Peo v. Pettigrew

21CA1108 Peo v Pettigrew 05-08-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA1108
Lincoln County District Court No. 16CR105
Honorable Darren L. Vahle, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

William Scott Pettigrew,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII
Opinion by JUDGE LIPINSKY
Johnson and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 8, 2025

Philip J. Weiser, Attorney General, Brock J. Swanson, First Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, James S. Hardy, Lead Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 William Scott Pettigrew appeals the judgment of conviction

entered on jury verdicts finding him guilty of first degree murder

(after deliberation) and possession of contraband. Pettigrew raises

seven contentions on appeal. He presents two challenges to the

timeliness of his trial; he argues that the statute precluding inmates

from asserting a force-against-intruders defense is

unconstitutional; he asserts that the trial court made three errors

during his trial; and he argues that, even if none of the errors is

individually reversible, the cumulative effect of the errors requires

reversal. We affirm.

I. Background

¶2 The jury could reasonably have found the following facts from

the evidence introduced at trial.

¶3 In September 2016, Pettigrew was incarcerated at the Limon

Correctional Facility (the facility). The victim was also incarcerated

at the facility.

¶4 On the day of the incident, the victim stepped inside

Pettigrew’s cell. For the first few minutes of their interaction,

Pettigrew’s cell door was left ajar. At some point during their

1
interaction, however, one of them closed the cell door, causing it to

lock automatically.

¶5 An altercation ensued. Guards saw the victim, injured and

bloodied, pounding on the cell door. They locked down the pod in

which Pettigrew’s cell was located, opened the cell door, and

separated Pettigrew from the victim. But Pettigrew had already

repeatedly stabbed the victim. First responders pronounced the

victim dead at the scene. Pettigrew was largely uninjured. Officers

never recovered the murder weapon.

¶6 Pettigrew was charged with first degree murder, second degree

murder, possession of contraband, and seven habitual criminal

counts.

¶7 Due to delays that we discuss in more detail below, Pettigrew’s

trial did not begin until June 2021, nearly five years after the

incident. At trial, the prosecution’s theory was that the victim, a

Black man, informed officials that members of 211, a white

supremacy gang, possessed shanks, resulting in the 211 members’

placement in restrictive housing. The prosecution presented

testimony that Pettigrew was a member of 211 and, at the direction

of 211’s leaders, planned to kill the victim in revenge. According to

2
the prosecution’s theory, on the day of the incident, Pettigrew

“lured” the victim into his cell under the guise that they would snort

antidepressants together and “bury the hatchet.” The prosecution

asserted, however, that Pettigrew actually intended to kill the

victim.

¶8 Pettigrew represented himself at trial. His theory of defense

was that the victim was the initial aggressor and that he acted in

self-defense. Alternatively, Pettigrew argued that, because there

was no evidence that he “lured” the victim into his cell, his actions

constituted, at most, second degree murder.

¶9 A jury convicted Pettigrew of first degree murder and

possession of contraband. The court dismissed the second degree

murder count as a “duplicative” lesser included charge. Because

Pettigrew’s conviction carried a mandatory life sentence, the

prosecution dropped the habitual criminal counts. The court

imposed a life sentence without the possibility of parole.

II. Timeliness of Trial

¶ 10 Pettigrew first contends that by failing to timely bring him to

trial, the court violated the Uniform Mandatory Disposition of

Detainers Act (UMDDA), §§ 16-14-101 to -108, C.R.S. 2024, and

3
Pettigrew’s statutory and constitutional speedy trial rights. We

disagree.

A. Additional Background

¶ 11 Pettigrew was arraigned in September 2018, after the defense

sought multiple continuances. Following his arraignment,

Pettigrew, through counsel, waived speedy trial after the defense

received additional discovery in response to a subpoena duces

tecum. Pettigrew then requested, and was granted, permission to

represent himself, which complicated discovery and further delayed

his trial. The court appointed advisory counsel for him.

¶ 12 In October 2019, Pettigrew filed a request under the UMDDA

for final disposition of his untried criminal complaint. Although the

filing was addressed to the Office of the District Attorney in Lincoln

County, it contained a file stamp showing that it was filed in the

Lincoln County combined courts. The record does not indicate

whether a copy of Pettigrew’s request was also mailed to the district

attorney’s office.

¶ 13 After delays throughout 2019, the court set a trial date for

May 18, 2020. In April 2020, near the beginning of the COVID-19

pandemic, the court conducted a trial readiness conference with the

4
parties. At the conference, the court noted that Pettigrew’s trial was

scheduled for May 18, that his speedy trial deadline would not run

until July 22, and that the pandemic presented numerous barriers

to holding a jury trial. It rescheduled Pettigrew’s trial for July 20,

2020, which was within the speedy trial period.

¶ 14 At a status conference in July 2020, the court made findings

regarding the ongoing challenges caused by the pandemic and

continued Pettigrew’s trial to November. Because Pettigrew did not

waive his speedy trial rights, the court ruled that “exceptional

circumstances” justified tolling his speedy trial deadline by six

months, pursuant to section 18-1-405(6)(g)(II), C.R.S. 2024.

¶ 15 Pettigrew moved to have his trial transferred to a larger county

within the same judicial district because it would be “safer to

conduct” a trial in a county with a larger population than Lincoln

County. At a September 2020 status conference, the court denied

the motion, noting that under the controlling Chief Judge order

addressing trials during the pandemic, a jury pool of the size

required for Pettigrew’s trial could not be safely assembled

anywhere in the district. The court declared a mistrial under Crim.

P. 24(c)(4) as to the November trial setting. The court tolled

5
Pettigrew’s speedy trial deadline by three months, to January 29,

2021, pursuant to section 18-1-405(6)(e), and set his trial for

January 19.

¶ 16 Before the January 2021 trial, Pettigrew asked for a

continuance, explaining that, as a result of his transfer to a

different facility and the ongoing COVID-19 restrictions, he was

unable to access media files in the discovery provided to him or

confer with his advisory counsel by telephone. Pettigrew waived his

speedy trial rights, and the court continued the trial for six

months — until June 2021.

