1                Opinions of the Colorado Supreme Court are available to the
2            public and can be accessed through the Judicial Branch’s homepage at
3              http://www.courts.state.co.us. Opinions are also posted on the
4              Colorado Bar Association’s homepage at http://www.cobar.org.
5
6                                                         ADVANCE SHEET HEADNOTE
7                                                                       June 19, 2017
8
9                                           2017 CO 71
0
1   No. 13SC68, Nicholls v. People—Criminal Trials—Right of Accused to Confront
2   Witnesses—Exceptions to Hearsay Rule—Statements Against Interest.
3
4         In light of the U.S. Supreme Court’s holding in Davis v. Washington, 547 U.S. 813

5   (2006), the supreme court holds that nontestimonial hearsay statements do not implicate

6   a defendant’s state constitutional right to confrontation, overruling Compan v. People,

7   121 P.3d 876 (Colo. 2005), which held otherwise. Because the hearsay statements at

8   issue in this case were nontestimonial, they did not implicate Colorado’s Confrontation

9   Clause, and the court of appeals did not err in concluding that the defendant’s

0   confrontation right was not violated.

1         The supreme court further holds that the third requirement for the admission of

2   inculpatory hearsay statements against interest, announced in People v. Newton, 966

3   P.2d 563, 576 (Colo. 1998) (requiring corroborating circumstances to demonstrate the

4   statement’s trustworthiness), is not constitutionally required for nontestimonial

5   statements against interest. To admit a third party’s nontestimonial statements against

6   interest under the version of CRE 804(b)(3) that existed at the time of the defendant’s

7   2008 trial, only two conditions needed to be satisfied: (1) the witness must have been
1   unavailable, and (2) the statement must have tended to subject the declarant to criminal

2   liability. The supreme court concludes that the third party’s nontestimonal statements

3   against interest satisfied these two requirements, and the trial court did not abuse its

4   discretion in admitting these statements as a statement against interested under CRE

5   804(b)(3), as that Rule existed at the time of the defendant’s trial.

6          Finally, the supreme court holds that the trial court did not abuse its discretion in

7   admitting testimony about the defendant’s response to the death of her second child

8   because the testimony was relevant and not unduly prejudicial; nor did the trial court

9   plainly err in admitting testimony about the cause second child’s death because the

0   brief, isolated statements did not so undermine the trial’s fairness as to cast serious

1   doubt on the reliability of the defendant’s conviction.

2          Accordingly, the supreme court affirms the judgment of the court of appeals.
1

2

3                        The Supreme Court of the State of Colorado
4                          2 East 14th Avenue • Denver, Colorado 80203


5                                          2017 CO 71

6                              Supreme Court Case No. 13SC68
7                           Certiorari to the Colorado Court of Appeals
8                             Court of Appeals Case No. 09CA137

9                                          Petitioner:
0                                    Deborah Lee Nicholls,
1                                               v.
2                                         Respondent:
3                             The People of the State of Colorado.

4                                     Judgment Affirmed
5                                             en banc
6                                          June 19, 2017
7
8   Attorneys for Petitioner:
9   Douglas K. Wilson, Public Defender
0   Andrea R. Gammell, Senior Deputy Public Defender
1    Denver, Colorado
2
3   Attorneys for Respondent:
4   Cynthia H. Coffman, Attorney General
5   Paul Koehler, First Assistant Attorney General
6    Denver, Colorado
7
8
9
0
1
2
3
4
5
6   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.




1The People refer to this child as Nicholls’ first child, as did the court of appeals. We
defer to Nicholls’ description of this child as her second child.


                                            2
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 counts



2   We granted certiorari to review the following issues:
         1. Whether hearsay statements which shift blame to the accused are
            admissible as statements against interest.
         2. Whether it was error to admit evidence that petitioner’s second child
            died of SIDS.


                                              3
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


3The jury also saw a video recording of the cellmate’s interview with a detective in
which the cellmate recounted the husband’s statements.


                                             4
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


                                            5
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.

4 The court of appeals vacated Nicholls’ sentence as to the imposition of prosecution
costs and remanded for a hearing on Nicholls’ ability to pay those costs. Nicholls, slip
op. at 41.


