Peo v. Mathews

22CA0975 Peo v Mathews 12-26-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0975
Arapahoe County District Court No. 19CR2080
Honorable Eric B. White, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Scott Alan Mathews, Jr.,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII
Opinion by JUDGE SCHUTZ
Tow and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 26, 2024

Philip J. Weiser, Attorney General, Sonia Raichur Russo, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Tracy C. Renner, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Scott Alan Mathews, Jr., appeals the trial court’s

judgment of conviction entered on jury verdicts finding him guilty of

second degree murder, menacing, and third degree assault. We

affirm the judgment.

I. Background and Procedural History

A. The Shooting

¶2 Jaharie Wheeler lived in an apartment complex with his

fiancee, Shamira Cotton, and their respective children. On July 4,

2019, Wheeler prepared for a family barbeque inside their

apartment while Cotton and the children played with fireworks in

the complex’s courtyard.

¶3 Cotton briefly left the courtyard and upon her return, learned

that Mathews, who also lived in the complex, yelled at the children

because the noise from the fireworks agitated his dogs. Mathews

and Cotton exchanged insults in the courtyard. Mathews, a

Department of Corrections (DOC) officer who had recently returned

from a shift, withdrew his gun from its holster and pointed it in

Cotton’s face in the children’s presence. Cotton testified that

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Katherine,1 Mathews’s wife, intervened and told him to put the gun

away. Mathews returned the gun to its holster. The argument

escalated into a physical altercation when Mathews headbutted2

Cotton.

¶4 After the headbutt, one of the children went to the apartment

to notify Wheeler. Wheeler approached the scene, stepped between

Cotton and Mathews, and started yelling at Mathews. As the

argument escalated, Wheeler handed his glasses to his son and

then stepped toward Mathews while striking him in the face.

Mathews immediately responded by pulling his gun and shooting

Wheeler point blank in the chest. Wheeler died from his injuries.

B. Arrest, Trial, and Conviction

¶5 Mathews was arrested and charged with second degree

murder, menacing, and third degree assault. He retained private

counsel, Selvoy Fillerup, and claimed self-defense. The case was

set for trial in February 2020 but continued in January at the

prosecution’s request because of newly received discovery and the

1 We refer to Katherine by her first name to avoid confusion with

Mathews. We mean no disrespect in doing so.
2 Mathews contends that they headbutted each other.

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need to enlist an interpreter’s services for witness preparation.

Trial was reset for June 2020 but continued by the court in May

due to the COVID-19 pandemic. The trial was reset for October

2020. Two weeks before that trial date, Fillerup moved to continue

due to the pandemic and newly released discovery.

¶6 Trial was reset for March 2021. At the readiness conference,

the prosecution announced they were ready for trial. But Fillerup

filed a motion to withdraw because he was closing his law firm. He

waived speedy trial with Mathews’s consent and requested a

continuance on his behalf so that Mathews could retain new

counsel. The prosecution did not object to the continuance motion

but noted Wheeler’s family vigorously opposed it.

¶7 After a hearing outside the prosecution’s presence, Wheeler’s

mother voiced her family’s strong objection to another continuance,

noting that they had travelled from out of town for the anticipated

trial, missed work, were being denied closure, and were emotionally

traumatized by the repeated delays. The trial court expressed its

sympathies and apologies to the Wheeler family but stated that it

was compelled to grant the defense motions and vacated the trial

date to allow Mathews to attempt to retain new counsel.

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¶8 Mathews immediately filed a motion for court-appointed

counsel, stating he was indigent. The public defender’s office

reviewed the application and concluded that Mathews’s income was

above the indigency guidelines, meaning he was not entitled to

court-appointed counsel absent that determination being

overridden by the trial court. Mathews made no request that the

court override or reconsider the finding of the public defender’s

office.

¶9 At a hearing held in April, Mathews updated the court on his

unsuccessful efforts to retain private counsel. At a hearing in May,

Mathews reported that he had called over seventy private attorneys

from the trial court’s “slow pay/low pay” list3 but was unable to find

counsel he could afford. At no time during these hearings did

Mathews ask the court to reassess his eligibility for court-appointed

counsel.

¶ 10 Shortly after the May hearing, Beau Worthington and Brentan

Ward (collectively, trial counsel) entered their appearance on

3 This list contains the names of attorneys who will undertake

representation at a reduced rate or with a payment plan.

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Mathews’s behalf. The court set the case for trial on December 7,

2021.