¶ 17 In May 2021, Pettigrew again asked for a continuance, citing

“outstanding discovery issues, new and old.” The court denied the

motion because of the age of the case and because “routine trial

preparation matters” will arise regardless of how many times a trial

is reset.

¶ 18 On the morning of the first day of trial, Pettigrew moved to

dismiss for violation of his speedy trial rights. The court denied the

motion to dismiss, finding that the COVID-19 pandemic was an

“appropriate” ground to continue the case and that the subsequent

continuance was at Pettigrew’s request.

6
¶ 19 Pettigrew did not invoke his UMDDA rights during any of the

pretrial hearings.

B. UMDDA

¶ 20 Pettigrew contends that the district court lost jurisdiction

under the UMDDA because it did not bring him to trial within the

UMDDA’s mandated time period. He is mistaken.

1. Applicable Law and Standard of Review

¶ 21 Under the UMDDA,

[a]ny person who is in the custody of the
department of corrections . . . may request
final disposition of any untried . . . criminal
complaint pending against him in this state.
The request shall be in writing addressed to
the court in which the . . . criminal complaint
is pending and to the prosecuting official
charged with the duty of prosecuting it and
shall set forth the place of confinement.

§ 16-14-102(1), C.R.S. 2024.

¶ 22 Section 16-14-103(1), C.R.S. 2024, provides that an inmate’s

request “made pursuant to section 16-14-102 shall be delivered to

the superintendent where the prisoner is confined[,] who shall

forthwith” send a copy of the request “to both the court having

jurisdiction of the untried offense and to the prosecuting official

charged with the duty of prosecuting the offense.”

7
§ 16-14-103(1)(b). Although the UMDDA requires that inmates

direct their requests to the court and the prosecution, it does not

contemplate that inmates send their requests to those parties

directly. People v. McKimmy, 2014 CO 76, ¶ 23, 338 P.3d 333, 339.

Rather, the superintendent must send such requests to the court

and the prosecution. Id. The UMDDA’s requirements are subject to

a “strict compliance” standard. Id.

¶ 23 Even if an inmate’s request to invoke the UMDDA does not

strictly comply with the statutory requirements, the request can

nevertheless be sufficient if it (1) “substantially complies with the

[UMDDA’s] requirements,” and (2) “the prosecution receives ‘actual

notice’ of the request.” Id. at ¶ 24, 338 P.3d at 339. An inmate’s

request substantially complies with the UMDDA if, for example, the

request expressly seeks protection under the UMDDA and

accurately cites the statute. See id.

¶ 24 Once an inmate properly invokes his rights under the UMDDA,

the “criminal complaint shall be brought to trial” within 182 days.

§ 16-14-104(1), C.R.S. 2024. If the trial does not occur within that

period, “no court of this state shall any longer have jurisdiction”

over the charge, and “the court shall dismiss it with prejudice.” Id.

8
¶ 25 Significantly, however, “if a continuance is granted for good

cause, the [statutory] period is effectively tolled for the length of the

continuance.” People v. Fleming, 900 P.2d 19, 23 (Colo. 1995); see

§ 16-14-104(1). Additionally, “the parties may stipulate for a

continuance or a continuance may be granted on notice to the

[inmate’s] attorney and opportunity to be heard.” § 16-14-104(1).

The statutory period may be tolled without the defendant’s personal

consent. Fleming, 900 P.2d at 23. Thus, despite a defendant’s lack

of consent, a continuance granted for good cause will nonetheless

toll the 182-day period. Id.

¶ 26 “We review de novo the district court’s denial of a motion to

dismiss for violation of the UMDDA, but we review for an abuse of

discretion the district court’s decision to grant a continuance for

good cause.” People v. Hines, 2021 COA 45, ¶ 17, 491 P.3d 578,

583 (citation omitted). “A district court abuses its discretion when

its ruling is manifestly arbitrary, unreasonable, or unfair, or when it

misapplies the law.” Id. at ¶ 21, 491 P.3d at 584.

9
2. The Court Did Not Lose Jurisdiction Because Each
Continuance Was for Good Cause

¶ 27 Pettigrew argues that he invoked the UMDDA’s protections by

strictly complying with its requirements. Because he was not tried

within the 182-day period after he filed his request, he contends

that the court lost jurisdiction over his case. The People contest

whether the prosecution received actual notice of the request,

especially considering Pettigrew’s failure to assert the right at any of

the numerous hearings at which the parties and the court

discussed the timeliness of Pettigrew’s trial. Compare People v.

Campbell, 742 P.2d 302, 310 (Colo. 1987) (“Although the defendant

did not mail a copy of his request to the district attorney’s office, the

court provided the prosecutor with actual notice of the defendant’s

letter by mailing a copy to his office.”), with People v. Trancoso, 776

P.2d 374, 380-81 (Colo. 1989) (holding that an inmate’s rights

under the UMDDA “cannot be defeated” by a superintendent’s

failure to forward an inmate’s request to the court and prosecution).

¶ 28 Because we conclude that Pettigrew’s UMDDA claim would fail

regardless of whether he perfected his request, we decline to decide

whether Pettigrew’s filing was sufficient to give the prosecution

10
actual notice of his UMDDA request. See Hines, ¶ 19, 491 P.3d at

584 (declining to decide whether a party properly invoked the

UMDDA where the issue of good cause to grant a continuance was

dispositive).

¶ 29 We conclude that Pettigrew’s UMDDA claim fails because the

UMDDA’s deadline is “tolled for the length” of a continuance

granted for good cause, and because the court continued the trial

for good cause each time Pettigrew requested a continuance (or he

agreed to one). Fleming, 900 P.2d at 23; § 16-14-104(1).