                                            6
¶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.




                                             7
        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.




                                             8
¶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.




                                             9
¶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 evidence, is not subject to the
       Confrontation Clause.

Id. at 821 (citing Crawford, 541 U.S. at 51).

                     b. Colorado Confrontation Clause Jurisprudence

¶24    In 1983, we adopted the Supreme Court’s Roberts test in People v. Dement,

661 P.2d at 681. Fry, 92 P.3d at 975. Thus, under Dement, hearsay is admissible under

Colorado’s Confrontation Clause only if: (1) the declarant is unavailable to testify, and

(2) the statement bears sufficient indicia of reliability. Dement, 661 P.2d at 680–81.

¶25    Some twenty years later in People v. Fry, we had the opportunity to revisit

Dement in light of the Supreme Court’s decision in Crawford, which, as discussed

above, rejected the reliability prong of the Roberts test in favor of an inquiry into

whether the defendant had a prior opportunity for cross-examination. Fry, 92 P.3d at

972–74.    Reasoning that the holding in Crawford was limited to “testimonial

statements,” we jettisoned the Roberts “indicia of reliability” analysis that we had

adopted in Dement, id. at 976, and held that a witness’s previous testimony is not

admissible at trial unless the witness is unavailable and the defendant had an adequate

prior opportunity for cross-examination, id. at 981.


                                                10
¶26   In 2005, we held in Compan that the Dement-Roberts test still governed the

admission of nontestimonial statements under the Colorado Confrontation Clause.

Compan, 121 P.3d at 885. We recognized that Fry expressly overruled Dement by

rejecting the reliability prong of the Roberts test, but noted that our holding in Fry “was

limited to testimonial statements” and that “nontestimonial statements were not at

issue” in that case. Id. at 884. The following year, we applied Compan in People v.

Vigil, 127 P.3d 916 (Colo. 2006), and reaffirmed that “[t]o admit non-testimonial

evidence when the defendant has not had a prior opportunity for cross-examination,

the prosecution must show that the declarant is unavailable and the statement bears

sufficient indicia of reliability.” Id. at 927 (emphasis added) (citing Dement, 661 P.2d at

679–81; Compan, 121 P.3d at 885).

                         c. Revisiting Compan in Light of Davis

¶27   Since the Supreme Court held in Davis in 2006 that nontestimonial hearsay does

not implicate the federal Confrontation Clause, we have not squarely addressed how, if

at all, Davis affects the admission of nontestimonial evidence under Colorado’s

Confrontation Clause.5     Davis squarely rejected our conclusion in Compan that




5  We acknowledged Davis’s distinction between testimonial and nontestimonial
statements in Arteaga-Lansaw v. People, 159 P.3d 107, 109 (Colo. 2007), when
discussing a federal Confrontation Clause claim. And we noted in Raile v. People,
148 P.3d 126 (Colo. 2006), that we had decided Vigil (which reaffirmed Compan and its
holding that the Dement-Roberts test controls the admission of nontestimonial hearsay
under Colorado’s Confrontation Clause) “before this Court had the benefit of the Davis
decision and that we are bound to follow later decisions by the United States Supreme
Court.” Id. at 130 n.6 (citing Vigil, 127 P.3d at 921).


                                            11
“Roberts continues to govern federal constitutional scrutiny of nontestimonial

evidence.” See Compan, 121 P.3d at 881.

¶28    The parties agree that the husband’s statements at issue in this case were

nontestimonial. The husband did not confess to a law enforcement officer or in the

course of a formalized proceeding; rather, he confessed to his cellmate while they

shared a cell in the county jail. Nothing in the record suggests that the husband knew

his cellmate was an informant, and the husband told the cellmate not to tell anyone

what he had conveyed.

