2025 CO 42M, 10SA157, People v. Ray (Modified Opinion)

The opinion summaries are not part of the Colorado Supreme
Court’s opinion. They have been prepared solely for the reader’s
convenience. As such, they may not be cited or relied upon. If
there is any discrepancy between the language in the summary
and the opinion, the language in the opinion controls.
ADVANCE SHEET HEADNOTE
June 23, 2025
AS MODIFIED September 8, 2025
2025 CO 42M
No. 10SA157, People v. Ray—Res Gestae—Other Misconduct By Accused—
Other Misconduct Showing Motive—Character of Accused—Impeachment
Evidence—Character of Victim—Victim Impact Evidence—Victim Fear
Evidence—In-Life Photographs—Hearsay—Hearsay>Exceptions to Hearsay
Rule>Excited Utterance—Hearsay>Exceptions to Hearsay Rule>Then-Existing
State of Mind or Body—Hearsay>“Catch-all” or Residual Exception—“Opening
the Door”—Prosecutorial Misconduct—Appeals to Sympathy or
Prejudice>Appeals to Racial or Other Prejudice—Presumption of Innocence—
Rebuttal Argument—Harmless Error—Plain Error—Cumulative Error—
Misconduct of or Affecting Jurors>Considering Matters Not In Evidence—
Extraneous Prejudicial Information—Separation of Powers>Judicial Powers
and Functions>Encroachment on Executive>Pardon and Parole—Cruel and
Unusual Punishment.
In this direct appeal, the defendant asserts that the district court erred by
admitting uncharged misconduct evidence as res gestae, witness- and victim-fear
evidence, victim-impact evidence during the guilt phase of trial, and positive
evidence of the homicide victims’ characters. He also asserts that the prosecution
engaged in numerous instances of misconduct, which violated his right to a fair
trial. He further contends the district court erred by denying his request to
subpoena jurors to investigate allegations of juror misconduct during

deliberations. And finally, the defendant challenges his sentences of life without
the possibility of parole as unconstitutional under the Eighth Amendment.
The supreme court concludes that although the district court erred in some
ways, none of those errors, individually or cumulatively, warrant reversal.
Similarly, although some of the prosecution’s comments were improper, none of
them constitutes reversible misconduct. The supreme court further concludes that
the district court properly denied inquiry into alleged juror misconduct under
CRE 606(b). And lastly, the court holds that the defendant’s sentences are
constitutional.
The supreme court therefore affirms the judgment of conviction and
sentence.

The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2025 CO 42M
Supreme Court Case No. 10SA157
Appeal from the District Court
Arapahoe County District Court Case No. 06CR697
Honorable Gerald J. Rafferty, Judge
Plaintiff-Appellee:
The People of the State of Colorado,
v.
Defendant-Appellant:
Robert Keith Ray.
Judgment and Sentence Affirmed
en banc
June 23, 2025
Opinion modified, and as modified, petition for rehearing DENIED. EN BANC.
September 8, 2025
Attorneys for Plaintiff-Appellee:
Philip J. Weiser, Attorney General
Katharine Gillespie, Senior Assistant Attorney General
Carmen Moraleda, Senior Assistant Attorney General
Denver, Colorado
Attorneys for Defendant-Appellant:
Elisabeth Hunt White
Boulder, Colorado
Johnson & Klein, PLLC

2
Gail K. Johnson
Eric K. Klein
Boulder, Colorado
JUSTICE HOOD delivered the Opinion of the Court, in which CHIEF JUSTICE
MÁRQUEZ, JUSTICE BOATRIGHT, JUSTICE GABRIEL, JUSTICE HART,
and JUSTICE BERKENKOTTER joined.
JUSTICE SAMOUR did not participate.

3
JUSTICE HOOD delivered the Opinion of the Court.
¶1 Javad Marshall-Fields and his fiancée, Vivian Wolfe, were killed in a drive-
by shooting (“the Dayton Street shooting”), just eight days before Marshall-Fields
was expected to testify against Robert Keith Ray. Marshall-Fields had identified
Ray as the getaway driver in another shooting at Lowry Park the year before (“the
Lowry Park shooting”).
¶2 Ray was eventually charged with numerous offenses related to the Dayton
Street shooting, and a jury found him guilty of nearly all of them. The district
court entered the judgment of conviction, and following a separate sentencing
trial, sentenced Ray to death. Pursuant to the unitary review process then in effect,
Ray appealed his convictions and sentences related to the Dayton Street shooting
directly to this court. See §§ 16-12-201 to -210, C.R.S. (2024); Crim. P. 32.2. This
opinion addresses that appeal.
¶3 The Colorado General Assembly subsequently abolished the death penalty,
and in March 2020, Governor Jared Polis commuted Ray’s capital sentence to a
sentence of life without the possibility of parole (“LWOP”). Although we
determined that the unitary review process no longer applied in this case, we
chose to retain jurisdiction over the appeal. And, having reviewed Ray’s
challenges to his convictions and LWOP sentence, we now affirm.

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I. Facts and Procedural History
¶4 Ray was charged with twenty-one counts related to the Dayton Street
shooting, which included two counts of first degree murder for the deliberate
killing of Marshall-Fields and Wolfe.1 The prosecution’s theory of the case was
that Ray had conspired with others to prevent witnesses of the Lowry Park
shooting from testifying in that trial, and that conspiracy culminated in the
murders of Marshall-Fields and Wolfe. To understand the full context of Ray’s
trial for the Dayton Street shooting, we must therefore begin with the Lowry Park
shooting.
A. The Lowry Park Shooting
¶5 On July 4, 2004, Marshall-Fields and Gregory Vann hosted a barbecue and
rap battle at Lowry Park. The event was well attended, and a large crowd gathered
at the park throughout the afternoon and evening. As the event wound down,
Marshall-Fields and Vann noticed an altercation in a parking lot adjacent to the
1 Ray was also charged with two counts of second degree murder, naming
Marshall-Fields and Wolfe as victims; one count of conspiracy to commit murder;
three counts of solicitation to commit murder; two counts of aggravated
intimidation of a witness and two counts of retaliation against a witness, naming
Marshall-Fields and Wolfe as victims; three counts of intimidating a witness,
naming Marshall-Fields, Teresa Riley, and LaToya Sailor Ray as victims; one count
of unlawful distribution of a controlled substance; one count of bribing a witness,
naming Marshall-Fields as the victim; one count of violating bail bond conditions;
one count of violating a restraining order; and two crime-of-violence sentence
enhancers.

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park and went over to investigate. During the ensuing confrontation, Ray’s friend,
Sir Mario Owens, shot and killed Vann, and Ray shot Marshall-Fields and Vann’s
brother, Elvin Bell. Ray and Owens then fled in Ray’s Suburban.
¶6 Ray and Owens sought to conceal their involvement in these shootings.
With the help of Ray’s wife, LaToya Sailor Ray (“Sailor”), and others, Ray and
Owens disposed of certain evidence that might have connected them to the
shootings (e.g., the Suburban, guns, and clothes). Owens also cut off his braids to
change his appearance after he learned that a witness had described Vann’s
shooter as having braids. The two men spent the next several days in hiding.
¶7 Meanwhile, the police attempted to identify the Lowry Park shooters. With
the help of several witnesses, the police soon identified Ray as the driver of the
Suburban and arrested him as an accessory to the Lowry Park shooting. While
awaiting his trial on bond, Ray reviewed a discovery packet with Owens and
Sailor. From this discovery packet, they learned that two witnesses—Marshall-
Fields and Askari Martin—had identified Ray as the getaway driver from the
Lowry Park shooting. There was nothing in the packet to indicate that the police
had identified the individual who shot Vann. Ray, Owens, and Sailor then began
referring to Marshall-Fields and Martin as “snitches” and made comments to the
effect that “snitches do not live long” and “snitches die.”

6
¶8 Around this same time, Ray told his friend Jamar Johnson to offer $10,000
to both Marshall-Fields and Martin in exchange for them not testifying. Ray also
told Johnson that if the bribes didn’t work, he’d pay Johnson $10,000 to kill them
both. A few months later, Ray again offered Johnson $10,000 to bribe or kill just
Marshall-Fields because by then, Martin had approached Ray and told him he
didn’t want to “snitch” and that, although the prosecution was trying to force him,
he wasn’t going to testify. Ray also told Sailor he wasn’t worried about Martin
testifying anymore. Ray continued to worry, however, about Marshall-Fields’s
testimony, which would place him behind the wheel of the Suburban at the Lowry
Park shooting.
¶9 On June 19, 2005—eight days before Ray’s Lowry Park trial—Sailor went to
a Father’s Day barbecue at a park. Ray called and asked if she’d seen Marshall-
Fields at the park. She said she had, and Ray and Johnson arrived soon after. They
saw Marshall-Fields and watched him leave the park. Ray told Johnson that
Marshall-Fields was still planning to testify and that he would “take things into
[his] own hands.”
¶10 Later that same day, Ray and Owens were out with their friends, Parish
Carter and Checados Todd, when they saw Marshall-Fields’s car at Gibby’s, a local
sports bar. Carter went into the bar and told Marshall-Fields, “They’re looking for

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you in the street, homie.” The next day, June 20, 2005, Marshall-Fields and Wolfe
were killed in a drive-by shooting on Dayton Street in Aurora.
¶11 Despite the Dayton Street double murder, Ray’s Lowry Park trial proceeded
as scheduled. In November 2006, the jury acquitted Ray of Vann’s murder and the
attempted murder of Jeremy Green (another bystander at the Lowry Park
shooting), but it convicted him of attempted first degree murder and first degree
assault of Bell and Marshall-Fields, and as an accessory to Vann’s first degree
murder. The court sentenced Ray to 108 years imprisonment for his Lowry Park
crimes.
¶12 After the Dayton Street shooting, witnesses finally identified Owens as the
person who had shot and killed Vann at Lowry Park. As a result, Owens was
charged and ultimately convicted of numerous offenses related to the Lowry Park
shooting, including Vann’s murder.
B. The Dayton Street Shooting
¶13 Meanwhile, the investigation of the Dayton Street shooting was underway.
Police officers had identified Owens as the Dayton Street shooter. Ray, however,
had an alibi for that shooting: He stopped by a barbecue Sailor was hosting at her
house and then went with her neighbor to a liquor store. Still, a grand jury
indicted both Ray and Owens for the Dayton Street shooting. The men were tried
separately.

8
¶14 At Ray’s trial, the prosecution’s theory of the case was that, after Ray’s
attempts to intimidate and bribe Marshall-Fields to prevent him from testifying in
the Lowry Park trial failed, Ray conspired with Owens and Carter to kill Marshall-
Fields. The prosecution argued that Ray wanted to avoid going to prison for the
Lowry Park shooting because he was running a lucrative illegal drug business that
he didn’t want to lose.
¶15 After lengthy trial proceedings related to the Dayton Street shooting, a jury
convicted Ray of all charges except for three witness intimidation counts. The jury
then found that a capital sentence was appropriate for Ray’s role in Marshall-
Fields’s murder. The district court sentenced Ray to consecutive sentences of
(1) death for murdering Marshall-Fields, (2) LWOP for murdering Wolfe, and
(3) an aggregate 155 years in prison on the remaining counts.
II. Analysis
¶16 Ray now appeals his Dayton Street convictions and the resulting LWOP
sentence to this court. He contends that the trial court made numerous evidentiary
errors, including admitting a large amount of uncharged misconduct evidence
under the now-defunct res gestae doctrine. He also challenges the court’s
admission of, among other things, witness- and victim-fear evidence, victim-
impact evidence, and positive evidence of Marshall-Fields’s and Wolfe’s character.
Ray further alleges that the prosecution improperly appealed to the jurors’

9
sympathies and biases, improperly referenced the grand jury indictment, and
undermined the presumption of innocence. He argues that these errors, either in
isolation or cumulatively, warrant reversal. Although we agree with Ray that the
trial court made several evidentiary errors, we ultimately conclude that they don’t
warrant reversal.
¶17 We also reject Ray’s contention that the district court erred by refusing to
allow Ray to subpoena jurors to testify about alleged juror misconduct during
deliberations. Finally, we reject Ray’s claim that his LWOP sentence is
unconstitutional.
¶18 We address each of Ray’s contentions in turn, discussing additional
procedural or background facts as needed.
A. Evidentiary Issues
¶19 We start by briefly identifying the applicable standards of review and
general relevancy principles. Trial courts have broad discretion to determine the
admissibility of evidence, and we review those rulings for an abuse of discretion.
Davis v. People, 2013 CO 57, ¶ 13, 310 P.3d 58, 61–62. A court abuses its discretion
if its decision is manifestly arbitrary, unreasonable, or unfair, or if it misapplies the
law. People v. Montoya, 2024 CO 20, ¶ 47, 546 P.3d 605, 616.
¶20 When an error is preserved by a contemporaneous objection, we generally
consider whether the error warrants reversal under a harmless error standard. Id.

10
An error is harmless if it doesn’t substantially influence the jury’s verdict or affect
the fairness of the trial proceedings. Id.; see also Crim. P. 52(a). To analyze such
harm, we may consider “factors like evidentiary cross-admissibility, the
appropriateness of jury instructions, and whether there is any indication that the
jury blended the issues in considering their verdict.” Washington v. People, 2024
CO 26, ¶ 23, 547 P.3d 1087, 1092. If the error is unpreserved, however, we review
for plain error. Hagos v. People, 2012 CO 63, ¶ 14, 288 P.3d 116, 120; see also Crim.
P. 52(b). Under this standard, we will reverse only if the error is obvious,
substantial, and so undermined the trial’s fundamental fairness as to cast serious
doubt on the reliability of the conviction. Hagos, ¶ 14, 288 P.3d at 120.
¶21 Generally, all relevant evidence is admissible. CRE 402. “‘Relevant
evidence’ means evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” CRE 401. However, even
relevant evidence may be excluded if the risk of unfair prejudice substantially
outweighs its probative value. CRE 403.
¶22 With these standards and rules in mind, we unpack the law governing the
admission of uncharged misconduct evidence and apply it to Ray’s contentions of
error.

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1. Uncharged Misconduct Evidence
¶23 On appeal, Ray asserts that the trial court erred by admitting “significant”
evidence of uncharged misconduct. He specifically challenges the court’s
admission of evidence related to (1) the Lowry Park shooting; (2) threats Ray
allegedly made against Brandi Taylor (his brother’s girlfriend) and Askari Martin
(one of the Lowry Park witnesses who had identified Ray as the getaway driver);
(3) an altercation with Sailor in which she suffered a black eye; (4) threats Ray
allegedly made against Lowry Park witness Teresa Riley’s son; and (5) Ray’s
alleged drug dealing before 2005. (The drug offenses charged in the current case
allegedly occurred between January and June 2005.)
¶24 The trial court found that the Lowry Park evidence was admissible as res
gestae but ruled that any such evidence admitted at trial must be accompanied by
a limiting instruction.2 The court also found that evidence of the threats against
Martin and Taylor3 and the incident involving Sailor’s black eye was admissible
as res gestae.
2 Many of the pretrial motions, hearings, and orders addressed Owens, Ray, and
Carter at the same time. However, because Owens’s trial was scheduled to go first,
the court often addressed the issues as to Owens and then later either adopted or
incorporated those rulings as to the other defendants.
3 It is the parties’ duty to identify where in the record the ruling or order they seek
to have us review is located. C.A.R. 28(a)(7). But the parties failed to identify
where the trial court provided its reason for admitting the evidence containing the
threats against Taylor, and although we aren’t required to scour the record for

12
¶25 The trial court admitted evidence related to the threats against Riley’s son
as impeachment evidence. And lastly, the court admitted evidence related to
Ray’s alleged drug dealing before 2005 under CRE 404(b).
a. Res Gestae Evidence
¶26 To understand the common law res gestae doctrine, it helps to first examine
the modern rule governing the admissibility of uncharged misconduct evidence:
CRE 404(b). Rule 404(b)(1) provides that evidence of other crimes, wrongs, or acts
isn’t “admissible to prove a person’s character in order to show that on a particular
occasion the person acted in conformity with the character.” But this evidence
may be admissible if offered for another purpose, “such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.” CRE 404(b)(2). The prosecution must provide pretrial written
notice of its intent to introduce such evidence, specifying “the permitted purpose
for which the prosecution intends to offer the evidence and the reasons supporting
that purpose.” People v. Owens, 2024 CO 10, ¶ 111, 544 P.3d 1202, 1227; see also
CRE 404(b)(3). The court then determines whether the evidence is admissible by
applying the four-prong test outlined in People v. Spoto, 795 P.2d 1314, 1318–19
such information, we have looked and haven’t found a clear ruling. So, we will
review the court’s admission of these threats as if they were admitted under the
res gestae doctrine. See People v. Notyce, 2014 COA 52, ¶ 4, 328 P.3d 302, 303.

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(Colo. 1990). If the court determines the uncharged misconduct evidence is
admissible, and if requested by the defendant, the court must
“contemporaneously instruct the jurors of the limited purpose for which the
evidence may be considered.” Rojas v. People, 2022 CO 8, ¶ 27, 504 P.3d 296, 305;
see also CRE 105.
¶27 At the time of Ray’s trial, Colorado also embraced the longstanding res
gestae doctrine as an alternate theory of admissibility for uncharged misconduct
evidence. Under this doctrine, such evidence was admissible without adhering to
Rule 404(b)’s strictures if the evidence was “incidental to a main fact and
explanatory of it, including acts and words which are so closely connected
therewith as to constitute a part of it, and without a knowledge of which the main
fact might not be properly understood.” Rojas, ¶ 18, 504 P.3d at 302 (quoting
Denver City Tramway Co. v. Brumley, 116 P. 1051, 1052 (Colo. 1911)).
¶28 While Ray’s appeal was pending, we abolished the res gestae doctrine. Id.
at ¶¶ 1–4, 504 P.3d at 300–01. In Rojas, we concluded that this amorphous and
unpredictable doctrine had become “a breeding ground for confusion,
inconsistency, and unfairness.” ¶ 3, 504 P.3d at 301. The Colorado Rules of
Evidence, we reasoned, suffice to evaluate the admissibility of uncharged
misconduct evidence. Id. at ¶¶ 39–41, 504 P.3d at 307. While we can’t fault the
trial court for failing to foresee this development, “we generally apply the law in

14
effect at the time of appeal,” and so we must conclude that the trial court abused
its discretion by admitting any evidence under this now-abolished doctrine.
Owens, ¶ 112, 544 P.3d at 1228.
¶29 But just because the uncharged misconduct evidence wasn’t admissible as
res gestae doesn’t mean it wasn’t admissible at all. And even if some of this
evidence was inadmissible, the court’s error in admitting it may have been
harmless. We must consider both possibilities in deciding whether the trial court’s
admission of res gestae evidence justifies reversal. See People v. Eppens, 979 P.2d
14, 22 (Colo. 1999) (explaining that an appellate court may affirm “on any ground
supported by the record, regardless of whether that ground was relied upon or
even contemplated by the trial court”).
¶30 So, we begin by considering whether Rule 404(b) could have provided an
alternative basis for admission. In Rojas, we explained that, when “evaluating
whether uncharged misconduct evidence triggers Rule 404(b), a trial court must
first determine if the evidence is intrinsic or extrinsic to the charged offense.” ¶ 52,
504 P.3d at 309. Intrinsic acts are limited to “(1) those that directly prove the
charged offense and (2) those that occur contemporaneously with the charged
offense and facilitate the commission of it.” Id. at ¶ 44, 504 P.3d at 308. All other
acts are extrinsic.

15
¶31 Evidence of intrinsic acts is exempt from Rule 404(b)—because it is
essentially evidence of charged misconduct—and courts should consider its
admissibility under the general rules of relevance and prejudice. Id. at ¶ 52,
504 P.3d at 309; see also CRE 401–403. The same goes for evidence of extrinsic acts
that don’t suggest the defendant’s bad character. Rojas, ¶ 52, 504 P.3d at 309. If,
however, the extrinsic-acts evidence suggests that the defendant has a bad
character and that he acted in conformity with that bad character in this instance,
it is admissible “only as provided by Rule 404(b) and after a Spoto analysis.” Id.
¶32 Under Spoto, courts must consider whether the evidence (1) relates to a
material fact and (2) is logically relevant (3) independent of the prohibited
inference that the defendant has a bad character and acted in conformity with that
character in this instance, and (4) whether the risk of unfair prejudice substantially
outweighs the evidence’s probative value. 795 P.2d at 1318–19; see also Owens,
¶ 110, 544 P.3d at 1227.
¶33 A material fact is one “that is of consequence to the determination of the
action.” Fletcher v. People, 179 P.3d 969, 974 (Colo. 2007) (quoting CRE 401).
Material facts include both (1) “ultimate facts,” such as the elements of the offense,
and (2) “intermediate facts,” meaning facts that are probative of ultimate facts.
Yusem v. People, 210 P.3d 458, 464 (Colo. 2009); accord People v. Rath, 44 P.3d 1033,
1040 (Colo. 2002). In considering whether uncharged misconduct evidence is

16
relevant to a material fact, we consider “not the substance of the prior act evidence,
but the fact in the case for which the evidence is offered to prove.” Yusem, 210 P.3d
at 464.
¶34 Once the court has identified a material fact, it must determine if the
uncharged misconduct evidence is logically relevant to that fact. In other words,
does the uncharged misconduct evidence have some tendency to make the
existence of that material fact more or less probable than it would be without the
evidence? See Owens, ¶ 110, 544 P.3d at 1227. If the answer is yes, the court
continues to Spoto’s third prong.
¶35 “The third prong of the Spoto test does not demand the absence of the
[prohibited] 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) (emphasis added); see also Rath, 44 P.3d at 1038 (“[T]he evidence must be
probative for some logical reason other than ‘that the defendant committed the
crime charged because of the likelihood that he acted in conformity with his bad
character.’” (quoting Spoto, 795 P.2d at 1318)). In other words, “the evidence
cannot be relevant only to show a propensity to commit crimes.” People v. Cross,
2023 COA 24, ¶ 21, 531 P.3d 444, 449 (quoting People v. Denhartog, 2019 COA 23,
¶ 42, 452 P.3d 148, 157).

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¶36 In considering Spoto’s fourth prong, “[u]nfair prejudice occurs . . . if
otherwise admissible evidence has ‘an undue tendency to suggest a decision
[made] on an improper basis,’ which is ‘commonly but not necessarily an
emotional one, such as sympathy, hatred, contempt, retribution, or horror.’”
People v. Cousins, 181 P.3d 365, 370 (Colo. App. 2007) (second alteration in original)
(quoting People v. Dist. Ct., 785 P.2d 141, 147 (Colo. 1990)). On appeal, we “must
afford the evidence the maximum probative value attributable by a reasonable fact
finder and the minimum unfair prejudice to be reasonably expected.” Nicholls v.
People, 2017 CO 71, ¶ 56, 396 P.3d 675, 687.
¶37 We now apply these principles to the trial court’s rulings.
i. Lowry Park Evidence
¶38 Ray preserved his objection to the admission of the Lowry Park evidence
through pretrial motions and hearings. Thus, we review the trial court’s erroneous
admission of this evidence as res gestae for harmless error. In doing so, we
consider whether the Lowry Park evidence would have been admissible under
Rule 404(b). Thus, we begin with Rojas’s threshold intrinsic–extrinsic inquiry and
then turn to Spoto’s four-part test as necessary to evaluate extrinsic evidence.
¶39 As we observed in Owens, “[t]he Lowry Park shootings did not directly
prove, nor did they occur contemporaneously with, the Dayton Street shooting[],”
so the Lowry Park evidence was extrinsic to the Dayton Street charges. ¶ 115,

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544 P.3d at 1228; see also Rojas, ¶ 52, 504 P.3d at 309. And because the Lowry Park
evidence could impermissibly suggest that Ray had a bad character and acted in
conformity with that character in this instance (i.e., he shot someone before, so he
likely orchestrated the Dayton Street shooting), Rule 404(b) and Spoto applied. See
Rojas, ¶ 52, 504 P.3d at 309.
¶40 So, we must consider whether the Lowry Park evidence related to a material
fact in the Dayton Street case. The prosecution argued that this evidence was
relevant “to establish the identities and roles of Ray and Owens in the [Dayton
Street] shooting as well as their guilty knowledge and [to] form the basis of their
motive to kill Marshall-Fields,” and it was therefore admissible to show that
“[w]hat would otherwise seem like a completely random drive-by shooting
actually has a context where Mr. Owens has a relationship with Mr. Javad
Marshall-Fields because of the July 4 murder of Gregory Vann.” (Emphasis added.)
¶41 “‘[M]otive is always relevant’ to establish whether the defendant committed
the charged act and why, and may also explain otherwise unexplainable
behavior.” People v. Delsordo, 2014 COA 174, ¶ 14, 411 P.3d 864, 867 (quoting
Wagman v. Knorr, 195 P. 1034, 1035 (Colo. 1921)). And Rule 404(b) expressly
provides that uncharged misconduct evidence may be admissible to prove motive.
Thus, because the Lowry Park evidence was relevant to show motive for the
Dayton Street shooting, it was logically relevant to a material fact. See id. at ¶ 17,

19
411 P.3d at 868 (recognizing that uncharged misconduct evidence may be relevant
if it tends to show that the defendant committed a second crime to avoid capture
for the initial crime).
¶42 This logical relevance was also independent of any prohibited propensity
inference. The prohibited inference was that, because Ray had been involved in at
least attempting to kill people before, he was probably involved this time too. But
the Lowry Park evidence’s relevance was independent of that inference because it
showed how the Lowry Park and Dayton Street shootings were connected and
explained how the first incident provided the motive for the second. See Rath,
44 P.3d at 1040 (explaining that motive, while not itself an ultimate fact, is among
the “well-accepted methods of proving the ultimate facts necessary to establish the
commission of a crime, without reliance upon an impermissible inference from
bad character”).
¶43 Lastly, we must balance the probative value of the Lowry Park evidence
against any unfair prejudice it could have introduced. This is the trickiest step on
these facts. There’s no doubt that the Lowry Park evidence was highly probative.
It established a motive for the Dayton Street shooting and connected Ray to
Dayton Street when there would otherwise have been no logical connection. But
it also carried a substantial risk that the jurors would confuse the issues and
unfairly assess Ray’s guilt based on the forbidden propensity inference (i.e., he’s a

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violent man who commits violent crimes) or by conflating the strength of the direct
evidence from the Lowry Park shooting with the more circumstantial evidence
from the Dayton Street shooting.
¶44 This final step of the Spoto analysis as to the Lowry Park evidence is further
complicated by the sheer volume of evidence the trial court admitted. That
evidence included about two weeks of testimony by dozens of witnesses,
disturbing photographs and videos, and numerous 911 calls. The deluge of Lowry
Park evidence heightened the potential for the jury to simply infer that Ray was a
violent person with the propensity to commit violent crimes, rather than focus on
the evidence intrinsic to the Dayton Street shooting. The evidence from the Lowry
Park shooting that was necessary to establish Ray’s motive for the Dayton Street
shooting could have been introduced in perhaps two days, rather than through a
multitude of witnesses over two weeks (of a four-week trial).
¶45 Nonetheless, even though we might have made a different decision than the
trial court about how much evidence from the Lowry Park shooting to admit
under Rule 404(b), we conclude that any evidence improperly admitted didn’t
substantially influence the jury’s verdict or render the trial unfair. See Owens,
¶ 117, 544 P.3d at 1228–29; see also Zapata v. People, 2018 CO 82, ¶ 67, 428 P.3d 517,
531.

