Peo v. Peters

21CA1444 Peo v Peters 02-20-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA1444
El Paso County District Court No. 18CR4176
Honorable Marcus S. Henson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Mark Christopher Peters,

Defendant-Appellant.

JUDGMENT AND SENTENCE AFFIRMED

Division VI
Opinion by JUDGE WELLING
Brown and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 20, 2025

Philip J. Weiser, Attorney General, Grant R. Fevurly, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, River B. Sedaka, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Mark Christopher Peters, appeals his judgment of

conviction and sentence for one count of felony murder, two counts

of stalking, and one count of tampering with physical evidence. We

affirm.

I. Background

¶2 Peters was married to the victim, M.P., but as of 2018, Peters

and M.P. were separated and going through a divorce. While the

divorce was pending, M.P. moved in with her daughter, R.L.

According to R.L., very few people knew her address and, to her

knowledge, no one had given Peters her address.

¶3 On July 12, 2018, Peters went to the home of R.Y., a friend of

M.P.’s. There was conflicting testimony about what happened next.

R.Y. testified that Peters kidnapped him at gunpoint, forced him to

begin driving, and asked him to go to R.L.’s house. R.Y. further

testified that he told Peters that he couldn’t remember where R.L.

lived, which angered Peters. According to R.Y., after he told Peters

that he couldn’t remember R.L.’s address, Peters asked R.Y. to call

M.P. R.Y. tried to call M.P., but she didn’t answer. R.Y. then called

R.L., who answered and gave the phone to M.P. M.P. gave R.L.’s

1
address to R.Y. after he told her that he had car parts to drop off.

R.Y. testified that Peters overheard this conversation.

¶4 Contrary to R.Y.’s account of what happened, Peters testified

that he didn’t kidnap R.Y. And Peters’s friend, D.B., testified that

Peters and R.Y. came to her house that day, and it didn’t appear to

her that R.Y. had been kidnapped.

¶5 One day later, on July 13, 2018, Peters went to R.L.’s house

while wearing a wig and holding a pamphlet. He took D.B.’s gun to

the door with him. According to R.L., M.P. heard the doorbell ring,

went to the door, looked through the peephole, and said, “There’s a

woman at the door.” R.L. then went to the door, and she also

thought she saw a woman at the door with her back turned. R.L.

testified that, because of what appeared to be pamphlets in the

visitor’s hand, she assumed the person at the door was a canvasser.

R.L. went to open the door and “before [she] knew it,” the door

pushed open into her face. She then realized that it was Peters who

was at the door, wearing a wig. R.L. testified that she then

attempted to shut the door, but Peters had his foot in the door and

was “waving his gun.” R.L. yelled to M.P. that Peters was at the

door. According to R.L., M.P. initially became panicked and went to

2
her room, but she then came out of her room to help R.L. try to

keep Peters out of the house. Peters then shot through the door,

hitting M.P. in the head and killing her. R.L. testified that she then

said, “You fucking shot my mom in the head,” and Peters fled.

During his testimony, Peters denied that he lodged his foot in the

door.

¶6 Peters was arrested and charged with three counts of murder

in the first degree — after deliberation, felony murder, and extreme

indifference — one count of attempted murder in the first degree,

three counts of second degree burglary, two counts of stalking, one

count of tampering with physical evidence, three counts of first

degree kidnapping, and one count of second degree kidnapping. At

trial, Peters asserted self-defense. The jury convicted Peters of first

degree felony murder, second degree murder as a lesser included

offense of first degree murder after deliberation, two counts of

second degree burglary, two counts of stalking, and tampering with

physical evidence. The jury acquitted Peters of all the other

charges.

¶7 The trial court merged the second degree murder conviction

and the burglary conviction into the first degree felony murder

3
conviction and sentenced Peters to a controlling sentence of life

without the possibility of parole (LWOP) (with the sentences for

stalking and evidence tampering running concurrently to one

another and the LWOP sentence).

II. Analysis

¶8 Peters raises five arguments on appeal. He contends that

(1) the trial court exhibited bias against him; (2) the trial court

erroneously admitted R.L.’s hearsay statements; (3) there was

pervasive prosecutorial misconduct during voir dire and closing

argument; (4) even if each isolated error doesn’t warrant reversal,

the cumulative prejudice of the errors warrants reversal; and (5) his

LWOP sentence constitutes cruel and unusual punishment. We

consider, and reject, each contention below.

A. Whether the Trial Court Exhibited Bias During D.B.’s
Testimony

¶9 Peters contends that we must reverse his judgment of

conviction because the trial court exhibited judicial bias by

(1) reminding D.B. of her oath to testify truthfully during her

testimony and (2) giving the jury a credibility instruction during

4
D.B.’s testimony. We aren’t persuaded that the trial court exhibited

any bias.

1. Additional Facts

¶ 10 At trial, the prosecution called D.B. to testify. Even from the

flat transcript, it’s clear that D.B. was a challenging witness.

During her testimony, D.B. frequently had trouble recollecting what

she had told police and had difficulty understanding the

prosecutor’s questions. D.B.’s testimony was also interrupted twice

after she expressed concerns about perjuring herself. In both

instances where D.B. raised this concern, the court appointed D.B.

her own counsel and took a recess to permit D.B. to discuss her

concerns with her appointed counsel.

¶ 11 During the prosecutor’s direct examination of D.B., the

following exchange occurred:

THE COURT: Hold on just a second. Ma’am, I
appreciate that this is difficult, and it may be
frustrating for you. I can also appreciate that
it may be difficult and frustrating for counsel.
He’s trying to get answers to questions. And I
think you are struggling to try to make sure
that you give him maybe the answer to the
question you believe he’s asking.

[D.B.:] I don’t understand his questions is —

5
THE COURT: And bear with me. What I’m
going to do is I’m just going to say at this
stage, if you don’t understand the question,
before you even try to answer it, just say, I’m
not sure I understand. Could you ask it a
different way?

[D.B.:] Okay.

THE COURT: I think that may be part of where
the confusion lies. Okay?

