Peo v. Matthews

22CA1209 Peo v Matthews 05-22-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1209
La Plata County District Court No. 21CR1
Honorable Suzanne F. Carlson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Damon Lamont Matthews,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE SULLIVAN
J. Jones and Lipinsky, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 22, 2025

Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Mallika L. Magner, Alternate Defense Counsel, Crested Butte, Colorado, for
Defendant-Appellant
¶1 Defendant, Damon Lamont Matthews, appeals the judgment of

conviction entered on a jury verdict finding him guilty of multiple

offenses, including first degree murder, arising from the shooting of

his spouse (the victim). We affirm the judgment.

I. Background

¶2 Matthews had a history of domestic violence involving the

victim. Shortly after being released from jail for a domestic violence

offense, and despite a protection order that barred contact,

Matthews moved back into his home that he shared with the victim.

He settled into the “back house” — a detached garage converted

into a living area.

¶3 About a month later, while in the back house, Matthews began

arguing with the victim regarding her ex-husband. Their argument

grew into an altercation during which the victim attacked

Matthews, bit and scratched him, and ripped his shirt. Worried

that their altercation might alert the neighbors to his unlawful

presence, Matthews strangled the victim for approximately three

minutes. While the victim lay on the floor gasping, Matthews

entered the main house, picked up the victim’s gun from her

1
upstairs bedroom, returned to the back house, and shot the victim

once in the head, killing her.

¶4 After shooting the victim, Matthews returned the gun to the

victim’s bedroom and drove away in her car. Law enforcement

eventually arrested Matthews and interviewed him regarding the

victim’s death. During the interview, Matthews confessed to

shooting the victim.

¶5 Before trial, the prosecution gave notice under CRE 404(b)(3)

that it intended to introduce certain other acts evidence, including a

letter Matthews wrote while in jail in which he threatened another

inmate for cooperating with the prosecution. The district court

ruled that the letter was admissible to show Matthews’ state of

mind, among other reasons, and said that it would provide a

contemporaneous limiting instruction at trial.

¶6 During jury selection, the prosecution exercised a peremptory

challenge to excuse a prospective juror who self-identified as Native

American and Hispanic. Defense counsel objected under Batson v.

Kentucky, 476 U.S. 79 (1986). After a bench conference, the court

overruled the defense’s Batson challenge and excused the

prospective juror.

2
¶7 The jury found Matthews guilty of first degree murder, first

degree assault, violation of bail bond conditions, and two counts of

violating a protection order. But it acquitted him of aggravated

intimidation of a witness or victim and retaliation against a witness

or victim.

¶8 Matthews appeals. He contends that the district court erred

by (1) denying his Batson challenge; (2) admitting the letter he wrote

while in jail; and (3) failing to correct prosecutorial misconduct

during closing argument. We address each contention in turn.

II. Batson Challenge

¶9 Turning first to Matthews’ Batson challenge, he asserts that

(1) the prosecution failed to provide a race-neutral reason under

Batson’s second step when it exercised a peremptory challenge to

excuse Prospective Juror J; and (2) even if the prosecution’s stated

reason satisfied the second step, he nonetheless proved purposeful

discrimination under Batson’s third step. We disagree with both

contentions.

A. Applicable Law and Standard of Review

¶ 10 The Equal Protection Clause of the Fourteenth Amendment

prohibits a party from using a peremptory challenge to strike a

3
prospective juror based on race. Batson, 476 U.S. at 86-87; see

also Colo. Const. art. II, § 25; People v. Johnson, 2024 CO 35, ¶ 14

(peremptory challenges often “cloak purposeful discrimination”).

We follow the Supreme Court’s three-step Batson framework when

evaluating whether a party improperly struck a prospective juror

based on race.1 Johnson, ¶ 17.

¶ 11 Under Batson’s first step, the objecting party must make a

prima facie showing that the striking party exercised a peremptory

challenge based on race. People v. Austin, 2024 CO 36, ¶ 8. If the

objecting party meets this burden, the burden shifts to the striking

party at Batson’s second step to provide a race-neutral reason for

the strike. People v. Romero, 2024 CO 62, ¶ 34.