¶ 30 Assuming, without deciding, that Pettigrew perfected a request

in October 2019, the UMDDA’s deadline would have run in April

2020. The continuances that the court granted beyond that date

were either at Pettigrew’s request or attributable to the impact of

the COVID-19 pandemic on trial settings. Thus, the continuances

were for “good cause.” § 16-14-104(1); see also People v. Shreck,

107 P.3d 1048, 1056 (Colo. App. 2004) (“‘[A] defendant may waive

his or her right to a speedy trial under the UMDDA expressly or by

affirmative conduct, such as by participating in setting the trial

date outside of the speedy trial provisions’ or expressly consenting

to the delay.” (quoting People v. Garcia, 17 P.3d 820, 823 (Colo.

11
App. 2000))); People v. Sherwood, 2021 CO 61, ¶¶ 31, 36, 489 P.3d

1233, 1240-41 (upholding a court’s continuance of a trial because

the court could not safely assemble a fair jury pool because of the

COVID-19 pandemic).

C. Speedy Trial

¶ 31 Pettigrew next asserts that the court’s failure to timely bring

him to trial violated his statutory and constitutional speedy trial

rights. Pettigrew contends that the Colorado Supreme Court’s

adoption of Crim. P. 24(c)(4) violated the separation of powers

doctrine and that his request for a continuance in January 2021

was compelled due to the prosecution’s and the Department of

Corrections’ bad faith.

1. Applicable Law and Standard of Review

¶ 32 Colorado’s speedy trial statute provides that, if a defendant’s

case “is not brought to trial . . . within six months from the date of

the entry of a plea of not guilty, . . . the pending charges shall be

dismissed” with prejudice unless the statute provides otherwise.

§ 18-1-405(1); see Sherwood, ¶ 21, 489 P.3d at 1238-39. “The

burden of compliance with the speedy trial requirement . . . rests

12
wholly with the [prosecution] and the trial court.” Sherwood, ¶ 23,

489 P.3d at 1239.

¶ 33 The statute excludes certain time periods from the calculation

of the six-month speedy trial deadline, including, as relevant here,

the “period of delay caused by any mistrial, not to exceed three

months for each mistrial.” § 18-1-405(6)(e). A trial court may

declare a mistrial for several reasons, including if “a fair jury pool

cannot be safely assembled in that particular case due to a public

health crisis or limitations brought about by such crisis.” Crim. P.

24(c)(4). The declaration “must be supported by specific findings.”

Id. (The Colorado Supreme Court added paragraph (c)(4) to Crim. P.

24 in April 2020 “amid the societal disruptions caused by the global

COVID-19 pandemic.” People v. Burdette, 2024 COA 38, ¶ 30, 552

P.3d 1108, 1116.)

¶ 34 The decision to declare a mistrial under Crim. P. 24(c)(4) is

within the sound discretion of the trial court, which is better

positioned than is a reviewing court to determine whether “a fair

jury pool” can be “safely assembled” due to “a public health crisis or

limitations brought about by such crisis.” Crim. P. 24(c)(4); see

People v. Eason, 2022 COA 54, ¶ 29, 516 P.3d 546, 554. But the

13
speedy trial statute “leaves no discretion for the trial court to make

exceptions to the six-month rule beyond those specifically

enumerated.” People v. DeGreat, 2020 CO 25, ¶ 13, 461 P.3d 11,

15. Whether a trial date violates a defendant’s speedy trial rights is

a question of law that we review de novo. See id. at ¶ 12, 461 P.3d

at 14; Sherwood, ¶ 19, 489 P.3d at 1238.

¶ 35 The People contest whether Pettigrew preserved the specific

contentions that he now raises on appeal. Although we agree that

Pettigrew generally asserted his speedy trial rights in the trial court,

he did not alert the court to his separation of powers or bad faith

arguments. See People v. Cooley, 2020 COA 101, ¶ 24, 469 P.3d

1219, 1224 (“An objection is sufficiently specific when it draws the

court’s attention to the asserted error.”). Thus, if we conclude that

the court erred, we will only reverse if that error was plain. See

Hagos v. People, 2012 CO 63, ¶ 14, 288 P.3d 116, 120. For the

same reason, we need not conduct a plain error analysis if we

conclude the court did not err. See People v. Jacobson, 2017 COA

92, ¶ 23, 474 P.3d 1222, 1227.

14
2. The Supreme Court Did Not Violate
the Separation of Powers Doctrine by Amending Crim. P. 24(c)

¶ 36 Pettigrew first claims that the supreme court’s adoption of

Crim. P. 24(c)(4) violated the separation of powers doctrine because

it usurped the General Assembly’s authority to establish the

substantive rules pertaining to mistrials. He argues that the

supreme court exceeded its power to promulgate procedural rules

because Crim. P. 24(c)(4) “materially broadened the definition of

mistrial and expanded the time excluded from the speedy trial

calculation — which only the legislature can do.”

¶ 37 In Eason, ¶ 21, 516 P.3d at 552, which was announced after

Pettigrew’s trial, a division of this court concluded that Crim. P.

24(c)(4) is a procedural rule that does not violate the separation of

powers doctrine. The division explained that, even if “some aspect

of public policy” underlies the rule, “it [does not] conflict with any

legislative (or executive) expression of public policy and is therefore

lawful.” Id.

¶ 38 In Burdette, ¶ 34, 552 P.3d at 1117, another division — in

considering the same argument that Pettigrew asserts in this case

— concluded that the trial court did not plainly err because any

15
error was not obvious. The division noted that, “[a]t the time of the

mistrials, no clear statutory command, settled legal principle, or

Colorado case law suggested Crim. P. 24(c)(4) violated the

separation of powers doctrine.” Id. “To the contrary,” the division

said, “shortly before trial in this case, the General Assembly

approved legislation that bolstered Crim. P. 24(c)(4)’s objective by

authorizing trial courts to exclude an additional period from the

speedy trial calculation to account for any ‘restriction, procedure, or

protocol’ related to the COVID-19 pandemic.” Id. (quoting Ch. 277,

sec. 1, § 18-1-405, 2021 Colo. Sess. Laws 1600).

¶ 39 We agree with the Burdette division that a court does not

obviously err by failing to “declare Crim. P. 24(c)(4) unconstitutional

on its own motion,” when prevailing guidance from the General

Assembly at the time of the mistrials was “largely consistent with

Crim. P. 24(c)(4), not in conflict with it.” Id.

