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April 2, 2026 Get Citation Alerts Download PDF Add Note

Peo v. Li

Colorado Court of Appeals

• Citations: None known
• Docket Number: 22CA1584

• Precedential Status: Non-Precedential

• Opinion

• Authorities (29)

• Cited By (0)

• Summaries (0)

• Similar Cases (38.2K)

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Combined Opinion

22CA1584 Peo v Li 04-02-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1584
City and County of Denver District Court No. 19CR4437
Honorable Brian R. Whitney, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Lin F. Li,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE GROVE
Yun and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 2, 2026

Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Taylor J. Hoy, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Lin F. Li, appeals the judgment of conviction

entered after a jury found him guilty of second degree murder. We

affirm.

I. Background

¶2 A reasonable jury could have found the following facts based

on the evidence presented at trial.

¶3 Li went to a house party with several other people. Police were

called, and when they arrived, the guests dispersed. Li got into a

vehicle — a three-row SUV — with six other people, and the group

drove to a nearby parking lot, where they remained sitting in the

parked car.

¶4 The group was trying to listen to music, but the victim, Daoud

Francis, was talking on his phone. Francis was sitting in the same

row as Li and was drunk, belligerent, and argumentative. When Li

told Francis to get off the phone, Francis responded, “Shut up,

bitch.” The two exchanged heated words, with Francis telling Li to

shut up and again calling him a “bitch.” Li then “pistol-whipped”

Francis two to four times.

¶5 According to Li, Francis fought back and so, fearing for his

safety, he put the gun to Francis’s head, where it accidentally

1
discharged. Another witness in the car told a different story,

explaining that, after Li pistol-whipped Francis, “[t]he clip fell out of

the gun and [Li] put the clip back in the gun and he said, I’m going

to fuck’n kill you and then pulled the trigger.”

¶6 Li was charged with first degree murder. At trial, the court

instructed the jury on the lesser included offenses of second degree

murder and reckless manslaughter. The jury found Li guilty of

second degree murder and the court sentenced him to forty-eight

years in the custody of the Department of Corrections.

¶7 Li now appeals, arguing that (1) he was entitled to a jury

instruction on heat of passion provocation as a mitigating factor for

the murder charges; (2) the court plainly erred by failing to sua

sponte instruct the jury on the affirmative defense of self-defense;

(3) the prosecution committed misconduct during closing argument;

and (4) the court erroneously excluded an unavailable witness’s

out-of-court statements.

II. Heat of Passion Jury Instruction

¶8 Li contends that the court erroneously denied his request for a

jury instruction on heat of passion as a mitigator to the murder

charges. We disagree.

2
A. Standard of Review and Applicable Law

¶9 Second degree murder is a class 2 felony, but it is reduced to a

class 3 felony if the jury finds the heat of passion mitigator applies.

§ 18-3-103(3)(b), C.R.S. 2025. A trial court should instruct the jury

on heat of passion if there is some credible evidence that (1) the

defendant committed the offense in a sudden heat of passion

(2) caused by a serious and highly provoking act of the victim,

(3) which would excite an irresistible passion in a reasonable

person, and (4) between the provocation and offense, an

insufficient amount of time passed for the voice of reason and

humanity to be heard. People v. Tardif, 2017 COA 136, ¶ 22. We

review de novo whether the instruction was warranted and consider

the evidence in the light most favorable to the defendant. Id. at

¶¶ 16, 22.

B. Additional Facts

¶ 10 At trial, Li’s counsel requested a heat of passion instruction,

arguing that it was supported by evidence of Francis’s belligerent

conduct, heated language, and level of intoxication, along with the

presence of a semiautomatic rifle in the front seat visible to

everyone and within Francis’s reach. The trial court denied the

3
request, concluding that none of Francis’s actions amounted to a

highly provoking act that would excite an irresistible passion in a

reasonable person.

