AI Case Brief
Generate an AI-powered case brief with:
📋Key Facts
⚖️Legal Issues
📚Court Holding
💡Reasoning
🎯Significance
Estimated cost: $0.10–$0.50 per brief, depending on opinion length and retries
Full Opinion
22CA1445 Peo v Mathews 11-13-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1445
Elbert County District Court No. 18CR18
Honorable Gary M. Kramer, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
David Scott Mathews,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division II
Opinion by JUDGE FOX
Brown and Meirink, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 13, 2025
Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, John P. Finnegan, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, David Scott Mathews, appeals his convictions for
second degree assault and obstruction of telephone service. We
affirm.
I. Background
¶2 The night of February 5, 2018, Elbert County 911 operators
received a call from Mathews, who said he needed to leave his home
and needed a “buffer” but that nothing was going on; he ultimately
declined assistance. The dispatch operator returned Mathews’ call,
and he repeated that deputies were not needed. Given the unusual
nature of the calls, Deputy Michael Saunders went to the home,
arriving approximately twenty minutes after the first 911 call.
When he arrived, Mathews was on the porch. As Saunders
approached, Mathews told Saunders he was “no longer needed” and
apologized for calling. But Saunders noticed that Mathews was
“sweating” and saw what seemed to be blood and cuts on his
hands. Fearing that an altercation had occurred, Saunders asked if
anyone else was home. Mathews said his mother, Mary Mathews,1
1 Because of their shared surname, we respectfully refer to Mary
Mathews by her first name in this opinion.
1
with whom he was living at the time, was inside in the bathtub.
Saunders asked if he could check on her, and Mathews agreed.
¶3 Saunders saw “water and blood on the floor leading down the
hallway.” Saunders asked whose blood it was, and Mathews said it
was Mary’s. Saunders testified that, as they entered the home,
Mathews said, “Just shoot me. Kill me. . . . Take me to jail. Kill
me. I deserve it. I hit my mother. Take me to jail.” Mathews was
reportedly calm during this interaction, and Saunders handcuffed
him and sat him in a chair in the kitchen. Mary then came out
“covered in blood” and holding a towel on her head.
¶4 Saunders testified that Mary, who was sixty-three, appeared
“pretty badly” beaten and had a “[four]-inch gash” on her head, she
had a pretty good gash to her nose,” her eyes were “swelling up,”
and she was “bleeding rather profusely.”2 Saunders testified that
Mary said Mathews had “hit” her and “smashed her head on a
hardwood floor over and over,” and Mary believed that Mathews
potentially “snapped” and “may have been drinking that night.”
2 Medical treatment revealed that Mary suffered a “deep” laceration
above her left eye, soft tissue swelling around her eyes and left
cheek, factures to both nasal bones, and a piece of nasal bone
“displaced” on the left side.
2
¶5 On cross-examination, Saunders testified that Mary appeared
unafraid and calm and did not want to press charges against
Mathews, and Mathews did not appear intoxicated. Deputies later
learned that Mary recorded audio of the altercation on her phone,
which we discuss in greater detail below. Because Mary died of
natural causes before trial, her statements were offered at trial
through other witnesses and the recording.
¶6 Mathews was charged with (1) attempt to commit first degree
murder, (2) first degree assault, and (3) obstruction of telephone
service.3 The defense’s theory at trial was that Mathews assaulted
Mary but that the evidence only supported second degree assault
committed under a “sudden heat of passion.” The defense argued
that, after decades of bottling up repressed trauma because Mary
allegedly abused him as a child, Mathews “snapped” when the two
began arguing that night.4 But the defense argued Mathews never
3 The obstruction of telephone service charge was based on
Mathews’ statements in the audio recording indicating that he was
preventing Mary from using her phone.
4 In the recording, Mathews accused Mary of sexually abusing him.
Whether Mary abused him was disputed, but this was not a focus
at trial.
3
intended to kill Mary, that her injuries largely resulted from him
punching her, and he did not hit her head on the floor repeatedly.
¶7 The jury found Mathews guilty of (1) second degree assault but
did not find that he acted upon a provoked and sudden heat of
passion, and (2) obstruction of telephone service. The court also
added three habitual criminal sentence enhancers for Mathews’
prior felony convictions, sentenced him to serve twenty-four years
in the custody of the Colorado Department of Corrections, and
ordered him to pay $2,998 in restitution. This appeal followed.
II. Issues on Appeal
¶8 Mathews raises four issues on appeal. First, he contends that
the district court erred by admitting Mary’s statements to Saunders
at the home because they were testimonial hearsay that violated his
confrontation rights.
¶9 Next, Mathews argues that the court erred by refusing to
admit, under CRE 807, Mary’s statements to a defense investigator
made over a year after the incident. He argues that the statements
demonstrated sufficient circumstantial guarantees of
trustworthiness to be admitted, and the court violated his right to
present a complete defense by excluding them.