¶ 12 If the striking party proffers a race-neutral reason, the trial

court moves to Batson’s third step. Id. at ¶ 36. At this final step,

1 Batson isn’t limited to racial discrimination or criminal cases.

See, e.g., J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 128-29
(1994). We nonetheless focus our analysis on that context because
this is a criminal case and Matthews limits his challenge to
discrimination based on race and ethnicity. Consistent with United
States Supreme Court and Colorado Supreme Court precedent, we
use the term “race” broadly throughout this opinion to refer to
biases based on both race and ethnicity. See People v. Ojeda, 2022
CO 7, ¶ 1 n.1 (citing Peña-Rodriguez v. Colorado, 580 U.S. 206, 214-
15 (2017)).

4
the objecting party may present evidence or argument to rebut the

striking party’s stated reason for the strike. Id. The court then

weighs all the relevant circumstances bearing on the issue of

purposeful discrimination. Id. at ¶ 37. These may include, but

aren’t limited to, the striking party’s demeanor, the reasonableness

and plausibility of the proffered race-neutral explanations, and

whether the rationales given are rooted in accepted trial strategy.

Id. The court must decide whether the objecting party has

established purposeful racial discrimination by determining

whether the striking party’s peremptory challenge was motivated in

substantial part by discriminatory intent. People v. Madrid, 2023

CO 12, ¶ 35. The “best approach” is for the court to make explicit

demeanor and credibility findings. Romero, ¶ 72. The burden of

persuasion regarding discriminatory motivation rests with, and

never shifts from, the objecting party. People v. Beauvais, 2017 CO

34, ¶ 24.

¶ 13 We review de novo whether the striking party has articulated a

race-neutral reason at Batson’s second step. Johnson, ¶ 21. But

we review for clear error the trial court’s ultimate step-three

conclusion regarding purposeful discrimination. Romero, ¶¶ 45-47.

5
B. Additional Background

¶ 14 Prospective Juror J indicated on her questionnaire that her

decision-making was “biased because of minority and gender bias.”

In chambers, the district court asked Prospective Juror J to

elaborate on her questionnaire:

PROSPECTIVE JUROR [J]: I just think my own
background, and I have taken some criminal
justice classes as well as of course law. My
mom, she’s not in practice, she was an
attorney, so I kind of got to see a little bit of
this type of cases and hear about them from
her, like what she’s been through, like other
news and all that. And I think that might
impart — kind of decide how I impart, I guess
judge things, like, I guess is the way I could
explain. I’m more lenient to minority and
gender based, like especially female. Like, for
myself it would be more like Native American
because I’m native as well as like Hispanic just
because of like — I don’t know how to explain
it.

....

THE COURT: Do you feel like you come in here
sort of biased in favor of the defendant in this
case?

PROSPECTIVE JUROR [J]: It’s like giving the
defendant doubt sort of, but yeah.

¶ 15 The court then turned to the prosecution’s burden of proof by

asking whether Prospective Juror J would be willing to convict

6
Matthews if the prosecution proved the offense elements beyond a

reasonable doubt. Prospective Juror J responded, “I would if there

was solid evidence that can’t be refuted.” When the court asked

whether that meant that she would require “more evidence than

beyond a reasonable doubt,” Prospective Juror J explained that she

would likely need physical evidence, and not just witness

statements, to vote to convict:

PROSPECTIVE JUROR [J]: . . . I don’t know a
lot — I don’t know anything about this case
but I would — if there were any evidence and
they would show it and completely like explain
it and I would understand it, then I would be
like all right.

But if there is no evidence then and there’s
just statements, but nothing to really, like,
connect, like, I guess you could say like
physical evidence or like DNA or anything like
that, then I don’t know if I could like
confidently participate as a juror if there’s not
something like a solid decision based on
evidence.

