Peo v. Walker

22CA0208 Peo v Walker 01-09-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0208
El Paso County District Court No. 20CR5068
Honorable Jessica L. Curtis, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

James Maurice Walker,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division III
Opinion by JUDGE YUN
Dunn and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 9, 2025

Philip J. Weiser, Attorney General, Jaycey DeHoyos, 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 James Maurice Walker appeals the judgment of conviction

entered on a jury verdict finding him guilty of first degree murder.

He challenges several of the district court’s rulings on evidentiary

matters and juror issues. We disagree with those contentions and

affirm the conviction.

I. Background

¶2 At trial, the People presented evidence from which the jury

could find the following facts. Gabe Garcia and the victim had been

“inseparable” ever since they met and became best friends in

school. “If I needed something,” he testified, “she would help me.”

¶3 In the summer of 2020, Garcia and the victim were both

selling drugs. The victim introduced Garcia to Walker, who also

sold drugs and was a member of the 81st Crips gang. Garcia and

Walker started occasionally working together.

¶4 On July 28, 2020, a fellow gang member and friend of

Walker’s nicknamed “Bam” gave Garcia approximately $1,600 to

buy a pound of marijuana. Bam, Garcia, and Hailie

Batton-Robinson — Garcia’s girlfriend and his driver that day — all

met at an apartment complex for the drug deal. But when Garcia

handed over the money to a third party, that person left and did not

1
return with the drugs. When it became clear that Garcia had been

robbed, Bam put a gun to Garcia’s head and said he was going to

shoot him. Batton-Robinson interceded on Garcia’s behalf and,

according to Garcia, “saved [his] life.” Bam then said he would give

Garcia a couple of hours to get the money back.

¶5 That night, Garcia and Batton-Robinson went to Walker’s

apartment. Walker, the victim, and Walker’s fiancee were also

there. Walker told Garcia that he had talked to Bam, that he had

paid Garcia’s debt, and that Garcia now owed the money to Walker.

Walker threatened Garcia, saying that Garcia “better pay him back”

within “the next day or two” or there “would be worse

consequences, and that’s on Crips.” Walker then held a video call

with gang members in California, who showed Garcia their guns

and told him they would kill him if he did not pay Walker back.

Walker told Garcia there was “a green light on [his] head” and he

was “a target” unless he paid the debt.

¶6 Shortly after midnight on July 29, Garcia texted the victim,

begging her to lend him a pound of marijuana to repay Walker. “U

can literally save my life if u lent me the p for a day,” he told her.

2
“[P]lease don’t let me die.” The victim responded: “That’s not going

to happen.”

¶7 On July 30, the victim brought marijuana to Walker’s

apartment “to try to settle the debt.” Walker and his fiancee were

there, along with another gang member who had come out from

California. But the California gang member said that the marijuana

“wasn’t good” and that he would not accept it. He then departed,

leaving Walker, his fiancee, and the victim alone in the apartment.

¶8 The victim texted a friend: “I help hella help or they will me[.]

As much money as possible[.] Or I’m gonna get killed[.] Don’t

contact cops I pray u don’t[.]”

¶9 That evening, the fiancee heard Walker and the victim arguing

in the bedroom. When they came out, the victim told the fiancee

that Walker had forced her to play Russian roulette with him. The

argument continued in the living room. As the fiancee watched,

Walker pushed the victim onto the couch and shot her in the head.

When he stood up again, the fiancee saw “a clear fluid leaking” from

the victim’s head. The fiancee begged Walker to let her leave, and

he told her that she was “never there” and that she should not “say

anything.” The fiancee called a friend to pick her up. As she waited

3
for her friend, she saw Walker “dragging [the victim’s] body out of

the house by her wrist and stuffing her in the back seat of the car”

Walker and his fiancee shared. But Walker could not find the car

keys.

¶ 10 Later that night, Batton-Robinson, who, along with Garcia,

had spent the last two days “trying to come up with the money,”

went to Walker’s apartment to drop off money that she and Garcia

had earned. When she arrived, Walker was cleaning. He asked

whether he could borrow her car and “if he could clear everything

out of it.” When she asked why, he “joked about hiding a body.”

Batton-Robinson gave Walker her car keys, and he left.

¶ 11 The victim’s body, with a single gunshot wound to the

forehead, was discovered beside Highway 24 the next morning.

¶ 12 The next month, the fiancee attended a barbecue with

Walker’s stepfather. When she could speak to the stepfather alone,

she told him that she had “watched [Walker] shoot somebody” and

that “this involved drugs.” Several weeks later, the fiancee called

Walker’s stepsister in tears. The stepsister met the fiancee outside

Walker’s apartment, where the fiancee told her that “she knew too

much and that if something happened to her[,] then she just

4
wanted [the stepsister] to know that it was [Walker].” The stepsister

went inside to confront Walker about why the fiancee was so upset.

Walker said that she was upset because she had seen him kill

someone. At that point, Walker’s stepfather and stepsister went to

the police.

¶ 13 Male DNA found on the victim’s left hand was consistent with

Walker’s. And the victim’s DNA was found in “presumptive”

bloodstains on Walker’s couch, in his car, and in Batton-Robinson’s

car.

¶ 14 The fiancee initially and repeatedly told the police that she had

seen nothing. But the next summer, when she herself was

arrested, she contradicted her prior statements and admitted that

she had witnessed the murder. She explained the changed

testimony at trial, stating that Walker had threatened to kill her

and her family if she told on him and that she was scared those

threats could be carried out by other gang members because she

knew “what happens to snitches.”

¶ 15 Batton-Robinson likewise was not forthcoming in her initial

police interview, omitting any mention of the gang and the drug

debt and claiming that she had used fabric paint on the back seat

5
of her car to give it some flare. Only after she too was arrested did

she admit that she had used the paint to cover up what she

believed were bloodstains. She explained at trial that she had kept

quiet “[o]ut of fear” of “[t]he 81st Crips.”

