21CA1541 Peo v Ewing 04-10-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 21CA1541 Arapahoe County District Court No. 02CR1623 Honorable Darren L. Vahle, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Alex Christopher Ewing,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division IV Opinion by JUDGE HARRIS Grove and Pawar, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 10, 2025
Philip J. Weiser, Attorney General, Paul Koehler, Senior Counsel, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jason C. Middleton, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Alex Christopher Ewing, appeals the judgment of
conviction entered after a jury found him guilty of murdering three
members of a family in 1984. He contends that the trial court
committed various errors — allowing prosecutorial misconduct in
closing argument, giving the jury a coercive instruction during
deliberations, and failing to dismiss charges barred by the statute of
limitations — and exhibited actual bias against him at sentencing.
We discern no error and therefore affirm.
I. Background
¶2 On January 16, 1984, police responded to the family’s home
in Aurora after receiving a 911 call from a relative. Inside the
home, police discovered the bodies of two adults and their
seven-year-old daughter, all bludgeoned to death with a claw
hammer. A three-year-old child was found in bed, alive but severely
injured.
¶3 The police determined that the assailant had entered through
an open garage door and attacked the family as they slept. The
parents were killed first, and then the assailant went into the
children’s room. The seven-year-old was found on the bedroom
floor with a blanket over her face, the bottom of her pajamas cut off
1 and her legs spread open. She had been raped before being beaten
to death.
¶4 The police collected the blanket and a piece of the carpet from
underneath her body. They suspected that the assailant’s semen
was on those items, but DNA profiling technology was not available
at the time. The investigation eventually went cold.
¶5 By the early 2000s, though, DNA science had evolved
sufficiently to allow analysts at the Colorado Bureau of
Investigation to develop a DNA profile from the biological material
recovered from the blanket and the carpet piece. Police entered the
profile into the national DNA database.
¶6 About ten years later, investigators learned that the DNA from
the Aurora murder scene matched DNA recovered from another
crime scene in Colorado.
¶7 Six days before the Aurora murders, an assailant entered a
home in Lakewood through an open garage. He raped the female
occupant then bludgeoned her to death with a hammer. When
police found the woman, she was on the floor with a blanket
covering her face and her legs spread open. Analysts developed a
DNA profile from semen found on the Lakewood victim’s carpet.
2 That profile was also entered into the national database, which
yielded a “hit” to the DNA profile connected to the Aurora murders.
The identity of the assailant, however, was still unknown.
¶8 In 2018, investigators discovered that the DNA samples in the
database matched a sample taken from Ewing, who was then
serving a sentence in Nevada. Prosecutors in the Aurora case
charged Ewing with three counts of first degree murder (after
deliberation), three counts of first degree felony murder, and
multiple other felonies including burglary and sexual assault.1 All
charges except the six murder counts were later dismissed as
barred by the statute of limitations.
¶9 At trial, the contested issue was identity. The prosecution
relied almost exclusively on the DNA evidence and the similarities
between the Aurora and Lakewood murders to prove that Ewing
committed the charged crimes. Ewing countered that investigators
and analysts contaminated evidence, failed to test other evidence,
and refused to consider alternative theories.
1 Prosecutors separately charged Ewing with murder in the
Lakewood case. Evidence of the Lakewood murder was admitted at trial under CRE 404(b) to prove identity and modus operandi.
3 ¶ 10 The jury returned guilty verdicts on all the murder counts. At
sentencing, the court vacated the three multiplicitous felony murder
convictions and imposed consecutive sentences of life in prison on
the three first degree murder (after deliberation) convictions.
II. Prosecutorial Misconduct
¶ 11 Ewing contends that the prosecutor committed misconduct
during closing argument by shifting the burden of proof,
commenting on his right to remain silent, and misstating the law.
A. The Closing Arguments
¶ 12 During his closing argument, defense counsel told the jury
that he was “worried that you all might be back there thinking,
‘Well, they never gave us an innocent explanation for the semen [on
the blanket or carpet piece]; they never explained that to us.’”
