People v. Ray: Managing Res Gestae Fallout, Defining Limits on Victim Character Evidence, and Upholding LWOP for Emerging Adults

People v. Ray: Managing Res Gestae Fallout, Defining Limits on Victim Character Evidence, and Upholding LWOP for Emerging Adults

I. Introduction

The Colorado Supreme Court’s decision in People v. Ray, 575 P.3d 400, 2025 CO 42M, is a major opinion at the intersection of evidence law, prosecutorial conduct, juror misconduct, and Eighth Amendment sentencing. It arises out of the notorious murders of Javad Marshall‑Fields and Vivian Wolfe, committed eight days before Marshall‑Fields was to testify in an earlier homicide case stemming from the Lowry Park shooting.

Robert Keith Ray was convicted of multiple offenses relating to the so‑called Dayton Street drive‑by shooting and originally sentenced to death for Marshall‑Fields’s murder and life without parole (LWOP) for Wolfe’s murder, along with 155 years on other counts. After Colorado abolished the death penalty, Governor Jared Polis commuted Ray’s death sentence to LWOP. The Supreme Court retained jurisdiction over Ray’s unitary direct appeal and, in this opinion, affirms both his convictions and his LWOP sentence.

The opinion is doctrinally significant in several respects:

  • It operationalizes the Court’s abolition of the common‑law res gestae doctrine (Rojas v. People) in a complex, high‑profile murder trial that had been tried under the old doctrine.
  • It carefully parses categories of uncharged misconduct, witness‑fear evidence, victim‑impact evidence, and positive victim character evidence, drawing sharper admissibility lines for future cases.
  • It addresses allegations of racially charged prosecutorial rhetoric, clarifying when quoting racial slurs will (and will not) amount to plain error.
  • It reinforces the strong protection for jury deliberations under CRE 606(b) in the face of claimed juror nondisclosure and “extraneous information.”
  • It rejects a cutting‑edge Eighth Amendment challenge to mandatory LWOP for a 19‑year‑old “emerging adult,” including where the sentence results from a gubernatorial commutation of a death sentence.

The case thus functions as a roadmap for courts and practitioners contending with legacy res gestae rulings, highly emotional homicide evidence, and post‑Miller/Graham sentencing attacks by late adolescents.

II. Summary of the Opinion

A. Factual and Procedural Background

Ray and his associate, Sir Mario Owens, were involved in a 2004 Independence Day shooting at Lowry Park in which Gregory Vann was killed and both Vann’s brother, Elvin Bell, and Javad Marshall‑Fields were shot. Ray was identified as the getaway driver and eventually convicted on several charges related to Lowry Park (but not for Vann’s murder), receiving a 108‑year sentence.

While out on bond pending his Lowry Park trial, Ray learned through discovery that Marshall‑Fields and another witness, Askari Martin, had identified him as the driver. According to the prosecution, Ray then attempted to bribe and intimidate the witnesses, labeled them “snitches,” and ultimately conspired with Owens and Parish Carter to have Marshall‑Fields murdered to prevent him from testifying. On June 20, 2005, Marshall‑Fields and his fiancée, Wolfe, were killed in a drive‑by shooting on Dayton Street.

Ray was indicted on 21 counts relating to the Dayton Street murders, including:

  • Two counts of first‑degree murder (Marshall‑Fields and Wolfe);
  • Conspiracy and solicitation to commit murder;
  • Witness intimidation, retaliation, and bribery charges;
  • Drug distribution and related offenses.

He was convicted on nearly all counts (acquitted on three intimidation counts), sentenced to death for Marshall‑Fields’s murder, LWOP for Wolfe’s murder, and 155 years on remaining counts. After the statutory abolition of the death penalty, the Governor commuted the death sentence to LWOP.

B. Core Holdings

The Court’s principal holdings can be summarized as follows:

