Peo v. Schuette

Opinion

23CA2074 Peo v Schuette 08-20-2026 COLORADO COURT OF APPEALS

Court of Appeals No. 23CA2074 Adams County District Court No. 21CR387 Honorable Jeffrey Smith, Judge

The People of the State of Colorado, Plaintiff-Appellee, v. William Paul Schuette, Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV

Opinion by JUDGE SCHOCK

Welling and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced August 20, 2026

Philip J. Weiser, Attorney General, Grant R. Fevurly, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Maya Arriaga Martin, Alternate Defense Counsel, Lakewood, Colorado, for Defendant-Appellant

¶1 Defendant, William Paul Schuette, appeals his conviction and sentence for second degree murder. He argues that (1) the prosecution committed misconduct in opening statement and closing argument; (2) the district court erred by rejecting his tendered theory of defense jury instruction; and (3) his twenty- eight-year sentence is grossly disproportionate. We affirm.

I. Background

¶2 Early one morning, a group of men, including the victim, broke into a convenience store located on the bottom floor of an apartment complex where Schuette lived with his girlfriend and a roommate. Two of the men broke the window and entered the store to take various items, including cigarettes, lighters, and cash, while the victim waited in the driver’s seat of a vehicle parked out front.

¶3 Schuette testified at trial that his girlfriend woke him up and told him somebody was in their home. He heard glass shattering and became “extremely scared, frightened[,] and alarmed.” There had recently been other “break-ins and attempted thefts” in the neighborhood — including of the convenience store and of vehicles belonging to Schuette, his girlfriend, and his roommate. And the day before, someone had “shook the door handle” to Schuette’s

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apartment, “trying to get in,” and someone else had tried to break into the apartment upstairs or “kick in the door extremely hard.”

¶4 When Schuette woke up, he grabbed his rifle, loaded it, and walked out of his apartment onto a stairway landing outside. Below, he saw the victim’s vehicle backed into a parking space in front of the convenience store. He aimed his rifle at the vehicle and yelled for them to “stop.” He then heard “glass and some footsteps to [his] right,” so he looked in that direction but saw no one.

¶5 According to Schuette, when he looked back at the vehicle, he saw the driver reaching into the passenger seat and “jerking” as if he was going to shoot him. Believing the driver had “pull[ed] a gun,” Schuette fired four shots at the vehicle, killing the driver.

¶6 Schuette was charged with first degree murder after deliberation. The prosecution’s theory at trial was that Schuette was angry about the ongoing crime in the neighborhood and the inadequate police response, so he had decided to “take the law into his own hands” and shoot the next person who committed a crime. The defense argued that Schuette had acted in self-defense.

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¶7 The jury did not convict Schuette of first degree murder but convicted him of the lesser included offense of second degree murder. Schuette was sentenced to twenty-eight years in prison.

II. Prosecutorial Misconduct

¶8 Schuette contends that the prosecution committed reversible misconduct by (1) misrepresenting the anticipated evidence of deliberation in opening statement; (2) inflaming the passions of the jury; and (3) appealing to the jury’s emotions. We disagree.

A. Additional Background

¶9 As noted above, the prosecution’s primary theory of deliberation was that Schuette had decided to commit the murder because he was angry about the crime in his neighborhood and the inaction by police. This became a central theme of the prosecution’s opening statement, which it introduced as follows:

[Schuette] was pissed. He was angry. This week, you’ll hear him repeatedly tell multiple people he was upset that crime was happening in his neighborhood and [the police department] was doing nothing about it.

So during the eight months [Schuette] lived in that apartment, he came up with his own plan.

He was thinking, he was plotting, and he made up his mind. The next person that came into his neighborhood and committed a crime, he

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was going to take the law into his own hands.

And unfortunately for [the victim], he was on the receiving end of that bullet.

¶ 10 The prosecution repeated several variations on this theme throughout opening statement, including the following:

[W]hen that glass shattered and the store’s alarm started going off, that was the signal for [Schuette]. That was the moment he had been waiting for this entire time.