3. The Court Did Not Violate
Pettigrew’s Constitutional Speedy Trial Right

¶ 40 Pettigrew also contends that, by granting his own request for a

continuance in January 2021, the court violated his constitutional

speedy trial rights pursuant to Barker v. Wingo, 407 U.S. 514, 530-

16
33 (1972). “A defendant has a constitutional speedy trial right

under the United States Constitution’s Sixth Amendment and

article II, section 16 of the Colorado Constitution.” People v. Jompp,

2018 COA 128, ¶ 28, 440 P.3d 1166, 1173. We apply the factors

set out in Barker when assessing whether a court violated a

defendant’s constitutional right to a speedy trial. See People v.

Chavez, 779 P.2d 375, 376 (Colo. 1989). These factors are (1) the

length of the delay; (2) the reason for the delay; (3) the defendant’s

assertion of the right; and (4) prejudice to the defendant. Barker,

407 U.S. at 530.

¶ 41 First, a delay is “‘presumptively prejudicial,’ as it approaches

one year.” People v. Cox, 2023 COA 1, ¶ 44, 528 P.3d 204, 214

(quoting People v. Sandoval-Candelaria, 2014 CO 21, ¶ 36, 321 P.3d

487, 493). Pettigrew’s case did not go to trial for nearly five years

after the prosecution filed charges against him. This delay meets

the “presumptively prejudicial” criterion. Because the delay

exceeded one year, this factor weighs in favor of finding a speedy

trial violation and requires us to analyze the remaining three Barker

factors.

17
¶ 42 Second, “delay caused by the defense weighs against the

defendant.” Vermont v. Brillon, 556 U.S. 81, 90 (2009); see People v.

Jamerson, 596 P.2d 764, 768 (1979). As a consequence of the

impact of the COVID-19 pandemic on trial settings, the court

deferred Pettigrew’s trial date by approximately eight months, and

the speedy trial deadline was tolled during that time. We conclude

that the pandemic was a justifiable reason for this delay. See

Sherwood, ¶¶ 31, 36, 489 P.3d at 1240-41 (upholding a court’s

continuance of a trial because it could not safely assemble a fair

jury pool because of COVID-19).

¶ 43 Pettigrew requested the January 2021 continuance because,

under controlling Department of Corrections restrictions to limit the

spread of COVID-19, he was unable to access the law library to view

videos that the prosecution produced in discovery. Although

Pettigrew did not cause his own inability to view the videos, the

condition was not the result of the prosecution’s or the Department

of Corrections’ bad faith. See People v. Duncan, 31 P.3d 874, 877

(Colo. 2001) (“This court has long held that in the absence of a

showing of bad faith on the part of the prosecutor, such as a last

minute ploy to circumvent the requirements of the speedy trial

18
provisions, a defendant’s tactical decision to seek a continuance is

chargeable to him.”). To the extent that Pettigrew claims the delay

was caused by the prosecution’s late disclosure of discovery

materials, we conclude that the record largely refutes that

argument. At a December 2020 hearing, the prosecutor explained

that, while he provided Pettigrew with additional discovery files on

disc, those discs merely contained a reorganized version of

discovery materials previously produced to Pettigrew, in accordance

with one of the court’s discovery orders.

¶ 44 Third, the only time that Pettigrew asserted his speedy trial

right was when the court continued his trial for reasons relating to

the COVID-19 pandemic. The court granted all the other

continuances throughout the case — including the January 2021

continuance that Pettigrew challenges on appeal — at his own

request. Indeed, Pettigrew explicitly waived his speedy trial right

when he asked for the January 2021 continuance. This factor

weighs against a finding of a speedy trial violation.

¶ 45 Fourth, the court — while obviously concerned about the

delays and eager to set a trial date — found that Pettigrew was not

prejudiced by the delays because he was already in the custody of

19
the Department of Corrections. The record supports that finding.

Thus, this factor also weighs against a finding of a speedy trial

violation.

¶ 46 Although the delay of Pettigrew’s trial was presumptively

prejudicial, the third and fourth factors weigh against a finding of a

speedy trial violation, and the second factor is neutral because the

challenged delays were primarily attributable to the consequences

of the COVID-19 pandemic — which were outside the control of the

court, the parties, and the Department of Corrections.

¶ 47 For these reasons, we conclude that Pettigrew failed to

establish a constitutional speedy trial violation.

III. Force-Against-Intruders Statute

¶ 48 In Colorado, a person has a right to use deadly force to defend

himself when he reasonably believes that he is in imminent danger

of being killed or sustaining serious bodily injury and reasonably

believes that a lesser degree of force is inadequate. § 18-1-704(1),

(2), C.R.S. 2024; see People v. Martinez, 2022 COA 111, ¶ 15, 522

P.3d 725, 729, aff’d, 2024 CO 48, 550 P.3d 713.

¶ 49 Colorado’s force-against-intruders statute, § 18-1-704.5,

C.R.S. 2024, expands the right to self-defense in cases involving an

20
intruder’s knowing unlawful entry into a home. Martinez, ¶ 16, 522

P.3d at 729.

¶ 50 The force-against-intruders statute provides that an “occupant

of a dwelling is justified in using any degree of physical force,

including deadly physical force, against another person” when

(1) “that other person has made an unlawful entry into the

dwelling”; (2) “the occupant has a reasonable belief that such other

person has committed a crime in the dwelling in addition to the

uninvited entry, or is committing or intends to commit a crime

against a person or property in addition to the uninvited entry”; and

(3) “the occupant reasonably believes that such other person might

use any physical force, no matter how slight, against any

occupant.” § 18-1-704.5(2).

¶ 51 The force-against-intruders statute “provides immunity from

criminal prosecution”; it “bars criminal proceedings against a

person who uses force (including deadly physical force) under the

conditions listed in subsection (2).” People v. Rau, 2022 CO 3, ¶ 20,

501 P.3d 803, 810 (citing People v. Guenther, 740 P.2d 971, 975

(Colo. 1987)). A defendant who does not obtain immunity from

21
prosecution may nonetheless assert the statute as an affirmative

defense at trial. Id.

