21CA1444 Peo v Peters 02-20-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 21CA1444 El Paso County District Court No. 18CR4176 Honorable Marcus S. Henson, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Mark Christopher Peters,
Defendant-Appellant.
JUDGMENT AND SENTENCE AFFIRMED
Division VI Opinion by JUDGE WELLING Brown and Moultrie, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 20, 2025
Philip J. Weiser, Attorney General, Grant R. Fevurly, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, River B. Sedaka, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Mark Christopher Peters, appeals his judgment of
conviction and sentence for one count of felony murder, two counts
of stalking, and one count of tampering with physical evidence. We
affirm.
I. Background
¶2 Peters was married to the victim, M.P., but as of 2018, Peters
and M.P. were separated and going through a divorce. While the
divorce was pending, M.P. moved in with her daughter, R.L.
According to R.L., very few people knew her address and, to her
knowledge, no one had given Peters her address.
¶3 On July 12, 2018, Peters went to the home of R.Y., a friend of
M.P.’s. There was conflicting testimony about what happened next.
R.Y. testified that Peters kidnapped him at gunpoint, forced him to
begin driving, and asked him to go to R.L.’s house. R.Y. further
testified that he told Peters that he couldn’t remember where R.L.
lived, which angered Peters. According to R.Y., after he told Peters
that he couldn’t remember R.L.’s address, Peters asked R.Y. to call
M.P. R.Y. tried to call M.P., but she didn’t answer. R.Y. then called
R.L., who answered and gave the phone to M.P. M.P. gave R.L.’s
1 address to R.Y. after he told her that he had car parts to drop off.
R.Y. testified that Peters overheard this conversation.
¶4 Contrary to R.Y.’s account of what happened, Peters testified
that he didn’t kidnap R.Y. And Peters’s friend, D.B., testified that
Peters and R.Y. came to her house that day, and it didn’t appear to
her that R.Y. had been kidnapped.
¶5 One day later, on July 13, 2018, Peters went to R.L.’s house
while wearing a wig and holding a pamphlet. He took D.B.’s gun to
the door with him. According to R.L., M.P. heard the doorbell ring,
went to the door, looked through the peephole, and said, “There’s a
woman at the door.” R.L. then went to the door, and she also
thought she saw a woman at the door with her back turned. R.L.
testified that, because of what appeared to be pamphlets in the
visitor’s hand, she assumed the person at the door was a canvasser.
R.L. went to open the door and “before [she] knew it,” the door
pushed open into her face. She then realized that it was Peters who
was at the door, wearing a wig. R.L. testified that she then
attempted to shut the door, but Peters had his foot in the door and
was “waving his gun.” R.L. yelled to M.P. that Peters was at the
door. According to R.L., M.P. initially became panicked and went to
2 her room, but she then came out of her room to help R.L. try to
keep Peters out of the house. Peters then shot through the door,
hitting M.P. in the head and killing her. R.L. testified that she then
said, “You fucking shot my mom in the head,” and Peters fled.
During his testimony, Peters denied that he lodged his foot in the
door.
¶6 Peters was arrested and charged with three counts of murder
in the first degree — after deliberation, felony murder, and extreme
indifference — one count of attempted murder in the first degree,
three counts of second degree burglary, two counts of stalking, one
count of tampering with physical evidence, three counts of first
degree kidnapping, and one count of second degree kidnapping. At
trial, Peters asserted self-defense. The jury convicted Peters of first
degree felony murder, second degree murder as a lesser included
offense of first degree murder after deliberation, two counts of
second degree burglary, two counts of stalking, and tampering with
physical evidence. The jury acquitted Peters of all the other
charges.
¶7 The trial court merged the second degree murder conviction
and the burglary conviction into the first degree felony murder
3 conviction and sentenced Peters to a controlling sentence of life
without the possibility of parole (LWOP) (with the sentences for
stalking and evidence tampering running concurrently to one
another and the LWOP sentence).
II. Analysis
¶8 Peters raises five arguments on appeal. He contends that
(1) the trial court exhibited bias against him; (2) the trial court
erroneously admitted R.L.’s hearsay statements; (3) there was
pervasive prosecutorial misconduct during voir dire and closing
argument; (4) even if each isolated error doesn’t warrant reversal,
the cumulative prejudice of the errors warrants reversal; and (5) his
LWOP sentence constitutes cruel and unusual punishment. We
consider, and reject, each contention below.
A. Whether the Trial Court Exhibited Bias During D.B.’s Testimony
¶9 Peters contends that we must reverse his judgment of
conviction because the trial court exhibited judicial bias by
(1) reminding D.B. of her oath to testify truthfully during her
testimony and (2) giving the jury a credibility instruction during
4 D.B.’s testimony. We aren’t persuaded that the trial court exhibited
any bias.
1. Additional Facts
¶ 10 At trial, the prosecution called D.B. to testify. Even from the
flat transcript, it’s clear that D.B. was a challenging witness.
During her testimony, D.B. frequently had trouble recollecting what
she had told police and had difficulty understanding the
prosecutor’s questions. D.B.’s testimony was also interrupted twice
after she expressed concerns about perjuring herself. In both
instances where D.B. raised this concern, the court appointed D.B.
her own counsel and took a recess to permit D.B. to discuss her
concerns with her appointed counsel.
¶ 11 During the prosecutor’s direct examination of D.B., the
following exchange occurred:
THE COURT: Hold on just a second. Ma’am, I appreciate that this is difficult, and it may be frustrating for you. I can also appreciate that it may be difficult and frustrating for counsel. He’s trying to get answers to questions. And I think you are struggling to try to make sure that you give him maybe the answer to the question you believe he’s asking.
[D.B.:] I don’t understand his questions is —
5 THE COURT: And bear with me. What I’m going to do is I’m just going to say at this stage, if you don’t understand the question, before you even try to answer it, just say, I’m not sure I understand. Could you ask it a different way?
[D.B.:] Okay.
