Email Evidence — Residual Exception (Rule 807) — Factors for Evaluating the Trustworthiness of a Statement
People v. Brown, 2014 Colo. App. LEXIS 2170 (Colo. Ct. App. Nov. 20, 2014):
Defendant, Daryll Glenn Brown, appeals the judgment of conviction entered on jury verdicts finding him guilty of first degree murder -- felony murder, second degree murder, and burglary. We affirm the judgment and remand the case for correction of the mittimus.
The victim, defendant's ex-wife, was murdered in her home in the middle of the night. After their divorce, the victim and defendant had shared custody of their four-year-old son but lived apart. According to the prosecution, defendant entered the victim's home with a key he had kept, struck her several times with a wine bottle, and then strangled her to death. Defendant's [*2] defense at trial was that he was at his home sleeping when the murder occurred.
B. Residual Hearsay Exception
Defendant argues that the trial court erred by admitting, under the residual exception to the hearsay rule, CRE 807, statements the victim made to her sister, her mother, and two coworkers that were not sufficiently trustworthy. He also argues that the admission of the victim's statements under the rule violated his right of confrontation and that some of the statements were not relevant. We disagree.
1. Standard of Review and Applicable Law
Trial courts have considerable discretion in determining the admissibility of evidence, including whether the residual hearsay exception applies and whether the evidence has logical relevance. Vasquez v. People, 173 P.3d 1099, 1106 n.7 (Colo. 2007); Medina v. People, 114 P.3d 845, 859 (Colo. 2005). We will not disturb an evidentiary ruling on appeal unless it is manifestly arbitrary, unreasonable, or unfair. Medina, 114 P.3d at 859; People v. Carlson, 72 P.3d 411, 420 (Colo. App. 2003). To the extent defendant asserts that the trial [*10] court's erroneous admission of the statements violated his confrontation rights, we review de novo. Bernal v. People, 44 P.3d 184, 198 (Colo. 2002).
CRE 807 provides that a statement not specifically covered by the other hearsay rules "but having equivalent circumstantial guarantees of trustworthiness" is not excluded by the prohibition against hearsay if certain requirements are met. Under the rule, a statement that would otherwise be excluded as hearsay may be admitted if it is supported by circumstantial guarantees of trustworthiness; it is offered as evidence of material facts; it is more probative on the points for which it is offered than any other evidence which could be reasonably procured; the general purposes of the rules of evidence and the interest of justice are best served by its admission; and the adverse party had adequate notice in advance of trial of the intention of the proponent of the statement to offer it into evidence. People v. Fuller, 788 P.2d 741, 744 (Colo. 1990); People v. Shifrin, 2014 COA 14, ¶ 59, 342 P.3d 506.
"In considering the trustworthiness of a statement, courts should 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." People v. Jensen, 55 P.3d 135, 139 (Colo. App. 2001); see also Fuller, 788 P.2d at 745. The proponent [*11] must establish the trustworthiness of the statement by a preponderance of the evidence. People v. Preciado-Flores, 66 P.3d 155, 164 (Colo. App. 2002).
3. E-Mail Statement to Mother
The trial court also admitted the victim's e-mail correspondence with her mother sent during the marriage, including the following statement by the victim, which the victim's mother read at trial:
He doesn't understand why our marriage has to end, he really doesn't. He said he would give up his needs for me if the tables was [sic] turned. He said he admired me for being true to myself, but also hated me for it. For this week I'm in the guest bedroom with plans to reassess for next week. He is going to get himself some therapy, I think.
Again, the trial court applied the requirements of CRE 807 and found that the e-mail statement was admissible. Specifically, the court found that "based on the when, where, and how, the nature and character of the statement, and the relationship of the parties, it does have circumstantial guarantees of trustworthiness," also noting that the e-mail was short but detailed. In particular, the court found defendant's use of the strong word "hate" was material. See Jensen, 55 P.3d at 140 ("In a homicide trial, evidence of prior threats, mistreatment, or malice by the defendant [*14] toward the victim is admissible to show the defendant's motive and culpable mental state.").
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