.E. At trial, the
district court admitted her prior statements to family
members recounting McFee's threats to kill her. The court
also admitted a note written by L.E. shortly before her death
in which she said that McFee had threatened her and predicted
that he would eventually follow through on those threats.
2 McFee contends that admission of these statements
constituted an evidentiary error that deprived him of a fair
trial and that admission of the note violated his rights
under the Sixth Amendment's Confrontation Clause. We
agree that the note was a testimonial statement and that its
admission violated McFee's constitutional rights. But, in
part because we determine that the remaining statements were
properly admitted, we conclude that the constitutional error
was harmless beyond a reasonable doubt.
3 We reject McFee's remaining contentions of error and
therefore affirm the judgment.
4 L.E. was the in-house manager of a residential facility for
patients with HIV and AIDS. Late one night, a resident
discovered L.E. lying in a pool of blood in the hallway. By
the time police arrived, she had died from multiple stab
wounds. Police discovered the bloody murder weapon - a
fifteen- inch knife from the facility's kitchen - jammed
underneath L.E.'s bedroom door.
5 A few months later, the police arrested McFee for the
murder. He and L.E. had been in a long-term relationship and
had been living together at the facility until shortly before
L.E.'s murder. By all accounts, the relationship was
volatile. Numerous witnesses testified at trial that they had
heard McFee threaten to kill L.E. Members of her family
testified that L.E. had recounted repeated threats by McFee
and had told them that she was afraid of him. Shortly before
the murder, L.E. wrote a statement implicating McFee and gave
it to her cousin for safekeeping.
6 When he was arrested, McFee was driving L.E.'s car and,
although the couple had apparently broken up a couple of days
before the murder, he had a key to the facility on his key
ring. According to the prosecution's evidence, there were
no signs of burglary or forced entry into the facility on the
night of L.E.'s murder.
7 McFee was interviewed briefly by the police after his
arrest. During a break in the interview, while he was alone
in the room, the audio recording equipment picked up some of
his mumbled words that sounded like, "I did it. That
8 Police later tested the murder weapon. McFee's DNA was
discovered on the handle of the knife.
9 The jury convicted McFee of first degree murder, and he was
sentenced to life in prison without the possibility of
10 Hearsay statements are out-of-court statements offered in
evidence at trial to prove the truth of the matter asserted.
CRE 801(c). If the declarant of the statement is not
available to be cross-examined, the out-of-court statement is
generally deemed unreliable and, therefore, inadmissible,
unless it falls within an exception to the prohibition on
hearsay. CRE 802.
11 Some, but not all, hearsay statements implicate a
defendant's Sixth Amendment rights under the
Confrontation Clause. Davis v. Washington, 547 U.S.
813, 821 (2006). In Crawford v. Washington, 541 U.S.
36, 53-54 (2004), the Supreme Court held that the
Confrontation Clause bars admission of testimonial
statements of a witness who did not appear at trial unless he
was unavailable to testify, and the defendant had had a prior
opportunity for cross-examination. "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." Davis, 547 U.S. at 821; see also
Crawford, 541 U.S. at 51 ("[N]ot all hearsay
implicates the Sixth Amendment's core concerns. An
off-hand, overheard remark might be unreliable evidence and
thus a good candidate for exclusion under hearsay rules, but
it bears little resemblance to the civil-law abuses the
Confrontation Clause targeted.").
12 Over McFee's objection, L.E.'s mother testified
that, on the evening of the murder, she spoke with L.E. on
the phone. She testified that L.E. said McFee had threatened
to kill her, and that "there's going to be trouble.
. . [b]ecause [McFee's] acting like he used to act
before." L.E.'s mother said that L.E.'s voice
was trembling and that she sounded afraid during the call.
13 L.E.'s daughter testified that, two days before
L.E.'s murder, she had a telephone conversation with L.E.
during which L.E. confided that she was afraid of McFee and
felt unsafe. L.E.'s daughter advised L.E. to lock all of
the doors and windows.
14 L.E.'s cousin testified that she was present during a
phone call from McFee to L.E. that occurred about a month
before L.E.'s murder. According to the cousin, L.E. was
crying during the call and, afterwards, she told the cousin
that she was afraid of McFee because he had threatened to
kill her. The cousin suggested that L.E. write a statement
and agreed to hold it for her. L.E. prepared the following
Driver's #98-324-056, Jonathan Ray McFee, 5/8/77,
5'6" wt 230, eyes brown. To whom it may concern, I
am given [sic] this information to my cusin [sic] because
this man has given me threts [sic] on me and where I live. He
says he is going to kill me, its [sic] just a matter of time.
[Signature of L.E.]
Immediately after learning of L.E.'s murder, the cousin
turned the written statement over to the police, and it was
introduced at trial over McFee's objection.
15 McFee contends that the district court abused its
discretion in admitting L.E.'s hearsay statements to her
mother, daughter, and cousin because the statements
concerning McFee's threats did not fall within any
exception to the rule against hearsay. With respect to the
note, McFee argues that the statement is testimonial and its
admission therefore violated his rights under the
Confrontation Clause. We reject the first contention but
agree with McFee as to the second.