¶ 11 In August 2021, trial counsel moved for the release of state

funds to allow them to hire an investigator and expert witnesses to

assist in the defense. In mid-September, Mathews filed another

application for appointment of the public defender’s office and an

amended financial statement. He contended that his financial

condition had significantly changed because he was separated from

Katherine. But the public defender’s office again concluded he did

not meet the indigency guidelines.

¶ 12 Two days later, Mathews filed yet another application for

appointment of the public defender’s office, in which he reported

materially different financial circumstances than he had just

reported. Based on this revised application, the public defender

concluded that Mathews was under the indigency guidelines.

However, in late September, the public defender’s office informed

him that he did not otherwise qualify for their services but that the

court could override this decision.

¶ 13 In October 2021, trial counsel moved to have the court find

Mathews indigent and appoint the public defender’s office to

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represent him. The court set the matter for a hearing. At the

hearing, trial counsel acknowledged the prior failed applications but

noted that the court had the authority to override the public

defender’s determination, deny the motion, or “release funds for an

investigator and I think that probably is the most efficient way to

handle this matter.” Trial counsel then stated,

Mathews has paid us a total of $4,500 for our
services. You know, we were talking about
this in the hallway. Mr. Ward and I accepted
this case for a number of reasons, money was
not one of them. We’ve basically taken that
money and reinvested it in his defense . . . .
I’m comfortable . . . with my position as
[Mathews’s] counsel handling the case even on
a pro bono basis even if he doesn’t pay me
another dime. The problem is he doesn’t have
the money available to adequately defend
against the case like this where there’s really a
need for an investigator to track down some of
these fact witnesses as well and for us to do an
independent investigation, and that’s really
what the issue before the [c]ourt is today.

¶ 14 After hearing counsels’ arguments, the court reviewed

Mathews’s applications and asked him questions about them. The

court applied the standards contained in Chief Justice Directive 04-

04, Appointment of State-Funded Counsel in Criminal Cases and

for Contempt of Court §§ III-IV (amended July 2023) (CJD 04-04) —

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which governs the appointment of public defenders — and

concluded that Mathews’s income exceeded 175% of the income

eligibility guidelines.

¶ 15 Given these conclusions, the court was reluctant to grant trial

counsel’s request for the appointment of an investigator at public

expense. But the court nonetheless granted the request for the

appointment of a private investigator to assist trial counsel with

their investigation and preparation for the case. The trial court

denied Mathews’s motion requesting appointment of the public

defender’s office.

¶ 16 Six days before trial, Mathews moved for yet another

continuance, arguing that counsel needed more time to locate and

serve subpoenas on potential witnesses. The prosecutor reported

that Wheeler’s family strongly objected to another continuance, and

the trial court denied the motion. As addressed more fully below,

the trial court also denied Mathews’s renewed motion to continue

asserted on the first day of trial.

¶ 17 The jury found Mathews guilty as charged. The trial court

sentenced him to thirty-seven years in DOC custody.

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II. Denial of Court-Appointed Counsel

¶ 18 Mathews argues that reversal is required because the trial

court deprived him of his fundamental right to counsel by failing to

follow the proper procedures outlined in CJD 04-04 in making its

indigency determination and that the failure to provide him with

court-appointed counsel resulted in him being forced to proceed

with counsel who had a conflict of interest due to Mathews’s

inability to pay them. We disagree.

A. Standard of Review

¶ 19 A court’s indigency determination for purposes of state-funded

counsel is reviewable for an abuse of discretion, though it is

“subject to careful scrutiny for the reason that it involves a basic

constitutional right.” People v. Greer, 2022 CO 5, ¶ 19 (citation

omitted). A court abuses its discretion when its ruling is manifestly

arbitrary, unreasonable, or unfair. People v. Roybal, 55 P.3d 144,

150 (Colo. App. 2001). There is no mechanical test for determining

whether the court abused its discretion; rather, the analysis turns

on the reasons presented to the judge at the time of the request.

People v. Hampton, 758 P.2d 1344, 1353 (Colo. 1988).

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¶ 20 Whether a defendant is indigent and therefore entitled to

court-appointed counsel presents a mixed question of fact and law.

To the extent the ruling requires us to review the trial court’s

interpretation of CJD 04-04, it presents a question of law that we

review de novo. See Greer, ¶ 19. To the extent the court’s ruling

requires us to evaluate the court’s factual findings regarding the

defendant’s income, we review for an abuse of discretion. People v.

Steinbeck, 186 P.3d 54, 57 (Colo. App. 2007).

B. Applicable Law

1. Sixth Amendment Right to Counsel

¶ 21 All criminal defendants have a constitutional right to effective

assistance of counsel. U.S. Const. amend. VI; Colo. Const. art. II, §

16; Strickland v. Washington, 466 U.S. 668, 685-86 (1984).