C. Analysis

¶ 11 We conclude that the trial court correctly rejected the heat of

passion instruction because there was no evidence at trial to

support at least two of the four required factors. More specifically,

even if we were to assume that there was evidence that Li shot

Francis in a sudden heat of passion, and that he did so before a

sufficient amount of time had passed for the voice of reason and

humanity to be heard, the instruction was still not warranted

because the other two factors were not supported by any evidence.

¶ 12 First, there was no evidence at trial supporting a conclusion

that Francis committed “a serious and highly provoking act.”

4
¶ 13 Li maintains that the following evidence introduced at trial

shows otherwise.1

• One witness testified that Francis was intoxicated and

belligerent.

• One witness remembered telling a detective that Francis

waved a gun around “like it was a toy,” even though he

later testified that Francis never had a gun.

• One witness testified that Francis was arguing with

another person in the car, separate from his argument

with Li.

• Multiple witnesses testified that Francis said, “Shut up,

bitch” to Li.

• One witness testified that Li pistol-whipped Francis in

response to Francis’s comment.

1 In his appellate briefing, Li also cites to statements that Timothy

Martinez — who was in the driver’s seat when the shooting
occurred — made to Detective Andrews during the investigation.
However, these statements were not admitted at trial. Even though
Li contends that the court erred by excluding these statements
(which we discuss below), for the purpose of evaluating whether the
court erred by not instructing the jury on heat of passion, we
consider only the evidence admitted at trial.

5
• One witness testified that Francis fought back after being

struck with the pistol.

• One witness testified that Li shot Francis after Francis

fought back.

¶ 14 At the outset, we note that Francis’s belligerence and insults

were insufficient to warrant a heat of passion instruction. See

Cassels v. People, 92 P.3d 951, 960 (Colo. 2004) (Coats, J.,

dissenting) (collecting cases); see also People v. Ramirez, 56 P.3d 89,

94-95 (Colo. 2002) (refusal of marriage proposal and demand to

leave one’s home do not warrant heat of passion instruction); United

States v. Frady, 456 U.S. 152, 174 (1982) (“Mere words, however,

no matter how insulting, offensive or abusive, are not adequate to

induce a homicide.”) (citation modified).

¶ 15 Li argues that he was provoked not only by Francis’s insults,

but also by how Francis fought back after being pistol-whipped. He

likens his case to Cassels, 92 P.3d at 957, where a heat of passion

instruction was appropriate in part because the victim fought the

defendant before the defendant shot him. But Cassels is factually

distinguishable from Li’s case in several key respects.

6
¶ 16 In Cassels, the victim followed the defendant around an

apartment, pushing, insulting, and threatening to beat him. Id.

The victim also positioned himself in front of the only exit and stood

next to an iron bar that he had previously said would make a good

weapon. Id. In contrast, there is no evidence that Francis ever

prevented Li from getting out of the parked car or otherwise

removing himself from the conflict. Additionally, in Cassels, the

defendant was wearing only a towel and was “in a highly vulnerable

position” when the victim provoked him. Id. Li, by comparison,

had a loaded gun in his hand. Finally, the defendant in Cassels

testified that he “freaked out” and “lost it,” and he did not

remember shooting the victim. Id. No such statement exists in Li’s

case. To the contrary, the evidence at trial indicated that Li and

Francis simply got into in an argument that turned physical before

the shooting.

¶ 17 Li also presented evidence that a witness recalled telling a

detective that Francis waved a gun around, but Francis allegedly

did so “like it was a toy,” not in an aggressive or menacing manner.

There is no evidence Francis pointed the gun at Li or threatened to

use it. Additionally, the record is unclear about how much time

7
passed between this conduct and the shooting, casting doubt on

whether an insufficient amount of time passed after Francis waved

the gun for the voice of reason and humanity to be heard.

¶ 18 Further, the record is devoid of any evidence of any hidden

subtext that would make Francis’s conduct particularly threatening

or highly provoking. Cf. Tardif, ¶ 24 (heat of passion instruction

warranted where the victim — a rival gang member — wore a

bandana over his face, and the defendant testified that “nine out of

ten times when somebody has a bandana on their face they’re

gonna do dirt or they’re gonna do something that they’re not

supposed to be doing and try not to get caught for it”). Rather, Li

even concedes that “there was no evidence” that he and Francis

“had problems or exchanged insults” before the shooting.