4
¶ 10 Third, Mathews contends that the court erred by allowing the
jury unfettered access to the audio recording of the assault during
its deliberations. He argues the recording was a testimonial exhibit,
and providing the recording to the jury allowed it to give the
recording undue weight.
¶ 11 Each of these claims was preserved for appeal, see People v.
Tallent, 2021 CO 68, ¶ 12, and Mathews argues that each alleged
error warrants reversal. His fourth argument is that, even if any of
these errors does not merit reversal in isolation, the combined
alleged errors constitute cumulative error that deprived Mathews of
a fair trial and merit reversal.
¶ 12 The prosecution counters that any presumed error would be
harmless but also contends that there was insufficient evidence to
support a heat of passion theory and that the court’s instruction on
this issue was improper. Because the court did not err, we need
not address this contention. We note, however, that the
prosecution did not preserve this issue for appeal and conceded in
its briefing that “this issue was never litigated.” See Hagos v.
People, 2012 CO 63, ¶ 14.
5
A. Mary’s Hearsay Statements to Saunders
¶ 13 Because Mary died before trial, the prosecution sought to
admit her statements to Saunders through him, contending that
the statements were admissible under CRE 803(2) and 803(3) as
excited utterances and statements of then existing mental,
emotional, and physical conditions. The prosecution also argued
that the statements were nontestimonial because they were part of
Saunders’ efforts to address an ongoing emergency and were
therefore admissible without violating the Confrontation Clause.
¶ 14 The prosecution’s pretrial notice detailed that it sought to elicit
from Saunders Mary’s statements that
[h]er son David had hit her, then smashed her
head on the hardwood floors an unknown
amount of times. He stated nothing to her as
he smashed her head onto the floor, over and
over. She was not sure why he “snapped” but
he did. He was drinking tonight, “maybe that’s
why.”
¶ 15 Mathews objected to this testimony, arguing that the
statements were testimonial and would violate the Confrontation
Clause if admitted because any emergency had ended and
Saunders was investigating the incident. He also argued they were
unreliable as Saunders’ paraphrased statements (rather than
6
Mary’s statements) and that they were not excited utterances or
statements concerning a then existing condition.
¶ 16 In a motions hearing, the court found that the statements
were nontestimonial responses to Saunders’ concerns about Mary’s
medical condition. It found credible Saunders’ testimony during
the hearing that when he arrived at the home, he did not know
what was going on inside, he saw Mathews sweating with blood on
his hands, there was a lot of blood on the floor, and Mathews told
Saunders to shoot him and take him to jail. So Saunders was
concerned that Mary could be seriously injured or dead.
¶ 17 Further, Saunders testified that he was “stunned” by Mary’s
condition when she emerged and asked what had happened before
she made the challenged statements. As such, the court found that
Saunders’ primary purpose in questioning Mary was “to render
medical care.” It also found that the ongoing emergency was not
mitigated by the fact that Mathews was handcuffed and that
Saunders credibly testified that he believed Mary was “in shock and
in pain.” As a result, the statements were nontestimonial.
¶ 18 The court also found that the statements were inadmissible
under CRE 803(3) (then existing mental, emotional, or physical
7
condition) but admissible under CRE 803(2) (excited utterance)
because the totality of the circumstances — the severity of Mary’s
injuries, her “agitated emotional state,” and the brief time between
the injuries and the statements — supported that they were excited
utterances. Further, the assault was “sufficiently startling” to
prevent reflective thought, particularly because Mary was still
suffering from her injuries. Because CRE 803(2) supported their
admission, Mary’s statements had inherent indicia of reliability and
were admissible, and Saunders could share them at trial.
1. Standard of Review and Applicable Law
¶ 19 “We review de novo whether the admission of evidence violates
a defendant’s confrontation right,” People v. Garcia, 2021 CO 7, ¶ 6,
and we review confrontation claims for constitutional harmless
error, Nicholls v. People, 2017 CO 71, ¶ 17. The Sixth Amendment
to the United States Constitution, and article II, section sixteen of
the Colorado Constitution, give every criminal defendant the right to
“be confronted with the witnesses against him.” U.S. Const.
amend. VI; Colo. Const. art. II, § 16; see also Garcia, ¶ 7 n.2
(explaining that the state and federal Confrontation Clauses
“provide equivalent protections and that the analysis under each is
8
the same”). But testimonial statements only implicate the
Confrontation Clause if they are made by witnesses who are
unavailable at trial and whom the defendant did not have a prior
opportunity to cross-examine. See Garcia, ¶ 8.
