Peo v. Matthews

23CA0345 Peo v Matthews 02-05-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0345
Adams County District Court No. 20CR3018
Honorable Rayna Gokli McIntyre, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Christopher John Matthews,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE J. JONES
Grove and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 5, 2026

Philip J. Weiser, Attorney General, Alejandro Sorg Gonzalez, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Chelsea E. Mowrer, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Christopher John Matthews, appeals the district

court’s judgment of conviction entered on a jury’s verdict finding

him guilty of second degree murder. We affirm.

I. Background

¶2 At the time of the shooting giving rise to the charges against

Matthews in this case, Matthews and Tanner Banderet (the victim)

had known each other for several years. Their relationship wasn’t

always friendly. At some point, according to Matthews and a

coworker, Banderet sent messages to Matthews on Snapchat saying

that he was going to go to Matthews’ workplace and “shoot up the

store.”

¶3 Notwithstanding that history, however, late one night

Matthews arranged to buy cocaine from Banderet, which he had

done several times previously. Matthews picked up Banderet in his

car. He later told police, and testified at trial, that he had a loaded

gun on top of the center console. They drove to a gas station, and

Matthews waited while Banderet went inside. Matthews testified

that while he was driving from the gas station, he agreed to give

Banderet about $1,200 in exchange for an ounce of cocaine.

Matthews didn’t want to count his money while driving, so he gave

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Banderet all the cash he had — about $1,400. But Banderet didn’t

give him the drugs or his “change” (about $200). Instead, Matthews

testified, Banderet gave him a “mean, vicious looking look” and

slowly reached for Matthews’ gun. Matthews quickly grabbed his

gun and shot Banderet behind his left ear, killing him.

¶4 After killing Banderet, Matthews drove around for a while and

eventually left Banderet’s body in a cornfield. He thoroughly

cleaned his car and went to his girlfriend’s house, where he told her

both that he had just killed Banderet and that Banderet had killed

himself. He destroyed or disposed of evidence of the killing,

including the clothes he had worn, Banderet’s phone, and

Banderet’s driver’s license. He then left Colorado for a couple of

weeks. Matthews eventually returned to Colorado and turned

himself in to the police.

¶5 By then, the police investigation had zeroed in on Matthews.

They had reviewed Banderet’s cell phone records and learned that

he had been in contact with Matthews shortly before his body was

found, and his cell phone had been turned off. A detective called

Matthews while he was out of the state. Matthews said he had last

talked to Banderet about a month before Banderet was killed and

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that someone else had borrowed his car and phone on the night

Banderet died.

¶6 When the police interviewed Matthews after he returned to

Colorado, he told them a story that, while generally consistent with

self-defense, was also, in some respects, inconsistent with that

defense, with his previous telephone conversation with a police

officer, and with his subsequent testimony at trial.

¶7 The People charged Matthews with first degree murder.

Matthews’ defense at trial was that he had acted in self-defense or

because of a sudden provoking event. The jury found him guilty of

the lesser included offense of second degree murder.

II. Discussion

¶8 Matthews contends that the judgment of conviction must be

reversed because the district court erred by (1) admitting extrinsic

evidence of bad character in violation of CRE 404(b) and

(2) rejecting his attorney’s requested jury instruction on heat of

passion. We disagree with both contentions.

A. Jail Phone Call Evidence

¶9 Matthews contends that the district court erred by admitting a

recording of a jail phone call between him and a friend in violation

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of CRE 404(b) because the court didn’t undertake the analysis

required by People v. Spoto, 795 P.2d 1314 (Colo. 1990). We aren’t

persuaded.

1. Additional Background

¶ 10 When Matthews was being held in pretrial custody, his friend,

Allie,1 called him and they discussed statements his girlfriend had

made to the police, as reported by a news agency. Allie told

Matthews the following:

• Matthews’ girlfriend had told police that she’d seen him

visibly upset on the night of the shooting.

• His girlfriend said Matthews had told her Banderet had

shot himself that night.

• When the police asked her whether she’d seen any blood

that night, she said she had seen blood on Matthews’

shirt and on his car’s seats. But she explained to the

police that Matthews always had blood on his shirt from

1 Allie didn’t testify at Matthews’ trial.
Her name appears in various
forms in the record, including Aly, Ally, Allie, and her surname. We
will refer to her as Allie.

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some source and that she thought the blood on the seat

was barbeque sauce.

• His girlfriend had also contacted a news agency to correct

statements attributed to her in its story about the

shooting because it had “misworded it completely.”