[D.B.:] Okay.

THE COURT: The other thing I’m going to ask
you to do, ma’am, is to the best of your ability,
just answer the questions truthfully. That’s
what the oath requires you to do.

[D.B.:] I am — okay.

(Emphasis added.) Peters didn’t contemporaneously object.

¶ 12 Later, during the prosecutor’s redirect examination of D.B.,

the prosecutor asked her whether Peters had seemed fixated on his

frustrations with M.P. Peters objected as to speculation and, when

overruling the objection, the trial court sua sponte instructed the

jury as follows:

Folks, I want to share with the jury that you
need to understand that at the end of all of
this, you are going to be given an instruction
that is going to require you to decide what
weight maybe you give to the testimony of a
witness based on other evidence and how you
view things in the whole.

6
And so you will need to be reminded at this
point that you are going to have to make some
decisions about how you want to treat the
testimony and what you may want to believe or
not believe based on all the other evidence.

Peters didn’t contemporaneously object to this but, at a sidebar

later on in D.B.’s testimony, he objected and asked that in the

future the court consult with counsel before interjecting

instructions. In response, the court explained its thought process:

[D.B.’s] testimony has gone on as long as it
has to the extent that there have been multiple
instances where the witness has been asked to
make comments. And it was raised actually
most recently in advance of my giving this
instruction to comment potentially on the
credibility of some other witness. And so that
was part of what prompted me to want to give
a bit of that direction to the jury.

2. Legal Principles and Standard of Review

¶ 13 In our justice system, it’s axiomatic that a judge “be free of all

taint of bias and partiality.” People v. Jennings, 2021 COA 112,

¶ 18. Because bias and partiality must be avoided, the trial judge

“must exercise restraint to maintain an impartial forum” even

though he or she “has wide discretion in conducting a trial.” People

v. Acosta, 2014 COA 82, ¶ 92.

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¶ 14 A judge’s disqualification is warranted when the judge shows

either actual bias or an appearance of impropriety. See People v.

Garcia, 2024 CO 41M, ¶ 21. But “while both an appearance of

impropriety and actual bias are grounds for recusal from a case,

only when the judge was actually biased will we question the

result.” Id. (quoting Sanders v. People, 2024 CO 33, ¶ 50).

¶ 15 Actual bias “is bias ‘that in all probability will prevent [a judge]

from dealing fairly with a party.’” Jennings, ¶ 20 (alterations in

original) (quoting People in Interest of A.G., 262 P.3d 646, 650 (Colo.

2011)). Disqualification based on actual bias isn’t waivable. Id. at

¶ 21. When asserting that a trial judge was biased, the defendant

“must establish that the judge had a substantial bent of mind

against him or her.” Id. at ¶ 28 (quoting People v. Drake, 748 P.2d

1237, 1249 (Colo. 1988)). Such bias must be clearly established in

the record. Id.

¶ 16 We review de novo whether a trial judge’s recusal was

required. Sanders, ¶ 25. If an actually biased judge presided over

a trial, reversal is required because it constitutes structural error.

Garcia, ¶ 21; Hagos v. People, 2012 CO 63, ¶ 10.

8
3. The Trial Court Didn’t Exhibit Bias

¶ 17 We acknowledge that under certain circumstances, a trial

judge’s comments on the credibility of a witness may evince bias or

partiality. See People v. Rogers, 800 P.2d 1327, 1328-29 (Colo.

App. 1990). But given the context in which the trial court reminded

D.B. of her oath and instructed the jury on its role in assessing

credibility during D.B.’s testimony, we don’t discern that the trial

judge evinced bias or partiality in this case.

¶ 18 First, D.B. was a prosecution witness, so it’s counterintuitive

that an admonition or instruction given while a prosecution witness

is testifying on direct or redirect would evince a bias against the

defendant. While portions of D.B.’s testimony may have benefitted

the defense, that the trial judge only interrupted the prosecution

during the examination of its own witness cuts against any

inference that the trial judge was exhibiting actual bias against

Peters or an appearance of impropriety in either instance.

¶ 19 Second, when the trial judge reminded D.B. of her oath during

her testimony, it was after D.B. had repeatedly told the prosecutor

that she didn’t understand the questions and stated that she felt

the prosecutor was “going around in circles.” Based on the record

9
and the surrounding context, it appears that the trial judge sensed

that both D.B. and the prosecutor were becoming increasingly

frustrated during their exchange. In this context, the trial court’s

decision to remind D.B. of her oath doesn’t indicate that the trial

judge had either a “substantial bent of mind” or prejudice against

Peters. See Jennings, ¶ 28; see also Sanders, ¶¶ 45-46. Rather, it

appears that the trial court was simply attempting to cut through

the frustration and keep D.B.’s testimony moving.

¶ 20 Similarly, the trial judge gave the credibility instruction during

D.B.’s testimony after the prosecution had asked her to speculate

on Peters’s feelings of frustration toward M.P. and before permitting

D.B. to testify as to whether Peters seemed fixated on his marital

problems. While the timing of the instruction may not have been

ideal, when considering the context in which the court gave the

instruction, the court’s decision to give the instruction doesn’t

indicate that the trial judge had either a “substantial bent of mind”

or prejudice against Peters. See Jennings, ¶ 28; see also Sanders,

¶¶ 45-46. Instead, the court was simply reminding the jury that it

was its role to judge the credibility of all of the witnesses and to

10
determine the weight to be accorded the evidence, even when a

witness testifies about another person’s state of mind.

¶ 21 Because we perceive no actual bias, we decline to reverse on

this ground or on the grounds that the trial court demonstrated an

appearance of impropriety. See Richardson v. People, 2020 CO 46,

¶ 39 (Absent “evidence demonstrating actual judicial bias or

prejudice, a trial judge’s potential violation of [the ethical] rules

does not mandate reversal.”).

B. Whether the Trial Court Improperly Permitted R.L.’s Hearsay
Statements

¶ 22 Peters next contends that the trial court erred by admitting

hearsay statements that R.L. made to the police after the shooting.