¶ 19 Second, given our conclusion that Francis did not commit a

serious and highly provoking act, it follows that Francis’s behavior

would not excite irresistible passion in a reasonable person.

Indeed, according to Li, Francis was insulting others in the car

while everyone was trying to listen to music, yet only Li responded

by pistol-whipping and shooting Francis. “[A]n objectively

reasonable person” would not have “suffered an irresistible passion

8
to kill” from Francis’s conduct. People v. Dooley, 944 P.2d 590, 594

(Colo. App. 1997).

¶ 20 Because no evidence supported a heat of passion instruction,

we conclude that the court did not err by refusing to provide it to

the jury.

III. Self-Defense Jury Instruction

¶ 21 Li argues the trial court erred by failing to sua sponte instruct

the jury on self-defense. We disagree.

A. Standard of Review and Applicable Law

¶ 22 Although trial courts have a duty to instruct the jury on all

legal matters applicable to the case, a court “is not an advocate and

need not serve as counsel for either party.” Hansen v. State Farm

Mut. Auto. Ins. Co., 957 P.2d 1380, 1384 (Colo. 1998). “A court’s

general duty to instruct does not extend to crafting theory of the

case instructions when defense counsel fails to do so.” People v.

Wade, 2024 COA 13, ¶ 11.

¶ 23 A defendant is entitled to a jury instruction on an affirmative

defense if some credible evidence, viewed in the light most favorable

to the defendant, supports the instruction. § 18-1-407(1), C.R.S.

2025; People v. Newell, 2017 COA 27, ¶ 19. We review de novo

9
whether sufficient evidence supports a self-defense jury instruction.

People v. Coahran, 2019 COA 6, ¶ 15.

¶ 24 Here, there is no dispute that there was some evidence that

could have supported a theory that Li acted in self-defense.

However, Li did not request a self-defense instruction at trial or

object to the instructions given. Therefore, reversal would be

warranted only if the trial court plainly erred by failing to give a

self-defense instruction sua sponte.2 Wade, ¶ 12. We reverse for

plain error in the jury instructions “only when (1) an error occurred;

(2) the error was obvious; and (3) the defendant demonstrates not

only that the instructions affected a substantial right, but also that

the record reveals a reasonable possibility that the error contributed

to his conviction.” Id. (citation modified).

2 The People argue that Li’s defense counsel made a strategic

decision after consultation with Li to adopt a theory of defense
based on accidental shooting rather than self-defense. Thus, they
argue, counsel’s failure to request a jury instruction on self-defense
was not an “oversight,” as Li contends, but instead a waiver. See
People v. Rediger, 2018 CO 32, ¶ 39 (defining waiver as “the
intentional relinquishment of a known right or privilege”) (emphasis
omitted). We do not need to reach this argument because we
conclude that the court did not err at all.

10
B. Additional Facts

¶ 25 About a year-and-a-half before trial, Li filed a “notice of

affirmative defense — self defense” indicating that he would argue

self-defense at trial. A month before the trial date, however, Li

moved for a continuance. One of the grounds for his request was

that he had “expressed his intent to testify and advance a theory of

defense other than that proposed by his counsel.” Then, at trial, Li

requested jury instructions on reckless manslaughter and heat of

passion. Notably, defense counsel did not request a self-defense

instruction.

¶ 26 At multiple points at trial, Li advanced the theory that the

shooting was accidental. For instance, defense counsel asked

prospective jurors about their views regarding different kinds of

accidents, including gun accidents. In opening statement, counsel

said, “in the process of pistol-whipping Mr. Francis, . . . the gun

went off, and the tragedy occurred,” and he emphasized that the

jurors would not “hear testimony that [Li] intended to kill.” In

closing argument, defense counsel urged the jury to “find [Li’s]

conduct to be reckless and that he’s guilty of manslaughter.” He

also described at length how the gun may have malfunctioned and

11
gone off by accident while Li was pistol-whipping Francis. Counsel

never mentioned self-defense in either his opening statement or

closing argument.