¶ 20 To determine if a statement is testimonial, courts must
determine “whether, in light of all the circumstances, viewed
objectively, the ‘primary purpose’ of [procuring the statement] was
to ‘creat[e] an out-of-court substitute for trial testimony.’” Id. at ¶ 9
(alterations in original) (quoting Ohio v. Clark, 576 U.S. 237, 245
(2015)). And the United States Supreme Court has explained that
“the relevant inquiry is not the subjective or actual purpose of the
individuals involved in a particular encounter, but rather the
purpose that reasonable participants would have had, as
ascertained from the individuals’ statements and actions and the
circumstances in which the encounter occurred.” Michigan v.
Bryant, 562 U.S. 344, 360 (2011). Courts must also look to “the
statement’s primary purpose when it is made, not its primary
purpose when it is introduced at trial.” Garcia, ¶ 10.
¶ 21 Even if a hearsay statement is nontestimonial and does not
implicate the Confrontation Clause, it must still be admissible
9
pursuant to a specific hearsay exception. Nicholls, ¶ 16. We review
a district court’s evidentiary rulings on hearsay statements “for
abuse of discretion. A trial court abuses its discretion only when its
ruling is manifestly arbitrary, unreasonable, or unfair.” Id. at ¶ 17.
We also review evidentiary rulings for nonconstitutional harmless
error and will reverse an erroneous evidentiary ruling only if it
“affects the accused’s substantial rights.” Id.
¶ 22 CRE 803(2) provides that excited utterances, “statement[s]
relating to a startling event or condition made while the declarant
was under the stress of excitement caused by the event or
condition,” are not excluded under CRE 802.
A hearsay statement is admissible as an
excited utterance if its proponent shows (1) the
occurrence or event was sufficiently startling
to render inoperative the normal reflective
thought processes of an observer; (2) the
declarant’s statement was a spontaneous
reaction to the event; and (3) direct or
circumstantial evidence supports an inference
that the declarant had the opportunity to
observe the startling event.
People v. King, 121 P.3d 234, 237-38 (Colo. App. 2005). District
courts are “afforded wide discretion in determining whether a
10
statement is admissible under the excited utterance exception to
the hearsay rule.” Id. at 238.
2. Application
¶ 23 The transcript of the audio recording from Mary’s phone
indicates that once Mary emerged from the hallway, Saunders
asked her to sit down. After inquiring about her age, he asked, “Do
you want to press charges on your son?” Following a few garbled
exchanges, Saunders asked, “[W]here did this happen . . . ?” He
also testified during the motions hearing that he recalled telling
Mary he would call her an ambulance and asking her how she got
hurt, what happened, and if she was okay before she made the
challenged statements. According to Saunders, Mary seemed
“stunned and injured” and was potentially in shock but did not
show “emotional distress.” Saunders also testified that Mary said
she did not need an ambulance, and she did not want her son to go
to jail. He testified that the conversation with Mary lasted “about
five minutes.”
a. Testimonial Versus Nontestimonial Statements
¶ 24 Under the totality of the circumstances, Saunders’ questioning
was not intended to generate out-of-court statements that could
11
serve as a substitute for trial testimony. See Garcia, ¶ 9. Like the
district court, we conclude that Saunders’ primary purpose was to
address an ongoing emergency, and, viewed objectively, reasonable
participants in Mary and Saunders’ positions would have believed
the questioning was for this purpose. See Bryant, 562 U.S. at 360.
¶ 25 As Mathews points out on appeal, the emergency here is not
quite like the ongoing emergency in Bryant, “where an armed
shooter, whose motive for and location after the shooting were
unknown, had mortally wounded [an individual] within a few blocks
and a few minutes of the location where the police found [the
individual].” Id. at 374. Mathews contends that the situation here
is more akin to Hammon v. Indiana, the companion case to Davis v.
Washington, both of which were published as Davis v. Washington,
547 U.S. 813 (2006), where the Court found a domestic abuse
victim’s statements to police testimonial because when police
arrived and began questioning, “[t]here was no emergency in
progress; the interrogating officer testified that he had heard no
arguments or crashing and saw no one throw or break anything . . .
and there was no immediate threat to [the victim].” Id. at 829-30
(citations omitted). But as the Court pointed out in Bryant,
12
“whether an emergency exists and is ongoing is a highly context-
dependent inquiry.” 562 U.S. at 363.
¶ 26 Here, Saunders’ five-minute conversation with Mary occurred
shortly after he entered the home and saw large amounts of blood
on the floor and Mary with a large wound on her head. She seemed
stunned or in shock, and the full extent of her injuries was unclear.
Thus, while there may not have been the looming public threat
present in Bryant, we cannot say that there was no emergency. Id.
at 375. Saunders faced an unexpected situation and a victim with
serious injuries, and he sought to address what could reasonably
be perceived as a medical emergency.
¶ 27 One of Saunders’ first questions was whether Mary wanted to
press charges. But that alone does not make Mary’s statements
testimonial. “Police officers in our society function as both first
responders and criminal investigators. Their dual responsibilities
may mean that they act with different motives simultaneously or in
quick succession.” Id. at 368. The same goes for victims, who may
have their own “mixed motives when they make statements to the
police.” Id. And, regardless, “whether an ongoing emergency exists
is simply one factor — albeit an important factor — that informs the
13
ultimate inquiry regarding the ‘primary purpose’ of an
interrogation.” Id. at 366.