¶ 16 Upon further questioning, Prospective Juror J appeared to

vacillate on whether she could convict if the prosecution proved its

case beyond a reasonable doubt and whether race would factor into

her decision:

7
[PROSECUTION]: . . . Should we be worried
that you might say “Well, the prosecution
proved the case beyond a reasonable doubt,
but I still think, you know, based on
speculation or some vague concept that I want
to vote not guilty”? Is that a concern that we
should have about you?

PROSPECTIVE JUROR [J]: I don’t think so. I
consider myself very logical and rational,
almost like if there is an explanation and it’s
rational, then I can judge on that.

[PROSECUTION]: Okay. And then the second
question I guess is if we do prove the case
beyond a reasonable doubt, you should vote
guilty. Do you have some hesitation that you
might not do that based on the race or
ethnicity of the defendant?

PROSPECTIVE JUROR [J]: I would have some
hesitation, but if there’s evidence that will
show otherwise, then I won’t.

....

[DEFENSE]: What it would come down to is if
the evidence convinces you beyond a
reasonable doubt that Mr. Matthews is guilty,
you’d have to vote guilty if that’s where you
find yourself. Are you comfortable doing that?

PROSPECTIVE JUROR [J]: Uh-huh.

[DEFENSE]: You wouldn’t find him not guilty
just because he was black I guess?

PROSPECTIVE JUROR [J]: No.

8
¶ 17 Later, defense counsel asked the prospective jurors if they

believed that the cards were “stacked against Mr. Matthews” based

on the “initial outline” of the case as read by the court. Prospective

Juror J responded, in part, that she “kind of lean[ed] towards my

bias, which is race and gender,” and that “my perspective is that a

lot of time with law in cases like these, minorities get the short end

of the stick.” She also explained that her “two bias backgrounds”

would render her “a little bit more, like, not rooting for but kind of

like ‘I wish that it wasn’t true.’” Prospective Juror J later clarified,

however, that she “d[id]n’t think [it] w[ould] be an issue” for her to

follow the court’s protocols.

¶ 18 At the end of jury selection, the prosecutor exercised a

peremptory challenge to excuse Prospective Juror J. Defense

counsel objected under Batson, arguing that the prosecutor had

unlawfully discriminated against Prospective Juror J based on her

race. The prosecutor disagreed, explaining that he exercised a

peremptory challenge on Prospective Juror J because she (1)

“makes decisions based on minority and gender bias”; (2) “will bring

. . . racial discrimination” into the case; and (3) would “resolve

doubt in favor of [Matthews] because of his race.”

9
¶ 19 Without making explicit step-three findings on demeanor or

credibility, the court agreed with the prosecution. It ruled that

Prospective Juror J “said she would make decisions based upon

racial bias, which is exactly what we can’t have, is people making

decisions based upon racial bias.” The court therefore denied

Matthews’ Batson challenge.

¶ 20 On appeal, we initially issued an order of limited remand for

additional factual findings under Batson’s third step. See Austin,

¶ 24 (remanding for further findings because the record contained

“only very minimal findings” under Batson’s second and third

steps). After entering additional detailed factual findings, the

district court reconfirmed that Matthews hadn’t shown purposeful

discrimination under Batson.

C. Analysis

¶ 21 The parties agree that whether Matthews established a prima

facie case at step one is moot because the district court heard the

prosecutor’s race-neutral explanation and ruled on the ultimate

question of purposeful discrimination. See People v. Wilson, 2015

CO 54M, ¶ 12. So we proceed directly to step two before turning to

Batson’s final step.

10
1. Step Two

¶ 22 Matthews contends that the prosecutor’s step-two explanation

for striking Prospective Juror J was race-based because the juror

“voiced her personal experiences” as a Native American and

Hispanic woman and was “herself racially discriminatory.”

