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Colorado Supreme Court Announces ‘Self-Serving Hearsay’ Statements Introduced Under Rule of Completeness Not Hearsay and Do Not Render Defendant Impeachable

by Richard Resch

The Supreme Court of Colorado held that under Colorado Rule of Evidence (“CRE”) 106 if the prosecution creates a misleading impression by excluding statements made by the defendant that should be considered together with the proffered evidence out of fairness, the rule of completeness requires the prosecution to introduce the defendant’s statements. The Court further held that when the defendant’s statements are admitted under the rule of completeness, the defendant is not subject to impeachment under CRE 806.

Responding to a report of a truck driving erratically, Police Officer Ryan Marker found Charles Joseph McLaughlin and the truck he owned in a vacant lot. Police saw the truck light turned on and off as McLaughlin exited the driver’s door, losing his balance as he tried to get out of and back into the truck.

Marker questioned McLaughlin who, during the course of the interrogation, made several statements about an unidentified woman driving the truck then stopping and walking away. He stated multiple times that she had driven the truck, and he had not. Marker saw no one else nearby.

Ultimately, McLaughlin was tried for felony DUI (at least three prior DUI convictions), reckless driving, and an illegal lane change. At trial, the prosecution introduced a redacted version of Marker’s body camera footage that omitted all statements about the woman driving the truck. The redactions left the impression that McLaughlin simply did not respond to several of Marker’s questions and offered him no explanation as to how the truck got to the vacant lot.

Overruling a defense CRE 106 (codification of the common law rule of completeness) request that the portions referencing the woman be shown, the trial court ruled that they were self-serving hearsay that were inadmissible under the rule of completeness, unless McLaughlin testified, because there wasn’t anything to guarantee their trustworthiness. The court further ruled that, should McLaughlin testify about the matter, he would be subject to impeachment by the prosecution using his extensive criminal history under CRE 806.

He declined to testify. In closing arguments, the prosecution asserted that the jury would have to suspend reality to believe McLaughlin’s defense that he wasn’t driving because there was a complete absence of evidence of any other potential drivers. The jury found him guilty, and he timely appealed.

The Court of Appeals ruled that the rule of completeness applied to the redacted statements because the edited video “created a misleading impression” that “McLaughlin had no explanation for how the truck” got to the vacant lot. It further ruled that even if the redacted statements were self-serving hearsay, they are nevertheless admissible under the rule of completeness. In reaching its decision, the court relied on the analysis in People v. Short, 425 P.3d 1208 (Colo. Ct. App. 2018), which is contrary to People v. Davis, 218 P3d 718 (Colo. Ct. App. 2008), and People v. Zubiate, 411 P.3d 757 (Colo. Ct. App. 2013).

Next, the Court of Appeals ruled that it was error for the trial court to have conditioned admission of the redacted statements on McLaughlin being subject to impeachment with his prior felony convictions. Once again following Short, the court ruled that CRE 806 doesn’t apply when self-serving hearsay is used for the purpose of curing a misleading impression under the rule of completeness. The court explained: “In effect, the People suppressed McLaughlin’s statements, and then affirmatively argued in closing that no such statements existed.” The court concluded that the errors required reversal. The prosecution petitioned for certiorari.

The Supreme Court began its analysis by addressing the issue of CRE 106 and self-serving hearsay. It noted that CRE 106 codifies the common law rule of completeness. People v. Melillo, 25 P.3d 769 (Colo. 2001). CRE 106 provides in relevant part: “[w]hen a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part … which ought in fairness to be considered contemporaneously with it.” The Court instructed that CRE 106 is similar to Fed. R. Evid. 106, so federal cases interpreting the federal rule are “highly persuasive in construing CRE 106.” The purpose of rule of completeness “is to prevent a party from misleading the jury by allowing into the record relevant portions of a writing or recorded statement which clarify or explain the part already received.” United States v. Lopez-Medina, 596 F.3d 716 (10th Cir. 2010).

The Court then turned its attention to self-serving hearsay, i.e., “a hearsay declaration made by a defendant in the defendant’s own favor.” The People argued that self-serving hearsay is not admissible under the rule of completeness because there’s no guarantee regarding the trustworthiness of the statements. However, the Court stated that the argument is dependent on whether the statements in question are actually hearsay.

Referring to CRE 106, the Court referenced the following key passage: when a statement “is introduced by a party, an adverse party may require him at that time to introduce any other part … which ought in fairness to be considered contemporaneously with it.” (Emphasis added) The Court explained that the party seeking to cure a misleading impression is referred to as the “adverse party,” who may require the original proponent of the statement – “him” – to present additional evidence that should be considered together with the statement. Interpreting the plain language of CRE 106, the Court held that the original proponent of the statement that creates a misleading impression is also the proponent of the additional evidence to clear up the misleading impression, not the party requesting clarification.

Turning to the present case, the People introduced edited video evidence that created the misleading impression that McLaughlin had no explanation for how the truck ended up in the vacant lot. McLaughlin sought to have the deleted portions of the video introduced under the rule of completeness in order to cure the misleading impression created by the prosecution’s edited version of the video. As a result, under CRE 106, the People became the proponents of the additional evidence (i.e., deleted statements about an unidentified woman), and McLaughlin was the adverse party.

The Court then discussed whether the deleted statements introduced by the People as “additional evidence” constitute hearsay, which is defined by CRE 801(c) as an out-of-court statement offered to prove the truth of the matter asserted. CRE 801(d)(2)(A) provides that a statement is not hearsay if it “is offered against a party” and is “the party’s own statement in either an individual or a representative capacity.” The Court explained that the People were required to introduce a “statement … offered against a party” (McLaughlin) that was “the party’s own statement.” The Court further explained that such curative statements are, by definition, not hearsay under CRE 801(d)(2)(A), so they cannot be self-serving hearsay. Thus, the “additional evidence” of the deleted portions of the video cannot be excluded as self-serving hearsay under the rule of completeness, the Court held.

The Court next addressed the issue of the trial court conditioning admission of the deleted portions of the video on McLaughlin being subject to impeachment with his prior felony convictions. The Court noted that CRE 806 provides that when a statement – either hearsay or non-hearsay – “has been admitted in evidence, the credibility of the declarant may be attacked” and supported “by any evidence which would be admissible for those purposes if [the] declarant had testified as a witness.” But CRE 806 does not mention statements admitted under CRE 801(d)(2)(A), explained the Court. That is, impeachment under CRE 806 is inapplicable to statements admitted under CRE 801(d)(2)(A). Thus, the Court held that the trial court abused its discretion by conditioning admission of the deleted statements on McLaughlin testifying and thereby subjecting him to impeachment with his prior felony convictions.

The Court concluded by summarizing its holdings. First, it held that “under CRE 106, if the prosecution creates a misleading impression by excluding a defendant’s statements that ought in fairness to be considered contemporaneously with the proffered evidence, then the rule of completeness requires the prosecution to introduce such statements.” Second, it held that “when a defendant-declarant’s statements are admitted under the rule of completeness, the prosecution may not impeach the defendant-declarant under CRE 806.”

Accordingly, the Court affirmed the judgment of the Court of Appeals. See: People v. McLaughlin, 530 P.3d 1206 (Colo. 2023).  

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