22CA0975 Peo v Mathews 12-26-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA0975 Arapahoe County District Court No. 19CR2080 Honorable Eric B. White, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Scott Alan Mathews, Jr.,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VII Opinion by JUDGE SCHUTZ Tow and Pawar, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 26, 2024
Philip J. Weiser, Attorney General, Sonia Raichur Russo, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Tracy C. Renner, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Scott Alan Mathews, Jr., appeals the trial court’s
judgment of conviction entered on jury verdicts finding him guilty of
second degree murder, menacing, and third degree assault. We
affirm the judgment.
I. Background and Procedural History
A. The Shooting
¶2 Jaharie Wheeler lived in an apartment complex with his
fiancee, Shamira Cotton, and their respective children. On July 4,
2019, Wheeler prepared for a family barbeque inside their
apartment while Cotton and the children played with fireworks in
the complex’s courtyard.
¶3 Cotton briefly left the courtyard and upon her return, learned
that Mathews, who also lived in the complex, yelled at the children
because the noise from the fireworks agitated his dogs. Mathews
and Cotton exchanged insults in the courtyard. Mathews, a
Department of Corrections (DOC) officer who had recently returned
from a shift, withdrew his gun from its holster and pointed it in
Cotton’s face in the children’s presence. Cotton testified that
1 Katherine,1 Mathews’s wife, intervened and told him to put the gun
away. Mathews returned the gun to its holster. The argument
escalated into a physical altercation when Mathews headbutted2
Cotton.
¶4 After the headbutt, one of the children went to the apartment
to notify Wheeler. Wheeler approached the scene, stepped between
Cotton and Mathews, and started yelling at Mathews. As the
argument escalated, Wheeler handed his glasses to his son and
then stepped toward Mathews while striking him in the face.
Mathews immediately responded by pulling his gun and shooting
Wheeler point blank in the chest. Wheeler died from his injuries.
B. Arrest, Trial, and Conviction
¶5 Mathews was arrested and charged with second degree
murder, menacing, and third degree assault. He retained private
counsel, Selvoy Fillerup, and claimed self-defense. The case was
set for trial in February 2020 but continued in January at the
prosecution’s request because of newly received discovery and the
1 We refer to Katherine by her first name to avoid confusion with
Mathews. We mean no disrespect in doing so. 2 Mathews contends that they headbutted each other.
2 need to enlist an interpreter’s services for witness preparation.
Trial was reset for June 2020 but continued by the court in May
due to the COVID-19 pandemic. The trial was reset for October
2020. Two weeks before that trial date, Fillerup moved to continue
due to the pandemic and newly released discovery.
¶6 Trial was reset for March 2021. At the readiness conference,
the prosecution announced they were ready for trial. But Fillerup
filed a motion to withdraw because he was closing his law firm. He
waived speedy trial with Mathews’s consent and requested a
continuance on his behalf so that Mathews could retain new
counsel. The prosecution did not object to the continuance motion
but noted Wheeler’s family vigorously opposed it.
¶7 After a hearing outside the prosecution’s presence, Wheeler’s
mother voiced her family’s strong objection to another continuance,
noting that they had travelled from out of town for the anticipated
trial, missed work, were being denied closure, and were emotionally
traumatized by the repeated delays. The trial court expressed its
sympathies and apologies to the Wheeler family but stated that it
was compelled to grant the defense motions and vacated the trial
date to allow Mathews to attempt to retain new counsel.
3 ¶8 Mathews immediately filed a motion for court-appointed
counsel, stating he was indigent. The public defender’s office
reviewed the application and concluded that Mathews’s income was
above the indigency guidelines, meaning he was not entitled to
court-appointed counsel absent that determination being
overridden by the trial court. Mathews made no request that the
court override or reconsider the finding of the public defender’s
office.
¶9 At a hearing held in April, Mathews updated the court on his
unsuccessful efforts to retain private counsel. At a hearing in May,
Mathews reported that he had called over seventy private attorneys
from the trial court’s “slow pay/low pay” list3 but was unable to find
counsel he could afford. At no time during these hearings did
Mathews ask the court to reassess his eligibility for court-appointed
counsel.
¶ 10 Shortly after the May hearing, Beau Worthington and Brentan
Ward (collectively, trial counsel) entered their appearance on
3 This list contains the names of attorneys who will undertake
representation at a reduced rate or with a payment plan.
4 Mathews’s behalf. The court set the case for trial on December 7,
2021.