¶29    Because the husband’s statements were nontestimonial, this case presents the

opportunity to revisit Compan in light of Davis and determine whether nontestimonial

hearsay implicates the Colorado Confrontation Clause. While stare decisis requires this

court to follow the rule of law it established in earlier cases, Bedor v. Johnson,

2013 CO 4, ¶ 23, 292 P.3d 924, 929, the doctrine “does not exclude room for growth in

the law, and the courts are not without power to depart from a prior ruling, or to

overrule it, where sound reasons exist,” Creacy v. Indus. Comm’n, 366 P.2d 384, 386

(Colo. 1961).

¶30    In light of the U.S. Supreme Court’s ruling in Davis, we now overrule Compan

and hold that Colorado’s Confrontation Clause applies only to testimonial statements

and that nontestimonial statements do not implicate a defendant’s state constitutional

right to confrontation. Sound reasons exist for overruling our holding to the contrary in

Compan.




                                           12
¶31    First,   we   have   long   interpreted    Colorado’s   Confrontation    Clause   as

commensurate with the federal Confrontation Clause. See, e.g., Compan, 121 P.3d at

885–86 (rejecting the petitioner’s argument that the state Confrontation Clause protects

broader rights than the federal Confrontation Clause); Blecha, 962 P.2d at 941

(explaining that Dement adopted the Roberts test “[i]n an effort to maintain consistency

between Colorado law and federal law”); Dement, 661 P.2d at 680–81. Our holding

today maintains the consistency between state and federal law on this issue.

¶32    Second, the Supreme Court’s reasoning in Davis is sound. As the Supreme Court

explained, the text of the federal Confrontation Clause refers to confronting

“witnesses.” Davis, 547 U.S. at 821 (“In all criminal prosecutions, the accused shall

enjoy the right . . . to be confronted with the witnesses against him.” (emphasis added)

(quoting U.S. Const. amend. VI)). Only testimonial statements cause a declarant to be a

“witness” within the meaning of the Clause. Davis, 547 U.S. at 821. Indeed, “[i]t 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.” Id. We conclude that the Supreme Court’s logic in Davis

applies with equal force to Colorado’s Confrontation Clause, which similarly refers to

“witnesses.” Colo. Const. art. II, § 16 (“In criminal prosecutions the accused shall have

the right . . . to meet the witnesses against him face to face.” (emphasis added)).

¶33    Finally, neither Compan nor Dement contains independent, state constitutional

reasoning that demands adherence to the Dement-Roberts test for nontestimonial

hearsay. Because the Roberts decision on which Compan and Dement rested is no


                                             13
longer good law under Crawford and Davis, our holding in Compan that Roberts

governs the admission of nontestimonial statements can no longer stand. For these

reasons, we overrule that portion of Compan and hold that nontestimonial statements

do not implicate Colorado’s Confrontation Clause.

¶34     Here, because the husband’s statements were nontestimonial, they did not

implicate the Colorado Confrontation Clause, and the court of appeals did not err in

concluding that Nicholls’ confrontation rights were not violated. See Nicholls, slip. op.

at 9.

                      2. Husband’s Statements Were Admissible Under
                                           CRE 804(b)(3)

¶35     Having concluded that the admission of the husband’s statements did not violate

Nicholls’ right of confrontation, we now address whether the statements were

admissible under CRE 804(b)(3) as statements against interest.

¶36     At the time of Nicholls’ trial in 2008, CRE 804(b)(3) provided the following

exception to the hearsay rule for a statement against interest:

        The following are not excluded by the hearsay rule if the declarant is
        unavailable as a witness: . . . (3) Statement against interest. A statement
        which was at the time of its making so far contrary to the declarant’s
        pecuniary and proprietary interest, or so far tended to subject him to civil
        or criminal liability . . . that a reasonable man in his position would not
        have made the statement unless he believed it to be true. A statement
        tending to expose the declarant to criminal liability and offered to
        exculpate the accused is not admissible unless corroborating
        circumstances clearly indicate the trustworthiness of the statement.

CRE 804(b)(3) (2008) (emphasis added). Although the text of the rule at that time

required that “corroborating circumstances clearly indicate the trustworthiness of the



                                            14
statement” when it is offered to exculpate the accused, it did not impose a corroboration

requirement for statements against penal interest offered to inculpate the accused, such

as the husband’s statements at issue in this case. See People v. Newton, 966 P.2d 563,

574 (Colo. 1998).