Counsel reminded the jury that because it was the prosecution’s
burden to prove Ewing’s guilt beyond a reasonable doubt, the
defense “do[es] not, ever, have to do that” — by which he meant,
presumably, that Ewing did not have to offer any explanation as to
why his semen was present on the blanket and carpet piece found
on or near the seven-year-old victim.
4 ¶ 13 In response, the prosecutor opened his rebuttal closing
argument by asserting that “[t]here is no innocent explanation.
There is absolutely no innocent explanation about how that man’s
sperm got underneath [the child’s] raped body” or on the blanket.
He insisted that there was also “no innocent explanation about how
[Ewing’s] sperm got inside [the Lakewood victim], underneath her,
or on the blanket that covered her.” He told the jury, “You have
heard no innocent explanation because one does not exist.” At the
end of his argument, he returned to that theme: “At the end of the
day, the defense needs you to believe that there is some innocent
explanation for how that man’s sperm got on all of this evidence,
and the fact of the matter is there isn’t [one].”
B. Discussion
¶ 14 Ewing says that the prosecutor’s comments shifted the burden
of proof and improperly highlighted his decision not to testify by
suggesting that he “was guilty because he and his defense attorneys
never provided the jury with an innocent explanation.” And he
contends that the prosecutor misstated the law because the jury
did not “need to believe” there was an innocent explanation for the
presence of his DNA in order to find him not guilty.
5 ¶ 15 A prosecutor has wide latitude to make arguments based on
facts in evidence and reasonable inferences drawn from those facts.
People v. Strock, 252 P.3d 1148, 1153 (Colo. App. 2010). But
during closing argument, a prosecutor may not attempt to shift the
burden of proof to the defendant, see People v. Santana, 255 P.3d
1126, 1130 (Colo. 2011), or comment on the defendant’s failure to
testify, see Howard-Walker v. People, 2019 CO 69, ¶ 44. Nor may
the prosecutor misstate the law. See People v. Sanders, 2022 COA
47, ¶ 54, aff’d on other grounds, 2024 CO 33.
¶ 16 We see nothing wrong with the prosecutor’s argument. The
comments did not shift the burden of proof or direct the jury to
Ewing’s decision not to testify. The prosecutor did not say that
Ewing had the burden of proof, see Santana, 255 P.3d at 1131, or
refer to his failure to testify, People v. Todd, 538 P.2d 433, 436
(Colo. 1975), and the comments were a direct response to defense
counsel’s argument, see People v. Walker, 2022 COA 15, ¶ 41.
¶ 17 The comments supported the prosecution’s broader argument
that the DNA evidence proved beyond a reasonable doubt that
Ewing committed the murders, and that there was no reasonable
alternative view of the evidence — i.e., there was no “innocent
6 explanation” for the presence of Ewing’s DNA at the crime scenes.
In this way, the comments merely highlighted the lack of evidence
supporting the defense theory that someone else had murdered the
family. See People v. Liggett, 114 P.3d 85, 89 (Colo. App. 2005) (“A
prosecutor’s comment on the lack of evidence confirming a
defendant’s theory of the case is permissible and does not shift the
burden of proof.”), aff’d, 135 P.3d 725 (Colo. 2006). Ewing was
guilty, according to the prosecutor, not because he did not offer an
explanation but because there was no explanation for Ewing’s DNA
on the blanket and carpet other than that he had committed the
sexual assault and murders.
¶ 18 That argument did not amount to a misstatement of the law.
The prosecutor’s theory was that the DNA evidence alone
established guilt beyond a reasonable doubt. Therefore, according
to that theory, in order for the jury to have a reasonable doubt, it
had to discount the relevance of the DNA evidence for some
reason — for example, because there was a plausible alternative
explanation for the presence of Ewing’s DNA at the scene. We do
not disagree with Ewing’s proposition that “[i]f the jury has a
reasonable doubt about the prosecution’s proof . . . then the jury’s
7 duty is to acquit — regardless of whether there is an innocent
explanation provided.” That proposition is circular, though. The
prosecution’s point was that, without some plausible explanation
for the DNA, the jury should not have had a reasonable doubt about
the prosecution’s proof and therefore should not have acquitted
Ewing.
¶ 19 We conclude that the prosecutor did not commit misconduct;
thus, the court did not err by overruling defense counsel’s
objections to the prosecutor’s comments.