¶ 16 At trial, Walker argued that he had no motive to kill the victim

and that the police had decided he was guilty without investigating

other leads. The jury found him guilty of first degree murder, and

the district court imposed the mandatory sentence of life without

the possibility of parole.

II. Analysis

¶ 17 On appeal, Walker contends that the district court erred by

(1) admitting evidence that he was a “threatening drug-dealing gang

member”; (2) finding that the prosecution’s exercise of a peremptory

challenge against one of only two Black jurors on the venire was not

racially motivated; (3) declining to excuse a juror who had contact

with a testifying detective during trial; (4) failing to make specific

findings that methods used to detect “presumptive” bloodstains

were reliable and admissible under CRE 403; and (5) excluding

evidence that the victim earned income as a sex worker and had

contact with a client through an escort service website. He also

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contends that these errors cumulatively require reversal. We

address each contention in turn.

A. Gang and Drug Evidence

¶ 18 Walker contends that the district court reversibly erred by

admitting evidence of “gang affiliation, drug dealing, [and] threats

by Walker.” We disagree.

1. Additional Facts

¶ 19 Before trial, the prosecution filed notice of its intent to

introduce, as res gestae, evidence that Walker killed the victim

because he was responsible for collecting a “drug debt” on behalf of

his gang. Walker objected, arguing that the gang and drug evidence

was subject to CRE 404(b). The court disagreed and made an initial

finding, subject to further argument by the parties, that the gang

and drug evidence was admissible as res gestae because it was

probative of Walker’s motive and “pivotal” to understanding “the

total picture surrounding the homicide.”

¶ 20 The prosecution filed another motion, arguing that the gang

and drug evidence was relevant because it explained (1) Walker’s

“conduct in this case[,] in which gang members acted in concert

together to satisfy an unpaid drug debt”; and (2) “the fear and

7
reluctance of [the fiancee] to report the murder.” After a hearing,

the court finalized its prior ruling that the gang and drug evidence

was admissible as res gestae:

[A]s I understand it, the Prosecution’s theory of
the case is that [Walker] killed [the victim]
because of a drug deal gone wrong and . . .
there was motive to follow through with the
murder because of threats that they believe
[Walker] was making under the auspices of the
81st Crips; that the 81st Crips were putting a
hit out on certain people because of the drug
debt gone wrong. And so, to the extent that
that is my understanding of the Prosecution’s
theory of the case, this . . . is res gestae
evidence . . . .

¶ 21 The parties agreed that a limiting instruction would be read

each time a witness testified about Walker’s gang membership. The

instruction stated:

Guilt may not be inferred from mere
association. Membership in a gang is not a
crime. Therefore, your decision shall not be
affected by evidence, without more, that the
Defendant was a member of a gang. You are
expected to carefully and impartially consider
all of the evidence and follow the laws as
stated by the Court.

¶ 22 The jury heard the following testimony:

• Walker was a member of the 81st Crips and sold drugs.

• Garcia sold drugs on behalf of Walker.

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• When talking to Garcia about the drug debt, Walker

made a death threat “on Crips.”

• Witnesses, including the fiancee and Batton-Robinson,

were afraid to come forward because of Walker’s gang

connections.

2. Governing Law and Standard of Review

¶ 23 At the time of Walker’s trial, the admissibility of other act

evidence was generally governed by two theories: CRE 404(b) and

res gestae.

¶ 24 Under CRE 404(b), evidence of other crimes, wrongs, or acts is

not admissible to prove a person’s character to show that the

person acted in conformity with that character on a particular

occasion. But evidence of other crimes, wrongs, or acts may be

admissible for another purpose, “such as proving motive,

opportunity, intent, preparation, plan, knowledge, identity, absence

of mistake, or lack of accident.” CRE 404(b)(2).

¶ 25 Res gestae, in turn, “is a theory of relevance which recognizes

that certain evidence is relevant because of its unique relationship

to the charged crime.” People v. Greenlee, 200 P.3d 363, 368 (Colo.

2009), abrogated by Rojas v. People, 2022 CO 8. Res gestae

9
evidence is “generally linked in time and circumstances with the

charged crime, forms an integral and natural part of an account of

a crime, or is necessary to complete the story of the crime for the

jury.” Id. (quoting People v. Quintana, 882 P.2d 1366, 1373 (Colo.

1994)).

¶ 26 Two months after Walker’s trial, the Colorado Supreme Court

abolished the res gestae doctrine in criminal cases. Rojas, ¶ 4. In

its place, the supreme court embraced “an intrinsic-extrinsic

distinction.” Id. at ¶ 44. On one hand, intrinsic acts — those that

(1) directly prove the charged offenses or (2) occurred

contemporaneously with the charged offenses and facilitated their

commission — are not “other” acts and, therefore, fall outside the

scope of CRE 404(b). Id. at ¶ 52. On the other hand, extrinsic acts

that suggest a bad character (and thus a propensity to commit the

charged offense) are admissible only as provided in CRE 404(b) and

after the analysis set forth in People v. Spoto, 795 P.2d 1314, 1318

(Colo. 1990). Rojas, ¶ 52.

¶ 27 In Spoto, our supreme court articulated a four-part test to

determine whether other act evidence that suggests bad character

is admissible. 795 P.2d at 1318. First, the evidence must relate to

10
a material fact. Id. Second, the evidence must be logically relevant

to that material fact, meaning it must tend to make the existence of

the material fact more or less probable. Id. Third, the logical

relevance must be independent of the prohibited character

inference. Id. Fourth, the evidence’s probative value must not be

substantially outweighed by the danger of unfair prejudice. Id.

¶ 28 A trial court has substantial discretion in deciding whether to

admit evidence of other acts. Perez v. People, 2015 CO 45, ¶ 22.

We will not disturb the court’s decision absent a showing that it

was manifestly arbitrary, unreasonable, or unfair, or was based on

a misapprehension or misapplication of the law. Gonzales v.

People, 2020 CO 71, ¶ 25. “In deference to the trial court’s

discretion, we must assume the maximum probative value and the

minimum unfair prejudice to be given the evidence.” Yusem v.

