Ray v. People, 2019 CO 21

Background

Robert Ray was convicted of being an accessory to murder and of attempted first‑degree murder and first‑degree assault for shootings at a July 4, 2004 Lowry Park melee; he was acquitted of one murder charge and another attempted murder charge. Ray testified and claimed he shot at least one victim in defense of himself and a friend (Owens).
Evidence included eyewitness testimony, a home video of the melee, ballistic evidence, Ray’s own testimony, and a police‑recorded videotaped interview of witness Jeremy Green admitted as a prior inconsistent statement. Green repeatedly said Ray threatened to "kill everybody" in his recorded interview but testified at trial that he had little memory.
The district court instructed the jury on self‑defense/defense of a third person and gave Instruction No. 25, defining when a defendant’s belief is "reasonable and prudent." Ray argued that this instruction improperly shifted the burden of proof.
The district court, relying on pre‑Frasco/DeBella precedent, ordered that the Green videotape and playback equipment go back to the jurors for unfettered access during deliberations over the defense’s objection. Subsequent Colorado precedent (Frasco, DeBella, Jefferson) requires trial courts to exercise discretion before permitting such access.
The court of appeals affirmed. The Colorado Supreme Court granted certiorari on (1) whether the instruction shifted the burden to Ray and (2) whether allowing unrestricted jury access to the Green videotape violated Ray’s rights. The Supreme Court affirmed the court of appeals.

Issues

Issue	Plaintiff's Argument (Ray)	Defendant's Argument (People)	Held
Whether Instruction No. 25 improperly shifted the burden of proof on the self‑defense affirmative defense	Instruction No. 25 required the jury to find preconditions (availability) before the People had to disprove self‑defense, effectively shifting the burden to Ray	Instruction explained the reasonableness element of the defense and did not alter the prosecution’s burden to disprove the defense beyond a reasonable doubt	Court: No error. Instruction explained the statutory reasonableness standard and, in context with repeated, correct burden instructions, did not shift burden to Ray
Whether allowing unfettered jury access to Green’s videotaped interview was an abuse of discretion	Trial court erred by not exercising discretion; unrestricted access risked undue emphasis and violated fair trial rights	Trial court relied on precedent allowing exhibits back to jury; unrestricted access was proper	Court: The trial court erred (relying on later‑overruled case law) in allowing unfettered access, because discretion must be exercised
Whether the error admitting unrestricted access to the videotape was harmless	The error likely affected verdict because the tape was key to intent evidence and prosecution emphasized it	The tape was peripheral to convictions; other strong evidence supported verdicts	Court: Harmless. Comparing the tape to other evidence (eyewitnesses, ballistics, Ray’s gestures/shots), there was no reasonable possibility the error affected the convictions for shootings of Bell and Marshall‑Fields
Standard for reviewing jury access to testimonial exhibits	Trial courts must exercise discretion and record reasons; failure to do so preserves reversible error	Same; but harmlessness depends on role of exhibit in case	Court: Affirmed that trial courts have discretionary control; abuse of discretion occurs when court fails to exercise discretion. Harmlessness assessed by whether the exhibit was the prosecution’s linchpin — it was not here

Key Cases Cited

Lybarger v. People, 807 P.2d 570 (Colo. 1991) (held jury instruction declaring availability of an affirmative defense impermissibly shifted prosecution's burden)
Janes v. People, 982 P.2d 300 (Colo. 1999) (distinguished immunity vs affirmative defense; jury determination of availability can relieve prosecution of burden)
Frasco v. People, 165 P.3d 701 (Colo. 2007) (trial courts retain discretionary control over jury access to exhibits during deliberations)
DeBella v. People, 233 P.3d 664 (Colo. 2010) (trial court abused discretion by allowing unfettered juror access to a videotaped interview that was central to the prosecution’s case; reversible error)
People v. Jefferson, 393 P.3d 493 (Colo. 2017) (reiterated need for discretion; unfettered DVD access to victim interview that was central to credibility analysis required reversal)
People v. Pickering, 276 P.3d 553 (Colo. 2011) (self‑defense is an affirmative defense for offenses requiring intent/knowledge; prosecutor must disprove it beyond a reasonable doubt)