People v. Ray (2025 CO 42M): Post-Rojas Treatment of “Res Gestae” Other-Acts Evidence, CRE 606(b) Limits on Juror Inquiry, and Separation-of-Powers Protection of Gubernatorial LWOP Commutations

Court: Colorado Supreme Court (en banc)  |  Date: June 23, 2025 (as modified Sept. 8, 2025)  |  Disposition: Judgment and sentence affirmed

1. Introduction

People v. Ray arises from a high-profile witness-elimination homicide: Javad Marshall-Fields and his fiancée, Vivian Wolfe, were killed in a drive-by shooting (“the Dayton Street shooting”) eight days before Marshall-Fields was to testify against Robert Keith Ray. The prosecution’s theory was that Ray—facing trial stemming from the earlier “Lowry Park shooting”—conspired with associates to silence witnesses, culminating in the Dayton Street murders.

After conviction on most counts and an original death sentence (later commuted by Governor Jared Polis to life without the possibility of parole (“LWOP”)), Ray pursued a direct appeal raising four clusters of claims:

• Evidentiary error, especially admission of extensive uncharged-misconduct evidence as “res gestae,” plus fear evidence, victim-impact evidence, and positive character evidence about the victims during the guilt phase.
• Prosecutorial misconduct, including alleged racial-bias appeals, grand-jury references, dilution of the presumption of innocence, and emotional appeals.
• Juror misconduct inquiry, arguing the court wrongly denied subpoenas to probe alleged extraneous information shared during deliberations under CRE 606(b).
• Eighth Amendment challenge to LWOP (facial and as-applied), including an “emerging adult” argument and a commutation-related separation-of-powers problem.

2. Summary of the Opinion

The Colorado Supreme Court affirmed. It held that the district court did err in some evidentiary rulings—most notably admitting evidence under the now-abolished “res gestae” doctrine (see Rojas v. People) and admitting certain items like tattoo evidence and some victim character material during guilt. But the Court concluded all such errors were harmless, individually and cumulatively.

The Court also rejected reversible prosecutorial misconduct, upheld the denial of juror-deliberation inquiry under CRE 606(b), and held Ray’s commuted LWOP sentence constitutional.

3. Analysis

A. Precedents Cited (and How They Drove the Decision)

• Rojas v. People (2022 CO 8) and People v. Owens (2024 CO 10):
  These cases provide the doctrinal engine of Ray’s evidentiary appeal. Rojas abolished the “res gestae” doctrine and required courts to analyze uncharged acts through the Colorado Rules of Evidence—principally CRE 401–403 and CRE 404(b)—starting with an intrinsic/extrinsic determination. Owens applied Rojas retroactively on appeal and made clear that admitting evidence as “res gestae” is an abuse of discretion post-abolition. In Ray, the Court followed Owens: admission “as res gestae” was legal error, but the reviewing court must still test whether the evidence was otherwise admissible and whether any error was harmless.
• People v. Spoto (Colo. 1990), plus People v. Snyder, People v. Rath, Yusem v. People, and Fletcher v. People:
  These authorities structure the Rule 404(b) analysis for extrinsic other-acts evidence suggesting bad character. Ray applies Spoto to assess whether Lowry Park evidence (and other acts like threats) could have come in for non-propensity purposes (notably motive) and whether CRE 403 balancing should exclude it. The Court’s approach is “admissibility-first, harm-second”: even if the trial court used the wrong label (“res gestae”), the conviction stands if the evidence was admissible under the proper rule or if the mistake did not substantially influence the verdict.
• Davis v. People (2013 CO 57) and People v. Montoya (2024 CO 20):
  These cases supply the abuse-of-discretion lens for evidentiary rulings, and Montoya anchors harmless error when objections are preserved.
• Hagos v. People (2012 CO 63) and People v. Crabtree (2024 CO 40M):
  These define plain-error review and “obviousness.” They matter especially for unpreserved misconduct and presumption-of-innocence claims.
• Golob v. People (2008) and People v. Cohen (2019 COA 38):
  These cases constrain “opening the door.” Ray uses them to hold the tattoo evidence was wrongly admitted: rebuttal must be “only to the extent necessary” to cure a misleading impression, not to inject prejudicial character messaging.
• Hearsay and trustworthiness cases: Compan v. People, People v. Vanderpauye (2023 CO 42), Pena v. People, People v. Rogers, People v. Madson, People v. Haymaker, and Vasquez v. People:
  These authorities shape the admissibility of victim fear statements under CRE 803(2) (excited utterance), CRE 803(3) (state of mind), and CRE 807 (residual). The Court affirmed admission of key Gibby’s-bar threat statements as excited utterances and upheld some day-of-murder fear statements as state-of-mind evidence, while finding “dream” testimony improperly admitted but harmless.
• Victim-impact and victim-character authorities: People v. Dunlap, People v. Martinez (2020 COA 141), People v. McClelland, People v. White, People v. Loscutoff, People v. Miller, and People v. Jones:
  These cases mark the limits of guilt-phase sympathy evidence. The Court agreed that extensive “good character” testimony about the homicide victims during guilt was improper (and potentially sympathy-inducing) but held the error harmless given the trial’s overall scale, instructions, and other evidence.
• Prosecutorial misconduct framework: People v. Robinson, Domingo-Gomez v. People, Darden v. Wainwright, McCleskey v. Kemp, and Peña-Rodriguez v. Colorado:
  These cases guide the two-step inquiry (impropriety and prejudice) and highlight heightened sensitivity to racial bias. The Court condemned racially-charged language but found no plain error on this record (notably because the prosecutor was quoting defendants’ words and the references were not exploited as an argument for racialized credibility).
• CRE 606(b) and juror-impeachment authorities: Clark v. People (2024 CO 55), Kendrick v. Pippin, People v. Harlan, and Garcia v. People (plus federal discussions of Tanner v. United States and Warger v. Shauers in the Court’s analysis):
  These cases draw the line between “extraneous prejudicial information” and permissible “life experience.” Ray treats the juror’s family suspicions about a relative’s overdose as background, not “legal content and specific factual information” learned outside the record and relevant to the issues—thus barring inquiry into deliberations under CRE 606(b).
• Eighth Amendment/LWOP and separation-of-powers authorities: Sellers v. People, Miller v. Alabama, Graham v. Florida, Roper v. Simmons, and commutation cases Johnson v. Perko, People ex rel. Dunbar v. Dist. Ct., People v. Davis:
  These anchor the Court’s holding that (1) LWOP is not categorically unconstitutional for adult class-1 felonies, (2) the juvenile LWOP line remains at 18 for federal constitutional purposes, and (3) courts cannot revise a constitutionally permissible commutation that replaces a legally imposed sentence (separation of powers).

