People v. Ray: Colorado Declines to Extend Miller to Emerging Adults and Clarifies Post‑Rojas Treatment of Res Gestae and Related Evidence

Citation: People v. Ray, 2025 CO 42, No. 10SA157 (Colo. June 23, 2025; as modified on denial of rehearing Sept. 8, 2025)

Court: Colorado Supreme Court (en banc)

Author: Justice Hood; Chief Justice Márquez, and Justices Boatright, Gabriel, Hart, and Berkenkotter joined; Justice Samour did not participate

Parties: The People of the State of Colorado (Plaintiff-Appellee) v. Robert Keith Ray (Defendant-Appellant)

Introduction

In People v. Ray, the Colorado Supreme Court affirmed the convictions and life-without-parole (LWOP) sentence of Robert Keith Ray for the drive-by murders of Javad Marshall‑Fields and his fiancée, Vivian Wolfe, committed to prevent Marshall‑Fields’s testimony in an earlier shooting (the “Lowry Park” case). A jury initially imposed a death sentence; after Colorado abolished capital punishment prospectively in 2020, the Governor commuted Ray’s death sentence to LWOP, leaving intact a separate LWOP for Wolfe’s murder and substantial consecutive terms on related counts.

On direct review, the Court addressed an extensive slate of issues: the proper treatment of “res gestae” evidence in light of the Court’s intervening abolition of that doctrine in Rojas v. People (2022); Rule 404(b) admissibility under the Spoto framework; multiple categories of hearsay, witness- and victim-fear evidence, and victim-impact and positive character evidence presented during the guilt phase; alleged prosecutorial misconduct (including racially charged language and references to a grand jury indictment); juror-misconduct claims restricted by CRE 606(b); and a constitutional challenge to LWOP for a 19-year-old “emerging adult,” especially when imposed by gubernatorial commutation of a death sentence.

The Court’s opinion makes two principal contributions:

It declines to extend the U.S. Supreme Court’s juvenile Eighth Amendment jurisprudence (Miller/Graham/Roper) to “emerging adults” and upholds LWOP as applied to a 19-year-old defendant who received individualized consideration at a capital sentencing proceeding before a discretionary gubernatorial commutation to LWOP.
It clarifies how appellate courts should handle extensive “res gestae” admissions at trials conducted before Rojas: such admissions are erroneous under current law but subject to harmless-error review, and courts should examine whether the evidence is nonetheless admissible under CRE 404(b)/Spoto and CRE 401–403.

Summary of the Opinion

Convictions and sentence affirmed. Despite finding several evidentiary errors (including improper reliance on res gestae, admission of a “Crime Payz” back-tattoo photo, a domestic “black eye” episode, a victim “dream” statement, and some positive character evidence), the Court held the errors were harmless in light of the trial’s limiting instructions, the cumulative/properly admissible evidentiary core, and the jury’s careful, split verdict on certain counts.
Post-Rojas evidentiary framework. Applying Rojas and Owens, the Court held the trial court abused its discretion by admitting substantial “res gestae” material, but affirmed after evaluating alternative admissibility under CRE 404(b)/Spoto (especially for motive) and balancing under CRE 403.
Hearsay and fear evidence. Statements about an immediate threat at Gibby’s Bar on June 19, 2005 were admissible as excited utterances (and alternatively under residual hearsay) for witness-intimidation counts; a “dream” statement predicting death was inadmissible but harmless; state-of-mind statements on the day of death were properly admitted for intimidation and bribery counts.
Victim-impact/positive character in guilt phase. The Court signaled that victim-impact proof is generally irrelevant at guilt unless tied to context/identity, and found error in permitting extensive positive character evidence, but deemed it harmless given scope and instructions.
Prosecutorial misconduct claims rejected. The State’s use of racially charged language mirrored witnesses’/defendants’ actual words; assuming arguendo impropriety, it was not plain error in context. A rebuttal reference to grand jury indictment was a permissible response to defense claims of political/media pressure. Presumption‑of‑innocence remarks were not plainly erroneous given then‑existing precedent. A brief appeal linked to what “happened and why” responded to defense argument and was not improper.
Juror misconduct/CRE 606(b). The trial court correctly barred inquiry into deliberations; a juror’s family experience with a suspected (unsubstantiated) overdose did not constitute “extraneous” information under Rule 606(b); no evidentiary hearing was required beyond what the court held.
Eighth Amendment. LWOP is facially constitutional for adults; Colorado and the U.S. Supreme Court have not extended Miller to 18–20-year-olds. Ray’s sentence is constitutional as applied because he received individualized consideration at a capital sentencing proceeding and the Governor’s commutation to LWOP was a lawful, discretionary reduction.