¶ 27 Our review of the record reveals only a few oblique references

to self-defense.

• One witness testified that Li had told him to tell the

detectives that Li shot Francis in self-defense or else Li

“would find” him if he “snitched.”

• One witness testified that Francis fought Li back after Li

pistol-whipped him.

• Detective Andrews testified that “[o]ut of the over 100 jail

calls [he] listened to, there was one time when [Li] used

the word ‘accident.’ However, that was in the context of a

self-defense scenario.”

¶ 28 Then in closing argument, the prosecutor made several

comments about self-defense. He noted that, “given the opportunity

to tell Detective Andrews anything,” Li did not claim self-defense.

The prosecutor continued:

[I]n the jail calls that [Li] has, we know that
only time he ever talked about it being an

12
accident and that was in the concept of this
being a self-defense [sic].

By the way, ladies and gentlemen, self-defense
means I intend to kill somebody. I fear for my
life so much that I’m going to make sure that
they don’t take my life and I kill them.

...

Francis’s DNA is not on [the gun] anywhere or
anybody indicated that he reached for it or did
anything for it. So this isn’t about self-
defense. This is about a man who would not
be disrespected and told to shut up.

Li did not object to the prosecutor’s comments.

C. Analysis

¶ 29 Li contends that, although defense counsel did not tender a

self-defense instruction, Li endorsed self-defense pretrial and some

evidence supported the instruction; therefore, the court plainly

erred by not instructing the jury on self-defense sua sponte. We

disagree.

¶ 30 While our review of the record reveals that there was at least a

scintilla of evidence that Li acted in self-defense, Li’s theory of

defense at trial was that the shooting was accidental. Li appears to

have made a deliberate decision to pursue this theory, as evidenced

by his pretrial request for a continuance, which expressed his

13
intent to “advance a theory of defense other than that proposed by

his counsel” — who had previously given notice that he intended to

pursue self-defense — and by the arguments advanced by defense

counsel at trial. Given this approach, it appears that the decision

not to submit a self-defense instruction was tactical. “When the

defense makes a tactical decision not to submit an alternative

defense instruction, a trial court’s failure to sua sponte offer the

instruction does not constitute error, much less plain error.” Wade,

¶ 16.

IV. Prosecutorial Misconduct

¶ 31 Li contends that the prosecutor committed reversible

misconduct during closing argument by (1) commenting on Li’s

post-arrest silence and (2) misstating the law on self-defense.3 We

disagree and conclude that any error was not plain.

3 Li also suggests that the cumulative impact of the prosecutor’s

alleged misconduct warrants reversal. Because he does not develop
this argument in his opening brief, however, we do not consider it
further. See People v. Cuellar, 2023 COA 20, ¶ 44 (declining to
address the merits of an undeveloped argument).

14
A. Standard of Review and Applicable Law

¶ 32 We review prosecutorial misconduct that violates a defendant’s

constitutional rights de novo. People v. Castro, 2022 COA 101,

¶ 21. When reviewing claims of prosecutorial misconduct, we

consider whether the conduct was improper based on the totality of

the circumstances and whether the misconduct warrants reversal.

People v. Van Meter, 2018 COA 13, ¶ 23. When a defendant does

not object to the alleged misconduct, as here, we review for plain

error and only reverse if the error is obvious and substantial.

Hagos v. People, 2012 CO 63, ¶ 14. To rise to the level of plain

error, prosecutorial misconduct must be flagrant or glaringly

improper and so undermine the fundamental fairness of the trial as

to cast serious doubt on the reliability of the judgment of

conviction. People v. Weinreich, 98 P.3d 920, 924 (Colo. App. 2004).