B. Legal Reasoning

1) “Res gestae” after abolition: error, but not necessarily reversal

The Court treats admission “as res gestae” as an abuse of discretion because Rojas v. People abolished the doctrine and appellate courts apply the law in effect at the time of appeal (following People v. Owens). But the Court then undertakes a functional evidentiary analysis:

• Lowry Park evidence: extrinsic; triggers CRE 404(b) and a Spoto analysis; admissible largely for motive/relationship/context, though the Court expresses “misgivings” about the volume. Error was harmless given limiting instructions, notice, cross-examination, and cumulative nature.
• Threats to Brandi Taylor: extrinsic; not admissible under CRE 404(b) on this record (insufficient non-propensity linkage in testimony; no limiting instruction), but harmless due to context supplied later and the jury’s split verdict on intimidation counts.
• Threats to Askari Martin: treated as intrinsic/direct proof of conspiracy/solicitation charges; admissible under general relevance rules; “res gestae” label harmless.
• Sailor’s black eye: details about how it happened carried undue prejudice and should have been sanitized; harmless due to limiting instruction, denial of assault by Sailor, and the evidence’s peripheral role.

2) “Opening the door” has limits (tattoo evidence)

Applying Golob v. People and People v. Cohen, the Court holds that asking about Ray’s attitude toward his upcoming trial did not “open the door” to character-laden tattoo imagery (“Crime Payz 999 Wayz”). The tattoo had minimal probative value and high prejudicial force; it was irrelevant to a material fact. Still, the error was harmless because the display was brief and the trial record otherwise supported the verdict.

3) Victim fear statements: tight hearsay parsing

The Court distinguishes among fear-related statements based on hearsay theory and relevance:

• Gibby’s threats: admissible as excited utterances (CRE 803(2)), using Compan v. People and clarifying that the “reflective thought” concern emphasized in People v. Vanderpauye is especially acute for self-serving defendants’ statements, not for a threatened victim’s contemporaneous reports.
• Dream statements: improperly admitted; the Court stresses that witness intimidation under § 18-8-704(1)(a) does not require proof the witness was actually intimidated, making state-of-mind evidence less directly material here; error harmless due to brevity and other properly admitted fear evidence.
• Day-of-murder call to sister: admissible under CRE 803(3) as then-existing state of mind and relevant to identification of who was threatening him.

4) Victim-impact vs. guilt-phase relevance; victim “good character” limits

The Court acknowledges the general principle (tracked in People v. Martinez (2020 COA 141)) that guilt-phase victim-impact evidence is usually irrelevant unless it provides context/circumstances of the charged crime. It ultimately finds no reversible guilt-phase victim-impact error on this record. But it does hold the district court abused its discretion by admitting extensive positive character evidence about Marshall-Fields and Wolfe during guilt—because it was not probative of a material fact and risked sympathy-based decision-making—while still finding harmlessness.

5) Prosecutorial misconduct: impropriety assessed in context; prejudice controls

Using the People v. Robinson framework, the Court finds:

• Racially charged language: assuming misconduct (failure to paraphrase slurs), no plain error because the prosecutor was quoting evidence, did not exploit it as an argument, and the court instructed the jury against sympathy/prejudice.
• Grand jury reference: permissible rebuttal to defense claims of politically driven charging; court immediately instructed indictment is not evidence.
• Presumption of innocence: comments were not improper (and in any event not “obvious” error at the time, referencing People v. Crabtree and the timeline relative to People v. McBride).
• Emotional appeal: rebuttal (“you all do know what happened and you do know why”) framed as response to defense and tied to evidentiary theory, not a request for sympathy-driven conviction.