                                   a. Newton’s Framework

¶37    In Newton, we addressed the admissibility of hearsay statements under CRE

804(b)(3) offered to inculpate the defendant. 966 P.2d at 574. There, we considered

whether the trial court erred in admitting a witness’s inculpatory statements to a

detective as statements against interest, where the witness refused to testify at trial. Id.

at 565–66.    The witness in that case was the defendant’s girlfriend, who gave a

voluntary statement to a detective indicating her knowledge of an armed robbery and

the defendant’s involvement in it, but invoked her Fifth Amendment right not to testify

at trial. Id. at 565–67.

¶38    Noting that “[t]he text of CRE 804(b)(3) does not impose a corroboration

requirement for inculpatory statements,” we looked to a court of appeals decision and

several federal decisions that nevertheless applied a corroboration requirement to

statements against penal interest offered to inculpate the defendant. Id. at 574–75. We

observed that such a requirement is rooted in the Confrontation Clause:

       Most courts that have required corroboration for inculpatory statements
       have done so out of concern that such statements comply with the
       Confrontation Clause. It therefore makes sense that the corroboration
       requirement for inculpatory statements, which is rooted in the
       Confrontation Clause, . . . can only be satisfied by looking to the inherent
       trustworthiness surrounding the making of the statement.



                                            15
Id. at 575 (citation omitted).

¶39    We therefore concluded in Newton that three conditions must be satisfied to

admit a third party witness’s statement against interest under CRE 804(b)(3) when the

statement is offered to inculpate the defendant. First, the witness must be unavailable

as required by CRE 804(a). Id. at 576. Second, the statement must tend to subject the

declarant to criminal liability; that is, the trial court must determine whether a

reasonable person in the declarant’s position would not have made the statement unless

the person believed it to be true. Id. Both of these requirements were derived from the

text of CRE 804(b)(3). Relevant here, we added a third prong requiring corroborating

circumstances that demonstrate the trustworthiness of the statement:

       Third, the People must show by a preponderance of evidence that
       corroborating circumstances demonstrate the trustworthiness of the
       statement. In conducting this third inquiry, a trial court should limit its
       analysis to the circumstances surrounding the making of the statement
       and should not rely on other independent evidence that also implicates
       the defendant. Appropriate factors for a trial court to consider include:
       where and when the statement was made, to whom the statement was
       made, what prompted the statement, how the statement was made, and
       what the statement contained.

Id. (emphasis added).

                    b. Revisiting Newton’s Third Prong in Light of Our
                               Confrontation Clause Holding

¶40    In light of our holding today that the Colorado Confrontation Clause applies

only to testimonial statements, we also now hold that the third prong of Newton’s

analytical framework is not constitutionally required for nontestimonial statements




                                            16
against interest.6   We created this third prong in Newton specifically to protect

confrontation rights, see id. at 575–76, but as discussed above, confrontation rights are

not implicated by the admission of nontestimonial hearsay statements.

¶41    Thus, to admit a third party’s nontestimonial statement against interest under

the version of CRE 804(b)(3) that existed at the time of Nicholls’ 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.




6 CRE 804(b)(3) was amended in 2010 to clarify, in light of our holding in Newton, that
corroborating circumstances that demonstrate the trustworthiness of a statement are
required regardless of whether the statement is offered to inculpate or exculpate an
accused. CRE 804(b)(3) now provides:
       (3) Statement against interest. A statement that:
       (A) a reasonable person in the declarant’s position would have made only
       if the person believed it to be true because, when made, it was so contrary
       to the declarant's proprietary or pecuniary interest or had so great a
       tendency to invalidate the declarant’s claim against someone else or to
       expose the declarant to civil or criminal liability; and
       (B) is supported by corroborating circumstances that clearly indicate its
       trustworthiness, if it is offered in a criminal case as one that tends to
       expose the declarant to criminal liability.
       COMMITTEE COMMENT
       The rule was revised, consistent with recent amendments to [Fed. R. Evid.
       804(b)(3)], only to clarify that corroborating circumstances are required
       regardless of whether a statement is offered to inculpate or exculpate an
       accused. See People v. Newton, 966 P.2d 563 (Colo. 1998) (prosecutors
       seeking to admit statements against the accused must satisfy the
       corroboration requirement solely by reference to the circumstances
       surrounding its making).
This case concerns the prior version of the rule in effect at Nicholls’ 2008 trial.