We aren’t persuaded that the court erred.

1. Additional Facts

¶ 23 During its case-in-chief, the prosecution called R.L. to testify

about the events leading up to and surrounding M.P.’s death.

During cross-examination of R.L., defense counsel questioned her

about her use of “dabs” — a concentrated form of marijuana —

before the shooting. R.L. testified that she had been “doing dabs”

before the shooting.

11
¶ 24 After R.L. finished testifying, the prosecution called Sergeant

Rebecca Smith, an officer who responded to the scene of the

shooting, to testify. The prosecutor asked Sergeant Smith what

information R.L. gave her at the scene, including the name of the

shooter and what weapon was used. In response, Sergeant Smith

stated that R.L. identified the shooter as Peters and she described

the weapon as a black handgun. Peters objected to both responses

based on hearsay. The prosecution argued that the statements

were admissible as an excited utterance or as a prior consistent

statement based on defense counsel’s questioning of R.L. about her

marijuana use. The court overruled the objection, agreeing that it

was an excited utterance but stating that it wasn’t a prior

consistent statement.

¶ 25 The prosecutor continued questioning Sergeant Smith and

asked her what happened at the door. Sergeant Smith responded,

[R.L.] said that Mark Peters had come over and
tried to force his way inside the door, and that
she and her mother were trying to block the
door to prevent him from coming in. During
that time is when she saw the black handgun
and, at one point, he fired a round through the
door —

12
Peters made a hearsay objection and argued that the statement was

a “narrative response” rather than an excited utterance and asked

the court to strike Sergeant Smith’s testimony. The court initially

sustained the objection but allowed the prosecutor to make a record

during a sidebar. The prosecutor again argued that Sergeant

Smith’s testimony was admissible as R.L.’s statement was an

excited utterance or a prior consistent statement. The trial court

then overruled the objection, finding that the statement was

admissible as an excited utterance and as a prior consistent

statement.

¶ 26 After the sidebar, the prosecutor requested that Sergeant

Smith “finish out the statement” and asked her if R.L. ended her

statement by saying “that Mark Peters shot [a round] through the

door, hitting her mother in the head?” Sergeant Smith answered in

the affirmative.

2. Standard of Review and Legal Principles

¶ 27 Hearsay is an out-of-court statement “offered in evidence to

prove the truth of the matter asserted.” CRE 801(c). Unless it’s

permitted by the rules of evidence, statute, or procedural rule,

hearsay is inadmissible. CRE 802.

13
¶ 28 CRE 801(d)(1)(B) specifically governs the admission of prior

consistent statements. Under CRE 801(d)(1)(B), a statement isn’t

hearsay if “[t]he declarant testifies at the trial or hearing and is

subject to cross-examination concerning the statement, and the

statement is . . . consistent with the declarant witness’s testimony

and is offered to rebut an express or implied charge against the

declarant witness of recent fabrication or improper influence or

motive.” But our supreme court has held that prior consistent

statements are admissible outside of CRE 801(d)(1)(B) when “used

for rehabilitation when a witness’ credibility has been attacked.”

People v. Eppens, 979 P.2d 14, 21 (Colo. 1999).

¶ 29 Notwithstanding this permitted use, there are still limitations

on offering prior consistent statements for rehabilitative purposes.

Id. One such limitation is the relevancy and probative value of the

statement under CRE 401, 402, and 403. Id. at 21-22. The trial

court must evaluate the relevancy of a prior consistent statement

offered for rehabilitative purposes and “determine whether the

statements have some probative force bearing on the credibility of

the witness beyond the mere fact that the witness has repeated on a

prior occasion a statement consistent with his or her trial

14
testimony.” Id. at 22. Further, in determining the admissibility of

the statement, the trial court must consider “the prohibition against

the needless presentation of cumulative evidence.” Id.

¶ 30 Because the trial court must consider the relevancy and

probative value as to credibility, the admissibility of a prior

consistent statement “turns on the scope of impeachment and the

attack on the witness’s credibility.” People v. Miranda, 2014 COA

102, ¶ 15. If the attack on a witness’s credibility is “based on

‘specific facts,’” then statements regarding only those facts are

admissible, but if “the impeachment is general and not limited to

specific facts . . . the jury should have access to all the relevant

facts, including consistent and inconsistent statements.” Id. at

¶ 16 (quoting People v. Elie, 148 P.3d 359, 362 (Colo. App. 2006)).

¶ 31 It’s within the trial court’s discretion to determine “what

constitutes general impeachment.” Id. at ¶ 17. “We review a trial

court’s evidentiary rulings for an abuse of discretion.” People v.

Abdulla, 2020 COA 109M, ¶ 61. “A trial court abuses its discretion

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

it misapplies the law.” Id.

15
¶ 32 When an issue is preserved, we apply the nonconstitutional

harmless error standard to a trial court’s evidentiary rulings.

People v. Martinez, 2020 COA 141, ¶ 27; see also Hagos, ¶¶ 9, 12.

Under this standard, “reversal is warranted if the error affects the

substantial rights of the parties, meaning ‘the error substantially

influenced the verdict or affected the fairness of the trial

proceedings.’” Martinez, ¶ 28 (quoting Zapata v. People, 2018 CO

82, ¶ 61).

3. R.L.’s Hearsay Statements Were Properly Admitted as Prior
Consistent Statements

¶ 33 To begin, we must determine the nature of the impeachment of

R.L. That is, was it based on specific facts or was it general

impeachment? Peters didn’t impeach R.L. as to any specific

statements she made. Rather, he impeached her by asking her

about her use of a highly concentrated form of marijuana before the

shooting. This was a general attack on R.L.’s credibility. Therefore,

the admission of R.L.’s prior consistent statements wasn’t limited to

specific facts.