. . . [Schuette] was pissed and he was ready to go. . . .

....

The evidence you’re going to hear this week is several statements that [Schuette] made to law enforcement, that he was pissed and scared, people kept breaking in, cars were getting broken into, [the city] wasn’t doing anything.

Those were sentiments that he was contemplating, thinking about, plotting. [The city] is not going to do anything, he is. He’s pissed off, he’s had enough. . . .

. . . [Schuette] woke up ready to kill. He had made that decision in his head, that when that moment came, he was ready and he was going [to] do what he needed to do.

¶ 11 Consistent with this theory, the prosecution characterized Schuette as a “vigilante” and told the jury multiple times that Schuette had made himself “judge, jury, and executioner”:

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[The victim] lost his life because [Schuette]

decided that he was judge, jury, and executioner. [The victim] lost his life because [Schuette] thought he was the law.

....

In [Schuette’s] world, deadly vigilante justice is perfectly reasonable. And in [Schuette’s]

world, the punishment for stealing cigarettes is a death penalty. . . .

....

. . . [Schuette] took the law into his own hands and repeatedly pulled the trigger resulting in [the victim’s] death.

....

. . . [Schuette] believes that he’s judge, jury, and executioner, but again, in this courtroom, vigilantism is not a legal defense. In this courtroom, stealing cigarettes does not come with a death penalty. The judge is sitting right here, you jurors are sitting where you are, and there’s certainly no executioner for any crime in Colorado, especially theft.

[Schuette] is getting his day in court for his crime, but [the victim] will never get his day in court because of what [Schuette] did.[1]

¶ 12 Then, in closing argument, the prosecution asked the jury to “take [the] evidence, work together, and come up to a decision that

1 The prosecution made similar comments during closing argument.

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this, you as our community, is telling you is okay here in Adams County.” In addressing the lesser included offenses of manslaughter and criminally negligent homicide, the prosecution told the jury that “to find [Schuette] guilty of those charges willfully diminishes his conduct out there in those early morning hours.”

B. Standard of Review

¶ 13 We apply a two-step analysis to claims of prosecutorial misconduct. Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010). We first determine “whether the prosecutor’s questionable conduct was improper based on the totality of the circumstances.” Id. If it was, we then consider whether that conduct warrants reversal. Id.

¶ 14 Because Schuette did not object to the challenged remarks in the district court, we review them for plain error. People v. Robinson, 2019 CO 102, ¶ 19. Under this standard, prosecutorial misconduct warrants reversal only if it was “flagrantly, glaringly, or tremendously improper” and “so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction.” Id. (citation omitted).

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C. Misrepresentation of the Evidence

¶ 15 Schuette first argues that the prosecution misstated the anticipated evidence in opening statement by asserting that he had plotted to kill the next person who committed a crime in his neighborhood. He highlights his own testimony and statements to police indicating that he shot the victim because he was scared.

¶ 16 During opening statement, the prosecution may “refer to evidence that subsequently will be adduced at trial and draw inferences from that evidence.” People v. Estes, 2012 COA 41, ¶ 23. But the opening statement may not go beyond “the facts that the [prosecution] intends to prove at trial.” People v. Wallace, 97 P.3d 262, 269 (Colo. App. 2004). When the evidence at trial fails to support the prosecution’s opening statement remarks, reversal may be required “only on proof of bad faith and manifest prejudice.” People v. Bowles, 226 P.3d 1125, 1132 (Colo. App. 2009).

¶ 17 We do not view the prosecution’s statements as flagrant or glaring misrepresentations of the anticipated evidence. The prosecution presented evidence at trial that (1) Schuette talked about the crime in the neighborhood, including the prior burglary of the convenience store, immediately before telling police he shot the

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victim; (2) Schuette later told police that he was “so pissed off and scared”; (3) Schuette’s girlfriend and roommate referred to the crime in the neighborhood when talking to police about the shooting; (4) Schuette’s girlfriend told police Schuette “woke up ready” (though she testified at trial that she meant he “[w]oke up ready to make sure nobody was in the house”); (5) Schuette grabbed his gun and went outside immediately upon hearing the break-in; and (6) Schuette shot the victim forty-eight seconds after waking up.