Indigent defendants have the right to court-appointed counsel if

they are unable to retain private counsel. People v. Rainey, 2023

CO 14, ¶ 16. This right encompasses a right to conflict-free

representation. West v. People, 2015 CO 5, ¶ 15.

¶ 22 When a defendant’s ineffective assistance of counsel claim is

premised on a conflict of interest, we assess the claim under the

standard outlined in Cuyler v. Sullivan, 446 U.S. 335, 349 (1980),

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rather than Strickland. To prevail under this standard, “the

defendant must show by a preponderance of the evidence both a

conflict of interest and an adverse effect resulting from that

conflict.” West, ¶ 65.

¶ 23 A conflict between counsel and a defendant may exist if the

defendant is forced to proceed to trial “with an attorney originally

hired to represent him but whom he no longer is able to pay.”

People v. Munsey, 232 P.3d 113, 126 (Colo. App. 2009) (citation

omitted). But such a conflict presupposes that the retained defense

counsel is either unable or unwilling to zealously represent the

defendant because of the defendant’s existing financial

circumstances.

¶ 24 Ultimately, the court’s determination of whether counsel is

able and willing to fulfill their professional obligations based on the

defendant’s existing financial circumstances must be based on the

professional representations of counsel. Colo. RPC 1.7(2)(b). If

counsel represents that they remain able and willing to represent

the defendant under the existing financial circumstances, a court

does not abuse its discretion by allowing counsel to continue

representing the defendant. See People v. Harlan, 54 P.3d 871, 877

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(Colo. 2002) (trial courts have broad discretion to determine

whether disqualification is necessary).

2. Waiver

¶ 25 Waiver is “the intentional relinquishment of a known right or

privilege.” People v. Rediger, 2018 CO 32, ¶ 39 (citation omitted). A

waiver may be express or it may be implied when a defendant

“engages in conduct that manifests an intent to relinquish a right or

privilege or acts inconsistently with its assertion.” Forgette v.

People, 2023 CO 4, ¶ 28. The existence of an implied waiver may be

based on the totality of the circumstances. People v. Garcia, 2024

CO 41M, ¶ 32. If a right is waived, appellate review of the waived

right is extinguished. Forgette, ¶ 30.

C. Application

¶ 26 The People argue that Mathews forfeited or waived aspects of

his claim that the trial court erred by failing to appoint the public

defender’s office to represent him in this case. Specifically, they

argue that Mathews did not request the court to consider whether

he qualified for a public defender because his income was less than

175% of the income eligibility standards. They also argue that

Mathews did not request the appointment of a public defender at

11
the October hearing but, rather, limited his request to the

appointment of an investigator. But we need not address the

People’s waiver and forfeiture arguments because Mathews did not

meet the eligibility guidelines regardless of any omission by the trial

court.

¶ 27 In their appellate brief, the People detail Mathews’s reported

financial circumstances with respect to the three indigency

applications he filed. And the People demonstrate that, even taking

his changing financial statements at face value, they fail to

demonstrate that Mathews’s financial condition ever met the

standards of indigency as defined in CJD 04-04. This is true

whether the financial determination is based on the poverty

guidelines or 175% of those standards. Mathews does not dispute

these calculations. Thus, Mathews would not have qualified for

court-appointed counsel, and the court did not err by declining his

motions for appointment of counsel.

¶ 28 We also reject Mathews’s argument that the trial court erred

by not appointing him conflict-free counsel. Initially, we reject the

premise that trial counsel had a conflict of interest in the first place.

Simply because counsel agrees to represent a party at a

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substantially discounted rate, or pro bono, it does not necessarily

follow that those economic arrangements deprive a party of the

right to effective assistance of counsel.

¶ 29 Moreover, even if we grant the assumption that pro bono or

reduced fee arrangements subject counsel to the temptation to

reduce the quality of their representation to serve their own

economic interests, Mathews points to nothing that trial counsel

should have done that it did not, or anything that trial counsel did

improperly, because they were conflicted by the economic

circumstances of the representation. Indeed, in his reply brief,

Mathews concedes that he “cannot point to a specific action taken

or not taken by counsel that rendered their assistance ineffective or

point to an actual conflict of interest.”

¶ 30 In sum, Mathews has failed to demonstrate that trial counsel

had divided loyalties because of the economic circumstances of

their representation or that trial counsel’s performance was

compromised by such circumstances. See Sullivan, 446 U.S. at

348; West, ¶ 40.

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III. Continuance Motion

¶ 31 Mathews contends that the trial court deprived him of his

right to present a defense by denying his continuance motion to

secure the testimony of three witnesses. We are not persuaded.