People, 210 P.3d 458, 467 (Colo. 2009).

¶ 29 Even if the court abuses its discretion, we reverse only if the

error was not harmless. People v. Harris, 2015 COA 53, ¶ 14; see

also Yusem, 210 P.3d at 469 n.16 (The “[e]rroneous admission of

CRE 404(b) evidence is not error of constitutional dimension.”). A

nonconstitutional error is harmless unless there is a reasonable

11
probability that it contributed to the defendant’s conviction by

substantially influencing the verdict or impairing the fairness of the

trial. Harris, ¶ 26 (citing People v. Casias, 2012 COA 117, ¶ 62). A

reasonable probability means a probability “sufficient to undermine

confidence in the outcome of the case.” Casias, ¶ 63.

¶ 30 The single most important factor in determining whether an

error was harmless is whether the outcome of the case was close.

Harris, ¶ 27. “If a case was close, there is a greater chance that the

erroneously admitted evidence affected the jury’s verdict.” Id. “On

the other hand, if the properly admitted evidence is sufficiently

powerful, an appellate court can be fairly assured that the

erroneously admitted evidence did not substantially sway the jury”

to convict the defendant. Id.

3. Discussion

¶ 31 We first address the admissibility of the gang and drug

evidence under CRE 404(b), then address its admissibility to

explain why the fiancee and Batton-Robinson changed their stories.

And finally, we address harmless error.

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a. CRE 404(b)

¶ 32 The People argue that even though the gang and drug evidence

is no longer admissible as res gestae and is considered extrinsic

under Rojas, it should still be admissible under CRE 404(b), so

reversal is unnecessary. See People v. Thompson, 2020 COA 117,

¶ 55 n.7 (“We may affirm a district court’s judgment on any ground

supported by the record, even if the district court did not raise or

address that ground.”). We agree.

¶ 33 “The first prong of the Spoto test is the easiest to satisfy.”

Yusem, 210 P.3d at 464. A material fact is merely one “that is of

consequence to the determination of the action.” CRE 401. Here,

according to the prosecution’s theory of the case, the gang and drug

evidence was related to Walker’s motive for killing the victim. See

People v. Clark, 2015 COA 44, ¶¶ 15, 20 (Gang-related evidence is

admissible to establish a motive and explain “why [a] defendant

perpetrated a seemingly random and inexplicable attack.”) (citation

omitted).

¶ 34 To satisfy the second prong, the prosecution “need only show

logical relevance — that the prior act evidence has any tendency to

make the existence of the material fact more or less probable than

13
without the evidence.” Yusem, 210 P.3d at 464-65. Here, the

evidence that Walker dealt drugs as a member of the 81st Crips and

made a death threat “on Crips” over a drug debt owed to him and

the gang made it more likely that he was willing to kill the victim

over that debt.

¶ 35 As to Spoto’s third prong, the gang and drug evidence was

relevant to motive independent of the prohibited character

inference — i.e., that Walker, as someone who sold drugs for a

gang, had a criminal character and acted in accordance with that

character when he killed the victim. “The third prong of the Spoto

test does not demand the absence of the inference but merely

requires that the proffered evidence be logically relevant

independent of that inference.” People v. Snyder, 874 P.2d 1076,

1080 (Colo. 1994). To the extent there was a character inference

here, it was unrelated to the prosecution’s argument that Walker

killed the victim as a consequence for an unpaid drug debt owed to

the gang. According to the prosecution’s theory, the gang and drug

evidence explained Walker’s motive for killing the victim, an issue

logically independent of his character in general.

14
¶ 36 The concern in this case is the fourth prong of the Spoto

analysis — that is, whether the probative value of the gang and

drug evidence was substantially outweighed by the danger of unfair

prejudice. See id. As Walker notes, the gang and drug evidence did

not directly prove that he killed the victim. Nor did the evidence

obviously establish his motive, because it was Garcia who owed a

drug debt to Walker and the gang, not the victim. It was Garcia

who was robbed, who had “a green light on [his] head,” and whom

Walker threatened “on Crips.” The prosecution’s theory that Walker

killed the victim “because he had to as a member of the gang[]

because of the hit that was put out” does not, as Walker argues,

appear to make much sense, considering that the hit was put out

on someone else.

¶ 37 Nevertheless, there was considerable circumstantial evidence

that supported the prosecution’s theory that the victim’s death was

connected to the drug debt. First, Garcia sent a message to the

victim asking for her help to get marijuana to pay the debt. Second,

the victim tried to pay the debt by bringing marijuana to Walker’s

apartment. Third, she texted a friend shortly before her death to

say that she needed “[a]s much money as possible” or she was going

15
to “get killed.” And fourth, the fiancee told Walker’s stepfather that

she had “watched [Walker] shoot somebody” and that “this involved

drugs.” We thus consider the gang and drug evidence to have some

probative value.

¶ 38 And we cannot say that the probative value was substantially

outweighed by the danger of unfair prejudice. Although gang-

related evidence must be “admitted with care” because “gangs are

regarded with considerable disfavor by our society,” People v.

Trujillo, 2014 COA 72, ¶ 72 (citation omitted), the jury heard no

evidence about the gang’s reputation or culture, other acts

committed by gang members, or Walker’s involvement beyond the

fact that he sold drugs, see id. (noting that “courts must be vigilant

in guarding against the improper use of gang affiliation evidence ‘as

a backdoor means of introducing character evidence by associating

the defendant with the gang and describing the gang’s bad acts’”)

(citation omitted). Thus, while the gang evidence was prejudicial to

Walker, the prejudice resulted from the “legitimate probative force

of the evidence” and was mitigated by the court’s instruction that

guilt may not be inferred from gang association. People v. Kembel,

16
2023 CO 5, ¶ 53 (quoting People v. Gibbens, 905 P.2d 604, 608

(Colo. 1995)).