¶ 18 It also appears from the record that Schuette’s girlfriend told a detective the day of the shooting that Schuette was “just tired of it.” Although that statement did not come in at trial because the girlfriend denied making it, there is no indication that the prosecution acted in bad faith in believing that it would. See People v. Jacobs, 499 P.2d 615, 617 (Colo. 1972) (explaining that, absent bad faith, the failure of evidence to “fulfill the expectations of counsel in opening statement” does not constitute reversible error).

¶ 19 It is true that the prosecution did not present any direct evidence that Schuette had “plot[ted]” to kill the next person who committed a crime in the neighborhood — and we tend to agree that this theory was somewhat of a stretch. But rarely is there direct

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evidence of deliberation and intent. See People v. Sanchez, 253 P.3d 1260, 1262 (Colo. App. 2010). Rather, those elements are generally proved through circumstantial or indirect evidence, such as evidence of motive and the circumstances surrounding the killing. Id. The prosecution was entitled to draw inferences as to Schuette’s state of mind from the facts expected to be presented at trial. See Estes, ¶ 23. And given Schuette’s expressed frustration about recent crime and the immediacy with which he responded to another apparent crime by shooting the perceived perpetrator, we cannot conclude that the inference the prosecution drew — that he was acting on a predetermined plan — was an unreasonable one. Nor do we see any indication of bad faith in the prosecution urging the jury to make that inference. See Bowles, 226 P.3d at 1132.

¶ 20 Moreover, in light of the jury’s failure to convict Schuette of first degree murder, we perceive no manifest prejudice. See id. The prosecution’s remarks about Schuette’s “plan” to kill the next lawbreaker all went to the deliberation element of the first degree murder charge. See § 18-3-102(1)(a), C.R.S. 2025. By acquitting Schuette of that charge, the jury apparently rejected the prosecution’s theory. The prosecution’s statements about

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Schuette’s “plan” therefore do not cast doubt on the second degree murder charge for which Schuette was convicted — which has no such deliberation requirement. See § 18-3-103(1)(a), C.R.S. 2025; Robinson, ¶ 19; cf. Moore v. People, 925 P.2d 264, 267 (Colo. 1996) (holding that challenge to jury instruction on greater offense was moot because the defendant was acquitted of that charge).

D. Inflaming Passions of Jury

¶ 21 Schuette also asserts that the prosecution improperly inflamed the passions of the jury by calling him “judge, jury, and executioner” and saying the victim was killed for stealing cigarettes.

¶ 22 The prosecution may properly employ rhetorical devices in opening statement and closing argument. People v. Manyik, 2016 COA 42, ¶ 27; People v. Ortega, 2015 COA 38, ¶ 52. But in doing so, it may not use tactics calculated to inflame the passions and prejudices of the jury. People v. Salazar, 2023 COA 102, ¶ 50.

¶ 23 We do not perceive the prosecution’s comments as crossing that line, at least not flagrantly or glaringly. See Robinson, ¶ 19. As noted above, the prosecution’s theory — which was anchored in the evidence — was that Schuette killed the victim because he broke into the convenience store. Though embellished with rhetorical

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flourish, the challenged statements were fundamentally an expression of that theory. See People v. Rodriguez, 2021 COA 38M,

¶ 31 (explaining that prosecution has “wide latitude” to “employ rhetorical devices and engage in oratorical embellishment and metaphorical nuance” (citations omitted)). The phrase, “judge, jury, and executioner” was a metaphorical description of Schuette deciding the victim had committed a crime and killing him for it. And the victim’s crime was, at least in part, stealing cigarettes.