¶ 34 But even prior consistent statements offered in response to

general impeachment must be relevant and probative of the

16
witness’s credibility to be admissible. To assess the relevance and

probative value of the prior consistent statements, we must first

consider why Peters impeached R.L. by drawing the jury’s attention

to her drug use before the shooting. Informing the jury that R.L.

used marijuana impeached R.L. in two respects: (1) her ability to

perceive events at the time they occurred and (2) her ability to

accurately recall and testify about what happened. R.L.’s prior

consistent statements were only relevant to one of those inquiries.

¶ 35 The consistent statements — primarily that Peters “tried to

force his way inside the door” and that he “shot [a round] through

the door hitting [M.P.] in the head” — weren’t relevant to or

probative of R.L.’s ability to perceive what occurred during the

shooting. The statements don’t in any way confirm that she

accurately perceived what occurred during the shooting because the

potential impediment to her accurate perception — her marijuana

use — occurred before she made the statements to Sergeant Smith.

But her prior consistent statements were relevant to and probative

of her ability to accurately recall and testify at trial about what

happened. The statements are relevant in this regard because they

confirm the accuracy of her memory at trial and they’re probative

17
because they show that the use of marijuana before the shooting

didn’t degrade her recollection of what happened at trial compared

to immediately following the shooting. Accordingly, the trial court

didn’t abuse its discretion by admitting R.L.’s hearsay statements

as prior consistent statements.

¶ 36 But even if the trial court shouldn’t have admitted R.L.’s

statements to the sergeant as prior consistent statements, any error

was harmless. The statements elicited by the prosecution from the

sergeant didn’t introduce any new evidence and were merely

cumulative of R.L.’s own testimony about the events surrounding

the shooting. Peters extensively cross-examined R.L. about the

incident itself, and the sergeant’s testimony about R.L.’s hearsay

statements was brief, consisting of approximately one page of

testimony. Thus, any error by the court in admitting R.L.’s hearsay

statements was harmless.

¶ 37 Peters claims that the admission of R.L.’s hearsay statements

wasn’t harmless because “R.L.’s credibility was crucial to the

outcome,” and the introduction of the statements “improperly

bolster[ed] her credibility.” We acknowledge that R.L.’s testimony

was important, particularly for the burglary charge because there

18
was conflicting evidence about whether Peters entered the home.

But we can’t discern how Sergeant Smith’s testimony improperly

bolstered R.L.’s testimony or credibility. While Sergeant Smith

testified about R.L.’s statements after the shooting, she didn’t assert

that R.L. was credible. And to the extent that Sergeant Smith’s

testimony had a bearing on R.L.’s credibility, it was because she

testified to prior consistent statements by R.L. — an entirely proper

purpose, not improper bolstering.

¶ 38 Because we conclude that R.L.’s hearsay statements were

properly admitted as prior consistent statements, or in the

alternative that their admission was harmless, we decline to

address whether the trial court erred by admitting the statements

as excited utterances.

C. Prosecutorial Misconduct

¶ 39 Peters next contends that his convictions for murder and

burglary must be reversed because of prosecutorial misconduct.

Peters alleges that there were six instances of prosecutorial

misconduct that either individually or collectively merit reversal.

After discussing the appropriate standard of review, we address

19
each alleged instance in turn and conclude that reversal isn’t

warranted.

1. Standard of Review

¶ 40 When reviewing claims of prosecutorial misconduct, we engage

in a two-step analysis. Wend v. People, 235 P.3d 1089, 1096 (Colo.

2010). First, we “determine whether the prosecutor’s questionable

conduct was improper based on the totality of the circumstances

and, second, whether such actions warrant reversal according to

the proper standard of review.” Id. Because these steps are

“analytically independent of the other,” we could conclude that the

prosecutor’s conduct was improper but decline to reverse the

judgment because the error was harmless. Id.

¶ 41 The standard of review we apply after determining

prosecutorial impropriety “varies depending on the circumstances.”

Id. at 1097. If an error “specifically and directly offend[s] a

defendant’s constitutional rights,” and the defendant

contemporaneously objected at trial, then the error is subject to

constitutional harmless error review. Id.; see also Hagos, ¶ 11.

Constitutional harmless errors require reversal unless the error

“was harmless beyond a reasonable doubt.” Hagos, ¶ 11 (quoting

20
Chapman v. California, 386 U.S. 18, 24 (1967)). If the error isn’t of

constitutional magnitude, and the defendant contemporaneously

objected at trial, we subject the prosecutor’s misconduct to “general

harmless error review.” Wend, 235 P.3d at 1097. Under this type

of review, we only reverse “if the error affects the substantial rights

of the parties.” Hagos, ¶ 12.

¶ 42 But if the defendant fails to contemporaneously object to the

prosecutor’s misconduct — whether the misconduct implicates a

constitutional right or not — then we review for plain error. Wend,

235 P.3d at 1097; see also Hagos, ¶ 14. Prosecutorial misconduct

constitutes plain error if it’s “‘flagrant or glaringly or tremendously

improper’ and so undermine[s] the fundamental fairness of the trial

as to cast serious doubt on the reliability of the judgment of

conviction.” People v. Carian, 2017 COA 106, ¶ 52 (quoting People

v. Cevallos-Acosta, 140 P.3d 116, 122 (Colo. App. 2005)).

¶ 43 If we conclude that a prosecutor’s statements were improper,

we must then determine whether “they affected the fundamental

fairness of the trial” by “examin[ing] a variety of factors under the

totality of the circumstances.” Id. at ¶ 55. The factors we examine

21
include “the exact language used, the nature of
the misconduct, the degree of prejudice
associated with the misconduct, the
surrounding context, . . . the strength of the
other evidence of guilt,” . . . “the severity and
frequency of the misconduct[,] . . . and the
likelihood that the misconduct constituted a
material factor leading to the defendant’s
conviction.”

Id. (alterations in original) (quoting People v. Cordova, 293 P.3d 114,

122 (Colo. App. 2011)).