¶ 39 Giving the gang and drug evidence the maximum probative

value and assuming the minimum unfair prejudice, see Yusem,

210 P.3d at 467, we conclude that the district court did not abuse

its discretion by admitting the evidence.

b. Changes in Witness Statements

¶ 40 Separately, at least some of the gang evidence was admissible,

as the prosecution argued, to explain why the fiancee and Batton-

Robinson changed their stories. See People v. James, 117 P.3d 91,

94 (Colo. App. 2004) (“[E]vidence about gang retaliation, including

fear thereof, is admissible to explain a witness’s change in

statement or reluctance to testify.”); Trujillo, ¶ 57 (same); People v.

Chavez, 2012 COA 61, ¶ 32 (same); People v. Gonzales-Quevedo,

203 P.3d 609, 615 (Colo. App. 2008) (same). The fiancee testified

that, “since what happened to [the victim] happened, [she] just felt

like it was a matter of time for [her] as well”; that Walker was “really

well respected” in the gang and had gang connections in “at

least . . . two different states”; and that by testifying against him

she was “signing [her] own death sentence.” Batton-Robinson

17
likewise testified that she initially lied to the police “[o]ut of fear” of

“[t]he 81st Crips.” The gang evidence put their fear in context and

was relevant to their credibility because it explained why they

changed their stories. See People v. Villalobos, 159 P.3d 624, 630

(Colo. App. 2006) (noting that evidence that a witness fears

retaliation for testifying is admissible because it is relevant to the

credibility of that witness).

c. Harmless Error

¶ 41 Finally, even if the district court abused its discretion by

admitting some of the gang and drug evidence, we cannot conclude

that a reasonable probability exists that the erroneously admitted

evidence affected the jury’s verdict.

¶ 42 This was not a close case. See Harris, ¶ 27. Rather, the

evidence that Walker killed the victim was overwhelming. The

fiancee watched Walker shoot the victim in the head, and she told

Walker’s stepfather and stepsister what she saw. The physical

evidence supported her account: DNA consistent with Walker’s was

found on the victim’s left hand, and the victim’s DNA was found in

“presumptive” bloodstains on Walker’s couch, in his car, and in

Batton-Robinson’s car. And Walker told his stepsister that the

18
fiancee was upset because she had seen him kill someone. See

Pernell v. People, 2018 CO 13, ¶ 25 (“[W]e have held evidentiary

error to be harmless where the properly admitted evidence

overwhelmingly shows guilt.”). Finally, evidence that Walker was a

member of the 81st Crips was properly admitted to explain the

changes in witness statements. Given the strength of the properly

admitted evidence, we “can be fairly assured that the erroneously

admitted evidence did not substantially sway the jury” to convict

him. Harris, ¶ 27.

¶ 43 For all of these reasons, we discern no reversible error.

B. Batson Challenge

¶ 44 Walker contends that the district court violated his right to

equal protection of the law, under Batson v. Kentucky, 476 U.S. 79

(1986), by allowing the prosecutors to dismiss one of only two Black

jurors on the venire with a peremptory strike. We are not

persuaded.

1. Additional Facts

¶ 45 During jury selection, one of the prosecutors exercised a

peremptory strike against a prospective juror (Juror 59), and

19
defense counsel raised a Batson challenge. In response, the

prosecutor stated:

Your Honor, [Juror 59] is a teacher, and
teachers are not amenable jurors for the
[p]rosecution. That is the long and short of the
rationale. . . . That’s it for the rationale. She’s
a teacher.

¶ 46 Defense counsel stated that, in her opinion, Juror 59 was “the

only other [B]lack member on the panel.” She argued that the

prosecutor’s reason was pretextual because, if it were genuine, the

prosecutors’ position would be that “every teacher that is on this

panel should be released.” Although she did not specifically call the

court’s attention to any other teachers on the venire, the record

shows that one of the prosecutors had previously objected when

defense counsel challenged another teacher (Juror 60) for cause

due to a scheduling conflict.

¶ 47 The following exchange then took place regarding Juror 59:

THE COURT: You’re going to have to elaborate
for me. Why a teacher?

[PROSECUTOR]: Your Honor, I did not even
speak with her. I did not know what she
looked like. In my experience . . . teachers are
not good jurors for the [p]rosecution in the
same way engineers are not.

20
....

THE COURT: Well, I’m struggling. You know,
it’s certainly a race-neutral explanation. The
[p]rosecution doesn’t believe that engineers
and teachers are good for them. . . .
[U]ltimately, I do find that it’s a sufficient
reasoning. The explanation is the
[p]rosecution feels that engineers and teachers
are generally not good for them.

¶ 48 The court denied the Batson challenge without completing the

required analysis. Accordingly, the case was remanded for further

findings. See People v. Johnson, 2024 CO 35, ¶ 22 (If the trial

court’s analysis “is inadequate to determine whether a violation has

occurred, ‘the appropriate procedure is to remand the case for more

detailed findings by the trial court.’” (quoting Craig v. Carlson,

161 P.3d 648, 654 (Colo. 2007))).

¶ 49 On remand, the court reviewed the record and its notes on

jury selection and made the following findings:

• The court understood the prosecutor’s statement

“regarding teachers being undesirable in the same

manner as engineers as a reference to a genuine trial

strategy to remove certain types of thinkers who may be

more rigid and exacting from the deliberation room.”

21
• Before exercising a peremptory challenge against

Juror 59, “the prosecution had exercised three other

peremptory challenges on teachers and engineers . . . ,

which the [c]ourt felt boosted the credibility of their strike

as genuine rather than pretextual.”

• The court “found the prosecution team credible,

generally, in the way they responded to the Batson

challenge . . . . They responded quickly and without

hesitation as to their main concern with [Juror 59] being

that she was a teacher. . . . The [c]ourt did not have any

concerns with the prosecuting attorneys’ demeanor

during discussion of the issue; both appeared forthright

and assured, rather than hesitant and/or insecure, while

proffering that the juror’s profession as a teacher was the

essence of their reason.”