                                              17
                 c. Other Relevant Holdings in Newton Concerning the
                    Scope of an Admissible “Statement” Remain Good
                                          Law

¶42    Other holdings in Newton concerning the scope of an admissible “statement”

continue to govern the admission of inculpatory statements against interest under CRE

804(b)(3). We underscore two here that are relevant to Nicholls’ arguments.

¶43    First, this court held that in addition to “a narrative’s precise statement against

penal interest,” “related, collaterally neutral statements are admissible under CRE

804(b)(3).” Id. at 578 (emphasis added). We adopted a broad definition of “statement,”

expressly rejecting the Supreme Court’s narrower approach to the federal rule in

Williamson v. United States, 512 U.S. 594 (1994).        Newton, 966 P.2d at 578.     The

Williamson Court concluded that the federal rule intended the term “statement” to refer

to a single declaration or remark, rather than a “report or narrative.” Williamson, 512

U.S. at 599. The Court then held that collateral, non-self-inculpatory statements are not

admissible under Fed. R. Evid. 804(b)(3), even if they are made within a broader

narrative that is generally self-inculpatory. Id. at 600–02.

¶44    We ultimately rejected the Williamson approach because “Colorado case law has

interpreted CRE 804(b)(3) more broadly than the Supreme Court interpreted Fed. R.

Evid. 804(b)(3) in Williamson.” Newton, 966 P.2d at 577. We concluded that “a more

permissive approach” than Williamson “is consistent with Colorado case law and

represents the better evidentiary policy.” Id. at 577. We noted that Justice Kennedy’s

concurring opinion in Williamson strongly disagreed with the majority’s interpretation

of the federal rule, and instead advocated an approach similar to Dean McCormick’s


                                             18
view that collateral statements of a neutral character should be admitted, while

collateral statements of a self-serving character should not. Id. at 576–77. Implicitly

adopting the view expressed in Justice Kennedy’s concurrence, we held that a

narrative’s precise statement against interest and related, collaterally neutral statements

are admissible under CRE 804(b)(3). Id. at 578; see also Williamson, 512 U.S. at 620

(Kennedy, J., concurring in judgment).

¶45    We also adopted from Justice Kennedy’s concurrence two overarching

limitations on the admission of a statement against interest. “First, statements that are

so self-serving as to be unreliable should be excluded.        Second, if the trial court

determines that the declarant had a significant motivation to curry favorable treatment,

then the entire narrative is inadmissible.” Newton, 966 P.2d at 579; see also Williamson,

512 U.S. at 620.

                                 d. Application to this Case

¶46    To summarize, we hold that to admit a third party’s nontestimonial statement

against interest under the version of CRE 804(b)(3) that existed at the time of Nicholls’

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. If the statement met these requirements, then the court should have admitted

“all statements related to the precise statement against penal interest” unless the

statement was so self-serving as to be unreliable, or unless the declarant had a

significant motivation to curry favorable treatment such that the entire narrative should

be excluded. See Newton, 966 P.2d at 579 (quoting Williamson, 512 U.S. at 620).


                                            19
¶47    Here, the two conditions of CRE 804(b)(3) were satisfied. First, it is undisputed

that the husband was unavailable to testify. Second, the husband’s statements to his

cellmate tended to subject him to criminal liability.