III. Modified-Allen Instruction
¶ 20 Ewing contends that the trial court erred by giving a modified-
Allen instruction2 after the jury advised that it was deadlocked.
A. The Court’s Instruction
¶ 21 The trial took ten days. The jury heard from more than thirty
witnesses and viewed scores of exhibits.
¶ 22 Jurors began deliberating around noon on the last day of trial.
Less than four hours later, the jury sent a note to the court: “We
are at a point where we are at an impasse with virtually no
2 See Allen v. People, 660 P.2d 896, 898 (Colo. 1983).
8 possibility of agreement.” Defense counsel moved for a mistrial.
The court denied the motion and decided instead on the following
plan:
[W]e’ll bring the jury in, I will . . . inquire of the foreperson only whether she believes further time would help them come to a unanimous decision. If she says “yes,” we will discharge them for the evening and have them come back tomorrow and start again; I won’t give them any instruction. If she says “no,” I will then ask whether she thinks it would be helpful to break for the evening and start afresh tomorrow. If she says “no” to that, then I will give them the [pattern] modified Allen instruction.
¶ 23 The court brought the jury in, and asked the foreperson, “Do
you think, if we give you more time to deliberate, that would assist
in moving forward to reaching a unanimous verdict?” The
foreperson answered, “It’s highly unlikely.” The court then asked
whether “it would be helpful to break for the evening . . . and start
again in the morning[.]” The foreperson said that “a break would, of
course, be helpful,” but she did not “know if anything would change
in the morning.”
¶ 24 The court then gave the jury the pattern modified-Allen
instruction, see COLJI-Crim. E:18 (2024), and sent them home for
9 the night with directions to continue deliberating the next day. The
next morning, the court re-read the modified-Allen instruction to
the jury, and deliberations resumed. At noon, the defense filed a
written motion for a mistrial, which the court denied. Sometime
thereafter, though the record does not indicate exactly when
(defense counsel mentioned that the jury had been deliberating for
approximately five and a half hours), the jury reported that it had
reached unanimous verdicts on all counts. After the verdicts were
read, the court polled the jurors, each of whom confirmed their
verdicts.
¶ 25 Ewing argues that the court erred by denying his motion for a
mistrial and instead giving the jury a modified-Allen instruction,
which he says was “coercive and impaired unanimity.”
¶ 26 When the jury reports that it has reached an impasse in
deliberations, the trial court should take certain steps to avoid
coercing a verdict. As an initial matter, it must determine that the
jury is actually deadlocked. See People v. Cox, 2023 COA 1,
¶¶ 11, 20 (jury’s question, “What happens if the jury fails to reach a
unanimous decision?”, did not indicate that the jury was
10 deadlocked). If the jury’s note does not indicate a true deadlock,
the court can simply instruct the jury to continue deliberations.
See id. at ¶¶ 12, 18, 22 (when jury asked about a hypothetical
deadlock, court did not err by instructing the jury, “[p]lease
continue your deliberations”). But if the jury’s note shows a true
impasse, the court may not give any supplemental instruction
without first inquiring as to the likelihood that continued
deliberations will result in a unanimous verdict. See People v.
Black, 2020 COA 136, ¶ 19. If progress is likely, the trial court can
give the same unqualified instruction to continue deliberations. Id.
at ¶ 20. If the trial court determines that progress is unlikely, the
court may give a modified-Allen instruction. Id. at ¶ 21.
¶ 27 “A modified-Allen instruction is a supplemental jury
instruction designed to encourage, but not coerce, a deadlocked
jury into reaching a unanimous verdict.” Fain v. People, 2014 CO
69, ¶ 2.3 “Although the fact that the jury is at something of an
3 A modified-Allen instruction tells the jury “that it should attempt
to reach a unanimous verdict; that each juror should decide the case for [themself]; that the jurors should not hesitate to reconsider their view; and that they should not surrender their honest convictions solely because of others’ opinions or to return a verdict.” Gibbons v. People, 2014 CO 67, ¶ 1.