• “The [c]ourt found the prosecuting attorney’s statement

that he did not know what [Juror 59] looked like to be

credible, as the juror was seated on the far opposite side

and several rows back from his position in a very

crowded courtroom.”

22
• The other prosecutor’s previous objection to the removal

of Juror 60 (another teacher) did not “raise[] credible

concerns for the [c]ourt that the prosecution had given

an improper and pretextual rationale” for the removal of

Juror 59 because, “[i]n [the court’s] experience, it is quite

common for the prosecution’s main strategy at the ‘for

cause’ stage of jury selection to be preservation of a large

enough jury pool for a full exercise of peremptory

challenges for both sides.” Indeed, the prosecutor

commented that her reason for objecting to the removal

of Juror 60 was that she didn’t “want to run out of

jurors.”

¶ 50 Accordingly, after considering all the circumstances, the court

found that defense counsel had not met her burden of showing

purposeful discrimination by a preponderance of the evidence.

2. Standard of Review and Controlling Law

¶ 51 The Equal Protection Clause of the Fourteenth Amendment

precludes a juror challenge based on race. Batson, 476 U.S. at 89.

“Purposeful racial discrimination in selection of the venire violates a

23
defendant’s right to equal protection because it denies him the

protection that a trial by jury is intended to secure.” Id. at 86.

¶ 52 Batson provides a three-step process for evaluating claims of

racial discrimination in jury selection. Johnson, ¶ 17; People v.

Austin, 2024 CO 36, ¶ 7.

¶ 53 At step one, the opponent of a peremptory strike must make a

prima facie showing that the proponent used the strike against a

potential juror because of race. Id. at ¶ 18; see also People v.

Ojeda, 2022 CO 7, ¶ 32 (removal of a single juror based on race,

regardless of the composition of the final jury panel, violates equal

protection). As long as the totality of the relevant circumstances

raises an inference of racial motivation, the objecting party has

satisfied their step-one burden. Batson, 476 U.S. at 96; accord

Valdez v. People, 966 P.2d 587, 590 (Colo. 1998).

¶ 54 At step two, the proponent of the strike must offer a race-

neutral explanation for the strike. Johnson, ¶ 19. At this second

step, the court does not consider whether the explanation is

“plausible or persuasive,” but merely whether it is facially valid. Id.;

see also Ojeda, ¶ 24 (The striking party may “provide any race-

neutral justification for the strike, regardless of implausibility or

24
persuasiveness.”). In response, “[t]he objecting party may present

evidence or argument to rebut the striking party’s stated reason.”

Johnson, ¶ 19.

¶ 55 Then, at step three, the court must consider all of the

circumstances that bear upon the issue of purposeful

discrimination, including the striking party’s demeanor, the

reasonableness of the proffered race-neutral explanation, and

whether the rationale is rooted in accepted trial strategy. Id. at

¶ 20. For a Batson challenge to succeed, the court must find that

the objecting party proved purposeful discrimination by a

preponderance of the evidence. Id. at ¶ 21.

¶ 56 Different steps of the Batson analysis are subject to separate

standards of review. Id. We review steps one and two de novo. Id.

But we review the district court’s ultimate step-three conclusion as

to the existence of purposeful discrimination for clear error. Id.

“Under this standard, we defer to the trial court’s ruling ‘so long as

the record reflects that the trial court weighed all of the pertinent

circumstances.’” Id. (quoting People v. Beauvais, 2017 CO 34, ¶ 2).

25
3. Analysis

¶ 57 Walker argues that when a case is remanded for further

step-three findings, “a court should make findings necessary to

complete the Batson analysis based on the existing record, not new

observations or arguments.” The district court, Walker claims,

crossed this line. Specifically, he notes that the court did not

explain at the time of trial that it understood the prosecution “was

referencing an attempt to eliminate jurors they felt may bring

particular types of analytical styles into deliberations” or that it

believed the prosecutor’s objection to dismissing Juror 60 for cause

was motivated by a concern about running out of jurors. Because

the court did not “explain its reasoning at the time of the disputed

ruling,” he argues, it could not later do so on remand.

¶ 58 But when the district court’s step-three analysis is inadequate

to determine whether a Batson violation has occurred, the remedy

is not automatic reversal but rather a remand for more detailed

findings by the district court. Johnson, ¶ 22. However, “Batson

remand hearings” should be confined to “fact finding related to

events that occurred on the record and in front of the court.”

People v. Madrid, 2023 CO 12, ¶ 43. Unlike in Madrid, the district

26
court here did not permit additional argument or consider any new

justification offered by the prosecution for the strike on remand;

rather, it based its findings on the existing trial record and its own

notes on jury selection. Nothing in Johnson or Craig prohibits the

district court from relying on its own impressions and notes from

the time of trial, and in this instance, as discussed below, the

record supports the court’s additional findings. We thus reject

Walker’s argument that those findings should be disregarded as “ad

hoc justification[s]” simply because they include information that

was not previously stated by the court.

¶ 59 The record on remand reflects that the district court weighed

all of the pertinent circumstances, and it supports the court’s

conclusion regarding purposeful discrimination. See Johnson, ¶ 52.

The court considered the prosecutors’ demeanor and found both to

be “forthright and assured,” noting that the prosecutors “responded

quickly and without hesitation” to the Batson challenge and that

the prosecutor’s statement that he did not know what Juror 59

looked like was credible given the layout of the courtroom. The

court also found that the proffered race-neutral explanation referred

to a “genuine trial strategy” of removing jurors who might be “more

27
rigid and exacting” in their thinking. Finally, the court found that

the prosecutor’s objection to the removal of Juror 60 did not lead it

to believe that the race-neutral reason for striking Juror 59 was

pretextual, for two reasons. First, the prosecutors had already

exercised three other peremptory challenges on teachers and

engineers.1 And second, it was common in the court’s experience

for prosecutors to be concerned about preserving “a large enough

jury pool for a full exercise of peremptory challenges for both sides.”

¶ 60 We thus discern no error in the court’s decision to deny

Walker’s Batson challenge.