A. Additional Facts

¶ 32 Six days before trial, trial counsel moved for a continuance on

the basis that they had been unable to subpoena three out-of-state

witnesses who had not yet been located but who counsel thought

could provide testimony that Mathews attempted to de-escalate the

confrontation before he shot Wheeler. Trial counsel indicated that

they needed additional time to locate the witnesses’ addresses and

serve them with subpoenas. They also indicated that they located

another witness, Zachary Akerfelds, who had witnessed the events

leading up to the homicide and who they anticipated would provide

similar information.

¶ 33 The prosecution noted that this was the fifth trial setting and

objected to the continuance on multiple grounds. It argued that the

defense had not established that it exercised due diligence in timely

locating these witnesses, observing that Fillerup referred to the

need to locate out-of-state witnesses in March, nine months earlier.

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The prosecution also pointed out the absence of a specific

evidentiary offer illustrating that these witnesses were essential.

Moreover, the prosecution stated there was alternative evidence

that could adequately address Mathews’s attempts to de-escalate

the situation, including a video of the shooting and the testimony of

several available neighbors who also witnessed the shooting.

Finally, the prosecution noted that it had flown in multiple

witnesses for trial, and that these witnesses would be prejudiced by

a continuance.

¶ 34 Emphasizing the repeated continuances and the associated

adverse impact on the victims and finding that “the defense is

capable of proceeding with what it has,” the trial court denied the

requested continuance, but noted it would afford trial counsel the

opportunity to readdress the issue at trial.

¶ 35 Trial counsel reraised the issue on the first morning of trial.

After hearing basically the same arguments from counsel, the court

denied the requested continuance based on the following findings:

It’s just too difficult to tell if these witnesses
have testimony to offer that would be helpful
such that if I continued the case their
appearance would allow a more robust defense
for the defendant, and because there’s a

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videotape of at least part of this, it seems to
the [c]ourt that at least some of this is going to
come out through the videotape, as well as
through prosecution witnesses that are
available to cross-examine for the defense. I
can’t make a finding that, again, the evidence
that the defense proposes it may be able to
produce in the form of this witness testimony
would allow the [c]ourt to continue this case
for good cause.

¶ 36 The court also noted that it continued to have concerns about

the impact that another continuance would cause Wheeler’s family.

¶ 37 At trial, the prosecution called Akerfelds as a witness, and he

was subject to cross-examination by trial counsel. But his trial

testimony did not turn out as trial counsel had forecasted. He was

unable to support Mathews’s testimony that he and Cotton and

headbutted each other. In addition, he testified that Mathews was

“even angrier than Cotton” and that his demeanor during the

argument was angry and aggressive. Akerfelds also testified that he

did not see Cotton do anything physical toward Mathews or

Katherine. As it relates to Mathews’s interactions with Wheeler,

Akerfelds testified that Wheeler did not have anything in his hands

and approached Mathews calmly. In sum, Akerfelds did not provide

the type of exculpatory testimony defense counsel had anticipated.

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B. Standard of Review and Applicable Law

¶ 38 We review an order resolving a continuance motion for an

abuse of discretion. Roybal, 55 P.3d at 150.

¶ 39 “When the continuance is sought to locate a missing witness,

the court may consider whether the movant exercised due diligence

to secure the witness’s attendance.” People v. Senette, 2018 COA

105, ¶ 9. “Other factors relevant to the trial court’s inquiry include

the prejudice the movant would suffer from the denial of a request

for a continuance, whether that prejudice would be cured by the

continuance, and the prejudice to the nonmoving party if the

continuance is granted.” Id. But “even if the trial court abused its

discretion, to obtain a reversal,” a defendant must show “actual

prejudice arising from denial of the continuance.” People v.

Garrison, 2017 COA 107, ¶ 21 (citation omitted).

C. Application

¶ 40 Like the trial court, we acknowledge that trial counsel entered

their appearance under less-than-ideal circumstances: They only

had six months to review the discovery, the investigator had been

hired about a month before the trial, and Mathews had limited

17
financial resources. And we do not see any indication that the

requested continuance was sought in bad faith.

¶ 41 But considering the totality of the circumstances, we conclude

that the trial court did not abuse its discretion by denying

Mathews’s continuance request based on the age of the case and

the timing of the request. By the time of trial, this case was two

and a half years old. It had been continued four times previously.

And though some of those continuances were required by the

pandemic or the prosecution, others were made at the direct

request of Mathews’s counsel, including a request that was made

and granted just two weeks before the March trial setting.