¶ 23 Our supreme court, however, recently rejected the reasoning

underlying Matthews’ argument. See Johnson, ¶¶ 42-44. In

Johnson, announced after Matthews filed his opening brief in this

appeal, the supreme court cautioned that courts “must resist the

urge to shift the focus of the step-two inquiry away from the

striking party’s stated reasons for the strike and onto the source of

the juror’s potential bias.” Id. at ¶ 42. The court explained that,

although a prospective juror’s biases “may be closely linked to (or

because of)” her race, that doesn’t convert the striking party’s

reason for excusing her into a race-based reason. Id.; accord

Austin, ¶¶ 18-19.

¶ 24 In this case, the prosecutor didn’t strike Prospective Juror J

“based on an assumption that, as a person of color,” she “would

inherently be biased against law enforcement.” Austin, ¶ 19.

Instead, the prosecutor’s stated reasons were based on Prospective

11
Juror J’s description of her personal experiences and how they

might affect her “willingness to receive evidence impartially.”

Johnson, ¶ 44. Prospective Juror J explained that her personal

experiences, and the sources of her bias, included her classes in

criminal justice and observing “this type” of case through her

mother’s law practice. And while Prospective Juror J suggested

that some of her experiences and biases may be “linked to (or

because of)” her race, those statements didn’t transform the

prosecutor’s proffered reasons into race-based reasons that Batson

forbids. Id. at ¶ 42.

¶ 25 Accordingly, the prosecutor satisfied Batson’s “low” step-two

burden by providing a race-neutral reason for striking Prospective

Juror J. Id. at ¶ 46.

2. Step Three

¶ 26 In response to our limited remand order, the district court

made detailed findings regarding the plausibility of the prosecutor’s

nondiscriminatory reasons for striking Prospective Juror J. They

included findings on the prosecutor’s demeanor, Prospective Juror

J’s demeanor, the reasonableness of the prosecutor’s proffered race-

neutral explanation, and whether the prosecutor’s rationale was

12
rooted in accepted trial strategy. See Johnson, ¶¶ 20, 47; Austin,

¶ 24.

¶ 27 Specifically, the court made the following findings regarding

demeanor:

• The prosecutor responded “immediately and strongly” to

Matthews’ Batson challenge by reciting Prospective Juror

J’s statements showing that she would apply race-based

bias; the prosecutor didn’t “need any time to explain his

thinking.”

• Prospective Juror J’s body language and statements were

initially confident, but she became “unsure” and hesitant

when pressed whether she could convict Matthews if the

prosecution proved the offense elements beyond a

reasonable doubt; she didn’t want to commit to following

the applicable burden of proof.

• When asked whether she could be fair and impartial,

most of Prospective Juror J’s responses were ambiguous,

required qualification, and “came across as partial

agreement.”

13
• Prospective Juror J was firm that she would make

decisions based on racial bias and exhibited “general

ambivalence” when agreeing to follow the law.

¶ 28 Regarding the reasonableness of the prosecutor’s race-neutral

explanations and whether the prosecutor’s rationale was rooted in

accepted trial strategy, the court found the following:

• The prosecutor didn’t strike Prospective Juror J based on

race, but rather because she said she would make

decisions based on racial and gender bias.

• The prosecutor’s explanation was credible and

reasonable given Prospective Juror J’s responses to

questions, including that she would hesitate to convict

even if the prosecution had proved the offense elements

beyond a reasonable doubt.

• Using a peremptory challenge to strike a prospective

juror who will make decisions in a defendant’s favor

based on racial or gender bias is an acceptable trial

strategy.

¶ 29 Based on these findings, the court found that Matthews hadn’t

carried his burden of establishing purposeful racial discrimination.

14
The court’s thorough findings show that it considered all the

relevant circumstances and the persuasiveness of the prosecutor’s

race-neutral reasons for striking Prospective Juror J. See Romero,

¶ 71; see also id. at ¶ 44 (appellate courts afford the trial court’s

demeanor and credibility findings “great deference” because the

trial court can “best discern ‘the presence or absence of

discriminatory intent’ at step three”) (citation omitted). Because the

court’s findings enjoy record support, we conclude that the court

didn’t clearly err by denying Matthews’ Batson challenge at the final

step. See id. at ¶ 71.