¶ 28 Ultimately, the circumstances here demonstrate that
Saunders was responding to what could be fairly characterized as a
medical emergency, particularly given the extent of Mary’s injuries.
Further, Saunders testified that Mary seemed “stunned” and was
potentially in shock, despite not exhibiting outward emotional
distress. Mary’s medical condition is important “to the primary
purpose inquiry” because it may “shed[] light on the ability of the
victim to have any purpose at all in responding to police questions
and on the likelihood that any purpose formed would necessarily be
a testimonial one.” Id. at 364-65. A victim’s medical condition also
“provides important context for first responders to judge the
existence and magnitude of a continuing threat to the victim,
themselves, and the public.” Id. at 365.
¶ 29 Finally, Mary made the statements in an informal setting
shortly after the assault, minutes after Saunders arrived and before
medical personnel arrived. See id. at 366. The totality of the
circumstances indicates that the primary purpose of Mary’s
statements was not to serve as an out-of-court substitute for trial
14
testimony and that these statements were nontestimonial. Garcia,
¶ 9.
b. Excited Utterances
¶ 30 We also conclude that Mary’s statements were admissible
under CRE 803(2) as excited utterances. To the first factor —
whether “the occurrence or event was sufficiently startling to render
inoperative the normal reflective thought processes of an observer”
— an assault is a sufficiently startling event. King, 121 P.3d at 237;
CRE 803(2); see People v. Martinez, 18 P.3d 831, 835 (Colo. App.
2000) (“The victim’s injuries are direct evidence that an assault —
clearly a ‘startling event’ — occurred.”). The third factor — whether
“direct or circumstantial evidence supports an inference that the
declarant had the opportunity to observe the startling event” — is
also met. King, 121 P.3d at 237-38. As the victim, there is clearly
sufficient evidence for the inference that Mary had an opportunity
to observe the attack. See Martinez, 18 P.3d at 835.
¶ 31 The most important factor here is the second — whether the
statements were “a spontaneous reaction to the event.” King, 121
P.3d at 237; CRE 803(2). Factors we may consider regarding this
issue include
15
the lapse of time between the startling event or
condition and the out-of-court statement;
whether the statement was a response to an
inquiry; whether the statement is accompanied
by outward signs of excitement or emotional
distress; and the declarant’s choice of words to
describe the startling event or condition.
Compan v. People, 121 P.3d 876, 882 (Colo. 2005), overruled on
other grounds by, Nicholls, 2017 CO 71.
¶ 32 The length of time between the event and the statements is a
crucial consideration. See People v. Vanderpauye, 2023 CO 42,
¶ 47. Here, Mary’s statements were made fifteen to twenty-five
minutes after the attack. But “[t]here is no bright-line time
limitation ‘because the duration of stress will obviously vary with
the intensity of the experience and the emotional endowment of the
individual.’” People v. Stephenson, 56 P.3d 1112, 1116 (Colo. App.
2001) (citation omitted). Compare Martinez, 18 P.3d at 835 (victim’s
statements were excited utterances when made fifteen to twenty
minutes after being removed from the scene while she was still in
pain and in emotional distress), and King, 121 P.3d at 238 (victim’s
statements to an officer over a “two-hour period” were excited
utterances when victim was still “hysterical” at times, bleeding, and
receiving medical treatment), with People v. Pernell, 2014 COA 157,
16
¶¶ 34-35 (although the victim was distraught, her statements to an
officer were not excited utterances when made a day after the
assault because evidence indicated she had engaged in reflective
thought). And while there was some time for Mary to potentially
engage in reflective thought, her statements were made shortly after
the assault and while she was still suffering from serious injuries,
supporting the contention that they were spontaneous reactions.
¶ 33 Regarding the other factors, Mary’s statements were
responsive to Saunders’ questioning, and she was not distraught or
hysterical. But Saunders testified that Mary appeared “stunned” or
in shock, and nothing in her statements plainly indicates that she
engaged in reflective thought. Therefore, these considerations do
not outweigh those indicating that Mary’s statements were
spontaneous. See Pernell, ¶ 34; People v. Hulsing, 825 P.2d 1027,
1031 (Colo. App. 1991); see also King, 121 P.3d at 238 (“[T]he
excited utterance exception extends to statements made in response
to questioning.”).
¶ 34 Overall, the evidence supports that Mary’s statements were
spontaneous reactions to the attack. Even if she was somewhat
calm during Saunders’ questioning, she made the statements
17
shortly after the attack and while she was still in shock and
seriously injured. See Compan, 121 P.3d at 882.
