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Nicholls v. State

Supreme Court of Colorado, En Banc

June 19, 2017

Deborah Lee Nicholls, Petitioner
v.
The People of the State of Colorado. Respondent

         Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 09CA137

          Attorneys for Petitioner: Douglas K. Wilson, Public Defender Andrea R. Gammell, Senior Deputy Public Defender Denver, Colorado

          Attorneys for Respondent: Cynthia H. Coffman, Attorney General Paul Koehler, First Assistant Attorney General Denver, Colorado

          OPINION

          MÁRQUEZ JUSTICE

         ¶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 second[1]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         ¶2 In an unpublished, unanimous opinion, the court of appeals affirmed Nicholls' convictions.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. We granted Nicholls' petition for certiorari review[2] 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 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 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 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.

         ¶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.

         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.

         ¶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.

         ¶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 ...

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