¶ 24 Thus, taken in context, the prosecution’s comments were appropriately anchored in the evidence and the elements of the offense. See Salazar, ¶ 51. To the extent they added rhetorical emphasis, we do not view them as an improper attempt to “induce the jury to determine guilt on the basis of passion or prejudice” or to “inject[] irrelevant issues into the case.” Rodriguez, ¶ 31.

E. Appeals to Emotion

¶ 25 Schuette next argues that the prosecution improperly appealed to the jury’s emotions by (1) urging the jury to decide “as our community” that what Schuette did is not acceptable in that county and (2) asserting that a conviction on the lesser included offenses would “willfully diminish[] [Schuette’s] conduct.”

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¶ 26 The prosecution must not make comments designed to appeal to the jury’s emotions. See People v. Marko, 2015 COA 139, ¶ 221, aff’d on other grounds, 2018 CO 97. Nor may the prosecution “appeal to the jury to consider the wishes of the community in reaching a verdict.” Id. (citation omitted); see also Ortega, ¶ 54 (“[A] ‘prosecutor may not urge jurors to convict a criminal defendant in order to protect community values, preserve civil order, or deter future lawbreaking.’” (citation omitted)).

¶ 27 We agree with Schuette that the prosecution’s comments were arguably improper. While the People contend that the first comment was simply a reference to the “difficult jury deliberation process,” the comment went further than that by reminding the jury that it was acting as “our community.” To the extent the comment insinuated that the jury represented the community and needed to take a stand against Schuette’s conduct on behalf of that community, it was improper. See Marko, ¶¶ 221-222; Ortega, ¶ 54.

¶ 28 We also do not condone the prosecution’s statement that, by convicting Schuette of a lesser offense, the jury would be “willfully” diminishing Schuette’s conduct. See People v. Conyac, 2014 COA 8M, ¶ 147 (“Prosecutors may not pressure jurors by suggesting that

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guilty verdicts are necessary to do justice . . . .”). The jury’s role is to find the facts and apply the law, as instructed by the district court, not to assess the seriousness of the defendant’s conduct.

¶ 29 But even assuming these comments were improper, they do not amount to plain error. Both comments were brief — one sentence each — and neither was a central theme of the prosecution’s argument. See Ortega, ¶ 55 (holding that urging jury to protect community values was harmless where it “was an isolated incident in an otherwise proper closing argument” (citation omitted)); Marko, ¶¶ 219, 223 (holding that multiple express references to the jury serving as “representatives of the community” were not plain error where they were “a small part” of the closing argument). Thus, in context of the entire argument, they did not “undermine[] the fundamental fairness of the trial itself” or “cast serious doubt on the reliability” of the conviction. Robinson, ¶ 19.

III. Theory of Defense Instruction

¶ 30 Schuette next contends that the district court erred by rejecting most of his tendered 599-word theory of defense jury instruction in favor of a shortened version that tracked the first three sentences of the tendered instruction. We disagree.

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A. Additional Background

¶ 31 Schuette’s theory of defense at trial was that he had shot the victim in self-defense because he reasonably believed that the victim had reached for a gun and was about to shoot him. Schuette’s counsel tendered a theory of defense instruction that was 599 words and spanned a page and a half. It began as follows:

The Defense contends that Mr. Schuette is not guilty of Murder in the First Degree — After Deliberation and With Intent. Mr. Schuette acted in self-defense from what he reasonably believed to be the use of imminent use of unlawful physical force by [the victim] and/or his associates. Mr. Schuette used a degree of force which he reasonably believed to be necessary to defend himself.

¶ 32 The tendered instruction continued with a detailed recitation of the facts from Schuette’s point of view, including (1) the circumstances of the convenience store break-in; (2) Schuette’s actions upon waking up; (3) Schuette’s observation of the victim reaching over the passenger seat and twisting toward the window; (4) Schuette’s belief that “his life was in danger” and “fir[ing] [of] his rifle to protect himself”; (5) the presence of return fire from the victim’s associate; (6) Schuette’s actions after the shooting; and (7) a summary of contemporaneous 911 calls by eye witnesses.