2. Whether the Prosecution Improperly Used a Generic Tailoring
Hypothetical

¶ 44 Peters contends that during voir dire the prosecutor made an

improper generic tailoring argument. We agree that the prosecutor

improperly used a generic tailoring hypothetical but conclude that

the use of the improper hypothetical was harmless.

a. Additional Facts

¶ 45 Twice during voir dire, the prosecutor posed a hypothetical to

the jurors in which the prosecutor owned a store at which the

jurors were employed, and the prosecutor discovered that money

was missing from the store’s safe. As part of the hypothetical, the

prosecutor told one juror that they were the thief and then told that

juror that he was going to question each “employee” and ask them

22
about the theft. The first time the prosecutor used this

hypothetical, he asked the juror he told was the thief,

Is it advantageous [to you if] I start with you
and try to pin you down on a story first, or is it
better for you to wait and have me start on
that side so you can hear where everybody was
and what everybody was saying so you can
craft your story?

¶ 46 In response, the juror stated, “The more information I have,

the more beneficial it is for me.” The prosecutor then asked other

jurors if they agreed. They did. Peters didn’t object at this time.

¶ 47 During the prosecutor’s second attempt to use the

hypothetical, Peters objected on the grounds that it violated due

process because he would testify last. The court sustained the

objection.

b. Application

¶ 48 A prosecutor makes a “tailoring argument” when the

“prosecutor asserts that, by virtue of the defendant’s presence at

trial, the defendant ‘tailor[ed] his testimony to fit that of other

witnesses.’” Martinez, ¶ 55 (quoting Martinez v. People, 244 P.3d

135, 141 (Colo. 2010)). There are two types of tailoring arguments:

specific and generic. Id. at ¶ 56. Specific tailoring arguments are

23
“tied to evidence in the record.” Id. at ¶ 57 (citation omitted). In

contrast, “[g]eneric tailoring arguments occur when the prosecution

attacks the defendant’s credibility by simply drawing the jury’s

attention to the defendant’s presence at trial and his resultant

opportunity to tailor his testimony.” Id. at ¶ 56 (citation omitted).

Generic tailoring arguments “are improper because ‘they are not

based on reasonable inferences from evidence in the record,’ and

they imply that the defendant is less believable because he or she

exercised the right of confrontation and upheld his or her statutory

duty to be present at trial.” Id. (citation omitted). An example of an

improper generic tailoring argument is telling the jury that the

defendant “got to sit and listen to the evidence, and then testify,

based upon the evidence heard in court.” People v. Knapp, 2020

COA 107, ¶¶ 58-59.

¶ 49 The prosecutor’s hypothetical in this case isn’t a tailoring

argument because, during voir dire, the prosecutor couldn’t have

known that Peters would testify and therefore couldn’t have argued

that Peters’s testimony would be tailored. It is, however, a tailoring

hypothetical, as the hypothetical plants the seed of tailoring. It’s an

improper tailoring hypothetical at that, as it implies that if Peters

24
were to testify, his testimony would be tailored. And, because the

prosecutor used the hypothetical during voir dire, before any

evidence had been presented, the hypothetical couldn’t be a specific

tailoring hypothetical based on reasonable inference from the facts.

Instead it was a generic tailoring hypothetical suggesting that Peters

would be less believable if he testified simply because he exercised

his right to confrontation and sat through trial. The hypothetical

was therefore improper.

¶ 50 That the prosecutor’s hypothetical was improper, however,

doesn’t necessarily mean his use of it warrants reversal. Because

Peters didn’t object to the first hypothetical, we review the

prosecutor’s misconduct in that instance for plain error. See Wend,

235 P.3d at 1097. And because the trial court sustained Peters’s

objection to the hypothetical the second time, the use of the

hypothetical in that instance doesn’t constitute error. See People v.

Douglas, 2012 COA 57, ¶ 65 (declining to review an allegedly

improper comment by the prosecutor where the defendant’s

objection to the comment was sustained and he requested no

further relief).

25
¶ 51 Here, considering the totality of the circumstances, we

conclude that reversal isn’t warranted. While the prosecutor

invoked the same hypothetical in two instances, the hypothetical

didn’t directly assert that Peters would tailor his testimony, if he

testified. Further, the hypothetical was brief, and most importantly,

the prosecutor made no reference to this hypothetical at any point

during trial (including closing arguments) and never advanced a

tailoring argument. Thus, the prosecutor’s use of an improper

generic tailoring hypothetical during voir dire doesn’t warrant

reversal under the plain error standard of review.

3. Whether the Prosecution Improperly Pre-Tried Its Case

¶ 52 Peters next contends that the prosecution attempted to

improperly pre-try its case during voir dire based on its use of two

hypotheticals. We aren’t persuaded.

a. Additional Facts

¶ 53 Both hypotheticals at issue were presented during voir dire.

The first — the store hypothetical — is discussed supra in Part

II.C.2. The second hypothetical was posed to a juror as follows:

So one of my friends, he had a small child who
ended up getting into the cookie jar. . . .
[Dad] . . . looks at his son, and his son has

26
cookie crumbs on his chest. So he goes in and
he looks at the cookie jar. While there had
been quite a few cookies, clearly about 20 or
whatever, now there’s only about three. He
then goes and confronts the child. “Hey, have
you had any cookies today?” What do you
think the child says?

¶ 54 After the prosecutor posed the cookie hypothetical, the juror

responded that the child would say “no.” The prosecutor then

proceeded to ask, “[W]hat do you think is going to happen when he

asked him, ‘Well, what are these cookie crumbs on your chest? Are

you sure you didn’t have any?’” The prosecutor told the juror that

the child said, “I may have had two cookies.” The prosecutor then

discussed this being an instance of a child “minimizing their guilt”

and went on to state that adults similarly minimize guilt by saying,

“I can’t get away with this crime completely, but I’m going to

minimize the ramifications of it.” Peters didn’t object to the

prosecutor’s cookie hypothetical.

¶ 55 The prosecutor used the same cookie hypothetical later during

voir dire. On the second occasion, the prosecutor asked the jurors

whether they would be “able to look out for that sort of behavior.”