¶ 52 “Colorado courts have broadly interpreted the term

‘dwelling’ . . . .” People v. Alaniz, 2016 COA 101, ¶ 25, 409 P.3d

508, 513. In 2016, a division of this court held that a prison cell is

a “dwelling” within the meaning of the force-against-intruders

statute, id. at ¶¶ 28-29, 409 P.3d at 514, but noted that “[t]he

General Assembly is free to amend the statute,” id. at ¶ 36, 409

P.3d at 515.

¶ 53 The same year, the General Assembly narrowed the definition

of “dwelling” in the force-against-intruders statute by providing

that, “unless the context otherwise requires, ‘dwelling’ does not

include any place of habitation in a detention facility” (the detention

facility exception). Ch. 87, sec. 1, § 18-1-704.5(5), 2016 Colo. Sess.

Laws 245.

¶ 54 Before trial, Pettigrew filed a motion for a declaration that the

detention facility exception is unconstitutional. The court denied

the motion. Pettigrew reasserted his constitutionality arguments in

a C.A.R. 21 petition to the Colorado Supreme Court, which denied

the petition.

22
¶ 55 Pursuant to the detention facility exception, the court did not

permit Pettigrew to assert the force-against-intruders statute as

grounds for immunity or as an affirmative defense at trial.

¶ 56 On appeal, Pettigrew argues that the detention facility

exception (1) deprives inmates of the fundamental right to self-

defense; (2) violates the Equal Protection Clauses of the United

States and Colorado Constitutions; and (3) is unconstitutionally

vague.

¶ 57 “We review the constitutionality of statutes de novo, beginning

with the presumption that the statute is constitutional.” Aurora

Pub. Schs. v. A.S., 2023 CO 39, ¶ 36, 531 P.3d 1036, 1046.

A. The Detention Facility Exception Does Not Violate the
Fundamental Right to Self-Defense

¶ 58 Pettigrew contends that the detention facility exception

violates his fundamental right to self-defense. Underlying

Pettigrew’s contention is the assumption that what he characterizes

as the “fundamental right” to self-defense found in the Second

Amendment to the United States Constitution and article II, section

3 of the Colorado Constitution is interchangeable with the statutory

23
right to self-defense embodied in the force-against-intruders

statute.

¶ 59 We disagree with this premise. As another division of this

court concluded, the force-against-intruders statute is a

legislatively crafted expansion to the right to self-defense. See

Martinez, ¶ 16, 522 P.3d at 729. Pettigrew provides no support for

his assertion that the right to use deadly force against intruders in

the manner envisioned in the force-against-intruders statute is a

fundamental right subsumed within the constitutional right to bear

arms. Notably, the court permitted Pettigrew to assert a traditional

self-defense at trial, although the jury rejected it.

¶ 60 “[W]e review substantive due process claims that [do not]

implicate a fundamental right under the rational basis test: the

state must ‘demonstrate that the legislation bears some reasonable

relationship to a legitimate governmental interest.’” People v. Maloy,

2020 COA 71, ¶ 52, 465 P.3d 146, 158 (quoting People v. Young,

859 P.2d 814, 818 (Colo. 1993)).

¶ 61 The detention facility exception readily survives rational basis

review. The state has a legitimate governmental interest in

protecting the safety of inmates and detention facility employees

24
and discouraging the use of violence in detention facilities.

Prohibiting inmates from invoking the force-against-intruders

statute — an expansion to the traditionally recognized defense of

self-defense that inmates remain entitled to assert — is reasonably

related to the state’s legitimate governmental interest in safety and

violence prevention because it limits an inmate’s use of force to

situations where he reasonably perceives the “use or imminent use

of unlawful physical force” by another. § 18-1-704.

¶ 62 For these reasons, we conclude that the detention facility

exception does not violate Pettigrew’s fundamental right to self-

defense.

B. The Detention Facility Exception Does Not Violate
Equal Protection

¶ 63 The Equal Protection Clause of the Fourteenth Amendment

provides that no state shall “deny to any person within its

jurisdiction the equal protection of the laws.” U.S. Const. amend.

XIV, § 1; see also Colo. Const. art. II, § 25.

¶ 64 “Where a party raises an equal protection challenge, the level

of judicial scrutiny depends on the type of classification used and

the nature of the right affected.” People v. Castillo, 2022 COA 20,

25
¶ 19, 510 P.3d 561, 566. As with substantive due process claims

that do not implicate a fundamental right, we apply rational basis

review when the challenged law does not impact a traditionally

suspect class. See id.

¶ 65 Pettigrew contends that the detention facility exception

violates the constitutional guarantee of equal protection because it

treats inmates and similarly situated, non-incarcerated residents of

a dwelling differently. Thus, Pettigrew contends he has been

treated differently because of his incarceration status. But

incarceration is not a suspect classification. See Curley v. Perry,

246 F.3d 1278, 1285 n.5 (10th Cir. 2001); Carson v. Johnson, 112

F.3d 818, 821-22 (5th Cir. 1997) (“Neither prisoners nor indigents

constitute a suspect class.”).

¶ 66 Thus, we apply rational basis review to Pettigrew’s equal

protection claim. For the reasons discussed above, supra Part III.A,

we conclude that the detention facility exception survives rational

basis review.

C. The Detention Facility Exception Is Not Void for Vagueness

¶ 67 Finally, Pettigrew contends that the detention facility exception

is unconstitutional because it is impermissibly vague. Specifically,

26
he challenges the qualifier, “unless the context otherwise requires.”

§ 18-1-704.5(5). Pettigrew asserts that the General Assembly

“provided no guidance to give this clause meaningful effect.”