¶ 11 Allie told Matthews that she had already told Matthews’

girlfriend, “[T]hat’s a mess she needs to fix and she needs to fix it

fucking fast because you don’t need any negative publicity.”

Matthews responded, “Make sure she fixes that and let her know

that I am not contacting her until she fixes it.” Allie said she told

Matthews’ girlfriend to “fix it fucking quick before we have

something else to talk about — not in a threatening way just before

I have to let her know I don’t want you contacting him anymore.”

Matthews said, “Sit down and have a nice fucking cup of tea with

her and have a nice conversation.” Allie said, “[A]nd tell her ‘I don’t

want you talking to [Matthews] anymore. You are toxic please just

leave him the fuck alone.’” Matthews replied, “I appreciate the fuck

out of you.”

¶ 12 At trial, the prosecutor said she might seek to introduce a

recording of the jail call “during the defense case.” The next day,

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the prosecutor said the issue of the jail call “would only come up if

Mr. Matthews testifies.” Later that day, when the issue was

discussed again, Matthews’ counsel objected, arguing that the call

was irrelevant and that the quality of the recording was poor. The

prosecutor countered that the recording was relevant because

(1) Matthews’ girlfriend had testified that she was still in a close

relationship with Matthews, and some of her testimony was

inconsistent with her prior statements; therefore, whether Allie told

Matthews’ girlfriend to “fix” her statements “and fix [them] fast” bore

on her credibility as a witness; and (2) Matthews’ own statements

would always be relevant.

¶ 13 The court said that the recording “could potentially be relevant

based on how Mr. Matthews testifies.” The court also noted that

the jury could “decide what context to give that or what meaning to

give that conversation and those statements.”

¶ 14 Matthews testified the following day. On cross-examination,

the prosecutor asked him, “And you were upset with what [your

girlfriend] had said[?]” Matthews replied, “In some way, shape, or

form, I guess so. I believe in the media it was covered, not by what

she said.” The prosecutor then asked him, “Well, you wanted [your

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girlfriend] to change her story[?]” Matthews replied, “Her -- I didn’t

want her to change her story, no. I wanted her to fix something in

the news.”

¶ 15 Following that exchange, the court admitted the recording of

the call.

2. Standard of Review

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

discretion.” Rojas v. People, 2022 CO 8, ¶ 16. A court abuses its

discretion if its ruling is manifestly arbitrary, unreasonable or

unfair or is based on a misunderstanding or misapplication of the

law. People v. Heredia-Cobos, 2017 COA 130, ¶ 6.

3. Applicable Law

¶ 17 “‘Relevant evidence’ means evidence having any tendency to

make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it

would be without the evidence.” People v. Ray, 2025 CO 42M, ¶ 21

(quoting CRE 401). “Generally, all relevant evidence is admissible.”

Id. (citing CRE 402). But “relevant evidence may be excluded if the

risk of unfair prejudice substantially outweighs its probative value.”

Id. (citing CRE 403).

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“[E]vidence of any other crime, wrong, or act is
not admissible to prove a person’s character in
order to show that on a particular occasion the
person acted in conformity with the character”
but may be admissible for purposes such as
“proving motive, opportunity, intent,
preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.”

Rojas, ¶ 26 (quoting CRE 404(b)). In determining whether CRE

404(b) applies, we “must first determine if the evidence is intrinsic

or extrinsic to the charged offense.” Rojas, ¶ 52. If it is intrinsic,

CRE 404(b) doesn’t apply. And even if it is extrinsic, the rule

doesn’t apply unless it suggests a “propensity to commit the

charged offense.” Rojas, ¶ 52.

¶ 18 As also relevant in this case, CRE 608(b) precludes the

admission of specific instances of a witness’s conduct if offered to

attack or support the witness’s character for truthfulness. But that

rule doesn’t prohibit evidence of particular instances of conduct

that specifically contradict a witness’s direct testimony. People v.

Thomas, 2014 COA 64, ¶¶ 42-43. Indeed, such evidence is

admissible even if it would be inadmissible under CRE 404. Id. at

¶ 49.

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4. Analysis

¶ 19 The recording, even if extrinsic to the offense, wasn’t subject to

CRE 404(b) because it didn’t show “a propensity to commit the

charged offense.” Rojas, ¶ 52. The charged offense was murder;

though the recording arguably made it appear that Matthews was

attempting to tamper with a witness (as Matthews concedes), it

didn’t show a propensity to commit murder. Therefore, Matthews’

CRE 404(b) argument necessarily fails: The court couldn’t have

erred by failing to undertake a Spoto analysis if the evidence wasn’t

subject to CRE 404(b) in the first place.