THE COURT: I think that may be part of where the confusion lies. Okay?
THE COURT: The other thing I’m going to ask you to do, ma’am, is to the best of your ability, just answer the questions truthfully. That’s what the oath requires you to do.
[D.B.:] I am — okay.
(Emphasis added.) Peters didn’t contemporaneously object.
¶ 12 Later, during the prosecutor’s redirect examination of D.B.,
the prosecutor asked her whether Peters had seemed fixated on his
frustrations with M.P. Peters objected as to speculation and, when
overruling the objection, the trial court sua sponte instructed the
jury as follows:
Folks, I want to share with the jury that you need to understand that at the end of all of this, you are going to be given an instruction that is going to require you to decide what weight maybe you give to the testimony of a witness based on other evidence and how you view things in the whole.
6 And so you will need to be reminded at this point that you are going to have to make some decisions about how you want to treat the testimony and what you may want to believe or not believe based on all the other evidence.
Peters didn’t contemporaneously object to this but, at a sidebar
later on in D.B.’s testimony, he objected and asked that in the
future the court consult with counsel before interjecting
instructions. In response, the court explained its thought process:
[D.B.’s] testimony has gone on as long as it has to the extent that there have been multiple instances where the witness has been asked to make comments. And it was raised actually most recently in advance of my giving this instruction to comment potentially on the credibility of some other witness. And so that was part of what prompted me to want to give a bit of that direction to the jury.
2. Legal Principles and Standard of Review
¶ 13 In our justice system, it’s axiomatic that a judge “be free of all
taint of bias and partiality.” People v. Jennings, 2021 COA 112,
¶ 18. Because bias and partiality must be avoided, the trial judge
“must exercise restraint to maintain an impartial forum” even
though he or she “has wide discretion in conducting a trial.” People
v. Acosta, 2014 COA 82, ¶ 92.
7 ¶ 14 A judge’s disqualification is warranted when the judge shows
either actual bias or an appearance of impropriety. See People v.
Garcia, 2024 CO 41M, ¶ 21. But “while both an appearance of
impropriety and actual bias are grounds for recusal from a case,
only when the judge was actually biased will we question the
result.” Id. (quoting Sanders v. People, 2024 CO 33, ¶ 50).
¶ 15 Actual bias “is bias ‘that in all probability will prevent [a judge]
from dealing fairly with a party.’” Jennings, ¶ 20 (alterations in
original) (quoting People in Interest of A.G., 262 P.3d 646, 650 (Colo.
2011)). Disqualification based on actual bias isn’t waivable. Id. at
¶ 21. When asserting that a trial judge was biased, the defendant
“must establish that the judge had a substantial bent of mind
against him or her.” Id. at ¶ 28 (quoting People v. Drake, 748 P.2d
1237, 1249 (Colo. 1988)). Such bias must be clearly established in
the record. Id.
¶ 16 We review de novo whether a trial judge’s recusal was
required. Sanders, ¶ 25. If an actually biased judge presided over
a trial, reversal is required because it constitutes structural error.
Garcia, ¶ 21; Hagos v. People, 2012 CO 63, ¶ 10.
8 3. The Trial Court Didn’t Exhibit Bias
¶ 17 We acknowledge that under certain circumstances, a trial
judge’s comments on the credibility of a witness may evince bias or
partiality. See People v. Rogers, 800 P.2d 1327, 1328-29 (Colo.
App. 1990). But given the context in which the trial court reminded
D.B. of her oath and instructed the jury on its role in assessing
credibility during D.B.’s testimony, we don’t discern that the trial
judge evinced bias or partiality in this case.
¶ 18 First, D.B. was a prosecution witness, so it’s counterintuitive
that an admonition or instruction given while a prosecution witness
is testifying on direct or redirect would evince a bias against the
defendant. While portions of D.B.’s testimony may have benefitted
the defense, that the trial judge only interrupted the prosecution
during the examination of its own witness cuts against any
inference that the trial judge was exhibiting actual bias against
Peters or an appearance of impropriety in either instance.
¶ 19 Second, when the trial judge reminded D.B. of her oath during
her testimony, it was after D.B. had repeatedly told the prosecutor
that she didn’t understand the questions and stated that she felt
the prosecutor was “going around in circles.” Based on the record
9 and the surrounding context, it appears that the trial judge sensed
that both D.B. and the prosecutor were becoming increasingly
frustrated during their exchange. In this context, the trial court’s
decision to remind D.B. of her oath doesn’t indicate that the trial
judge had either a “substantial bent of mind” or prejudice against
Peters. See Jennings, ¶ 28; see also Sanders, ¶¶ 45-46. Rather, it
appears that the trial court was simply attempting to cut through
the frustration and keep D.B.’s testimony moving.
¶ 20 Similarly, the trial judge gave the credibility instruction during
D.B.’s testimony after the prosecution had asked her to speculate
on Peters’s feelings of frustration toward M.P. and before permitting
D.B. to testify as to whether Peters seemed fixated on his marital
problems. While the timing of the instruction may not have been
ideal, when considering the context in which the court gave the
instruction, the court’s decision to give the instruction doesn’t
indicate that the trial judge had either a “substantial bent of mind”
or prejudice against Peters. See Jennings, ¶ 28; see also Sanders,
¶¶ 45-46. Instead, the court was simply reminding the jury that it
was its role to judge the credibility of all of the witnesses and to
10 determine the weight to be accorded the evidence, even when a
witness testifies about another person’s state of mind.
¶ 21 Because we perceive no actual bias, we decline to reverse on
this ground or on the grounds that the trial court demonstrated an
appearance of impropriety. See Richardson v. People, 2020 CO 46,
¶ 39 (Absent “evidence demonstrating actual judicial bias or
prejudice, a trial judge’s potential violation of [the ethical] rules
does not mandate reversal.”).
B. Whether the Trial Court Improperly Permitted R.L.’s Hearsay Statements
¶ 22 Peters next contends that the trial court erred by admitting
hearsay statements that R.L. made to the police after the shooting.