¶ 68 A law “violates due process requirements when it contains

language so vague that it fails to provide fair notice of what conduct

is prohibited.” Sellon v. City of Manitou Springs, 745 P.2d 229, 233

(Colo. 1987). “A state-imposed sanction violates due process if the

underlying law or regulation ‘fails to provide a person of ordinary

intelligence fair notice of what is prohibited, or is so standardless

that it authorizes or encourages seriously discriminatory

enforcement.’” In re Abrams, 2021 CO 44, ¶ 23, 488 P.3d 1043,

1052 (quoting United States v. Williams, 553 U.S. 285, 304 (2008)).

“Thus, the vagueness doctrine requires that a criminal statute ‘be

framed with sufficient clarity to alert all who are subject to its

sanctions to the nature of the proscribed behavior and to inform

them of permissible standards of conduct, that they may conduct

themselves accordingly.’” McCoy v. People, 2019 CO 44, ¶ 60, 442

P.3d 379, 392 (quoting People v. Randall, 711 P.2d 689, 691 (Colo.

1985)).

27
¶ 69 But “neither scientific nor mathematical exactitude in

legislative draftsmanship” is required. Sellon, 745 P.2d at 233. “[A]

vagueness challenge fails ‘where reasonable persons would know

that their conduct puts them at risk.’” Abrams, ¶ 24, 488 P.3d at

1052 (quoting People v. Graves, 2016 CO 15, ¶ 19, 368 P.3d 317,

325).

¶ 70 “The term ‘context’ in the statutory phrase ‘unless the context

otherwise requires’ means the context ‘within which [a defined

statutory term] is used within the statute’s substantive provisions.’”

People v. Mendenhall, 2015 COA 107M, ¶ 25, 363 P.3d 758, 766

(quoting Pima Fin. Serv. Corp. v. Selby, 820 P.2d 1124, 1128 (Colo.

App. 1991)).

¶ 71 Notwithstanding the qualifier, we conclude that the General

Assembly framed the detention facility exception “with sufficient

clarity to alert all who are subject” to it to “permissible standards of

conduct, that they may conduct themselves accordingly.’” McCoy,

¶ 60, 442 P.3d at 392 (quoting Randall, 711 P.2d at 691).

Specifically, the detention facility exception leaves no question that

the protections outlined in the force-against-intruders statute do

not apply to inmates. Although the open-ended qualifier may not

28
amount to “mathematical exactitude in legislative draftsmanship,”

Sellon, 745 P.2d at 233, it is not “so standardless that it authorizes

or encourages seriously discriminatory enforcement.” Abrams,

¶ 23, 488 P.3d at 1052 (quoting Williams, 553 U.S. at 304). For

these reasons, we conclude that the detention facility exception is

not constitutionally infirm.

IV. Trial Issues

¶ 72 Pettigrew next asserts that the court committed three errors

during his trial. First, according to Pettigrew, the court admitted a

summary exhibit containing inadmissible hearsay and thereby

violated his Confrontation Clause rights. Second, he says the court

erred by not sua sponte intervening when a witness “narrated” a

video exhibit. Third, Pettigrew contends that the court erroneously

rejected one of his proposed jury instructions. We address and

reject each contention in turn.

A. Standard of Review

¶ 73 We review a trial court’s evidentiary rulings for an abuse of

discretion. Rojas v. People, 2022 CO 8, ¶ 16, 504 P.3d 296, 302. A

court abuses its discretion when its decision is manifestly arbitrary,

unreasonable, or unfair, or when it misapplies the law. People v.

29
Johnson, 2021 CO 35, ¶ 16, 486 P.3d 1154, 1158. However, we

review de novo whether a particular statement constitutes hearsay

or violates a defendant’s rights under the Confrontation Clause.

See People v. Schnorenberg, 2023 COA 82, ¶ 10, 541 P.3d 1, 4 (cert.

granted May 28, 2024); People v. Jones, 2023 COA 104, ¶ 43, 543

P.3d 419, 427. “[W]e review the trial court’s decision regarding

whether to give a particular jury instruction for an abuse of

discretion.” People v. Manyik, 2016 COA 42, ¶ 65, 383 P.3d 77, 89.

¶ 74 We apply harmless error review to preserved contentions of

nonconstitutional dimension, reversing only if the error

“substantially influenced the verdict or affected the fairness of the

trial proceedings.” Hagos, ¶ 12, 288 P.3d at 119 (quoting Tevlin v.

People, 715 P.2d 338, 342 (Colo. 1986)).

¶ 75 As noted above, we review unpreserved errors for plain error.

See id. at ¶ 14, 288 P.3d at 120.

B. Summary Exhibit

¶ 76 The prosecutor called a criminal investigator for the Office of

the Inspector General, Eugene Redman, to testify about his

investigation of the incident. Redman explained that the facility’s

surveillance system captures video (but not audio) recordings of

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common spaces, but that there are no recording devices inside

individual cells.

¶ 77 The prosecutor asked Redman to authenticate several

exhibits, including segments of a surveillance video from the day of

the incident and still photographs captured from the video. After

the court admitted the exhibits, Redman used the still photographs

to describe various portions of the facility and the inmates’ daily

routine. The prosecutor then directed Redman’s attention to the

surveillance videos. Before playing them for the jury, the

prosecutor asked Redman questions about Exhibit 22, which he

described as “a summary of the times and the events” depicted in

the videos. Exhibit 22 contains five color-coded tables —

corresponding to different videos — that describe critical events

shown on the videos, together with the corresponding timestamps.

Redman confirmed that, based on his review of Exhibit 22 and the

surveillance videos, Exhibit 22 was an “accurate summary” of the

events shown in the videos.

¶ 78 Pettigrew objected to Exhibit 22’s admission on foundation,

hearsay, and authentication grounds. He did not argue that

admission of the exhibit would violate his Confrontation Clause

31
rights, however. The court admitted Exhibit 22 over Pettigrew’s

objection.

¶ 79 During closing argument, the prosecutor referenced Exhibit 22

and asked the jury to closely review its timelines.

¶ 80 Pettigrew contends that the court erred by admitting Exhibit

22 because it was hearsay not subject to any exception. He asserts

that Exhibit 22 was hearsay because an “unidentified [Department

of Corrections] declarant” created it. He also asserts, for the first

time on appeal, that Exhibit 22 constituted inadmissible testimonial

hearsay and that its admission violated his Confrontation Clause

rights. We disagree.