¶ 33 A prosecutor has wide latitude in the language and style of

closing argument. People v. Rhea, 2014 COA 60, ¶ 46. But this

latitude is not without limits. Domingo-Gomez v. People, 125 P.3d

1043, 1049 (Colo. 2005). As relevant here, a prosecutor generally

may not comment on a defendant’s invocation of the right to remain

silent, People v. Key, 522 P.2d 719, 720 (Colo. 1974), nor may a

15
prosecutor misstate the law, People v. McMinn, 2013 COA 94, ¶ 62.

However, “because arguments delivered in the heat of trial are not

always perfectly scripted, reviewing courts accord prosecutors the

benefit of the doubt when their remarks are ambiguous or simply

inartful.” People v. Samson, 2012 COA 167, ¶ 30.

B. Commentary on Self-Defense

¶ 34 During closing argument, the prosecutor made the following

statements about self-defense:

So when we get up here and we argue that this
is a reckless act, that you can find that this is
a reckless act, there’s absolutely no evidence
that that’s what the defendant was thinking.
In fact, in the jail calls that [Li] has, we know
that only time he ever talked about it being an
accident and that was in the concept of this
being a self-defense [sic].

By the way, ladies and gentlemen, self-defense
means I intend to kill somebody. I fear for my
life so much that I’m going to make sure that
they don’t take my life and I kill them.

¶ 35 Defense counsel did not object to these statements, but on

appeal, Li contends that the prosecutor misstated the law and in

doing so, injected self-defense into the case. We need not consider

the accuracy of counsel’s assertion, however, because even if it was

16
improper, the error was neither obvious nor substantial and thus

did not amount to plain error.

¶ 36 First, the alleged error was not obvious. Before describing

self-defense as requiring an “inten[t] to kill somebody,” the

prosecutor addressed Li’s claim that he acted recklessly. In this

context, the prosecutor’s statement — while perhaps inartful —

would not necessarily have been understood as a definition of self-

defense. Instead, the prosecutor was pointing out inconsistencies

in Li’s story over time by contrasting Li’s statement in a recorded

jail call, in which he suggested he had acted in self-defense, with

his claim at trial that he acted recklessly. See People v. Payne,

2019 COA 167, ¶ 50 (prosecutor’s alleged misstatement of law did

not constitute plain error in part because “the prosecutor had wide

latitude to respond to [defense] counsel’s arguments”).

¶ 37 Second, the alleged error is not substantial. As discussed

above, Li’s theory of defense at trial was that the shooting was

17
accidental, and the jury was not instructed on self-defense.4

Therefore, because the jury would have had no reason to consider

the legal definition of self-defense, the prosecutor’s statements

likely did not impact the outcome of the trial. Nonetheless, if — as

Li argues — the prosecutor’s statement left the jury with the

impression they were to consider self-defense, nothing in the record

suggests that the prosecutor’s comments confused jurors as to the

applicable law. Thus, any error was not substantial.

¶ 38 Because the alleged error was neither obvious nor substantial,

it does not warrant reversal under plain error review.

C. Commentary on Post-Arrest Silence

¶ 39 Li contends that the prosecution also committed misconduct

by commenting on Li’s post-arrest silence. Again, we reject this

contention under plain error review.

4 To the extent Li suggests that the court should have given a sua

sponte curative instruction after the prosecutor’s closing argument,
we also reject this argument. See People v. Mersman, 148 P.3d 199,
203 (Colo. App. 2006) (“[T]o receive a curative instruction, a
defendant must request it, and a trial court does not commit plain
error if it does not give a curative instruction sua sponte.”); see also
People v. Valencia-Alvarez, 101 P.3d 1112, 1117 (Colo. App. 2004)
(no error “in the trial court’s failure sua sponte to instruct the jury
to disregard the challenged remark”).

18
1. Additional Facts

¶ 40 Two days after the shooting, Detective Andrews interviewed Li.