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¶46 We reach this conclusion for several reasons. First, Ray received ample
notice and an opportunity to be heard on this issue. Before trial, the parties
extensively debated the admissibility of the Lowry Park evidence, and at trial, Ray
was able to cross-examine all the relevant witnesses and to record objections in
front of the jury.
¶47 Second, the court read a limiting instruction to the jurors each time Lowry
Park evidence was discussed or admitted, informing them that the evidence was
“offered for the purpose of establishing background, motive, relationship between
individuals and identification of the Defendant” and reminding them that they
could “consider it only for those purposes” because Ray was “entitled to be tried
for the crimes charged in this case”—which didn’t include any charges related to
the Lowry Park shooting—“and no other.” We assume the jury understood and
followed this instruction. People v. Kembel, 2023 CO 5, ¶ 50, 524 P.3d 18, 28. So,
even though the evidence wasn’t admitted under Rule 404(b), the trial court
essentially provided most of the procedural protections required by that rule.
¶48 Finally, to the extent that some of the Lowry Park evidence that the court
admitted as res gestae wouldn’t have been admissible under Rule 404(b), it was
mostly cumulative. The court could have properly admitted evidence establishing
what happened at Lowry Park. That evidence—whether outlined over two days
or proved at a much more granular level over two weeks—was always going to

22
be disturbing and potentially inflammatory. With that in mind, we conclude that
any incremental unfair prejudice that might have resulted from the cumulative
evidence of the Lowry Park shooting was not enough to substantially influence
the verdict or render the Dayton Street trial unfair overall. In short, the trial court’s
erroneous decision to admit evidence of the Lowry Park shooting as res gestae was
harmless, despite our misgivings about the quantity of evidence it chose to admit.
ii. Threats to Brandi Taylor
¶49 In opening statements, the prosecutor explained that the investigation into
the Lowry Park shooting had run into a “wall of silence”—for more than a year,
no one was willing to talk to the investigators. Things changed when Brandi
Taylor (Ray’s brother’s girlfriend) disclosed what she knew.
¶50 The prosecutor explained that the detective investigating the Dayton Street
shooting had obtained a recorded phone call between Ray and his brother, Dumas
Brown, in which Ray said that Taylor had been talking too much on the street and
was calling Ray a murderer. Ray also told Brown that he had threatened to kill
Taylor. The prosecutor played portions of this recorded phone call for the jury.
He then told the jurors that it was only after the detective played this call for Taylor
that Taylor gave the investigators crucial information about the Lowry Park
shooting and the individuals involved, which ultimately led investigators to the
evidence needed to charge Ray in this case.

23
¶51 The phone call was played twice more at trial: once during Taylor’s
testimony and then again during Sailor’s (Ray’s wife) testimony. Ray objected
both times.
¶52 The threats against Taylor were extrinsic to the charged offenses: they had
nothing to do with Taylor potentially testifying against Ray in his Lowry Park trial
or with the Dayton Street shooting. But because they could suggest that Ray had
a bad character—that is, that he was the sort of person who threatened others—
we consider their admissibility under Rule 404(b) and Spoto.
¶53 Despite the prosecutor’s explanation of the call’s significance during the
opening statement, the prosecution failed to explicitly make that connection
during either witness’s testimony. Still, the call and the threats it contained
provided context for why Taylor was suddenly willing to speak with the police
and how investigators came to suspect Ray in Marshall-Fields’s and Wolfe’s
murders. And the statements Taylor made after hearing those threats, about
hiding Ray’s Suburban in her garage after the Lowry Park shooting, tended to
show that Ray had consistently tried to evade responsibility for his involvement
in the Lowry Park shooting. Therefore, this evidence was logically relevant to one
or more material facts (identity and motive) because it made it more likely that
Ray was involved in the Dayton Street shooting.

24
¶54 The evidence also, however, implicated the prohibited propensity inference
that, because Ray threatened to kill Taylor, he likely made similar threats to other
potential witnesses. And because the prosecution didn’t connect the threats in the
phone call to the subsequent investigation, other than during the opening
statement, the jurors were left to make their own inferences about the evidence.
Under these circumstances, it is debatable whether the relevance of these threats
was truly independent of the prohibited propensity inference.
¶55 Moreover, Ray wasn’t charged with intimidating or threatening Taylor; the
threats weren’t related to her (or anyone else) being a witness; Taylor testified that
she didn’t take Ray’s threats seriously; and no limiting instruction was given when
the call was introduced. So, the probative value of this evidence was substantially
outweighed by the risk that Ray would be unfairly prejudiced by it because of the
likelihood that the jurors would use the prohibited propensity inference to convict
him. We conclude, therefore, that this evidence wasn’t admissible under
Rule 404(b).
¶56 But the prosecutor’s rebuttal closing argument mitigated the potential
prejudice. As she summarized various witnesses’ testimony and the evidence that
had been presented at trial, she said the following:
Brandi Taylor is a bit of a distraction in this case. . . . [Y]eah, she’s
important to the investigation. She’s not overwhelmingly important
to determining the guilt of Mr. Ray in this case. She’s important to

25
the investigation because for the first time law enforcement got a
chink in that wall of silence.
¶57 Although a closing argument isn’t evidence, this comment provided the
missing context and helped to minimize the potential prejudice resulting from this
evidence. Further, the jury rendered a split verdict—it found Ray guilty of
intimidating Marshall-Fields but acquitted him of intimidating Riley and
Sailor—which indicates that the jurors were able to evaluate witness credibility
and thoughtfully weigh the evidence and that they weren’t unduly persuaded by
any propensity inference they may have made. See Washington, ¶¶ 27, 31, 35–36,
547 P.3d at 1093–94. Accordingly, the error was harmless.
iii. Threats to Askari Martin
¶58 Ray objected in pretrial motions and hearings to the admissibility of
evidence showing that he had threatened Martin (a Lowry Park witness who had
identified Ray as the getaway driver) and had solicited anyone to kill Martin. He
also maintained continuing objections to this evidence at trial. So, we review the
trial court’s erroneous admission of this evidence as res gestae for harmlessness,
first addressing whether it was otherwise admissible.
¶59 Ray was charged with conspiring with Owens and Carter to commit murder
and with soliciting Owens, Carter, and Jamar Johnson to commit murder. The
prosecution argued that evidence related to threats Ray allegedly made against
Martin (e.g., calling Martin a snitch and saying things to the effect that snitches

26
should die) was relevant to show motive and to show the scope, nature, and
duration of the conspiracy between Ray and his friends to eliminate Lowry Park
witnesses. Thus, this evidence was intrinsic because it was direct proof of the
charges in this case, and its admissibility was governed by the general rules of
relevance and prejudice. Rojas, ¶ 44, 504 P.3d at 308.
¶60 The threats against Martin were relevant because they made it more likely
that Ray committed the offenses of conspiracy and solicitation. See CRE 401.
Similarly, given that the evidence was direct proof of some of the charges, was
probative of motive, and wasn’t unfairly prejudicial, we conclude that the
probative value was not substantially outweighed by the risk of unfair prejudice.
See Rath, 44 P.3d at 1043 (explaining that unfair prejudice “refers only to ‘an undue
tendency on the part of admissible evidence to suggest a decision made on an
improper basis’ and does not mean prejudice that results from the legitimate
probative force of the evidence” (quoting People v. Gibbens, 905 P.2d 604, 608 (Colo.
1995))).
¶61 Therefore, we conclude that the trial court’s error in admitting this evidence
as res gestae was harmless because it was otherwise admissible, relevant evidence.
iv. Sailor’s Black Eye
¶62 Before trial, the prosecution sought to introduce evidence that Sailor (Ray’s
wife) and Ray had gotten into an argument a few days before the Dayton Street

27
shooting, which resulted in Sailor having a black eye. The prosecution argued the
evidence was relevant because it would (1) help Sailor determine a timeline for the
weekend of the Dayton Street shooting (e.g., she attended one of Ray’s pretrial
hearings in the Lowry Park case that Friday, so the hearing was before this fight
because she wouldn’t have gone to the courthouse with a black eye) and (2) show
Ray’s state of mind that same weekend, which supported the prosecution’s theory
that Ray wasn’t calmly awaiting justice for the Lowry Park shooting but was
nervous and actively plotting to avoid conviction.
¶63 Defense counsel objected, arguing that if the only relevance of Sailor’s black
eye was “to tie time frames,” then the fact of Sailor’s black eye could be admitted
without any evidence about how she got it. Moreover, even accepting that Sailor’s
black eye had some probative value as to Ray’s state of mind the weekend of the
Dayton Street shooting, defense counsel argued it wasn’t enough to overcome the
unfair prejudice.
¶64 The court admitted the black-eye evidence as res gestae of a timeline for the
weekend of the Dayton Street shooting and to explain Sailor and Ray’s
estrangement that same weekend.
¶65 Because Ray objected to admission of this evidence, the issue is preserved,
and we review the court’s error in admitting this evidence as res gestae for
harmlessness. The evidence that Sailor got a black eye during an argument with

28
Ray the weekend of the Dayton Street shooting was extrinsic to the charges in this
case. It also suggested bad character; that is, that Ray was a domestic abuser. So,
we consider admissibility under Rule 404(b) and Spoto.
¶66 Remember, the prosecution argued that Ray masterminded the Dayton
Street shooting because he wanted to avoid prison for his role in the Lowry Park
shooting. So, this evidence had some tendency to show that Ray used his
estrangement from Sailor as a means to establish an alibi—he had receipts and
likely video surveillance from the store where he bought her flowers, several
people then saw him at Sailor’s party trying to make amends, and he spoke to her
neighbor for a while and accompanied the neighbor to a liquor store. Thus, Ray’s
state of mind the weekend before his Lowry Park trial was logically relevant to
material facts (intent, preparation, plan) concerning the Dayton Street conspiracy.
And this logical relevance was independent of the prohibited bad-character
inference.
¶67 In weighing the evidence’s probative value against the risk of unfair
prejudice, however, we agree with defense counsel that the probative value of the
black-eye evidence was substantially outweighed by the danger of unfair
prejudice. The prosecution could have established the same proof by having Sailor
testify that she had a black eye without stating how she got it or by having
witnesses testify that Ray and Sailor were upset with each other that weekend

29
without even mentioning Sailor’s black eye. The fact of the black eye didn’t prove
that Ray used the disagreement to further the conspiracy; instead, it served only
to further portray Ray as a generally violent person. See Martin v. People, 738 P.2d
789, 794–95 (Colo. 1987).
¶68 Therefore, we conclude that the trial court erred by admitting evidence
about Sailor’s black eye and how she got it, and we now consider whether the error
warrants reversal.
¶69 The court instructed the jurors that they were to consider the black-eye
evidence only “for the purpose of establishing a time line [sic] and a context for
the status of [Ray and Sailor’s] relationship between June 17th and June 21st,
2005.” Sailor then explained that she and Ray had gotten into a fight, and during
the fight, she fell and hit her head on the bed, which gave her a black eye. She
denied that Ray had hit her.
¶70 Considering the total length of Sailor’s testimony, which spanned one full
day and two partial days of trial, the questioning about her black eye was
relatively brief and peripheral. In the broader context of the four-week trial, this
black-eye evidence was even less significant. Furthermore, we presume the jurors
understood and followed the court’s limiting instruction. See Kembel, ¶ 50,
524 P.3d at 28. Consequently, the trial court’s error in admitting this evidence was

30
harmless. See People v. Herdman, 2012 COA 89, ¶¶ 61–62, 310 P.3d 170, 182; see also
Martin, 738 P.2d at 795.
b. Teresa Riley’s Inconsistent Statements About Threats
to Her Son
¶71 Having addressed Ray’s challenges to the trial court’s admission of
uncharged misconduct evidence as res gestae, we now consider Ray’s challenges
to other uncharged misconduct evidence that the court admitted for other
purposes. We begin with threats Ray allegedly made to Lowry Park witness
Teresa Riley’s son, Mercedes.
¶72 During direct examination, the prosecutor asked Riley whether she had told
detectives that Ray had threatened Mercedes:
Q: My question to you was then you deny telling detectives of the
Aurora Police Department that Mercedes had been threatened
in connection with his failure to return La[T]oya Ray’s car?
A: No, no. And what do my kids have to do with this? They not
here on trial. What do my son have to do with this?
Q: Well, you had indicated that your son had been threatened?
A: I never—[Ray] never threatened my son. How many times do
I have to say this. Robert Ray has never threatened me or my
kids.
. . . .
Q: Do you deny telling detectives back in September of 2005 that
your son had been threatened by Robert Ray in connection with
the failure to return La[T]oya Sailor’s car?

31
A: I’m fixing to laugh at this because this is crazy. I’m tired of
repeating myself. He never threatened my son over anything,
our car, a cigarette, nothing.
¶73 A few days later, outside the presence of the jury, the prosecution sought to
impeach Riley by introducing a portion of a recorded interview in which Riley told
a detective that Ray had threatened Mercedes. Defense counsel objected, noting
that in the interview, Riley said Ray’s sister, Markeeta, threatened Mercedes, and
because the prosecutor hadn’t asked Riley about Markeeta, the interview wasn’t
admissible. After further argument, it became clear that Riley told the detective
that Ray had called Markeeta, told Markeeta to call Mercedes, and then told
Markeeta what to say during the call (which included threatening Mercedes).
Because Riley testified that Ray had never threatened Mercedes and denied that
she told the detective that he had, the court concluded that the recorded interview
could be played for the jurors to impeach Riley.
¶74 The prosecution subsequently asked the detective about her interview with
Riley and started to play the relevant portion of the interview. Defense counsel
objected while the recording was playing. The prosecution countered that it was
impeachment evidence, and the court agreed, instructing the jury that “what
Ms. Riley is telling the detectives her son told her cannot be considered as the truth
by you, that’s hearsay. It is being offered for the impeachment of whether or not

32
Ms. Riley knew that something had been—well, something about her son. I’ll
leave it there.” The clip was then played in full.
¶75 “Impeachment is a technique used to attack the truth-telling capacity of a
witness [and] may be accomplished by . . . contradicting the witness on specific
facts in her testimony.” People v. Trujillo, 49 P.3d 316, 319–20 (Colo. 2002); see also
§ 16-10-201, C.R.S. (2024). Here, the prosecution played the recording, not to prove
that Ray had threatened Mercedes but to attack Riley’s credibility. Riley’s
credibility was relevant because Ray was charged with intimidating her as a
witness. So, the prosecution was entitled to impeach Riley’s credibility by
showing that her in-court testimony that Ray had never threatened her or her
family was inconsistent with her prior, out-of-court statements to the contrary. See
§ 16-10-201.
¶76 Accordingly, we conclude that the trial court didn’t abuse its discretion by
admitting the recording.
c. Drug Dealing
¶77 Ray was charged in this case with drug dealing between January 1, 2005,
and June 20, 2005. The prosecution filed pretrial notice of its intent to introduce
uncharged misconduct evidence related to Ray’s drug dealing before 2005. This
evidence included several criminal charges and various witnesses’ observations of
Ray’s drug business.

33
¶78 The trial court held a hearing to determine the admissibility of this evidence
under Spoto. First, it adopted the prosecution’s argument that the evidence was
relevant to show (1) motive—“to establish that that’s why allegedly Mr. Ray
would have a witness killed, so that he could stay out and make these large
amounts of money”; (2) Ray’s ability to “bribe the witnesses or to pay to have
someone killed”; and (3) the relationship of the three co-defendants.
¶79 Next, the court explained that this evidence was logically relevant because
it provided a “logical explanation for where these huge sums of money come
from,” given that Ray was “a very young man” who wasn’t “otherwise
employed.” The court found that the evidence also made the existence of the
conspiracy more likely because
Mr. Ray’s involvement in these killings is on a complicitor type of
situation where he has directed or orchestrated the situation and his
relationship with the two people who allegedly were the actual
people who fired the guns and killed the people, that there is logical
relevance from the fact that they are involved in a drug relationship.
There is logical relevance for the jury, if the jury chooses to find that
the—that relationship resulted in the killings of Ms. Wolf[e] and Mr.
Marshall-Fields.
¶80 The trial court then found that, although the drug-dealing evidence
suggested that Ray had a bad character, its relevance to material facts was
independent of that prohibited inference. Lastly, the trial court determined that
this evidence had “substantial probative value” that wasn’t “substantially
outweighed by unfair prejudice.” Based on these findings, the court concluded

34
that the pre-2005 drug-dealing evidence was admissible, but it limited the scope
of this evidence to a single 2003 arrest where Ray was carrying over $2,500 in his
shoe and to testimony by Ray’s wife, Sailor, and his friend, Checados Todd, that
Ray “ran a drug operation that involved Mr. Carter and Mr. Owens” and had
access to large amounts of cash.
¶81 When this evidence was admitted during trial, the court gave a limiting
instruction that reminded the jurors that Ray wasn’t charged with any distribution
offenses that occurred before 2005 and that the evidence was being introduced
only to establish “motive, intent, opportunity and identification.” We perceive no
abuse of discretion in the court’s Spoto analysis or in its decision to admit evidence
of Ray’s pre-2005 drug dealing.
2. Tattoo Evidence
¶82 During cross-examination, defense counsel asked Sailor how Ray was
feeling as his Lowry Park trial approached: “[A]lthough he wasn’t happy about it,
he was ready to go to jail? . . . He was kind of accepting that, I’m going to jail on
this thing?” Sailor agreed with that characterization.
¶83 On redirect, the prosecutor asked Sailor if she remembered defense counsel
asking her “about what attitude Mr. Ray had expressed about his upcoming trial.”
When she said she did, the prosecution then asked, “Between July 4th of 2004 and
June 20th of 2005, did Mr. Ray get a new tattoo on his back that expresses an

35
attitude about crime?” Defense counsel objected on relevancy grounds, and a
bench conference followed.
¶84 During the bench conference, the prosecutor argued the tattoo evidence was
admissible because defense counsel had asked Sailor whether Ray “express[ed] an
attitude about his upcoming trial. I think this is the expression of an attitude not
only about his upcoming trial but about crime.” The evidence at issue was a
picture of Ray’s back, which showed a large tattoo depicting two guns, a stack of
cash, and the words “Crime Payz 999 Wayz”4:
¶85 The court ultimately found that defense counsel had opened the door to this
evidence by asking about whether Ray was prepared to go to jail: “[T]he issue is
4 The tattoo references a lyric from the song, “Crime Pays” by Cam’ron: “Crime
pays 99 ways, 9 gauge, AK-47 homey hit the highway.” Cam’ron, Crime Pays, on
Crime Pays (Diplomat Records 2009).

36
. . . his attitude that he was willing to take his punishment and go to trial and go
to jail and this shows an attitude of someone who is favoring crime.” So, the court
concluded that the tattoo evidence was admissible if Ray got the tattoo between
the Lowry Park and Dayton Street shootings. The prosecutor then showed the
photo to the jury, asked Sailor questions about it, and pressed Sailor about whether
Ray really accepted that he was likely to go to prison for the Lowry Park shooting.
¶86 “The concept of ‘opening the door’ represents an effort by courts to prevent
one party in a criminal trial from gaining and maintaining an unfair advantage by
the selective presentation of facts that, without being elaborated or placed in
context, create an incorrect or misleading impression.” Golob v. People, 180 P.3d
1006, 1012 (Colo. 2008). Once one party “opens the door” to otherwise
inadmissible evidence, the other party “may then inquire into the previously
barred matter.” Id. But the concept isn’t unlimited and “inadmissible rebuttal
evidence ‘is permitted “only to the extent necessary to remove any unfair prejudice
which might otherwise have ensued from the original evidence.”’” People v. Cohen,
2019 COA 38, ¶ 23, 440 P.3d 1256, 1262 (quoting United States v. Martinez, 988 F.2d
685, 702 (7th Cir. 1993)). In other words, this doctrine “can be used only to prevent
prejudice; it can’t be used as an excuse to inject prejudice into the case.” Id. at ¶ 23,
440 P.3d at 1262–63.

37
¶87 We conclude that the trial court abused its discretion by admitting this
evidence. The fact that Ray got a tattoo depicting guns, money, and a song lyric
doesn’t rebut Sailor’s testimony that Ray was willing to face his upcoming trial.
Moreover, there is nothing connecting this tattoo to Ray’s motive or intent
regarding the Dayton Street shooting. The evidence simply wasn’t relevant to any
material fact. And the risk of unfair prejudice that the tattoo evidence introduced
into trial substantially outweighed any minimal probative value it arguably could
have provided. Thus, the tattoo evidence was inadmissible.
¶88 We further conclude, however, that the trial court’s erroneous admission of
the tattoo evidence was harmless. The prosecutor displayed the picture of the
tattoo very briefly and asked only two questions about it before taking it down.
The prosecution again mentioned the tattoo during rebuttal closing argument:
Now, there is this very interesting photograph . . . . If you really want
to know what motivates a person, take a look at what they
permanently affix to their body. . . . This is [Ray’s] attitude towards
his case, his attitude towards crime, his attitude towards the
system. . . . Not only is it his motivation in his life, it is his motive for
this murder.
This comment, doubling down on the trial court’s error, was inappropriate, but it
was also brief. Considering the properly admitted testimony regarding Ray’s
attitude about his upcoming trial and evidence about his illegal drug operation,
we conclude that the error didn’t substantially influence the jury’s verdict or
render the trial unfair.

38
3. Witness- and Victim-Fear Evidence
¶89 Ray argues that the trial court erred by admitting (1) Marshall-Fields’s out-
of-court statements expressing his fear of Ray and (2) evidence related to other
witnesses’ fear of Ray or involvement in the witness protection program. He
argues that this evidence wasn’t relevant to a material issue, was unfairly
prejudicial, and served only to improperly appeal to the jurors’ sympathies. We
address each category of evidence in turn.
a. Marshall-Fields’s Statements of Fear
¶90 More than two years before Ray’s trial for the Dayton Street shooting, the
prosecution filed a notice of intent to introduce various out-of-court statements
made by Marshall-Fields between the Lowry Park shooting and his death. This
motion was supplemented several times, with the most relevant supplement filed
in June 2008, nearly a year before Ray’s Dayton Street trial. In this motion, the
prosecution identified five categories of statements Marshall-Fields had made that
it sought to introduce. These were statements in which Marshall-Fields described
(1) the Lowry Park shooting; (2) the encounter with Ray and his associates at the
June 19 Father’s Day barbecue; (3) the June 19 confrontation at Gibby’s Bar;
(4) various attempts to prevent him from testifying, including incidents that
occurred on and before June 19; and (5) his fear of being killed by Ray and his
associates. The prosecution argued these statements were admissible either

39
because they weren’t hearsay or because they fell under a hearsay
exception—specifically, the then existing state of mind exception, CRE 803(3); the
excited utterance exception, CRE 803(2); or the residual hearsay rule, CRE 807. The
prosecution also asserted the statements were relevant to prove that Ray
intimidated and attempted to bribe Marshall-Fields and had conspired to have
him killed. Ray objected based on hearsay, relevance, and unfair prejudice.
¶91 At the subsequent motions hearing, the court adopted its rationale from a
pretrial order issued in Owens’s case. In that order, the court determined that
some of Marshall-Fields’s statements were admissible to prove the witness
intimidation and witness bribery charges.
¶92 The court allowed Marshall-Fields’s friends and family to testify about
statements Marshall-Fields had made to them, describing incidents when Ray and
his associates had threatened or intimidated him and expressing his fear of Ray
and his associates. Specifically, the court admitted the following categories of
statements: (1) Marshall-Fields telling his friends and his uncle about being
threatened at Gibby’s Bar on June 19, 2005 (the day before his murder) while he
was still at the bar and soon after leaving; (2) Marshall-Fields telling his friends
about a dream he had recently had in which God told him he was going to die;
and (3) Marshall-Fields telling his sister, on the day of his murder, about the
encounters at the Father’s Day barbecue and at Gibby’s the day before.

40
¶93 Each time a witness testified about these statements, the court instructed the
jurors to consider them “only with respect to the charge of intimidation of a
witness or victim in which Javad Marshall-Fields is the named victim,” and it
reminded the jurors that “[s]uch statements cannot be considered with respect to
any other charge.”
¶94 On appeal, Ray asserts that the trial court erred by admitting Marshall-
Fields’s out-of-court statements. We perceive no basis for reversal.
i. Hearsay Overview
¶95 “‘Hearsay’ is a statement other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” CRE 801(c). Although hearsay is generally inadmissible, CRE 802, there
are several exceptions—notably here, the excited utterance and state of mind
exceptions, CRE 803(2), (3), and the residual hearsay rule, CRE 807.
¶96 The excited utterance exception allows a court to admit hearsay statements
if they relate “to a startling event or condition made while the declarant was under
the stress of excitement caused by the event or condition.” CRE 803(2). The state
of mind exception allows a court to admit, as relevant here, “[a] statement of the
declarant’s then existing state of mind, emotion, sensation, or physical condition
(such as intent, plan, motive, design, mental feeling, pain, and bodily health).”
CRE 803(3). Lastly, the residual hearsay rule provides that a hearsay statement

41
that isn’t covered by the exceptions provided in Rules 803 and 804 may
nonetheless be admissible if it has “equivalent circumstantial guarantees of
trustworthiness,” and
if the court determines that (A) the statement is offered as evidence of
a material fact; (B) the statement is more probative on the point for
which it is offered than any other evidence which the proponent can
procure through reasonable efforts; and (C) the general purposes of
these rules and the interests of justice will best be served by admission
of the statement into evidence.
CRE 807. The residual hearsay rule also requires the proponent of the statement
to provide notice of its intent to introduce the statement “sufficiently in advance
of the trial or hearing to provide the adverse party with a fair opportunity to
prepare to meet it.” Id.; see also Vasquez v. People, 173 P.3d 1099, 1106–07 (Colo.
2007).
ii. Statements About Being Threatened at Gibby’s
¶97 Most of the fear statements that Ray challenges on appeal relate to an
incident at Gibby’s Bar on June 19, 2005, the night before Marshall-Fields and
Wolfe were murdered. Earlier that day, Marshall-Fields had gone to a Father’s
Day barbecue at a park with his friend, Brent Harrison. Harrison testified that
Marshall-Fields saw Ray and some of Ray’s friends and family there, which made
Marshall-Fields nervous. So, Harrison and Marshall-Fields left the park and went
to Marshall-Fields’s apartment where they made plans to go out that evening with
some friends.

42
¶98 After dinner, the group went to Gibby’s for a drink. They weren’t there long
before Marshall-Fields told them they needed to leave. Once outside, Marshall-
Fields said that the guys he was going to testify against had come up to him in the
bar and said they were going to kill him. Marshall-Fields also called his uncle and
told him about what had just happened. The uncle told him to leave the bar and
come to his house. So, Marshall-Fields and his friends left the bar; stopped briefly
by their apartment complex; and then drove to his uncle’s house, dropping
Harrison off on the way. Once Marshall-Fields got to his uncle’s house, he called
his friend Thomas Goodish and told him about the incident at Gibby’s.
¶99 In its pretrial order, the court ruled that these statements Marshall-Fields
made “about the incident at Gibby’s Bar on June 19, 2005, are admissible under
CRE 803(2), 803(3) and 807 with a limiting instruction that the evidence can only
be considered on Counts 14 and 19 [witness intimidation and bribery].” We
perceive no abuse of the trial court’s discretion because the statements were
admissible under the excited utterance exception to the hearsay rule.
¶100 The admissibility of an excited utterance rests on the idea that the event was
“sufficiently startling to render normal reflective thought processes of the
declarant inoperative,” Compan v. People, 121 P.3d 876, 882 (Colo. 2005), overruled
on other grounds by Nicholls, ¶ 33, 396 P.3d at 682, eliminating “the possibility of
fabrication, coaching, or confabulation,” People v. Vanderpauye, 2023 CO 42, ¶ 41,

43
530 P.3d 1214, 1225 (quoting Idaho v. Wright, 497 U.S. 805, 820 (1990)), and lending
the statement “sufficient trustworthiness to overcome the hearsay rule’s
proscription,” id. So, to be admissible as an excited utterance, the proponent of the
statement must show that “(1) the event was sufficiently startling to render normal
reflective thought processes of the observer inoperative; (2) the statement was a
spontaneous reaction to the event; and (3) direct or circumstantial evidence exists
to allow the jury to infer that the declarant had the opportunity to observe the
startling event.” Id. at ¶ 42, 530 P.3d at 1225 (quoting People v. Pernell, 2014 COA
157, ¶ 31, 414 P.3d 1, 7). In determining admissibility, courts may consider factors
such as “the lapse of time between the startling event or condition and the out-of-
court statement; whether the statement was a response to an inquiry; whether the
statement is accompanied by outward signs of excitement or emotional distress;
and the declarant’s choice of words to describe the startling event or condition.”
Compan, 121 P.3d at 882.
¶101 Here, we know Marshall-Fields had an opportunity to observe the startling
event because Ray’s associate, Parish Carter, threatened him directly. But whether
these statements qualified as an excited utterance hinges on temporal proximity.
¶102 We have previously held that “[w]hile the temporal proximity of the
statement to the startling event or condition is important, the two do not have to
be contemporaneous if the declarant is still under stress when the statement is

44
made.” Id. But we have more recently concluded that “where the time interval
between the event and the statement is long enough to permit reflective thought,
the statement will be excluded in the absence of some proof that the declarant did
not in fact engage in a reflective thought process.” Vanderpauye, ¶ 47, 530 P.3d at
1226 (quoting 2 Kenneth S. Broun et al., McCormick on Evidence § 272 (Robert P.
Mosteller ed., 8th ed.), Westlaw (database updated July 2022)). In Vanderpauye,
however, we were considering the temporal proximity of a defendant’s self-
serving statements, not a victim’s spontaneous reaction to a startling event. We
noted that “[t]he temporal element takes on added significance when a
defendant’s out-of-court statement is self-serving,” id., and the fact that a
statement is self-serving is itself “an indication that the statement was the result of
reflective thought,” id. at ¶ 46, 530 P.3d at 1226 (quoting 2 Broun et al., supra, § 272).
¶103 Here, there was nothing self-serving about Marshall-Fields’s statements.
Being told he was going to be killed was sufficiently startling to render Marshall-
Fields’s immediate retelling of the threat to his friends and his uncle spontaneous:
He told them what happened within minutes of being threatened and while he
was still upset about the incident. See Pena v. People, 173 P.3d 1107, 1112 (Colo.
2007); see also People v. Rogers, 68 P.3d 486, 493 (Colo. App. 2002). Although he told
Goodish about the incident thirty minutes to an hour later, by all accounts he was
still visibly upset about it. See Compan, 121 P.3d at 882; People v. Hagos, 250 P.3d

45
596, 622–23 (Colo. App. 2009); see also People v. Lagunas, 710 P.2d 1145, 1148 (Colo.
App. 1985) (“Because the duration of stress will obviously vary with the intensity
of the experience and the emotional endowment of the individual, the exception
necessarily vests the trial court with broad discretion in applying the rule.”).
¶104 We therefore conclude that the trial court didn’t abuse its discretion by
admitting the statements under the excited utterance exception.5 We also conclude
that Marshall-Fields’s statements were relevant because they had some tendency
to show that Ray committed the offense of witness intimidation. See CRE 401; see
5 Even if these statements weren’t excited utterances, they were admissible under
the residual hearsay rule. First, the statements were relevant to a material fact.
Ray was charged with intimidating a witness, which required the prosecution to
prove that Ray used “a threat, act of harassment . . . , or act of harm or injury”
against a witness in a criminal proceeding. § 18 8 704(1)(a), C.R.S. (2024). So,
Marshall-Fields’s statements to his friends that he was threatened in Gibby’s were
relevant to show that Ray (through Carter) committed that offense. Second, had
Marshall-Fields not been killed, he could have testified to these facts directly since
he was the person to whom the threats were made. But because Marshall-Fields
was unavailable to testify, his friends’ testimony about what he told them was
more probative of this fact than any other evidence that could reasonably have
been obtained. See Pena, 173 P.3d at 1112. Third, the general purposes of the rules
of evidence and the interests of justice were served by admission of these
statements. See id.; see also CRE 803(2)–(3), 804, 807; Vasquez, 173 P.3d at 1104 (“The
forfeiture doctrine prevents defendants from profiting by their own
misconduct . . . .”). The parties discussed the admissibility of Marshall-Fields’s
statements under the residual hearsay rule at a pretrial hearing nearly nine months
before trial, providing Ray with ample notice that the statements would be offered
into evidence at trial and an opportunity to object before the evidence was
presented to the jury. See Pena, 173 P.3d at 1112. And, as discussed above,
Marshall-Fields made these statements under conditions that provided
circumstantial guarantees of trustworthiness. See id.; Compan, 121 P.3d at 882.