¶ 35 The district court properly found that Mary’s statements were
nontestimonial, and the record supports its decision to admit them
as excited utterances. See Martinez, 18 P.3d at 835 (“If the evidence
supports the trial court’s ruling, we will not disturb it. The trial
court is in the best position to consider the effect of the startling
event on the declarant; thus, it is afforded wide discretion in
determining admissibility under the excited utterance exception.”
(citation omitted)).
B. Mary’s Hearsay Statements to the Defense Investigator
¶ 36 Before trial, Mathews moved to admit Mary’s hearsay
statements made in a phone interview with a defense investigator
and Mathews’ attorney in April 2019, over a year after the attack,
pursuant to the “residual hearsay” exception under CRE 807. The
interview was documented in a report the investigator created and
included statements, for example, (1) that Mary had “some
memories of the day in question” and why they were arguing; (2)
that explained how the assault started; (3) that Mathews punched
her in the face twice, hit her head on the ground, and tried to hit
18
her again, but she blocked the hit; (4) that Mathews was on
medication and may have been drinking that night; (5) that Mary
thought Mathews “had snapped, because initially she believed he
came into her room to just have a conversation, and instead he hit
her”; (6) that explained why Mary recorded the incident; and (7) that
Mary “never thought her life was in danger” and “she did not feel
threatened when [Mathews] said ‘I want to kill you’ because it is
something people always say.”
¶ 37 At a hearing, the defense sought to admit all the statements in
the report through the investigator, save for statements that
(1) Mary “said she never pressed charges against [Mathews]” and
wanted him “to take a deal . . . because she does not want him
spending the rest of his life in prison”; and (2) while Mary “does not
think they need to see each other anymore, she does not want
[Mathews] to spend the rest of his life in jail.” The defense argued
that the statements were necessary — especially after Saunders
testified to Mary’s hearsay statements — and that CRE 807
supported their admission. The prosecution objected.
¶ 38 The court found that the statements lacked sufficient
circumstantial guarantees of trustworthiness for admission under
19
CRE 807. It noted that Mary’s statement that she had “some
memories” of the night of the attack indicated that she did not have
a “clear recollection”; that Mary made the statements “after
[fourteen] months of reflection, realiz[ing] that her son could be
spending the rest of his life in jail” and “clearly didn’t want that to
happen”; and that Mary was simply “a mom trying to save her son.”
¶ 39 The court added that — trustworthiness notwithstanding — to
the extent any statements described the event, they were not the
most probative evidence — the audio recording was. The audio
recording was also more probative of statements made before,
during, and after the assault. Further, the officer’s testimony was
more probative of whether Mathews was drunk that night, if Mary
heard Mathews on the 911 call, and whether Mathews hit her.
Other statements, including why Mary said she was recording the
incident, that she was shocked by the first degree murder charge,
and that Mathews would not try to kill her and had not been violent
before, were irrelevant.
¶ 40 However, the court cautioned that any statements in the
report that contradicted Mary’s other hearsay statements could be
admitted as impeachment of prior inconsistent statements. At trial,
20
the only statement from the report that was admitted (through the
investigator) was that Mary told the investigator that “she went to
her room, and then . . . Mathews came into her room, grabbed her
shirt by the shoulder. She was hit in the face two times, and then
her head hit the ground. He went to hit her one more time, but she
blocked the hit.”
¶ 41 Mathews contends that the court’s decision to exclude Mary’s
statements to the investigator as insufficiently trustworthy or
inadequately probative is reversible error that violated his right to
present a complete defense at trial.
1. Standard of Review and Applicable Law
¶ 42 “Trial courts have considerable discretion in determining the
admissibility of evidence, including whether the residual hearsay
exception applies and whether the evidence has logical relevance.”
People v. Brown, 2014 COA 155M-2, ¶ 18. We therefore review the
district court’s decision to exclude evidence on CRE 807 grounds for
an abuse of that discretion, but “[a]n erroneous evidentiary ruling
may rise to the level of constitutional error if it deprives a defendant
of his . . . right to present a defense or to conduct meaningful cross-
examination on material issues.” Brown, ¶¶ 6, 18.
21
¶ 43 Yet “a defendant’s right to present a defense is violated ‘only
where the defendant was denied virtually his . . . only means of
effectively testing significant prosecution evidence.’” Id. at ¶ 6
(quoting Krutsinger v. People, 219 P.3d 1054, 1062 (Colo. 2009)).
As a result, “when an evidentiary limitation does not deprive a
defendant of his . . . only means of testing prosecution evidence,
reversal is required only if any error substantially influenced the
verdict or affected the fairness of the trial.” Id.
¶ 44 CRE 807 provides that
[a] statement not specifically covered by Rule
803 or 804 but having equivalent
circumstantial guarantees of trustworthiness,
is not excluded by the hearsay rule, if the
court determines that (A) the statement is
offered as evidence of a material fact; (B) the
statement is more probative on the point for
which it is offered than any other evidence
which the proponent can procure through
reasonable efforts; and (C) the general
purposes of these rules and the interests of
justice will best be served by admission of the
statement into evidence.