Analysis

Precedents Cited and Their Role

Rojas v. People, 2022 CO 8. Abolished the amorphous res gestae doctrine; directs courts to analyze other-acts evidence under CRE 404(b) and Spoto, with an initial intrinsic/extrinsic distinction and CRE 401–403 balancing. Ray applies Rojas retroactively on appeal and treats res gestae admissions as abuse of discretion but subject to harmless-error analysis.
People v. Owens, 2024 CO 10. Reinforces application of current law at time of appeal; confirms that Lowry Park evidence is extrinsic to Dayton Street charges and must be analyzed under 404(b)/Spoto; supports harmlessness given limiting instructions and trial context.
People v. Spoto, 795 P.2d 1314 (Colo. 1990). Four-part test for other-acts evidence: materiality, logical relevance, independence from propensity, and CRE 403 balancing. Central to the Court’s re-analysis of the Lowry Park, drug, and other contested evidence.
CRE 401–403, 404(b), 105; Yusem; Rath; Snyder; Cousins; Nicholls. The Court carefully surveyed relevance, prejudice, and limiting-instruction principles to cabin the volume and uses of other-acts proof and to distinguish intrinsic from extrinsic acts (Rojas).
Hearsay exceptions (CRE 803(2), 803(3), 807) and cases (Compan, Vanderpauye, Pena, Rogers, Hagos, Lagunas, Haymaker). Framed the admissibility of Marshall‑Fields’s statements: immediate threat reports were excited utterances; same-day fear statements were state-of-mind; a “dream” was neither material nor sufficiently probative and thus inadmissible (albeit harmless).
Victim-impact at guilt phase (Martinez; Mena). A Court of Appeals line suggests such evidence is generally irrelevant at guilt unless it explains context or identity. The Supreme Court did not announce a categorical rule but found no abuse and cautioned against emotional proof untethered to material facts.
Prosecutorial misconduct (Domingo‑Gomez; Dunlap; Robinson). Provides standards for impropriety and prejudice, including special care where racial bias risks are implicated. In Ray, context, jury instructions, and limited emphasis defeated plain error.
Grand jury references (Hafer; Denhartog; Douglas; Sanders). Prosecutors may rebut defense arguments and point out lack of evidentiary support; references must not imply undisclosed evidence. The Ray rebuttal was permissible reply-with instruction that indictment is not evidence.
Presumption of innocence comments (McBride; Conyac; Estes; Ujaama; Crabtree). Courts disapprove suggestions that the presumption “is gone” before deliberations. Given timing of McBride (post‑trial) and the prosecutor’s phrasing, no plain error occurred here.
Juror impeachment/Rule 606(b) (Harlan; Clark; Kendrick; Newman; Pena‑Rodriguez). A juror’s life experiences are not “extraneous information”; only exceptional bias (e.g., overt racial animus) justifies piercing deliberative secrecy. Ray applies this boundary and declines further inquiry.
Eighth Amendment proportionality and LWOP (Graham; Miller; Roper; Tate; Sellers; Wells‑Yates; McDonald; Montour). The Court adheres to existing law: adult LWOP is not categorically unconstitutional; mandatory LWOP is impermissible only for juveniles; 18 remains the age dividing juveniles and adults; individualized consideration can render LWOP constitutional as applied; gubernatorial commutation power is constitutionally distinct and valid.