46
also § 18-8-704(1)(a), C.R.S. (2024) (explaining that witness intimidation requires
proof that the defendant used “a threat” or “act of harassment” against a witness
in a criminal proceeding). Although the statements may have been prejudicial,
after giving them their maximum probative value and minimal prejudicial effect,
we conclude that they weren’t unfairly so. See Nicholls, ¶ 56, 396 P.3d at 687
(“Reviewing courts give great deference to trial court decisions under CRE 403
because a multitude of factors are considered in this balancing process.”).
iii. Statements About Marshall-Fields’s Dreams
¶105 Marshall-Fields’s friend, Stephanie Hayashido, testified that, while they
were at the apartment complex after leaving Gibby’s, Marshall-Fields told her that
“he had a dream and he said that it was a sign from God that he was going to die
because he died in his dream, or that God told him he was going to die in his
dream.” Defense counsel objected, but the court determined the statement was
admissible to show Marshall-Fields’s state of mind, which was relevant to the
intimidation charge.
¶106 Although fear statements may be admissible if the victim’s state of mind is
at issue, People v. Acosta, 2014 COA 82, ¶¶ 84–91, 338 P.3d 472, 486–87; CRE 803(3),
Marshall-Fields’s state of mind wasn’t at issue here. A defendant commits the
offense of witness intimidation if he intentionally uses threats or harassment to
intimidate a witness. § 18-8-704(1)(a). But the prosecution doesn’t need to prove

47
that the witness was actually intimidated. So, Marshall-Fields’s state of
mind—that is, whether he was scared or felt intimidated—wasn’t directly relevant
to a material fact.6
¶107 Even when a victim’s state of mind isn’t at issue, the victim’s statements of
fear may nonetheless be admissible to prove identity, motive, or intent, or to rebut
certain defenses, such as accident or self-defense. E.g., People v. Madson, 638 P.2d
18, 28–29 (Colo. 1981). But we’ve only invoked this reasoning in homicide cases
and, even then, only rarely because “[t]he problem with using evidence of a
victim’s fear of another to prove identity, motive, malice, or intent in a homicide
case is that the victim’s statements would be ‘used indirectly to infer the
defendant’s past conduct (a threat or an assaultive act) from which his future
conduct and state of mind are inferred.’” Rogers, 68 P.3d at 493 (quoting Madson,
638 P.2d at 29 n.14).
¶108 Here, although evidence showing that Marshall-Fields was scared and was
having dreams about dying shortly before he was killed may have had some
probative value to prove identity and intent (that Ray was attempting to
intimidate Marshall-Fields to keep him from testifying), the statements weren’t
6 For this same reason, the statements weren’t admissible under the residual
hearsay exception. See CRE 807 (admissibility requires the court to find that the
statement is relevant to a material fact).

48
introduced to prove the murder charges—the court admitted them only for the
intimidation and bribery charges. Moreover, any probative value these statements
might have had was minimal and was substantially outweighed by the risk of
unfair prejudice. See CRE 403.
¶109 We therefore conclude that the trial court abused its discretion by admitting
the statements Marshall-Fields made about his dream. However, considering the
properly admitted fear statements and the brevity of questioning about the dream
statements, we conclude that the error was harmless. See Zapata, ¶ 62, 428 P.3d at
530.
iv. Statements Made the Day of Marshall-Fields’s Murder
¶110 Ray challenges the trial court’s admission of statements Marshall-Fields
made “to Maisha Pollard [his sister] about the incidents at the Park Hill barbecue
and at Gibby’s Bar on June 19, 2005.” The court found these statements
“admissible under CRE 803(2), 803(3) and 807 with a limiting instruction that the
evidence can only be considered on Counts 14 and 19 [witness intimidation and
bribery].” (Footnote omitted.)
¶111 At trial, Pollard testified that Marshall-Fields called her on June 20, 2005 (the
day he was killed), and “seemed very discombobulated,” which she said wasn’t
common for him. She said that “[h]e was very confused, agitated, anxious,
fearful,” and he told her, “[T]hese dudes are after me. . . . [T]he dudes I’m

49
testifying against. . . . I keep seeing them. I keep seeing them everywhere I go.
They were at the store and then they were at the barbe[c]ue and then I saw them
again. . . . [T]he people who shot me, . . . the people I’m testifying against.”
¶112 “A victim’s statements to the effect that she was, at the time, afraid of
another fall squarely within the state of mind hearsay exception under CRE 803
because they refer not to past events or conditions, but to the victim’s then existing
state of mind.” Cross, ¶ 32, 531 P.3d at 451 (quoting Rogers, 68 P.3d at 493). These
statements are also relevant because they have some tendency to identify Ray as
the individual who was threatening or harassing Marhsall-Fields. See CRE 401.
And they aren’t unfairly prejudicial, particularly when given their maximum
probative value. See Nicholls, ¶ 56, 396 P.3d at 687. Under these circumstances, we
perceive no abuse of discretion in the trial court’s admission of these statements
under the state of mind exception to the hearsay rule.7 See CRE 803(3); People v.
Haymaker, 716 P.2d 110, 113 n.3 (Colo. 1986).
b. Other Witnesses’ Statements of Fear
¶113 Ray asserts that the trial court improperly admitted evidence about various
witnesses’ fear of Ray, evidence about those witnesses’ reluctance to testify,
7 We also conclude that, for the same reasons the statements Marshall-Fields made
to his friends about the incident at Gibby’s were admissible under the residual
hearsay rule, these statements were admissible under the residual hearsay rule as
well.

50
evidence that some witnesses were under witness protection, and evidence that
some witnesses might be biased because the prosecution had given them
preferential deals in other cases. Ray preserved these issues with
contemporaneous objections at trial.
¶114 “Within broad limits,” evidence may be admissible if it tends to show bias
or prejudice, sheds light on a witness’s inclinations, or explains that a witness’s
“change in statement or reluctance to testify” was because of a fear of retaliation.
People v. Villalobos, 159 P.3d 624, 630 (Colo. App. 2006); accord People v. James,
117 P.3d 91, 94 (Colo. App. 2004). A witness is also “allowed to explain or rebut
any adverse inferences resulting from cross-examination in order to place matters
in context so that the jury can evaluate the existence and significance of a witness’s
alleged bias.” People v. Lesney, 855 P.2d 1364, 1367 (Colo. 1993).
¶115 Here, the trial court admitted the challenged evidence to explain some
witnesses’ reluctance to testify or changes in some witnesses’ testimony, or to
rebut the assertion that witnesses weren’t credible because they were being paid
for their testimony or were being helped by the prosecution in other cases in
exchange for favorable testimony.
¶116 Thus, we perceive no abuse of discretion in the trial court’s admission of this
evidence.

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4. Victim-Impact Evidence
¶117 Ray alleges that the trial court erred by allowing the jurors to hear
“extensive, gratuitous” victim-impact evidence related to the Lowry Park shooting
during the guilt phase of his trial. Elvin Bell testified at Ray’s trial for the Dayton
Street shooting. Bell’s brother, Gregory Vann (Marhsall-Fields’s co-host at the
Lowry Park rap battle and barbecue), was shot and killed during the Lowry Park
shooting. Bell was also shot. Ray challenges the court’s admission of Bell’s
testimony about Vann’s personality, work, and hobbies, and about the impact
watching Vann die had on him. Ray preserved the issue by moving before trial to
exclude victim-impact evidence during the guilt phase of trial. Ray also challenges
the prosecution’s use of photos that depicted Marshall-Fields’s injuries from the
Lowry Park shooting at various times throughout the trial to maximize their
emotional impact on the jury. Ray didn’t object when these photos were
introduced.
¶118 “Victim impact evidence is evidence that relates to ‘the victim’s personal
characteristics and to the physical, emotional, or social impact of a crime on its
victim and the victim’s family.’” People v. Martinez, 2020 COA 141, ¶ 29, 486 P.3d
412, 419 (quoting Schreibvogel v. State, 228 P.3d 874, 883 (Wyo. 2010)). Victim-
impact evidence is often relevant and admissible at the sentencing phase of trial,
but only as it relates to the crimes for which the defendant is currently being

52
sentenced. People v. Dunlap, 975 P.2d 723, 744–45 (Colo. 1999); see also
§ 18-1.4-102(1)(a)–(b), C.R.S. (2024); § 18-1.3-1201(1)(a)–(b), C.R.S. (2024).
¶119 We haven’t addressed whether victim-impact evidence is ever admissible
during the guilt phase of a trial, though a division of the court of appeals has. See
Martinez, ¶¶ 32–34, 486 P.3d at 419–20. In Martinez, the division held that, under
the facts of that case, victim-impact evidence was irrelevant and thus inadmissible
during the guilt phase of a trial. Id. The division reasoned that “victim impact
evidence is admissible only if it ‘tends to show the context or circumstances of the
crime itself.’” Id. at ¶ 34, 486 P.3d at 420 (quoting State v. Graham, 650 S.E.2d 639,
646 (N.C. Ct. App. 2007)). In other words, although victim-impact evidence may
be admissible if it’s “‘relevant to determining whether the defendant committed
the crime’ for which they were charged,” People v. Mena, 2025 COA 14, ¶ 15,
567 P.3d 161, 164–65 (quoting Martinez, ¶ 33, 486 P.3d at 420), “[b]ecause ‘the effect
of a crime on a [victim or the] victim’s family often has no tendency to prove
whether a particular defendant committed a particular criminal act against a
particular victim,’ such evidence is generally irrelevant during the
guilt/innocence phase of a trial,” Martinez, ¶ 33, 486 P.3d at 419 (alteration in
original) (quoting Graham, 650 S.E.2d at 645). And even if a court determines such
evidence is relevant, the court must still weigh the probative value of the evidence
against the risk of unfair prejudice before admitting it. CRE 403.

53
¶120 Here, the trial court ruled that victim-impact evidence—specifically,
“evidence about the grieving, sadness, and loss that resulted from that incident”
and evidence about “how someone felt when they saw their brother on the ground
shot and murdered”—would be inadmissible during the guilt phase of the trial.
The court clarified that it would, however, allow evidence during the guilt phase
describing “the victim and the life that was taken . . . [witnesses] can talk about the
life of the person.” Regarding the prosecution’s use of pictures, the court said it
would have to make those rulings in the context of trial.
¶121 At trial, Bell briefly described Vann’s hobbies and interests and then
discussed the Lowry Park shooting in greater detail. But his testimony didn’t
discuss the effect Vann’s death had on him or his family and, for the most part,
just described his personal experience at Lowry Park. Similarly, the pictures
depicting Marshall-Fields’s injuries from the Lowry Park shooting were used to
help describe those injuries and didn’t constitute victim-impact evidence. Hence,
we perceive no abuse of the trial court’s discretion in admitting this evidence.
5. Positive Character Evidence
¶122 Ray contends that the trial court erred by admitting extensive and
impermissible positive evidence about Marshall-Fields’s and Wolfe’s character
that “emotionally hijack[ed] the jury’s attention.” Specifically, he challenges the
court’s admission of (1) testimony from several of Marshall-Fields’s friends and

54
family, regarding his life, character, values, education, work, plans for the future,
relationships with Wolfe and with his nieces, family vacations, and more; and
(2) testimony from Wolfe’s mother, identifying an in-life photograph of Wolfe and
talking about Wolfe’s background, education, plans, and her relationship with
Marshall-Fields. Ray objected to this evidence at trial.
¶123 The admissibility of evidence related to a victim’s good character is limited
during the guilt phase of trial. Under CRE 404(a)(2), the prosecution may
introduce (1) evidence of a victim’s pertinent character trait to rebut defense
evidence of the same trait or (2) evidence of the victim’s peaceful character to rebut
evidence that the victim was the initial aggressor in a homicide case. See People v.
Miller, 890 P.2d 84, 96 (Colo. 1995) (explaining that “character evidence is
‘pertinent’ to the crime charged [if] there is some nexus between the proffered
character trait and the crime charged”).
¶124 Similarly, although in-life photographs of a homicide victim may be
“admissible if they depict relevant facts,” such photographs shouldn’t be admitted
if they are “unnecessarily inflammatory.” People v. McClelland, 2015 COA 1, ¶ 45,
350 P.3d 976, 984. So, for example, in-life photographs may be admissible to show
“the appearance of the victim, the location and nature of his wounds, or his
identity.” People v. White, 606 P.2d 847, 849 (Colo. 1980). But courts must still
weigh the probative value of such photographs against “the danger that their

55
introduction is merely a means of ‘engendering sympathy for the victim with the
intent of creating an atmosphere of prejudice against the defendant.’” McClelland,
¶¶ 46–47, 350 P.3d at 984 (quoting Commonwealth v. Rivers, 644 A.2d 710, 716 (Pa.
1994)); see also People v. Loscutoff, 661 P.2d 274, 277 (Colo. 1983) (concluding that the
trial court didn’t abuse its discretion by admitting photographs of a murder victim
and her young son, taken several months before the murder, because they were
relevant to prove identity and their probative value outweighed any prejudicial
effect).
¶125 The trial court’s pretrial ruling, allowing witnesses to “talk about the life of
the person,” encompassed some evidence about Marshall-Fields’s and Wolfe’s
lives. During the trial, however, numerous witnesses repeatedly testified about
Marshall-Fields’s and Wolfe’s positive character traits, and the prosecution
introduced several in-life pictures of them, both together and separately. None of
this more extensive evidence was probative of any material fact or made it more
likely that Ray committed the offenses charged. See People v. Jones, 743 P.2d 44, 46
(Colo. App. 1987). Moreover, it engendered sympathy that could have interfered
with the jury’s ability to render an impartial verdict based on the legally relevant
facts. Accordingly, we conclude that the trial court abused its discretion by
admitting evidence related to Marshall-Fields’s and Wolfe’s good character during
the guilt phase of the trial.

56
¶126 But this evidence constituted a relatively small portion of the trial, and the
jurors were properly instructed on their duty to weigh all the evidence and to
determine the elements of each offense beyond a reasonable doubt. We presume
they did so. See Washington, ¶¶ 25–27, 547 P.3d at 1092–93. Therefore, these errors
were harmless.
B. Prosecutorial Misconduct
¶127 Ray asserts the prosecution committed misconduct by (1) using language
that encouraged jurors to rely on racial bias and prejudice in reaching their verdict,
(2) emphasizing the grand jury’s decision to indict, (3) diluting the presumption
of innocence, and (4) improperly appealing to the jurors’ sympathies. In
reviewing allegations of prosecutorial misconduct, we engage in a two-step
process where “[e]ach step is analytically independent of the other.” People v.
Robinson, 2019 CO 102, ¶ 18, 454 P.3d 229, 233.
¶128 First, we must determine whether misconduct occurred; that is, whether the
prosecution’s conduct was improper “in the context of the argument as a whole
and in light of the evidence before the jury.” People v. Strock, 252 P.3d 1148, 1153
(Colo. App. 2010); see also Robinson, ¶ 18, 454 P.3d at 233. “Determining whether a
prosecutor’s actions constitute misconduct ‘is generally a matter left to the trial
court’s discretion,’” People v. Snider, 2021 COA 19, ¶ 31, 491 P.3d 423, 431 (quoting

57
Domingo-Gomez v. People, 125 P.3d 1043, 1049 (Colo. 2005)), so we review the record
for an abuse of that discretion, see Wend v. People, 235 P.3d 1089, 1097 (Colo. 2010).
¶129 Prosecutors are generally given “wide latitude to make arguments based on
facts in evidence and reasonable inferences drawn from those facts.” Strock,
252 P.3d at 1153. And while prosecutors “can use every legitimate means to bring
about a just conviction,” they have “a duty to avoid using improper methods
designed to obtain an unjust result.” Domingo-Gomez, 125 P.3d at 1048. Comments
calculated to mislead the jury or that suggest the prosecution has access to
evidence the jurors don’t are improper. Id. at 1048–49. So too are comments
“‘calculated to inflame the passions or prejudice of the jury’” and “arguments that
tend to influence jurors to reach a verdict based on preexisting biases.” Robinson,
¶ 20, 454 P.3d at 233 (quoting Dunlap, 975 P.2d at 758); see also Domingo-Gomez,
125 P.3d at 1048–49.
¶130 Second, if we determine the prosecution’s comments were improper, we
then consider whether that misconduct warrants reversal under the appropriate
standard. Robinson, ¶ 18, 454 P.3d at 233. “To determine whether prosecutorial
misconduct requires reversal, we must evaluate the severity and frequency of the
misconduct, any curative measures taken by the trial court to alleviate the
misconduct, and the likelihood that the misconduct constituted a material factor
leading to the defendant’s conviction.” Strock, 252 P.3d at 1153.

58
¶131 If a defendant fails to object to the alleged misconduct at trial, we review for
plain error. Robinson, ¶ 19, 454 P.3d at 233. To warrant reversal under this
standard, the prosecutorial misconduct must have been “flagrantly, glaringly, or
tremendously improper.” Id. (quoting Domingo-Gomez, 125 P.3d at 1053). After
all, “counsel’s failure to object . . . may ‘demonstrate defense counsel’s belief that
the live argument, despite its appearance in a cold record, was not overly
damaging.’” Strock, 252 P.3d at 1153 (quoting People v. Rodriguez, 794 P.2d 965, 972
(Colo. 1990)). But if the defendant preserves the error with a contemporaneous
objection, we review for harmlessness. Wend, 235 P.3d at 1097.
1. Racial Bias
¶132 Ray alleges the prosecution injected racial bias into the proceedings by using
the N-word8 twenty-four times and by repeatedly quoting Owens’s alleged
comment to Ray after the Dayton Street shooting that “it’s ‘tooken’ care of.”
¶133 “The Constitution prohibits racially biased prosecutorial arguments.”
McCleskey v. Kemp, 481 U.S. 279, 309 n.30 (1987); see also Robinson, ¶ 21, 454 P.3d at
233 (“Although all appeals to improper biases pose challenges to the trial process,
the Supreme Court has observed that an appeal to racial bias should be treated
8 The prosecutor used the actual racial slur during trial, which we won’t repeat
here. We use “N-word” in this opinion instead to minimize the harm such
language may cause.

59
with ‘added precaution’ because ‘racial bias implicates unique historical,
constitutional, and institutional concerns.’” (quoting Peña-Rodriguez v. Colorado,
580 U.S. 206, 224–25 (2017))). But “it ‘is not enough that the prosecutors’ remarks
were undesirable or even universally condemned.’” Darden v. Wainwright,
477 U.S. 168, 181 (1986) (quoting Darden v. Wainwright, 699 F.2d 1031, 1036 (11th
Cir. 1983)). “The relevant question is whether the prosecutors’ comments ‘so
infected the trial with unfairness as to make the resulting conviction a denial of
due process.’” Id. (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)); see
also Robinson, ¶ 28, 454 P.3d at 234.
¶134 Here, each time the prosecution used the N-word, they were quoting Ray’s
own words. Similarly, the prosecution’s use of “tooken” was in reference to
Owens’s own words. Ray didn’t contemporaneously object to the prosecution’s
failure to paraphrase or modify this language, so we will assume, without
deciding, that the prosecution engaged in misconduct by failing to paraphrase or
modify Ray’s and Owens’s language and pivot to whether this misconduct was
plain, which, again in this context, means glaringly improper.
¶135 To evaluate whether the prosecution’s use of the challenged language was
glaringly improper, we must consider the broader context in which it emerged at
trial. Here, the prosecution didn’t unduly highlight the offensive language or
imply any prejudicial meaning from it. Cf. State v. Monday, 257 P.3d 551, 557

60
(Wash. 2011) (concluding that it was “highly improper” for the prosecutor to
“subtly, and likely deliberately, call to the jury’s attention” the race of a witness by
using specific language and to imply that the witness wasn’t credible because of
her race). In most instances, the prosecution simply asked witnesses if they
remembered Ray or Owens saying the quoted language and then moved on.
Several of the witnesses also spontaneously used similar language during their
testimony. Although the prosecution repeated the language in closing argument,
the reference was brief and not overtly gratuitous. And the court instructed the
jurors that “[n]either sympathy nor prejudice should influence [their] decision.”
We once again presume the jury followed this instruction. See Robinson, ¶ 32,
454 P.3d at 235.
¶136 So, although we strongly condemn any prosecutor’s use of language that
may encourage reliance on racial prejudices, we conclude that the comments
didn’t so undermine the fundamental fairness of the trial as to cast serious doubt
on the reliability of the conviction. See Hagos, ¶ 14, 288 P.3d at 120; see also Robinson,
¶¶ 28–34, 454 P.3d at 234–35; Commonwealth v. Chalue, 162 N.E.3d 1205, 1239 (Mass.
2021); State v. Haithcox, 447 P.3d 452, 460–61 (Mont. 2019).
2. Grand Jury Reference
¶137 Ray contends that the prosecutor improperly referenced the grand jury
indictment in rebuttal closing. We disagree.

61
¶138 During closing argument, defense counsel told the jury that “it’s important
for you to realize the motives and the concerns of the other side.” Counsel then
described the lack of follow-through and the mistakes investigators had made in
the Lowry Park investigation. He argued that these failures affected the Dayton
Street investigation because the media, politicians, and heads of both the police
department and the district attorney’s office pressured the Dayton Street
investigators and prosecutors “to make this right.” Counsel further argued that
these pressures were compounded by investigators’ and prosecutors’ heightened
emotions and personal involvement with these cases, which caused a “massive
overreaction, overcharging, [and] overzealousness” in response to the Dayton
Street shooting.
¶139 In rebuttal closing, the prosecutor responded:
There was a comment that somehow the press and political
desires put a lot of pressure on this process and apparently caused the
wrong person to be charged. Well, you didn’t hear any evidence
about that. . . . [N]othing about press putting pressure on anyone,
nothing about political motivations, nothing about people possibly
losing their jobs if they couldn’t solve this case, et cetera.
This is a case where a Grand Jury made a decision. Grand Jury
took testimony, heard evidence and decided to charge, among other
people, Mr. Ray.
Defense counsel objected, and the court reminded the jury “that an indictment is
not evidence of anything.” The prosecutor continued: “Indictment is not evidence,

62
but it was a Grand Jury that . . . made the decision to have Mr. Ray charged with
these crimes.”
¶140 Prosecutors are allowed to respond to defense counsel’s arguments and may
argue the facts in evidence, the reasonable inferences to be drawn from those facts,
and any lack of support for the defendant’s theory of defense. Hafer v. People,
492 P.2d 847, 851 (Colo. 1972); People v. Walker, 2022 COA 15, ¶¶ 39–40, 509 P.3d
1061, 1071; People v. Carter, 2015 COA 24M-2, ¶¶ 71–72, 402 P.3d 480, 494. But it is
inappropriate for a prosecutor to make remarks that have the “potential to convey
that the prosecution had additional inculpatory evidence unknown to the jury.”
Domingo-Gomez, 125 P.3d at 1052. Such “remarks of personal knowledge,
combined with the power and prestige inexorably linked with the office may
encourage a juror to rely on the prosecution’s allegation that unadmitted evidence
supports a conviction.” Id.
¶141 Here, the prosecutor’s reference to the grand jury’s indictment didn’t
suggest she had access to evidence the jurors didn’t. See id. Rather, when viewed
in context, it was a direct response to defense counsel’s argument that Ray was
charged only because of outside pressures and not because there was solid
evidence against him. See Denhartog, ¶ 55, 452 P.3d at 158; People v. Douglas, 2012
COA 57, ¶ 68, 296 P.3d 234, 249–50. It also reminded the jurors that defense
counsel’s allegations of improper motives weren’t evidence. See People v. Sanders,

63
2022 COA 47, ¶ 54, 515 P.3d 167, 179, aff’d on other grounds, 2024 CO 33, 549 P.3d
947; Denhartog, ¶ 53, 452 P.3d at 158.
¶142 Under these circumstances, we conclude that the prosecutor’s reference to
the grand jury’s indictment wasn’t improper.
3. Presumption of Innocence
¶143 Ray contends that the prosecutor diluted the presumption of innocence and
violated his constitutional rights during rebuttal closing argument by saying:
Now, it is true that at the beginning of a trial every defendant
is presumed to be not guilty unless and until the prosecution has
proven beyond a reasonable doubt that in fact he is guilty.
The evidence in this case has proven beyond any reasonable
doubt that the defendant, Mr. Ray, committed these crimes in order,
once again, to avoid being held accountable. He did not want to be
held accountable for his involvement in the [Lowry Park] shooting.
He was not a killer in that case because he did not want that
motivation, that money to disappear.
At this time, the evidence has proven that he is guilty and the
prosecution would ask that you hold him accountable. You hold him
accountable for committing these terrible crimes in order to avoid
being held responsible in the past, and we would ask that you find
him guilty.
¶144 Divisions of our court of appeals have regularly disapproved of comments
that suggest “that the presumption of innocence that had existed when the trial
began was ‘gone’ because of the presentation of evidence.” People v. Conyac, 2014
COA 8M, ¶ 141, 361 P.3d 1005, 1029; accord, e.g., People v. Ujaama, 2012 COA 36,
¶¶ 73–74, 302 P.3d 296, 311; People v. McBride, 228 P.3d 216, 224 (Colo. App. 2009).

64
In McBride, for example, the division concluded that the prosecutor erred by telling
the jurors during closing argument that the defendant “sits here in front of you a
guilty man. That presumption of innocence that we had when we started this case
is gone.” 228 P.3d at 223. The prosecutor also “told jurors not to begin their
deliberations at ‘not guilty’ because, ‘You’re about [ten] miles from not guilty
before you even start deliberating.’” Id. Such comments are improper because
“[a] defendant retains the presumption of innocence throughout the trial process
unless and until the jury returns a guilty verdict,” and so, “as a jury evaluates the
evidence, it must continue to presume the defendant innocent until it concludes
that the evidence proves guilt beyond a reasonable doubt.” Conyac, ¶ 141, 361 P.3d
at 1029 (emphases added); People v. Estes, 2012 COA 41, ¶¶ 32–33, 36, 296 P.3d 189,
195 (“[A] comment that suggests to a jury that the presumption of innocence may
be eliminated at any time before the jury arrives at a guilty verdict—whether upon
the close of evidence, or otherwise—is a misstatement of the law.”).
¶145 We conclude that the prosecutor’s comments here, while perhaps inartful,
weren’t improper. See McBride, 228 P.3d at 221. Unlike in McBride, the prosecutor
here didn’t encourage the jury to find that the presumption of innocence had been
overcome even before deliberations commenced. And even if we were to infer
that the prosecutor insinuated as much, defense counsel didn’t object, and the
error wasn’t plain.