  • Res gestae abolished—retroactive effect managed through harmless error: Because Rojas and Owens abolished the res gestae doctrine while Ray’s appeal was pending, the Court holds that all evidence admitted solely under res gestae was admitted in error. But it carefully re‑analyzes the challenged evidence under CRE 404(b), the Spoto test, and CRE 401–403, and concludes the errors were harmless.
  • Uncharged misconduct:
    • Extensive Lowry Park evidence was extrinsic but admissible to show motive under 404(b), though the Court expresses strong concern about the sheer volume admitted.
    • Threats against Askari Martin were intrinsic to the Dayton Street conspiracy and properly admissible under ordinary relevance and prejudice rules.
    • Threats to Brandi Taylor and the “black eye” incident with Ray’s wife lacked sufficient 404(b) probative value relative to prejudicial effect; admission was error but harmless.
    • Limited pre‑2005 drug dealing evidence was properly admitted under 404(b) to show motive, ability to pay for bribes/killing, and the co‑conspirators’ relationship.
  • Tattoo evidence improperly admitted: A photograph of Ray’s back tattoo reading “Crime Payz 999 Wayz,” admitted after the defense “opened the door,” was deemed irrelevant and unduly prejudicial. Admission and the prosecutor’s use of it in argument were erroneous but harmless.
  • Witness‑ and victim‑fear evidence:
    • Multiple out‑of‑court statements by Marshall‑Fields about threats and his fear were largely admissible under the excited utterance and state‑of‑mind hearsay exceptions, and in some instances under CRE 807 (residual hearsay), especially given forfeiture considerations.
    • However, his statement about a dream that God told him he would die was minimally probative and unfairly prejudicial; admitting it was error but harmless.
    • Fear evidence from other witnesses was properly admitted to explain reluctance to testify, changes in testimony, and to rebut defense claims of bias or undue prosecution influence.
  • Victim‑impact and positive character evidence in the guilt phase:
    • Some background evidence about the victims’ lives was permissible.
    • But the Court holds that extensive “good character” testimony and multiple in‑life photographs of the victims went beyond relevance, served essentially to elicit sympathy, and were improperly admitted during the guilt phase. These errors were nonetheless harmless given the scale of the trial and the weight of other evidence.
  • Prosecutorial misconduct:
    • Use of the N‑word and “tooken” by the prosecutor, even when quoting Ray and Owens, is implicitly condemned but, under plain error review, is not found to have “glaring” prejudicial impact in context.
    • A reference in rebuttal to the grand jury indictment was held permissible as a direct response to defense claims of political and media pressure driving the charging decision.
    • The prosecutor’s comments about the presumption of innocence were “perhaps inartful” but did not obviously contravene then‑settled law and thus were not plain error.
    • A rebuttal comment acknowledging the families’ suffering was deemed a fair response to defense argument rather than an impermissible emotional appeal.
  • Cumulative error: Even aggregating the various evidentiary and argument errors, the Court finds no cumulative deprivation of a fair trial, emphasizing limiting instructions, the largely cumulative nature of the improper evidence, and the overall strength of the prosecution’s case.
  • Juror misconduct and CRE 606(b): The Court upholds the trial court’s refusal to allow juror testimony about deliberations where one juror allegedly mentioned a relative’s suspicious death and fear that witnesses were afraid to come forward. This was treated as part of the juror’s background/life experience, not “extraneous” information, and in any event not prejudicial.
  • Eighth Amendment / LWOP for a 19‑year‑old:
    • Colorado’s LWOP sentencing scheme for adult class‑1 felonies is facially constitutional.
    • Miller/Graham protections remain limited to juveniles (under 18); “emerging adults” like Ray do not receive categorical relief.
    • Because Ray’s youth and attendant characteristics were thoroughly evaluated by the capital sentencing jury, his LWOP sentence is constitutional as applied.
    • A gubernatorial commutation from death to LWOP is valid and beyond judicial alteration where the original death sentence was lawful and LWOP is constitutionally permissible.

III. Detailed Analysis

A. Uncharged Misconduct and the Post‑Rojas World

1. From Res Gestae to CRE 404(b): The Structural Shift

Historically, Colorado courts admitted large swaths of “background” or “context” evidence under the amorphous res gestae doctrine—allowing in other bad acts that were “part of the story” without the procedural rigors of CRE 404(b). In Rojas v. People, 2022 CO 8, and People v. Owens, 2024 CO 10, the Supreme Court abolished res gestae, holding that uncharged misconduct must be evaluated within the CRE 401–403/404(b) framework.

Ray is the first major capital‑level homicide appeal applying Rojas to a trial that had extensively relied on res gestae. The Court applies a two‑step inquiry drawn from Rojas:

  1. Determine whether the uncharged act is intrinsic or extrinsic to the charged offense.
    • Intrinsic: directly proves the charged offense or occurs contemporaneously and facilitates its commission.
    • Extrinsic: everything else.
  2. For extrinsic acts that suggest bad character, apply Spoto’s four‑part test (material fact, logical relevance, independence from pure propensity, and CRE 403 balancing).

Because res gestae was still “good law” at Ray’s trial, the Court does not blame the trial judge, but, applying the law “in effect at the time of appeal,” it must find the res gestae rulings erroneous and then assess harmlessness.

2. The Lowry Park Evidence as Motive: Admissible but Overused

The most consequential uncharged misconduct at issue was the two weeks of testimony, photos, videos, and 911 calls concerning the Lowry Park shooting. The Court, echoing its earlier analysis in Owens, holds:

  • Intrinsic or extrinsic? Lowry Park is extrinsic to Dayton Street: it did not directly prove the charged offenses nor was it contemporaneous with them.
  • 404(b) purpose: The evidence was highly probative of motive: it explained why Ray would want Marshall‑Fields silenced and created a coherent narrative linking the two shootings.
  • Propensity risk: The evidence inevitably carried a troubling propensity inference (“he shot people before, so he probably did it again”), requiring robust CRE 403 balancing.

What distinguishes Ray is the Court’s nuanced assessment of volume. The opinion explicitly states that the prosecution could have established motive in perhaps two days of evidence, rather than saturating a four‑week trial with two full weeks of Lowry Park testimony. That excess heightens the risk the jury would:

  • Conflate strength of Lowry Park evidence with the Dayton Street evidence; or
  • Convict on a “violent character” theory rather than on Dayton Street‑specific proof.

Yet, applying deferential harmless error review, the Court treats most of the Lowry Park evidence as 404(b)‑admissible and characterizes the remainder as largely cumulative. Crucially, the trial court:

  • Provided extensive pretrial notice and hearings;
  • Allowed full cross‑examination; and
  • Issued contemporaneous limiting instructions framing the evidence as “background, motive, [and] relationship” only, and insisting Ray was on trial only for Dayton Street crimes.