¶ 30 Accordingly, Matthews didn’t meet his burden of proving

purposeful racial discrimination under Batson.

III. CRE 404(b)

¶ 31 Matthews next contends that the district court abused its

discretion under CRE 404(b) by admitting a letter that he wrote to

another inmate while in jail. We perceive no abuse of discretion.

A. Additional Background

¶ 32 While in jail and awaiting trial, Matthews penned a letter to a

fellow inmate (nicknamed Ruthless) regarding a third inmate

(Patrick) who Matthews believed was working with the prosecution

15
against him. Matthews had allegedly told Patrick earlier that he

would kill the victim after she served him with divorce papers.

Matthews’ letter to Ruthless stated in part as follows:

Ruthless,
That fool [Patrick] is in my discovery. He went
out of his way to write the D.A. a letter
pertaining to the murder of my wife. He don’t
get the penalty of the error of his ways. . . .
Patrick is a Rat . . . [a] cheese eater. I’m trying
my hardest to get back over there. Another life
means nothing to me.

¶ 33 The prosecution filed a notice of intent to introduce the letter

under CRE 404(b)(3). Over the defense’s objection, the court

entered a written order allowing the prosecution to introduce the

letter. The court reasoned that the letter was relevant to whether

Matthews murdered the victim; probative of Matthews’ motive,

intent, deliberation, and consciousness of guilt; and logically

relevant independent of any intermediate inference that Matthews

acted in conformity with his bad character. The court also found

that the letter’s probative value was “very high” and not outweighed

by the danger of unfair prejudice.

¶ 34 At trial, defense counsel renewed his objection by asking the

court to “reconsider the 404(b) [issue] and exclude testimony about

16
this letter.” Defense counsel argued that the letter’s probative value

was now “diminished” because the prosecution had decided not to

call Patrick to testify. The court adhered to its prior ruling and

found the letter admissible. However, the court instructed the jury

that it could consider the letter only for the limited purposes of

deciding whether Matthews (1) acted after deliberation; (2) acted

with intent or knowledge; and (3) exhibited consciousness of guilt.

B. Standard of Review and Applicable Law

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

discretion. People v. Vanderpauye, 2023 CO 42, ¶ 23. A court

abuses its discretion when it misapplies the law or when its ruling

is manifestly arbitrary, unreasonable, or unfair. Id.

¶ 36 Because Matthews preserved this argument, any error in

admitting the letter is subject to nonconstitutional harmless error

review. Pernell v. People, 2018 CO 13, ¶ 22. Under this standard,

we will reverse only if the erroneous evidentiary ruling affected the

defendant’s substantial rights. Id.

¶ 37 CRE 404(b) governs the admissibility of other acts evidence.

The rule prohibits the use of “[e]vidence of any other crime, wrong,

or act . . . to prove a person’s character in order to show that on a

17
particular occasion the person acted in conformity with the

character.” CRE 404(b)(1). But such evidence “may be admissible

for another purpose, such as proving motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or lack

of accident.” CRE 404(b)(2). And as with all evidence, other acts

evidence is admissible only if it’s relevant and its probative value

isn’t substantially outweighed by the danger of unfair prejudice.

CRE 401-403.

¶ 38 Our supreme court’s four-part Spoto framework implements

these rules: evidence of extrinsic acts that are suggestive of bad

character is admissible only if the evidence (1) is logically relevant

(2) to a material fact (3) independent of the prohibited inference that

the defendant has bad character, and (4) has probative value that

isn’t substantially outweighed by the danger of unfair prejudice.

Rojas v. People, 2022 CO 8, ¶ 27 (citing People v. Spoto, 795 P.2d

1314, 1318-19 (Colo. 1990)).

C. Analysis

¶ 39 We discern no abuse of discretion in the district court’s

decision admitting the letter under CRE 404(b).