¶ 11 In August 2021, trial counsel moved for the release of state
funds to allow them to hire an investigator and expert witnesses to
assist in the defense. In mid-September, Mathews filed another
application for appointment of the public defender’s office and an
amended financial statement. He contended that his financial
condition had significantly changed because he was separated from
Katherine. But the public defender’s office again concluded he did
not meet the indigency guidelines.
¶ 12 Two days later, Mathews filed yet another application for
appointment of the public defender’s office, in which he reported
materially different financial circumstances than he had just
reported. Based on this revised application, the public defender
concluded that Mathews was under the indigency guidelines.
However, in late September, the public defender’s office informed
him that he did not otherwise qualify for their services but that the
court could override this decision.
¶ 13 In October 2021, trial counsel moved to have the court find
Mathews indigent and appoint the public defender’s office to
5 represent him. The court set the matter for a hearing. At the
hearing, trial counsel acknowledged the prior failed applications but
noted that the court had the authority to override the public
defender’s determination, deny the motion, or “release funds for an
investigator and I think that probably is the most efficient way to
handle this matter.” Trial counsel then stated,
Mathews has paid us a total of $4,500 for our services. You know, we were talking about this in the hallway. Mr. Ward and I accepted this case for a number of reasons, money was not one of them. We’ve basically taken that money and reinvested it in his defense . . . . I’m comfortable . . . with my position as [Mathews’s] counsel handling the case even on a pro bono basis even if he doesn’t pay me another dime. The problem is he doesn’t have the money available to adequately defend against the case like this where there’s really a need for an investigator to track down some of these fact witnesses as well and for us to do an independent investigation, and that’s really what the issue before the [c]ourt is today.
¶ 14 After hearing counsels’ arguments, the court reviewed
Mathews’s applications and asked him questions about them. The
court applied the standards contained in Chief Justice Directive 04-
04, Appointment of State-Funded Counsel in Criminal Cases and
for Contempt of Court §§ III-IV (amended July 2023) (CJD 04-04) —
6 which governs the appointment of public defenders — and
concluded that Mathews’s income exceeded 175% of the income
eligibility guidelines.
¶ 15 Given these conclusions, the court was reluctant to grant trial
counsel’s request for the appointment of an investigator at public
expense. But the court nonetheless granted the request for the
appointment of a private investigator to assist trial counsel with
their investigation and preparation for the case. The trial court
denied Mathews’s motion requesting appointment of the public
defender’s office.
¶ 16 Six days before trial, Mathews moved for yet another
continuance, arguing that counsel needed more time to locate and
serve subpoenas on potential witnesses. The prosecutor reported
that Wheeler’s family strongly objected to another continuance, and
the trial court denied the motion. As addressed more fully below,
the trial court also denied Mathews’s renewed motion to continue
asserted on the first day of trial.
¶ 17 The jury found Mathews guilty as charged. The trial court
sentenced him to thirty-seven years in DOC custody.
7 II. Denial of Court-Appointed Counsel
¶ 18 Mathews argues that reversal is required because the trial
court deprived him of his fundamental right to counsel by failing to
follow the proper procedures outlined in CJD 04-04 in making its
indigency determination and that the failure to provide him with
court-appointed counsel resulted in him being forced to proceed
with counsel who had a conflict of interest due to Mathews’s
inability to pay them. We disagree.
A. Standard of Review
¶ 19 A court’s indigency determination for purposes of state-funded
counsel is reviewable for an abuse of discretion, though it is
“subject to careful scrutiny for the reason that it involves a basic
constitutional right.” People v. Greer, 2022 CO 5, ¶ 19 (citation
omitted). A court abuses its discretion when its ruling is manifestly
arbitrary, unreasonable, or unfair. People v. Roybal, 55 P.3d 144,
150 (Colo. App. 2001). There is no mechanical test for determining
whether the court abused its discretion; rather, the analysis turns
on the reasons presented to the judge at the time of the request.
People v. Hampton, 758 P.2d 1344, 1353 (Colo. 1988).
8 ¶ 20 Whether a defendant is indigent and therefore entitled to
court-appointed counsel presents a mixed question of fact and law.
To the extent the ruling requires us to review the trial court’s
interpretation of CJD 04-04, it presents a question of law that we
review de novo. See Greer, ¶ 19. To the extent the court’s ruling
requires us to evaluate the court’s factual findings regarding the
defendant’s income, we review for an abuse of discretion. People v.
Steinbeck, 186 P.3d 54, 57 (Colo. App. 2007).
B. Applicable Law
1. Sixth Amendment Right to Counsel
¶ 21 All criminal defendants have a constitutional right to effective
assistance of counsel. U.S. Const. amend. VI; Colo. Const. art. II, §
16; Strickland v. Washington, 466 U.S. 668, 685-86 (1984).