By assuming jurors follow limiting instructions (see Kembel), the Court finds no substantial influence on the verdict. The legal message is clear: post‑Rojas, judges must severely cabin both the scope and volume of prior‑crime evidence admitted to show motive, even in complex retaliation‑murder cases.

3. Threats to Brandi Taylor: Impermissible Propensity Evidence

Ray’s recorded threats to kill Brandi Taylor (his brother’s girlfriend) if she continued “talking” about him posed a classic 404(b) problem:

  • They were extrinsic to the Dayton Street charges and not tied to witness intimidation about Lowry Park or Dayton Street.
  • The prosecution claimed they showed Taylor’s fear and explained why she eventually cooperated with police.

However, the prosecution never clearly connected the threats’ probative purpose during the relevant testimony. In substance, the evidence invited a forbidden inference: that Ray is the sort of person who threatens people and therefore likely threatened other witnesses as well. Without a limiting instruction, and given the thin non‑propensity linkage, the Court concludes the evidence failed Spoto’s third and fourth prongs and should have been excluded.

Nonetheless, this error was deemed harmless because:

  • The prosecutor later minimized Taylor’s importance (“a bit of a distraction”), blunting the risk jurors would overweight this episode; and
  • The jury’s split verdict on witness intimidation counts (convicting on one, acquitting on two) suggested careful, evidence‑based assessment rather than blanket acceptance of a character theory.

This portion of the opinion sharply underscores that 404(b) evidence must be tied, in the record itself, to a properly articulated non‑propensity purpose, not just described that way in opening statement.

4. Threats to Askari Martin: Intrinsic Evidence of the Charged Conspiracy

By contrast, threats and solicitations regarding Askari Martin, another Lowry Park witness, were treated as intrinsic to the charged conspiracy and solicitation counts:

  • Ray was accused of conspiring with Owens and Carter to kill Lowry Park witnesses, and of soliciting multiple people (including Jamar Johnson) to do so.
  • Statements like calling Martin a “snitch” and saying “snitches die” were direct proof of that conspiracy and solicitation.

As direct proof of charged conduct, these threats bypassed 404(b) and were admitted under the ordinary relevance/prejudice analysis. The Court found them probative of motive and scope of the conspiracy and not unfairly prejudicial in the CRE 403 sense, because their “prejudice” reflected their legitimate probative impact rather than improper inflammatory effect.

The important doctrinal signal: where uncharged conduct is itself part of the charged conspiracy (e.g., threats to other potential targets), it is properly “intrinsic” and governed by CRE 401–403, not by 404(b).

5. Sailor’s Black Eye: Domestic Violence Suggestion as Improper 404(b) Use

Evidence that Ray’s wife, LaToya “Sailor” Ray, had a black eye following an argument near the time of the Dayton Street shooting was admitted (erroneously) as res gestae to show Ray’s state of mind and to establish a timeline. Under 404(b)/Spoto, the Court acknowledges a narrow thread of relevance:

  • Ray’s being estranged from Sailor and then attempting a reconciliation (flowers, attending her barbecue, liquor store run with the neighbor) fed into his alibi narrative and could be seen as part of a plan or preparation.

However, the specific detail—that she received the black eye during an argument with Ray—carried obvious domestic‑violence overtones, risking pure bad‑character reasoning, while much less intrusive alternatives were available (e.g., that she had a black eye, they argued, and were estranged, without attributing the injury to Ray).

Thus the Court holds:

  • The black‑eye fact might have slight relevance; but
  • The “Ray caused the black eye” detail was unfairly prejudicial and unnecessary.

Because Sailor testified Ray did not hit her and the exchange was brief relative to the length of trial, a limiting instruction and the marginal role of this evidence rendered the admitted error harmless. For practitioners, this is a warning: when a domestic‑violence‑like episode is only tangentially tied to motive or plan, courts must excise the inflammatory details and use narrower means of proof.

6. Pre‑2005 Drug Dealing: Classic Motive and Relationship Evidence

The Court approves the limited admission of Ray’s pre‑2005 drug dealing as 404(b) evidence of:

  • Motive: Profitable drug business he feared losing if incarcerated for Lowry Park;
  • Ability: Access to large cash reserves to fund bribes or contract killings;
  • Relationships: Connections among Ray, Owens, and Carter as co‑participants in a drug enterprise.

The trial court tightly constrained this category to:

  • One 2003 arrest where Ray had more than $2,500 hidden in his shoe; and
  • Testimony from Sailor and co‑conspirator Todd that Ray “ran a drug operation” involving his co‑defendants and had access to large sums of cash.

With notice, a thorough Spoto analysis, and limiting instructions, the Court finds no abuse of discretion. Ray thus confirms that:

Well‑circumscribed prior drug dealing can be admitted under 404(b) to explain why a defendant might kill to avoid prison and to show capacity to finance such crimes, provided the court rigorously cabins scope and gives proper instructions.

B. Tattoo Evidence and the Limits of “Opening the Door”

The defense tried to humanize Ray through Sailor’s testimony, suggesting that as the Lowry Park trial approached, he was resigned to “go to jail” and “accepting” of his fate. On redirect, the prosecutor asked about a new back tattoo Ray obtained between Lowry Park and Dayton Street: two guns, a stack of cash, and the phrase “Crime Payz 999 Wayz.”