We aren’t persuaded that the court erred.
¶ 23 During its case-in-chief, the prosecution called R.L. to testify
about the events leading up to and surrounding M.P.’s death.
During cross-examination of R.L., defense counsel questioned her
about her use of “dabs” — a concentrated form of marijuana —
before the shooting. R.L. testified that she had been “doing dabs”
before the shooting.
11 ¶ 24 After R.L. finished testifying, the prosecution called Sergeant
Rebecca Smith, an officer who responded to the scene of the
shooting, to testify. The prosecutor asked Sergeant Smith what
information R.L. gave her at the scene, including the name of the
shooter and what weapon was used. In response, Sergeant Smith
stated that R.L. identified the shooter as Peters and she described
the weapon as a black handgun. Peters objected to both responses
based on hearsay. The prosecution argued that the statements
were admissible as an excited utterance or as a prior consistent
statement based on defense counsel’s questioning of R.L. about her
marijuana use. The court overruled the objection, agreeing that it
was an excited utterance but stating that it wasn’t a prior
consistent statement.
¶ 25 The prosecutor continued questioning Sergeant Smith and
asked her what happened at the door. Sergeant Smith responded,
[R.L.] said that Mark Peters had come over and tried to force his way inside the door, and that she and her mother were trying to block the door to prevent him from coming in. During that time is when she saw the black handgun and, at one point, he fired a round through the door —
12 Peters made a hearsay objection and argued that the statement was
a “narrative response” rather than an excited utterance and asked
the court to strike Sergeant Smith’s testimony. The court initially
sustained the objection but allowed the prosecutor to make a record
during a sidebar. The prosecutor again argued that Sergeant
Smith’s testimony was admissible as R.L.’s statement was an
excited utterance or a prior consistent statement. The trial court
then overruled the objection, finding that the statement was
admissible as an excited utterance and as a prior consistent
statement.
¶ 26 After the sidebar, the prosecutor requested that Sergeant
Smith “finish out the statement” and asked her if R.L. ended her
statement by saying “that Mark Peters shot [a round] through the
door, hitting her mother in the head?” Sergeant Smith answered in
the affirmative.
2. Standard of Review and Legal Principles
¶ 27 Hearsay is an out-of-court statement “offered in evidence to
prove the truth of the matter asserted.” CRE 801(c). Unless it’s
permitted by the rules of evidence, statute, or procedural rule,
hearsay is inadmissible. CRE 802.
13 ¶ 28 CRE 801(d)(1)(B) specifically governs the admission of prior
consistent statements. Under CRE 801(d)(1)(B), a statement isn’t
hearsay if “[t]he declarant testifies at the trial or hearing and is
subject to cross-examination concerning the statement, and the
statement is . . . consistent with the declarant witness’s testimony
and is offered to rebut an express or implied charge against the
declarant witness of recent fabrication or improper influence or
motive.” But our supreme court has held that prior consistent
statements are admissible outside of CRE 801(d)(1)(B) when “used
for rehabilitation when a witness’ credibility has been attacked.”
People v. Eppens, 979 P.2d 14, 21 (Colo. 1999).
¶ 29 Notwithstanding this permitted use, there are still limitations
on offering prior consistent statements for rehabilitative purposes.
Id. One such limitation is the relevancy and probative value of the
statement under CRE 401, 402, and 403. Id. at 21-22. The trial
court must evaluate the relevancy of a prior consistent statement
offered for rehabilitative purposes and “determine whether the
statements have some probative force bearing on the credibility of
the witness beyond the mere fact that the witness has repeated on a
prior occasion a statement consistent with his or her trial
14 testimony.” Id. at 22. Further, in determining the admissibility of
the statement, the trial court must consider “the prohibition against
the needless presentation of cumulative evidence.” Id.
¶ 30 Because the trial court must consider the relevancy and
probative value as to credibility, the admissibility of a prior
consistent statement “turns on the scope of impeachment and the
attack on the witness’s credibility.” People v. Miranda, 2014 COA
102, ¶ 15. If the attack on a witness’s credibility is “based on
‘specific facts,’” then statements regarding only those facts are
admissible, but if “the impeachment is general and not limited to
specific facts . . . the jury should have access to all the relevant
facts, including consistent and inconsistent statements.” Id. at
¶ 16 (quoting People v. Elie, 148 P.3d 359, 362 (Colo. App. 2006)).
¶ 31 It’s within the trial court’s discretion to determine “what
constitutes general impeachment.” Id. at ¶ 17. “We review a trial
court’s evidentiary rulings for an abuse of discretion.” People v.
Abdulla, 2020 COA 109M, ¶ 61. “A trial court abuses its discretion
when its ruling is manifestly arbitrary, unreasonable, or unfair, or if
it misapplies the law.” Id.
15 ¶ 32 When an issue is preserved, we apply the nonconstitutional
harmless error standard to a trial court’s evidentiary rulings.
People v. Martinez, 2020 COA 141, ¶ 27; see also Hagos, ¶¶ 9, 12.
Under this standard, “reversal is warranted if the error affects the
substantial rights of the parties, meaning ‘the error substantially
influenced the verdict or affected the fairness of the trial
proceedings.’” Martinez, ¶ 28 (quoting Zapata v. People, 2018 CO
82, ¶ 61).
3. R.L.’s Hearsay Statements Were Properly Admitted as Prior Consistent Statements
¶ 33 To begin, we must determine the nature of the impeachment of
R.L. That is, was it based on specific facts or was it general
impeachment? Peters didn’t impeach R.L. as to any specific
statements she made. Rather, he impeached her by asking her
about her use of a highly concentrated form of marijuana before the
shooting. This was a general attack on R.L.’s credibility. Therefore,
the admission of R.L.’s prior consistent statements wasn’t limited to
specific facts.
