People v. Ray: Harmless-Error Review After Rojas, Strict CRE 606(b) Limits on Juror Impeachment, and Constitutional Validity of Adult LWOP Commutations

Introduction

In People v. Ray, 2025 CO 42, the Colorado Supreme Court affirmed the convictions and life-without-parole sentence of Robert Keith Ray for his role in the 2005 murders of Javad Marshall-Fields and Vivian Wolfe—killings carried out days before Marshall-Fields was to testify against Ray in a separate shooting. The case arrived at the Court through the now-former unitary review process applicable to capital cases. Although Ray was originally sentenced to death, the General Assembly abolished the death penalty, and the Governor commuted Ray’s sentence to life without the possibility of parole (LWOP). The Court retained jurisdiction and addressed an array of evidentiary, prosecutorial-misconduct, juror-misconduct, and Eighth Amendment challenges.

This opinion is significant for three principal reasons:

It applies the post-Rojas regime (abolishing “res gestae”) to a pre-Rojas trial, treating res gestae admissions as error but assessing harmlessness by re-testing admissibility under modern CRE 404(b)/Spoto and related rules.
It cabins juror-misconduct inquiries under CRE 606(b), clarifying that a juror’s personal life experiences are not “extraneous information,” and thus cannot be used to impeach a verdict.
It holds that gubernatorial commutation of a death sentence to LWOP for an adult offender (here, age 19 at the time of the crimes) is facially constitutional and constitutional as applied.

Along the way, the Court gives detailed guidance on witness- and victim-fear evidence, improper “tattoo-as-attitude” proof, the use of highly inflammatory language (including racial slurs) at trial, grand jury references in argument, and limits on victim-impact and positive character evidence in the guilt phase.

Summary of the Opinion

Evidentiary rulings: The trial court’s use of the now-abolished res gestae doctrine was error, but most evidence was admissible under CRE 404(b) or otherwise harmless. The Court parses several categories: Lowry Park evidence (admissible under 404(b) for motive, but volume cautioned), threats to Askari Martin (intrinsic to conspiracy/solicitation crimes), threats to Brandi Taylor (inadmissible under 404(b), but harmless), Sailor’s black eye (inadmissible prejudice outweighed probative value, harmless), and Ray’s “Crime Payz” back tattoo (irrelevant and unfairly prejudicial, harmless). Witness-fear and victim-fear statements were largely admissible under the excited utterance or state-of-mind exceptions, except a “dream” statement was inadmissible. Positive victim-character evidence during the guilt phase was error but harmless. The Court found no abuse in admitting limited non-inflammatory context and certain in-life photographs for relevant purposes.
Prosecutorial misconduct: Some comments were improper (e.g., doubling down on tattoo evidence), but no reversible misconduct occurred. Quoting the defendant’s own racial slurs was not plain error on this record. A brief grand-jury reference was appropriate rebuttal. The challenged “presumption of innocence” phrasing was not plainly erroneous given the state of the law at the time of trial. The emotional-appeal argument was a fair response to the defense.
Juror misconduct and CRE 606(b): The Court upheld the trial court’s refusal to subpoena jurors or delve into deliberations. A juror’s mention of a family death and suspicions was personal background, not “extraneous information,” and thus could not be used to impeach the verdict.
Sentencing: The Governor’s commutation of Ray’s death sentence to LWOP was constitutional. Extending juvenile Eighth Amendment protections to “emerging adults” (18–20) is for the legislature; at a minimum, no constitutional infirmity exists in this adult LWOP commutation. The sentence was constitutional on its face and as applied.
Result: Judgment of conviction and LWOP sentence affirmed.