The trial court held the defense had “opened the door” to Ray’s “attitude about crime,” allowing the tattoo as rebuttal. The Supreme Court disagrees on two grounds:

  1. No true rebuttal nexus: The existence of a stylized tattoo about crime does not logically rebut Sailor’s testimony about Ray’s mental state regarding going to trial or accepting punishment. It says little about whether he was resigned or still actively resisting his impending prosecution.
  2. Disproportionate prejudice: The tattoo evidence invited an improper character inference—that Ray glorifies crime and therefore is more likely guilty—without legitimate probative force on any material fact.

In doctrinal terms, the Court emphasizes that “opening the door”:

  • Is a narrow doctrine designed to remove unfair prejudice created by one party’s incomplete or misleading presentation; and
  • Cannot be used as an “excuse to inject prejudice into the case.”

Here, whatever minimal probative value the tattoo had was vastly outweighed by its potential to inflame jurors. Yet again, the error is labeled harmless because the photograph was only briefly displayed and mentioned once more in rebuttal.

Key takeaway: courts should be highly skeptical of using “opening the door” to admit highly prejudicial lifestyle or “image” evidence (like tattoos, music, or clothing) that is untethered to any concrete material issue.

C. Witness‑ and Victim‑Fear Evidence: Fine‑Grained Admissibility Rules

1. Legal Framework: Hearsay and Fear

Hearsay rules are central to the Court’s treatment of fear evidence. Under CRE 803:

  • Excited utterance (803(2)): A statement relating to a startling event while the declarant is still under the stress of excitement; trustworthiness is assumed because reflection and fabrication are unlikely.
  • State of mind (803(3)): Statements of then‑existing mental/emotional condition (such as fear) may be admitted to show that state of mind—but not to prove the historical facts causing that state (e.g., not to prove that a threat actually occurred).
  • Residual hearsay (807): Catch‑all for statements with equivalent guarantees of trustworthiness, relevant to a material fact, more probative than reasonably available alternatives, and serving the interests of justice, with adequate notice.

The Court also overlays the forfeiture‑by‑wrongdoing principle (discussed implicitly through citations to Pena and Vasquez): a defendant who kills or intimidates a witness cannot benefit from the witness’s unavailability.

2. Statements About the Gibby’s Threat: Textbook Excited Utterances

On June 19, 2005, at Gibby’s Bar, Parish Carter approached Marshall‑Fields and warned him that “they’re looking for you in the street,” explicitly tying the warning to his forthcoming testimony. Marshall‑Fields immediately told his friends and called his uncle, who urged him to leave. He later relayed the incident to another friend, still visibly upset.

The Court upholds admission of these statements:

  • As excited utterances: being threatened with death is plainly “startling”; Marshall‑Fields’s immediate, emotional recounting satisfied the spontaneity requirement.
  • Alternatively, under CRE 807: given his subsequent murder, there was no better source of this information; and the conditions of the statements (timing, emotional distress) provided strong indicia of trustworthiness.

The statements were long‑term relevant to the intimidation charge—evidence that Ray (through Carter) used a threat against a witness. The Court is careful to tie admissibility to this specific count, and the trial court repeatedly gave limiting instructions confining the jury’s use of the evidence to the witness intimidation/bribery charges.

3. Statements About the Dream: Minimal Value, High Prejudice

In contrast, the Court finds error in admitting Marshall‑Fields’s statement, made to a friend at the apartment complex after Gibby’s, that he had a dream in which God told him he would die.

Doctrinally:

  • The victim’s state of mind is not an element of the intimidation offense (the statute focuses on the defendant’s use of threats or harassment, not on the victim’s reaction).
  • While in homicide cases victim fear may sometimes be admissible to show identity or intent, this is reserved for narrow circumstances because it almost always invites a back‑door inference about the defendant’s prior threats or violence.

Here, the Court sees only slight probative value—perhaps as background to show that Marshall‑Fields was indeed terrified—but substantial risk that jurors would overly empathize or see the dream as some providential or morally loaded sign, distorting rational deliberation. The statements should have been excluded under CRE 403.

This is a strong caution: “spiritual” or premonitory victim statements about their own death are almost never appropriate in the guilt phase; at most, they belong (if anywhere) in sentencing.

4. Fear Statements to Sister on the Day of the Murder: Proper State‑of‑Mind Use

On the day of the Dayton Street murders, Marshall‑Fields called his sister, sounding “discombobulated,” fearful, and anxious, telling her he kept seeing the men he was going to testify against at multiple locations and that “the people who shot me” were after him.

The Court treats these as classic state‑of‑mind evidence:

  • They show his then‑current fear and the identity of the persons he believed were threatening him.
  • That fear was probative of the witness intimidation and bribery counts; it also tangentially supported the identity of those harassing him (Ray and associates).

With limiting instructions, the Court finds no abuse of discretion in admitting these under CRE 803(3) and, alternatively, under CRE 807 for the same reasons as the Gibby’s statements.