Indigent defendants have the right to court-appointed counsel if
they are unable to retain private counsel. People v. Rainey, 2023
CO 14, ¶ 16. This right encompasses a right to conflict-free
representation. West v. People, 2015 CO 5, ¶ 15.
¶ 22 When a defendant’s ineffective assistance of counsel claim is
premised on a conflict of interest, we assess the claim under the
standard outlined in Cuyler v. Sullivan, 446 U.S. 335, 349 (1980),
9 rather than Strickland. To prevail under this standard, “the
defendant must show by a preponderance of the evidence both a
conflict of interest and an adverse effect resulting from that
conflict.” West, ¶ 65.
¶ 23 A conflict between counsel and a defendant may exist if the
defendant is forced to proceed to trial “with an attorney originally
hired to represent him but whom he no longer is able to pay.”
People v. Munsey, 232 P.3d 113, 126 (Colo. App. 2009) (citation
omitted). But such a conflict presupposes that the retained defense
counsel is either unable or unwilling to zealously represent the
defendant because of the defendant’s existing financial
circumstances.
¶ 24 Ultimately, the court’s determination of whether counsel is
able and willing to fulfill their professional obligations based on the
defendant’s existing financial circumstances must be based on the
professional representations of counsel. Colo. RPC 1.7(2)(b). If
counsel represents that they remain able and willing to represent
the defendant under the existing financial circumstances, a court
does not abuse its discretion by allowing counsel to continue
representing the defendant. See People v. Harlan, 54 P.3d 871, 877
10 (Colo. 2002) (trial courts have broad discretion to determine
whether disqualification is necessary).
2. Waiver
¶ 25 Waiver is “the intentional relinquishment of a known right or
privilege.” People v. Rediger, 2018 CO 32, ¶ 39 (citation omitted). A
waiver may be express or it may be implied when a defendant
“engages in conduct that manifests an intent to relinquish a right or
privilege or acts inconsistently with its assertion.” Forgette v.
People, 2023 CO 4, ¶ 28. The existence of an implied waiver may be
based on the totality of the circumstances. People v. Garcia, 2024
CO 41M, ¶ 32. If a right is waived, appellate review of the waived
right is extinguished. Forgette, ¶ 30.
C. Application
¶ 26 The People argue that Mathews forfeited or waived aspects of
his claim that the trial court erred by failing to appoint the public
defender’s office to represent him in this case. Specifically, they
argue that Mathews did not request the court to consider whether
he qualified for a public defender because his income was less than
175% of the income eligibility standards. They also argue that
Mathews did not request the appointment of a public defender at
11 the October hearing but, rather, limited his request to the
appointment of an investigator. But we need not address the
People’s waiver and forfeiture arguments because Mathews did not
meet the eligibility guidelines regardless of any omission by the trial
court.
¶ 27 In their appellate brief, the People detail Mathews’s reported
financial circumstances with respect to the three indigency
applications he filed. And the People demonstrate that, even taking
his changing financial statements at face value, they fail to
demonstrate that Mathews’s financial condition ever met the
standards of indigency as defined in CJD 04-04. This is true
whether the financial determination is based on the poverty
guidelines or 175% of those standards. Mathews does not dispute
these calculations. Thus, Mathews would not have qualified for
court-appointed counsel, and the court did not err by declining his
motions for appointment of counsel.
¶ 28 We also reject Mathews’s argument that the trial court erred
by not appointing him conflict-free counsel. Initially, we reject the
premise that trial counsel had a conflict of interest in the first place.
Simply because counsel agrees to represent a party at a
12 substantially discounted rate, or pro bono, it does not necessarily
follow that those economic arrangements deprive a party of the
right to effective assistance of counsel.
¶ 29 Moreover, even if we grant the assumption that pro bono or
reduced fee arrangements subject counsel to the temptation to
reduce the quality of their representation to serve their own
economic interests, Mathews points to nothing that trial counsel
should have done that it did not, or anything that trial counsel did
improperly, because they were conflicted by the economic
circumstances of the representation. Indeed, in his reply brief,
Mathews concedes that he “cannot point to a specific action taken
or not taken by counsel that rendered their assistance ineffective or
point to an actual conflict of interest.”
¶ 30 In sum, Mathews has failed to demonstrate that trial counsel
had divided loyalties because of the economic circumstances of
their representation or that trial counsel’s performance was
compromised by such circumstances. See Sullivan, 446 U.S. at
348; West, ¶ 40.
13 III. Continuance Motion
¶ 31 Mathews contends that the trial court deprived him of his
right to present a defense by denying his continuance motion to
secure the testimony of three witnesses. We are not persuaded.
