v.

• Decision Date: 19 June 2017
• Docket Number: Supreme Court Case No. 13SC68
• Citation: 2017 CO 71
• Parties: Petitioner: Deborah Lee Nicholls, v. Respondent: The People of the State of Colorado.
• Court: Colorado Supreme Court

2017 CO 71

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

Supreme Court Case No. 13SC68

Supreme Court of the State of Colorado

June 19, 2017

Opinions of the Colorado Supreme Court are available to the public and can be accessed through the Judicial Branch's homepage at http://www.courts.state.co.us. Opinions are also posted on the Colorado Bar Association's homepage at http://www.cobar.org.

ADVANCE SHEET HEADNOTE

Criminal Trials—Right of Accused to Confront Witnesses—Exceptions to Hearsay Rule—Statements Against Interest.

In light of the U.S. Supreme Court's holding in Davis v. Washington, 547 U.S. 813 (2006), the supreme court holds that nontestimonial hearsay statements do not implicate a defendant's state constitutional right to confrontation, overruling Compan v. People, 121 P.3d 876 (Colo. 2005), which held otherwise. Because the hearsay statements at issue in this case were nontestimonial, they did not implicate Colorado's Confrontation Clause, and the court of appeals did not err in concluding that the defendant's confrontation right was not violated.

The supreme court further holds that the third requirement for the admission of inculpatory hearsay statements against interest, announced in People v. Newton, 966 P.2d 563, 576 (Colo. 1998) (requiring corroborating circumstances to demonstrate the statement's trustworthiness), is not constitutionally required for nontestimonial statements against interest. To admit a third party's nontestimonial statements against interest under the version of CRE 804(b)(3) that existed at the time of the defendant's 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. The supreme court concludes that the third party's nontestimonal statements against interest satisfied these two requirements, and the trial court did not abuse its discretion in admitting these statements as a statement against interested under CRE 804(b)(3), as that Rule existed at the time of the defendant's trial.

Finally, the supreme court holds that the trial court did not abuse its discretion in admitting testimony about the defendant's response to the death of her second child because the testimony was relevant and not unduly prejudicial; nor did the trial court plainly err in admitting testimony about the cause second child's death because the brief, isolated statements did not so undermine the trial's fairness as to cast serious doubt on the reliability of the defendant's conviction.

Accordingly, the supreme court affirms the judgment of the court of appeals.

Certiorari to the Colorado Court of Appeals

Court of Appeals Case No. 09CA137

Judgment Affirmed

en banc

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

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.

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 countsin 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, andthen 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 yeareach 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...