¶ 34 But even prior consistent statements offered in response to
general impeachment must be relevant and probative of the
16 witness’s credibility to be admissible. To assess the relevance and
probative value of the prior consistent statements, we must first
consider why Peters impeached R.L. by drawing the jury’s attention
to her drug use before the shooting. Informing the jury that R.L.
used marijuana impeached R.L. in two respects: (1) her ability to
perceive events at the time they occurred and (2) her ability to
accurately recall and testify about what happened. R.L.’s prior
consistent statements were only relevant to one of those inquiries.
¶ 35 The consistent statements — primarily that Peters “tried to
force his way inside the door” and that he “shot [a round] through
the door hitting [M.P.] in the head” — weren’t relevant to or
probative of R.L.’s ability to perceive what occurred during the
shooting. The statements don’t in any way confirm that she
accurately perceived what occurred during the shooting because the
potential impediment to her accurate perception — her marijuana
use — occurred before she made the statements to Sergeant Smith.
But her prior consistent statements were relevant to and probative
of her ability to accurately recall and testify at trial about what
happened. The statements are relevant in this regard because they
confirm the accuracy of her memory at trial and they’re probative
17 because they show that the use of marijuana before the shooting
didn’t degrade her recollection of what happened at trial compared
to immediately following the shooting. Accordingly, the trial court
didn’t abuse its discretion by admitting R.L.’s hearsay statements
as prior consistent statements.
¶ 36 But even if the trial court shouldn’t have admitted R.L.’s
statements to the sergeant as prior consistent statements, any error
was harmless. The statements elicited by the prosecution from the
sergeant didn’t introduce any new evidence and were merely
cumulative of R.L.’s own testimony about the events surrounding
the shooting. Peters extensively cross-examined R.L. about the
incident itself, and the sergeant’s testimony about R.L.’s hearsay
statements was brief, consisting of approximately one page of
testimony. Thus, any error by the court in admitting R.L.’s hearsay
statements was harmless.
¶ 37 Peters claims that the admission of R.L.’s hearsay statements
wasn’t harmless because “R.L.’s credibility was crucial to the
outcome,” and the introduction of the statements “improperly
bolster[ed] her credibility.” We acknowledge that R.L.’s testimony
was important, particularly for the burglary charge because there
18 was conflicting evidence about whether Peters entered the home.
But we can’t discern how Sergeant Smith’s testimony improperly
bolstered R.L.’s testimony or credibility. While Sergeant Smith
testified about R.L.’s statements after the shooting, she didn’t assert
that R.L. was credible. And to the extent that Sergeant Smith’s
testimony had a bearing on R.L.’s credibility, it was because she
testified to prior consistent statements by R.L. — an entirely proper
purpose, not improper bolstering.
¶ 38 Because we conclude that R.L.’s hearsay statements were
properly admitted as prior consistent statements, or in the
alternative that their admission was harmless, we decline to
address whether the trial court erred by admitting the statements
as excited utterances.
C. Prosecutorial Misconduct
¶ 39 Peters next contends that his convictions for murder and
burglary must be reversed because of prosecutorial misconduct.
Peters alleges that there were six instances of prosecutorial
misconduct that either individually or collectively merit reversal.
After discussing the appropriate standard of review, we address
19 each alleged instance in turn and conclude that reversal isn’t
warranted.
1. Standard of Review
¶ 40 When reviewing claims of prosecutorial misconduct, we engage
in a two-step analysis. Wend v. People, 235 P.3d 1089, 1096 (Colo.
2010). First, we “determine whether the prosecutor’s questionable
conduct was improper based on the totality of the circumstances
and, second, whether such actions warrant reversal according to
the proper standard of review.” Id. Because these steps are
“analytically independent of the other,” we could conclude that the
prosecutor’s conduct was improper but decline to reverse the
judgment because the error was harmless. Id.
¶ 41 The standard of review we apply after determining
prosecutorial impropriety “varies depending on the circumstances.”
Id. at 1097. If an error “specifically and directly offend[s] a
defendant’s constitutional rights,” and the defendant
contemporaneously objected at trial, then the error is subject to
constitutional harmless error review. Id.; see also Hagos, ¶ 11.
Constitutional harmless errors require reversal unless the error
“was harmless beyond a reasonable doubt.” Hagos, ¶ 11 (quoting
20 Chapman v. California, 386 U.S. 18, 24 (1967)). If the error isn’t of
constitutional magnitude, and the defendant contemporaneously
objected at trial, we subject the prosecutor’s misconduct to “general
harmless error review.” Wend, 235 P.3d at 1097. Under this type
of review, we only reverse “if the error affects the substantial rights
of the parties.” Hagos, ¶ 12.
¶ 42 But if the defendant fails to contemporaneously object to the
prosecutor’s misconduct — whether the misconduct implicates a
constitutional right or not — then we review for plain error. Wend,
235 P.3d at 1097; see also Hagos, ¶ 14. Prosecutorial misconduct
constitutes plain error if it’s “‘flagrant or glaringly or tremendously
improper’ and so undermine[s] the fundamental fairness of the trial
as to cast serious doubt on the reliability of the judgment of
conviction.” People v. Carian, 2017 COA 106, ¶ 52 (quoting People
v. Cevallos-Acosta, 140 P.3d 116, 122 (Colo. App. 2005)).
¶ 43 If we conclude that a prosecutor’s statements were improper,
we must then determine whether “they affected the fundamental
fairness of the trial” by “examin[ing] a variety of factors under the
totality of the circumstances.” Id. at ¶ 55. The factors we examine
21 include “the exact language used, the nature of the misconduct, the degree of prejudice associated with the misconduct, the surrounding context, . . . the strength of the other evidence of guilt,” . . . “the severity and frequency of the misconduct[,] . . . and the likelihood that the misconduct constituted a material factor leading to the defendant’s conviction.”
Id. (alterations in original) (quoting People v. Cordova, 293 P.3d 114,
122 (Colo. App. 2011)).