Analysis

Precedents Cited and Their Role

Rojas v. People (2022) and People v. Owens (2024): Abolished the common-law res gestae doctrine and articulated the modern path: determine whether acts are intrinsic or extrinsic; if extrinsic and suggest bad character, apply CRE 404(b) with the Spoto test. Ray’s trial predated Rojas, but on appeal the Court applies current law and treats res gestae admissions as error—assessing whether the evidence nonetheless satisfies Rule 404(b) and whether any errors were harmless.
Spoto (1990), Rath (2002), Snyder (1994): Supply the four-part admissibility test: materiality, logical relevance, independence from propensity, and Rule 403 balancing. These cases frame the Court’s detailed treatment of Lowry Park motive evidence and other uncharged conduct.
Compan (2005), Vanderpauye (2023), Pena (2007), Rogers (2002): Guide the hearsay analysis for excited utterances and the residual exception; used to admit certain fear/statement evidence (e.g., threats at Gibby’s Bar) and to exclude a “dream” statement where state-of-mind was not squarely at issue.
Martinez (2020 COA), Mena (2025 COA), Dunlap (1999), McClelland (2015 COA), White (1980), Loscutoff (1983): Inform the boundary between victim-impact evidence (generally sentencing-phase material) and guilt-phase admissibility when context is genuinely relevant. The Court found some positive character evidence improper but harmless; limited contextual material was allowed.
Domingo-Gomez (2005), Robinson (2019), Darden (U.S. 1986), McBride (2009 COA), Conyac (2014 COA), Ujaama (2012 COA): Provide the prosecutorial-misconduct framework and address improper arguments, racial bias, and the presumption of innocence. The Court uses these to gauge whether missteps were plain or harmless error.
CRE 606(b), Pena-Rodriguez v. Colorado (U.S. 2017), Harlan (2005), Clark (2024 CO), Kendrick (2011), Tanner (U.S. 1987), Warger (U.S. 2014): Anchor the “no-impeachment” rule, exceptions, and the definition of “extraneous information.” Ray’s juror-issues claim faltered because the information was personal background, not extraneous, and thus not a gateway to impeach the verdict.
Eighth Amendment: Graham (2010), Miller (2012), Roper (2005), Ewing (2003); Colorado cases Tate (2015), Sellers (2024), and statutes governing commutation and resentencing. The Court reaffirms the adult/juvenile line at age 18, declines to extend juvenile protections to “emerging adults,” and emphasizes gubernatorial authority in commutations.

Legal Reasoning

1) Uncharged Misconduct After Rojas: Intrinsic vs. Extrinsic, Spoto, and Harmlessness

Because Rojas abolished res gestae, the Court treats the trial court’s res gestae rulings as error but then retests admissibility under the modern approach:

Lowry Park evidence (prior shooting and Ray’s role): Extrinsic to the Dayton Street murders; admissible under CRE 404(b) to prove motive and identity. The Court cautions that the sheer volume (two weeks of trial time) magnified Rule 403 risks—confusion of issues and propensity—but cumulative and limiting-instruction safeguards rendered any error harmless.
Threats to Brandi Taylor: Extrinsic and inadmissible under 404(b) on this record (no solid non-propensity linkage and no limiting instruction). Yet the prejudice was mitigated by the prosecution’s own narrowing comments and a split verdict displaying juror discernment, rendering the error harmless.
Threats to Askari Martin: Intrinsic proof of charged conspiracy/solicitation crimes and motive. Properly relevant and not unfairly prejudicial; any res gestae error was harmless because the evidence was admissible.
Sailor’s black eye: Even if marginally relevant to timeline and state of mind, the unfair prejudice (domestic-violence insinuation) substantially outweighed probative value; however, limiting instructions, denials that Ray struck Sailor, and brevity of focus made the error harmless.
“Crime Payz 999 Wayz” tattoo: Not relevant to rebut “accepting culpability” testimony and unduly prejudicial. Admission was an abuse of discretion, compounded by an argumentative reference in rebuttal—but the exposure was fleeting and harmless in the total evidentiary mix.
Pre-2005 drug dealing: Admissible under 404(b) for motive (money at stake), opportunity (access to cash for bribes/murder-for-hire), and relationship with co-actors, constrained by careful limits and accompanied by a limiting instruction.

2) Witness- and Victim-Fear Statements: Excited Utterance, State of Mind, and Residual Hearsay

Threats at “Gibby’s” Bar (June 19): Admissible as excited utterances; the startling nature of being threatened, immediate retellings, and sustained distress supported reliability. Alternatively admissible under residual hearsay given necessity and trustworthiness.
Day-of-death fear call to sister: Admissible under state-of-mind exception to show Marshall-Fields’s then-existing fear; limited to intimidation/bribery counts with a contemporaneous limiting instruction.
“Dream” statement: Inadmissible; state of mind was not itself an element of intimidation, and the probative value was minimal and substantially outweighed by unfair prejudice.
Other witnesses’ fear and protection status: Admissible to explain reluctance, changes in testimony, and to rebut claims of bias or “paid testimony.” The Court affirms long-standing leeway to develop bias/credibility context.