¶ 81 Hearsay is “a statement other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted.” CRE 801(c). A “statement” is “(1)

an oral or written assertion or (2) nonverbal conduct of a person, if

it is intended by the person to be communicative.” CRE 801(a).

¶ 82 Rule 1006 of the Colorado Rules of Evidence allows for the

admission of summary exhibits. CRE 1006 provides, “The contents

of voluminous writings, recordings, or photographs which cannot

32
conveniently be examined in court may be presented in the form of

a chart, summary, or calculation.”

¶ 83 Summary exhibits are generally admissible if (1) the evidence

is “sufficiently voluminous such that in-court examination would be

inconvenient”; (2) they summarize the underlying information

“accurately, correctly, and in a nonmisleading manner”; and (3) the

underlying information is “at least admissible, if not admitted.”

Murray v. Just in Case Bus. Lighthouse, LLC, 2016 CO 47M, ¶ 50,

374 P.3d 443, 457 (quoting United States v. Bray, 139 F.3d 1104,

1110 (6th Cir. 1998)); see also People v. McDonald, 15 P.3d 788,

790 (Colo. App. 2000). “[T]he most important considerations in

determining whether summary charts are admissible are whether

the summaries are sufficiently accurate and nonprejudicial and

whether they would be helpful to the jury.” Murray, ¶ 52, 374 P.3d

at 457-58. “[T]rial courts abuse their discretion when they admit

summary charts that characterize evidence in an argumentative

fashion rather than simply organize it in a manner helpful to the

trier of fact.” Id. at ¶ 47, 374 P.3d at 456. (On appeal, Pettigrew

does not challenge the admission of the underlying surveillance

videos from which the summary charts were prepared. Nor does he

33
challenge the admissibility of Exhibit 22 under any of the

conditions for admissibility set out in CRE 1006 and Murray.)

¶ 84 Witnesses providing summary testimony may satisfy the

“personal-knowledge requirement by examining the underlying

documentary evidence on which they base[] their testimony.” Id. at

¶ 61, 374 P.3d at 459; see also U.S. Welding, Inc. v. B & C Steel,

Inc., 261 P.3d 513, 517-18 (Colo. App. 2011). Redman testified that

he had examined the surveillance videos and the summary charts,

and that Exhibit 22 accurately summarized the content of the

surveillance video. Exhibit 22 merely organized the information in

the videos in a manner helpful to the jury. See Murray, ¶ 47, 374

P.3d at 456.

¶ 85 Further, Pettigrew had the opportunity to cross-examine

Redman about possible discrepancies between Exhibit 22 and the

underlying surveillance videos. The jury had access to the

underlying videos and was able to determine if there were any

inconsistencies between them and Exhibit 22.

¶ 86 Thus, we do not believe that Exhibit 22 was hearsay. And

because it was not hearsay, its admission did not implicate or

violate Pettigrew’s Confrontation Clause rights. See People v.

34
Marciano, 2014 COA 92M-2, ¶ 38, 411 P.3d 831, 839 (“The

admission of testimonial hearsay violates a defendant’s right to

confrontation under the Sixth Amendment of the United States

Constitution absent unavailability of the declarant and a prior

opportunity for cross-examination by the defendant.”).

C. Narration of Video Exhibit

¶ 87 Pettigrew next contends the court erred by failing to intervene

without the benefit of objection after Redman “narrated” a video

exhibit. We are unpersuaded.

¶ 88 After admitting Exhibit 22, the prosecutor played portions of

several of the surveillance videos. Each exhibit contained a

surveillance video from one of the cameras peppered throughout the

facility. Thus, the prosecutor bounced between exhibits to play

clips from different surveillance cameras in chronological order.

The prosecutor used Redman’s testimony to orient the jury and

explain the different clips they were viewing.

¶ 89 As the jury watched the video exhibits, Redman provided the

following testimony:

• which of the doors within the pod was the door to

Pettigrew’s cell;

35
• details about Pettigrew’s and other witnesses’ attire;

• the inmates’ daily routine and why they would be

moving from one portion of the facility to another at a

given time;

• whether anything shown on the video would change for

a certain period of time; and

• whether Pettigrew’s cell door was ajar or closed at a

given time.

¶ 90 At one point, Redman admitted that he had previously

confused Pettigrew with another man who, like Pettigrew, was

wearing a hat and was seated at the same cafeteria table as

Pettigrew. Pettigrew was afforded an opportunity to cross-examine

Redman regarding his mistake. He did not object to Redman’s

testimony on the basis he asserts on appeal — that Redman

allegedly provided improper narrative testimony.

¶ 91 Under CRE 701, a lay witness may testify to opinions or

inferences that are “(a) rationally based on the perception of the

witness, (b) helpful to a clear understanding of the witness’[s]

testimony or the determination of a fact in issue, and (c) not based

on scientific, technical, or other specialized knowledge within the

36
scope of [CRE] 702.” Lay opinion testimony is admissible under

CRE 701 if “it has the effect of describing something that the jurors

could not otherwise experience for themselves by drawing upon the

witness’s sensory and experiential observations that were made as a

firsthand witness to a particular event.” People v. McFee, 2016 COA

97, ¶ 76, 412 P.3d 848, 863 (quoting United States v. Freeman, 730

F.3d 590, 595 (6th Cir. 2013)). A witness may not testify to

conclusions that jurors are “competent to reach on their own,” id.,

because such opinion testimony is not “helpful” to the jury, as CRE

701 requires. Cf. McFee, ¶ 76, 412 P.3d at 863 (A witness may not

interpret what the defendant said in an audio recording if the jury

is in “precisely the same position” as the witness to hear and

interpret the defendant’s words, and if the witness “was neither

present when [the defendant] uttered the words nor so familiar with

[the defendant’s] voice that he was more likely to correctly identify

the contested words” than the jury.).