5. Other Witnesses’ Fear: Explaining Reluctance and Bias

The opinion gives trial courts substantial room to allow testimony that:

  • Witnesses were afraid of Ray or his associates;
  • They were reluctant or refused to cooperate; or
  • They were given protective measures or deals that might suggest bias.

Such evidence is admissible where it:

  • Explains reluctance or changes in testimony; or
  • Rebutts defense claims that cooperation resulted from undue prosecution pressure or improper motives (e.g., payment, sentence concessions).

This is consistent with Villalobos and Lesney. The Court thus endorses a balanced view: witness fear is admissible when it directly illuminates credibility, bias, or reluctance—but not as free‑floating inflammatory background.

D. Victim‑Impact and Positive Character Evidence in the Guilt Phase

1. Distinguishing Relevance from Sympathy

Colorado law clearly allows victim‑impact evidence at sentencing for class 1 felonies (see §§ 18‑1.4‑102 and 18‑1.3‑1201). But Ray addresses a less‑charted area: victim‑impact and good‑character evidence in the guilt phase.

Consistent with the court of appeals in Martinez and Mena, the Supreme Court affirms that:

  • Victim‑impact evidence is generally irrelevant during guilt unless it shows the “context or circumstances of the crime itself” in some way that helps prove who did what, when, and how.
  • Positive character traits of the victim are admissible only in narrow CRE 404(a)(2) contexts:
    • To rebut specific trait evidence offered by the defense (e.g., the defense claims the victim was violent); or
    • To show peacefulness when the defendant alleges the victim was the initial aggressor in a homicide.

In Ray’s case, the trial court tried to split the difference: it excluded explicit grief‑and‑loss testimony during the guilt phase but allowed witnesses “to talk about the life of the person.” That line proved unworkable in practice.

2. Overreach: Volume and Nature of Positive Character Testimony

The Supreme Court singles out:

  • Repeated testimony about Marshall‑Fields’s and Wolfe’s education, work, family roles, plans, and values;
  • Multiple in‑life photographs of the victims, separately and together.

None of this, the Court emphasizes, helped prove:

  • The elements of the charged offenses; or
  • Any material factual issue such as identity, intent, or causation.

Instead, it risked “emotionally hijacking” the jury’s attention and inviting decisions based on sympathy and the perceived worthiness of the victims, rather than on whether the prosecution proved its case beyond a reasonable doubt.

That admission was thus an abuse of discretion. Yet, again, the Court finds harmless error given:

  • The overall small proportion of time spent on such testimony relative to the massive record;
  • The strength of other, properly admitted evidence; and
  • Proper jury instructions emphasizing impartial evaluation of the elements.

This is one of the clearest doctrinal signals in the opinion: Colorado trial courts must sharply curtail positive victim character and in‑life photo evidence in the guilt phase, absent a concrete, case‑specific relevance that survives CRE 403.

E. Prosecutorial Misconduct: Racial Language, Grand Jury, and Presumption of Innocence

1. Use of the N‑Word and “Tooken” in Questioning and Argument

Perhaps the most sensitive aspect of the opinion is the prosecution’s repeated use of the N‑word (quoting Ray) and the term “tooken” (quoting Owens’ alleged comment that the problem had been “tooken care of”).

The Court starts from well‑established principles:

  • Appeals to racial bias are constitutionally forbidden and require heightened scrutiny (citing McCleskey and Peña‑Rodriguez).
  • However, quoting the defendant’s own language, without emphasizing race or inviting jurors to rely on stereotypes, may sometimes be permissible.

Because Ray did not object at trial, review is for plain error—misconduct must be “flagrantly, glaringly, or tremendously improper” and undermine the trial’s fundamental fairness.

In context, the Court notes:

  • The prosecutor did not dwell on or dramatize the slurs;
  • Witnesses themselves sometimes used similar language unprompted;
  • The references in closing were brief; and
  • Jurors were expressly instructed not to let prejudice influence their verdict.

While the opinion “strongly condemns” any prosecutorial use of language that may encourage racial prejudice, the Court ultimately finds no plain error. Future prosecutors should not read this as a green light. The Court is signaling that:

Even where racial epithets originate from the defendant, prosecutors should paraphrase or sanitize the language unless they can demonstrate that repeating the slur is genuinely necessary to convey meaning. Failure to do so risks reversible error, especially under preserved‑error review or where other circumstances suggest an appeal to bias.

2. Grand Jury Indictment as Rebuttal to “Political Pressure” Theory

Defense counsel argued in closing that media, political pressure, and internal office dynamics forced law enforcement to “overreact” and overcharge Ray to “make this right” after Lowry Park. In rebuttal, the prosecutor noted that a grand jury, having heard evidence, decided to indict Ray.

Ordinarily, invoking a grand jury’s charging decision can be problematic: it hints at an independent judicial (or quasi‑judicial) validation of guilt and may suggest that the State possesses additional, unseen evidence. But here, the Court finds:

  • The reference was directly responsive to a defense claim that political pressure, not evidence, drove the case;
  • The trial court immediately instructed the jury that an indictment is not evidence;
  • The prosecutor repeated that the indictment was “not evidence” and used it solely to counter the motive theory for charging.

Under that narrow framing, the Court deems the comment permissible. This portion of the opinion teaches that:

Limited references to the existence of a grand jury indictment may be allowable, but only when strictly necessary to rebut a defense theory that impugns the good‑faith basis for charging and where the prosecutor and court emphatically clarify that the indictment is not evidence of guilt.