3) Victim-Impact and Positive Character Evidence During Guilt Phase

The Court recognizes that victim-impact evidence belongs primarily in sentencing unless it sheds genuine light on the context of the crime. It drew these lines:

Limited contextual background that does not invite sympathy is admissible.
Extensive positive character evidence about the victims in the guilt phase is generally inadmissible. The prosecution’s overreach here was error, but it occupied a small slice of a long trial and was therefore harmless.
In-life victim photographs may be admissible for identity, injury description, or other relevant facts if not used to inflame.

4) Prosecutorial Misconduct: Racial Language, Grand Jury, Presumption of Innocence, and Emotion

Quoting slurs: The prosecutor’s use of the defendant’s own language (including racial slurs) was risky; while the Court assumes misconduct arguendo, it was not “glaringly improper” on this record and thus not plain error.
Grand jury reference: Fair rebuttal to defense claims of political/press pressure. The prosecutor did not suggest “secret evidence” existed; the court promptly reminded the jury an indictment is not evidence.
Presumption of innocence: The rebuttal phrasing was not an invitation to discard the presumption pre-deliberations, and even if imperfect, any error was not “obvious” at the time given the case law then available.
Emotional appeal: The rebuttal tracked defense framing and did not improperly ask jurors to decide on sympathy.

5) Cumulative Error

Although multiple errors occurred (notably res gestae reliance, the tattoo, Brandi Taylor threats, Sailor’s black eye, and the “dream” statement), their aggregate effect did not undermine trial fairness. Many items were independently admissible or cumulative; limiting instructions and contextualizing cured much of the potential prejudice in a four-week, evidence-dense trial.

6) Juror Misconduct and CRE 606(b)

Ray alleged a juror failed to disclose information about a family member’s death and shared those suspicions during deliberations. The trial court, and now the Supreme Court, held that:

Juror testimony about deliberations is almost entirely barred; the “no-impeachment” rule yields only for exceptional categories (e.g., overt racial animus under Pena-Rodriguez).
“Extraneous information” means specific legal or factual data learned from outside the record and relevant to the case; a juror’s own background and life experiences are not extraneous.
Because the juror’s remarks reflected personal background (not independent investigation or case-specific data), Rule 606(b) barred inquiry; any motion to impeach the verdict failed on the threshold “extraneous” element.

7) Constitutionality of LWOP Following Gubernatorial Commutation

The Court rejected Ray’s Eighth Amendment challenge to his LWOP sentence. Key points:

Age 18 is the constitutional/legal line between juveniles and adults. The Court declines to extend Graham/Miller protections to “emerging adults” (18–20) absent legislative action.
Ray’s LWOP was not “mandatory” in the Miller sense; it resulted from gubernatorial commutation, power vested exclusively in the Governor. Courts do not re-sentence in commutation scenarios unless the underlying sentence was unlawful or the commutation itself is unconstitutional—neither was shown.
Adult LWOP for class 1 felonies is not categorically unconstitutional in Colorado. The facial and as-applied challenges fail.

Impact

Post-Rojas retrials and appeals: Trial courts must analyze uncharged acts under the intrinsic/extrinsic framework and Spoto, not res gestae. Appellate courts will treat res gestae admissions as error but look for harmlessness where 404(b) or other rules support admission. The volume of 404(b) evidence must be carefully tailored; excessive background risks reversal or, at minimum, invites stern harmless-error scrutiny.
Witness- and victim-fear evidence: Prosecutors can introduce fear statements as excited utterances or state-of-mind when tied to material issues (e.g., intimidation counts) and accompanied by limiting instructions. Courts should exclude highly prejudicial, low-probative statements (e.g., premonitory dreams) during the guilt phase.
“Tattoo-as-attitude” evidence: This opinion cautions against using tattoos as pseudo-character evidence untethered to material issues; “opening the door” is not a license to inject prejudice.
Prosecutorial argument: Quoting a defendant’s inflammatory words can be permissible but risky. References to grand jury proceedings may be proper rebuttal to “political pressure” narratives but should be circumspect and accompanied by curative instructions. Prosecutors should avoid any suggestion that the presumption of innocence dissolves before deliberations.
Juror-misconduct doctrine: CRE 606(b) remains robust. Personal life experiences are not “extraneous information.” Parties alleging juror-taint must present competent evidence of extraneous, case-relevant information; otherwise, no hearing is warranted.
Sentencing and commutations: The Court’s express validation of adult LWOP commutations underscores the separation of powers and signals that any shift toward “emerging adult” Eighth Amendment protections would come from the legislature or the U.S. Supreme Court—not the state judiciary.

