A Colorado Springs detective told jurors that the same day Christopher D. Fiers allegedly assaulted a friend, Fiers had canceled his subscription for his Nest home security camera system and no video of the incident existed. Fiers was convicted and sentenced to 16 years in prison.

Now, the state’s second-highest court has overturned Fiers’ convictions because that incriminating detail, which the detective heard from a Nest employee, was barred by longstanding rules against hearsay evidence.

A three-judge panel for the Court of Appeals ruled on Thursday that Fiers should receive a new trial because El Paso County prosecutors referred to the hearsay cancelation of Fiers’ Nest account as “very powerful evidence” that Fiers committed a crime on June 12, 2018.

“If it existed, video from the Nest cameras could have conclusively established what did or did not happen on the morning of June 12,” wrote Judge Jaclyn Casey Brown in the May 19 opinion. “Because the ‘missing’ video could have ‘exonerated him,’ as the prosecutor told the jury, the improperly admitted evidence suggesting that Fiers either cancelled his account so that the cameras could not record the attack or so that any recordings would be inaccessible after the attack was inculpatory and impactful.”

Hearsay evidence encompasses statements that are offered to prove something is true, but are made by someone who is not testifying at trial. While hearsay is generally barred, there are exceptions – including statements that show why police took particular steps in their investigations.

Even then, some statements in that category may go too far and infringe on a defendant’s Sixth Amendment right to confront the witnesses against them. As the Chicago-based U.S. Court of Appeals for the Seventh Circuit concluded in a 2004 decision, “every time a person says to the police ‘X committed the crime,’ the statement (including all corroborating details) would be admissible to show why the police investigated X. That would eviscerate the constitutional right to confront and cross-examine one’s accusers.” 

In Fiers’ case, the alleged victim was at Fiers’ house on the evening of June 11, 2018, helping to clean after one of Fiers’ roommates moved out. The next morning, Fiers invited the victim back over. Once there, Fiers accused the victim of stealing prescription pills, which the victim denied doing.

According to the victim’s account, Fiers demanded to know if the victim “thought it was okay for me to steal from him” and grabbed a baseball bat, hitting the victim multiple times. As the victim defended himself, Fiers hit him in the arm. The victim later went to the hospital, where a doctor determined he had a “nightstick” injury commonly seen in defensive wounds.

Fiers, on the other hand, said he did not wield a baseball bat during the encounter, and there was reportedly no trace evidence on a bat that police found. The morning before the attack, the victim had been in an accident that totaled his car and left him injured. The victim testified, however, that the accident had not hurt his arm.

During Fiers’ trial in El Paso County District Court, two detectives testified about their handling of the six Nest surveillance cameras they discovered in Fiers’ home. Detective Stephen Aulino described how Fiers offered his email address to access the Nest account, but police never took Fiers up on the offer.

The jury then submitted a question to Aulino: “Why was the video on the Nest cameras in Mr. Fiers’ home not accessed or even attempted to be accessed by the Colorado Springs Police?”

Aulino responded that police did write a search warrant, but received nothing in return from Nest.

The prosecution then asked Detective Brent Jacobsen whether he found it odd that no video footage from Fiers’ home security system arose from the search warrant. Not necessarily, he said, as there could be “a variety of reasons why they don’t have the videos.”

The prosecution pressed Jacobsen about why he had not obtained a second search warrant, to which he replied: “I was also advised that the defendant had canceled his account on the day of the event.”

Fiers’ attorney objected that the statement was hearsay, but District Court Judge Gregory R. Werner overruled the objection. Jacobsen reiterated that he was told by one of Nest’s “senior support agents” that the cancelation occurred on June 12, 2018. He conceded that he had not verified whether that information was accurate.

During closing arguments, the defense attempted to mitigate the effect of Jacobsen’s disclosure by telling jurors they were not allowed to speculate about the hearsay testimony.

“Does it make sense that if Christopher Fiers is trying to hide evidence, delete surveillance video, that he leaves the bat, the alleged weapon, in his house? I mean, that’s the easiest thing to get rid of,” the defense attorney argued. “He doesn’t have anything to hide because he didn’t do anything.”

In response, the prosecution returned to the cancelation testimony.

“Circumstantial evidence, he just happens to get rid of his subscription that very day. That’s very powerful evidence, folks, and it should not be ignored. The one bit of evidence that could have exonerated him, and he gets rid of it,” the prosecutor said.

Jurors convicted Fiers of assault on an at-risk victim and menacing.

Turning to the Court of Appeals, Fiers argued that, if not for the hearsay statements attributed to the Nest employee, the jury would have heard only that police were unable to obtain the video evidence. While Jacobsen could have testified that he did not seek a second search warrant because he learned it would not produce new information, the prosecution used the Nest employee’s statements “to improperly prove guilt,” wrote Deputy State Public Defender Karen Mahlman Gerash.

The Colorado Attorney General’s Office defended the testimony, saying the prosecution wanted to “correct any misconceptions” jurors had about the thoroughness of the investigation. The government also argued that the defense was the first party to mention Fiers’ account cancelation during closing arguments, which forced the prosecution to respond.

The Court of Appeals panel sided with Fiers, concluding that Werner, the trial judge, should not have allowed the hearsay evidence about the cancelation of his Nest account. Brown observed in the panel’s opinion that no one had suggested police were obligated to seek a second search warrant for the videos, and, therefore, the out-of-court explanation from a Nest employee was unnecessary.

“And the effect of the testimony could only have been an improper one: suggesting that Fiers either cancelled his account so that the cameras would not record his assault on (the victim) or that he cancelled his account to destroy evidence that was inculpatory,” she wrote.

Because the prosecution had pointed to the Nest employee’s statements as “very powerful evidence,” the appellate panel found the hearsay statements were actually used to prove the truth of the criminal allegations, which is prohibited. It reversed Fiers’ convictions and ordered a new trial.

The case is People v. Fiers.