¶ 20 In any event, the evidence was admissible notwithstanding

CRE 404(b) under the specific contradiction rule. The evidence

could reasonably be interpreted to mean that Matthews wanted his

girlfriend to change her story by “fixing” some things she had told

others. Matthews had denied intending to do that when cross-

examined by the prosecutor. Therefore, the evidence was

potentially impeaching.

¶ 21 And the evidence was admissible to show consciousness of

guilt. Evidence showing consciousness of guilt is admissible to

show the defendant’s commission of the offense. And such evidence

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includes evidence of threatening, intimidating, or attempting to

influence a witness. See, e.g., People v. Lowe, 660 P.2d 1261, 1265

(Colo. 1983), abrogated on other grounds by, Callis v. People, 692

P.2d 1045 (Colo. 1984); People v. Valera-Castillo, 2021 COA 91,

¶ 39 n.8; People v. Samuels, 228 P.3d 229, 245 (Colo. App. 2009).

The recording arguably suggests that Matthews was attempting to

tamper with a witness, as Matthews expressly concedes. Therefore,

it was admissible independent of any potential application of CRE

404(b).2

¶ 22 In sum, the court didn’t abuse its discretion by admitting the

recording.

2 Courts from around the country invariably hold that such

evidence is admissible, either for a proper purpose under some
equivalent to CRE 404(b) or apart from such a rule. See, e.g.,
United States v. Jackson, 70 F.4th 1005, 1013-14 (7th Cir. 2023);
United States v. Castleman, 795 F.3d 904, 915 (8th Cir. 2015);
People v. Johnson, 2021 IL App (1st) 190567, ¶¶ 7, 16-19 (involving
a jailhouse call); Burris v. State, 47 A.3d 635, 666-67 (Md. Ct. Spec.
App. 2012) (same), rev’d on other grounds, 78 A.3d 371 (Md. 2013);
State v. Butler, 642 S.W.3d 364, 369-71 (Mo. Ct. App. 2022) (same);
State v. Yough, 31 A.3d 271, 281 n.9 (N.J. 2011); Commonwealth v.
Rega, 933 A.2d 997, 1009 (Pa. 2007); State v. Rodriguez, 259 P.3d
1145, 1151 (Wash. Ct. App. 2011).

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B. Failure to Instruct the Jury on Heat of Passion

¶ 23 Next, Matthews contends that the district court erred by

refusing to give the jury a heat of passion instruction. First, he

argues that the court applied the wrong test in determining whether

he was entitled to such an instruction. Second, he argues that,

under the proper test, he was entitled to such an instruction

because there was some evidence supporting it. We agree with

Matthews that the district court applied the wrong test. But we

disagree with Matthews that there was some evidence supporting all

elements of the heat of passion mitigator. Therefore, the court

didn’t err by refusing to give the instruction.

1. Additional Background

¶ 24 Matthews’ attorney asked the court to instruct the jury on the

heat of passion mitigator. Heat of passion is a mitigator rather than

an affirmative defense because if the jury finds the defendant guilty

of second degree murder but also finds that the prosecution hasn’t

disproved beyond a reasonable doubt that he acted under a sudden

heat of passion, the offense is reduced from a class 2 felony to a

class 3 felony. § 18-3-103(3)(b), C.R.S. 2025; see People v. Ramirez,

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56 P.3d 89, 94-95 (Colo. 2002); People v. Garcia, 28 P.3d 340, 346

(Colo. 2001).

¶ 25 Citing People v. Sepulveda, 65 P.3d 1002 (Colo. 2003), the

prosecutor opposed the instruction for two reasons: Matthews had

testified not to acting under an irresistible passion to kill but rather

to acting in self-defense, and Matthews hadn’t presented evidence of

acts by Banderet sufficient to cause a reasonable person to act

under an irresistible passion to kill. Defense counsel argued that

some evidence supported giving the instruction — specifically,

Matthews’ testimony that Banderet gave Matthews a menacing look,

that Banderet reached for the gun on the console, and that he

didn’t have time to think before he shot Banderet.

¶ 26 The district court denied defense counsel’s request for the

instruction. Apparently relying on Sepulveda, the court reasoned

that the prosecution had proved that Matthews hadn’t acted under

a sudden heat of passion. The court also refused to give the

instruction because heat of passion requires the defendant to have

“felt something” like that “defined in the heat-of-passion

instruction,” and Matthews had testified that he “just acted.”