3. Presumption of Innocence: When Does It “Disappear”?

The prosecutor told jurors 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,” and then immediately added, “The evidence in this case has proven beyond any reasonable doubt that the defendant … committed these crimes.”

Ray argued this language improperly suggested the presumption of innocence had been extinguished before deliberations concluded, contrary to established law that the presumption persists until a guilty verdict is returned.

The Court distinguishes this from more explicit and clearly improper language condemned in cases like McBride and Estes (where prosecutors told jurors the presumption was “gone” or urged them not to start deliberations at “not guilty”). It concludes:

  • The prosecutor’s phrasing, while imperfect, largely tracked the law (presumption at the beginning, then the prosecution’s view that it had been overcome by evidence).
  • Because the controlling appellate cases condemning more extreme versions of this argument were decided after Ray’s trial, any error could not have been “obvious” at the time, as required for plain error.

The message is twofold:

  • Prosecutors should still avoid framing the presumption of innocence as something that “disappears” before the jury formally decides guilt; and
  • Under plain‑error review, borderline comments made before the law was clarified are less likely to warrant reversal.

4. Emotional Appeals to Sympathy

Defense counsel acknowledged the case was “emotional” and tragic for the victims’ families but urged jurors to resist letting that emotion substitute for proof beyond a reasonable doubt. In rebuttal, the prosecutor said that although the families had to bury a child “without knowing what happened or why,” the jurors now “do know what happened and why.”

The Court views this as an acceptable direct response to the defense argument about absence of proof, not a standalone plea to “do justice for the victims” or to act as the “conscience of the community.” It contrasts this with the more overtly improper, emotionally laden rhetoric in cases like Vasquez (trial as a “public reckoning,” jury as community’s conscience).

The line drawn: prosecutors may connect the evidence to the narrative of “what happened and why,” even if that incidentally touches on family suffering, but must not invite conviction primarily to vindicate victims’ grief or community outrage.

F. Cumulative Error Doctrine: Heavy Case, Contained Errors

The Court identifies multiple discrete errors:

  • Improper res gestae admission of Lowry Park evidence;
  • Admission of Taylor threat evidence, Sailor’s black eye, tattoo photo, and the dream statements;
  • Some questionable prosecutorial comments.

Yet cumulative error requires that the aggregation of errors undermine the fairness and integrity of the fact‑finding process. Here, the Court emphasizes:

  • Most evidence was either otherwise admissible or cumulative of properly admitted material;
  • Errors generally did not go to core elements, nor did they devastate credibility of key witnesses;
  • The trial lasted four weeks with voluminous testimony; the improper snippets consumed relatively little time;
  • Limiting instructions and vigorous cross‑examination mitigated most potential harm.

Accordingly, the Court finds no cumulative violation of Ray’s right to a fair trial.

Practically, this underscores that in long, evidence‑dense homicide trials, appellate courts are reluctant to reverse absent clear indication that repeated errors substantially skewed the verdict rather than adding marginal unfairness at the edges.

G. Juror Misconduct, CRE 606(b), and “Extraneous” Information

1. The Allegation

Ray’s motion for new trial alleged that a juror:

  • Failed to disclose in her questionnaire that her brother‑in‑law had died of a drug overdose under circumstances the family “felt” might be homicide; and
  • Shared with fellow jurors her belief that potential witnesses in that case were not coming forward out of fear.

Ray argued this both showed undisclosed bias and introduced “extraneous prejudicial information” into deliberations, warranting juror testimony about what was said and how it influenced deliberations.

2. No‑Impeachment Rule and Narrow Exceptions

CRE 606(b) codifies the strong policy that jurors cannot impeach their own verdict by testifying about:

  • Statements or incidents during deliberations; or
  • How anything affected their mental processes or votes.

The single major exception: jurors may testify about whether extraneous prejudicial information or outside influences improperly reached the jury. Post‑Peña‑Rodriguez, an additional, narrow constitutional exception exists for overt racial animus that is a significant motivating factor in a juror’s vote to convict.

The Court reiterates that these exceptions are narrow and emphasizes the need to:

  • Protect deliberative secrecy and finality of verdicts; and
  • Allow jurors to bring their life experiences to bear in weighing evidence.

3. Background Life Experience vs. Extraneous Information

The key doctrinal point is the definition of “extraneous information.” The Court, relying on Kendrick and later cases, defines it as:

  • Specific facts or legal content;
  • Learned from outside the record; and
  • Relevant to issues in the case.

Information is not extraneous if it is:

  • Derived from the juror’s background, experiences, or life events that pre‑date the case; and
  • Not the product of post‑selection “investigation” into the case.

Here, the juror’s knowledge about her brother‑in‑law’s death came solely from her family’s suspicions; she had no contact with police, saw no reports, and did not investigate. Her vague impression that “maybe” witnesses were afraid was speculative and unrelated to the specific facts of Ray’s case.

Thus, the Court holds:

  • Her story, even if shared with other jurors, was part of her background experience, not “extraneous information” within CRE 606(b)’s exception.
  • Even if treated as extraneous, it was not sufficiently connected to any factual issue in Ray’s case to be prejudicial.