Admission of L.E.'s Statements to Her Family Members
16 The district court determined that all of L.E.'s
statements were admissible under CRE 807 - the residual
exception to the hearsay prohibition - and noted that they
were "arguably admissible" under CRE 803(3) - the
state of mind exception. We agree with the district court
that L.E.'s statements to her family members were
properly admitted under Rule 807.
Standard of Review
17 Trial courts have considerable discretion in determining
the admissibility of evidence, including application of the
residual hearsay exception. Vasquez v. People, 173
P.3d 1099, 1106 n.7 (Colo. 2007). We will not disturb the
trial court's evidentiary ruling absent an abuse of
discretion. Id. A court abuses its discretion when
its decision is manifestly arbitrary, unreasonable, or
unfair, People v. Brown, 2014 COA 155M-2, ¶ 18,
or is based on an erroneous understanding or application of
the law. People v. Casias, 2012 COA 117,
18 Under Rule 807, a hearsay statement not covered by any
exceptions to the prohibition on hearsay established in CRE
803 and 804 is admissible if the statement has
"equivalent circumstantial guarantees of
trustworthiness" and a court determines that
(A) the statement is offered as evidence of a material fact;
(B) the statement is more probative on the point for which it
is offered than any other evidence which the proponent can
procure through reasonable efforts; and (C) the general
purposes of these rules and the interests of justice will
best be served by admission of the statement into evidence.
19 In evaluating the trustworthiness of a statement, we
examine the nature and character of the statement, the
relationship of the parties, the probable motivation of the
declarant in making the statement, and the circumstances
under which the statement was made. Brown, ¶
20 We are guided in our assessment by People v.
Fuller, 788 P.2d 741 (Colo. 1990), a case with
substantially similar facts. In Fuller, a close
friend of the murder victim testified to a conversation with
the victim that occurred two weeks before her death in which
the victim reported that the defendant had choked her and
threatened to kill her. Id. at 743. The supreme
court determined that the statements were supported by
circumstantial guarantees of trustworthiness because they
were "spontaneous statements to [a] close friend that
she had known for many years, " they were "not
self-serving, " and the declarant "had no motive to
lie." Id. at 745-46. Further, the statements
established the material fact that the defendant had a motive
to kill the victim, and they were particularly probative
because they described actual incidents of violence by the
defendant against the victim. Id. at 746.
21 L.E.'s statements are trustworthy for the same
reasons: they were made spontaneously to close family
members, were not self-serving, and L.E. had no motive to lie
about McFee's threats. See id. at 745-46;
see also People v. Jensen, 55 P.3d 135, 139
(Colo.App. 2001); cf. Brown, ¶ 31 (collecting
cases in other jurisdictions applying the residual hearsay
exception that find statements to family members and close
friends about marital matters trustworthy, even in the case
of a heated divorce).
22 In addition, L.E. had personal knowledge of the threats
she described, and there was no reason to question her
ability to perceive or recount the threats. See
Jensen, 55 P.3d at 139-40. And all of the witnesses also
testified that when L.E. was recounting the threats, she
appeared genuinely afraid and upset: her mother testified
that L.E.'s voice trembled; her daughter thought she
sounded "nervous and unsafe"; and her cousin
testified that she was crying. Thus, L.E.'s demeanor at
the time of the statements corroborates their
23 Further, the statements relaying McFee's prior threats
were offered to establish the material fact that the
relationship between L.E. and McFee was volatile and that
McFee had a motive for the murder. "In a homicide trial,
evidence of prior threats, mistreatment, or malice by the
defendant toward the victim is admissible to show the
defendant's motive and culpable mental state."
Id. at 140.
24 As McFee appears to concede, L.E.'s statements were
more probative than the testimony of other witnesses who
heard McFee express an intent to harm L.E. Her statements
made clear that McFee was not just "blowing off
steam" with friends when he said he wanted to kill L.E.;
instead, L.E.'s statements established that McFee had
communicated those threats directly to her and that she took
them seriously. See Fuller, 788 P.2d at 746 (finding
that the victim's statements were highly relevant because
they described actual incidents in which the defendant acted
25 Finally, the interests of justice were served by admission
of the statements because "they were reliable and they
increased the likelihood that the jury would ascertain the
truth." Id.; Jensen, 55 P.3d at 140
("[T]he interests of justice are also promoted by having
the complete facts surrounding an incident available to the
26 In sum, L.E.'s statements to her family members in
which she communicated McFee's threats satisfy Rule
807's requirements. Because the court properly admitted
the statements under Rule 807, we need not address whether
they were also properly admitted under Rule 803(3).
Admission of the Written Note
27 The district court considered, but rejected, McFee's
argument that L.E.'s note was a "testimonial"
statement for purposes of the Confrontation Clause analysis.
We agree with McFee that the district court erred in its
determination, but ...