Complex Concepts Simplified

Res gestae vs. CRE 404(b): Res gestae used to allow courts to admit “background” conduct without the safeguards of Rule 404(b). Rojas abolished that doctrine. Now, courts must ask: is the conduct intrinsic (part of the crime or contemporaneous and facilitating it) or extrinsic (separate in time or nature)? Intrinsic acts are handled under general relevance and prejudice rules; extrinsic acts suggesting bad character must pass Rule 404(b)’s Spoto test and Rule 403 balancing.
Spoto test in four questions:
1. Does the evidence relate to a material (consequential) fact?
2. Is it logically relevant to that fact?
3. Is its relevance independent of the forbidden propensity inference?
4. Does its probative value outweigh the risk of unfair prejudice?
Excited utterance (hearsay exception): A spontaneous statement made under the stress of a startling event (like being threatened) can be admitted because it is thought to be reliable—made before the speaker has time to fabricate.
State-of-mind (hearsay exception): A person’s then-existing emotional condition (e.g., fear) can be admitted when that condition itself is relevant to a material issue (e.g., intimidation count). It is not a backdoor to prove what happened in the past.
Residual hearsay: A narrow safety valve. If a statement is very trustworthy, necessary, and material—and no better evidence can be obtained—it may be admitted even if no other exception applies, with advance notice to the defense.
Victim-impact vs. guilt-phase proof: Victim-impact (who the victim was, family grief) typically belongs at sentencing. During the guilt phase, such evidence is admissible only when it genuinely helps explain the crime’s context or elements; otherwise, it risks inflaming the jury and must be excluded.
“Opening the door”: If one side creates a misleading impression, the other may correct it using otherwise inadmissible evidence—but only to the extent necessary to remove the unfair prejudice, not to pile on new prejudice.
Harmless vs. plain error:
- Harmless error (preserved): The conviction stands unless the error substantially influenced the verdict or rendered the trial unfair.
- Plain error (unpreserved): The conviction stands unless the error was obvious and undermined fundamental fairness, casting serious doubt on reliability.
CRE 606(b) “no-impeachment rule”: Jurors generally cannot testify about deliberations to impeach a verdict. An exception exists for “extraneous prejudicial information” introduced to the jury (i.e., case-specific facts/law from outside the record). Personal life experiences are not “extraneous.” There is also a narrow constitutional exception for overt racial animus influencing a verdict.
Juvenile vs. adult LWOP: U.S. Supreme Court cases forbid mandatory LWOP for juveniles and bar LWOP for non-homicide juvenile offenses. Those rules do not automatically extend to adults (18+). Colorado recognizes the adult/juvenile line at 18, and adult LWOP is not categorically unconstitutional for class 1 felonies.

Conclusion

People v. Ray is a comprehensive post-Rojas blueprint for evidentiary review and a firm statement on two important structural issues: the scope of juror-impeachment under CRE 606(b) and the constitutional footing of adult LWOP commutations. The Court affirms that:

Res gestae rulings are now error, but many such admissions will still be affirmed if they satisfy the modern evidentiary framework and any overbreadth is harmless.
Witness- and victim-fear evidence must be tied to valid hearsay exceptions and genuinely material issues; courts should vigilantly exclude speculative or unduly inflammatory content (like “dream” premonitions) and cabin victim-character material during the guilt phase.
Prosecutors should exercise restraint when quoting inflammatory language, referencing grand jury proceedings, or speaking about the presumption of innocence; even defensible rebuttal points should be framed with care.
Juror-background information is not “extraneous.” Without proof of extraneous, case-specific information or a constitutionally recognized exception, Rule 606(b) bars post-verdict probes of deliberations.
Adult LWOP commutations by the Governor withstand facial and as-applied Eighth Amendment challenges. The Court declines to judicially extend juvenile Eighth Amendment protections to “emerging adults.”

The decision underscores that limiting instructions, careful tailoring of 404(b) evidence, and disciplined prosecutorial argument are central to preserving fair trials. For practitioners, Ray offers a granular map of what passes muster—and what courts will tolerate only as harmless—across a broad range of recurring issues in serious felony prosecutions.