Accordingly, the trial court correctly barred inquiry into what she told other jurors and properly denied relief. The opinion explicitly endorses the principle that courts must “err in favor of the lesser of two evils”—protecting deliberative secrecy even at the risk of tolerating some arguably “irresponsible” juror comments.

Important for practitioners: CRE 606(b) will generally bar post‑verdict exploration of jurors’ sharing of personal tragedies, biases, or analogies during deliberations, unless those statements (1) reflect overt racial animus meeting Peña‑Rodriguez’s standard, or (2) bring in concrete, case‑specific information acquired from outside the record during trial.

H. Eighth Amendment and LWOP for a 19‑Year‑Old Emerging Adult

1. The Challenge

Ray was 19 at the time of the Dayton Street murders. He argued that:

  • Recent brain science establishes that “emerging adults” up to age 21 share juveniles’ diminished culpability;
  • U.S. Supreme Court decisions (Graham, Miller) forbid mandatory LWOP for juveniles because such sentences are grossly disproportionate where youth‑related mitigating factors are ignored;
  • Several state high courts have extended juvenile protections to 18–21‑year‑olds under their own constitutions; and
  • Therefore, Colorado’s mandatory LWOP scheme for adult class‑1 felonies is unconstitutional, either facially or as applied to him, particularly after his death sentence was commuted to LWOP.

2. Facial Constitutionality of Colorado’s LWOP Scheme

Colorado’s sentencing structure for pre‑July 2020 class‑1 felonies:

  • Presumptive range: life imprisonment to death (§ 18‑1.3‑401(1)(a));
  • “Life imprisonment” is defined as LWOP for adult offenders convicted after July 1, 1990 (§ 18‑1.3‑401(4)(a)(III));
  • If the death penalty is later invalidated or barred, the statute mandates resentencing to life imprisonment (§ 18‑1.3‑401(5)).

The Court reiterates its prior holding in Sellers that LWOP is not categorically unconstitutional for adults. Graham and Miller carve out categorical rules for juveniles, not adults, and the Eighth Amendment “proportionality principle” continues to allow severe penalties for severe crimes in the adult context.

Thus, the LWOP sentencing scheme is facially constitutional for adult class‑1 felons.

3. Age Line at 18: Juveniles vs. Adults

The Court explicitly declines to extend juvenile status beyond 18, noting:

  • Both Congress and Colorado law draw the adulthood line at 18 for nearly all purposes, including criminal responsibility.
  • Roper, Graham, and Miller repeatedly rely on 18 as the decisive boundary.
  • Colorado statutes that have begun to recognize “young adults” (18–20) for certain programming and parole purposes explicitly exclude offenders serving LWOP.

While acknowledging that some other states have broadened protections under their own constitutions, the Court does not perceive either binding federal authority or clear Colorado “evolving standards of decency” requiring such a shift.

4. Individualized Sentencing and Ray’s Capital Proceeding

Even for juveniles, Miller condemns only mandatory LWOP that precludes individualized consideration of youth and its mitigating aspects. Discretionary LWOP remains permissible where the sentencer actually grapples with:

  • Immaturity and impulsivity;
  • Environmental and family pressures;
  • Potential for rehabilitation;
  • Extent of participation and personal culpability.

Ray’s case is unique in that:

  • He underwent a full capital sentencing phase in which:
    • Multiple defense experts testified on adolescent brain development, trauma, neurological injuries, and their interaction with Ray’s upbringing;
    • Family and friends described his background, neighborhood, and behavior over time.
  • The jury was instructed to consider all this mitigating evidence in deciding between LWOP and death.

In the Court’s view, this capital sentencing procedure more than satisfies the “individualized consideration” requirement that Miller and Tate demand even for juveniles, much less for an adult. The fact that Ray’s death sentence was later commuted to LWOP by the Governor does not retroactively strip the jury’s process of constitutional adequacy.

5. Effect of Gubernatorial Commutation

The Court also anchors its reasoning in separation of powers:

  • Under Colo. Const. art. IV, § 7, the Governor has exclusive power to grant reprieves, commutations, and pardons.
  • As long as the original sentence was lawfully imposed and the commuted sentence is itself constitutionally permissible, courts lack authority to alter the commutation.

Because:

  • Ray’s original death sentence complied with then‑existing constitutional standards; and
  • LWOP is a lawful punishment for adult class‑1 felons;

the Governor’s commutation from death to LWOP is unassailable judicially, absent a showing that LWOP itself is unconstitutional per se or as applied, which Ray failed to establish.

6. No As‑Applied Eighth Amendment Violation

In assessing as‑applied proportionality, the Court looks to:

  • The gravity of the offense (double homicide to eliminate a witness, with extensive prior efforts at bribery and intimidation);
  • Ray’s culpability and role as the architect of the witness‑elimination effort; and
  • The sentencing process’s treatment of his youth and circumstances.

Finding:

  • No categorical bar against LWOP for adults;
  • Robust individualized sentencing in a capital framework; and
  • No statutory or constitutional basis to extend juvenile LWOP rules to 19‑year‑olds;

the Court concludes that Ray’s LWOP sentence is constitutional as applied. It further declines Ray’s request to remand for a new evidentiary hearing on “emerging adult” science or post‑sentencing rehabilitation, emphasizing that those considerations are better suited to proportionality review or legislative reform, not to an Eighth Amendment invalidation of an otherwise lawful sentence.