¶ 42 In addition, Wheeler’s family had repeatedly expressed their

frustration, financial loss, and emotional turbulence resulting from

these continuances. The trial court granted multiple continuances

notwithstanding these objections, but the victims’ right to have the

case promptly resolved was certainly an important criterion for the

court to consider. People v. Ahuero, 2017 CO 90, ¶ 17.

¶ 43 Against these concerns, the court considered trial counsel’s

argument that a continuance was necessary to subpoena out-of-

state witnesses whose specific location had not yet been identified.

18
But the court found that trial counsel failed to provide an offer of

proof that the proposed testimony would have been distinguishable

from other available evidence. Moreover, the subsequent testimony

from Akerfelds — one of the witnesses identified by trial counsel as

having exculpatory testimony — undermined Mathews’s self-

defense claim. Furthermore, there was eyewitness testimony from

several other witnesses including Katherine, Cotton, and neighbors,

and the incident was recorded on video.

¶ 44 Based on these circumstances, the trial court did not abuse its

discretion by denying Mathews’s continuance motion.

IV. Prosecutorial Misconduct

¶ 45 Finally, Mathews argues that the prosecutor improperly

expressed opinions on Mathews’s guilt and credibility. We disagree.

A. Standard of Review and Applicable Law

¶ 46 In the absence of a contemporaneous objection from defense

counsel, as is the case here, we review a trial court’s failure to

address alleged prosecutorial misconduct for plain error. People v.

Vialpando, 2022 CO 28, ¶ 20. Plain error is error that is obvious

and substantial. Hagos v People, 2012 CO 63, ¶ 14. An obvious

error is one that contravenes a statute or rule, a well-settled legal

19
principle, or established Colorado case law. Campbell v. People,

2020 CO 49, ¶ 25. “An error is substantial if it so undermines the

fundamental fairness of the trial itself as to cast serious doubt on

the reliability of the judgment of conviction.” People v. Deutsch,

2020 COA 114, ¶ 22.

¶ 47 We engage in a two-step analysis to review prosecutorial

misconduct claims. People v. Herold, 2024 COA 53, ¶ 67. First, we

consider “whether the prosecutor’s questionable conduct was

improper based on the totality of the circumstances,” and then we

consider “whether such actions warrant reversal.” Wend v. People,

235 P.3d 1089, 1096 (Colo. 2010).

¶ 48 During closing argument, a prosecutor “may refer to the

strength and significance of the evidence, conflicting evidence, and

reasonable inferences that may be drawn from the evidence.”

People v. Walters, 148 P.3d 331, 334 (Colo. App. 2006). But it is

improper for a prosecutor to use any form of the word “lie” in

reference to a defendant’s veracity including the words “lies,” “lied,”

and “liar.” Wend, 235 P.3d at 1096.

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B. Application

¶ 49 Mathews testified at trial. In closing argument, the prosecutor

argued that Mathews’s account of what happened prior to the

homicide was not believable and also that some of his testimony

was untruthful. Mathews tries to equate these statements with

calling him a liar. Finally, Mathews notes that the prosecutor said

on one occasion that he was “so guilty.”

¶ 50 The People note that, by testifying, Mathews placed his

credibility at issue. See Walters, 148 P.3d at 335-36. The People

also note that the prosecutor’s arguments that Mathews’s testimony

was not believable or untruthful was grounded in discussions of the

applicable evidence and did not use any form of the term “lie.” See

People v. McMinn, 2013 COA 94, ¶ 61 (“Prosecutors may comment

on the evidence admitted at trial and the reasonable inferences that

can be drawn therefrom.”).

¶ 51 We agree with the People that the prosecutor’s arguments that

Mathews’s testimony was unbelievable and untruthful were not

improper under the circumstances of this case. And we view the

prosecutor saying, “so guilty,” in reference to Mathews as somewhat

ambiguous. Depending on context, the statement may have been

21
an improper opinion that the defendant was guilty, see Robles v.

People, 302 P.3d 269, 279 (Colo. App. 2011) (a prosecutor may not

assert a personal opinion as to the defendant’s guilt or innocence),

aff’d, 2013 CO 24, or it may have been a suggestion that the jury

should return a guilty verdict based on the evidence the prosecutor

summarized before making the statement. In any event, the trial

court was in the best position to assess any prejudice associated

with the argument, see People v. Gomez-Garcia, 224 P.3d 1019,

1024 (Colo. App. 2009), and in context this argument was not so

improper or flagrant that it rose to the level of plain error, see

People v. Rhea, 2014 COA 60, ¶ 43.

V. Disposition

¶ 52 The judgment is affirmed.

JUDGE TOW and JUDGE PAWAR concur.

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