11 impasse increases the coercive risk of any instruction to continue
deliberating, the modified-Allen instruction’s prophylactic
exhortations mitigate this risk.” Black, ¶ 21. Still, a modified-Allen
instruction is “not always uncoercive.” Id. at ¶ 22. “So, if progress
towards a verdict is not just unlikely but is impossible, even a
modified-Allen instruction may be impermissibly coercive.” Id.
Whether an instruction is coercive “will necessarily depend on the
content of the instruction and the context in which it is given.”
Gibbons v. People, 2014 CO 67, ¶ 30.
¶ 28 “[A]ddressing the fluid dynamics associated with possible
deadlock is a quintessential [trial] court responsibility”; thus, trial
courts have broad discretion in this area. Cox, ¶ 16 (quoting
Gibbons, ¶ 31). We therefore review the trial court’s decision to give
a modified-Allen instruction for an abuse of discretion. Gibbons,
¶ 12. A court abuses its discretion when its decision is arbitrary,
unreasonable, unfair, or contrary to law. People v. Espinosa, 2020
COA 63, ¶ 8.
¶ 29 We discern no abuse of the trial court’s discretion.
¶ 30 First, the jury’s note came less than four hours into
deliberations, after a ten-day murder trial in which jurors heard
12 gruesome and wrenching testimony. See Fain, ¶ 21 (affirming the
trial court’s decision to give a modified-Allen instruction where the
jury “had been discussing the case for only half a day”); cf. Cox,
¶ 21 (affirming the trial court’s decision to give an unqualified
instruction to continue deliberations where the jury had been
deliberating for four and a half hours after a four-day murder trial).
¶ 31 Second, the court reasonably concluded that the jury was not
“hopelessly deadlocked,” which reduced the potential for a coerced
verdict. See Fain, ¶ 19. The court observed instead that the jurors
“look[ed] tired and frustrated” when they reported the impasse and
seemed receptive to taking an evening break and resuming
deliberations the next day. See Cox, ¶ 21 (court properly instructed
the jury to continue deliberations because the initial impasse likely
reflected “some frustration over being unable to reach a unanimous
verdict immediately”).
¶ 32 Third, the content of the instruction was not coercive. The
court did not place a deadline on deliberations or use “the specter of
a mistrial to threaten jurors into returning a verdict.” Gibbons,
¶ 30. The instruction did not tell the jury that it had to reach a
unanimous verdict. Cf. Jenkins v. United States, 380 U.S. 445, 446
13 (1965) (trial court’s exhortation to jury that “[y]ou have got to reach
a decision in this case” was coercive). And after receiving the
instruction, the jury continued to deliberate for at least another five
and a half hours. See, e.g., Gilbert v. Mullin, 302 F.3d 1166, 1173
(10th Cir. 2002) (in determining whether a supplemental
instruction was coercive, courts should consider, among other
factors, “the length of the jury’s subsequent deliberations”) (citation
omitted).
¶ 33 Focusing on the court’s proposed plan for responding to the
jury’s note, Ewing contends that “[n]o matter what the jury said . . .
the trial court was going to have the jury return for further
deliberations.” But as we have noted, what the foreperson said was
that, even if she could not be sure anything would change, “a break
would, of course, be helpful.” Under the circumstances, we cannot
conclude that the court abused its discretion by ordering an
evening break and giving a non-coercive instruction to continue
deliberating.
IV. Felony Murder Counts
¶ 34 To prove felony murder, the prosecution must show, as
relevant here, that during the defendant’s commission of an
14 enumerated felony, a person died. See § 18-3-102(1)(b), C.R.S.
1984. Ewing was charged with three felony murder counts, one for
each victim, based on his commission of first degree burglary or
sexual assault. Before trial, he moved to dismiss the felony murder
counts on the ground that the statute of limitations for burglary
and sexual assault had expired. The court denied his motion.
¶ 35 On appeal, Ewing reiterates his statute of limitations
argument. Relying on Doubleday v. People, 2016 CO 3, he contends
that “the impossibility of obtaining a conviction on the underlying
offense is a bar to conviction of felony murder.” We think Ewing’s
reliance on Doubleday is entirely misplaced, but we need not reach
the merits of his argument because, as he acknowledges, his felony
murder convictions were vacated as multiplicitous.