2. Whether the Prosecution Improperly Used a Generic Tailoring Hypothetical
¶ 44 Peters contends that during voir dire the prosecutor made an
improper generic tailoring argument. We agree that the prosecutor
improperly used a generic tailoring hypothetical but conclude that
the use of the improper hypothetical was harmless.
a. Additional Facts
¶ 45 Twice during voir dire, the prosecutor posed a hypothetical to
the jurors in which the prosecutor owned a store at which the
jurors were employed, and the prosecutor discovered that money
was missing from the store’s safe. As part of the hypothetical, the
prosecutor told one juror that they were the thief and then told that
juror that he was going to question each “employee” and ask them
22 about the theft. The first time the prosecutor used this
hypothetical, he asked the juror he told was the thief,
Is it advantageous [to you if] I start with you and try to pin you down on a story first, or is it better for you to wait and have me start on that side so you can hear where everybody was and what everybody was saying so you can craft your story?
¶ 46 In response, the juror stated, “The more information I have,
the more beneficial it is for me.” The prosecutor then asked other
jurors if they agreed. They did. Peters didn’t object at this time.
¶ 47 During the prosecutor’s second attempt to use the
hypothetical, Peters objected on the grounds that it violated due
process because he would testify last. The court sustained the
objection.
b. Application
¶ 48 A prosecutor makes a “tailoring argument” when the
“prosecutor asserts that, by virtue of the defendant’s presence at
trial, the defendant ‘tailor[ed] his testimony to fit that of other
witnesses.’” Martinez, ¶ 55 (quoting Martinez v. People, 244 P.3d
135, 141 (Colo. 2010)). There are two types of tailoring arguments:
specific and generic. Id. at ¶ 56. Specific tailoring arguments are
23 “tied to evidence in the record.” Id. at ¶ 57 (citation omitted). In
contrast, “[g]eneric tailoring arguments occur when the prosecution
attacks the defendant’s credibility by simply drawing the jury’s
attention to the defendant’s presence at trial and his resultant
opportunity to tailor his testimony.” Id. at ¶ 56 (citation omitted).
Generic tailoring arguments “are improper because ‘they are not
based on reasonable inferences from evidence in the record,’ and
they imply that the defendant is less believable because he or she
exercised the right of confrontation and upheld his or her statutory
duty to be present at trial.” Id. (citation omitted). An example of an
improper generic tailoring argument is telling the jury that the
defendant “got to sit and listen to the evidence, and then testify,
based upon the evidence heard in court.” People v. Knapp, 2020
COA 107, ¶¶ 58-59.
¶ 49 The prosecutor’s hypothetical in this case isn’t a tailoring
argument because, during voir dire, the prosecutor couldn’t have
known that Peters would testify and therefore couldn’t have argued
that Peters’s testimony would be tailored. It is, however, a tailoring
hypothetical, as the hypothetical plants the seed of tailoring. It’s an
improper tailoring hypothetical at that, as it implies that if Peters
24 were to testify, his testimony would be tailored. And, because the
prosecutor used the hypothetical during voir dire, before any
evidence had been presented, the hypothetical couldn’t be a specific
tailoring hypothetical based on reasonable inference from the facts.
Instead it was a generic tailoring hypothetical suggesting that Peters
would be less believable if he testified simply because he exercised
his right to confrontation and sat through trial. The hypothetical
was therefore improper.
¶ 50 That the prosecutor’s hypothetical was improper, however,
doesn’t necessarily mean his use of it warrants reversal. Because
Peters didn’t object to the first hypothetical, we review the
prosecutor’s misconduct in that instance for plain error. See Wend,
235 P.3d at 1097. And because the trial court sustained Peters’s
objection to the hypothetical the second time, the use of the
hypothetical in that instance doesn’t constitute error. See People v.
Douglas, 2012 COA 57, ¶ 65 (declining to review an allegedly
improper comment by the prosecutor where the defendant’s
objection to the comment was sustained and he requested no
further relief).
25 ¶ 51 Here, considering the totality of the circumstances, we
conclude that reversal isn’t warranted. While the prosecutor
invoked the same hypothetical in two instances, the hypothetical
didn’t directly assert that Peters would tailor his testimony, if he
testified. Further, the hypothetical was brief, and most importantly,
the prosecutor made no reference to this hypothetical at any point
during trial (including closing arguments) and never advanced a
tailoring argument. Thus, the prosecutor’s use of an improper
generic tailoring hypothetical during voir dire doesn’t warrant
reversal under the plain error standard of review.
3. Whether the Prosecution Improperly Pre-Tried Its Case
¶ 52 Peters next contends that the prosecution attempted to
improperly pre-try its case during voir dire based on its use of two
hypotheticals. We aren’t persuaded.
¶ 53 Both hypotheticals at issue were presented during voir dire.
The first — the store hypothetical — is discussed supra in Part
II.C.2. The second hypothetical was posed to a juror as follows:
So one of my friends, he had a small child who ended up getting into the cookie jar. . . . [Dad] . . . looks at his son, and his son has
26 cookie crumbs on his chest. So he goes in and he looks at the cookie jar. While there had been quite a few cookies, clearly about 20 or whatever, now there’s only about three. He then goes and confronts the child. “Hey, have you had any cookies today?” What do you think the child says?
¶ 54 After the prosecutor posed the cookie hypothetical, the juror
responded that the child would say “no.” The prosecutor then
proceeded to ask, “[W]hat do you think is going to happen when he
asked him, ‘Well, what are these cookie crumbs on your chest? Are
you sure you didn’t have any?’” The prosecutor told the juror that
the child said, “I may have had two cookies.” The prosecutor then
discussed this being an instance of a child “minimizing their guilt”
and went on to state that adults similarly minimize guilt by saying,
“I can’t get away with this crime completely, but I’m going to
minimize the ramifications of it.” Peters didn’t object to the
prosecutor’s cookie hypothetical.
¶ 55 The prosecutor used the same cookie hypothetical later during
voir dire. On the second occasion, the prosecutor asked the jurors
whether they would be “able to look out for that sort of behavior.”