65
¶146 For an error to be plain, it must be obvious. And for an error to be obvious,
it “must contravene a clear statutory command, a well-settled legal principle, or
established Colorado case law.” People v. Crabtree, 2024 CO 40M, ¶ 42, 550 P.3d
656, 667. We evaluate obviousness at the time the error is made. Id. at ¶ 4, 550 P.3d
at 660. Although a defendant’s right to be presumed innocent throughout the trial
was well-settled during Ray’s trial, the first appellate opinion to explicitly
disapprove of comments at all like those the prosecutor made here wasn’t
announced until after Ray’s trial. See McBride, 228 P.3d at 224 (announcing the
opinion on October 1, 2009, nearly five months after closing arguments in Ray’s
trial). Therefore, any error wasn’t plain and doesn’t warrant reversal. See Conyac,
¶ 143, 361 P.3d at 1029; see also Ujaama, ¶¶ 73–74, 302 P.3d at 311.
4. Emotional Appeal to Juror Sympathies
¶147 Defense counsel argued in closing that the prosecution wanted the jurors
“to substitute common sense and suspicion for proof beyond a reasonable doubt.”
He said that although the prosecution had talked “about a lot of things that could
have happened, that it could be that Robert Ray made these orders, it could be that
Robert Ray instructed these people,” there was “[n]o reliable proof of any of
that. . . . They’re hoping that you substitute this suspicion, this emotion of this
case for reasonable doubt.” Defense counsel acknowledged that this was “an
emotional case. It’s a horrible, horrible crime, no question about it. These poor

66
people have had to go through losing a loved one at such a young age and not
knowing what happened or why.” But he reminded the jurors that they had
“sworn a duty to not let bias or your emotions influence you.”
¶148 In rebuttal closing, the prosecutor responded to defense counsel’s
comments:
[Defense counsel] pointed out that the families of Javad
Marshall-Fields and Vivian Wolfe have suffered. They had to suffer
the tragedy of burying a child. And he indicated that they had to do
that without knowing what had happened or why.
Well, you all do know what happened and you do know why.
¶149 Ray contends that this comment improperly appealed to the jurors’ passions
and sympathies. We disagree.
¶150 A “prosecutor should not make arguments that encourage the jury to depart
from its duty to decide the case on the evidence and the inferences reasonably
derived therefrom.” Dunlap, 975 P.2d at 758–59 (quoting Standards for Crim. Just.,
Prosecution Function & Def. Function § 3–5.8, comment. at 109 (Am. Bar Ass’n, 3d
ed. 1993)). The prosecutor’s comments here mirrored defense counsel’s own
words and were a response to defense counsel’s argument about the lack of
evidence; they didn’t improperly appeal to juror sympathies. Cf. People v. Vasquez,
2022 COA 100, ¶ 68, 521 P.3d 1042, 1055–56 (concluding that it was improper for
the prosecutor to call the case “‘a tragedy’ for the victim and her family,” to

67
characterize the trial as “a public reckoning,” and to tell the jury it was “the
conscience of our community”).
¶151 We therefore conclude that these comments weren’t improper.
C. Cumulative Error
¶152 Ray contends that the trial court’s numerous evidentiary errors and the
prosecution’s misconduct constitute cumulative error that violated his right to a
fair trial. We disagree.
¶153 The cumulative error doctrine recognizes that although individual errors
viewed in isolation may be harmless, “numerous formal irregularities . . . may in
the aggregate show the absence of a fair trial.” People v. Vialpando, 2022 CO 28,
¶ 33, 512 P.3d 106, 114 (quoting Howard-Walker v. People, 2019 CO 69, ¶ 24, 443 P.3d
1007, 1011). After all, a defendant’s constitutional right to a fair trial includes the
right to an impartial jury—a right that “comprehends a fair verdict, free from the
influence or poison of evidence which should never have been admitted, and the
admission of which arouses passions and prejudices which tend to destroy the
fairness and impartiality of the jury.” Howard-Walker, ¶ 23, 443 P.3d at 1011
(quoting Oaks v. People, 371 P.2d 443, 447 (Colo. 1962)); see also U.S. Const. amend.
VI; Colo. Const. art. II, §§ 16, 23. To warrant reversal for cumulative error, there
must have been multiple errors that collectively prejudiced the substantial rights

68
of the defendant and affected the integrity of the fact-finding process, even if any
single error didn’t. Howard-Walker, ¶¶ 24–25, 443 P.3d at 1011.
¶154 Here, we have either determined or assumed without deciding that the trial
court made several errors, including admitting Lowry Park evidence as res gestae,
evidence of uncharged threats to Brandi Taylor, evidence related to Sailor’s black
eye, a picture of Ray’s back tattoo, and irrelevant hearsay statements Marshall-
Fields made about a dream; and allowing improper comments by the prosecution.
But we also determined that none of those errors individually warranted reversal.
And now, considering the effect of those errors in the aggregate, we conclude that
they didn’t substantially prejudice Ray or undermine the fairness of his trial.
¶155 Many of the errors involved evidence that was otherwise admissible or was
cumulative of admissible evidence. And in those few instances where the
evidence wasn’t admissible at all, any prejudice was minimized by the brevity of
the presentation, a limiting instruction, and/or further context and explanation
through cross-examination or voir dire. See Vialpando, ¶ 46, 512 P.3d at 116.
Moreover, none of the errors established proof of an element of any of the charges,
improperly implicated a witness’s or Ray’s credibility, or affected Ray’s
constitutional rights. See, e.g., Howard-Walker, ¶¶ 40–48, 443 P.3d at 1014–15. The
fact that this was a lengthy trial that included many witnesses and voluminous

69
evidence also minimized the prejudicial impact these handful of errors might have
had. See Vialpando, ¶ 33, 512 P.3d at 114; Howard-Walker, ¶ 40, 443 P.3d at 1014.
¶156 Therefore, we conclude that Ray is not entitled to reversal under the
cumulative error doctrine.
D. Juror Misconduct
¶157 Following Ray’s conviction and sentencing, he moved for a new trial. In
that motion, he alleged that a juror had failed to disclose material information on
her juror questionnaire that revealed potential bias and prejudice. The
information related to the juror’s brother-in-law’s recent death, her family’s
suspicions that his death was a homicide, and her belief that potential witnesses
in that case weren’t coming forward out of fear. Ray also alleged that the juror
shared this information with other jurors, which introduced extraneous prejudicial
information into the deliberative process. He asked the court to hold an
evidentiary hearing to resolve these allegations and to allow him to subpoena
jurors to testify at the hearing. The parties discussed the issue at a postconviction
evidentiary hearing for other matters. The court concluded that an evidentiary
hearing was required to discuss the juror’s failure to disclose information on her
questionnaire because it raised issues of potential bias. The court further
explained that the issue of whether the juror had introduced extraneous
information into the jury room wouldn’t be discussed, but it recognized that the

70
hearing could “morph” and that the extraneous information issue could become
relevant.
¶158 At the subsequent evidentiary hearing, the juror explained that her brother-
in-law had died of a drug overdose about six months before Ray’s trial, and “[t]he
family fe[lt] like it could have been a homicide,” or at least, they “would like to
think” his death wasn’t a drug overdose. She also said that she never saw a police
report and never spoke to the police about her brother-in-law’s death. She
conceded it was possible that there were witnesses who weren’t coming forward
regarding her brother-in-law’s death, but she didn’t have any information that
such witnesses existed. During cross-examination, she further explained that
although the family had questioned the circumstances of her brother-in-law’s
death, the police had never indicated it was anything other than an overdose.
¶159 At one point during the juror’s direct examination, defense counsel asked if
she had told the other jurors about her brother-in-law’s death, and she said, “Yes.”
He then asked her to “tell me what you told the members of the jury,” and the
prosecution objected, arguing that the questioning fell under CRE 606 and invaded
“the province of the jury’s deliberative process.” The court sustained the objection.
After further discussion, defense counsel asked the juror whether her brother-in-
law’s “suspicious death . . . cause[d] [her] to have any special insight during [the]
deliberations in [Ray’s] case,” and she said, “No.” Counsel then again asked the

71
juror whether she shared this information with the other jurors, and the court
again sustained the prosecutor’s objection.
¶160 At the end of the hearing, the court concluded that the juror hadn’t
deliberately hidden information in answering the questionnaire and hadn’t, by her
conduct, deprived Ray of the opportunity to challenge her for cause. The court
also concluded that Rule 606 precluded it from inquiring into the extraneous-
information allegations.
¶161 Ray contends that the court erred by concluding that Rule 606 precluded it
from inquiring into the extraneous-information allegations. We disagree.
¶162 Colorado law strives “to promote finality of verdicts, shield verdicts from
impeachment, and protect jurors from harassment and coercion” and therefore
“strongly disfavors any juror testimony impeaching a verdict.” People v. Harlan,
109 P.3d 616, 624 (Colo. 2005); accord Clark v. People, 2024 CO 55, ¶ 66, 553 P.3d 215,
230. As a result, a juror is prohibited from testifying “as to any matter or statement
occurring during the course of the jury’s deliberations or to the effect of anything
upon . . . any . . . juror’s mind or emotions as influencing the juror to assent to or
dissent from the verdict . . . or concerning the juror’s mental processes in
connection therewith,” though a juror may testify about “whether extraneous
prejudicial information was improperly brought to the jurors’ attention.”
CRE 606(b).

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¶163 The scope of this no-impeachment rule is broad and allows for exceptions
only when allegations of juror bias are so extreme that the usual safeguards aren’t
sufficient to protect the integrity of the jury-trial right. See Peña-Rodriguez, 580 U.S.
at 221. So, for example, relying on the nearly identical federal version of this rule,
the Supreme Court has allowed inquiry into the deliberative process when there
was “a showing that one or more jurors made statements exhibiting overt racial
bias that cast serious doubt on the fairness and impartiality of the jury’s
deliberations and resulting verdict.” Id. at 225. To justify setting aside the no-
impeachment bar, the statements “must tend to show that racial animus was a
significant motivating factor in the juror’s vote to convict.” Id. at 225–26. But the
Court has precluded inquiry into juror deliberations even when it was alleged that
a juror was inebriated during deliberations and when a juror allegedly lied about
a pro-defendant bias during voir dire. See id. at 219–21 (discussing Tanner v. United
States, 483 U.S. 107 (1987), and Warger v. Shauers, 574 U.S. 40 (2014)).
¶164 A party seeking to impeach a verdict based on the improper introduction of
extraneous prejudicial information to the jurors “must show both that extraneous
information was improperly before the jury and that the extraneous information
posed the reasonable possibility of prejudice to the defendant.” Clark, ¶ 68,
553 P.3d at 230 (quoting Kendrick v. Pippin, 252 P.3d 1052, 1063 (Colo. 2011),
abrogated on other grounds by Bedor v. Johnson, 2013 CO 4, 292 P.3d 924). So, courts

73
must first determine whether the complaining party “has presented competent
evidence alleging that extraneous prejudicial information was improperly before
the jury.” Id. at ¶ 70, 553 P.3d at 230. Because this determination presents a mixed
question of law and fact, we review the court’s factual findings for an abuse of
discretion and its legal conclusions de novo. Kendrick, 252 P.3d at 1064. Whether
information constitutes extraneous prejudicial information is a question of law.
Clark, ¶ 65, 553 P.3d at 230.
¶165 If a court determines the challenged information wasn’t extraneous or
prejudicial, it may dismiss a motion for a new trial without an evidentiary hearing.
Id. at ¶¶ 70, 74, 553 P.3d at 231. But if the court determines the information was
extraneous and prejudicial, it must then determine whether there was an
objectively “reasonable possibility that the . . . information influenced the verdict
to the detriment of the defendant.” Id. at ¶ 71, 553 P.3d at 231. This determination
is often made after an evidentiary hearing. Id.; accord Harlan, 109 P.3d at 625.
¶166 Extraneous information is “any information that is not properly received
into evidence or included in the court’s instructions.” Kendrick, 252 P.3d at 1064
(quoting Harlan, 109 P.3d at 624). It “‘consists of (1) “legal content and specific
factual information” (2) “learned from outside the record” (3) that is “relevant to
the issues in a case.”’” Clark, ¶ 75, 553 P.3d at 231 (quoting People v. Newman, 2020
COA 108, ¶ 15, 471 P.3d 1243, 1250). Extraneous information is improper for jury

74
consideration. Kendrick, 252 P.3d at 1064 (explaining that jurors are instructed “to
consider only the evidence admitted at trial and the law as given in the trial court’s
instructions” (quoting Harlan, 109 P.3d at 624)).
¶167 But jurors are expected “to use their life experiences to engage the record
evidence and to participate in thoughtful deliberations.” Id. at 1066 (“[T]his
approach recognizes the traditional role of the jury, that the jurors are expected to
call on their personal experiences and common sense in reaching their verdict.”).
So, information isn’t considered extraneous “if it was ‘part of the juror’s
background, gained before the juror was selected to participate in the case and not
as the result of independent investigation into a matter relevant to the case.’”
People v. Clark, 2015 COA 44, ¶ 222, 370 P.3d 197, 227 (quoting Kendrick, 252 P.3d
at 1066).
¶168 Here, although the juror’s family had suspicions about her brother-in-law’s
death, there was no evidence of foul play and no investigation in which the juror
was involved or of which she was aware. And based on the juror’s testimony at
the hearing, it seems she was only peripherally aware of the family’s suspicions
and not pursuing any sort of investigation herself. Cf. id. at ¶¶ 239–40, 370 P.3d at
229 (concluding that jurors introduced extraneous information into deliberations
when they conducted an informal experiment to test the credibility of witness
testimony during the trial). Rather, this information was part of the juror’s

75
background and personal life experience, independent of the trial. It wasn’t,
therefore, extraneous.
¶169 And even if it was, there’s no reasonable possibility that this information
could have prejudiced Ray because it didn’t contain any information relevant to
the issues in Ray’s case. Moreover, “[b]ecause the line between past experience
and extraneous information is a fine one, the admonition that we ‘err in favor of
the lesser of two evils—protecting the secrecy of jury deliberations at the expense
of possibly allowing irresponsible juror activity’—is important.” Clark, ¶ 84,
553 P.3d at 232 (quoting Garcia v. People, 997 P.2d 1, 7 (Colo. 2000)). So, we
conclude that Rule 606(b) precluded jurors from testifying about the alleged juror
misconduct.
E. Cruel and Unusual Punishment
¶170 Following the guilt phase of Ray’s trial, the court held a separate penalty-
phase trial, which resulted in the imposition of a death sentence for Marshall-
Fields’s murder and LWOP for Wolfe’s murder. The Governor later commuted
Ray’s capital sentence to LWOP. Ray now challenges, for the first time, his LWOP
sentences as unconstitutional, both facially and as applied, under the Eighth
Amendment of the U.S. Constitution. He asks this court to remand his case so the
district court can hold an evidentiary hearing to address these constitutional
challenges.

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¶171 We review constitutional challenges to sentencing determinations de novo.
Lopez v. People, 113 P.3d 713, 720 (Colo. 2005). In doing so, we recognize that it is
the legislature’s prerogative to define crimes and punishments, circumscribed of
course by the Eighth Amendment’s prohibition against “cruel and unusual
punishments,” and so we generally defer to the legislature’s policy choices
regarding sentencing. McDonald v. People, 2024 CO 75, ¶¶ 8, 10, 560 P.3d 412,
417–18 (quoting U.S. Const. amend. VIII); accord Colo. Const. art. II, § 20; Ewing v.
California, 538 U.S. 11, 25 (2003) (plurality opinion). We also generally presume
that statutes are constitutional unless “the party challenging it proves its
unconstitutionality beyond a reasonable doubt.” Woo v. El Paso Cnty. Sheriff’s Off.,
2022 CO 56, ¶ 21, 528 P.3d 899, 905 (quoting Coffman v. Williamson, 2015 CO 35,
¶ 13, 348 P.3d 929, 934).
¶172 “A statute is facially unconstitutional only if no conceivable set of
circumstances exist under which it may be applied in a constitutionally
permissible manner.” People v. Montour, 157 P.3d 489, 499 (Colo. 2007). A statute
is unconstitutional as applied if the challenging party establishes that it “is
unconstitutional ‘under the circumstances in which [he] has acted or proposes to
act.’” People v. King, 2017 CO 44, ¶ 7, 401 P.3d 516, 517 (quoting Qwest Servs.
Corp. v. Blood, 252 P.3d 1071, 1085 (Colo. 2011)). “The practical effect of holding a
statute unconstitutional as applied is to prevent its future application in a similar

77
context, but not to render it utterly inoperative.” Id. (quoting Developmental
Pathways v. Ritter, 178 P.3d 524, 534 (Colo. 2008)).
¶173 The Colorado legislature has created a comprehensive sentencing scheme.
This scheme provides that, for offenses committed before July 2020, the
presumptive sentencing range for a class 1 felony is life imprisonment to death.
§ 18-1.3-401(1)(a)(I)–(V)(A.1), C.R.S. (2024). However, recognizing that a court
might later determine that the death penalty was unconstitutional, the legislature
provided a mechanism by which “the court which previously sentenced a person
to death shall cause such person to be brought before the court, and the court shall
sentence such person to life imprisonment.” § 18-1.3-401(5).9 And it defined life
imprisonment for adult offenders who committed an offense on or after July 1,
1990, as LWOP. § 18-1.3-401(4)(a)(III); see also § 18-1.3-401(4)(b) (explaining that,
for juveniles tried as adults for offenses committed after July 1, 2006, life
imprisonment means life with the possibility of parole after forty years); People v.
Tate, 2015 CO 42, ¶¶ 32–34, 352 P.3d 959, 967 (describing Colorado’s evolving
definition of “life imprisonment”).
9 In 2020, the legislature abolished the death penalty for offenses committed on or
after July 1, 2020. Ch. 61, secs. 1, 10, §§ 16-11-901, 18-1.3-401(1)(a)(V.5)(A), 2020
Colo. Sess. Laws 204, 204, 209–10. But it left intact the sentencing scheme for
offenses committed before July 2020.

78
¶174 Ray seems to argue as follows. “[T]he Eighth Amendment forbids a
sentencing scheme that mandates life in prison without the possibility of parole
for juvenile offenders.” Miller v. Alabama, 567 U.S. 460, 479 (2012); see also Graham v.
Florida, 560 U.S. 48, 74–75 (2010). Ray was nineteen when he committed the
offenses here. And while nineteen-year-olds aren’t defined as juveniles by statute,
they should be included in the LWOP prohibition because “developing brain
science” is expanding “the longstanding recognition that juveniles have
diminished moral culpability for their crimes . . . to encompass emerging adults—
those who were [eighteen to twenty] years old at the time of their crimes.”
Therefore, Ray’s LWOP sentences are unconstitutional. We reject Ray’s argument
for four reasons.
¶175 First, neither this court nor the U.S. Supreme Court has held that LWOP
sentences are categorically unconstitutional. See Sellers v. People, 2024 CO 64,
¶¶ 20–25, 560 P.3d 954, 959–60; see also, e.g., Graham, 560 U.S. at 69; Tate, ¶ 31,
352 P.3d at 967. And because we see no reason to depart from existing precedent,
we conclude that an LWOP sentence imposed upon a class-1-felony conviction is
facially constitutional.
¶176 Second, both this court and the U.S. Supreme Court have held that, as
applied to juveniles, mandatory LWOP sentences are unconstitutional but
discretionary ones are permissible in some cases. Miller, 567 U.S. at 479; Tate,

79
¶¶ 35–36, 352 P.3d at 967–68. Both the Colorado legislature and the U.S. Supreme
Court also recognize eighteen as the age that divides juveniles and adults, and
neither has yet adopted a broader definition of “juvenile.” See Graham, 560 U.S. at
74–75 (noting that “[t]he age of [eighteen] is the point where society draws the line
for many purposes between childhood and adulthood” (first alteration in original)
(quoting Roper v. Simmons, 543 U.S. 551, 574 (2005))); § 19-1-103(10), (21), (88),
C.R.S. (2024) (defining “Adult” as “a person eighteen years of age or older”;
“Child” as “a person under eighteen years of age”; and “Juvenile” as having the
same meaning as “Child”); accord § 19-2.5-102(6), (28), C.R.S. (2024).
¶177 Ray points to several states that have expanded the prohibition on
mandatory LWOP sentences to include defendants as old as twenty-one years old.
See Commonwealth v. Mattis, 224 N.E.3d 410, 415 (Mass. 2024) (holding that, under
the state constitution, mandatory LWOP for defendants who were under twenty-
one years old when they committed their offense is unconstitutionally cruel and
unusual); In re Monschke, 482 P.3d 276, 279–81 (Wash. 2021) (same); People v. Parks,
987 N.W.2d 161, 182 (Mich. 2022) (same but only as to eighteen year olds); see also
730 Ill. Comp. Stat. Ann. 5/5-4.5-115(b) (West 2025) (allowing defendants who
were under twenty-one years old when they committed their offense to seek
parole review after ten years, or after twenty years if their offense was first degree
murder). But see People v. Spencer, 2025 IL 130015, ¶ 32, __ N.E.3d __ (Ill. 2025)

80
(“We . . . continue to hold that Miller only applies to juveniles and does not apply
to emerging adults.”). Colorado has not yet followed suit, though the legislature
in recent years has added “young adults” (defined as defendants who were
eighteen to twenty years old when they committed their offense) to certain statutes
that had previously given various sentencing considerations only to juveniles. See
§§ 17-34-101 to -102, C.R.S. (2024) (specialized program placement);
§ 17-22.5-403.7(1)(a)(III), C.R.S. (2024) (parole eligibility). Notably, however, in
amending these statutes, the legislature expressly excluded young adults, like Ray,
who were sentenced to LWOP. See § 17-34-101(1)(a), C.R.S. (2024);
§ 17-22.5-403.7(1)(b), (2).
¶178 Nonetheless, even if we were to accept Ray’s argument that scientific
research and society’s evolving standards of decency support the conclusion that
emerging adults share the qualities of youth that render mandatory LWOP
sentences for juveniles unconstitutionally cruel and unusual, we would
nonetheless affirm Ray’s sentences here.
¶179 When we previously considered the constitutionality of mandatory LWOP
sentences for juveniles, we reasoned that, because life imprisonment is
proportionally so much longer for juveniles than it generally is for adults and
because juvenile brains aren’t fully developed, courts must “follow a certain
process—considering an offender’s youth and attendant characteristics—before

81
imposing [this] particular penalty.” Tate, ¶ 31, 352 P.3d at 967 (quoting Miller,
567 U.S. at 483); see also Miller, 567 U.S. at 474–75, 477–78; Graham, 560 U.S. at 59
(“The concept of proportionality is central to the Eighth Amendment.”). Ray
received this individualized consideration.
¶180 Several experts testified for the defense during Ray’s penalty-phase trial.
These experts discussed, both in general terms and specifically as to Ray,
psychology, brain and neurological development, trauma responses, and the long-
term effect that brain injuries can have. This testimony examined Ray’s age,
family, social life, potential brain injuries, exposure to violence and trauma, and
more. Ray’s family and friends also testified about Ray’s childhood
neighborhoods, upbringing, prior criminal activity, and personality.
¶181 At the end of the trial, the jurors were presented with the only two
sentencing options authorized by statute at the time—LWOP or death. The jurors
were instructed to consider all the testimony, information, and evidence they had
received during the guilt and penalty phases of the trial and to make their own
determinations regarding the weight of the evidence based on the witnesses’
credibility, motives, and relationships, as well as any other relevant circumstances.
This information would necessarily include the testimony and evidence related to
Ray’s “youth and attendant characteristics.” Miller, 567 U.S. at 483. We presume
the jurors followed the court’s instructions in deciding to impose the harshest

82
sentence available for Marshall-Fields’s murder. See Washington, ¶¶ 25–27,
547 P.3d at 1092–93.
¶182 We therefore conclude that, given the individualized consideration Ray
received, a sentence to LWOP is constitutional as applied to Ray. See Miller,
567 U.S. at 479–80 (explaining that “appropriate occasions for sentencing juveniles
to this harshest possible penalty will be uncommon,” but the Court wouldn’t
“foreclose a sentencer’s ability to make that judgment,” as long as the sentencer
considered “how children are different, and how those differences counsel against
irrevocably sentencing them to a lifetime in prison”).
¶183 Third, Ray’s LWOP sentence for Marshall-Fields’s murder wasn’t imposed
by a court; it was granted by the Governor, exercising his authority to commute
Ray’s death sentence. The Governor has exclusive authority “to grant reprieves,
commutations and pardons after conviction.” Colo. Const. art. IV, § 7. Thus, so
long as the Governor’s “commutation is constitutionally permissible” and the
original sentence was “legally imposed by a court,” the judiciary has no authority
to alter the sentence. Johnson v. Perko, 692 P.2d 1140, 1142 (Colo. App. 1984); accord
People ex rel. Dunbar v. Dist. Ct., 502 P.2d 420, 421 (Colo. 1972); People v. Davis,
526 P.2d 312, 313 (Colo. 1974). Ray’s LWOP sentence for Marshall-Fields’s murder
meets both criteria.

83
¶184 Ray was originally sentenced pursuant to the capital sentencing procedures
in place at the time of his conviction, and he hasn’t argued on appeal that his
original capital sentence wasn’t legally imposed. Moreover, under the sentencing
statutes, a court could have resentenced Ray to LWOP following the death
penalty’s abolishment, and mandatory LWOP sentences for adult, class-1-felony
offenders aren’t categorically unconstitutional. Sellers, ¶ 37, 560 P.3d at 962.10 We
thus conclude that Ray’s commuted LWOP sentence is constitutional.
¶185 Lastly, while we commend Ray for refocusing his life in a positive direction,
we generally determine as-applied constitutionality at the time a sentence is
imposed. See, e.g., Lucero v. People, 2017 CO 49, ¶¶ 26–29, 394 P.3d 1128, 1134
(concluding that the defendant’s sentence was constitutional and “appropriate”
because the sentencing court considered the relevant circumstances at the time the
sentence was imposed). A court may consider a defendant’s rehabilitative progress
and society’s evolving standards of decency during a proportionality review, see
Wells-Yates v. People, 2019 CO 90M, ¶¶ 45–48, 454 P.3d 191, 206, but when a
10 Even if nineteen-year-olds were juveniles for sentencing purposes, the Supreme
Court in Miller held only that mandatory LWOP sentences for juveniles are
unconstitutional. 567 U.S. at 479–80; see also, e.g., Graham, 560 U.S. at 74–75. But
there was nothing mandatory about Ray’s commuted LWOP sentence. The
Governor is authorized to commute a capital sentence “by reducing the penalty
. . . to imprisonment for life or for a term of not less than twenty years at hard
labor.” § 16-17-101, C.R.S. (2024). Thus, the Governor wasn’t required to reduce
Ray’s sentence to LWOP; he had other options.

84
sentence is facially constitutional and a court is considering a defendant’s Eighth
Amendment as-applied challenge, the key considerations are “the culpability of
the offenders at issue in light of their crimes and characteristics, along with the
severity of the punishment in question,” Graham, 560 U.S. at 67; see also Wells-Yates,
¶¶ 5–18, 454 P.3d at 196–200. And, as discussed above, Ray received this
consideration. Therefore, we need not remand this case to the trial court for an
evidentiary hearing regarding these claims.
III. Conclusion
¶186 We affirm the trial court’s judgment of conviction and Ray’s LWOP
sentence.

