to the Colorado Court of Appeals Court of Appeals Case No.
Attorneys for Petitioner: Douglas K. Wilson, Public Defender
Andrea R. Gammell, Senior Deputy Public Defender Denver,
Attorneys for Respondent: Cynthia H. Coffman, Attorney
General Paul Koehler, First Assistant Attorney General
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
secondchild'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.
In an unpublished, unanimous opinion, the court of appeals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.
We granted Nicholls' petition for certiorari
review and now affirm the judgment of the court
Facts and Procedural History
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.
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.
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 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).
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.
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.
Over Nicholls' objections, the husband's cellmate
testified for the People about the statements the husband
made to him regarding the fire. 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 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.
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.
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.
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 each for
attempted theft, use of a controlled substance, and
possession of a controlled substance.
The court of appeals affirmed Nicholls'
convictions. Nicholls, slip op. at 41. This
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.
Husband's Statements to
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.
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."
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.
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.
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.
Husband's Nontestimonial Statements Did Not Implicate the
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
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
Federal Confrontation Clause Jurisprudence
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.
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.
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 ...