¶48    The husband confessed to his cellmate that he and Nicholls had long planned to

set fire to their home with their children inside to collect insurance proceeds. The

husband described how he executed their plan when he put the children to bed in

pajamas laced with Goof-Off, and purposely knocked a lit candle onto the living room

furniture. He told the cellmate that he opened the garage door to accelerate the fire’s

spread, ignored his son’s cries, and jumped out of his bedroom window.             These

statements directly subjected the husband to criminal liability and were against his

penal interest. We agree with the court of appeals that the trial court did not abuse its

discretion in concluding that the husband’s confession was “highly incriminating and

exposed him to criminal liability,” and that the trial court therefore did not err in

admitting it as a statement against interest under CRE 804(b)(3). See Nicholls, slip op.

at 10–11. For the same reasons, we are not persuaded by Nicholls’ assertion that the

majority of her husband’s statements were not actually against his interest but instead

shifted blame to Nicholls as the more culpable party.

¶49    Nicholls’ contention that her husband’s statements were not sufficiently reliable

to satisfy the third prong of the Newton analysis likewise fails. Though the court of

appeals addressed this argument, see id. at 11–12, we need not consider it.           As

explained above, we hold that the third prong of the Newton test, which was grounded




                                            20
in the Confrontation Clause, is not constitutionally required for the admission of a

nontestimonial statement against interest.

¶50    Nicholls’ argument that the husband’s non-self-inculpatory statements were not

“collaterally neutral” does not persuade us. This court’s opinion in Newton was the

first time we used the term “collaterally neutral statement,” though we noted that

“[o]ur case law allowed for the admission of a statement against interest that included

collaterally neutral facts” prior to the adoption of the Colorado Rules of Evidence.

Newton, 966 P.2d at 577 (citing West. Auto. Supply Co. v. Washburn, 149 P.2d 804,

805–08 (Colo. 1944); In re Estate of Granberry, 498 P.2d 960, 962–63 (Colo. 1972)).

Because this court drew extensively from Justice Kennedy’s concurring opinion in

Williamson in reaching our holding in Newton, we return to Justice Kennedy’s logic to

define a “collaterally neutral statement.”

¶51    As this court explained in Newton, 966 P.2d at 576–77, Justice Kennedy reviewed

the approaches of commentators Dean Wigmore, Dean McCormick, and Professor

Jefferson regarding the admissibility of collateral statements, Williamson, 512 U.S. at

611–12. Justice Kennedy observed that the Advisory Committee’s Note to Fed. R. Evid.

804(b)(3) referred to McCormick’s treatise for guidance regarding the balancing of self-

serving and disserving aspects of a declaration, and advocated an approach similar to

that espoused by McCormick. See id. at 617–20; Newton, 966 P.2d at 576–77. As Justice

Kennedy explained:

       [McCormick] argued for the admissibility of collateral statements of a
       neutral character, and for the exclusion of collateral statements of a
       self-serving character. For example, in the statement “John and I robbed


                                             21
       the bank,” the words “John and” are neutral (save for the possibility of
       conspiracy charges). On the other hand, the statement “John, not I, shot
       the bank teller” is to some extent self-serving and therefore might be
       inadmissible.

Williamson, 512 U.S. at 612 (citing C. McCormick, Law of Evidence § 256, pp. 552–53

(1954)).   Though Justice Kennedy’s examples do not comprehensively define a

“collaterally neutral statement,” we agree that they appropriately distinguish between a

collaterally neutral statement (e.g., “John and I robbed the bank.”) and a self-serving

statement (e.g., “John, not I, shot the bank teller.”). Justice Kennedy drew his examples

from Professor Graham’s treatise, which explained that “John and I robbed a bank” is a

collaterally neutral inculpatory statement: “In this example[,] the relevant material is

not contained in the disserving segment (‘I robbed the bank.’); instead, it is in the

collateral portion (‘John robbed the bank.’),” which is neutral as to the declarant’s

interest.7 Mark H. Graham, 30C Fed. Prac. & Proc. Evid. § 7075 n.10 (2017), Westlaw.