Peters objected, but not contemporaneously. Peters requested that
the court instruct the jury on Peters’s constitutional right to present
27 a defense. The trial court subsequently reiterated to the jury that
the defendant maintains a presumption of innocence, the burden of
proof is on the prosecution, and the defendant maintains a right to
present a defense.
¶ 56 During voir dire, “[a] prosecutor engages in prosecutorial
misconduct . . . when she misstates the law or ‘intentionally uses[s]
the voir dire to present factual matter which the prosecutor knows
will not be admissible at trial or to argue the prosecution’s case to
the jury.’” People v. Krueger, 2012 COA 80, ¶ 50 (quoting People v.
Adams, 708 P.2d 813, 815 (Colo. App. 1985)). Significant in our
determination of whether a prosecutor’s challenged remarks
constitute prosecutorial misconduct is the context in which the
remarks were made. Id.
¶ 57 While it appears that each hypothetical was meant to gain
insight into the jurors’ perspectives on certain legal issues, we
conclude that neither hypothetical was an improper attempt by the
prosecutor to “pre-try” the case. Although the store hypothetical
was improper as a generic tailoring hypothetical, there is no
indication that the prosecutor misstated the law or argued the
28 prosecution’s case through the hypothetical. Indeed, the prosecutor
didn’t link the hypothetical to Peters’s right to testify or explicitly
argue that, if Peters testified, his testimony would be tailored.
¶ 58 For similar reasons, we conclude that the prosecutor didn’t
use the cookie hypothetical to pre-try the case. Again, the
prosecutor didn’t tell the jurors how the hypothetical related to the
law or inform jurors that the hypothetical was in reference to the
defendant’s affirmative defense of self-defense. Further, while the
prosecutor asked jurors if they could “look out for” minimization in
the trial, the prosecutor didn’t reference any facts of the case.
¶ 59 Thus, neither hypothetical was improper on the grounds that
the prosecution was attempting to “pre-try” its case.
4. Whether the Prosecution Improperly Analogized Reasonable Doubt
¶ 60 Peters next contends that the prosecutor acted improperly by
trivializing the reasonable doubt standard. We agree that portions
of the prosecutor’s statements on reasonable doubt were improper
but disagree that any error is reversible.
29 a. Additional Facts
¶ 61 During voir dire, the prosecutor asked a juror who had served
on a jury before whether they found the reasonable doubt standard
“confusing.” After the juror responded that they didn’t, the
prosecutor asked: “Do you feel like it may be something that you do
every day in your life? You kind of, like, look at things and figure
out, you know, is there a doubt that this thing’s going to happen or
a reasonable doubt that that thing is going to happen?” The juror
responded in the affirmative. Peters didn’t contemporaneously
object.
¶ 62 Additionally, twice during voir dire, the prosecutor used the
judge to explain the reasonable doubt standard. Both times, the
prosecutor asked the jurors whether they believed, beyond a
reasonable doubt, that the trial judge was “an actual judge.” The
prosecutor then asked the venire members various questions, such
as whether they had seen the governor’s appointment of the judge
or the judge’s law degree. Peters didn’t contemporaneously object
to either analogy but voiced a delayed objection following the second
analogy. During his delayed objection, Peters requested that the
trial court instruct the jury on the reasonable doubt standard “and
30 differentiate the distinction between a trivial identification of a very
iconic member of the court than with the very high standard and
burden . . . of proof beyond a reasonable doubt.” The court
subsequently gave the reasonable doubt instruction and stated that
the attorneys were being permitted “latitude” in discussing
analogies but that the analogies don’t “supplant[] or in some way
offer[] a different explanation or viewpoint or perspective on what
reasonable doubt is.”
¶ 63 We first address whether the prosecutor’s question about the
reasonable doubt standard and everyday decisions was improper.
¶ 64 Prosecutors “may not ‘misstate the evidence or the law.’”
People v. Camarigg, 2017 COA 115M, ¶ 40 (quoting Krueger, ¶ 50).
In most circumstances, equating the reasonable doubt standard to
an everyday choice is improper. See id. at ¶ 46 (“[U]sing a puzzle
analogy to equate the burden of proof to an everyday choice can be
improper.”). In this case, the prosecutor didn’t directly equate the
reasonable doubt standard to everyday choices. Rather, the
prosecutor asked the juror if using the reasonable doubt standard
is something they do in their everyday life. Notwithstanding the
31 indirectness of the prosecutor’s analogy, the question was improper
because it implies that the reasonable doubt standard is akin to
everyday decision-making, trivializing the standard.
¶ 65 Next, we address whether the prosecutor’s question about
whether the judge was a judge beyond a reasonable doubt was
improper. Certain reasonable doubt analogies can be “perilous and
unhelpful.” People v. Vialpando, 2022 CO 28, ¶¶ 35, 41. We agree
with Peters that this analogy was improper as it used the status of
an iconic courtroom figure — the judge — to illustrate reasonable
doubt, potentially misleading or confusing the jury regarding the
burden of proof. Cf. Camarigg, ¶ 47 (noting that puzzle analogies
used to illustrate reasonable doubt “are problematic if they use
iconic images”).
¶ 66 But even though the prosecutor’s reference to everyday
decision-making and analogies about the status of the judge were
improper, we still conclude that reversal isn’t warranted. Because
Peters didn’t contemporaneously object to any of the reasonable
doubt analogies, we review for plain error. When the prosecutor
made the everyday decisions analogy and the judge analogies, each
analogy was brief, and Peters doesn’t point us to any evidence that
32 the prosecutor referred back to the analogies later on in the trial.