Peters objected, but not contemporaneously. Peters requested that

the court instruct the jury on Peters’s constitutional right to present

27
a defense. The trial court subsequently reiterated to the jury that

the defendant maintains a presumption of innocence, the burden of

proof is on the prosecution, and the defendant maintains a right to

present a defense.

b. Application

¶ 56 During voir dire, “[a] prosecutor engages in prosecutorial

misconduct . . . when she misstates the law or ‘intentionally uses[s]

the voir dire to present factual matter which the prosecutor knows

will not be admissible at trial or to argue the prosecution’s case to

the jury.’” People v. Krueger, 2012 COA 80, ¶ 50 (quoting People v.

Adams, 708 P.2d 813, 815 (Colo. App. 1985)). Significant in our

determination of whether a prosecutor’s challenged remarks

constitute prosecutorial misconduct is the context in which the

remarks were made. Id.

¶ 57 While it appears that each hypothetical was meant to gain

insight into the jurors’ perspectives on certain legal issues, we

conclude that neither hypothetical was an improper attempt by the

prosecutor to “pre-try” the case. Although the store hypothetical

was improper as a generic tailoring hypothetical, there is no

indication that the prosecutor misstated the law or argued the

28
prosecution’s case through the hypothetical. Indeed, the prosecutor

didn’t link the hypothetical to Peters’s right to testify or explicitly

argue that, if Peters testified, his testimony would be tailored.

¶ 58 For similar reasons, we conclude that the prosecutor didn’t

use the cookie hypothetical to pre-try the case. Again, the

prosecutor didn’t tell the jurors how the hypothetical related to the

law or inform jurors that the hypothetical was in reference to the

defendant’s affirmative defense of self-defense. Further, while the

prosecutor asked jurors if they could “look out for” minimization in

the trial, the prosecutor didn’t reference any facts of the case.

¶ 59 Thus, neither hypothetical was improper on the grounds that

the prosecution was attempting to “pre-try” its case.

4. Whether the Prosecution Improperly Analogized Reasonable
Doubt

¶ 60 Peters next contends that the prosecutor acted improperly by

trivializing the reasonable doubt standard. We agree that portions

of the prosecutor’s statements on reasonable doubt were improper

but disagree that any error is reversible.

29
a. Additional Facts

¶ 61 During voir dire, the prosecutor asked a juror who had served

on a jury before whether they found the reasonable doubt standard

“confusing.” After the juror responded that they didn’t, the

prosecutor asked: “Do you feel like it may be something that you do

every day in your life? You kind of, like, look at things and figure

out, you know, is there a doubt that this thing’s going to happen or

a reasonable doubt that that thing is going to happen?” The juror

responded in the affirmative. Peters didn’t contemporaneously

object.

¶ 62 Additionally, twice during voir dire, the prosecutor used the

judge to explain the reasonable doubt standard. Both times, the

prosecutor asked the jurors whether they believed, beyond a

reasonable doubt, that the trial judge was “an actual judge.” The

prosecutor then asked the venire members various questions, such

as whether they had seen the governor’s appointment of the judge

or the judge’s law degree. Peters didn’t contemporaneously object

to either analogy but voiced a delayed objection following the second

analogy. During his delayed objection, Peters requested that the

trial court instruct the jury on the reasonable doubt standard “and

30
differentiate the distinction between a trivial identification of a very

iconic member of the court than with the very high standard and

burden . . . of proof beyond a reasonable doubt.” The court

subsequently gave the reasonable doubt instruction and stated that

the attorneys were being permitted “latitude” in discussing

analogies but that the analogies don’t “supplant[] or in some way

offer[] a different explanation or viewpoint or perspective on what

reasonable doubt is.”

b. Application

¶ 63 We first address whether the prosecutor’s question about the

reasonable doubt standard and everyday decisions was improper.

¶ 64 Prosecutors “may not ‘misstate the evidence or the law.’”

People v. Camarigg, 2017 COA 115M, ¶ 40 (quoting Krueger, ¶ 50).

In most circumstances, equating the reasonable doubt standard to

an everyday choice is improper. See id. at ¶ 46 (“[U]sing a puzzle

analogy to equate the burden of proof to an everyday choice can be

improper.”). In this case, the prosecutor didn’t directly equate the

reasonable doubt standard to everyday choices. Rather, the

prosecutor asked the juror if using the reasonable doubt standard

is something they do in their everyday life. Notwithstanding the

31
indirectness of the prosecutor’s analogy, the question was improper

because it implies that the reasonable doubt standard is akin to

everyday decision-making, trivializing the standard.

¶ 65 Next, we address whether the prosecutor’s question about

whether the judge was a judge beyond a reasonable doubt was

improper. Certain reasonable doubt analogies can be “perilous and

unhelpful.” People v. Vialpando, 2022 CO 28, ¶¶ 35, 41. We agree

with Peters that this analogy was improper as it used the status of

an iconic courtroom figure — the judge — to illustrate reasonable

doubt, potentially misleading or confusing the jury regarding the

burden of proof. Cf. Camarigg, ¶ 47 (noting that puzzle analogies

used to illustrate reasonable doubt “are problematic if they use

iconic images”).

¶ 66 But even though the prosecutor’s reference to everyday

decision-making and analogies about the status of the judge were

improper, we still conclude that reversal isn’t warranted. Because

Peters didn’t contemporaneously object to any of the reasonable

doubt analogies, we review for plain error. When the prosecutor

made the everyday decisions analogy and the judge analogies, each

analogy was brief, and Peters doesn’t point us to any evidence that

32
the prosecutor referred back to the analogies later on in the trial.

This reduces the likelihood that the analogies undermined the

fundamental fairness of the trial. See Vialpando, ¶¶ 35, 41

(concluding that the prosecutor’s question asking whether the

jurors “could recognize, beyond a reasonable doubt, the American

flag in the courtroom even though it was folded and not entirely

visible” and analogizing to a gameshow didn’t “lower the burden of

proof and were not prejudicial” because the trial court instructed

the jury multiple times to only follow the court’s instructions, the

prosecutor’s analogies were brief and isolated, and the prosecutor

didn’t raise the analogies during closing argument); see also People

v. Van Meter, 2018 COA 13, ¶¶ 32-33 (prosecutor’s puzzle analogy

was improper but not plain error, in part because the use of the

analogy “was relatively brief and isolated” and the trial court

properly instructed the jury on reasonable doubt multiple times).