Detective Andrews advised Li of his Miranda rights and Li answered

a few questions. Li told Detective Andrews that he was upset

because he had seen his girlfriend, who was five months pregnant,

handcuffed “over situations that [his] friends had done,” describing

“the entire situation [as] just confusing.” When Detective Andrews

asked what Li did after leaving the party, Li said he did not “feel

comfortable answering these questions” without an attorney

present. At this point, the interrogation ended.

¶ 41 During the trial, the prosecutor — without objection —

admitted into evidence a redacted video and transcript of the

interrogation. Both exhibits, as edited, ended before Li invoked his

right to remain silent. The prosecutor also elicited testimony from

Detective Andrews regarding how he advised Li of his rights during

the interrogation — again, without objection. Then, during cross-

examination, defense counsel asked Detective Andrews about Li’s

invocation of his Fifth Amendment right to remain silent.

Defense Counsel: [] And so when given a
statement, the mere fact that [Li] doesn’t say
much in the statement isn’t anything that you

19
should consider, correct, because the burden
is on the government, correct?

...

Detective Andrews: Sir, I thought it was telling
that he was willing to talk to me until I
confronted him with specific facts known to
this investigation. And it was at the point
when I asked him if he was in a white Lexus
SUV that we didn’t have any more
conversation. That was telling to me.

Defense Counsel: Right. Even though he has a
right to remain silent?

Detective Andrews: Sure does.

Defense Counsel: And that’s a constitutional
right?

Detective Andrews: It is.

Defense Counsel: And the fact that he said I
don’t want to talk anymore[,] that, to you, was
telling?

Detective Andrews: No. It was the point at
when he said that that was telling. Because I
told him that I knew exactly what was going on
and that was as much information as he
wanted to provide, in my opinion.

¶ 42 At the end of the trial, the prosecutor made the following

statements in closing argument:

[G]iven the opportunity to tell Detective
Andrews anything, anything. This was self-
defense. This was an accident. I was poking

20
the gun and my finger slipped and I killed him.
When given any opportunity to do that, what
does the defendant talk about? He talks about
how upset he is because his girlfriend got
arrested for the actions of his friends. He
didn’t even say his own actions. His actions of
his friends. He’s already got it, . . . he’s
putting into motion that somebody else is
going to take the fall for this. That’s
intentional. That’s deliberate. That’s
deceptive. That’s the defendant. That goes
again to that mental state, what is he thinking.

Detective Andrews says, gives him a little fact
and he said, You’ve talked to a lot of people.
Detective Andrews said, Yeah, we talked to a
lot of people. So you know some things? Like,
Yeah. Hmm. Tell us about that white Lexus.
Done. That’s the defendant holding back what
happened.

Defense counsel did not object to any of these statements.

1. Analysis

¶ 43 Li contends that the statements quoted above were an

improper reference to his post-arrest silence. We need not decide

whether the alleged error was obvious — or even whether it was an

error — because even assuming that it was, we cannot say the

challenged statements so undermined the fundamental fairness of

Li’s trial as to cast serious doubt on the reliability of his judgment

of conviction. We reach this conclusion for two reasons.

21
¶ 44 First, the prosecutor’s comment was brief. See McMinn, ¶ 70

(finding no plain error where the prosecutor’s comments “made up a

small part of the prosecutor’s closing argument” to convict the

defendant). The prosecutor’s one line, “That’s the defendant

holding back what happened” — even if a comment on Li’s

silence — followed comments about what Li did say and thus

highlighted how Li’s story changed after realizing that Detective

Andrews had information about his own involvement. Thus, any

misconduct in referencing how Li invoked his right to remain silent

was fleeting and not a significant focus of the prosecutor’s closing

argument.

¶ 45 Second, the jury first learned that Li invoked his right to

silence during defense counsel’s cross examination of Detective

Andrews, not through any statement by the prosecutor. Therefore,

the fact that Li invoked his right to remain silent was not new

information. See People v. Snelling, 2022 COA 116M, ¶ 36 (finding

no plain error where the jurors first learned about the subject of

alleged prosecutorial misconduct during defense counsel’s cross-

examination, not through any statement from the prosecutor).

