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
1 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
2 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
3 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.
4 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,
5 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
6 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).
7 “[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.
8 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
9 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).
10 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.
¶ 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,
11 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.”
12 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.
13 ¶ 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.
14 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)
15 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.
16 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
18 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.”
19 ¶ 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.