¶52    Nicholls claims that her husband’s statements were not collaterally neutral, but

Justice Kennedy’s examples illustrate why her claim fails. The husband’s statements

here were analogous to “John and I robbed the bank,” a paradigmatic collaterally

neutral statement. They were not blame-shifting. As described above, the husband’s

description of Nicholls’ involvement explained their motive for setting their house on

fire with their children inside and detailed how they carried out their plans. Moreover,

the husband admitted to his cellmate that he alone set the fire while Nicholls was out of

the house. It is true that some of the husband’s individual statements were solely about

7McCormick likewise used the term “neutral” in this context to mean “neutral as to the
declarant’s interest.” C. McCormick, Law of Evidence § 256, p. 552 (1954)


                                           22
Nicholls—e.g., that Nicholls got him started “back on [methamphetamine] again” and

that she told him on the night of the fire that “[t]his is going through.” But we squarely

rejected in Newton the Williamson approach of “severing collaterally neutral

statements from each precise self-inculpatory remark” because doing so “deprives the

jury of important context” and “undervalue[es] the need for meaningful evidence in

criminal cases,” and because “the surgical precision called for by Williamson is highly

artificial and nearly impossible to apply.” Newton, 966 P.2d at 578. Taken as a whole,

the husband’s statements were not self-serving or blame-shifting. They were at most

dually inculpatory.8 We therefore reject Nicholls’ third argument.




8 We agree with the People that the husband’s statements can be characterized as dually
inculpatory and thus distinguished from blame-shifting statements. In Stevens v.
People, 29 P.3d 305 (Colo. 2001), overruled on other grounds by Fry, 92 P.3d at 970, we
addressed the admission of statements by a gunman hired by the defendant to kill the
victim. We held that the gunman’s statements were dually inculpatory and rejected the
defendant’s contention that they were blame-shifting:
      [The gunman] admitted in his confession that he alone shot and killed the
      victim. He did not minimize his involvement in the murder nor did he
      shift the responsibility for committing the murder to the defendant. [The
      gunman’s] statements inculpating the defendant are closely intertwined
      with the self-inculpatory portions of his confession. His description of the
      defendant’s involvement in the murder provided the police investigators
      with [the gunman’s] motive for killing the victim and explained how [the
      gunman] carried out the murder. In addition, [the gunman’s] explanation
      of how he and the defendant discussed and planned the murder not only
      inculpated the defendant, it also augmented his own guilt by showing that
      the murder was premeditated. This dual inculpation distinguishes cases
      in which the parts of an accomplice’s statement inculpating the defendant
      do not also inculpate the accomplice but rather tend to exculpate the
      accomplice by shifting the majority of the blame to the defendant.
Id. at 315 (emphasis added).


                                           23
¶53    For similar reasons, we reject Nicholls’ argument that the husband’s statements

that Nicholls killed her second child, was a “fucking bitch” and “sick woman,” and that

she was so “spun out” on drugs that she did not attend the children’s funerals, were

inadmissible as collaterally neutral statements. As discussed above, we rejected this

line-by-line approach and such a narrow definition of “statement” in Newton, 966 P.2d

at 576–79, and therefore we decline to review separately each individual comment the

husband made to his cellmate.

¶54    In sum, we conclude that the trial court did not abuse its discretion in admitting

the husband’s confession to his cellmate as a statement against interest under CRE

804(b)(3) as that Rule existed at the time of Nicholls’ trial.

           B. Mother’s and Cellmate’s Testimony About the Death of
                            Nicholls’ Second Child

¶55    Nicholls’ second child died of SIDS several years before the fire and the deaths of

the three children at issue here. Over Nicholls’ objections, the trial court allowed

Nicholls’ mother to testify for the People that Nicholls cried non-stop for three days

when her second child died of SIDS but did not grieve when her three children died in

the fire. The trial court also allowed the cellmate to testify that the husband told him

that Nicholls “killed her [second] baby” and that that child’s death was ruled a SIDS

death. Nicholls argues that this evidence that her second child died of SIDS was

irrelevant and unfairly prejudicial.

¶56    Relevant evidence is “evidence having any tendency to make the existence of any

fact that is of consequence to the determination of the action more probable or less



                                              24
probable than it would be without the evidence.” CRE 401. Relevant evidence may be

excluded if “its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of undue

delay, waste of time, or needless presentation of cumulative evidence.”          CRE 403.