¶ 67 Further, when Peters belatedly objected to the judge analogy

the second time, his requested relief was for the trial court to read

the proper reasonable doubt standard to the jury, which the trial

court did. And, on review, “we presume that the jury followed the

court’s instructions.” Vialpando, ¶ 41. This reduced the risk of

33
prejudice. See id.; see also Van Meter, ¶ 33. Thus, we conclude

that any error in permitting the analogies wasn’t plain and, to the

extent it constituted prosecutorial misconduct, it doesn’t warrant

reversal.

5. Whether the Prosecution Undermined the Presumption of
Innocence

¶ 68 Peters next contends that, during voir dire, the prosecutor

“undermined the presumption of innocence.” We disagree that the

prosecutor engaged in misconduct.

a. Additional Facts

¶ 69 During voir dire, the prosecutor stated,

So, folks, like I said, part of it is managing
expectations, and we have had people say,
“You know what? Before I sign a guilty verdict,
I want to be 100 percent sure of this.”

And when they say stuff like that, I kind of
cringe because that means the burden of proof
has gone up. And if the burden of proof goes
up, that means it’s a lot easier to get away with
crimes.

(Emphasis added.) The prosecutor followed this up by asking jurors

what would happen if the burden was lowered. The prosecutor

then said, “[I]f that burden gets lowered that means the risk of

34
someone being convicted when they’re innocent rises, right?”

Peters didn’t object to either of the prosecutor’s statements.

b. Application

¶ 70 Because Peters didn’t object, we review this contention for

plain error. While the prosecutor’s statements were ill-advised, we

conclude that they weren’t improper, and even if they were

improper, they didn’t constitute reversible prosecutorial

misconduct.

¶ 71 It doesn’t misstate the law to distinguish between proof

beyond a reasonable doubt and proof beyond all doubt. See People

v. Pettigrew, 2020 COA 46, ¶ 20 (“It is not reversible error for a

court to distinguish the fictional ‘beyond a shadow of a doubt’

standard from the constitutionally mandated beyond a reasonable

doubt standard.”), aff’d on other grounds, 2022 CO 2. Though

inartful, this is the essence of the prosecutor’s statement. Further,

the prosecutor balanced out the statement by informing the jury

that by lowering the burden of proof, “the risk of someone being

convicted when they’re innocent rises.” We therefore conclude that

the statement, particularly when viewed in context, wasn’t

improper.

35
6. Whether the Prosecution Improperly Invoked Religious Themes

¶ 72 Peters next contends that the prosecutor “improperly appealed

to the passions and sympathies of the jury by invoking religious

themes during closing argument.” We disagree that the prosecutor

acted improperly.

a. Additional Facts

¶ 73 During cross-examination of Peters, the prosecutor questioned

Peters about text messages that he had sent to M.P., and the

following exchange occurred:

[Prosecutor:] Sir, I’m going to leave with kind of
one last kind of line of questioning. It goes
back to the text messages. You said in there
numerous times, “I will come as a thief in the
night”?

[Peters:] Yes.

[Prosecutor:] With regards to those statements,
I also noticed in there that talked about
another Bible quote and it was, “I thought you
were a virtuous wife,” quoting Proverbs 31?

[Peters:] Yeah.

[Prosecutor:] And when you made the
comments of a thief in the night, you also
specifically mentioned that, “Like a thief in the
night, the Bible says.”

[Peters:] Okay.

36
[Prosecutor:] What’s that a reference to?

[Peters:] About the time when God’s coming
back, Jesus.

[Prosecutor:] Right. It is a reference to the
second coming of Christ where he will come
when nobody is expecting —

[Peters:] I don’t need a lesson on the Bible from
you.

[Prosecutor:] I’m asking you whether or not
you agree with this.

[Peters:] Excuse me?

[Prosecutor:] I’m asking you what your opinion
is. Isn’t it true that thief in the night refers to
the second coming of Christ; when Christ will
come when nobody is expecting it and pass
judgment upon all of the sinners?

[Peters:] Yeah.

[Defense Counsel:] Objection, Your Honor.
That’s a mischaracterization of the rapture. It
also has no relevance about what the Bible
teaches.

THE COURT: I’m going to permit the question
to be posed to this witness if that’s what he
believes the passage is referencing, given that
this witness has indicated he made reference
to the passage.

[Peters:] I wasn’t giving it all the thought you
just gave it, put it that way.

37
¶ 74 During closing arguments, the prosecutor discussed the “thief

in the night” text message:

And like much of his testimony the other day,
he just thinks this was a little bit of ranting.
Doesn’t know what it means. But when I
asked him specifically, he agreed with me and
said this phrase is about the second coming of
Christ where He shall pass judgment upon all
those, and He shall come in the middle of the
night like a thief in the night.

And we know that he knows his Bible because
he actually said to me, You are going to lecture
me about the Bible? Meaning, he knows about
it. But when he’s asked by me and asked by
you, What did you mean when you said this,
he refused to say. He said, I don’t know.
Folks, that was not the real Mark Peters. This
is the real Mark Peters.

So he came when they didn’t expect it. When
they didn’t know it was coming. Sneaking up
on their home. And instead of coming cloaked
in night in darkness, he came cloaked with a
wig and pamphlets. Very cleverly done. So
that he could turn his head. They wouldn’t
know it was him and just think it was [a]
roofer canvasser, which is interesting because
they all work in the roofing business. He knew
exactly what he was doing. And he passed
judgment fulfilling his own words.

Peters didn’t object to this argument.