¶ 45 “In evaluating the trustworthiness of a statement, we examine
the nature and character of the statement, the relationship of the
parties, the probable motivation of the declarant in making the
statement, and the circumstances under which the statement was
22
made.” People v. McFee, 2016 COA 97, ¶ 19. Finally, a statement’s
reliability “should be determined by the circumstances that existed
at the time the statement was made.” Vasquez v. People, 173 P.3d
1099, 1107 (Colo. 2007). “The proponent must establish the
trustworthiness of the statement by a preponderance of the
evidence.” Brown, ¶ 20.
2. Application
¶ 46 We conclude that the district court did not abuse its discretion
by excluding the statements because they did not demonstrate
sufficient circumstantial guarantees of trustworthiness. The record
supports the court’s findings that Mary’s statement that she had
“some memories” of the incident indicated that she did not totally
recall that night, and the long reflection time along with her desire
that Mathews not face a lengthy prison sentence evidenced a motive
for making the statements.
¶ 47 This probable motive for Mary’s statements is crucial because
a declarant’s possible motive to lie undermines the circumstantial
trustworthiness of the statements. Cf. People v. Draper, 2021 COA
120, ¶ 83, overruled on other grounds by, Garcia v. People, 2023 CO
30 (statements had circumstantial guarantees of trustworthiness
23
because victim had no apparent motive to lie when she said she
cheated on her husband and he threatened her before her death);
see also McFee, ¶ 21 (finding circumstantial guarantees of
trustworthiness when the declarant “had no motive to lie”). Here,
the investigator’s report evidences that Mary had a clear motive to
make the statements to protect her son. This is true even if her
original desire not to press charges, expressed to Saunders the
night of the assault, remained consistent with her statements to the
investigator. This probable motive undermines any circumstantial
guarantees of trustworthiness for Mary’s statements.
¶ 48 Further, rather than being spontaneously made to family or
close friends, Mary made the challenged statements over a year
after the attack and before trial, during questioning with a defense
investigator and Mathews’ attorney. Cf. People v. Fuller, 788 P.2d
741, 745-46 (Colo. 1990) (Declarant “made spontaneous statements
to two close friends.”); McFee, ¶ 21 (finding declarant’s statements
trustworthy in part because “they were made spontaneously to
close family members”). She also made the statements a week after
the defense investigator contacted her, so she had prior knowledge
of the conversation and thus time to reflect on what to say.
24
¶ 49 Mathews contends that the court’s focus on Mary having
significant time to reflect is misplaced, arguing that — rather than
undermining the reliability of her statements — it shows that the
potential accuracy of her account increased with time, as evidenced
by the additional detail in her statements compared to those made
to Saunders. But this contradicts Mary’s own statement that she
had only “some memories” of that night, and the additional detail in
her subsequent statements also demonstrates the risk of a probable
motive behind them.
¶ 50 Finally, many statements admitted under the residual hearsay
exception were made before the events in question, which may
evince additional trustworthiness. See McFee, ¶ 23 (Statements
relaying “prior threats were offered to establish the material fact” of
the relationship’s volatility and the defendant’s “motive for the
murder.”); see also Fuller, 788 P.2d at 745-46 (Victim’s statements
before her death that “the defendant kept guns in the house and
threatened her with them” were probative of the defendant’s motive
to kill her.); Brown, ¶¶ 23-24 (Declarant’s statements to sister
before declarant was killed “had particularized guarantees of
trustworthiness and went to [the] defendant’s motive.”).
25
¶ 51 In contrast, Mary’s statements to the investigator occurred
well after the events in question, supporting the possibility that she
may have had a motive for making them. And we must determine
the statements’ reliability from “the circumstances that existed at
the time [they were] made.” Vasquez, 173 P.3d at 1107.
¶ 52 In sum, the district court did not err by excluding Mary’s
statements to the investigator on the grounds that they lacked
circumstantial guarantees of trustworthiness. This threshold issue
alone is sufficient to justify their exclusion, and we therefore need
not address the other criteria required to admit hearsay under CRE
807. And because the evidence was properly excluded, the court
did not violate Mathews’ right to present a defense. See Brown, ¶ 6.
C. The Jury’s Access to the Audio Recording
¶ 53 As mentioned, Mary recorded the attack on her cell phone.
This recording was crucial evidence and a key focus in the case.
¶ 54 A twenty-three-minute excerpt of the recording (which is over
an hour long) was admitted at trial and played for the jury. Parts of
the excerpt were also played and discussed during closing
arguments, and both sides emphasized that the jury should listen
to the recording.