The opinion summaries are not part of the Colorado Supreme
Court’s opinion. They have been prepared solely for the reader’s
convenience. As such, they may not be cited or relied upon. If
there is any discrepancy between the language in the summary
and the opinion, the language in the opinion controls.
ADVANCE SHEET HEADNOTE
June 23, 2025
AS MODIFIED September 8, 2025
2025 CO 42M
No. 10SA157, People v. Ray—Res Gestae—Other Misconduct By Accused—
Other Misconduct Showing Motive—Character of Accused—Impeachment
Evidence—Character of Victim—Victim Impact Evidence—Victim Fear
Evidence—In-Life Photographs—Hearsay—Hearsay>Exceptions to Hearsay
Rule>Excited Utterance—Hearsay>Exceptions to Hearsay Rule>Then-Existing
State of Mind or Body—Hearsay>“Catch-all” or Residual Exception—“Opening
the Door”—Prosecutorial Misconduct—Appeals to Sympathy or
Prejudice>Appeals to Racial or Other Prejudice—Presumption of Innocence—
Rebuttal Argument—Harmless Error—Plain Error—Cumulative Error—
Misconduct of or Affecting Jurors>Considering Matters Not In Evidence—
Extraneous Prejudicial Information—Separation of Powers>Judicial Powers
and Functions>Encroachment on Executive>Pardon and Parole—Cruel and
Unusual Punishment.
In this direct appeal, the defendant asserts that the district court erred by
admitting uncharged misconduct evidence as res gestae, witness- and victim-fear
evidence, victim-impact evidence during the guilt phase of trial, and positive
evidence of the homicide victims’ characters. He also asserts that the prosecution
engaged in numerous instances of misconduct, which violated his right to a fair
trial. He further contends the district court erred by denying his request to
subpoena jurors to investigate allegations of juror misconduct during

deliberations. And finally, the defendant challenges his sentences—a term of life
without the possibility of parole , which was imposed after the Governor
commuted his originally imposed death sentence—as unconstitutional under the
Eighth Amendment.
The supreme court concludes that although the district court erred in some
ways, none of those errors, individually or cumulatively, warrant reversal.
Similarly, although some of the prosecution’s comments were improper, none of
them constitutes reversible misconduct. The supreme court further concludes that
the district court properly denied inquiry into alleged juror misconduct under
CRE 606(b). And lastly, the court holds that the defendant’s sentences are is
constitutional.
The supreme court therefore affirms the judgment of conviction and
commuted sentence.

The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2025 CO 42M
Supreme Court Case No. 10SA157
Appeal from the District Court
Arapahoe County District Court Case No. 06CR697
Honorable Gerald J. Rafferty, Judge
Plaintiff-Appellee:
The People of the State of Colorado,
v.
Defendant-Appellant:
Robert Keith Ray.
Judgment and Sentence Affirmed
en banc
June 23, 2025
Modified Opinion. Marked revisions shown.
Attorneys for Plaintiff-Appellee:
Philip J. Weiser, Attorney General
Katharine Gillespie, Senior Assistant Attorney General
Carmen Moraleda, Senior Assistant Attorney General
Denver, Colorado
Attorneys for Defendant-Appellant:
Elisabeth Hunt White
Boulder, Colorado
Johnson & Klein, PLLC
Gail K. Johnson
Eric K. Klein

2
Boulder, Colorado
JUSTICE HOOD delivered the Opinion of the Court, in which CHIEF JUSTICE
MÁRQUEZ, JUSTICE BOATRIGHT, JUSTICE GABRIEL, JUSTICE HART,
and JUSTICE BERKENKOTTER joined.
JUSTICE SAMOUR did not participate.

3
JUSTICE HOOD delivered the Opinion of the Court.
¶1 Javad Marshall-Fields and his fiancée, Vivian Wolfe, were killed in a drive-
by shooting (“the Dayton Street shooting”), just eight days before Marshall-Fields
was expected to testify against Robert Keith Ray. Marshall-Fields had identified
Ray as the getaway driverone of two gunmen in another shooting at Lowry Park
the year before (“the Lowry Park shooting”).
¶2 Ray was eventually charged with numerous offenses related to the Dayton
Street shooting, and a jury found him guilty of nearly all of them. The district
court entered the judgment of conviction, and following a separate sentencing
trial, sentenced Ray to death. Pursuant to the unitary review process then in effect,
Ray appealed his convictions and sentences related to the Dayton Street shooting
directly to this court. See §§ 16-12-201 to -210, C.R.S. (2024); Crim. P. 32.2. This
opinion addresses that appeal.
¶3 The Colorado General Assembly subsequently abolished the death penalty,
and in March 2020, Governor Jared Polis commuted Ray’s capital sentence to a
sentence of life without the possibility of parole (“LWOP”). Although we
determined that the unitary review process no longer applied in this case, we
chose to retain jurisdiction over the appeal. And, having reviewed Ray’s
challenges to his convictions and LWOP sentence, we now affirm.

4
I. Facts and Procedural History
¶4 Ray was charged with twenty-one counts related to the Dayton Street
shooting, which included two counts of first degree murder for the deliberate
killing of Marshall-Fields and Wolfe.1 The prosecution’s theory of the case was
that Ray had conspired with others to prevent witnesses of the Lowry Park
shooting from testifying in that trial, and that conspiracy culminated in the
murders of Marshall-Fields and Wolfe. To understand the full context of Ray’s
trial for the Dayton Street shooting, we must therefore begin with the Lowry Park
shooting.
A. The Lowry Park Shooting
¶5 On July 4, 2004, Marshall-Fields and Gregory Vann hosted a barbecue and
rap battle at Lowry Park. The event was well attended, and a large crowd gathered
at the park throughout the afternoon and evening. As the event wound down,
Marshall-Fields and Vann noticed an altercation in a parking lot adjacent to the
1 Ray was also charged with two counts of second degree murder, naming
Marshall-Fields and Wolfe as victims; one count of conspiracy to commit murder;
three counts of solicitation to commit murder; two counts of aggravated
intimidation of a witness and two counts of retaliation against a witness, naming
Marshall-Fields and Wolfe as victims; three counts of intimidating a witness,
naming Marshall-Fields, Teresa Riley, and LaToya Sailor Ray as victims; one count
of unlawful distribution of a controlled substance; one count of bribing a witness,
naming Marshall-Fields as the victim; one count of violating bail bond conditions;
one count of violating a restraining order; and two crime-of-violence sentence
enhancers.

5
park and went over to investigate. During the ensuing confrontation, Ray’s friend,
Sir Mario Owens, shot and killed Vann, and Ray shot Marshall-Fields and Vann’s
brother, Elvin Bell. Ray and Owens then fled in Ray’s Suburban.
¶6 Ray and Owens sought to conceal their involvement in these shootings.
With the help of Ray’s wife, LaToya Sailor Ray (“Sailor”), and others, Ray and
Owens disposed of certain evidence that might have connected them to the
shootings (e.g., the Suburban, guns, and clothes). Owens also cut off his braids to
change his appearance after he learned that a witness had described Vann’s
shooter as having braids. The two men spent the next several days in hiding.
¶7 Meanwhile, the police attempted to identify the Lowry Park shooters. With
the help of several witnesses, the police soon identified Ray as the driver of the
Suburban and arrested him as an accessory to the Lowry Park shooting. While
awaiting his trial on bond, Ray reviewed a discovery packet with Owens and
Sailor. From this discovery packet, they learned that two witnesses—Marshall-
Fields and Askari Martin—had identified Ray as the getaway driver from the
Lowry Park shooting. There was nothing in the packet to indicate that the police
had identified the individual who shot Vann. Ray, Owens, and Sailor then began
referring to Marshall-Fields and Martin as “snitches” and made comments to the
effect that “snitches do not live long” and “snitches die.”

6
¶8 Around this same time, Ray told his friend Jamar Johnson to offer $10,000
to both Marshall-Fields and Martin in exchange for them not testifying. Ray also
told Johnson that if the bribes didn’t work, he’d pay Johnson $10,000 to kill them
both. A few months later, Ray again offered Johnson $10,000 to bribe or kill just
Marshall-Fields because by then, Martin had approached Ray and told him he
didn’t want to “snitch” and that, although the prosecution was trying to force him,
he wasn’t going to testify. Ray also told Sailor he wasn’t worried about Martin
testifying anymore. Ray continued to worry, however, about Marshall-Fields’s
testimony, which would make him a shooter and place him behind the wheel of
the Suburban at the Lowry Park shooting.
¶9 On June 19, 2005—eight days before Ray’s Lowry Park trial—Sailor went to
a Father’s Day barbecue at a park. Ray called and asked if she’d seen Marshall-
Fields at the park. She said she had, and Ray and Johnson arrived soon after. They
saw Marshall-Fields and watched him leave the park. Ray told Johnson that
Marshall-Fields was still planning to testify and that he would “take things into
[his] own hands.”
¶10 Later that same day, Ray and Owens were out with their friends, Parish
Carter and Checados Todd, when they saw Marshall-Fields’s car at Gibby’s, a local
sports bar. Carter went into the bar and told Marshall-Fields, “They’re looking for

7
you in the street, homie.” The next day, June 20, 2005, Marshall-Fields and Wolfe
were killed in a drive-by shooting on Dayton Street in Aurora.
¶11 Despite the Dayton Street double murder, Ray’s Lowry Park trial proceeded
as scheduled. In November 2006, the jury acquitted Ray of Vann’s murder and the
attempted murder of Jeremy Green (another bystander at the Lowry Park
shooting), but it convicted him of attempted first degree murder and first degree
assault of Bell and Marshall-Fields, and as an accessory to Vann’s first degree
murder. The court sentenced Ray to 108 years imprisonment for his Lowry Park
crimes.
¶12 After the Dayton Street shooting, witnesses finally identified Owens as the
person who had shot and killed Vann at Lowry Park. As a result, Owens was
charged and ultimately convicted of numerous offenses related to the Lowry Park
shooting, including Vann’s murder.
B. The Dayton Street Shooting
¶13 Meanwhile, the investigation of the Dayton Street shooting was underway.
Police officers had identified Owens as the Dayton Street shooter. Ray, however,
had an alibi for that shooting: He stopped by a barbecue Sailor was hosting at her
house and then went with her neighbor to a liquor store. Still, a grand jury
indicted both Ray and Owens for the Dayton Street shooting. The men were tried
separately.

8
¶14 At Ray’s trial, the prosecution’s theory of the case was that, after Ray’s
attempts to intimidate and bribe Marshall-Fields to prevent him from testifying in
the Lowry Park trial failed, Ray conspired with Owens and Carter to kill Marshall-
Fields. The prosecution argued that Ray wanted to avoid going to prison for the
Lowry Park shooting because he was running a lucrative illegal drug business that
he didn’t want to lose.
¶15 After lengthy trial proceedings related to the Dayton Street shooting, a jury
convicted Ray of all charges except for three witness intimidation counts. The jury
then found that a capital sentence was appropriate for Ray’s role in Marshall-
Fields’s murder. The district court sentenced Ray to consecutive sentences of
(1) death for murdering Marshall-Fields, (2) LWOP for murdering Wolfe, and
(3) an aggregate 155 years in prison on the remaining counts.
II. Analysis
¶16 Ray now appeals his Dayton Street convictions and the resulting LWOP
sentence to this court. He contends that the trial court made numerous evidentiary
errors, including admitting a large amount of uncharged misconduct evidence
under the now-defunct res gestae doctrine. He also challenges the court’s
admission of, among other things, witness- and victim-fear evidence, victim-
impact evidence, and positive evidence of Marshall-Fields’s and Wolfe’s character.
Ray further alleges that the prosecution improperly appealed to the jurors’

9
sympathies and biases, improperly referenced the grand jury indictment, and
undermined the presumption of innocence. He argues that these errors, either in
isolation or cumulatively, warrant reversal. Although we agree with Ray that the
trial court made several evidentiary errors, we ultimately conclude that they don’t
warrant reversal.
¶17 We also reject Ray’s contention that the district court erred by refusing to
allow Ray to subpoena jurors to testify about alleged juror misconduct during
deliberations. Finally, we reject Ray’s claim that his LWOP sentence is
unconstitutional.
¶18 We address each of Ray’s contentions in turn, discussing additional
procedural or background facts as needed.
A. Evidentiary Issues
¶19 We start by briefly identifying the applicable standards of review and
general relevancy principles. Trial courts have broad discretion to determine the
admissibility of evidence, and we review those rulings for an abuse of discretion.
Davis v. People, 2013 CO 57, ¶ 13, 310 P.3d 58, 61–62. A court abuses its discretion
if its decision is manifestly arbitrary, unreasonable, or unfair, or if it misapplies the
law. People v. Montoya, 2024 CO 20, ¶ 47, 546 P.3d 605, 616.
¶20 When an error is preserved by a contemporaneous objection, we generally
consider whether the error warrants reversal under a harmless error standard. Id.

10
An error is harmless if it doesn’t substantially influence the jury’s verdict or affect
the fairness of the trial proceedings. Id.; see also Crim. P. 52(a). To analyze such
harm, we may consider “factors like evidentiary cross-admissibility, the
appropriateness of jury instructions, and whether there is any indication that the
jury blended the issues in considering their verdict.” Washington v. People, 2024
CO 26, ¶ 23, 547 P.3d 1087, 1092. If the error is unpreserved, however, we review
for plain error. Hagos v. People, 2012 CO 63, ¶ 14, 288 P.3d 116, 120; see also Crim.
P. 52(b). Under this standard, we will reverse only if the error is obvious,
substantial, and so undermined the trial’s fundamental fairness as to cast serious
doubt on the reliability of the conviction. Hagos, ¶ 14, 288 P.3d at 120.
¶21 Generally, all relevant evidence is admissible. CRE 402. “‘Relevant
evidence’ means evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” CRE 401. However, even
relevant evidence may be excluded if the risk of unfair prejudice substantially
outweighs its probative value. CRE 403.
¶22 With these standards and rules in mind, we unpack the law governing the
admission of uncharged misconduct evidence and apply it to Ray’s contentions of
error.

11
1. Uncharged Misconduct Evidence
¶23 On appeal, Ray asserts that the trial court erred by admitting “significant”
evidence of uncharged misconduct. He specifically challenges the court’s
admission of evidence related to (1) the Lowry Park shooting; (2) threats Ray
allegedly made against Brandi Taylor (his brother’s girlfriend) and Askari Martin
(one of the Lowry Park witnesses who had identified Ray as the getaway driver);
(3) an altercation with Sailor in which she suffered a black eye; (4) threats Ray
allegedly made against Lowry Park witness Teresa Riley’s son; and (5) Ray’s
alleged drug dealing before 2005. (The drug offenses charged in the current case
allegedly occurred between January and June 2005.)
¶24 The trial court found that the Lowry Park evidence was admissible as res
gestae but ruled that any such evidence admitted at trial must be accompanied by
a limiting instruction.2 The court also found that evidence of the threats against
Martin and Taylor3 and the incident involving Sailor’s black eye was admissible
as res gestae.
2 Many of the pretrial motions, hearings, and orders addressed Owens, Ray, and
Carter at the same time. However, because Owens’s trial was scheduled to go first,
the court often addressed the issues as to Owens and then later either adopted or
incorporated those rulings as to the other defendants.
3 It is the parties’ duty to identify where in the record the ruling or order they seek
to have us review is located. C.A.R. 28(a)(7). But the parties failed to identify
where the trial court provided its reason for admitting the evidence containing the
threats against Taylor, and although we aren’t required to scour the record for

12
¶25 The trial court admitted evidence related to the threats against Riley’s son
as impeachment evidence. And lastly, the court admitted evidence related to
Ray’s alleged drug dealing before 2005 under CRE 404(b).
a. Res Gestae Evidence
¶26 To understand the common law res gestae doctrine, it helps to first examine
the modern rule governing the admissibility of uncharged misconduct evidence:
CRE 404(b). Rule 404(b)(1) provides that evidence of other crimes, wrongs, or acts
isn’t “admissible to prove a person’s character in order to show that on a particular
occasion the person acted in conformity with the character.” But this evidence
may be admissible if offered for another purpose, “such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.” CRE 404(b)(2). The prosecution must provide pretrial written
notice of its intent to introduce such evidence, specifying “the permitted purpose
for which the prosecution intends to offer the evidence and the reasons supporting
that purpose.” People v. Owens, 2024 CO 10, ¶ 111, 544 P.3d 1202, 1227; see also
CRE 404(b)(3). The court then determines whether the evidence is admissible by
applying the four-prong test outlined in People v. Spoto, 795 P.2d 1314, 1318–19
such information, we have looked and haven’t found a clear ruling. So, we will
review the court’s admission of these threats as if they were admitted under the
res gestae doctrine. See People v. Notyce, 2014 COA 52, ¶ 4, 328 P.3d 302, 303.

13
(Colo. 1990). If the court determines the uncharged misconduct evidence is
admissible, and if requested by the defendant, the court must
“contemporaneously instruct the jurors of the limited purpose for which the
evidence may be considered.” Rojas v. People, 2022 CO 8, ¶ 27, 504 P.3d 296, 305;
see also CRE 105.
¶27 At the time of Ray’s trial, Colorado also embraced the longstanding res
gestae doctrine as an alternate theory of admissibility for uncharged misconduct
evidence. Under this doctrine, such evidence was admissible without adhering to
Rule 404(b)’s strictures if the evidence was “incidental to a main fact and
explanatory of it, including acts and words which are so closely connected
therewith as to constitute a part of it, and without a knowledge of which the main
fact might not be properly understood.” Rojas, ¶ 18, 504 P.3d at 302 (quoting
Denver City Tramway Co. v. Brumley, 116 P. 1051, 1052 (Colo. 1911)).
¶28 While Ray’s appeal was pending, we abolished the res gestae doctrine. Id.
at ¶¶ 1–4, 504 P.3d at 300–01. In Rojas, we concluded that this amorphous and
unpredictable doctrine had become “a breeding ground for confusion,
inconsistency, and unfairness.” ¶ 3, 504 P.3d at 301. The Colorado Rules of
Evidence, we reasoned, suffice to evaluate the admissibility of uncharged
misconduct evidence. Id. at ¶¶ 39–41, 504 P.3d at 307. While we can’t fault the
trial court for failing to foresee this development, “we generally apply the law in

14
effect at the time of appeal,” and so we must conclude that the trial court abused
its discretion by admitting any evidence under this now-abolished doctrine.
Owens, ¶ 112, 544 P.3d at 1228.
¶29 But just because the uncharged misconduct evidence wasn’t admissible as
res gestae doesn’t mean it wasn’t admissible at all. And even if some of this
evidence was inadmissible, the court’s error in admitting it may have been
harmless. We must consider both possibilities in deciding whether the trial court’s
admission of res gestae evidence justifies reversal. See People v. Eppens, 979 P.2d
14, 22 (Colo. 1999) (explaining that an appellate court may affirm “on any ground
supported by the record, regardless of whether that ground was relied upon or
even contemplated by the trial court”).
¶30 So, we begin by considering whether Rule 404(b) could have provided an
alternative basis for admission. In Rojas, we explained that, when “evaluating
whether uncharged misconduct evidence triggers Rule 404(b), a trial court must
first determine if the evidence is intrinsic or extrinsic to the charged offense.” ¶ 52,
504 P.3d at 309. Intrinsic acts are limited to “(1) those that directly prove the
charged offense and (2) those that occur contemporaneously with the charged
offense and facilitate the commission of it.” Id. at ¶ 44, 504 P.3d at 308. All other
acts are extrinsic.

15
¶31 Evidence of intrinsic acts is exempt from Rule 404(b)—because it is
essentially evidence of charged misconduct—and courts should consider its
admissibility under the general rules of relevance and prejudice. Id. at ¶ 52,
504 P.3d at 309; see also CRE 401–403. The same goes for evidence of extrinsic acts
that don’t suggest the defendant’s bad character. Rojas, ¶ 52, 504 P.3d at 309. If,
however, the extrinsic-acts evidence suggests that the defendant has a bad
character and that he acted in conformity with that bad character in this instance,
it is admissible “only as provided by Rule 404(b) and after a Spoto analysis.” Id.
¶32 Under Spoto, courts must consider whether the evidence (1) relates to a
material fact and (2) is logically relevant (3) independent of the prohibited
inference that the defendant has a bad character and acted in conformity with that
character in this instance, and (4) whether the risk of unfair prejudice substantially
outweighs the evidence’s probative value. 795 P.2d at 1318–19; see also Owens,
¶ 110, 544 P.3d at 1227.
¶33 A material fact is one “that is of consequence to the determination of the
action.” Fletcher v. People, 179 P.3d 969, 974 (Colo. 2007) (quoting CRE 401).
Material facts include both (1) “ultimate facts,” such as the elements of the offense,
and (2) “intermediate facts,” meaning facts that are probative of ultimate facts.
Yusem v. People, 210 P.3d 458, 464 (Colo. 2009); accord People v. Rath, 44 P.3d 1033,
1040 (Colo. 2002). In considering whether uncharged misconduct evidence is

16
relevant to a material fact, we consider “not the substance of the prior act evidence,
but the fact in the case for which the evidence is offered to prove.” Yusem, 210 P.3d
at 464.
¶34 Once the court has identified a material fact, it must determine if the
uncharged misconduct evidence is logically relevant to that fact. In other words,
does the uncharged misconduct evidence have some tendency to make the
existence of that material fact more or less probable than it would be without the
evidence? See Owens, ¶ 110, 544 P.3d at 1227. If the answer is yes, the court
continues to Spoto’s third prong.
¶35 “The third prong of the Spoto test does not demand the absence of the
[prohibited] 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) (emphasis added); see also Rath, 44 P.3d at 1038 (“[T]he evidence must be
probative for some logical reason other than ‘that the defendant committed the
crime charged because of the likelihood that he acted in conformity with his bad
character.’” (quoting Spoto, 795 P.2d at 1318)). In other words, “the evidence
cannot be relevant only to show a propensity to commit crimes.” People v. Cross,
2023 COA 24, ¶ 21, 531 P.3d 444, 449 (quoting People v. Denhartog, 2019 COA 23,
¶ 42, 452 P.3d 148, 157).

17
¶36 In considering Spoto’s fourth prong, “[u]nfair prejudice occurs . . . if
otherwise admissible evidence has ‘an undue tendency to suggest a decision
[made] on an improper basis,’ which is ‘commonly but not necessarily an
emotional one, such as sympathy, hatred, contempt, retribution, or horror.’”
People v. Cousins, 181 P.3d 365, 370 (Colo. App. 2007) (second alteration in original)
(quoting People v. Dist. Ct., 785 P.2d 141, 147 (Colo. 1990)). On appeal, we “must
afford the evidence the maximum probative value attributable by a reasonable fact
finder and the minimum unfair prejudice to be reasonably expected.” Nicholls v.
People, 2017 CO 71, ¶ 56, 396 P.3d 675, 687.
¶37 We now apply these principles to the trial court’s rulings.
i. Lowry Park Evidence
¶38 Ray preserved his objection to the admission of the Lowry Park evidence
through pretrial motions and hearings. Thus, we review the trial court’s erroneous
admission of this evidence as res gestae for harmless error. In doing so, we
consider whether the Lowry Park evidence would have been admissible under
Rule 404(b). Thus, we begin with Rojas’s threshold intrinsic–extrinsic inquiry and
then turn to Spoto’s four-part test as necessary to evaluate extrinsic evidence.
¶39 As we observed in Owens, “[t]he Lowry Park shootings did not directly
prove, nor did they occur contemporaneously with, the Dayton Street shooting[],”
so the Lowry Park evidence was extrinsic to the Dayton Street charges. ¶ 115,

18
544 P.3d at 1228; see also Rojas, ¶ 52, 504 P.3d at 309. And because the Lowry Park
evidence could impermissibly suggest that Ray had a bad character and acted in
conformity with that character in this instance (i.e., he shot someone before, so he
likely orchestrated the Dayton Street shooting), Rule 404(b) and Spoto applied. See
Rojas, ¶ 52, 504 P.3d at 309.
¶40 So, we must consider whether the Lowry Park evidence related to a material
fact in the Dayton Street case. The prosecution argued that this evidence was
relevant “to establish the identities and roles of Ray and Owens in the [Dayton
Street] shooting as well as their guilty knowledge and [to] form the basis of their
motive to kill Marshall-Fields,” and it was therefore admissible to show that
“[w]hat would otherwise seem like a completely random drive-by shooting
actually has a context where Mr. Owens has a relationship with Mr. Javad
Marshall-Fields because of the July 4 murder of Gregory Vann.” (Emphasis added.)
¶41 “‘[M]otive is always relevant’ to establish whether the defendant committed
the charged act and why, and may also explain otherwise unexplainable
behavior.” People v. Delsordo, 2014 COA 174, ¶ 14, 411 P.3d 864, 867 (quoting
Wagman v. Knorr, 195 P. 1034, 1035 (Colo. 1921)). And Rule 404(b) expressly
provides that uncharged misconduct evidence may be admissible to prove motive.
Thus, because the Lowry Park evidence was relevant to show motive for the
Dayton Street shooting, it was logically relevant to a material fact. See id. at ¶ 17,

19
411 P.3d at 868 (recognizing that uncharged misconduct evidence may be relevant
if it tends to show that the defendant committed a second crime to avoid capture
for the initial crime).
¶42 This logical relevance was also independent of any prohibited propensity
inference. The prohibited inference was that, because Ray had been involved in at
least attempting to kill people before, he was probably involved this time too. But
the Lowry Park evidence’s relevance was independent of that inference because it
showed how the Lowry Park and Dayton Street shootings were connected and
explained how the first incident provided the motive for the second. See Rath,
44 P.3d at 1040 (explaining that motive, while not itself an ultimate fact, is among
the “well-accepted methods of proving the ultimate facts necessary to establish the
commission of a crime, without reliance upon an impermissible inference from
bad character”).
¶43 Lastly, we must balance the probative value of the Lowry Park evidence
against any unfair prejudice it could have introduced. This is the trickiest step on
these facts. There’s no doubt that the Lowry Park evidence was highly probative.
It established a motive for the Dayton Street shooting and connected Ray to
Dayton Street when there would otherwise have been no logical connection. But
it also carried a substantial risk that the jurors would confuse the issues and
unfairly assess Ray’s guilt based on the forbidden propensity inference (i.e., he’s a

20
violent man who commits violent crimes) or by conflating the strength of the direct
evidence from the Lowry Park shooting with the more circumstantial evidence
from the Dayton Street shooting.
¶44 This final step of the Spoto analysis as to the Lowry Park evidence is further
complicated by the sheer volume of evidence the trial court admitted. That
evidence included about two weeks of testimony by dozens of witnesses,
disturbing photographs and videos, and numerous 911 calls. The deluge of Lowry
Park evidence heightened the potential for the jury to simply infer that Ray was a
violent person with the propensity to commit violent crimes, rather than focus on
the evidence intrinsic to the Dayton Street shooting. The evidence from the Lowry
Park shooting that was necessary to establish Ray’s motive for the Dayton Street
shooting could have been introduced in perhaps two days, rather than through a
multitude of witnesses over two weeks (of a four-week trial).
¶45 Nonetheless, even though we might have made a different decision than the
trial court about how much evidence from the Lowry Park shooting to admit
under Rule 404(b), we conclude that any evidence improperly admitted didn’t
substantially influence the jury’s verdict or render the trial unfair. See Owens,
¶ 117, 544 P.3d at 1228–29; see also Zapata v. People, 2018 CO 82, ¶ 67, 428 P.3d 517,
531.

21
¶46 We reach this conclusion for several reasons. First, Ray received ample
notice and an opportunity to be heard on this issue. Before trial, the parties
extensively debated the admissibility of the Lowry Park evidence, and at trial, Ray
was able to cross-examine all the relevant witnesses and to record objections in
front of the jury.
¶47 Second, the court read a limiting instruction to the jurors each time Lowry
Park evidence was discussed or admitted, informing them that the evidence was
“offered for the purpose of establishing background, motive, relationship between
individuals and identification of the Defendant” and reminding them that they
could “consider it only for those purposes” because Ray was “entitled to be tried
for the crimes charged in this case”—which didn’t include any charges related to
the Lowry Park shooting—“and no other.” We assume the jury understood and
followed this instruction. People v. Kembel, 2023 CO 5, ¶ 50, 524 P.3d 18, 28. So,
even though the evidence wasn’t admitted under Rule 404(b), the trial court
essentially provided most of the procedural protections required by that rule.
¶48 Finally, to the extent that some of the Lowry Park evidence that the court
admitted as res gestae wouldn’t have been admissible under Rule 404(b), it was
mostly cumulative. The court could have properly admitted evidence establishing
what happened at Lowry Park. That evidence—whether outlined over two days
or proved at a much more granular level over two weeks—was always going to

22
be disturbing and potentially inflammatory. With that in mind, we conclude that
any incremental unfair prejudice that might have resulted from the cumulative
evidence of the Lowry Park shooting was not enough to substantially influence
the verdict or render the Dayton Street trial unfair overall. In short, the trial court’s
erroneous decision to admit evidence of the Lowry Park shooting as res gestae was
harmless, despite our misgivings about the quantity of evidence it chose to admit.
ii. Threats to Brandi Taylor
¶49 In opening statements, the prosecutor explained that the investigation into
the Lowry Park shooting had run into a “wall of silence”—for more than a year,
no one was willing to talk to the investigators. Things changed when Brandi
Taylor (Ray’s brother’s girlfriend) disclosed what she knew.
¶50 The prosecutor explained that the detective investigating the Dayton Street
shooting had obtained a recorded phone call between Ray and his brother, Dumas
Brown, in which Ray said that Taylor had been talking too much on the street and
was calling Ray a murderer. Ray also told Brown that he had threatened to kill
Taylor. The prosecutor played portions of this recorded phone call for the jury.
He then told the jurors that it was only after the detective played this call for Taylor
that Taylor gave the investigators crucial information about the Lowry Park
shooting and the individuals involved, which ultimately led investigators to the
evidence needed to charge Ray in this case.