¶ 92 “[A] lay witness may testify regarding the identity of a person

depicted in a surveillance photograph if there is some basis for

concluding that the witness is more likely to correctly identify the

defendant from the photograph than is the jury.” Robinson v.

37
People, 927 P.2d 381, 384 (Colo. 1996). “[T]he lay witness need

only be personally familiar with the defendant, and the intimacy

level of the witness’[s] familiarity with the defendant goes to the

weight to be given to the witness’[s] testimony, not the admissibility

of such testimony.” Id.

¶ 93 For the following reasons, we perceive no error in the court’s

admission of Redman’s testimony. Redman testified that he was

familiar with the facility and with Pettigrew, and that he had

watched the surveillance videos at length. Thus, he was not in the

same position as the jury to explain confusing portions of the

surveillance video. Rather, Redman provided a significant amount

of testimony that would have been helpful to the jury. For example,

he was able to contextualize what the jury was seeing, foreshadow

important events that the jurors should watch for, and identify key

witnesses in the videos. In some clips, as many as twenty to thirty

similarly dressed men were shown simultaneously. Redman’s

testimony helped the jury pinpoint where Pettigrew and other

witnesses were located on the screen and what they were wearing

for future identification. Finally, Redman’s familiarity with the

38
videos allowed the prosecutor to skip unimportant sections of the

lengthy videos, promoting the efficiency and expediency of the trial.

¶ 94 To the extent that our case law prohibits a witness from

interpreting a recording that the jury is similarly situated to

interpret, see McFee, ¶ 76, 412 P.3d at 863, we conclude that the

prohibition does not apply to this case. The videos that Redman

described during his testimony contained no audio, and Redman

never “narrated” a recorded statement. See People v. Grant, 2021

COA 53, ¶ 66, 492 P.3d 345, 354-55 (distinguishing McFee from

cases involving a witness’s identification of a defendant on

surveillance video).

¶ 95 Thus, we perceive no error, let alone plain error.

D. Character Evidence Jury Instruction

¶ 96 Finally, Pettigrew contends that the court erroneously rejected

one of his proposed jury instructions.

¶ 97 During trial, the court admitted certain of Pettigrew’s evidence

of the victim’s violent character, which Pettigrew said supported his

defense of self-defense. During the jury instruction conference,

Pettigrew tendered a proposed jury instruction that said, “You may

consider evidence of the victim’s character for violence when

39
determining whether the victim would be likely to be the initial

aggressor.” The court denied the proposed instruction.

¶ 98 “A jury instruction should substantially track the language of

the statute describing the crime; a material deviation from the

statute can result in reversible plain error, depending on the facts

of the case.” People v. Weinreich, 119 P.3d 1073, 1076 (Colo. 2005).

We review not only whether the jury instructions faithfully tracked

the law but also whether they were confusing or may have misled

the jury. Garcia v. People, 2022 CO 6, ¶ 16, 503 P.3d 135, 140.

¶ 99 We conclude that the court did not err by rejecting Pettigrew’s

proposed instruction because the court had already properly

instructed the jury on Pettigrew’s defense of self-defense, and the

proposed instruction improperly highlighted evidence.

¶ 100 “An instruction that tracks the language of the statute, as this

one did, is generally sufficient.” People v. Archuleta, 2017 COA 9,

¶ 52, 411 P.3d 233, 242. The self-defense instruction that the

court provided tracked the language of the self-defense statute and

the language of the Colorado Model Criminal Jury Instructions. See

§ 18-1-704; COLJI-Crim. H:12 (2024).

40
¶ 101 “[A] trial court may refuse an instruction if it is argumentative,

unduly emphasizes particular evidence, or contains statements not

supported by the evidence.” People v. Vanderpauye, 2021 COA 121,

¶ 68, 500 P.3d 1146, 1157 (quoting People v. Baird, 66 P.3d 183,

194 (Colo. App. 2002)), aff’d, 2023 CO 42, 530 P.3d 1214. The

proposed instruction was improper because it unduly emphasized

evidence suggesting the victim had a violent character and

instructed the jury to use that evidence for a specific purpose.

¶ 102 Thus, the court properly rejected the proposed instruction.

V. Cumulative Error

¶ 103 Pettigrew contends that, if we determine the court erred and

that none of the errors individually requires reversal of his

conviction, we should nevertheless reverse because of the errors’

cumulative prejudicial impact. “For reversal to occur based on

cumulative error, a reviewing court must identify multiple errors

that collectively prejudice the substantial rights of the defendant,

even if any single error does not. Stated simply, cumulative error

involves cumulative prejudice.” Howard-Walker v. People, 2019 CO

69, ¶ 25, 443 P.3d 1007, 1011 (citation omitted). The relevant

inquiry is “whether, viewed in the aggregate, the errors deprived the

41
defendant of a fair trial.” Id. at ¶ 40, 443 P.3d at 1014. Because we

conclude that the court did not err, we reject Pettigrew’s cumulative

error argument. (In light of that conclusion, we decline to opine on

the People’s assertion that we should review unpreserved claims of

cumulative error for plain error.)

VI. Violation of C.A.R. 28(e)

¶ 104 Lastly, we note that, to fit the second amended opening brief

within the word limit, Pettigrew’s counsel removed spaces from legal

citations and citations to the record. We not only granted

Pettigrew’s counsel leave to file an oversized 10,500-word opening

brief, but, in our July 21, 2023, order, we warned counsel that

improperly altering the brief’s formatting violates our “Policy on

Citation to the Record Adopted pursuant to C.A.R. 28(e)” and makes

briefs “difficult to read and decipher.” Without the improper

alterations, the word count in Pettigrew’s second amended opening

brief exceeded the 10,500-word limit that this court authorized.

Having previously advised the Appellate Division of the Colorado

State Public Defender’s Office that we will not tolerate this practice,

we now warn the Office that further manipulation of legal and

42
record citations to artificially reduce the word count of an already

oversized brief may result in the imposition of sanctions.

VII. Disposition

¶ 105 The judgment is affirmed.

JUDGE JOHNSON and JUDGE MOULTRIE concur.

43