6) CRE 606(b): “extraneous information” vs. “life experience”

The Court, relying on Clark v. People (2024 CO 55) and Kendrick v. Pippin, holds that a juror’s family suspicions about a relative’s overdose were not “extraneous prejudicial information.” They were not “legal content and specific factual information” learned outside the record and relevant to issues in Ray’s case; rather, they were part of her background. Therefore, CRE 606(b) barred inquiry into what was said during deliberations about that topic.

7) LWOP after commutation: constitutionality and separation of powers

The modified opinion emphasizes two linked points:

• Facial validity: LWOP is not categorically unconstitutional for adult class-1 felonies (citing Sellers v. People), and federal juvenile-LWOP limits in Miller v. Alabama and Graham v. Florida do not extend beyond age 18 as a matter of controlling precedent.
• Commutation insulation: because the Governor has exclusive commutation power (Colo. Const. art. IV, § 7), and a commutation that is constitutionally permissible replaces a legally imposed sentence, the judiciary lacks authority to alter the commuted sentence (citing Johnson v. Perko, People ex rel. Dunbar v. Dist. Ct., and People v. Davis).

C. Impact

• Post-Rojas appellate practice: Ray confirms that “res gestae” admissions are reversible-error candidates only after a second-stage inquiry—whether evidence is admissible under CRE 404(b)/CRE 401–403 and, if not, whether prejudice meets harmless/plain-error thresholds. This incentivizes litigants and trial courts to build a full CRE 404(b) record (material fact, non-propensity relevance, and CRE 403 balancing) even when “background” evidence is sought.
• Policing sympathy evidence in guilt: While finding harmlessness, the Court’s holding that extensive “good character” evidence about homicide victims is improper during guilt will be cited to limit prosecution storytelling that is untethered to a material fact, especially when combined with in-life photos.
• Hearsay doctrine discipline: The opinion reinforces that excited utterance analysis is context-sensitive and that victim state-of-mind evidence must be tied to a material issue—not simply introduced because fear is emotionally resonant.
• CRE 606(b) boundary clarity: The Court strengthens the “life experience” side of the line, signaling that courts will “err in favor” of deliberation secrecy absent concrete, issue-relevant outside-record factual/legal input.
• Separation-of-powers shield for commutations: Defendants seeking to attack the length/type of a commuted sentence face a structural barrier: unless the commutation itself is constitutionally impermissible, courts will not re-sentence around the executive act.

4. Complex Concepts Simplified

“Res gestae” (and why it mattered)

Historically, “res gestae” was a catch-all used to admit surrounding “background” acts without formal CRE 404(b) safeguards. Rojas v. People abolished it because it was unpredictable and often became a backdoor for propensity evidence. After Rojas, other-acts evidence must be justified through the Rules of Evidence (especially CRE 404(b) and CRE 403).

Intrinsic vs. extrinsic acts

“Intrinsic” acts directly prove the charged offense or occur contemporaneously and facilitate it; they typically do not require a CRE 404(b) analysis. “Extrinsic” acts are separate and generally require CRE 404(b) and a Spoto analysis if they suggest bad character/proclivity.

The Spoto test in plain terms

• Material fact: Does it help prove something that matters (an element or an intermediate fact)?
• Logical relevance: Does it actually make that fact more or less likely?
• Non-propensity relevance: Is it relevant for a reason other than “he’s the kind of person who does this”?
• CRE 403 balancing: Even if relevant, is it too unfairly prejudicial compared to its probative value?

Harmless error vs. plain error

• Harmless error (preserved): the conviction stands if the mistake did not substantially influence the verdict or render the trial unfair.
• Plain error (unpreserved): reversal only if the error was obvious and so serious it casts doubt on the conviction’s reliability.

CRE 606(b): when can courts question jurors after a verdict?

Courts generally cannot ask jurors what happened during deliberations. An exception exists for “extraneous prejudicial information” (outside-record facts or law brought into deliberations and relevant to the case). But jurors may use their ordinary life experiences; that is not “extraneous.”

5. Conclusion

People v. Ray is a consolidation-and-clarification decision rather than a sweeping doctrinal innovation: it applies Rojas v. People to deem “res gestae” admissions erroneous, then carefully separates admissibility from prejudice to affirm under harmless/plain-error and cumulative-error review. It also reinforces guardrails against guilt-phase sympathy evidence, constrains “opening the door” rebuttal, clarifies the admissibility of victim fear statements through mainstream hearsay exceptions, and strongly protects jury deliberation secrecy under CRE 606(b).

Finally, the modified opinion underscores a structural limit: when a death sentence is commuted to LWOP by the Governor, separation-of-powers principles sharply constrain judicial reworking of that commuted sentence absent a clear constitutional infirmity.