23
¶51 The phone call was played twice more at trial: once during Taylor’s
testimony and then again during Sailor’s (Ray’s wife) testimony. Ray objected
both times.
¶52 The threats against Taylor were extrinsic to the charged offenses: they had
nothing to do with Taylor potentially testifying against Ray in his Lowry Park trial
or with the Dayton Street shooting. But because they could suggest that Ray had
a bad character—that is, that he was the sort of person who threatened others—
we consider their admissibility under Rule 404(b) and Spoto.
¶53 Despite the prosecutor’s explanation of the call’s significance during the
opening statement, the prosecution failed to explicitly make that connection
during either witness’s testimony. Still, the call and the threats it contained
provided context for why Taylor was suddenly willing to speak with the police
and how investigators came to suspect Ray in Marshall-Fields’s and Wolfe’s
murders. And the statements Taylor made after hearing those threats, about
hiding Ray’s Suburban in her garage after the Lowry Park shooting, tended to
show that Ray had consistently tried to evade responsibility for his involvement
in the Lowry Park shooting. Therefore, this evidence was logically relevant to one
or more material facts (identity and motive) because it made it more likely that
Ray was involved in the Dayton Street shooting.

24
¶54 The evidence also, however, implicated the prohibited propensity inference
that, because Ray threatened to kill Taylor, he likely made similar threats to other
potential witnesses. And because the prosecution didn’t connect the threats in the
phone call to the subsequent investigation, other than during the opening
statement, the jurors were left to make their own inferences about the evidence.
Under these circumstances, it is debatable whether the relevance of these threats
was truly independent of the prohibited propensity inference.
¶55 Moreover, Ray wasn’t charged with intimidating or threatening Taylor; the
threats weren’t related to her (or anyone else) being a witness; Taylor testified that
she didn’t take Ray’s threats seriously; and no limiting instruction was given when
the call was introduced. So, the probative value of this evidence was substantially
outweighed by the risk that Ray would be unfairly prejudiced by it because of the
likelihood that the jurors would use the prohibited propensity inference to convict
him. We conclude, therefore, that this evidence wasn’t admissible under
Rule 404(b).
¶56 But the prosecutor’s rebuttal closing argument mitigated the potential
prejudice. As she summarized various witnesses’ testimony and the evidence that
had been presented at trial, she said the following:
Brandi Taylor is a bit of a distraction in this case. . . . [Y]eah, she’s
important to the investigation. She’s not overwhelmingly important
to determining the guilt of Mr. Ray in this case. She’s important to

25
the investigation because for the first time law enforcement got a
chink in that wall of silence.
¶57 Although a closing argument isn’t evidence, this comment provided the
missing context and helped to minimize the potential prejudice resulting from this
evidence. Further, the jury rendered a split verdict—it found Ray guilty of
intimidating Marshall-Fields but acquitted him of intimidating Riley and
Sailor—which indicates that the jurors were able to evaluate witness credibility
and thoughtfully weigh the evidence and that they weren’t unduly persuaded by
any propensity inference they may have made. See Washington, ¶¶ 27, 31, 35–36,
547 P.3d at 1093–94. Accordingly, the error was harmless.
iii. Threats to Askari Martin
¶58 Ray objected in pretrial motions and hearings to the admissibility of
evidence showing that he had threatened Martin (a Lowry Park witness who had
identified Ray as the getaway driver) and had solicited anyone to kill Martin. He
also maintained continuing objections to this evidence at trial. So, we review the
trial court’s erroneous admission of this evidence as res gestae for harmlessness,
first addressing whether it was otherwise admissible.
¶59 Ray was charged with conspiring with Owens and Carter to commit murder
and with soliciting Owens, Carter, and Jamar Johnson to commit murder. The
prosecution argued that evidence related to threats Ray allegedly made against
Martin (e.g., calling Martin a snitch and saying things to the effect that snitches

26
should die) was relevant to show motive and to show the scope, nature, and
duration of the conspiracy between Ray and his friends to eliminate Lowry Park
witnesses. Thus, this evidence was intrinsic because it was direct proof of the
charges in this case, and its admissibility was governed by the general rules of
relevance and prejudice. Rojas, ¶ 44, 504 P.3d at 308.
¶60 The threats against Martin were relevant because they made it more likely
that Ray committed the offenses of conspiracy and solicitation. See CRE 401.
Similarly, given that the evidence was direct proof of some of the charges, was
probative of motive, and wasn’t unfairly prejudicial, we conclude that the
probative value was not substantially outweighed by the risk of unfair prejudice.
See Rath, 44 P.3d at 1043 (explaining that unfair prejudice “refers only to ‘an undue
tendency on the part of admissible evidence to suggest a decision made on an
improper basis’ and does not mean prejudice that results from the legitimate
probative force of the evidence” (quoting People v. Gibbens, 905 P.2d 604, 608 (Colo.
1995))).
¶61 Therefore, we conclude that the trial court’s error in admitting this evidence
as res gestae was harmless because it was otherwise admissible, relevant evidence.
iv. Sailor’s Black Eye
¶62 Before trial, the prosecution sought to introduce evidence that Sailor (Ray’s
wife) and Ray had gotten into an argument a few days before the Dayton Street

27
shooting, which resulted in Sailor having a black eye. The prosecution argued the
evidence was relevant because it would (1) help Sailor determine a timeline for the
weekend of the Dayton Street shooting (e.g., she attended one of Ray’s pretrial
hearings in the Lowry Park case that Friday, so the hearing was before this fight
because she wouldn’t have gone to the courthouse with a black eye) and (2) show
Ray’s state of mind that same weekend, which supported the prosecution’s theory
that Ray wasn’t calmly awaiting justice for the Lowry Park shooting but was
nervous and actively plotting to avoid conviction.
¶63 Defense counsel objected, arguing that if the only relevance of Sailor’s black
eye was “to tie time frames,” then the fact of Sailor’s black eye could be admitted
without any evidence about how she got it. Moreover, even accepting that Sailor’s
black eye had some probative value as to Ray’s state of mind the weekend of the
Dayton Street shooting, defense counsel argued it wasn’t enough to overcome the
unfair prejudice.
¶64 The court admitted the black-eye evidence as res gestae of a timeline for the
weekend of the Dayton Street shooting and to explain Sailor and Ray’s
estrangement that same weekend.
¶65 Because Ray objected to admission of this evidence, the issue is preserved,
and we review the court’s error in admitting this evidence as res gestae for
harmlessness. The evidence that Sailor got a black eye during an argument with

28
Ray the weekend of the Dayton Street shooting was extrinsic to the charges in this
case. It also suggested bad character; that is, that Ray was a domestic abuser. So,
we consider admissibility under Rule 404(b) and Spoto.
¶66 Remember, the prosecution argued that Ray masterminded the Dayton
Street shooting because he wanted to avoid prison for his role in the Lowry Park
shooting. So, this evidence had some tendency to show that Ray used his
estrangement from Sailor as a means to establish an alibi—he had receipts and
likely video surveillance from the store where he bought her flowers, several
people then saw him at Sailor’s party trying to make amends, and he spoke to her
neighbor for a while and accompanied the neighbor to a liquor store. Thus, Ray’s
state of mind the weekend before his Lowry Park trial was logically relevant to
material facts (intent, preparation, plan) concerning the Dayton Street conspiracy.
And this logical relevance was independent of the prohibited bad-character
inference.
¶67 In weighing the evidence’s probative value against the risk of unfair
prejudice, however, we agree with defense counsel that the probative value of the
black-eye evidence was substantially outweighed by the danger of unfair
prejudice. The prosecution could have established the same proof by having Sailor
testify that she had a black eye without stating how she got it or by having
witnesses testify that Ray and Sailor were upset with each other that weekend

29
without even mentioning Sailor’s black eye. The fact of the black eye didn’t prove
that Ray used the disagreement to further the conspiracy; instead, it served only
to further portray Ray as a generally violent person. See Martin v. People, 738 P.2d
789, 794–95 (Colo. 1987).
¶68 Therefore, we conclude that the trial court erred by admitting evidence
about Sailor’s black eye and how she got it, and we now consider whether the error
warrants reversal.
¶69 The court instructed the jurors that they were to consider the black-eye
evidence only “for the purpose of establishing a time line [sic] and a context for
the status of [Ray and Sailor’s] relationship between June 17th and June 21st,
2005.” Sailor then explained that she and Ray had gotten into a fight, and during
the fight, she fell and hit her head on the bed, which gave her a black eye. She
denied that Ray had hit her.
¶70 Considering the total length of Sailor’s testimony, which spanned one full
day and two partial days of trial, the questioning about her black eye was
relatively brief and peripheral. In the broader context of the four-week trial, this
black-eye evidence was even less significant. Furthermore, we presume the jurors
understood and followed the court’s limiting instruction. See Kembel, ¶ 50,
524 P.3d at 28. Consequently, the trial court’s error in admitting this evidence was

30
harmless. See People v. Herdman, 2012 COA 89, ¶¶ 61–62, 310 P.3d 170, 182; see also
Martin, 738 P.2d at 795.
b. Teresa Riley’s Inconsistent Statements About Threats
to Her Son
¶71 Having addressed Ray’s challenges to the trial court’s admission of
uncharged misconduct evidence as res gestae, we now consider Ray’s challenges
to other uncharged misconduct evidence that the court admitted for other
purposes. We begin with threats Ray allegedly made to Lowry Park witness
Teresa Riley’s son, Mercedes.
¶72 During direct examination, the prosecutor asked Riley whether she had told
detectives that Ray had threatened Mercedes:
Q: My question to you was then you deny telling detectives of the
Aurora Police Department that Mercedes had been threatened
in connection with his failure to return La[T]oya Ray’s car?
A: No, no. And what do my kids have to do with this? They not
here on trial. What do my son have to do with this?
Q: Well, you had indicated that your son had been threatened?
A: I never—[Ray] never threatened my son. How many times do
I have to say this. Robert Ray has never threatened me or my
kids.
. . . .
Q: Do you deny telling detectives back in September of 2005 that
your son had been threatened by Robert Ray in connection with
the failure to return La[T]oya Sailor’s car?

31
A: I’m fixing to laugh at this because this is crazy. I’m tired of
repeating myself. He never threatened my son over anything,
our car, a cigarette, nothing.
¶73 A few days later, outside the presence of the jury, the prosecution sought to
impeach Riley by introducing a portion of a recorded interview in which Riley told
a detective that Ray had threatened Mercedes. Defense counsel objected, noting
that in the interview, Riley said Ray’s sister, Markeeta, threatened Mercedes, and
because the prosecutor hadn’t asked Riley about Markeeta, the interview wasn’t
admissible. After further argument, it became clear that Riley told the detective
that Ray had called Markeeta, told Markeeta to call Mercedes, and then told
Markeeta what to say during the call (which included threatening Mercedes).
Because Riley testified that Ray had never threatened Mercedes and denied that
she told the detective that he had, the court concluded that the recorded interview
could be played for the jurors to impeach Riley.
¶74 The prosecution subsequently asked the detective about her interview with
Riley and started to play the relevant portion of the interview. Defense counsel
objected while the recording was playing. The prosecution countered that it was
impeachment evidence, and the court agreed, instructing the jury that “what
Ms. Riley is telling the detectives her son told her cannot be considered as the truth
by you, that’s hearsay. It is being offered for the impeachment of whether or not

32
Ms. Riley knew that something had been—well, something about her son. I’ll
leave it there.” The clip was then played in full.
¶75 “Impeachment is a technique used to attack the truth-telling capacity of a
witness [and] may be accomplished by . . . contradicting the witness on specific
facts in her testimony.” People v. Trujillo, 49 P.3d 316, 319–20 (Colo. 2002); see also
§ 16-10-201, C.R.S. (2024). Here, the prosecution played the recording, not to prove
that Ray had threatened Mercedes but to attack Riley’s credibility. Riley’s
credibility was relevant because Ray was charged with intimidating her as a
witness. So, the prosecution was entitled to impeach Riley’s credibility by
showing that her in-court testimony that Ray had never threatened her or her
family was inconsistent with her prior, out-of-court statements to the contrary. See
§ 16-10-201.
¶76 Accordingly, we conclude that the trial court didn’t abuse its discretion by
admitting the recording.
c. Drug Dealing
¶77 Ray was charged in this case with drug dealing between January 1, 2005,
and June 20, 2005. The prosecution filed pretrial notice of its intent to introduce
uncharged misconduct evidence related to Ray’s drug dealing before 2005. This
evidence included several criminal charges and various witnesses’ observations of
Ray’s drug business.

33
¶78 The trial court held a hearing to determine the admissibility of this evidence
under Spoto. First, it adopted the prosecution’s argument that the evidence was
relevant to show (1) motive—“to establish that that’s why allegedly Mr. Ray
would have a witness killed, so that he could stay out and make these large
amounts of money”; (2) Ray’s ability to “bribe the witnesses or to pay to have
someone killed”; and (3) the relationship of the three co-defendants.
¶79 Next, the court explained that this evidence was logically relevant because
it provided a “logical explanation for where these huge sums of money come
from,” given that Ray was “a very young man” who wasn’t “otherwise
employed.” The court found that the evidence also made the existence of the
conspiracy more likely because
Mr. Ray’s involvement in these killings is on a complicitor type of
situation where he has directed or orchestrated the situation and his
relationship with the two people who allegedly were the actual
people who fired the guns and killed the people, that there is logical
relevance from the fact that they are involved in a drug relationship.
There is logical relevance for the jury, if the jury chooses to find that
the—that relationship resulted in the killings of Ms. Wolf[e] and Mr.
Marshall-Fields.
¶80 The trial court then found that, although the drug-dealing evidence
suggested that Ray had a bad character, its relevance to material facts was
independent of that prohibited inference. Lastly, the trial court determined that
this evidence had “substantial probative value” that wasn’t “substantially
outweighed by unfair prejudice.” Based on these findings, the court concluded

34
that the pre-2005 drug-dealing evidence was admissible, but it limited the scope
of this evidence to a single 2003 arrest where Ray was carrying over $2,500 in his
shoe and to testimony by Ray’s wife, Sailor, and his friend, Checados Todd, that
Ray “ran a drug operation that involved Mr. Carter and Mr. Owens” and had
access to large amounts of cash.
¶81 When this evidence was admitted during trial, the court gave a limiting
instruction that reminded the jurors that Ray wasn’t charged with any distribution
offenses that occurred before 2005 and that the evidence was being introduced
only to establish “motive, intent, opportunity and identification.” We perceive no
abuse of discretion in the court’s Spoto analysis or in its decision to admit evidence
of Ray’s pre-2005 drug dealing.
2. Tattoo Evidence
¶82 During cross-examination, defense counsel asked Sailor how Ray was
feeling as his Lowry Park trial approached: “[A]lthough he wasn’t happy about it,
he was ready to go to jail? . . . He was kind of accepting that, I’m going to jail on
this thing?” Sailor agreed with that characterization.
¶83 On redirect, the prosecutor asked Sailor if she remembered defense counsel
asking her “about what attitude Mr. Ray had expressed about his upcoming trial.”
When she said she did, the prosecution then asked, “Between July 4th of 2004 and
June 20th of 2005, did Mr. Ray get a new tattoo on his back that expresses an

35
attitude about crime?” Defense counsel objected on relevancy grounds, and a
bench conference followed.
¶84 During the bench conference, the prosecutor argued the tattoo evidence was
admissible because defense counsel had asked Sailor whether Ray “express[ed] an
attitude about his upcoming trial. I think this is the expression of an attitude not
only about his upcoming trial but about crime.” The evidence at issue was a
picture of Ray’s back, which showed a large tattoo depicting two guns, a stack of
cash, and the words “Crime Payz 999 Wayz”4:
¶85 The court ultimately found that defense counsel had opened the door to this
evidence by asking about whether Ray was prepared to go to jail: “[T]he issue is
4 The tattoo references a lyric from the song, “Crime Pays” by Cam’ron: “Crime
pays 99 ways, 9 gauge, AK-47 homey hit the highway.” Cam’ron, Crime Pays, on
Crime Pays (Diplomat Records 2009).

36
. . . his attitude that he was willing to take his punishment and go to trial and go
to jail and this shows an attitude of someone who is favoring crime.” So, the court
concluded that the tattoo evidence was admissible if Ray got the tattoo between
the Lowry Park and Dayton Street shootings. The prosecutor then showed the
photo to the jury, asked Sailor questions about it, and pressed Sailor about whether
Ray really accepted that he was likely to go to prison for the Lowry Park shooting.
¶86 “The concept of ‘opening the door’ represents an effort by courts to prevent
one party in a criminal trial from gaining and maintaining an unfair advantage by
the selective presentation of facts that, without being elaborated or placed in
context, create an incorrect or misleading impression.” Golob v. People, 180 P.3d
1006, 1012 (Colo. 2008). Once one party “opens the door” to otherwise
inadmissible evidence, the other party “may then inquire into the previously
barred matter.” Id. But the concept isn’t unlimited and “inadmissible rebuttal
evidence ‘is permitted “only to the extent necessary to remove any unfair prejudice
which might otherwise have ensued from the original evidence.”’” People v. Cohen,
2019 COA 38, ¶ 23, 440 P.3d 1256, 1262 (quoting United States v. Martinez, 988 F.2d
685, 702 (7th Cir. 1993)). In other words, this doctrine “can be used only to prevent
prejudice; it can’t be used as an excuse to inject prejudice into the case.” Id. at ¶ 23,
440 P.3d at 1262–63.

37
¶87 We conclude that the trial court abused its discretion by admitting this
evidence. The fact that Ray got a tattoo depicting guns, money, and a song lyric
doesn’t rebut Sailor’s testimony that Ray was willing to face his upcoming trial.
Moreover, there is nothing connecting this tattoo to Ray’s motive or intent
regarding the Dayton Street shooting. The evidence simply wasn’t relevant to any
material fact. And the risk of unfair prejudice that the tattoo evidence introduced
into trial substantially outweighed any minimal probative value it arguably could
have provided. Thus, the tattoo evidence was inadmissible.
¶88 We further conclude, however, that the trial court’s erroneous admission of
the tattoo evidence was harmless. The prosecutor displayed the picture of the
tattoo very briefly and asked only two questions about it before taking it down.
The prosecution again mentioned the tattoo during rebuttal closing argument:
Now, there is this very interesting photograph . . . . If you really want
to know what motivates a person, take a look at what they
permanently affix to their body. . . . This is [Ray’s] attitude towards
his case, his attitude towards crime, his attitude towards the
system. . . . Not only is it his motivation in his life, it is his motive for
this murder.
This comment, doubling down on the trial court’s error, was inappropriate, but it
was also brief. Considering the properly admitted testimony regarding Ray’s
attitude about his upcoming trial and evidence about his illegal drug operation,
we conclude that the error didn’t substantially influence the jury’s verdict or
render the trial unfair.

38
3. Witness- and Victim-Fear Evidence
¶89 Ray argues that the trial court erred by admitting (1) Marshall-Fields’s out-
of-court statements expressing his fear of Ray and (2) evidence related to other
witnesses’ fear of Ray or involvement in the witness protection program. He
argues that this evidence wasn’t relevant to a material issue, was unfairly
prejudicial, and served only to improperly appeal to the jurors’ sympathies. We
address each category of evidence in turn.
a. Marshall-Fields’s Statements of Fear
¶90 More than two years before Ray’s trial for the Dayton Street shooting, the
prosecution filed a notice of intent to introduce various out-of-court statements
made by Marshall-Fields between the Lowry Park shooting and his death. This
motion was supplemented several times, with the most relevant supplement filed
in June 2008, nearly a year before Ray’s Dayton Street trial. In this motion, the
prosecution identified five categories of statements Marshall-Fields had made that
it sought to introduce. These were statements in which Marshall-Fields described
(1) the Lowry Park shooting; (2) the encounter with Ray and his associates at the
June 19 Father’s Day barbecue; (3) the June 19 confrontation at Gibby’s Bar;
(4) various attempts to prevent him from testifying, including incidents that
occurred on and before June 19; and (5) his fear of being killed by Ray and his
associates. The prosecution argued these statements were admissible either

39
because they weren’t hearsay or because they fell under a hearsay
exception—specifically, the then existing state of mind exception, CRE 803(3); the
excited utterance exception, CRE 803(2); or the residual hearsay rule, CRE 807. The
prosecution also asserted the statements were relevant to prove that Ray
intimidated and attempted to bribe Marshall-Fields and had conspired to have
him killed. Ray objected based on hearsay, relevance, and unfair prejudice.
¶91 At the subsequent motions hearing, the court adopted its rationale from a
pretrial order issued in Owens’s case. In that order, the court determined that
some of Marshall-Fields’s statements were admissible to prove the witness
intimidation and witness bribery charges.
¶92 The court allowed Marshall-Fields’s friends and family to testify about
statements Marshall-Fields had made to them, describing incidents when Ray and
his associates had threatened or intimidated him and expressing his fear of Ray
and his associates. Specifically, the court admitted the following categories of
statements: (1) Marshall-Fields telling his friends and his uncle about being
threatened at Gibby’s Bar on June 19, 2005 (the day before his murder) while he
was still at the bar and soon after leaving; (2) Marshall-Fields telling his friends
about a dream he had recently had in which God told him he was going to die;
and (3) Marshall-Fields telling his sister, on the day of his murder, about the
encounters at the Father’s Day barbecue and at Gibby’s the day before.

40
¶93 Each time a witness testified about these statements, the court instructed the
jurors to consider them “only with respect to the charge of intimidation of a
witness or victim in which Javad Marshall-Fields is the named victim,” and it
reminded the jurors that “[s]uch statements cannot be considered with respect to
any other charge.”
¶94 On appeal, Ray asserts that the trial court erred by admitting Marshall-
Fields’s out-of-court statements. We perceive no basis for reversal.
i. Hearsay Overview
¶95 “‘Hearsay’ is a statement other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” CRE 801(c). Although hearsay is generally inadmissible, CRE 802, there
are several exceptions—notably here, the excited utterance and state of mind
exceptions, CRE 803(2), (3), and the residual hearsay rule, CRE 807.
¶96 The excited utterance exception allows a court to admit hearsay statements
if they relate “to a startling event or condition made while the declarant was under
the stress of excitement caused by the event or condition.” CRE 803(2). The state
of mind exception allows a court to admit, as relevant here, “[a] statement of the
declarant’s then existing state of mind, emotion, sensation, or physical condition
(such as intent, plan, motive, design, mental feeling, pain, and bodily health).”
CRE 803(3). Lastly, the residual hearsay rule provides that a hearsay statement

41
that isn’t covered by the exceptions provided in Rules 803 and 804 may
nonetheless be admissible if it has “equivalent circumstantial guarantees of
trustworthiness,” and
if the court determines that (A) the statement is offered as evidence of
a material fact; (B) the statement is more probative on the point for
which it is offered than any other evidence which the proponent can
procure through reasonable efforts; and (C) the general purposes of
these rules and the interests of justice will best be served by admission
of the statement into evidence.
CRE 807. The residual hearsay rule also requires the proponent of the statement
to provide notice of its intent to introduce the statement “sufficiently in advance
of the trial or hearing to provide the adverse party with a fair opportunity to
prepare to meet it.” Id.; see also Vasquez v. People, 173 P.3d 1099, 1106–07 (Colo.
2007).
ii. Statements About Being Threatened at Gibby’s
¶97 Most of the fear statements that Ray challenges on appeal relate to an
incident at Gibby’s Bar on June 19, 2005, the night before Marshall-Fields and
Wolfe were murdered. Earlier that day, Marshall-Fields had gone to a Father’s
Day barbecue at a park with his friend, Brent Harrison. Harrison testified that
Marshall-Fields saw Ray and some of Ray’s friends and family there, which made
Marshall-Fields nervous. So, Harrison and Marshall-Fields left the park and went
to Marshall-Fields’s apartment where they made plans to go out that evening with
some friends.

42
¶98 After dinner, the group went to Gibby’s for a drink. They weren’t there long
before Marshall-Fields told them they needed to leave. Once outside, Marshall-
Fields said that the guys he was going to testify against had come up to him in the
bar and said they were going to kill him. Marshall-Fields also called his uncle and
told him about what had just happened. The uncle told him to leave the bar and
come to his house. So, Marshall-Fields and his friends left the bar; stopped briefly
by their apartment complex; and then drove to his uncle’s house, dropping
Harrison off on the way. Once Marshall-Fields got to his uncle’s house, he called
his friend Thomas Goodish and told him about the incident at Gibby’s.
¶99 In its pretrial order, the court ruled that these statements Marshall-Fields
made “about the incident at Gibby’s Bar on June 19, 2005, are admissible under
CRE 803(2), 803(3) and 807 with a limiting instruction that the evidence can only
be considered on Counts 14 and 19 [witness intimidation and bribery].” We
perceive no abuse of the trial court’s discretion because the statements were
admissible under the excited utterance exception to the hearsay rule.
¶100 The admissibility of an excited utterance rests on the idea that the event was
“sufficiently startling to render normal reflective thought processes of the
declarant inoperative,” Compan v. People, 121 P.3d 876, 882 (Colo. 2005), overruled
on other grounds by Nicholls, ¶ 33, 396 P.3d at 682, eliminating “the possibility of
fabrication, coaching, or confabulation,” People v. Vanderpauye, 2023 CO 42, ¶ 41,

43
530 P.3d 1214, 1225 (quoting Idaho v. Wright, 497 U.S. 805, 820 (1990)), and lending
the statement “sufficient trustworthiness to overcome the hearsay rule’s
proscription,” id. So, to be admissible as an excited utterance, the proponent of the
statement must show that “(1) the event was sufficiently startling to render normal
reflective thought processes of the observer inoperative; (2) the statement was a
spontaneous reaction to the event; and (3) direct or circumstantial evidence exists
to allow the jury to infer that the declarant had the opportunity to observe the
startling event.” Id. at ¶ 42, 530 P.3d at 1225 (quoting People v. Pernell, 2014 COA
157, ¶ 31, 414 P.3d 1, 7). In determining admissibility, courts may consider factors
such as “the lapse of time between the startling event or condition and the out-of-
court statement; whether the statement was a response to an inquiry; whether the
statement is accompanied by outward signs of excitement or emotional distress;
and the declarant’s choice of words to describe the startling event or condition.”
Compan, 121 P.3d at 882.
¶101 Here, we know Marshall-Fields had an opportunity to observe the startling
event because Ray’s associate, Parish Carter, threatened him directly. But whether
these statements qualified as an excited utterance hinges on temporal proximity.
¶102 We have previously held that “[w]hile the temporal proximity of the
statement to the startling event or condition is important, the two do not have to
be contemporaneous if the declarant is still under stress when the statement is

44
made.” Id. But we have more recently concluded that “where the time interval
between the event and the statement is long enough to permit reflective thought,
the statement will be excluded in the absence of some proof that the declarant did
not in fact engage in a reflective thought process.” Vanderpauye, ¶ 47, 530 P.3d at
1226 (quoting 2 Kenneth S. Broun et al., McCormick on Evidence § 272 (Robert P.
Mosteller ed., 8th ed.), Westlaw (database updated July 2022)). In Vanderpauye,
however, we were considering the temporal proximity of a defendant’s self-
serving statements, not a victim’s spontaneous reaction to a startling event. We
noted that “[t]he temporal element takes on added significance when a
defendant’s out-of-court statement is self-serving,” id., and the fact that a
statement is self-serving is itself “an indication that the statement was the result of
reflective thought,” id. at ¶ 46, 530 P.3d at 1226 (quoting 2 Broun et al., supra, § 272).
¶103 Here, there was nothing self-serving about Marshall-Fields’s statements.
Being told he was going to be killed was sufficiently startling to render Marshall-
Fields’s immediate retelling of the threat to his friends and his uncle spontaneous:
He told them what happened within minutes of being threatened and while he
was still upset about the incident. See Pena v. People, 173 P.3d 1107, 1112 (Colo.
2007); see also People v. Rogers, 68 P.3d 486, 493 (Colo. App. 2002). Although he told
Goodish about the incident thirty minutes to an hour later, by all accounts he was
still visibly upset about it. See Compan, 121 P.3d at 882; People v. Hagos, 250 P.3d

45
596, 622–23 (Colo. App. 2009); see also People v. Lagunas, 710 P.2d 1145, 1148 (Colo.
App. 1985) (“Because the duration of stress will obviously vary with the intensity
of the experience and the emotional endowment of the individual, the exception
necessarily vests the trial court with broad discretion in applying the rule.”).
¶104 We therefore conclude that the trial court didn’t abuse its discretion by
admitting the statements under the excited utterance exception.5 We also conclude
that Marshall-Fields’s statements were relevant because they had some tendency
to show that Ray committed the offense of witness intimidation. See CRE 401; see
5 Even if these statements weren’t excited utterances, they were admissible under
the residual hearsay rule. First, the statements were relevant to a material fact.
Ray was charged with intimidating a witness, which required the prosecution to
prove that Ray used “a threat, act of harassment . . . , or act of harm or injury”
against a witness in a criminal proceeding. § 18 8 704(1)(a), C.R.S. (2024). So,
Marshall-Fields’s statements to his friends that he was threatened in Gibby’s were
relevant to show that Ray (through Carter) committed that offense. Second, had
Marshall-Fields not been killed, he could have testified to these facts directly since
he was the person to whom the threats were made. But because Marshall-Fields
was unavailable to testify, his friends’ testimony about what he told them was
more probative of this fact than any other evidence that could reasonably have
been obtained. See Pena, 173 P.3d at 1112. Third, the general purposes of the rules
of evidence and the interests of justice were served by admission of these
statements. See id.; see also CRE 803(2)–(3), 804, 807; Vasquez, 173 P.3d at 1104 (“The
forfeiture doctrine prevents defendants from profiting by their own
misconduct . . . .”). The parties discussed the admissibility of Marshall-Fields’s
statements under the residual hearsay rule at a pretrial hearing nearly nine months
before trial, providing Ray with ample notice that the statements would be offered
into evidence at trial and an opportunity to object before the evidence was
presented to the jury. See Pena, 173 P.3d at 1112. And, as discussed above,
Marshall-Fields made these statements under conditions that provided
circumstantial guarantees of trustworthiness. See id.; Compan, 121 P.3d at 882.