Legal Reasoning

1) Post‑Rojas management of “res gestae” evidence and 404(b)/Spoto re‑analysis

Because appellate courts apply the law in effect at the time of appeal, the trial court’s reliance on res gestae was an abuse of discretion after Rojas. The Supreme Court then rigorously re‑assessed the evidence under CRE 404(b) and Spoto, and CRE 401–403:

Lowry Park shooting evidence. Extrinsic to the Dayton Street murders; admissible for motive and to explain context connecting the two episodes. The Court expressed “misgivings” about the sheer volume (roughly two weeks of a four-week trial), which elevated 403 risks (issue confusion and propensity inferences). Even so, notice, repeated limiting instructions, adversarial testing, and the largely cumulative nature of the “extra” details rendered any error harmless.
Threats to Brandi Taylor. Extrinsic and not squarely tied to witness intimidation; 404(b)/Spoto not satisfied; risk of propensity inferences outweighed attenuated relevance. Error was mitigated by the State’s own minimization in rebuttal and a split verdict demonstrating careful deliberation—harmless.
Threats to Askari Martin. Intrinsic to charged conspiracy/solicitation counts; directly probative of motive, scope, and duration of the plan to eliminate witnesses—admissible under CRE 401–403.
Sailor’s “black eye.” Extrinsic and prejudicial as domestic‑violence character proof; minimal incremental relevance to timeline/relationship status could have been established without describing cause. Error was harmless given limiting instruction, brevity, and Sailor’s denial that Ray struck her.
Drug dealing before 2005. Limited pre‑period proof (a 2003 arrest with cash; testimony that Ray ran a drug operation with access to large sums) was admissible under 404(b)/Spoto to show motive (keeping a lucrative enterprise), ability to pay bribes/hire killers, and relationships among co‑conspirators; probative value outweighed prejudice with tailored limits and instructions.

2) “Opening the door” and the tattoo photo

Defense elicited that Ray was ready to “go to jail” for Lowry Park. The State used a photo of a large back tattoo—two guns, cash, “Crime Payz 999 Wayz”—to “rebut” his attitude. The Court held the tattoo was irrelevant to any material fact and unduly prejudicial; the “opened door” doctrine does not permit injecting prejudice under the guise of rebuttal. Nevertheless, the brief display and limited argument rendered the error harmless.

3) Hearsay, witness- and victim-fear evidence

Immediate threat statements (Gibby’s Bar). Admissible as excited utterances: the threat was startling; statements were contemporaneous or shortly after, while still under stress; they were offered to prove witness intimidation (a material element), not the murders themselves. Alternatively admissible under residual hearsay given trustworthiness, necessity, and notice.
“Dream” predicting death. Inadmissible: the victim’s then-existing state of mind was not an element of intimidation, and the statement’s probative value was minimal compared to unfair prejudice.
Same-day fear statements to sister. Admissible as state-of-mind evidence tied to intimidation/bribery counts (identifying who was threatening him and why he feared them).
Other witnesses’ fear, protection, and cooperation benefits. Permissible to explain bias, reluctance, or changed statements and to rebut attacks on credibility (Villalobos; Lesney).
Impeachment of Teresa Riley with a recorded interview. Proper use of prior inconsistent statements to impeach her claim that Ray had “never” threatened her or her family; court gave an appropriate limiting instruction that the recorded statements were not admitted for their truth.

4) Victim-impact and positive character evidence in the guilt phase

The trial court excluded grief/loss testimony but allowed some “life of the person” background. The Supreme Court:

Found no abuse in allowing limited “life” descriptions and photographs tethered to context/identity and to explain events, consistent with Martinez’s general caution that victim-impact is usually irrelevant at guilt.
Found error in the volume of positive character testimony about Marshall‑Fields and Wolfe, which risked “emotional hijacking” and was not probative of elements—but deemed it harmless due to its relatively small share of a lengthy trial and proper jury instructions.