¶ 36 That leaves Ewing with a vague and undeveloped argument
that the mere submission of the felony murder counts to the jury
prejudiced him. He says the court’s purported error “inflated the
number of [charges] against” him and required the jury to “decide
the issue of guilt regarding those other offenses.” But because
Ewing does not dispute that the jury would have heard all the same
evidence regardless of whether the felony murder counts were
15 dismissed, we do not see how he was prejudiced. The jurors had to
determine whether he had committed murder by bashing three
people’s heads with a hammer, one of whom was a child. And they
had to determine whether, before he bashed the child’s head in, he
raped her and left his semen on a blanket, which later established
that he was the murderer. We are hard pressed to see any
additional prejudice because the jury also considered whether he
committed burglary.
¶ 37 Accordingly, even without deciding whether the felony murder
charges were barred by the statute of limitations, we conclude that
Ewing’s claim fails.
V. Judicial Bias at Sentencing
¶ 38 Lastly, Ewing argues that the judge’s comments at sentencing
demonstrated that he was biased and had prejudged Ewing’s guilt.
A. The Court’s Comments
¶ 39 Before imposing sentence, the trial judge addressed Ewing,
telling him that “nothing [the judge] ha[d] seen” in the twenty-five
years he had been a lawyer “compare[d] with the level of depravity”
that Ewing’s actions “show[ed] in this case.” The judge called Ewing
“an abomination” and said that “every breath [Ewing had] drawn
16 since 1984 is a crime against everything that is good and decent
and right in the world.” Then the judge described the inadequacy of
any punishment:
There is no punishment — I thought about this during the trial. I thought is there a punishment that I can conceive of that is too harsh for you. And I can’t come up with one. If we had the death penalty, that would be right and just and fair for you to forfeit your life for what you did. We do not have a death penalty available in this case, and so because of that, the most that I can do, and I think that which it is my duty to do, is everything in my power to make sure that you never draw a free breath again.
¶ 40 Ewing says that judge’s comments evinced “animosity and
bias” toward him, and that the statement, “I thought about this
during the trial” shows that the judge prejudged Ewing’s guilt
during the trial.
¶ 41 “Basic to our system of justice is the principle that a judge
must be free of all taint of bias and partiality.” People v. Jennings,
2021 COA 112, ¶ 18. Thus, a judge may not preside over a case if
he has “a personal bias or prejudice concerning a party,” People in
Interest of A.G., 262 P.3d 646, 650-51 (Colo. 2011) (citation
17 omitted), or if he has prejudged the defendant’s guilt, see In re
Estate of Elliott, 993 P.2d 474, 481-82 (Colo. 2000).
¶ 42 However, under what is sometimes referred to as the
“extrajudicial source doctrine,” to be disqualifying, the judge’s
alleged bias must stem from “a source outside the judicial
proceeding at hand.” Liteky v. United States, 510 U.S. 540, 545
(1994). In other words, “knowledge (and the resulting attitudes)
that a judge properly acquire[s]” during the proceedings are not
“extrajudicial” and do not require recusal. Id.; see also People v.
Dobler, 2015 COA 25, ¶ 26 (judicial statements that are “critical or
disapproving of, or even hostile to, counsel, the parties, or their
cases, ordinarily do not support a bias or partiality challenge”
unless the court’s opinion comes from an extrajudicial source).
¶ 43 As an initial matter, to the extent Ewing asserts that he is
entitled to reversal of his convictions based on an alleged
appearance of bias, we reject that assertion. “[W]hile both an
appearance of impropriety and actual bias are grounds for recusal
from a case, only when the judge was actually biased will [a
reviewing court] question the result.” People v. Garcia, 2024 CO
41M, ¶ 21 (quoting Sanders v. People, 2024 CO 33, ¶ 50).
18 ¶ 44 Thus, we turn to Ewing’s argument that the trial judge’s
comments at sentencing revealed actual bias requiring his
disqualification. We review that claim de novo and, if we determine
that the judge was actually biased, structural error applies. Id. at
¶¶ 20-21.
¶ 45 We conclude that disqualification was not required because
the comments, though harsh, reflected opinions the judge had
formed based on the evidence presented during the proceedings.