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¶ 33 The prosecution objected, and the district court declined to give the entire tendered instruction. Though recognizing that the defense was “entitled to a theory of defense instruction,” the court reasoned that “[o]utside of the first couple of sentences . . . we’re well beyond a theory of defense” and “just arguing and stating facts.” It proposed the following modified instruction based on the first three sentences of the tendered instruction, with minor edits:

Mr. Schuette contends that he is not guilty of murder in the first degree. Mr. Schuette contends that he acted in self-defense from what he reasonably believed to be the use or imminent use of unlawful physical force by [the victim] and/or his associates. Mr.

Schuette contends that he used a degree of force which he reasonably believed to be necessary to defend himself.

¶ 34 Schuette’s counsel objected to the modified instruction on the ground that it “pare[d] the instruction down to the point” that it did not mention the facts of the case. She argued that the modified instruction “almost reiterates the [model] instruction [for self- defense]. And that’s not the purpose of the theory of defense.”

¶ 35 The district court overruled the objection and gave the modified instruction as proposed, noting that Schuette could raise the facts supporting the theory of defense during closing argument.

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B. Applicable Law and Standard of Review

¶ 36 A defendant is entitled to an instruction embodying their theory of the case “if the record contains any evidence to support the theory.” People v. Nunez, 841 P.2d 261, 264 (Colo. 1992). Such an instruction must be “general and brief, and must explain the evidence and its legal effect.” People v. Bruno, 2014 COA 158, ¶ 19.

¶ 37 The district court may refuse to give a theory of defense instruction that is “argumentative, contains errors of law, merely reiterates portions of the evidence, or is encompassed within the other instructions.” People v. Martinez, 2020 COA 141, ¶ 82 (citation omitted). If the court denies a tendered instruction, it has “an affirmative obligation to cooperate with counsel either to correct the . . . instruction or to incorporate the substance of such an instruction into an instruction drafted by the court.” Bruno, ¶ 19.

¶ 38 We review the district court’s modification of a tendered theory of defense instruction for an abuse of discretion, meaning we will reverse only if the decision is manifestly arbitrary, unreasonable, or unfair. Martinez, ¶ 79; People v. Omwanda, 2014 COA 128, ¶ 39. A court does not reversibly err by giving a modified instruction “if the

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instructions as a whole and the argument of counsel adequately convey a defendant’s theory to the jury.” Bruno, ¶ 19.

C. Analysis

¶ 39 The district court did not abuse its discretion by rejecting Schuette’s theory of defense instruction and giving its modified version instead. The defense-tendered instruction was neither “general” nor “brief.” Id. Instead, it offered a lengthy, detailed, and somewhat argumentative recitation of Schuette’s version of the facts, highlighting the evidence that Schuette deemed most favorable. See People v. Weiss, 717 P.2d 511, 512 (Colo. App. 1985) (holding that district court properly rejected two-page theory of defense instruction containing “detailed recitation of the facts in evidence”). Schuette was entitled to an instruction briefly explaining the basis for his self-defense claim. See Martinez, ¶ 81. But he was not entitled to an instruction that “unduly emphasized his trial testimony” and “‘merely reiterate[d] portions of the evidence’ that were favorable to him.” Id. at ¶ 85 (citation omitted); see also Weiss, 717 P.2d at 512 (“The improper emphasis of particular evidence in an instruction is not favored.”).

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¶ 40 The district court’s modified instruction accurately captured the thrust of Schuette’s theory of defense — that he had acted in self-defense from the imminent use of force by the victim or his associates — while excising the superfluous recapitulation of the facts. See Martinez, ¶ 86. Indeed, the court used the first three sentences of the tendered instruction almost verbatim. In doing so, the court “correct[ed]” the tendered instruction and “incorporate[d] [its] substance” into the modified one. Bruno, ¶ 19. To the extent Schuette asserts that the district court was obligated to do more to “cooperate with [defense] counsel” in crafting the instruction, we are not persuaded. Id. Other than a general assertion that the instruction should include “facts,” defense counsel did not identify any particular additional facts that should have been included.