46
also § 18-8-704(1)(a), C.R.S. (2024) (explaining that witness intimidation requires
proof that the defendant used “a threat” or “act of harassment” against a witness
in a criminal proceeding). Although the statements may have been prejudicial,
after giving them their maximum probative value and minimal prejudicial effect,
we conclude that they weren’t unfairly so. See Nicholls, ¶ 56, 396 P.3d at 687
(“Reviewing courts give great deference to trial court decisions under CRE 403
because a multitude of factors are considered in this balancing process.”).
iii. Statements About Marshall-Fields’s Dreams
¶105 Marshall-Fields’s friend, Stephanie Hayashido, testified that, while they
were at the apartment complex after leaving Gibby’s, Marshall-Fields told her that
“he had a dream and he said that it was a sign from God that he was going to die
because he died in his dream, or that God told him he was going to die in his
dream.” Defense counsel objected, but the court determined the statement was
admissible to show Marshall-Fields’s state of mind, which was relevant to the
intimidation charge.
¶106 Although fear statements may be admissible if the victim’s state of mind is
at issue, People v. Acosta, 2014 COA 82, ¶¶ 84–91, 338 P.3d 472, 486–87; CRE 803(3),
Marshall-Fields’s state of mind wasn’t at issue here. A defendant commits the
offense of witness intimidation if he intentionally uses threats or harassment to
intimidate a witness. § 18-8-704(1)(a). But the prosecution doesn’t need to prove

47
that the witness was actually intimidated. So, Marshall-Fields’s state of
mind—that is, whether he was scared or felt intimidated—wasn’t directly relevant
to a material fact.6
¶107 Even when a victim’s state of mind isn’t at issue, the victim’s statements of
fear may nonetheless be admissible to prove identity, motive, or intent, or to rebut
certain defenses, such as accident or self-defense. E.g., People v. Madson, 638 P.2d
18, 28–29 (Colo. 1981). But we’ve only invoked this reasoning in homicide cases
and, even then, only rarely because “[t]he problem with using evidence of a
victim’s fear of another to prove identity, motive, malice, or intent in a homicide
case is that the victim’s statements would be ‘used indirectly to infer the
defendant’s past conduct (a threat or an assaultive act) from which his future
conduct and state of mind are inferred.’” Rogers, 68 P.3d at 493 (quoting Madson,
638 P.2d at 29 n.14).
¶108 Here, although evidence showing that Marshall-Fields was scared and was
having dreams about dying shortly before he was killed may have had some
probative value to prove identity and intent (that Ray was attempting to
intimidate Marshall-Fields to keep him from testifying), the statements weren’t
6 For this same reason, the statements weren’t admissible under the residual
hearsay exception. See CRE 807 (admissibility requires the court to find that the
statement is relevant to a material fact).

48
introduced to prove the murder charges—the court admitted them only for the
intimidation and bribery charges. Moreover, any probative value these statements
might have had was minimal and was substantially outweighed by the risk of
unfair prejudice. See CRE 403.
¶109 We therefore conclude that the trial court abused its discretion by admitting
the statements Marshall-Fields made about his dream. However, considering the
properly admitted fear statements and the brevity of questioning about the dream
statements, we conclude that the error was harmless. See Zapata, ¶ 62, 428 P.3d at
530.
iv. Statements Made the Day of Marshall-Fields’s Murder
¶110 Ray challenges the trial court’s admission of statements Marshall-Fields
made “to Maisha Pollard [his sister] about the incidents at the Park Hill barbecue
and at Gibby’s Bar on June 19, 2005.” The court found these statements
“admissible under CRE 803(2), 803(3) and 807 with a limiting instruction that the
evidence can only be considered on Counts 14 and 19 [witness intimidation and
bribery].” (Footnote omitted.)
¶111 At trial, Pollard testified that Marshall-Fields called her on June 20, 2005 (the
day he was killed), and “seemed very discombobulated,” which she said wasn’t
common for him. She said that “[h]e was very confused, agitated, anxious,
fearful,” and he told her, “[T]hese dudes are after me. . . . [T]he dudes I’m

49
testifying against. . . . I keep seeing them. I keep seeing them everywhere I go.
They were at the store and then they were at the barbe[c]ue and then I saw them
again. . . . [T]he people who shot me, . . . the people I’m testifying against.”
¶112 “A victim’s statements to the effect that she was, at the time, afraid of
another fall squarely within the state of mind hearsay exception under CRE 803
because they refer not to past events or conditions, but to the victim’s then existing
state of mind.” Cross, ¶ 32, 531 P.3d at 451 (quoting Rogers, 68 P.3d at 493). These
statements are also relevant because they have some tendency to identify Ray as
the individual who was threatening or harassing Marhsall-Fields. See CRE 401.
And they aren’t unfairly prejudicial, particularly when given their maximum
probative value. See Nicholls, ¶ 56, 396 P.3d at 687. UnderAnd under these
circumstances, we perceive no abuse of discretion in the trial court’s admission of
these statements under the state of mind exception to the hearsay rule.7 See CRE
803(3); People v. Haymaker, 716 P.2d 110, 113 n.3 (Colo. 1986).
b. Other Witnesses’ Statements of Fear
¶113 Ray asserts that the trial court improperly admitted evidence about various
witnesses’ fear of Ray, evidence about those witnesses’ reluctance to testify,
7 We also conclude that, for the same reasons the statements Marshall-Fields made
to his friends about the incident at Gibby’s were admissible under the residual
hearsay rule, these statements were admissible under the residual hearsay rule as
well.

50
evidence that some witnesses were under witness protection, and evidence that
some witnesses might be biased because the prosecution had given them
preferential deals in other cases. Ray preserved these issues with
contemporaneous objections at trial.
¶114 “Within broad limits,” evidence may be admissible if it tends to show bias
or prejudice, sheds light on a witness’s inclinations, or explains that a witness’s
“change in statement or reluctance to testify” was because of a fear of retaliation.
People v. Villalobos, 159 P.3d 624, 630 (Colo. App. 2006); accord People v. James,
117 P.3d 91, 94 (Colo. App. 2004). A witness is also “allowed to explain or rebut
any adverse inferences resulting from cross-examination in order to place matters
in context so that the jury can evaluate the existence and significance of a witness’s
alleged bias.” People v. Lesney, 855 P.2d 1364, 1367 (Colo. 1993).
¶115 Here, the trial court admitted the challenged evidence to explain some
witnesses’ reluctance to testify or changes in some witnesses’ testimony, or to
rebut the assertion that witnesses weren’t credible because they were being paid
for their testimony or were being helped by the prosecution in other cases in
exchange for favorable testimony.
¶116 Thus, we perceive no abuse of discretion in the trial court’s admission of this
evidence.

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4. Victim-Impact Evidence
¶117 Ray alleges that the trial court erred by allowing the jurors to hear
“extensive, gratuitous” victim-impact evidence related to the Lowry Park shooting
during the guilt phase of his trial. Elvin Bell testified at Ray’s trial for the Dayton
Street shooting. Bell’s brother, Gregory Vann (Marhsall-Fields’s co-host at the
Lowry Park rap battle and barbecue), was shot and killed during the Lowry Park
shooting. Bell was also shot. Ray challenges the court’s admission of Bell’s
testimony about Vann’s personality, work, and hobbies, and about the impact
watching Vann die had on him. Ray preserved the issue by moving before trial to
exclude victim-impact evidence during the guilt phase of trial. Ray also challenges
the prosecution’s use of photos that depicted Marshall-Fields’s injuries from the
Lowry Park shooting at various times throughout the trial to maximize their
emotional impact on the jury. Ray didn’t object when these photos were
introduced.
¶118 “Victim impact evidence is evidence that relates to ‘the victim’s personal
characteristics and to the physical, emotional, or social impact of a crime on its
victim and the victim’s family.’” People v. Martinez, 2020 COA 141, ¶ 29, 486 P.3d
412, 419 (quoting Schreibvogel v. State, 228 P.3d 874, 883 (Wyo. 2010)). Victim-
impact evidence is often relevant and admissible at the sentencing phase of trial,
but only as it relates to the crimes for which the defendant is currently being

52
sentenced. People v. Dunlap, 975 P.2d 723, 744–45 (Colo. 1999); see also
§ 18-1.4-102(1)(a)–(b), C.R.S. (2024); § 18-1.3-1201(1)(a)–(b), C.R.S. (2024).
¶119 We haven’t addressed whether victim-impact evidence is ever admissible
during the guilt phase of a trial, though a division of the court of appeals has. See
Martinez, ¶¶ 32–34, 486 P.3d at 419–20. In Martinez, the division held that, under
the facts of that case, victim-impact evidence was irrelevant and thus inadmissible
during the guilt phase of a trial. Id. The division reasoned that “victim impact
evidence is admissible only if it ‘tends to show the context or circumstances of the
crime itself.’” Id. at ¶ 34, 486 P.3d at 420 (quoting State v. Graham, 650 S.E.2d 639,
646 (N.C. Ct. App. 2007)). In other words, although victim-impact evidence may
be admissible if it’s “‘relevant to determining whether the defendant committed
the crime’ for which they were charged,” People v. Mena, 2025 COA 14, ¶ 15,
567 P.3d 161, 164–65 (quoting Martinez, ¶ 33, 486 P.3d at 420), “[b]ecause ‘the effect
of a crime on a [victim or the] victim’s family often has no tendency to prove
whether a particular defendant committed a particular criminal act against a
particular victim,’ such evidence is generally irrelevant during the
guilt/innocence phase of a trial,” Martinez, ¶ 33, 486 P.3d at 419 (alteration in
original) (quoting Graham, 650 S.E.2d at 645). And even if a court determines such
evidence is relevant, the court must still weigh the probative value of the evidence
against the risk of unfair prejudice before admitting it. CRE 403.

53
¶120 Here, the trial court ruled that victim-impact evidence—specifically,
“evidence about the grieving, sadness, and loss that resulted from that incident”
and evidence about “how someone felt when they saw their brother on the ground
shot and murdered”—would be inadmissible during the guilt phase of the trial.
The court clarified that it would, however, allow evidence during the guilt phase
describing “the victim and the life that was taken . . . [witnesses] can talk about the
life of the person.” Regarding the prosecution’s use of pictures, the court said it
would have to make those rulings in the context of trial.
¶121 At trial, Bell briefly described Vann’s hobbies and interests and then
discussed the Lowry Park shooting in greater detail. But his testimony didn’t
discuss the effect Vann’s death had on him or his family and, for the most part,
just described his personal experience at Lowry Park. Similarly, the pictures
depicting Marshall-Fields’s injuries from the Lowry Park shooting were used to
help describe those injuries and didn’t constitute victim-impact evidence. Hence,
we perceive no abuse of the trial court’s discretion in admitting this evidence.
5. Positive Character Evidence
¶122 Ray contends that the trial court erred by admitting extensive and
impermissible positive evidence about Marshall-Fields’s and Wolfe’s character
that “emotionally hijack[ed] the jury’s attention.” Specifically, he challenges the
court’s admission of (1) testimony from several of Marshall-Fields’s friends and

54
family, regarding his life, character, values, education, work, plans for the future,
relationships with Wolfe and with his nieces, family vacations, and more; and
(2) testimony from Wolfe’s mother, identifying an in-life photograph of Wolfe and
talking about Wolfe’s background, education, plans, and her relationship with
Marshall-Fields. Ray objected to this evidence at trial.
¶123 The admissibility of evidence related to a victim’s good character is limited
during the guilt phase of trial. Under CRE 404(a)(2), the prosecution may
introduce (1) evidence of a victim’s pertinent character trait to rebut defense
evidence of the same trait or (2) evidence of the victim’s peaceful character to rebut
evidence that the victim was the initial aggressor in a homicide case. See People v.
Miller, 890 P.2d 84, 96 (Colo. 1995) (explaining that “character evidence is
‘pertinent’ to the crime charged [if] there is some nexus between the proffered
character trait and the crime charged”).
¶124 Similarly, although in-life photographs of a homicide victim may be
“admissible if they depict relevant facts,” such photographs shouldn’t be admitted
if they are “unnecessarily inflammatory.” People v. McClelland, 2015 COA 1, ¶ 45,
350 P.3d 976, 984. So, for example, in-life photographs may be admissible to show
“the appearance of the victim, the location and nature of his wounds, or his
identity.” People v. White, 606 P.2d 847, 849 (Colo. 1980). But courts must still
weigh the probative value of such photographs against “the danger that their

55
introduction is merely a means of ‘engendering sympathy for the victim with the
intent of creating an atmosphere of prejudice against the defendant.’” McClelland,
¶¶ 46–47, 350 P.3d at 984 (quoting Commonwealth v. Rivers, 644 A.2d 710, 716 (Pa.
1994)); see also People v. Loscutoff, 661 P.2d 274, 277 (Colo. 1983) (concluding that the
trial court didn’t abuse its discretion by admitting photographs of a murder victim
and her young son, taken several months before the murder, because they were
relevant to prove identity and their probative value outweighed any prejudicial
effect).
¶125 The trial court’s pretrial ruling, allowing witnesses to “talk about the life of
the person,” encompassed some evidence about Marshall-Fields’s and Wolfe’s
lives. During the trial, however, numerous witnesses repeatedly testified about
Marshall-Fields’s and Wolfe’s positive character traits, and the prosecution
introduced several in-life pictures of them, both together and separately. None of
this more extensive evidence was probative of any material fact or made it more
likely that Ray committed the offenses charged. See People v. Jones, 743 P.2d 44, 46
(Colo. App. 1987). Moreover, it engendered sympathy that could have interfered
with the jury’s ability to render an impartial verdict based on the legally relevant
facts. Accordingly, we conclude that the trial court abused its discretion by
admitting evidence related to Marshall-Fields’s and Wolfe’s good character during
the guilt phase of the trial.

56
¶126 But this evidence constituted a relatively small portion of the trial, and the
jurors were properly instructed on their duty to weigh all the evidence and to
determine the elements of each offense beyond a reasonable doubt. We presume
they did so. See Washington, ¶¶ 25–27, 547 P.3d at 1092–93. Therefore, these errors
were harmless.
B. Prosecutorial Misconduct
¶127 Ray asserts the prosecution committed misconduct by (1) using language
that encouraged jurors to rely on racial bias and prejudice in reaching their verdict,
(2) emphasizing the grand jury’s decision to indict, (3) diluting the presumption
of innocence, and (4) improperly appealing to the jurors’ sympathies. In
reviewing allegations of prosecutorial misconduct, we engage in a two-step
process where “[e]ach step is analytically independent of the other.” People v.
Robinson, 2019 CO 102, ¶ 18, 454 P.3d 229, 233.
¶128 First, we must determine whether misconduct occurred; that is, whether the
prosecution’s conduct was improper “in the context of the argument as a whole
and in light of the evidence before the jury.” People v. Strock, 252 P.3d 1148, 1153
(Colo. App. 2010); see also Robinson, ¶ 18, 454 P.3d at 233. “Determining whether a
prosecutor’s actions constitute misconduct ‘is generally a matter left to the trial
court’s discretion,’” People v. Snider, 2021 COA 19, ¶ 31, 491 P.3d 423, 431 (quoting

57
Domingo-Gomez v. People, 125 P.3d 1043, 1049 (Colo. 2005)), so we review the record
for an abuse of that discretion, see Wend v. People, 235 P.3d 1089, 1097 (Colo. 2010).
¶129 Prosecutors are generally given “wide latitude to make arguments based on
facts in evidence and reasonable inferences drawn from those facts.” Strock,
252 P.3d at 1153. And while prosecutors “can use every legitimate means to bring
about a just conviction,” they have “a duty to avoid using improper methods
designed to obtain an unjust result.” Domingo-Gomez, 125 P.3d at 1048. Comments
calculated to mislead the jury or that suggest the prosecution has access to
evidence the jurors don’t are improper. Id. at 1048–49. So too are comments
“‘calculated to inflame the passions or prejudice of the jury’” and “arguments that
tend to influence jurors to reach a verdict based on preexisting biases.” Robinson,
¶ 20, 454 P.3d at 233 (quoting Dunlap, 975 P.2d at 758); see also Domingo-Gomez,
125 P.3d at 1048–49.
¶130 Second, if we determine the prosecution’s comments were improper, we
then consider whether that misconduct warrants reversal under the appropriate
standard. Robinson, ¶ 18, 454 P.3d at 233. “To determine whether prosecutorial
misconduct requires reversal, we must evaluate the severity and frequency of the
misconduct, any curative measures taken by the trial court to alleviate the
misconduct, and the likelihood that the misconduct constituted a material factor
leading to the defendant’s conviction.” Strock, 252 P.3d at 1153.

58
¶131 If a defendant fails to object to the alleged misconduct at trial, we review for
plain error. Robinson, ¶ 19, 454 P.3d at 233. To warrant reversal under this
standard, the prosecutorial misconduct must have been “flagrantly, glaringly, or
tremendously improper.” Id. (quoting Domingo-Gomez, 125 P.3d at 1053). After
all, “counsel’s failure to object . . . may ‘demonstrate defense counsel’s belief that
the live argument, despite its appearance in a cold record, was not overly
damaging.’” Strock, 252 P.3d at 1153 (quoting People v. Rodriguez, 794 P.2d 965, 972
(Colo. 1990)). But if the defendant preserves the error with a contemporaneous
objection, we review for harmlessness. Wend, 235 P.3d at 1097.
1. Racial Bias
¶132 Ray alleges the prosecution injected racial bias into the proceedings by using
the N-word8 twenty-four times and by repeatedly quoting Owens’s alleged
comment to Ray after the Dayton Street shooting that “it’s ‘tooken’ care of.”
¶133 “The Constitution prohibits racially biased prosecutorial arguments.”
McCleskey v. Kemp, 481 U.S. 279, 309 n.30 (1987); see also Robinson, ¶ 21, 454 P.3d at
233 (“Although all appeals to improper biases pose challenges to the trial process,
the Supreme Court has observed that an appeal to racial bias should be treated
8 The prosecutor used the actual racial slur during trial, which we won’t repeat
here. We use “N-word” in this opinion instead to minimize the harm such
language may cause.

59
with ‘added precaution’ because ‘racial bias implicates unique historical,
constitutional, and institutional concerns.’” (quoting Peña-Rodriguez v. Colorado,
580 U.S. 206, 224–25 (2017))). But “it ‘is not enough that the prosecutors’ remarks
were undesirable or even universally condemned.’” Darden v. Wainwright,
477 U.S. 168, 181 (1986) (quoting Darden v. Wainwright, 699 F.2d 1031, 1036 (11th
Cir. 1983)). “The relevant question is whether the prosecutors’ comments ‘so
infected the trial with unfairness as to make the resulting conviction a denial of
due process.’” Id. (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)); see
also Robinson, ¶ 28, 454 P.3d at 234.
¶134 Here, each time the prosecution used the N-word, they were quoting Ray’s
own words. Similarly, the prosecution’s use of “tooken” was in reference to
Owens’s own words. Ray didn’t contemporaneously object to the prosecution’s
failure to paraphrase or modify this language, so we will assume, without
deciding, that the prosecution engaged in misconduct by failing to paraphrase or
modify Ray’s and Owens’s language and pivot to whether this misconduct was
plain, which, again in this context, means glaringly improper.
¶135 To evaluate whether the prosecution’s use of the challenged language was
glaringly improper, we must consider the broader context in which it emerged at
trial. Here, the prosecution didn’t unduly highlight the offensive language or
imply any prejudicial meaning from it. Cf. State v. Monday, 257 P.3d 551, 557

60
(Wash. 2011) (concluding that it was “highly improper” for the prosecutor to
“subtly, and likely deliberately, call to the jury’s attention” the race of a witness by
using specific language and to imply that the witness wasn’t credible because of
her race). In most instances, the prosecution simply asked witnesses if they
remembered Ray or Owens saying the quoted language and then moved on.
Several of the witnesses also spontaneously used similar language during their
testimony. Although the prosecution repeated the language in closing argument,
the reference was brief and not overtly gratuitous. And the court instructed the
jurors that “[n]either sympathy nor prejudice should influence [their] decision.”
We once again presume the jury followed this instruction. See Robinson, ¶ 32,
454 P.3d at 235.
¶136 So, although we strongly condemn any prosecutor’s use of language that
may encourage reliance on racial prejudices, we conclude that the comments
didn’t so undermine the fundamental fairness of the trial as to cast serious doubt
on the reliability of the conviction. See Hagos, ¶ 14, 288 P.3d at 120; see also Robinson,
¶¶ 28–34, 454 P.3d at 234–35; Commonwealth v. Chalue, 162 N.E.3d 1205, 1239 (Mass.
2021); State v. Haithcox, 447 P.3d 452, 460–61 (Mont. 2019).
2. Grand Jury Reference
¶137 Ray contends that the prosecutor improperly referenced the grand jury
indictment in rebuttal closing. We disagree.

61
¶138 During closing argument, defense counsel told the jury that “it’s important
for you to realize the motives and the concerns of the other side.” Counsel then
described the lack of follow-through and the mistakes investigators had made in
the Lowry Park investigation. He argued that these failures affected the Dayton
Street investigation because the media, politicians, and heads of both the police
department and the district attorney’s office pressured the Dayton Street
investigators and prosecutors “to make this right.” Counsel further argued that
these pressures were compounded by investigators’ and prosecutors’ heightened
emotions and personal involvement with these cases, which caused a “massive
overreaction, overcharging, [and] overzealousness” in response to the Dayton
Street shooting.
¶139 In rebuttal closing, the prosecutor responded:
There was a comment that somehow the press and political
desires put a lot of pressure on this process and apparently caused the
wrong person to be charged. Well, you didn’t hear any evidence
about that. . . . [N]othing about press putting pressure on anyone,
nothing about political motivations, nothing about people possibly
losing their jobs if they couldn’t solve this case, et cetera.
This is a case where a Grand Jury made a decision. Grand Jury
took testimony, heard evidence and decided to charge, among other
people, Mr. Ray.
Defense counsel objected, and the court reminded the jury “that an indictment is
not evidence of anything.” The prosecutor continued: “Indictment is not evidence,

62
but it was a Grand Jury that . . . made the decision to have Mr. Ray charged with
these crimes.”
¶140 Prosecutors are allowed to respond to defense counsel’s arguments and may
argue the facts in evidence, the reasonable inferences to be drawn from those facts,
and any lack of support for the defendant’s theory of defense. Hafer v. People,
492 P.2d 847, 851 (Colo. 1972); People v. Walker, 2022 COA 15, ¶¶ 39–40, 509 P.3d
1061, 1071; People v. Carter, 2015 COA 24M-2, ¶¶ 71–72, 402 P.3d 480, 494. But it is
inappropriate for a prosecutor to make remarks that have the “potential to convey
that the prosecution had additional inculpatory evidence unknown to the jury.”
Domingo-Gomez, 125 P.3d at 1052. Such “remarks of personal knowledge,
combined with the power and prestige inexorably linked with the office may
encourage a juror to rely on the prosecution’s allegation that unadmitted evidence
supports a conviction.” Id.
¶141 Here, the prosecutor’s reference to the grand jury’s indictment didn’t
suggest she had access to evidence the jurors didn’t. See id. Rather, when viewed
in context, it was a direct response to defense counsel’s argument that Ray was
charged only because of outside pressures and not because there was solid
evidence against him. See Denhartog, ¶ 55, 452 P.3d at 158; People v. Douglas, 2012
COA 57, ¶ 68, 296 P.3d 234, 249–50. It also reminded the jurors that defense
counsel’s allegations of improper motives weren’t evidence. See People v. Sanders,

63
2022 COA 47, ¶ 54, 515 P.3d 167, 179, aff’d on other grounds, 2024 CO 33, 549 P.3d
947; Denhartog, ¶ 53, 452 P.3d at 158.
¶142 Under these circumstances, we conclude that the prosecutor’s reference to
the grand jury’s indictment wasn’t improper.
3. Presumption of Innocence
¶143 Ray contends that the prosecutor diluted the presumption of innocence and
violated his constitutional rights during rebuttal closing argument by saying:
Now, it is true that at the beginning of a trial every defendant
is presumed to be not guilty unless and until the prosecution has
proven beyond a reasonable doubt that in fact he is guilty.
The evidence in this case has proven beyond any reasonable
doubt that the defendant, Mr. Ray, committed these crimes in order,
once again, to avoid being held accountable. He did not want to be
held accountable for his involvement in the [Lowry Park] shooting.
He was not a killer in that case because he did not want that
motivation, that money to disappear.
At this time, the evidence has proven that he is guilty and the
prosecution would ask that you hold him accountable. You hold him
accountable for committing these terrible crimes in order to avoid
being held responsible in the past, and we would ask that you find
him guilty.
¶144 Divisions of our court of appeals have regularly disapproved of comments
that suggest “that the presumption of innocence that had existed when the trial
began was ‘gone’ because of the presentation of evidence.” People v. Conyac, 2014
COA 8M, ¶ 141, 361 P.3d 1005, 1029; accord, e.g., People v. Ujaama, 2012 COA 36,
¶¶ 73–74, 302 P.3d 296, 311; People v. McBride, 228 P.3d 216, 224 (Colo. App. 2009).

64
In McBride, for example, the division concluded that the prosecutor erred by telling
the jurors during closing argument that the defendant “sits here in front of you a
guilty man. That presumption of innocence that we had when we started this case
is gone.” 228 P.3d at 223. The prosecutor also “told jurors not to begin their
deliberations at ‘not guilty’ because, ‘You’re about [ten] miles from not guilty
before you even start deliberating.’” Id. Such comments are improper because
“[a] defendant retains the presumption of innocence throughout the trial process
unless and until the jury returns a guilty verdict,” and so, “as a jury evaluates the
evidence, it must continue to presume the defendant innocent until it concludes
that the evidence proves guilt beyond a reasonable doubt.” Conyac, ¶ 141, 361 P.3d
at 1029 (emphases added); People v. Estes, 2012 COA 41, ¶¶ 32–33, 36, 296 P.3d 189,
195 (“[A] comment that suggests to a jury that the presumption of innocence may
be eliminated at any time before the jury arrives at a guilty verdict—whether upon
the close of evidence, or otherwise—is a misstatement of the law.”).
¶145 We conclude that the prosecutor’s comments here, while perhaps inartful,
weren’t improper. See McBride, 228 P.3d at 221. Unlike in McBride, the prosecutor
here didn’t encourage the jury to find that the presumption of innocence had been
overcome even before deliberations commenced. And even if we were to infer
that the prosecutor insinuated as much, defense counsel didn’t object, and the
error wasn’t plain.