C. Juror’s Contact with a Detective

¶ 61 Walker asserts that the district court reversibly erred by

allowing a juror to continue serving on the jury after she had

contact with a detective who later testified. We are not persuaded.

1 Walker claims that nothing in the appellate record identifies those

three jurors as teachers or engineers. But the sealed portion of the
record, which is part of the appellate record, contains the juror
questionnaires indicating the jurors’ occupations and other
personal information.

28
1. Additional Facts

¶ 62 On the third day of trial, one of the prosecutors informed the

court that a detective who was scheduled to testify might have had

contact with a juror. The prosecutor read the following email from

the detective:

On Tuesday, 12/7 evening, I had a friendly
encounter in our parking structure with a lady
who mentioned she had been selected for a
jury this week. She actually couldn’t find her
car. I identified myself to her and offered
assistance finding her car by giving her a ride
in my assigned vehicle. We quickly found her
car and that ended our interaction.

She didn’t mention, and I didn’t ask, what case
she was selected for. We didn’t talk about
anything except finding her car. . . .

Yesterday at lunch I passed her on the street,
and she didn’t even seem to notice or recognize
me.

Let me know if you think this person is on the
Walker jury and if there is anything else I need
to do.

¶ 63 The court determined that this juror was on the panel.

Defense counsel requested that she be replaced with an alternate

because of her interaction with the detective. Defense counsel

argued that the detective’s credibility was at issue and, given this

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friendly encounter, the juror might be biased in his favor. The

prosecutor objected, noting that the detective’s expected testimony

would be brief because he would testify only about the collection of

surveillance footage and a receipt from a 7-Eleven.

¶ 64 The court brought the juror in for questioning. The juror

confirmed that the detective had helped her find her car. At that

time, she did not know that he was part of the case and she did not

identify herself as a juror on the case. She did not have a juror

button yet. She estimated that their interaction lasted five to seven

minutes, and while she appreciated the detective’s help, she

indicated she would not have trouble remaining impartial about his

testimony because she did not feel like she knew him. She did not

tell any of the other jurors about the interaction. The court

reserved ruling until after the detective testified.

¶ 65 After the detective testified, the court determined that the

juror did not need to be released. The court noted that defense

counsel had not attacked the detective’s credibility during cross-

examination but instead “boosted” it by eliciting testimony intended

to support the defense theory of the case. It also found that the

contact between the juror and the detective was minimal and that

30
the juror had been “unequivocal in her response that she would still

be able to be fair and impartial” concerning the detective. Given the

“minimal” prejudice, the court denied the request to replace the

juror with an alternate.

2. Governing Law and Standard of Review

¶ 66 “[T]he purpose of seating an alternate juror is to have available

another juror when, through unforeseen circumstances, a juror is

unable to continue to serve.” People v. Christopher, 896 P.2d 876,

879 (Colo. 1995). When an allegation of juror misconduct arises, a

district court must conduct an inquiry. Harper v. People, 817 P.2d

77, 82 (Colo. 1991).

¶ 67 In determining whether to replace the juror with an alternate,

the court must consider, among other things, the juror’s assurance

of impartiality, whether the extraneous communication was

deliberate, and the prejudicial impact of the communication.

Christopher, 896 P.2d at 879. The district court is in the best

position to observe the juror’s demeanor and evaluate whether the

juror is able to serve. People in Interest of D.F.A.E., 2020 COA 89M,

¶ 20. “Absent a showing that the juror was actually biased, we

31
must assume that she followed the court’s instructions and decided

the case based solely on the evidence and the law.” Id. at ¶ 17.

¶ 68 The district court’s decision to not excuse a juror is reviewed

for an abuse of discretion. Id. at ¶ 16. A court abuses its discretion

when its ruling is arbitrary, unreasonable, unfair, or contrary to

law. Id.

3. Discussion

¶ 69 The district court did not abuse its discretion by declining to

excuse the juror because the record supports its finding that the

juror was fair and unbiased. The juror’s contact with the detective

was brief and inadvertent and, at the time of contact, neither was

aware of the other’s involvement in the trial. The juror assured the

court that she would have no trouble remaining impartial because

she did not feel like she knew the detective from their fleeting

encounter. And Walker has not pointed to any evidence showing

that the juror was actually biased as a result of her interaction with

the detective. See Christopher, 896 P.2d at 879. Further, any

residual positive feeling the juror might have harbored toward the

detective would not have prejudiced Walker’s case because the

defense did not attack the credibility of the detective, but rather

32
asked the jury to find the detective credible given that his opinions

supported the defense theory of the case.

¶ 70 Under these circumstances, the district court did not abuse its

discretion by declining to replace the juror with an alternate.

D. Testimony Regarding Presumptive Bloodstains

¶ 71 Walker contends that the district court reversibly erred by

failing to make findings regarding (1) the reliability of expert

testimony about the methods used to detect “presumptive blood”

and (2) whether the expert testimony was unfairly prejudicial under

CRE 403. We perceive no reversible error.

1. Additional Facts

¶ 72 On the fourth day of trial, defense counsel objected to certain

testimony regarding Bluestar, a reagent used to presumptively test

for blood. Counsel argued that Bluestar could “only indicate there’s

a biological material with blood that may be present” and certain

substances could trigger “false positives.” Thus, counsel argued, it

would be improper for the witnesses to testify that certain stains

presumptively tested positive for blood because “further [laboratory]

tests” were necessary “to determine if blood is even present.”

Defense counsel asked that the witnesses be precluded from

33
describing the Bluestar testing as revealing “presumptive blood”

and instead be limited to the term “biological material.” When the

prosecutor disagreed, defense counsel argued that the term

“presumptive blood” was misleading and prejudicial given the lack

of confirmatory testing and requested a Shreck hearing.