18
¶ 40 As to Spoto’s first and second factors, the court could

reasonably find that the letter was logically relevant to a material

fact — whether Matthews murdered the victim after deliberation

and with the intent to cause her death. See § 18-3-102(1)(a), C.R.S.

2024. Matthews’ theory of the case was that he impulsively and

hastily killed the victim, rendering him guilty of only second degree

murder, not first. As a result, Matthews’ state of mind was highly

relevant. The letter was logically relevant to this issue because a

juror could reasonably infer from Matthews’ statement, “Another life

means nothing to me,” that he harbored malice toward the victim

and therefore acted after deliberation and with the intent to kill her.

¶ 41 In addition, the letter was logically relevant to show Matthews’

consciousness of guilt because it established that he wanted to

eliminate Patrick as a prosecution witness. See People v. Medina,

51 P.3d 1006, 1013 (Colo. App. 2001) (evidence was admissible

under CRE 404(b) to establish consciousness of guilt because it

showed the defendant’s “attempt to conceal his role in the victim’s

death”), aff’d sub nom. Mata-Medina v. People, 71 P.3d 973 (Colo.

2003).

19
¶ 42 Turning to Spoto’s third factor, the letter possessed relevance

independent of the impermissible inference that Matthews acted in

conformity with his bad character. In the letter, Matthews drew a

direct line between his intended harm to Patrick and his murder of

an unidentified victim. The jury could reasonably infer that the

unidentified victim was his spouse; indeed, Matthews confessed to

killing his spouse and the letter mentioned the “murder of my wife.”

And regardless of whether the jury believed that Matthews

possessed bad character based on his stated desire to harm Patrick,

the jury could reasonably infer that Matthews’ direct comparison

between Patrick and the victim showed that he killed her after

deliberation and with intent. It could similarly conclude from the

letter that Matthews’ desire to eliminate Patrick as a witness

exhibited consciousness of guilt, regardless of his bad character or

propensity for harming others. See Medina, 51 P.3d at 1013.

¶ 43 While the letter undoubtedly injected some bad character

evidence into the trial, Spoto’s third step doesn’t demand the

complete absence of a bad character inference; it merely requires

that the proffered evidence be logically relevant independent of that

inference. People v. Lancaster, 2022 COA 82, ¶ 47.

20
¶ 44 Finally, the letter’s probative value wasn’t substantially

outweighed by the danger of unfair prejudice. The court ruled

pretrial that the letter’s probative value to show Matthews’ state of

mind was “very high.” Although the court later said that the letter’s

probative value was “reduced” because Patrick was no longer going

to testify, it nonetheless found that the danger of unfair prejudice

didn’t outweigh the letter’s probative value. Affording the letter its

maximum probative value attributable by a reasonable fact finder

and the minimum unfair prejudice to be reasonably expected,

Bondsteel v. People, 2019 CO 26, ¶ 50, we perceive no abuse of

discretion in the court’s ruling.

¶ 45 Moreover, the court mitigated any danger of unfair prejudice

by giving a limiting instruction informing the jury that it couldn’t

consider the letter as “evidence of Mr. Ma[t]thews’ character,

whether he is a ‘violent person,’ a ‘bad person,’ or whether he is ‘the

type of person’ who commits the crimes alleged in this case.”

Absent evidence to the contrary, we presume that the jury heeded

the court’s limiting instruction. People v. Rowe, 2012 COA 90,

¶ 46.

21
¶ 46 Accordingly, we conclude that the district court didn’t abuse

its discretion by admitting the letter under CRE 404(b).

IV. Prosecutorial Misconduct

¶ 47 Matthews next contends that the prosecutor committed

reversible misconduct during closing argument. We disagree.

A. Standard of Review and Applicable Law

¶ 48 Whether a prosecutor’s statement constitutes misconduct is

left to the trial court’s discretion. Domingo-Gomez v. People, 125

P.3d 1043, 1049 (Colo. 2005). We won’t disturb the court’s rulings

regarding such statements absent a showing of an abuse of that

discretion. People v. Strock, 252 P.3d 1148, 1152 (Colo. App. 2010).