5) Prosecutorial misconduct

Racially charged language. The prosecutor quoted defendants’ and witnesses’ own words (e.g., the N‑word; “tooken”). Assuming arguendo impropriety for failure to paraphrase, it was not plain error: limited emphasis, contextual usage, similar language by witnesses, and instructions to avoid prejudice.
Grand jury indictment in rebuttal. In context, a permissible response to defense claims of media/political pressure and an evidentiary void; reinforced by the court’s reminder that an indictment is “not evidence.”
Presumption of innocence comments. Although appellate courts disfavor remarks implying the presumption evaporates before deliberations, at the time of Ray’s trial the law was not clearly established in the manner later articulated in McBride; no plain error.
Appeal to sympathy. The brief statement that the jury now knows “what happened and why” directly responded to defense argument that the families lacked answers; not an improper emotional appeal.

6) Cumulative error

Even aggregating the identified errors (res gestae usage, Taylor threats, black eye, tattoo photo, “dream” statement, and a few argumentative lapses), the Court found no substantial prejudice or impact on the integrity of fact-finding, given limiting instructions, breadth of admissible proof, adversarial testing, and the jury’s discriminating verdict.

7) Juror misconduct and CRE 606(b)

A juror’s disclosure that her brother‑in‑law’s death was suspected by family to be a homicide (without police corroboration) did not constitute “extraneous prejudicial information.” Jurors may draw on life experiences; Rule 606(b) bars inquiry into deliberations except in rare circumstances (e.g., overt racial animus). The trial court correctly declined to allow juror subpoenas or delve into deliberations.

8) Eighth Amendment challenge to LWOP for a 19‑year‑old and the effect of commutation

No categorical bar for adults. Colorado adheres to the U.S. Supreme Court’s line: adult LWOP is facially constitutional; the juvenile bar on mandatory LWOP (Miller/Graham) does not extend beyond age 18 absent legislative change.
As‑applied constitutionality. Ray received individualized consideration in a capital sentencing proceeding—multiple experts, extensive mitigation—before the Governor commuted his sentence to LWOP. That individualized process satisfies proportionality concerns; occasions justifying LWOP may be “uncommon,” but not foreclosed.
Gubernatorial commutation. The Colorado Constitution vests exclusive clemency power in the Governor; a discretionary commutation from death to LWOP is constitutionally permissible and not the “mandatory” LWOP condemned in Miller.

Impact and Practical Implications

Res gestae is gone, but evidence is not. For legacy trials that used res gestae, appellate courts will apply Rojas and Owens; errors are not automatically reversible. Prosecutors should now frame context and motive through CRE 404(b)/Spoto with narrow tailoring, explicit permitted purposes, and contemporaneous limiting instructions.
Volume control under CRE 403. Even admissible 404(b) motive evidence can be overdone. Courts should trim cumulative, inflammatory detail to avoid issue confusion and propensity seepage.
Witness/victim‑fear evidence is admissible with care. Immediate threat reports and same‑day fear tied to intimidation/bribery counts are typically admissible under excited utterance/state‑of‑mind theories; speculative or emotionally charged “premonitions” are not.
Victim-impact and positive character during guilt phase are constrained. Use sparingly and only for legitimate contextual purposes (identity, sequence, relationships); avoid grief/loss and “good person” narratives untethered to elements.
“Opening the door” is not a free pass. Rebuttal must remedy a misleading impression without introducing new prejudice. Tattoos and similar lifestyle imagery rarely prove motive or intent absent a specific, non‑propensity nexus.
Racially sensitive language. Even when quoting, prosecutors should consider paraphrasing, seek advance rulings, and request clarifying instructions; courts will assess context for plain error, but caution is warranted.
Grand jury references. Permissible to rebut claims of extraneous pressure, but always pair with the admonition that an indictment is not evidence; avoid implying undisclosed proof.
Juror‑misconduct boundaries. Life experience is not “extraneous information.” Parties should focus on objective, outside materials or experiments injected into deliberations to clear the 606(b) bar.
No Miller extension (yet) to “emerging adults.” For 18–20-year-olds, LWOP remains available in Colorado. Where mitigation was fully developed, as in capital sentencing, as‑applied challenges are unlikely to succeed absent legislative change.
Clemency matters. Commutations are executive acts; they can yield LWOP even if later debates evolve about youthfulness. Defense strategy should therefore front‑load mitigation to maximize individualized consideration at the initial sentencing.