26
¶ 55 After the jury began deliberating, the defense requested that
the court not give the jury unfettered access to the recording,
arguing that DeBella v. People, 233 P.3d 664 (Colo. 2010),
controlled. The defense argued that the jury should only be allowed
to replay the recording once in the courtroom to ensure that the
jury did not give it undue weight. The prosecution, in turn,
contended that DeBella was distinguishable and that both parties
relied on the recording to argue their theories of the case.
¶ 56 The court found that Rael v. People, 2017 CO 67, controlled
and that DeBella did not apply because the recording was
nontestimonial evidence. The court noted that even if DeBella
applied, it would still support giving the jury unfettered access to
the recording, which would aid the jury without unduly prejudicing
Mathews because both sides relied on the recording, and it was the
jury’s role to decide which parts to focus on. The court ultimately
decided that if the jury requested the recording, the court would
allow unfettered access to it during deliberations. The jury asked
for the recording shortly after the court’s ruling, and the court
provided the admitted excerpt.
27
¶ 57 On appeal, Mathews argues that the court failed to ensure
that the jury did not give undue weight to the recording and that
DeBella, not Rael, controls because the recording was testimonial.
Further, he challenges the finding that the recording would not
unduly prejudice him because the defense relied on portions of the
recording only after the court overruled its argument to exclude the
recording. Mathews contends that the alleged error warrants
reversal because it likely influenced the trial’s outcome.
1. Standard of Review and Applicable Law
¶ 58 “[T]he trial court in criminal proceedings has an obligation,
much as it does with regard to the admissibility of evidence
generally, to assure that juries are not permitted to use exhibits in
a manner that is unfairly prejudicial to a party.” Frasco v. People,
165 P.3d 701, 704 (Colo. 2007). We review a district court’s
decision to allow or limit the jury’s access to exhibits during
deliberations for an abuse of discretion because “[c]ontrol over the
use of exhibits during jury deliberations rests firmly within the trial
court’s discretion, and we may not substitute our own judgment for
that of the trial court merely because we would have reached a
different conclusion.” Rael, ¶ 15; see DeBella, 233 P.3d at 666-67.
28
Even if preserved, we may reverse “[o]nly those erroneous rulings
that ‘substantially influenced the verdict or affected the fairness of
the trial.’” DeBella, 233 P.3d at 667 (citation omitted).
¶ 59 In DeBella, a district court provided the jury in a child sexual
assault case with unrestricted access to a “videotape[] of the victim
describing the incidents underlying DeBella’s charges.” Id. at 665-
66. The Colorado Supreme Court held that it was an abuse of the
district court’s discretion to do so without any limiting instructions
or exercise of control and when the court failed to “assess the
potential for undue prejudice.” Id. at 668. The supreme court
reversed the convictions because it had “grave doubts” as to
“whether the jury’s unencumbered access to the tape during its
deliberations adversely affected the fairness of the trial.” Id.
¶ 60 The court noted that “as the only complete recounting of the
assaults, the videotape was the linchpin of the prosecution’s case”
and that “[a]llowing the jury to pore over the tape only marginally
facilitated a comparison between that exhibit and the victim’s trial
testimony, of which jury members only had their memory.” Id. at
669. In comparison to these marginal benefits, unfettered access to
the video posed a heightened danger “of providing the jury with
29
unchaperoned access to only one side of the story” given the
importance of the victim’s credibility to the case. Id.
¶ 61 In Rael, ¶¶ 5, 9-10, by contrast, the jury had unrestricted
access to two video exhibits during deliberations, “one showing the
crime scene and the other a police interview of Rael.” For the crime
scene video — a silent “first-person perspective . . . trip through the
victim’s apartment, from outside the building to inside the bedroom
where the victim’s body lay” — the supreme court held that DeBella
did not apply because it “does not control jury access to non-
testimonial exhibits like the crime scene video.” Id. at ¶¶ 6, 21.
¶ 62 The court noted that DeBella’s “analysis hinged on the nature
of the exhibits at issue, namely, the victim’s videotaped, out-of-
court statements detailing the charged sexual assaults.” Id. at
¶ 22. The concern with such exhibits is that “honoring requests for
access in the jury room to witnesses’ out-of-court statements
effectively puts the witness in that room during deliberations and
creates a risk that the jury will place undue weight or emphasis on
the out-of-court statements.” Id. But this “same danger of undue
emphasis does not inhere in non-testimonial evidence.” Id. at ¶ 23.
30
¶ 63 As for the video interview, the court held that DeBella also
does “not apply to a defendant’s own out-of-court statements.” Id.
at ¶ 35. Thus, while district courts “retain discretionary control
over jury access to such exhibits,” a jury may review videos of a
defendant’s own statements without restriction. Id.; see also People
v. Shannon, 2024 COA 41, ¶¶ 21-23 (recorded conversation between
victim and the defendant in which the defendant admitted to having
sex with the victim while she was underage were properly given to
the jury without restriction during deliberations).