A. Additional Facts
¶ 32 Six days before trial, trial counsel moved for a continuance on
the basis that they had been unable to subpoena three out-of-state
witnesses who had not yet been located but who counsel thought
could provide testimony that Mathews attempted to de-escalate the
confrontation before he shot Wheeler. Trial counsel indicated that
they needed additional time to locate the witnesses’ addresses and
serve them with subpoenas. They also indicated that they located
another witness, Zachary Akerfelds, who had witnessed the events
leading up to the homicide and who they anticipated would provide
similar information.
¶ 33 The prosecution noted that this was the fifth trial setting and
objected to the continuance on multiple grounds. It argued that the
defense had not established that it exercised due diligence in timely
locating these witnesses, observing that Fillerup referred to the
need to locate out-of-state witnesses in March, nine months earlier.
14 The prosecution also pointed out the absence of a specific
evidentiary offer illustrating that these witnesses were essential.
Moreover, the prosecution stated there was alternative evidence
that could adequately address Mathews’s attempts to de-escalate
the situation, including a video of the shooting and the testimony of
several available neighbors who also witnessed the shooting.
Finally, the prosecution noted that it had flown in multiple
witnesses for trial, and that these witnesses would be prejudiced by
a continuance.
¶ 34 Emphasizing the repeated continuances and the associated
adverse impact on the victims and finding that “the defense is
capable of proceeding with what it has,” the trial court denied the
requested continuance, but noted it would afford trial counsel the
opportunity to readdress the issue at trial.
¶ 35 Trial counsel reraised the issue on the first morning of trial.
After hearing basically the same arguments from counsel, the court
denied the requested continuance based on the following findings:
It’s just too difficult to tell if these witnesses have testimony to offer that would be helpful such that if I continued the case their appearance would allow a more robust defense for the defendant, and because there’s a
15 videotape of at least part of this, it seems to the [c]ourt that at least some of this is going to come out through the videotape, as well as through prosecution witnesses that are available to cross-examine for the defense. I can’t make a finding that, again, the evidence that the defense proposes it may be able to produce in the form of this witness testimony would allow the [c]ourt to continue this case for good cause.
¶ 36 The court also noted that it continued to have concerns about
the impact that another continuance would cause Wheeler’s family.
¶ 37 At trial, the prosecution called Akerfelds as a witness, and he
was subject to cross-examination by trial counsel. But his trial
testimony did not turn out as trial counsel had forecasted. He was
unable to support Mathews’s testimony that he and Cotton and
headbutted each other. In addition, he testified that Mathews was
“even angrier than Cotton” and that his demeanor during the
argument was angry and aggressive. Akerfelds also testified that he
did not see Cotton do anything physical toward Mathews or
Katherine. As it relates to Mathews’s interactions with Wheeler,
Akerfelds testified that Wheeler did not have anything in his hands
and approached Mathews calmly. In sum, Akerfelds did not provide
the type of exculpatory testimony defense counsel had anticipated.
16 B. Standard of Review and Applicable Law
¶ 38 We review an order resolving a continuance motion for an
abuse of discretion. Roybal, 55 P.3d at 150.
¶ 39 “When the continuance is sought to locate a missing witness,
the court may consider whether the movant exercised due diligence
to secure the witness’s attendance.” People v. Senette, 2018 COA
105, ¶ 9. “Other factors relevant to the trial court’s inquiry include
the prejudice the movant would suffer from the denial of a request
for a continuance, whether that prejudice would be cured by the
continuance, and the prejudice to the nonmoving party if the
continuance is granted.” Id. But “even if the trial court abused its
discretion, to obtain a reversal,” a defendant must show “actual
prejudice arising from denial of the continuance.” People v.
Garrison, 2017 COA 107, ¶ 21 (citation omitted).
¶ 40 Like the trial court, we acknowledge that trial counsel entered
their appearance under less-than-ideal circumstances: They only
had six months to review the discovery, the investigator had been
hired about a month before the trial, and Mathews had limited
17 financial resources. And we do not see any indication that the
requested continuance was sought in bad faith.
¶ 41 But considering the totality of the circumstances, we conclude
that the trial court did not abuse its discretion by denying
Mathews’s continuance request based on the age of the case and
the timing of the request. By the time of trial, this case was two
and a half years old. It had been continued four times previously.
And though some of those continuances were required by the
pandemic or the prosecution, others were made at the direct
request of Mathews’s counsel, including a request that was made
and granted just two weeks before the March trial setting.