Reviewing courts give great deference to trial court decisions under CRE 403 because a

multitude of factors are considered in this balancing process. See Vialpando v. People,

727 P.2d 1090, 1095–96 (Colo. 1986). A reviewing court must afford the evidence the

maximum probative value attributable by a reasonable fact finder and the minimum

unfair prejudice to be reasonably expected. People v. Rath, 44 P.3d 1033, 1043 (Colo.

2002). Absent an abuse of discretion, a trial court’s ruling concerning the relative

probative value and prejudicial impact of the evidence will not be disturbed on review.

People v. Gibbens, 905 P.2d 604, 607 (Colo. 1995).         To demonstrate an abuse of

discretion, a petitioner must show that the trial court’s decision was manifestly

arbitrary, unreasonable, or unfair. People v. Nuanez, 973 P.2d 1260, 1263 (Colo. 1999).

                              1. Mother’s Testimony

¶57    On redirect examination, the People asked Nicholls’ mother if she had seen

Nicholls grieve a loss before and, if so, whether it was different from her reaction to the

deaths of her three children in this case. Defense counsel objected on relevance and

prejudice grounds, concerned that this line of questioning would lead the jury to draw

unspecified “improper inferences.” The trial court inferred that defense counsel was

concerned that Nicholls would be “implicat[ed] . . . in somehow causing the death” of

her second child. The trial court overruled the objection on the condition that the


                                            25
People lead the witness “so that she doesn’t add anything to that with regard to

thinking that [Nicholls] had some sort of responsibility” for her second child’s death.

The People then asked the mother about how Nicholls’ reaction to her second child’s

death compared with her reaction in this case. Again, defense counsel objected, and the

trial court overruled the objection. Nicholls’ mother stated Nicholls’ reactions were

“[c]ompletely different. [Nicholls] was sobbing and wailing after [her second child]

died. I can see her sitting there crying for days. And that was not the case at the

hospital after [the three children] died” in the fire.

¶58    We conclude that the trial court did not abuse its discretion in admitting this

testimony. Although the trial court made no express findings regarding relevance, we

agree with the court of appeals that the testimony was relevant to show how differently

Nicholls grieved the second child’s death as compared to the deaths of the three child

victims here. See Nicholls, slip op. at 22. This evidence supported the People’s theory

that Nicholls conspired to kill the children for insurance money. Moreover, the court’s

explanation, and specifically its direction that the People lead the witness to prevent her

from suggesting that Nicholls was responsible for the child’s death, indicates that the

trial court properly balanced the danger of unfair prejudice (based on potential juror

speculation about Nicholls’ responsibility for the second child’s death) with the

probative value of her mother’s testimony. Ascribing the maximum probative value

that a reasonable fact finder might give such evidence, and the minimum unfair

prejudice to be reasonably expected from its admission, we conclude that the trial court




                                              26
did not abuse its discretion in allowing Nicholls’ mother to testify about Nicholls’

grieving.

                               2. Cellmate’s Testimony

¶59   The cellmate also testified briefly about the second child’s death, stating that the

husband said, “Man, [Nicholls] killed her [second] baby,” and later confirming on

redirect that the husband told him the child’s death was ruled a SIDS death.

¶60   Nicholls did not object at trial to this testimony under CRE 401 or 403 and

therefore did not properly preserve this issue. Consequently, we review only for plain

error. People v. Bowers, 801 P.2d 511, 519 (Colo. 1990). Under plain error review,

reversal is required only if the appellate court, “after reviewing the entire record, can

say with fair assurance that the error so undermined the fundamental fairness of the

trial itself as to cast serious doubt on the reliability of the judgment of conviction.”

Wilson v. People, 743 P.2d 415, 420 (Colo. 1987).

¶61   We conclude that the trial court did not plainly err by admitting the cellmate’s

testimony about the second child’s death. We agree with the court of appeals that these

brief, isolated statements did not so undermine the trial’s fairness as to cast serious

doubt on the reliability of Nicholls’ conviction. See Nicholls, slip op. at 23. The People

did not rely at all on this testimony, and Nicholls’ conviction was amply supported by

substantial, properly admitted evidence.

                                    III. Conclusion

¶62   For the foregoing reasons, we affirm the judgment of the court of appeals.




                                           27