IV. Simplifying Key Doctrines

A. CRE 404(b) and the Spoto Test

When the prosecution wants to introduce evidence that the defendant committed other acts (not charged in the current case), courts must guard against convicting a person simply because he seems like a “bad person.” CRE 404(b) allows other‑act evidence only if:

  1. It relates to a material fact (something that actually matters to proving the crime or an intermediate step, e.g., motive, plan, identity);
  2. It is logically relevant (it tends to make the fact more or less likely);
  3. Its relevance does not depend solely on a “bad character” inference (it must prove something other than just “he did bad things before, so he probably did this too”); and
  4. Its probative value is not substantially outweighed by the risk of unfair prejudice (over‑emotional, confusing, or misleading impact).

Ray is a detailed application of this framework to a very large body of prior‑crime evidence, showing both how the analysis should be done and how errors can be harmless where procedural protections are strong.

B. Intrinsic vs. Extrinsic Acts

An act is intrinsic if:

  • It directly proves the charged crime; or
  • It happens at the same time and helps carry out the charged crime.

Intrinsic acts are simply “part of the story” of the charged offense and are evaluated under general rules of relevance and prejudice (CRE 401–403). All other acts are extrinsic and must pass the 404(b)/Spoto test if they imply bad character.

In Ray, threats and solicitations regarding other Lowry Park witnesses were intrinsic to the charged conspiracy. Lowry Park itself, however, was an earlier, separate event and thus extrinsic, requiring a 404(b) analysis.

C. Cumulative Error

Even if no single error justifies reversal, many smaller errors can add up. The cumulative error doctrine asks:

  • Were there multiple errors?
  • Did they, taken together, substantially affect the fairness of the trial or the reliability of the verdict?

In large, complex trials, courts consider how much trial time the errors consumed, whether limiting instructions were given, and whether the evidence of guilt was strong. Ray illustrates how multiple errors may still be insufficient to undermine the overall fairness of an otherwise robust trial.

D. CRE 606(b) and Juror Deliberation Secrecy

After a verdict, jurors almost never may testify about:

  • What they said during deliberations;
  • How they voted; or
  • What mental processes led to their decision.

They may testify about:

  • Extraneous information: new facts or legal instructions from outside the trial record; or
  • Outside influences: threats, bribes, or improper contacts by third parties;
  • And, under Peña‑Rodriguez, explicit statements of racial animus that were a significant factor in the verdict.

Sharing personal experiences (a relative’s death, prior victimization, etc.) is generally treated as part of a juror’s background, not “extraneous,” even if those stories are discussed in deliberations.

E. Eighth Amendment and LWOP After Miller and Graham

The U.S. Supreme Court has held:

  • Juveniles (under 18):
    • No LWOP for non‑homicide offenses (Graham);
    • No mandatory LWOP even for homicide (Miller); but
    • Discretionary LWOP remains possible if youth is fully considered.
  • Adults (18+): No categorical prohibition on LWOP; proportionality is judged case‑by‑case, with substantial deference to legislatures.

Ray confirms Colorado will:

  • Maintain 18 as the juvenile–adult boundary for Eighth Amendment purposes;
  • Require individualized sentencing analysis for juveniles (and capital defendants), but not extend that categorical rule to 19‑year‑olds; and
  • Respect gubernatorial commutations where both the original and commuted sentences are lawful.

V. Conclusion: Significance and Future Impact

People v. Ray is an important consolidating opinion. It does not create a single, bright‑line “new rule,” but it refines and harmonizes several strands of law in a concrete, high‑stakes setting:

  • Evidence law: It demonstrates how courts must re‑evaluate legacy res gestae rulings under CRE 404(b) and Spoto, warns against overusing prior‑crime evidence to tell a dramatic “story,” and imposes tighter limits on victim good‑character evidence in the guilt phase.
  • Fear and hearsay: It carefully separates properly admitted fear statements (excited utterances, state‑of‑mind) from minimally relevant, highly prejudicial material (such as death premonition dreams).
  • Prosecutorial conduct: It condemns but does not reverse for racially sensitive language when used solely as quotation, draws lines around grand jury references, and clarifies that presumption‑of‑innocence arguments will be assessed against the law as it existed at trial.
  • Juror misconduct and deliberative secrecy: It reaffirms a strong no‑impeachment rule, distinguishing background experiences from extraneous information and underscoring that most internal deliberation content remains off‑limits to post‑trial inquiry.
  • Sentencing and emerging adults: It holds the line at 18 for juvenile Eighth Amendment protections, declines to extend Miller to 19‑year‑olds, and underscores that a capital sentencing proceeding can supply the individualized analysis necessary to uphold LWOP, even for a relatively young adult.

For Colorado practitioners, Ray offers detailed guidance on how to structure and attack complex homicide prosecutions involving prior bad acts, fearful witnesses, and emotionally powerful victims, and it signals that while the Court will scrutinize evidentiary and rhetorical excesses, it will not lightly overturn jury verdicts where strong substantive evidence, careful instructions, and rigorous procedures support the outcome.

Case Details

Year: 2025
Court: Colorado Supreme Court

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