¶ 73 The court denied the request for a Shreck hearing, finding that

it was untimely because defense counsel had been on notice about

the Bluestar reagent since the preliminary hearing ten months

before trial but did not request a Shreck hearing until the middle of

trial. The court also found that a hearing was unnecessary because

Walker’s “primary concern” was related to CRE 403 rather than “the

scientific reliability of the principles that gave rise to presumptive

positive tests for the presence of blood.” It found that the probative

value of the Bluestar evidence outweighed any unfair prejudice

given that the Bluestar testimony was meant to highlight why law

enforcement tested only certain pieces of evidence for DNA.

¶ 74 An investigator testified that crime scene investigation involves

evidence documentation and collection. She said that “Bluestar is a

tool that we use to search for latent bloodstains” and that “this is a

34
presumptive tool, meaning it is not confirming that the substance is

blood, it’s just merely a possibility that it is.” She explained:

When we do [Bluestar], we’re looking for
bloodstains that we call latent, and that means
that it’s not visible to the naked eye. So these
are going to be bloodstains that are most likely
cleaned up. In this case, we will mix the
reagent and spray an area in order to see if
there could potentially be a reaction. If there
is, we will collect a swab or a sample.

She testified that because Bluestar reacts to the hemoglobin in

blood, “it is considered a presumptive test specifically for blood,”

but that only a more formal laboratory test could confirm that the

stains that had a Bluestar reaction were, in fact, blood. Her use of

Bluestar revealed that the stains on Walker’s couch cushion, area

rug, and car floorboard and backseat were positive for presumptive

blood. During cross-examination she acknowledged that Bluestar

can react to other substances besides blood, including oil-based

paint and root vegetables.

¶ 75 The serologist/DNA analyst testified that if she received items

from the crime scene investigation that said “Bluestar positive,” she

did not perform any additional presumptive blood testing. But if

certain items with red-brown stains were not labeled as Bluestar

35
positive, she would go ahead and perform a color metric test for

presumptive blood. She said that “presumptive” means that “there

can be false positives, so it’s not a confirmation for blood, but it

does give me some kind of indication as to whether blood is present

or not.” She explained that the purpose of these tests is to “find

samples that are suitable for DNA testing that will hopefully

produce a DNA profile so [that] I can give . . . the Court an idea of

whose DNA might be present on an item of evidence.” She testified

that the presumptive blood samples from certain items collected

from Walker’s house and car and Batson-Robinson’s car contained

DNA that matched the victim’s DNA profile.

2. Standard of Review and Governing Law

¶ 76 We review a district court’s decision about whether to admit

expert witness testimony for an abuse of discretion and “will reverse

only when that decision is manifestly erroneous.” People v. Cooper,

2021 CO 69, ¶ 44 (quoting People v. Rector, 248 P.3d 1196, 1200

(Colo. 2011)).

¶ 77 CRE 702 governs the admission of expert testimony. To

determine whether such testimony is admissible, the trial court

should “focus on the reliability and relevance of the proffered

36
evidence.” People v. Shreck, 22 P.3d 68, 70 (Colo. 2001). The court

must determine “(1) the reliability of the scientific principles

[involved], (2) the qualifications of the witness, . . . (3) the

usefulness of the testimony to the jury,” and (4) whether the

evidence satisfies CRE 403. Id.

¶ 78 A district court’s “CRE 702 determination must be based upon

specific findings on the record as to the helpfulness and reliability

of the evidence.” Id. at 78. The court “must also issue specific

findings as to its consideration under CRE 403 as to whether the

probative value of the evidence is substantially outweighed by its

prejudicial effect.” Id. Absent such specific findings “or a record

not only supporting admission but virtually requiring it or

precluding any reasonable dispute as to the basis of the court’s

admission, the trial court must be considered to have abused its

discretion in admitting expert testimony.” Ruibal v. People, 2018

CO 93, ¶ 14.

¶ 79 A district court’s decision to admit expert testimony is

reviewed under the nonconstitutional harmless error standard. Id.

at ¶ 17; People v. Wilson, 2013 COA 75, ¶ 24. An error is harmless

if a reviewing court can say with fair assurance that, in light of the

37
entire record, the error did not substantially influence the verdict or

impair the fairness of the trial. Wilson, ¶ 24.

3. Discussion

¶ 80 Walker argues that the district court “failed to make any

findings on the record that either Bluestar utilized by [the

investigator] or the ‘color metric test’ utilized by [the serologist/DNA

analyst] were reliable and not unfairly prejudicial.”

¶ 81 First, the district court did not abuse its discretion by failing

to make findings on the reliability of Bluestar or the color metric

test. In Rector, 248 P.3d at 1201-02, the supreme court held that

the trial court was under no obligation to conduct a hearing or

make specific findings regarding the reliability and potential

prejudice of expert testimony under Shreck when no such objection

was raised in the trial court. “In deciding whether a determination

of admissibility requires a Shreck inquiry,” the court explained, “a

trial court must consider the issues as framed in the motion before

it” and “cannot be expected to intuit the challenge brought by the

parties.” Id. at 1201. Noting that the defendant “chose to fashion

the request for a Shreck hearing generally” and did not “submit a

subsequent request for a Shreck analysis on the reliability or

38
potential prejudice of [the witness’s] testimony,” the court held that

the trial court did not abuse its discretion when it denied the

defendant’s Shreck motion. Id. at 1202.

¶ 82 Here, the district court stated that, although defense counsel

had requested a Shreck hearing, the court “really was left with an

impression from the [d]efense [that] the primary concern was a

[CRE] 403 analysis rather than [the] scientific reliability of the

principles that gave rise to presumptive positive tests for the

presence of blood.” In response, defense counsel confirmed the

court’s understanding, stating that the “[d]efense’s position is that

this is a [CRE] 403 issue.” Specifically, defense counsel argued that

it was improper for the prosecution’s witnesses to use the term

“presumptive blood” because it was misleading and prejudicial

under CRE 403 since no confirmatory tests were performed. Thus,

the district court did not abuse its discretion by failing to make

findings regarding the reliability of the Bluestar or color metric

tests.