65
¶146 For an error to be plain, it must be obvious. And for an error to be obvious,
it “must contravene a clear statutory command, a well-settled legal principle, or
established Colorado case law.” People v. Crabtree, 2024 CO 40M, ¶ 42, 550 P.3d
656, 667. We evaluate obviousness at the time the error is made. Id. at ¶ 4, 550 P.3d
at 660. Although a defendant’s right to be presumed innocent throughout the trial
was well-settled during Ray’s trial, the first appellate opinion to explicitly
disapprove of comments at all like those the prosecutor made here wasn’t
announced until after Ray’s trial. See McBride, 228 P.3d at 224 (announcing the
opinion on October 1, 2009, nearly five months after closing arguments in Ray’s
trial). Therefore, any error wasn’t plain and doesn’t warrant reversal. See Conyac,
¶ 143, 361 P.3d at 1029; see also Ujaama, ¶¶ 73–74, 302 P.3d at 311.
4. Emotional Appeal to Juror Sympathies
¶147 Defense counsel argued in closing that the prosecution wanted the jurors
“to substitute common sense and suspicion for proof beyond a reasonable doubt.”
He said that although the prosecution had talked “about a lot of things that could
have happened, that it could be that Robert Ray made these orders, it could be that
Robert Ray instructed these people,” there was “[n]o reliable proof of any of
that. . . . They’re hoping that you substitute this suspicion, this emotion of this
case for reasonable doubt.” Defense counsel acknowledged that this was “an
emotional case. It’s a horrible, horrible crime, no question about it. These poor

66
people have had to go through losing a loved one at such a young age and not
knowing what happened or why.” But he reminded the jurors that they had
“sworn a duty to not let bias or your emotions influence you.”
¶148 In rebuttal closing, the prosecutor responded to defense counsel’s
comments:
[Defense counsel] pointed out that the families of Javad
Marshall-Fields and Vivian Wolfe have suffered. They had to suffer
the tragedy of burying a child. And he indicated that they had to do
that without knowing what had happened or why.
Well, you all do know what happened and you do know why.
¶149 Ray contends that this comment improperly appealed to the jurors’ passions
and sympathies. We disagree.
¶150 A “prosecutor should not make arguments that encourage the jury to depart
from its duty to decide the case on the evidence and the inferences reasonably
derived therefrom.” Dunlap, 975 P.2d at 758–59 (quoting Standards for Crim. Just.,
Prosecution Function & Def. Function § 3–5.8, comment. at 109 (Am. Bar Ass’n, 3d
ed. 1993)). The prosecutor’s comments here mirrored defense counsel’s own
words and were a response to defense counsel’s argument about the lack of
evidence; they didn’t improperly appeal to juror sympathies. Cf. People v. Vasquez,
2022 COA 100, ¶ 68, 521 P.3d 1042, 1055–56 (concluding that it was improper for
the prosecutor to call the case “‘a tragedy’ for the victim and her family,” to

67
characterize the trial as “a public reckoning,” and to tell the jury it was “the
conscience of our community”).
¶151 We therefore conclude that these comments weren’t improper.
C. Cumulative Error
¶152 Ray contends that the trial court’s numerous evidentiary errors and the
prosecution’s misconduct constitute cumulative error that violated his right to a
fair trial. We disagree.
¶153 The cumulative error doctrine recognizes that although individual errors
viewed in isolation may be harmless, “numerous formal irregularities . . . may in
the aggregate show the absence of a fair trial.” People v. Vialpando, 2022 CO 28,
¶ 33, 512 P.3d 106, 114 (quoting Howard-Walker v. People, 2019 CO 69, ¶ 24, 443 P.3d
1007, 1011). After all, a defendant’s constitutional right to a fair trial includes the
right to an impartial jury—a right that “comprehends a fair verdict, free from the
influence or poison of evidence which should never have been admitted, and the
admission of which arouses passions and prejudices which tend to destroy the
fairness and impartiality of the jury.” Howard-Walker, ¶ 23, 443 P.3d at 1011
(quoting Oaks v. People, 371 P.2d 443, 447 (Colo. 1962)); see also U.S. Const. amend.
VI; Colo. Const. art. II, §§ 16, 23. To warrant reversal for cumulative error, there
must have been multiple errors that collectively prejudiced the substantial rights

68
of the defendant and affected the integrity of the fact-finding process, even if any
single error didn’t. Howard-Walker, ¶¶ 24–25, 443 P.3d at 1011.
¶154 Here, we have either determined or assumed without deciding that the trial
court made several errors, including admitting Lowry Park evidence as res gestae,
evidence of uncharged threats to Brandi Taylor, evidence related to Sailor’s black
eye, a picture of Ray’s back tattoo, and irrelevant hearsay statements Marshall-
Fields made about a dream; and allowing improper comments by the prosecution.
But we also determined that none of those errors individually warranted reversal.
And now, considering the effect of those errors in the aggregate, we conclude that
they didn’t substantially prejudice Ray or undermine the fairness of his trial.
¶155 Many of the errors involved evidence that was otherwise admissible or was
cumulative of admissible evidence. And in those few instances where the
evidence wasn’t admissible at all, any prejudice was minimized by the brevity of
the presentation, a limiting instruction, and/or further context and explanation
through cross-examination or voir dire. See Vialpando, ¶ 46, 512 P.3d at 116.
Moreover, none of the errors established proof of an element of any of the charges,
improperly implicated a witness’s or Ray’s credibility, or affected Ray’s
constitutional rights. See, e.g., Howard-Walker, ¶¶ 40–48, 443 P.3d at 1014–15. The
fact that this was a lengthy trial that included many witnesses and voluminous

69
evidence also minimized the prejudicial impact these handful of errors might have
had. See Vialpando, ¶ 33, 512 P.3d at 114; Howard-Walker, ¶ 40, 443 P.3d at 1014.
¶156 Therefore, we conclude that Ray is not entitled to reversal under the
cumulative error doctrine.
D. Juror Misconduct
¶157 Following Ray’s conviction and sentencing, he moved for a new trial. In
that motion, he alleged that a juror had failed to disclose material information on
her juror questionnaire that revealed potential bias and prejudice. The
information related to the juror’s brother-in-law’s recent death, her family’s
suspicions that his death was a homicide, and her belief that potential witnesses
in that case weren’t coming forward out of fear. Ray also alleged that the juror
shared this information with other jurors, which introduced extraneous prejudicial
information into the deliberative process. He asked the court to hold an
evidentiary hearing to resolve these allegations and to allow him to subpoena
jurors to testify at the hearing. The parties discussed the issue at a postconviction
evidentiary hearing for other matters. The court concluded that an evidentiary
hearing was required to discuss the juror’s failure to disclose information on her
questionnaire because it raised issues of potential bias. The court further
explained that the issue of whether the juror had introduced extraneous
information into the jury room wouldn’t be discussed, but it recognized that the

70
hearing could “morph” and that the extraneous information issue could become
relevant.
¶158 At the subsequent evidentiary hearing, the juror explained that her brother-
in-law had died of a drug overdose about six months before Ray’s trial, and “[t]he
family fe[lt] like it could have been a homicide,” or at least, they “would like to
think” his death wasn’t a drug overdose. She also said that she never saw a police
report and never spoke to the police about her brother-in-law’s death. She
conceded it was possible that there were witnesses who weren’t coming forward
regarding her brother-in-law’s death, but she didn’t have any information that
such witnesses existed. During cross-examination, she further explained that
although the family had questioned the circumstances of her brother-in-law’s
death, the police had never indicated it was anything other than an overdose.
¶159 At one point during the juror’s direct examination, defense counsel asked if
she had told the other jurors about her brother-in-law’s death, and she said, “Yes.”
He then asked her to “tell me what you told the members of the jury,” and the
prosecution objected, arguing that the questioning fell under CRE 606 and invaded
“the province of the jury’s deliberative process.” The court sustained the objection.
After further discussion, defense counsel asked the juror whether her brother-in-
law’s “suspicious death . . . cause[d] [her] to have any special insight during [the]
deliberations in [Ray’s] case,” and she said, “No.” Counsel then again asked the

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juror whether she shared this information with the other jurors, and the court
again sustained the prosecutor’s objection.
¶160 At the end of the hearing, the court concluded that the juror hadn’t
deliberately hidden information in answering the questionnaire and hadn’t, by her
conduct, deprived Ray of the opportunity to challenge her for cause. The court
also concluded that Rule 606 precluded it from inquiring into the extraneous-
information allegations.
¶161 Ray contends that the court erred by concluding that Rule 606 precluded it
from inquiring into the extraneous-information allegations. We disagree.
¶162 Colorado law strives “to promote finality of verdicts, shield verdicts from
impeachment, and protect jurors from harassment and coercion” and therefore
“strongly disfavors any juror testimony impeaching a verdict.” PeoplePeopl v.
Harlan, 109 P.3d 616, 624 (Colo. 2005); accord Clark v. People, 2024 CO 55, ¶ 66, 553
P.3d 215, 230. As a result, a juror is prohibited from testifying “as to any matter or
statement occurring during the course of the jury’s deliberations or to the effect of
anything upon . . . any . . . juror’s mind or emotions as influencing the juror to
assent to or dissent from the verdict . . . or concerning the juror’s mental processes
in connection therewith,” though a juror may testify about “whether extraneous
prejudicial information was improperly brought to the jurors’ attention.”
CRE 606(b).

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¶163 The scope of this no-impeachment rule is broad and allows for exceptions
only when allegations of juror bias are so extreme that the usual safeguards aren’t
sufficient to protect the integrity of the jury-trial right. See Peña-Rodriguez, 580 U.S.
at 221. So, for example, relying on the nearly identical federal version of this rule,
the Supreme Court has allowed inquiry into the deliberative process when there
was “a showing that one or more jurors made statements exhibiting overt racial
bias that cast serious doubt on the fairness and impartiality of the jury’s
deliberations and resulting verdict.” Id. at 225. To justify setting aside the no-
impeachment bar, the statements “must tend to show that racial animus was a
significant motivating factor in the juror’s vote to convict.” Id. at 225–26. But the
Court has precluded inquiry into juror deliberations even when it was alleged that
a juror was inebriated during deliberations and when a juror allegedly lied about
a pro-defendant bias during voir dire. See id. at 219–21 (discussing Tanner v. United
States, 483 U.S. 107 (1987), and Warger v. Shauers, 574 U.S. 40 (2014)).
¶164 A party seeking to impeach a verdict based on the improper introduction of
extraneous prejudicial information to the jurors “must show both that extraneous
information was improperly before the jury and that the extraneous information
posed the reasonable possibility of prejudice to the defendant.” Clark, ¶ 68,
553 P.3d at 230 (quoting Kendrick v. Pippin, 252 P.3d 1052, 1063 (Colo. 2011),
abrogated on other grounds by Bedor v. Johnson, 2013 CO 4, 292 P.3d 924). So, courts

73
must first determine whether the complaining party “has presented competent
evidence alleging that extraneous prejudicial information was improperly before
the jury.” Id. at ¶ 70, 553 P.3d at 230. Because this determination presents a mixed
question of law and fact, we review the court’s factual findings for an abuse of
discretion and its legal conclusions de novo. Kendrick, 252 P.3d at 1064. Whether
information constitutes extraneous prejudicial information is a question of law.
Clark, ¶ 65, 553 P.3d at 230.
¶165 If a court determines the challenged information wasn’t extraneous or
prejudicial, it may dismiss a motion for a new trial without an evidentiary hearing.
Id. at ¶¶ 70, 74, 553 P.3d at 231. But if the court determines the information was
extraneous and prejudicial, it must then determine whether there was an
objectively “reasonable possibility that the . . . information influenced the verdict
to the detriment of the defendant.” Id. at ¶ 71, 553 P.3d at 231. This determination
is often made after an evidentiary hearing. Id.; accord Harlan, 109 P.3d at 625.
¶166 Extraneous information is “any information that is not properly received
into evidence or included in the court’s instructions.” Kendrick, 252 P.3d at 1064
(quoting Harlan, 109 P.3d at 624). It “‘consists of (1) “legal content and specific
factual information” (2) “learned from outside the record” (3) that is “relevant to
the issues in a case.”’” Clark, ¶ 75, 553 P.3d at 231 (quoting People v. Newman, 2020
COA 108, ¶ 15, 471 P.3d 1243, 1250). Extraneous information is improper for jury

74
consideration. Kendrick, 252 P.3d at 1064 (explaining that jurors are instructed “to
consider only the evidence admitted at trial and the law as given in the trial court’s
instructions” (quoting Harlan, 109 P.3d at 624)).
¶167 But jurors are expected “to use their life experiences to engage the record
evidence and to participate in thoughtful deliberations.” Id. at 1066 (“[T]his
approach recognizes the traditional role of the jury, that the jurors are expected to
call on their personal experiences and common sense in reaching their verdict.”).
So, information isn’t considered extraneous “if it was ‘part of the juror’s
background, gained before the juror was selected to participate in the case and not
as the result of independent investigation into a matter relevant to the case.’”
People v. Clark, 2015 COA 44, ¶ 222, 370 P.3d 197, 227 (quoting Kendrick, 252 P.3d
at 1066).
¶168 Here, although the juror’s family had suspicions about her brother-in-law’s
death, there was no evidence of foul play and no investigation in which the juror
was involved or of which she was aware. And based on the juror’s testimony at
the hearing, it seems she was only peripherally aware of the family’s suspicions
and not pursuing any sort of investigation herself. Cf. id. at ¶¶ 239–40, 370 P.3d at
229 (concluding that jurors introduced extraneous information into deliberations
when they conducted an informal experiment to test the credibility of witness
testimony during the trial). Rather, this information was part of the juror’s

75
background and personal life experience, independent of the trial. It wasn’t,
therefore, extraneous.
¶169 And even if it was, there’s no reasonable possibility that this information
could have prejudiced Ray because it didn’t contain any information relevant to
the issues in Ray’s case. Moreover, “[b]ecause the line between past experience
and extraneous information is a fine one, the admonition that we ‘err in favor of
the lesser of two evils—protecting the secrecy of jury deliberations at the expense
of possibly allowing irresponsible juror activity’—is important.” Clark, ¶ 84,
553 P.3d at 232 (quoting Garcia v. People, 997 P.2d 1, 7 (Colo. 2000)). So, we
conclude that Rule 606(b) precluded jurors from testifying about the alleged juror
misconduct.
E. Cruel and Unusual Punishment
¶170 Following the guilt phase of Ray’s trial, the court held a separate penalty-
phase trial, which resulted in the imposition of a death sentence for Marshall-
Fields’s murder and LWOP for Wolfe’s murder. The Governor later commuted
Ray’s capital sentence to LWOP. Ray now challenges, for the first time, his LWOP
sentencessentence as unconstitutional, both facially and as applied, under the
Eighth Amendment of the U.S. Constitution. He asks this court to remand his case
so the district court can hold an evidentiary hearing to address these constitutional
challenges.

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¶171 We review constitutional challenges to sentencing determinations de novo.
Lopez v. People, 113 P.3d 713, 720 (Colo. 2005). In doing so, we recognize that it is
the legislature’s prerogative to define crimes and punishments, circumscribed of
course by the Eighth Amendment’s prohibition against “cruel and unusual
punishments,” and so we generally defer to the legislature’s policy choices
regarding sentencing. McDonald v. People, 2024 CO 75, ¶¶ 8, 10, 560 P.3d 412,
417–18 (quoting U.S. Const. amend. VIII); accord Colo. Const. art. II, § 20; Ewing v.
California, 538 U.S. 11, 25 (2003) (plurality opinion). We also generally presume
that statutes are constitutional unless “the party challenging it proves its
unconstitutionality beyond a reasonable doubt.” Woo v. El Paso Cnty. Sheriff’s Off.,
2022 CO 56, ¶ 21, 528 P.3d 899, 905 (quoting Coffman v. Williamson, 2015 CO 35,
¶ 13, 348 P.3d 929, 934).
¶172 “A statute is facially unconstitutional only if no conceivable set of
circumstances exist under which it may be applied in a constitutionally
permissible manner.” People v. Montour, 157 P.3d 489, 499 (Colo. 2007). A statute
is unconstitutional as applied if it doesn’t, “with sufficient clarity, prohibit the
challenging party establishes that it “is unconstitutional ‘under the circumstances
inconduct against which [he] has acted or proposes to act.’”it is enforced.” People
v. King, 2017 CO 44, ¶ 7, 401Shell, 148 P.3d 516, 517162, 173 (Colo. 2006) (quoting
Qwest Servs. Corp. People v. Blood, 252McIntier, 134 P.3d 1071, 1085 (Colo. 2011)).

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“The practical effect of holding a statute unconstitutional as applied is to prevent
its future application in a similar context, but not to render it utterly inoperative.”
Id. (quoting Developmental Pathways v. Ritter, 178 P.3d 524, 534467, 475 (Colo.
2008App. 2005)).
¶173 The Colorado legislature has created a comprehensive sentencing scheme.
This scheme provides that, for offenses committed before July 2020, the
presumptive that guides our courts in resentencing defendants who were initially
sentenced to death under Colorado’s previous capital sentencing range for a class
1 felony is life imprisonment to death. § 18-1.3-401(1)(a)(I)–(V)(A.1), C.R.S. (2024).
However, recognizing that a court might later determine that the death penalty
was unconstitutional, the legislature provided a mechanism by whichscheme.
Under this revised sentencing scheme, “the court which previously sentenced a
person to death shall cause such person to be brought before the court, and the
court shall sentence such person to life imprisonment.” § 18-1.3-401(5).9 And it
defined life imprisonment), C.R.S. (2024). The statute further explains that, for
adult offendersdefendants like Ray, who committed an offense on or aftertheir
offenses between July 1, 1990, as and July 1, 2020, life imprisonment means LWOP.
9 In 2020, the legislature abolished the death penalty for offenses committed on or
after July 1, 2020. Ch. 61, secs. 1, 10, §§ 16-11-901, 18-1.3-401(1)(a)(V.5)(A), 2020
Colo. Sess. Laws 204, 204, 209–10. But it left intact the sentencing scheme for
offenses committed before July 2020.

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§ 18-1.3-401(4)(a)(III); see also § 18-1.3-401(4)(b) (explaining that, for juveniles tried
as adults for offenses committed after July 1, 2006, life imprisonment means life
with the possibility of parole after forty years); People v. Tate, 2015 CO 42, ¶¶ 32–
34, 352 P.3d 959, 967 (describing Colorado’s evolving definition of “life
imprisonment”).
¶174 Ray seems to argue as follows. “[T]he Eighth Amendment forbids a
sentencing scheme that mandates life in prison without the possibility of parole
for juvenile offenders.” Miller v. Alabama, 567 U.S. 460, 479 (2012); see also Graham v.
Florida, 560 U.S. 48, 74–75 (2010). Ray was nineteen when he committed the
offenses here. And while nineteen-year-olds aren’t defined as juveniles by statute,
they should be included in the LWOP prohibitionthat statutory definition because
“developing brain science” is expanding “the longstanding recognition that
juveniles have diminished moral culpability for their crimes . . . to encompass
emerging adults—those who were [eighteen to twenty] years old at the time of
their crimes.” Therefore, Ray’s LWOP sentences aresentence is facially
unconstitutional. We reject Ray’s argument for fourtwo reasons.
¶175 First, neither this court nor the U.S. Supreme Court has held that LWOP
sentences are categorically unconstitutional. See Sellers v. People, 2024 CO 64,
¶¶ 20–25, 560 P.3d 954, 959–60; see also, e.g., Graham, 560 U.S. at 69; Tate, ¶ 31,
352 P.3d at 967. And because we see no reason to depart from existing precedent,

79
we conclude that an LWOP sentence imposed upon a class-1-felony conviction is
facially constitutional.
¶175¶176 Second, both this court and the U.S. Supreme Court have held that, as
applied to juveniles, mandatory LWOP sentences are unconstitutional but
discretionary ones are permissible in some cases. Miller, 567 U.S. at 479; Tate,
¶¶ 35–36, 352 P.3d at 967–68. Bothboth the Colorado legislature and the U.S.
Supreme Court also recognize eighteen as the age that divides juveniles and
adults, and neither has yet adopted a broader definition of “juvenile.” See Graham,
560 U.S. at 74–75 (noting that “[t]he age of [eighteen] is the point where society
draws the line for many purposes between childhood and adulthood” (first
alteration in original) (quoting Roper v. Simmons, 543 U.S. 551, 574 (2005))); § 19-1-
103(10), (21), (88), C.R.S. (2024) (defining “Adult” as “a person eighteen years of
age or older”; “Child” as “a person under eighteen years of age”; and “Juvenile”
as having the same meaning as “Child”); accord § 19-2.5-102(6), (28), C.R.S. (2024).
And, within constitutional limits, we are bound by the legislature’s policy choices.
¶177 Ray points to several states that have expanded the prohibition on
mandatory LWOP sentences to include defendants as old as twenty-one years old.
See Commonwealth v. Mattis, 224 N.E.3d 410, 415 (Mass. 2024) (holding that, under
the state constitution, mandatory LWOP for defendants who were under twenty-
one years old when they committed their offense is unconstitutionally cruel and

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unusual); In re Monschke, 482 P.3d 276, 279–81 (Wash. 2021) (same); People v. Parks,
987 N.W.2d 161, 182 (Mich. 2022) (same but only as to eighteen year olds); see also
730 Ill. Comp. Stat. Ann. 5/5-4.5-115(b) (West 2025) (allowing defendants who
were under twenty-one years old when they committed their offense to seek
parole review after ten years, or after twenty years if their offense was first degree
murder). But see People v. Spencer, 2025 IL 130015, ¶ 32, __ N.E.3d __ (Ill. 2025)
(“We . . . continue to hold that Miller only applies to juveniles and does not apply
to emerging adults.”). Colorado has not yet followed suit, though the legislature
in recent years has added “young adults” (defined as defendants who were
eighteen to twenty years old when they committed their offense) to certain statutes
that had previously given various sentencing considerations only to juveniles. See
§§ 17-34-101 to -102, C.R.S. (2024) (specialized program placement);
§ 17-22.5-403.7(1)(a)(III), C.R.S. (2024) (parole eligibility). Notably, however, in
amending these statutes, the legislature expressly excluded young adults, like Ray,
who were sentenced to LWOP. See § 17-34-101(1)(a), C.R.S. (2024);
§ 17-22.5-403.7(1)(b), (2).
¶178 Nonetheless, even if we were to accept Second, Ray’s argument that scientific
research and society’s evolving standards of decency support the conclusion that
emerging adults share the qualities of youth that render mandatory LWOP

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sentences for juveniles unconstitutionally cruel and unusual, we would
nonetheless affirm Ray’s sentences here.
¶179 When we previously considered the constitutionality of mandatory LWOP
sentences for juveniles, we reasoned that, because life imprisonment is
proportionally so much longer for juveniles than it generally is for adults and
because juvenile brains aren’t fully developed, courts must “follow a certain
process—considering an offender’s youth and attendant characteristics—before
imposing [this] particular penalty.” Tate, ¶ 31, 352 P.3d at 967 (quoting Miller,
567 U.S. at 483); see also Miller, 567 U.S. at 474–75, 477–78; Graham, 560 U.S. at 59
(“The concept of proportionality is central to the Eighth Amendment.”). Ray
received this individualized consideration.
¶180 Several experts testified for the defense during Ray’s penalty-phase trial.
These experts discussed, both in general terms and specifically as to Ray,
psychology, brain and neurological development, trauma responses, and the long-
term effect that brain injuries can have. This testimony examined Ray’s age,
family, social life, potential brain injuries, exposure to violence and trauma, and
more. Ray’s family and friends also testified about Ray’s childhood
neighborhoods, upbringing, prior criminal activity, and personality.
¶181 At the end of the trial, the jurors were presented with the only two
sentencing options authorized by statute at the time—LWOP or death. The jurors

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were instructed to consider all the testimony, information, and evidence they had
received during the guilt and penalty phases of the trial and to make their own
determinations regarding the weight of the evidence based on the witnesses’
credibility, motives, and relationships, as well as any other relevant circumstances.
This information would necessarily include the testimony and evidence related to
Ray’s “youth and attendant characteristics.” Miller, 567 U.S. at 483. We presume
the jurors followed the court’s instructions in deciding to impose the harshest
sentence available for Marshall-Fields’s murder. See Washington, ¶¶ 25–27,
547 P.3d at 1092–93.
¶182 We therefore conclude that, given the individualized consideration Ray
received, a sentence to LWOP is constitutional as applied to Ray. See Miller,
567 U.S. at 479–80 (explaining that “appropriate occasions for sentencing juveniles
to this harshest possible penalty will be uncommon,” but the Court wouldn’t
“foreclose a sentencer’s ability to make that judgment,” as long as the sentencer
considered “how children are different, and how those differences counsel against
irrevocably sentencing them to a lifetime in prison”).
¶176¶183 Third, Ray’s LWOP sentence for Marshall-Fields’s murderLWOP
sentence wasn’t imposed by a court; it was granted by the Governor, exercising
his authority to commute Ray’s death sentence. The Governor has exclusive
authority “to grant reprieves, commutations and pardons after conviction.” Colo.

83
Const. art. IV, § 7. Thus, so long as the Governor’s “commutation is
constitutionally permissible” and the original sentence was “legally imposed by a
court,” the judiciary has no authority to alter the sentence. Johnson v. Perko, 692
P.2d 1140, 1142 (Colo. App. 1984); accord People ex rel. Dunbar v. Dist. Ct., 502 P.2d
420, 421 (Colo. 1972); People v. Davis, 526 P.2d 312, 313 (Colo. 1974). Ray’s LWOP
sentence for Marshall-Fields’s murder meets both criteria.
¶177¶184 Ray was originally sentenced pursuant to the capital sentencing
procedures in place at the time of his conviction, and he hasn’t argued on appeal
that his original capital sentence wasn’t legally imposed. Moreover, under the
sentencing statutes, a court could have resentenced Ray to LWOP following the
death penalty’s abolishment, and we have previously held that mandatory LWOP
sentences for adult, class- 1- felony offenders aren’t categorically unconstitutional.
Sellers v. People, 2024 CO 64, ¶ 37, 560 P.3d at954, 962.10 We thus conclude that
10 Even if nineteen-year-olds were juveniles for sentencing purposes, the Supreme
Court in Miller held only that mandatory LWOP sentences for juveniles are
unconstitutional. 567 U.S. at 479–80; see also, e.g., Graham, 560 U.S. at 74–75. But
there was nothing mandatory about Ray’s commuted LWOP sentence. The
Governor is authorized to commute a capital sentence “by reducing the penalty
. . . to imprisonment for life or for a term of not less than twenty years at hard
labor.” § 16-17-101, C.R.S. (2024). Thus, the Governor wasn’t required to reduce
Ray’s sentence to LWOP; he had other options. But he chose LWOP after,
presumably, considering the circumstances of this particular case as required by
statute—including, Ray’s character before conviction and during confinement,
any “statements of the sentencing judge and the district attorneys, . . . and any
other material [or comments] concerning the merits of the [commutation]

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Ray’s commuted LWOP it is facially constitutional for the Governor to commute
a defendant’s capital sentence is constitutionalto LWOP when the defendant was
at least nineteen years old when he committed the relevant offenses.
¶178¶185 Lastly,We also conclude that Ray’s sentence is constitutional as
applied to him because we assume that in commuting Ray’s sentence, the
Governor adhered to the statutory requirements and considered Ray’s conduct
during incarceration and his reformation potential. See § 16-17-102(1), C.R.S.
(2024). And while we commend Ray for refocusing his life in a positive direction,
we generally determine as-applied constitutionality at the time a sentence is
imposed. See, e.g., Lucero v. People, 2017 CO 49, ¶¶ 26–29, 394 P.3d 1128, 1134
(concluding that the defendant’s sentence was constitutional and “appropriate”
because the sentencing court considered the relevant circumstances at the time the
sentence was imposed). A court may consider a defendant’s rehabilitative progress
and society’s evolving standards of decency during a proportionality review, see
Wells-Yates v. People, 2019 CO 90M, ¶¶ 45–48, 454 P.3d 191, 206, but when a
sentence is facially constitutional and a court is considering a defendant’s Eighth
Amendment as-applied challenge, the key considerations are “the culpability of
the offenders at issue in light of their crimes and characteristics, along with the
application” that the Governor believed to be “just and proper,” “with due regard
for the reformation of the accused.” § 16-17-102(1), C.R.S. (2024).

85
severity of the punishment in question,” Graham, 560 U.S. at 67; see also Wells-Yates,
¶¶ 5–18, 454 P.3d at 196–200. And, as discussed above, Ray received this
consideration. Therefore, we need not remand this case to the trial court for an
evidentiary hearing regarding these claims.
III. Conclusion
¶179¶186 We affirm the trial court’s judgment of conviction and Ray’s LWOP
sentence.