¶ 41 Moreover, defense counsel thoroughly recounted Schuette’s version of the facts in closing argument — including the facts and evidence that had been excised from the tendered instruction. Thus, in light of the record as a whole, the jury was “adequately informed of [Schuette’s] theory of defense.” Martinez, ¶ 80.

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IV. Proportionality of Sentence

¶ 42 Schuette lastly argues that his twenty-eight-year sentence is grossly disproportionate to his second degree murder offense, and he asks us to remand for an extended proportionality review. Consistent with People v. Crawley, 2024 COA 49, we disagree.

A. Applicable Law and Standard of Review

¶ 43 When a defendant challenges the proportionality of a sentence, the court must first conduct an abbreviated proportionality review, comparing the gravity or seriousness of the offense with the harshness of the penalty to determine whether the sentence gives rise to “an inference of gross disproportionality.” Wells-Yates v. People, 2019 CO 90M, ¶¶ 7, 8, 11. Ordinarily, assessing the gravity or seriousness of an offense requires a fact-based inquiry into the “harm caused or threatened to the victim or society” and “the culpability of the offender.” Id. at ¶ 12 (citation omitted). But when an offense is per se grave or serious — meaning it is “grave or serious in every potential factual scenario” — the court skips the first step of the analysis (gravity or seriousness) and proceeds directly to the harshness of the penalty. Id. at ¶¶ 13, 62, 63.

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¶ 44 We review de novo whether a sentence raises an inference of gross disproportionality. Id. at ¶ 35.2 B. Analysis

¶ 45 As Schuette acknowledges, a division of this court has concluded that second degree murder is a per se grave and serious offense. Crawley, ¶ 22. Schuette concedes this point, and we agree for the reasons stated in Crawley. Id. at ¶¶ 17-23. We therefore may “skip the fact-focused gravity or seriousness analysis and proceed directly to the harshness of the penalty.” Id. at ¶ 23.

¶ 46 In Crawley, the division held that the defendant’s forty-eight- year sentence — the statutory maximum — was “not unduly harsh when compared to the gravity and seriousness of second degree murder.” Id. at ¶ 27. Schuette’s twenty-eight-year sentence — a sentence below the midpoint of the sixteen- to forty-eight-year statutory range — is just over half that. See § 18-1.3- 401(1)(a)(V.5)(A), (8)(a)(I), C.R.S. 2025; § 18-1.3-406(2)(a)(II)(B),

2 Schuette did not challenge the proportionality of his sentence in

the district court, so the parties agree that the issue should be reviewed for plain error under People v. Walker, 2022 COA 15, ¶ 60. But because we discern no error, we need not address the standard of reversal. See People v. Carter, 2015 COA 24M-2, ¶ 29.

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C.R.S. 2025; § 18-3-103(3)(a), (4), C.R.S. 2025. Thus, affording “great deference” to the legislature’s determination of the appropriate penalty, and recognizing the gravity of second degree murder, we conclude that Schuette’s sentence does not raise an inference of gross disproportionality. Wells-Yates, ¶ 62; cf. People v. Duran, 2025 COA 34, ¶ 41 (holding that twenty-two-year sentence for extreme indifference first degree assault did not raise an inference of gross disproportionality).

¶ 47 Schuette urges us to consider his “actual culpability” and conclude that the facts of this case cannot justify his sentence. But when an offense is per se grave or serious, we do not consider the circumstances of the offense because, by definition, there is “no set of circumstances” where the defendant’s conduct and culpability are not grave and serious. People v. Kennedy, 2025 CO 63, ¶ 18 (citation omitted). And even if we were to consider Schuette’s lack of criminal history, it would not make his sentence unduly harsh for the grave offense he committed in this case. See Crawley, ¶ 26.

V. Disposition

¶ 48 The judgment is affirmed.

JUDGE WELLING and JUDGE LUM concur.