¶ 49 With one exception noted below, Matthews preserved his

prosecutorial misconduct arguments by lodging contemporaneous

objections during closing argument. We review these preserved

contentions for nonconstitutional harmless error. People v. Ortega,

2015 COA 38, ¶ 51. But we review Matthews’ unpreserved

contention for plain error. Hagos v. People, 2012 CO 63, ¶ 14.

Reversal under this standard requires that the prosecutorial

misconduct be obvious and so undermine the fundamental fairness

22
of the trial as to cast serious doubt on the reliability of the

judgment of conviction. People v. Walker, 2022 COA 15, ¶ 28.

¶ 50 We conduct a two-step analysis when reviewing a claim of

prosecutorial misconduct. Wend v. People, 235 P.3d 1089, 1096

(Colo. 2010). First, we determine whether the prosecutor’s

challenged conduct was improper under the totality of the

circumstances. Id. Second, if the prosecutor’s remarks were

improper, we evaluate whether they warrant reversal according to

the proper standard of reversal. See id.

¶ 51 We evaluate claims of improper argument in the context of the

argument as a whole and in light of the evidence before the

jury. Strock, 252 P.3d at 1153. A prosecutor enjoys “wide latitude

in the language and presentation style used to obtain justice.”

Domingo-Gomez, 125 P.3d at 1048. Because closing arguments

delivered in the heat of trial aren’t always perfectly scripted, we

accord prosecutors the benefit of the doubt when their remarks are

ambiguous or simply inartful. People v. Samson, 2012 COA 167,

¶ 30. Even so, prosecutors must exercise caution during closing

argument not to misstate the evidence or insert claims calculated to

inflame the passions and prejudices of the jury. People v. Allgier,

23
2018 COA 122, ¶ 53. Nor may counsel misstate or misinterpret the

law in closing argument. People v. Weinreich, 98 P.3d 920, 924

(Colo. App. 2004), aff’d, 119 P.3d 1073 (Colo. 2005).

B. Preserved Contentions

¶ 52 Matthews contends that the prosecutor’s repeated use of the

words “execute,” “execution,” and similar permutations of “execute”

improperly inflamed the passions of the jurors. But counsel may

comment on the evidence admitted at trial and urge the jury to

draw reasonable inferences from that evidence. People v. Shepherd,

43 P.3d 693, 697 (Colo. App. 2001). Matthews confessed to

shooting the victim in the head while she lay on the floor after he

strangled her for three minutes. Such a close-range shooting in the

head can fairly be described as an “execution style” murder. See,

e.g., Evans v. State, 995 So. 2d 933, 947 (Fla. 2008); see also People

v. Walters, 148 P.3d 331, 337 (Colo. App. 2006) (rejecting

prosecutorial misconduct argument because counsel’s remarks

were a “fair comment on the evidence and not improper”). Thus,

while the prosecutor’s remarks may have been “hard blows,” we

can’t say on this record that they were foul ones. Allgier, ¶ 53

(citation omitted).

24
¶ 53 Matthews also contends that the prosecutor misstated the law

regarding his heat of passion defense. See § 18-3-103(3)(b), C.R.S.

2024. The prosecutor argued that heat of passion didn’t apply to

Matthews’ conduct because the defense applies only if the act

causing the death was performed upon a sudden heat of passion

caused by a serious and highly provoking act of the intended victim.

The prosecutor continued,

How about biting him on the hand while he
tries to muzzle her? Is that a serious and
highly provoking act? He admitted in his
interview she can’t hurt him. It was his
feelings that were hurt. . . . Affecting the
defendant sufficiently to excite an irresistible
passion in a reasonable person. The
reasonable person, maybe after strangling her
for three minutes, calls 911, renders her aid.
The reasonable person doesn’t go
upstairs . . . .