¶ 42 In addition, Wheeler’s family had repeatedly expressed their
frustration, financial loss, and emotional turbulence resulting from
these continuances. The trial court granted multiple continuances
notwithstanding these objections, but the victims’ right to have the
case promptly resolved was certainly an important criterion for the
court to consider. People v. Ahuero, 2017 CO 90, ¶ 17.
¶ 43 Against these concerns, the court considered trial counsel’s
argument that a continuance was necessary to subpoena out-of-
state witnesses whose specific location had not yet been identified.
18 But the court found that trial counsel failed to provide an offer of
proof that the proposed testimony would have been distinguishable
from other available evidence. Moreover, the subsequent testimony
from Akerfelds — one of the witnesses identified by trial counsel as
having exculpatory testimony — undermined Mathews’s self-
defense claim. Furthermore, there was eyewitness testimony from
several other witnesses including Katherine, Cotton, and neighbors,
and the incident was recorded on video.
¶ 44 Based on these circumstances, the trial court did not abuse its
discretion by denying Mathews’s continuance motion.
IV. Prosecutorial Misconduct
¶ 45 Finally, Mathews argues that the prosecutor improperly
expressed opinions on Mathews’s guilt and credibility. We disagree.
A. Standard of Review and Applicable Law
¶ 46 In the absence of a contemporaneous objection from defense
counsel, as is the case here, we review a trial court’s failure to
address alleged prosecutorial misconduct for plain error. People v.
Vialpando, 2022 CO 28, ¶ 20. Plain error is error that is obvious
and substantial. Hagos v People, 2012 CO 63, ¶ 14. An obvious
error is one that contravenes a statute or rule, a well-settled legal
19 principle, or established Colorado case law. Campbell v. People,
2020 CO 49, ¶ 25. “An error is substantial if it so undermines the
fundamental fairness of the trial itself as to cast serious doubt on
the reliability of the judgment of conviction.” People v. Deutsch,
2020 COA 114, ¶ 22.
¶ 47 We engage in a two-step analysis to review prosecutorial
misconduct claims. People v. Herold, 2024 COA 53, ¶ 67. First, we
consider “whether the prosecutor’s questionable conduct was
improper based on the totality of the circumstances,” and then we
consider “whether such actions warrant reversal.” Wend v. People,
235 P.3d 1089, 1096 (Colo. 2010).
¶ 48 During closing argument, a prosecutor “may refer to the
strength and significance of the evidence, conflicting evidence, and
reasonable inferences that may be drawn from the evidence.”
People v. Walters, 148 P.3d 331, 334 (Colo. App. 2006). But it is
improper for a prosecutor to use any form of the word “lie” in
reference to a defendant’s veracity including the words “lies,” “lied,”
and “liar.” Wend, 235 P.3d at 1096.
20 B. Application
¶ 49 Mathews testified at trial. In closing argument, the prosecutor
argued that Mathews’s account of what happened prior to the
homicide was not believable and also that some of his testimony
was untruthful. Mathews tries to equate these statements with
calling him a liar. Finally, Mathews notes that the prosecutor said
on one occasion that he was “so guilty.”
¶ 50 The People note that, by testifying, Mathews placed his
credibility at issue. See Walters, 148 P.3d at 335-36. The People
also note that the prosecutor’s arguments that Mathews’s testimony
was not believable or untruthful was grounded in discussions of the
applicable evidence and did not use any form of the term “lie.” See
People v. McMinn, 2013 COA 94, ¶ 61 (“Prosecutors may comment
on the evidence admitted at trial and the reasonable inferences that
can be drawn therefrom.”).
¶ 51 We agree with the People that the prosecutor’s arguments that
Mathews’s testimony was unbelievable and untruthful were not
improper under the circumstances of this case. And we view the
prosecutor saying, “so guilty,” in reference to Mathews as somewhat
ambiguous. Depending on context, the statement may have been
21 an improper opinion that the defendant was guilty, see Robles v.
People, 302 P.3d 269, 279 (Colo. App. 2011) (a prosecutor may not
assert a personal opinion as to the defendant’s guilt or innocence),
aff’d, 2013 CO 24, or it may have been a suggestion that the jury
should return a guilty verdict based on the evidence the prosecutor
summarized before making the statement. In any event, the trial
court was in the best position to assess any prejudice associated
with the argument, see People v. Gomez-Garcia, 224 P.3d 1019,
1024 (Colo. App. 2009), and in context this argument was not so
improper or flagrant that it rose to the level of plain error, see
People v. Rhea, 2014 COA 60, ¶ 43.
V. Disposition
¶ 52 The judgment is affirmed.
JUDGE TOW and JUDGE PAWAR concur.