This reduces the likelihood that the analogies undermined the
fundamental fairness of the trial. See Vialpando, ¶¶ 35, 41
(concluding that the prosecutor’s question asking whether the
jurors “could recognize, beyond a reasonable doubt, the American
flag in the courtroom even though it was folded and not entirely
visible” and analogizing to a gameshow didn’t “lower the burden of
proof and were not prejudicial” because the trial court instructed
the jury multiple times to only follow the court’s instructions, the
prosecutor’s analogies were brief and isolated, and the prosecutor
didn’t raise the analogies during closing argument); see also People
v. Van Meter, 2018 COA 13, ¶¶ 32-33 (prosecutor’s puzzle analogy
was improper but not plain error, in part because the use of the
analogy “was relatively brief and isolated” and the trial court
properly instructed the jury on reasonable doubt multiple times).
¶ 67 Further, when Peters belatedly objected to the judge analogy
the second time, his requested relief was for the trial court to read
the proper reasonable doubt standard to the jury, which the trial
court did. And, on review, “we presume that the jury followed the
court’s instructions.” Vialpando, ¶ 41. This reduced the risk of
33 prejudice. See id.; see also Van Meter, ¶ 33. Thus, we conclude
that any error in permitting the analogies wasn’t plain and, to the
extent it constituted prosecutorial misconduct, it doesn’t warrant
reversal.
5. Whether the Prosecution Undermined the Presumption of Innocence
¶ 68 Peters next contends that, during voir dire, the prosecutor
“undermined the presumption of innocence.” We disagree that the
prosecutor engaged in misconduct.
¶ 69 During voir dire, the prosecutor stated,
So, folks, like I said, part of it is managing expectations, and we have had people say, “You know what? Before I sign a guilty verdict, I want to be 100 percent sure of this.”
And when they say stuff like that, I kind of cringe because that means the burden of proof has gone up. And if the burden of proof goes up, that means it’s a lot easier to get away with crimes.
(Emphasis added.) The prosecutor followed this up by asking jurors
what would happen if the burden was lowered. The prosecutor
then said, “[I]f that burden gets lowered that means the risk of
34 someone being convicted when they’re innocent rises, right?”
Peters didn’t object to either of the prosecutor’s statements.
¶ 70 Because Peters didn’t object, we review this contention for
plain error. While the prosecutor’s statements were ill-advised, we
conclude that they weren’t improper, and even if they were
improper, they didn’t constitute reversible prosecutorial
misconduct.
¶ 71 It doesn’t misstate the law to distinguish between proof
beyond a reasonable doubt and proof beyond all doubt. See People
v. Pettigrew, 2020 COA 46, ¶ 20 (“It is not reversible error for a
court to distinguish the fictional ‘beyond a shadow of a doubt’
standard from the constitutionally mandated beyond a reasonable
doubt standard.”), aff’d on other grounds, 2022 CO 2. Though
inartful, this is the essence of the prosecutor’s statement. Further,
the prosecutor balanced out the statement by informing the jury
that by lowering the burden of proof, “the risk of someone being
convicted when they’re innocent rises.” We therefore conclude that
the statement, particularly when viewed in context, wasn’t
improper.
35 6. Whether the Prosecution Improperly Invoked Religious Themes
¶ 72 Peters next contends that the prosecutor “improperly appealed
to the passions and sympathies of the jury by invoking religious
themes during closing argument.” We disagree that the prosecutor
acted improperly.
¶ 73 During cross-examination of Peters, the prosecutor questioned
Peters about text messages that he had sent to M.P., and the
[Prosecutor:] Sir, I’m going to leave with kind of one last kind of line of questioning. It goes back to the text messages. You said in there numerous times, “I will come as a thief in the night”?
[Peters:] Yes.
[Prosecutor:] With regards to those statements, I also noticed in there that talked about another Bible quote and it was, “I thought you were a virtuous wife,” quoting Proverbs 31?
[Peters:] Yeah.
[Prosecutor:] And when you made the comments of a thief in the night, you also specifically mentioned that, “Like a thief in the night, the Bible says.”
[Peters:] Okay.
36 [Prosecutor:] What’s that a reference to?
[Peters:] About the time when God’s coming back, Jesus.
[Prosecutor:] Right. It is a reference to the second coming of Christ where he will come when nobody is expecting —
[Peters:] I don’t need a lesson on the Bible from you.
[Prosecutor:] I’m asking you whether or not you agree with this.
[Peters:] Excuse me?
[Prosecutor:] I’m asking you what your opinion is. Isn’t it true that thief in the night refers to the second coming of Christ; when Christ will come when nobody is expecting it and pass judgment upon all of the sinners?
[Defense Counsel:] Objection, Your Honor. That’s a mischaracterization of the rapture. It also has no relevance about what the Bible teaches.
THE COURT: I’m going to permit the question to be posed to this witness if that’s what he believes the passage is referencing, given that this witness has indicated he made reference to the passage.
[Peters:] I wasn’t giving it all the thought you just gave it, put it that way.
37 ¶ 74 During closing arguments, the prosecutor discussed the “thief
in the night” text message:
And like much of his testimony the other day, he just thinks this was a little bit of ranting. Doesn’t know what it means. But when I asked him specifically, he agreed with me and said this phrase is about the second coming of Christ where He shall pass judgment upon all those, and He shall come in the middle of the night like a thief in the night.
And we know that he knows his Bible because he actually said to me, You are going to lecture me about the Bible? Meaning, he knows about it. But when he’s asked by me and asked by you, What did you mean when you said this, he refused to say. He said, I don’t know. Folks, that was not the real Mark Peters. This is the real Mark Peters.
So he came when they didn’t expect it. When they didn’t know it was coming. Sneaking up on their home. And instead of coming cloaked in night in darkness, he came cloaked with a wig and pamphlets. Very cleverly done. So that he could turn his head. They wouldn’t know it was him and just think it was [a] roofer canvasser, which is interesting because they all work in the roofing business. He knew exactly what he was doing. And he passed judgment fulfilling his own words.
Peters didn’t object to this argument.