Complex Concepts Simplified

Res gestae vs. 404(b). “Res gestae” used to let in surrounding events as part of the story. Colorado abolished it. Now, other-acts evidence must be either intrinsic (part of the charged crime) or, if extrinsic, pass 404(b)/Spoto and 403.
Intrinsic vs. extrinsic acts. Intrinsic acts directly prove or contemporaneously facilitate the charged offense. Everything else is extrinsic and triggers 404(b) safeguards.
Spoto’s four steps. Ask whether the other-acts evidence (1) addresses a material fact (e.g., motive), (2) is logically relevant to that fact, (3) is relevant for a reason other than “he’s a bad person,” and (4) survives prejudice balancing under 403.
Excited utterance/state of mind/residual hearsay. A statement made under the stress of a startling event can come in (excited utterance). A person’s current feelings (e.g., fear) can be admitted to show their state of mind when that matters to a charge. The “residual” rule allows reliable, necessary hearsay after notice when no specific exception fits.
“Opening the door.” If one side creates a misleading impression, the other may respond—but only to correct the misimpression, not to add new prejudice.
Harmless vs. plain error. Preserved errors warrant reversal only if they substantially affected the verdict (harmless error). Unpreserved errors must be “obvious” and “glaring” and undermine trial fairness (plain error).
Cumulative error. Several small, harmless mistakes can add up to an unfair trial; courts consider error number, severity, curative steps, and overall record strength.
Rule 606(b) (no‑impeachment). Jurors generally can’t testify about deliberations. Exceptions are narrow (e.g., overt racial bias). Personal life experiences are not “extraneous information.”
Miller/Graham (juvenile LWOP) vs adults. The U.S. Supreme Court forbids mandatory LWOP for juveniles but allows LWOP for adults in proportionate cases. Colorado adheres to 18 as the juvenile cutoff. Individualized consideration of youth and other characteristics matters for as-applied challenges.
Commutation vs. resentencing. A Governor’s commutation is an executive act reducing a sentence. It is not a court’s “mandatory” sentence and does not implicate Miller’s prohibition on mandatory juvenile LWOP.

Conclusion

People v. Ray is a comprehensive, modernized template for Colorado criminal practice in the post‑Rojas era. It rejects automatic reversal for pre‑Rojas “res gestae” admissions, instead demanding rigorous 404(b)/Spoto and 403 analysis and careful use of limiting instructions while warning trial courts against cumulative, inflammatory detail. It calibrates the admissibility of witness- and victim‑fear statements and polices the boundaries of victim‑impact and positive character evidence at the guilt phase. On prosecutorial conduct, it underscores context, curative instructions, and the narrowness of plain-error review, particularly where racially sensitive language is at issue.

Most significantly, the Court declines to extend Miller’s juvenile LWOP bar to “emerging adults,” affirming the constitutionality of LWOP as applied to a 19‑year‑old who received individualized consideration and whose death sentence was lawfully commuted to LWOP by the Governor. Alongside a clear re‑statement of Rule 606(b)’s limits on juror‑misconduct inquiries, Ray will guide trial courts, litigants, and reviewing courts across a broad spectrum of evidentiary and constitutional issues. Its unifying theme is fidelity to contemporary evidentiary rules, respect for jury instructions and the adversarial process, and measured deference to legislative and executive sentencing roles, all while zealously guarding the fairness and reliability of criminal verdicts.