¶ 54 According to Matthews, the prosecutor misstated the law by

focusing on what a reasonable person would do after the victim

provoked the attack. The correct inquiry, Matthews says, is

whether the victim’s provoking act would excite an irresistible

passion in a reasonable person.

¶ 55 But a defendant’s irresistible passion necessarily arises after

the intended victim’s provoking act; indeed, the latter must cause

25
the former. See § 18-3-103(3)(b) (stating the victim’s provoking act

must “affect[] the defendant sufficiently to excite an irresistible

passion”). While the interval is of course short, see id., we see

nothing improper in the prosecutor’s comment juxtaposing a

reasonable person’s responsive actions against those by Matthews.

¶ 56 Moreover, even if the prosecutor’s comment might have caused

some juror confusion, the court correctly instructed the jury

regarding (1) the heat of passion defense; and (2) its obligation to

follow the rules of law provided by the court, even if an attorney

comments on the rules. See People v. Hogan, 114 P.3d 42, 56

(Colo. App. 2004). Absent evidence to the contrary, we presume

that the jury followed the court’s instruction. People v. Garcia,

2012 COA 79, ¶ 20.

¶ 57 Matthews also takes issue with the prosecutor’s statement

that he tried to “muzzle” the victim. But the court sustained

defense counsel’s objection, the prosecutor refrained from reusing

the word, and defense counsel didn’t request further relief. Under

these circumstances, we decline to review whether the prosecutor’s

comment constituted misconduct. See People v. Douglas, 2012

COA 57, ¶ 65.

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C. Unpreserved Contention

¶ 58 Turning to Matthews’ unpreserved contention, he argues that

the prosecutor’s use of “volitional departure” when arguing against

Matthews’ heat of passion defense constituted a misstatement of

the law.

¶ 59 During closing argument, the prosecutor attempted to draw an

analogy between the concept of volitional departure and the interval

between Matthews’ initial act of strangling the victim and his later

act of shooting her. The prosecutor explained that a “volitional

departure” occurs “where there was an initial plan and then a

change of circumstances resulting in a different plan.”

¶ 60 We discern no error, plain or otherwise. The prosecutor didn’t

characterize “volitional departure” as a law that the jury must

follow. To the contrary, the prosecutor separately (and accurately)

quoted the relevant portions of the heat of passion statute, section

18-3-103(3)(b). The prosecutor instead used “volitional departure”

as a metaphor to help explain the facts; specifically, the temporal

gap between Matthews’ initial strangling of the victim for three

minutes and his subsequent trip into the house to procure her gun

and shoot her. This use of a metaphor wasn’t improper. See People

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v. Allee, 77 P.3d 831, 837 (Colo. App. 2003) (counsel may employ

“metaphorical nuance” in closing argument).

¶ 61 Even if the prosecutor’s remarks might have veered into

erroneous territory, we can’t say that the court’s failure to intervene

on its own accord rose to plain error. The prosecutor used the

“volitional departure” phrase only twice in a closing argument that

spanned nearly thirty pages of transcript, the court correctly

instructed the jury on Matthews’ heat of passion defense, and the

evidence was overwhelming that Matthews had a sufficient interval

after the victim’s alleged provocation to hear the voice of reason and

humanity. See § 18-3-103(3)(b); People v. Van Meter, 2018 COA 13,

¶¶ 32-34. As a result, the “drastic remedy” of reversal under the

plain error standard isn’t warranted. Domingo-Gomez, 125 P.3d at

1055.

D. Cumulative Error Based on Prosecutorial Misconduct

¶ 62 Because we have determined that the prosecutor didn’t

commit misconduct in closing argument, we reject Matthews’

contention that the cumulative impact of the prosecutor’s

misconduct requires reversal. See Howard-Walker v. People, 2019

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CO 69, ¶ 25 (cumulative error doctrine requires that the reviewing

court identify “multiple errors”).

V. Disposition

¶ 63 We affirm the judgment.

JUDGE J. JONES and JUDGE LIPINSKY concur.

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