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People v. McFee

Court of Appeals of Colorado, Second Division

June 30, 2016

The People of the State of Colorado, Plaintiff-Appellee,
v.
Jonathan Ray McFee, Defendant-Appellant.

         City 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 Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Anne Stockham, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          HARRIS JUDGE

         ¶ 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.

         I. Background

         ¶ 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 bitch."

         ¶ 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 parole.

         II. Hearsay

         ¶ 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.").

         A. The Hearsay Statements

         ¶ 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 handwritten statement:

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.

         B. 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.

         1. 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, ¶ 17.

         2. Discussion

         ¶ 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.

CRE 807.

         ¶ 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.

         ¶ 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 content.[1]

         ¶ 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 violently).

         ¶ 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 jury.").

         ¶ 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).

         C. 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 ...


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