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2. Incorrect Test

¶ 27 Reviewing this issue de novo, see People v. Vigil, 2021 CO 46,

¶ 17,3 we conclude that the district court didn’t apply the correct

test.

¶ 28 The district court misread, and the People now misread,

Sepulveda. In the passage the district court cited, the supreme

court addressed the prosecution’s evidentiary burden “[i]f the

evidence raises the issue of provocation” — that is, after it is

determined that the defendant is entitled to a heat of passion

instruction. Sepulveda, 65 P.3d at 1007. It explained that when

some evidence supports giving such an instruction, the

prosecution’s evidentiary burden is to disprove one or more of the

mitigator’s elements as set forth in section 18-3-103(3)(b) beyond a

reasonable doubt. Sepulveda, 65 P.3d at 1007.

3 The People argue that we should review the question whether the

district court applied the correct legal standard for an abuse of
discretion. But while we review for an abuse of discretion whether
a court erred by refusing to give a particular instruction, a court
may abuse its discretion in this context if it misapplies the law,
People v. Maloy, 2020 COA 71, ¶ 54, and when, as in this case, the
defendant asserts a misapplication of the law, we review that
embedded question of law de novo, see People v. Dominguez, 2019
COA 78, ¶ 13.

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¶ 29 But the test for determining whether a defendant is entitled to

a provocation instruction is the same as it is for instructing the jury

on an affirmative defense: “A provocation instruction is warranted

whenever a defendant shows some supporting evidence —

regardless of how incredible, unreasonable, improbable, or slight it

may be — to establish each factor described in [section 18-3-

103(3)(b)].” Cassels v. People, 92 P.3d 951, 956 (Colo. 2004); see

also Sepulveda, 65 P.3d at 1006-07 (“[T]he record must reflect some

evidence that would support the instruction.”).

¶ 30 The district court therefore erred by denying defense counsel’s

request for the heat of passion instruction based on its evaluation

of whether the prosecution had disproved the mitigator rather than

whether there was some evidence supporting the mitigator’s

elements.4

¶ 31 But that error matters only if, applying the correct test,

Matthews was entitled to the instruction.

4 We are troubled by the People’s refusal on appeal to acknowledge

that the district court applied the wrong test. The law on the point
is clear.

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3. Entitlement to the Instruction

¶ 32 To support the court’s giving of an instruction on provocation

under section 18-3-103(3)(b), the defendant must show that there is

some evidence supporting each of the following:

(1) the act causing the death was performed
upon a sudden heat of passion; (2) caused by a
serious and highly provoking act of the
intended victim; (3) which was sufficient to
excite an irresistible passion in a reasonable
person; and (4) between the provocation and
the killing, an insufficient interval of time
passed for the voice of reason and humanity to
be heard.

Cassels, 92 P.3d at 956.

¶ 33 Reviewing this issue de novo, Pearson v. People, 2022 CO 4,

¶ 16, and viewing the evidence in the light most favorable to

Matthews, see Cassels, 92 P.3d at 955, we conclude that Matthews

didn’t show that there was some credible evidence supporting at

least two of the above elements — that the preceding act was (2)

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serious and highly provoking and (3) sufficient to excite an

irresistible passion in a reasonable person to kill the victim.5

¶ 34 The serious and highly provoking acts asserted by Matthews

were Banderet’s “mean, vicious looking look” followed by “reaching

kind of slow,” “sly-like” for Matthews’ gun on the console. But there

was no argument leading up to the shooting, Banderet didn’t make

any contemporaneous threats, and Banderet make didn’t physical

contact with Matthews. Nor did Banderet try to grab the gun from

Matthews. These facts contrast unfavorably with those in other

cases deemed to be sufficiently provoking. See, e.g., Cassels, 92

P.3d at 957 (the victim followed, pushed, and insulted the

5 The parties dispute whether the emotion of fear, as opposed to,

say, anger or jealousy, qualifies as “heat of passion.” Colorado law
on that issue isn’t clear, and cases from other jurisdictions are split
on the question. Compare People v. Dominguez, 281 Cal. Rptr. 3d
82, 92-93 (Ct. App. 2021) (“[I]mmediate fear and panic” can
qualify.), and State v. Esdel, 317 A.3d 756, 767 (R.I. 2024) (“[A]
reasonable fear of imminent death or serious bodily injury” can
qualify.), and Leggette v. State, 892 S.E.2d 153, 160 (S.C. Ct. App.
2023) (“[F]ear immediately following an attack or threatening act”
may qualify.), with Beck v. State, 852 S.E.2d 535, 540 (Ga. 2020)
(Fear — even “fear that someone is going to pull a gun” — doesn’t
qualify. (citation omitted)), and Jones v. State, 413 So. 3d 587, 595-
96 (Miss. Ct. App. 2025) (fear for one’s life doesn’t qualify), and
State v. Estelle, 2021-Ohio-2636, ¶ 29 (Ct. App.) (shooting someone
out of fear “rather than rage or passion” doesn’t justify a
provocation instruction). We don’t need to resolve that dispute.