38
b. Application

¶ 75 Prosecutors “must avoid arguments that are calculated to

appeal to jurors’ biases and prejudices.” People v. Nardine, 2016

COA 85, ¶ 46. Because religion may appeal to a juror’s biases and

prejudices, it’s improper for the prosecution to appeal to the jurors’

religious beliefs. See id. Further, it is improper for the jury to

consider Bible passages when deliberating on a case. See People v.

Harlan, 109 P.3d 616, 631 (Colo. 2005) (upholding trial court’s

decision to vacate defendant’s death sentence after jurors

considered extraneous Bible passages).

¶ 76 Peters contends that by questioning Peters about this Bible

passage and later referring to the passage in closing argument, the

prosecutor “improperly encouraged the jury to consider religious

themes” and “improperly appealed to the passions and sympathies

of the jury.” But neither the prosecutor’s questioning of Peters nor

his statements during closing argument were designed to appeal to

the religiosity or passions of the jurors. Further, the Bible passage

wasn’t extraneous to the case because the text messages at issue

were admitted into evidence and the message indicates that Peters

was indeed referencing the Bible when he sent M.P. the messages.

39
Thus, the prosecutor’s questioning and discussion of the Bible

reference by Peters in his messages, when viewed in context,

weren’t improper.

7. Whether it was Improper for the Prosecution to Request the
Jury to Hold Peters Accountable

¶ 77 Peters next contends that the prosecutor acted improperly by

asking the jury to hold Peters accountable. Again, we disagree.

a. Additional Facts

¶ 78 During closing statements, the prosecutor argued as follows:

This is not a tragic accident. Please, do not
treat it as such. And hold [Peters] accountable
for the crimes he has committed of murder
with intent and after deliberation, of
kidnapping [R.Y.], of stalking [M.P.], trying to
break into her home.

Hold this man accountable. Don’t let him
minimize this as much as he wants to.
Because you know the real . . . Mark Peters.
You know who he is. Not the mellow guy he
claimed to be.

Peters didn’t object to this comment.

b. Application

¶ 79 During closing argument, a prosecutor is given wide latitude.

People v. Rhea, 2014 COA 60, ¶ 46. But a prosecutor should limit

argument to “evidence and reasonable inferences to be drawn

40
therefrom on the issue of whether the prosecutor has proved guilt

beyond a reasonable doubt.” Nardine, ¶ 35. And “[a] prosecutor

may not use arguments calculated to inflame the passions and

prejudices of the jury, denigrate defense counsel, misstate the

evidence, or assert a personal opinion as to the credibility of

witnesses.” Id.

¶ 80 Because of these limitations, divisions of this court have

deemed arguments asking a jury to “hold a defendant accountable”

when made in a context that could “mislead the jury from its duty

to decide the charges,” Carian, ¶¶ 57, 58, or arguments that

“pressure jurors to ‘do justice’ for a victim,” People v. Buckner, 2022

COA 14, ¶ 42, to be improper. But here the prosecutor made the

argument after going through the elements of the offenses and

arguing how the evidence presented at trial satisfied each element

of each offense. And the prosecutor didn’t argue that the jury

should hold Peters accountable for what he did to a sympathetic

victim, but that it should hold him accountable for the crimes he

committed. Simply put, an accountability argument isn’t improper

when made in the context of arguing that the evidence established

the defendant’s guilt. People v. Tran, 2020 COA 99, ¶ 68. Because

41
that’s the argument the prosecutor made, we conclude that it

wasn’t improper.

D. Cumulative Error

¶ 81 Peters contends that he was deprived of a fair trial because of

cumulative errors. We disagree.

¶ 82 Although errors may be harmless or not affect the defendant’s

substantial rights in isolation, “reversal will nevertheless be

required when ‘the cumulative effect of [multiple] errors and defects

substantially affected the fairness of the trial proceedings and the

integrity of the fact-finding process.’” Howard-Walker v. People,

2019 CO 69, ¶ 24 (quoting People v. Lucero, 615 P.2d 660, 666

(Colo. 1980)). For reversal based on cumulative error, there must

be “cumulative prejudice.” Id. at ¶ 25.

¶ 83 In this case, we discerned error with respect to two instances

of prosecutorial misconduct during voir dire — the generic tailoring

hypothetical and trivializing reasonable doubt — and assessed the

hearsay challenge to Sergeant Smith’s testimony about R.L.’s

statements for harmlessness. But even taking these three

instances of error or assumed error together, we don’t perceive

cumulative prejudice for largely the same reasons we found the

42
alleged errors to be individually harmless. Both of the instances of

prosecutorial misconduct occurred during voir dire, were remedied

by proper instructions from the court, and were never referenced

again during the course of a nine-day trial. And Sergent Smith’s

challenged testimony was cumulative of R.L.’s testimony. Moreover,

the two instances of prosecutorial misconduct and the one assumed

evidentiary error were independent and didn’t compound one

another. Thus, reversal on the basis of cumulative error isn’t

warranted.

E. Constitutionality of Peters’s Sentence

¶ 84 Peters contends that we must vacate his sentence for LWOP

because it’s cruel and unusual under both the United States and

Colorado Constitutions. In advancing this contention, Peters asks

us to conclude that a sentence of LWOP for felony murder is

categorically forbidden under the United States and Colorado

Constitutions. The People dispute whether this issue is preserved

for our review. But even if Peters preserved this argument, we

aren’t persuaded that it merits reversal.

¶ 85 At the time Peters appealed his judgment, our supreme court

had not yet determined whether an LWOP sentence for felony

43
murder is categorically unconstitutional. But recently our supreme

court held that under the Eighth Amendment and article II, section

20 of the Colorado Constitution, “an LWOP sentence for felony

murder for an adult offender is not categorically unconstitutional.”

Sellers v. People, 2024 CO 64, ¶¶ 2, 37. We are bound by this

determination. See People v. Cox, 2021 COA 68, ¶ 8. Thus, we

can’t conclude that the trial court erred by sentencing Peters to

LWOP.

III. Disposition

¶ 86 The judgment and sentence are affirmed.

JUDGE BROWN and JUDGE MOULTRIE concur.

44