38 b. Application
¶ 75 Prosecutors “must avoid arguments that are calculated to
appeal to jurors’ biases and prejudices.” People v. Nardine, 2016
COA 85, ¶ 46. Because religion may appeal to a juror’s biases and
prejudices, it’s improper for the prosecution to appeal to the jurors’
religious beliefs. See id. Further, it is improper for the jury to
consider Bible passages when deliberating on a case. See People v.
Harlan, 109 P.3d 616, 631 (Colo. 2005) (upholding trial court’s
decision to vacate defendant’s death sentence after jurors
considered extraneous Bible passages).
¶ 76 Peters contends that by questioning Peters about this Bible
passage and later referring to the passage in closing argument, the
prosecutor “improperly encouraged the jury to consider religious
themes” and “improperly appealed to the passions and sympathies
of the jury.” But neither the prosecutor’s questioning of Peters nor
his statements during closing argument were designed to appeal to
the religiosity or passions of the jurors. Further, the Bible passage
wasn’t extraneous to the case because the text messages at issue
were admitted into evidence and the message indicates that Peters
was indeed referencing the Bible when he sent M.P. the messages.
39 Thus, the prosecutor’s questioning and discussion of the Bible
reference by Peters in his messages, when viewed in context,
weren’t improper.
7. Whether it was Improper for the Prosecution to Request the Jury to Hold Peters Accountable
¶ 77 Peters next contends that the prosecutor acted improperly by
asking the jury to hold Peters accountable. Again, we disagree.
¶ 78 During closing statements, the prosecutor argued as follows:
This is not a tragic accident. Please, do not treat it as such. And hold [Peters] accountable for the crimes he has committed of murder with intent and after deliberation, of kidnapping [R.Y.], of stalking [M.P.], trying to break into her home.
Hold this man accountable. Don’t let him minimize this as much as he wants to. Because you know the real . . . Mark Peters. You know who he is. Not the mellow guy he claimed to be.
Peters didn’t object to this comment.
¶ 79 During closing argument, a prosecutor is given wide latitude.
People v. Rhea, 2014 COA 60, ¶ 46. But a prosecutor should limit
argument to “evidence and reasonable inferences to be drawn
40 therefrom on the issue of whether the prosecutor has proved guilt
beyond a reasonable doubt.” Nardine, ¶ 35. And “[a] prosecutor
may not use arguments calculated to inflame the passions and
prejudices of the jury, denigrate defense counsel, misstate the
evidence, or assert a personal opinion as to the credibility of
witnesses.” Id.
¶ 80 Because of these limitations, divisions of this court have
deemed arguments asking a jury to “hold a defendant accountable”
when made in a context that could “mislead the jury from its duty
to decide the charges,” Carian, ¶¶ 57, 58, or arguments that
“pressure jurors to ‘do justice’ for a victim,” People v. Buckner, 2022
COA 14, ¶ 42, to be improper. But here the prosecutor made the
argument after going through the elements of the offenses and
arguing how the evidence presented at trial satisfied each element
of each offense. And the prosecutor didn’t argue that the jury
should hold Peters accountable for what he did to a sympathetic
victim, but that it should hold him accountable for the crimes he
committed. Simply put, an accountability argument isn’t improper
when made in the context of arguing that the evidence established
the defendant’s guilt. People v. Tran, 2020 COA 99, ¶ 68. Because
41 that’s the argument the prosecutor made, we conclude that it
wasn’t improper.
D. Cumulative Error
¶ 81 Peters contends that he was deprived of a fair trial because of
cumulative errors. We disagree.
¶ 82 Although errors may be harmless or not affect the defendant’s
substantial rights in isolation, “reversal will nevertheless be
required when ‘the cumulative effect of [multiple] errors and defects
substantially affected the fairness of the trial proceedings and the
integrity of the fact-finding process.’” Howard-Walker v. People,
2019 CO 69, ¶ 24 (quoting People v. Lucero, 615 P.2d 660, 666
(Colo. 1980)). For reversal based on cumulative error, there must
be “cumulative prejudice.” Id. at ¶ 25.
¶ 83 In this case, we discerned error with respect to two instances
of prosecutorial misconduct during voir dire — the generic tailoring
hypothetical and trivializing reasonable doubt — and assessed the
hearsay challenge to Sergeant Smith’s testimony about R.L.’s
statements for harmlessness. But even taking these three
instances of error or assumed error together, we don’t perceive
cumulative prejudice for largely the same reasons we found the
42 alleged errors to be individually harmless. Both of the instances of
prosecutorial misconduct occurred during voir dire, were remedied
by proper instructions from the court, and were never referenced
again during the course of a nine-day trial. And Sergent Smith’s
challenged testimony was cumulative of R.L.’s testimony. Moreover,
the two instances of prosecutorial misconduct and the one assumed
evidentiary error were independent and didn’t compound one
another. Thus, reversal on the basis of cumulative error isn’t
E. Constitutionality of Peters’s Sentence
¶ 84 Peters contends that we must vacate his sentence for LWOP
because it’s cruel and unusual under both the United States and
Colorado Constitutions. In advancing this contention, Peters asks
us to conclude that a sentence of LWOP for felony murder is
categorically forbidden under the United States and Colorado
Constitutions. The People dispute whether this issue is preserved
for our review. But even if Peters preserved this argument, we
aren’t persuaded that it merits reversal.
¶ 85 At the time Peters appealed his judgment, our supreme court
had not yet determined whether an LWOP sentence for felony
43 murder is categorically unconstitutional. But recently our supreme
court held that under the Eighth Amendment and article II, section
20 of the Colorado Constitution, “an LWOP sentence for felony
murder for an adult offender is not categorically unconstitutional.”
Sellers v. People, 2024 CO 64, ¶¶ 2, 37. We are bound by this
determination. See People v. Cox, 2021 COA 68, ¶ 8. Thus, we
can’t conclude that the trial court erred by sentencing Peters to
LWOP.
III. Disposition
¶ 86 The judgment and sentence are affirmed.
JUDGE BROWN and JUDGE MOULTRIE concur.