¶ 64 Testimonial statements, as discussed supra Part II.A.1, are
those that, under the totality of the circumstances, objectively
reasonable participants would have believed were made with the
primary purpose of serving as an out-of-court substitute for trial
testimony. See Garcia, 2021 CO 7, ¶¶ 9-10; see also Bryant, 562
U.S. at 360. Some exhibits and evidence may also be testimonial.
See People v. Merritt, 2014 COA 124, ¶¶ 45, 60 (Autopsy report was
testimonial because the “circumstances surrounding the victim’s
death . . . and the ensuing autopsy suggest that the autopsy report
was created primarily for the purpose of gathering evidence to use”
at trial.); cf. Williams v. Illinois, 567 U.S. 50, 84 (2012) (DNA report
31
was nontestimonial when its primary purpose, “viewed objectively,
was not to accuse [the] petitioner or to create evidence for use at
trial” but was instead to locate a suspect “still at large.”), abrogated
by, Smith v. Arizona, 602 U.S. 779 (2024).
2. Application
¶ 65 We conclude that the court did not abuse its discretion by
allowing the jury unrestricted access to the excerpt of the audio
recording because it was not a testimonial exhibit, and it does not
implicate DeBella’s concern about giving the jury “unchaperoned
access to only one side of the story.” 233 P.3d at 669.
¶ 66 We first note that, like in Rael, ¶ 35, and Shannon, ¶¶ 21-23,
the recording contained Mathews’ own statements; thus, it was
within the district court’s discretion to allow the jury unrestricted
access to the recording. The court made this decision after
weighing whether the jury would give the recording undue weight
and allowing argument from both parties on the issue while
considering relevant cases. And it only granted the jury access to
the recording upon request. See Rael, ¶ 35; see also DeBella, 233
P.3d at 669 (District courts have discretion to craft a procedure to
ensure the jury does not use exhibits “in a manner that is unfairly
32
prejudicial,” which may include waiting “for a jury’s request to
review such testimonial exhibits before providing the jury access.”).
¶ 67 But, more fundamentally, the recording is not testimonial
evidence because it was not made with the primary purpose of
serving as out-of-court testimony — it was a tangible exhibit with
verbal components depicting the attack. See People v. Aponte, 867
P.2d 183, 188 (Colo. App. 1993) (A confidential informant video and
transcript of a drug deal were “tangible exhibits with verbal content
which [were] non-testimonial in character because they depict[ed]
the actual commission of the crime itself.”); see also People v.
Mendez, 2017 COA 129, ¶¶ 54-56 (same); Rael, ¶ 23 (citing Aponte
in support of the proposition that a crime scene video was “more
like a non-testimonial, tangible exhibit (such as a still photograph
of the crime scene) than a testimonial one (such as a witness’s
recorded statement)”). And “[j]urors may have access during
deliberations to nontestimonial recordings that depict the event
itself rather than a narration thereof.” People v. Russom, 107 P.3d
986, 989 (Colo. App. 2004) (audio recording of drug sale was
nontestimonial).
33
¶ 68 Furthermore, Mary’s statements to the defense investigator
(which were not admitted at trial) indicate that she did not create
the recording with the intent that it be used at trial. She said she
planned to record Mathews to make a point and told the
investigator she forgot about the recording until after the assault.
See Garcia, 2021 CO 7, ¶ 10 (courts must also look to “the
statement’s primary purpose when it is made”).
¶ 69 The court properly exercised its discretion by allowing the jury
unfettered access to the audio recording, which contained Mathews’
own statements and was nontestimonial. And the court did so after
properly weighing the risks of the jury giving it undue weight by
soliciting arguments from both sides, considering relevant case law,
and awaiting the jury’s request for the recording.
D. Cumulative Error
¶ 70 Mathews finally contends that even if none of the above errors
warrant reversal, the district court’s alleged errors cumulatively
prejudiced him and warrant reversal.
¶ 71 We review claims of cumulative error de novo. Howard-Walker
v. People, 2019 CO 69, ¶ 22. Cumulative error occurs when
“[n]umerous formal irregularities, each of which in itself might be
34
deemed harmless, . . . in the aggregate show the absence of a fair
trial, in which event a reversal would be required.” Id. at ¶ 24
(citation omitted). Cumulative error may warrant reversal 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.” Id. (alteration in original) (citation omitted).
But “cumulative error requires that numerous errors be committed,
not merely alleged.” People v. Conyac, 2014 COA 8M, ¶ 152.
¶ 72 Because we conclude that the district court did not err with
respect to any of Mathews’ three contentions, cumulative error did
not occur. See People v. Valdez, 2017 COA 41, ¶ 51.
III. Disposition
¶ 73 We affirm Mathews’ convictions.
JUDGE BROWN and JUDGE MEIRINK concur.
35
Case Information
- Court
- Colo. Ct. App.
- Decision Date
- November 13, 2025
- Status
- Precedential