¶ 83 Second, contrary to Walker’s contention, the district court did

make findings under CRE 403. The court noted that the

presumptive tests were accompanied by DNA testing that showed

39
that the victim’s DNA was present in the stains and that this

additional testing furthered the probative value of the testimony

about presumptive blood. The evidence was further probative and

helpful to the jury because the Bluestar evidence helped explain

why law enforcement chose to send certain items for DNA testing.

And the court acknowledged defense counsel’s concern regarding

prejudice by limiting the language witnesses could use: the

witnesses were not permitted to refer to the stains as “bloodstains”

but rather had to qualify that the stains were “presumptive blood.”

Accordingly, the district court found that the probative value of the

expert testimony outweighed any unfair prejudice.

¶ 84 Finally, any possible error in admitting the testimony about

“presumptive blood” was harmless. The investigator testified that

Bluestar is “a presumptive tool, meaning it is not confirming that

the substance is blood, it’s just merely a possibility that it is.”

Likewise, the serologist/DNA analyst said that “presumptive” means

that “there can be false positives, so it’s not a confirmation for

blood, but it does give me some kind of indication as to whether

blood is present or not.” And defense counsel conducted thorough

cross-examination on the fact that the tests could not identify when

40
a presumptive bloodstain was created or whether the stain was

definitely blood.

¶ 85 For all of these reasons, we conclude that the district court did

not reversibly err by admitting the testimony about “presumptive

blood.”

E. Exclusion of Sex Work Evidence

¶ 86 Walker contends that the district court reversibly erred by

precluding him from cross-examining law enforcement witnesses

about the victim’s history as a sex worker and their investigation of

a man whom she met through an escort service website. We

disagree.

1. Additional Facts

¶ 87 During the investigation, law enforcement discovered that, in

the week leading up to her death, the victim had a significant

amount of communication with a man through an escort service

website. Law enforcement interviewed the man but cleared him as

a suspect because his cellular data supported his alibi that he was

not in El Paso County when the victim was killed.

¶ 88 Before trial, the prosecution filed a motion in limine to exclude

evidence that the victim had engaged in sex work through the

41
escort service website. In response, defense counsel argued that

she had the right to question law enforcement’s “investigation, lack

of follow-up, [and] lack of due diligence.” She explained that, while

law enforcement interviewed the man and investigated his cell

phone records, the man could have left his phone at home at the

time of the crime, and law enforcement did not take further steps to

clear the man as a suspect.

¶ 89 The court granted the prosecution’s motion in limine to

exclude evidence of the victim’s sex work and affiliation with the

escort service website, finding that the evidence was generally

irrelevant and that, under CRE 403, any “marginal[]” relevance was

substantially outweighed by the danger of unfair prejudice and

confusion of the issues.

2. Standard of Review and Governing Law

¶ 90 The scope and limits of cross-examination are matters within

the district court’s sound discretion. People v. Conyac, 2014 COA

8M, ¶ 91. Absent a showing of an abuse of that discretion, we will

not disturb the district court’s evidentiary ruling. Id.

¶ 91 Although a criminal defendant is “entitled to all reasonable

opportunities to present evidence that might tend to create doubt as

42
to the defendant’s guilt,” the right to present a defense “is generally

subject to, and constrained by, familiar and well-established limits

on the admissibility of evidence.” People v. Elmarr, 2015 CO 53,

¶¶ 26-27.

¶ 92 Under CRE 403, relevant evidence may be excluded when its

probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury. CRE

403. When reviewing a district court’s ruling under CRE 403, we

give the evidence the maximum probative value attributable to it by

a reasonable fact finder and the minimum unfair prejudice that

may be reasonably expected from it. People v. Vanderpauye, 2023

CO 42, ¶ 59.

¶ 93 However, an erroneous evidentiary ruling may rise to the level

of constitutional error if it deprived the defendant of any meaningful

opportunity to present a complete defense. Conyac, ¶ 93. “A

defendant’s right to present a defense is violated only where the

defendant was denied virtually his only means of effectively testing

significant prosecution evidence.” Id.

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3. Discussion

¶ 94 We conclude that the district court did not abuse its discretion

by excluding the evidence under CRE 403. Walker specifically

sought to introduce evidence that the victim was a sex worker who

used an escort service website to meet a client. This evidence was

highly inflammatory and unfairly prejudicial because it impugned

the victim’s character. And the probative value of the evidence was

low. Walker conceded that he was not offering the evidence as an

alternative suspect defense. Instead, the evidence was offered as

part of a general denial defense questioning the police investigation

for the “lack of follow-up” and “lack of due diligence.” Accordingly,

the district court did not abuse its discretion by finding that the

“marginal[]” relevance of the evidence was substantially outweighed

by the danger of unfair prejudice and confusion of the issues.

¶ 95 Nor are we persuaded by Walker’s argument that the district

court’s ruling deprived him of the right to present a defense. The

record shows that the defense explored the weaknesses of the police

investigation throughout the trial. The defense attacked the

credibility of the fiancee and Batton-Robinson by pointing out that

they had taken plea deals in exchange for their testimony and that

44
the fiancee gave six different statements to the police. Thus, Walker

was not “denied virtually his only means of effectively testing

significant prosecution evidence” by the court’s exclusion of

inflammatory testimony about the victim’s history as a sex worker

and her use of an escort service website. Conyac, ¶ 93.

F. Cumulative Error

¶ 96 Walker contends that the numerous alleged errors, when

taken together, show that he did not receive a fair trial. “For

reversal to occur based on cumulative error, a reviewing court must

identify multiple errors that collectively prejudice the substantial

rights of the defendant, even if any single error does not.” Howard-

Walker v. People, 2019 CO 69, ¶ 25. Having assumed at most two

errors for the purpose of our analysis, neither of which individually

warranted reversal, we further conclude that the errors did not

“collectively prejudice the substantial rights” of Walker to the extent

that we should reverse his first degree murder conviction. See id.

III. Disposition

¶ 97 The judgment is affirmed.

JUDGE DUNN and JUDGE MOULTRIE concur.

45