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defendant and threatened to “beat him severely enough to require

hospitalization”); Edwards v. People, 215 P. 855, 856-57, 862 (Colo.

1923) (the defendant saw the victim, who had previously threatened

his family, repeatedly strike his mother with a club); Henwood v.

People, 129 P. 1010, 1011-13 (Colo. 1913) (the victim punched the

defendant, knocking him to the ground, and drew a gun); Crawford

v. People, 20 P. 769, 771 (Colo. 1889) (lengthy physical fight

between the defendant and the victim); People v. Suazo, 867 P.2d

161, 167 (Colo. App. 1993) (the victim physically attacked a close

relative); cf. Sepulveda, 65 P.3d at 1007 (provocation instruction not

warranted when the victim entered a home where a friend was

cohosting a birthday party for the defendant after the victim had

been told he wasn’t welcome at the home, despite the history of

animosity between the defendant and the victim); People v. Moye,

213 P.3d 652, 662-64 (Cal. 2009) (if the only evidence is that the

defendant was attacked and consequently feared for his life, heat of

passion doesn’t apply); People v. Flores, No. B191172, 2007 WL

1599763, at *3 (Cal. Ct. App. June 5, 2007) (unpublished opinion)

(provocation instruction not warranted when, “during the heated

physical and verbal exchange between [the victim’s ex-wife], [the

17
victim], and [the defendant], [the victim] lifted his shirt, causing [the

defendant] to believe he was going to retrieve a weapon”); State v.

Ruffner, 911 A.2d 680, 686-88 (R.I. 2006) (though there was

evidence that the defendant was “very frightened” when he struck

the victim with a table leg, his testimony indicated that “his actions

were not the result of uncontrollable passion, but rather were

motivated by an arguably very reasonable desire to protect himself

from the knife-slashing [victim]”).

¶ 35 The sole possible exception is People v. Tardif, 2017 COA 136,

on which Matthews heavily relies. In that case, the defendant’s

friend — a gang member — went to a park, where he got into an

argument with a rival gang member (the victim) who made threats.

Id. at ¶¶ 2-3. The friend told the defendant, a fellow gang member,

about the argument. Id. The defendant went to the park a few

minutes later with a loaded gun. Id. He saw the victim “standing

with his hands in his pockets, shirtless, and wearing a bandana the

color of [the] rival gang over his face.” Id. at ¶ 24. The defendant

testified that the victim’s “behavior was ‘intimidating’ and that ‘nine

out of ten times when somebody has a bandana on their face . . .

they’re gonna do something that they’re not supposed to be doing

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and try not to get caught for it.’” Id. The division concluded,

without undertaking any analysis, that this evidence was sufficient

to justify giving a provocation instruction. Id. at ¶ 25.

¶ 36 We are, of course, not bound by the division’s decision in

Tardif. See Campbell v. People, 2020 CO 49, ¶ 41; People v.

Thomas, 195 P.3d 1162, 1164 (Colo. App. 2008). But in any event,

in this case, there was none of the gang history or prior argument

deemed relevant in Tardif. Nor were Banderet’s hands anywhere

near where he might have possessed his own weapon.

¶ 37 And there is no evidence, viewed objectively, see People v.

Dooley, 944 P.2d 590, 594 (Colo. App. 1997), that Banderet’s

supposed ambiguous and tentative actions would excite a

reasonable person to act under an irresistible passion to kill

Banderet. As the People point out, once Matthews had the gun,

Banderet wasn’t an immediate threat.

¶ 38 We also observe that Matthews consistently testified that he

acted in self-defense, even when talking about his fear of Banderet.

He said, for example, “It was him or me,” “I shot [Banderet] because

I was afraid he was going to kill me,” and “I intended to save my

own life and protect myself.”

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¶ 39 For these reasons, we conclude that the district court didn’t

err by denying Matthews’ counsel’s requested provocation

instruction.

III. Disposition

¶ 40 The judgment of conviction is affirmed.

JUDGE GROVE and JUDGE SCHUTZ concur.

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