See, e.g., State v. Schaeffer, 286 P.3d 889, 891-93 (Kan. 2012)
(judge’s comments at sentencing, including that he had “thought a
lot about this case,” “this [was] one of the most heinous crimes” he
had ever seen, the defendant should “not be allowed to live” or
“survive,” and “if [he] could do more [than a life sentence, he]
would,” did not amount to actual bias); United States v. Collier, 932
F.3d 1067, 1078-79 (8th Cir. 2019) (judge’s comments at
sentencing, including calling the defendant’s case “stupid” and
expressing frustration, did not amount to judicial bias); State v.
Rizzo, 31 A.3d 1094, 1130-33 (Conn. 2011) (judge’s comments that
the defendant was a part of the “murderers’ hall of fame” and that
murderers were “not human” did not show actual bias), superseded
19 by statute on other grounds as stated in State v. Santiago, 122 A.3d
1 (Conn. 2015); see also Liteky, 510 U.S. at 550-51 (“The judge who
presides at a trial may, upon completion of the evidence, be
exceedingly ill disposed towards the defendant, who has been
shown to be a thoroughly reprehensible person.”).
¶ 46 Nor can we say that the judge’s comments showed
prejudgment of the case. The fact that the trial judge, at some
unknown point during the trial, had “thought about” the
appropriate punishment for Ewing does not establish that the judge
had predetermined Ewing’s guilt. The court could properly have
considered that, if the jury found Ewing guilty, he would have to
impose some penalty that fit the crime.
¶ 47 The cases Ewing cites in support of his argument are easily
distinguished. In each of those cases, the court made an
unequivocal statement concerning the defendant’s guilt or a
witness’s credibility before hearing any evidence in the case. In
People v. Botham, for example, the judge, in a conversation with the
state public defender about the defendant, who was the only
suspect in a murder investigation, suggested that the police “put
the guy in jail, choke a confession out of him and charge him with
20 the first degree murders.” 629 P.2d 589, 594 (Colo. 1981),
superseded by rule on other grounds as stated in People v. Garner,
806 P.2d 366, 370 (Colo. 1991). In Estate of Elliott, the judge, at
the outset of a contempt proceeding, told the contemnor, “[I]t’s my
belief that you may have stolen property from th[e] estate, and we
are going to recover the property,” and then warned the contemnor
that she was “in an awful lot of trouble” with the court, and would
be “in an awful lot of trouble with the District Attorney’s office” if
she did not cooperate. 993 P.2d at 476; see also Estep v.
Hardeman, 705 P.2d 523, 525 (Colo. 1985) (on interlocutory appeal
of denial of a disqualification motion, supreme court ordered the
judge to recuse from future proceedings after he disparaged a
defense witness’s credibility to defense counsel before any hearing
had occurred).
¶ 48 Here, the judge did not make any pretrial statement about
Ewing’s credibility or his guilt. For that reason, we find Smith v.
District Court, 629 P.2d 1055 (Colo. 1981), more instructive. In that
case, as the defendant was leaving the courtroom, he made a threat
against the judge, which was overheard by a deputy sheriff who
then conveyed the information to the judge. Id. at 1056. The judge
21 told defense counsel about the threat and commented, “I think he
would do it.” Id. Counsel argued that the judge should have
recused from the sentencing hearing because his comment revealed
his belief that the defendant was dangerous, which showed actual
bias. Id. The supreme court disagreed, reasoning that the judge
could properly form an opinion about the defendant’s
dangerousness based on conduct that occurred during the court
proceedings. Id. at 1057.
¶ 49 In sum, we conclude that Ewing has failed to demonstrate that
the trial judge harbored actual bias or predetermined his guilt.
Accordingly, disqualification was not required.
VI. Cumulative Error
¶ 50 Because we have rejected each of Ewing’s contentions of error,
we likewise reject his cumulative error argument. See People v.
Daley, 2021 COA 85, ¶ 141 (cumulative error analysis applies when
“numerous errors occurred”).
VII. Disposition
¶ 51 The judgment is affirmed.
JUDGE GROVE and JUDGE PAWAR concur.