22
¶ 46 As the alleged error was not substantial, it does not warrant

reversal under plain error review.

V. Admissibility of Out-of-Court Statements

¶ 47 Li contends that the court erred by refusing to admit an

unavailable witness’s out-of-court statements because the

prosecution opened the door and because the statements qualified

as residual hearsay. We disagree.

A. Standard of Review and Applicable Law

¶ 48 A defendant has the right to present a complete defense by

introducing all relevant and admissible evidence. People v. Elmarr,

2015 CO 53, ¶ 26. We review a court’s decision to admit evidence

for an abuse of discretion. People v. Clark, 2015 COA 44, ¶ 14.

Trial courts have considerable discretion in determining the

admissibility of evidence. People v. Brown, 2022 COA 19, ¶ 57. A

trial court abuses its discretion when its decision is “manifestly

arbitrary, unreasonable, or unfair, or based on a misunderstanding

or misapplication of the law.” People v. Heredia-Cobos, 2017 COA

130, ¶ 6. Additionally, we can affirm on any grounds supported by

the record, and we are not bound to the trial court’s reasoning.

People v. Glover, 2015 COA 16, ¶ 22.

23
B. Additional Facts

¶ 49 There were seven people in the car when Li shot Francis.

Timothy Martinez was driving, one person sat in the front passenger

seat, Li sat in the middle row directly behind Martinez, one person

sat between Li and Francis, and two people sat in the back row.

¶ 50 Li sought to call Martinez as a witness at trial but was unable

to serve him. Accordingly, Li moved to admit the following

statements that Martinez made to Detective Andrews under CRE

807:

At first [Li’s] demeanor when he shot, he
seemed scared as shit. Like, really scared.
Like it was a misfire, like, shot, you know,
even if he wouldn’t have hit him, you know.
And he just looked kind of scared.

And then all of us just looked at him and
just — like, Fuck, [Li], what the fuck? And
then it was, like, shit and just went stone cold
and just turned to all of us and asked — and
told us if we saw anything, he’ll kill each of us,
every one of us right there and then.

In his motion to admit the statements, Li argued that the evidence

was material to whether the shooting was accidental or intentional

and that Martinez could not be served at his last address of record.

24
On the first day of trial, Li asked the court to hold his motion in

abeyance.

¶ 51 At trial, Detective Andrews testified about Martinez’s interview:

Prosecutor: And you talked about the sister of
the victim providing a lead. What was the lead
she provided?

Detective Andrews: She said that [Francis’s]
best friend’s name was [Martinez]. She didn’t
know anything else about him except his
phone number, and she suggested that he
would be a good place to start.

Prosecutor: Were you eventually able to
contact [Martinez]?

Detective Andrews: I was.

Prosecutor: Were you able to speak with
[Martinez]?

Detective Andrews: I did.

Prosecutor: And then using the information
that [Martinez] provided, were you able to then
track down the rest of the parties who were
inside the vehicle when [Francis] was shot?

Detective Andrews: Yes.

Prosecutor: Over the course of the
investigation, over the past nearly three years,
has [Martinez] been cooperative with the
investigation?

Detective Andrews: No.

25
¶ 52 Following this testimony, Li asked the court to admit

Martinez’s statements, arguing that Detective Andrews had “opened

the door.” The court denied the request. Li then asked the court to

reconsider his motion to admit the statements under CRE 807. The

court concluded that while the statements were offered for proof of

a material fact and would serve the interest of justice, there were

not circumstantial guarantees of trustworthiness. Specifically, the

court noted that, in addition to Li, Francis, and Martinez, there

were four other people in the car, three of whom testified. So, the

court continued, “it begs the question, is there a circumstantial

guarantee of trustworthiness when someone in the front seat [i.e.,

Martinez] turns around and says the complete opposite” of what the

other witnesses reported. The court thus refused to admit the

statements.

C. Analysis

¶ 53 Li contends that Martinez’s out-of-court statements were

admissible because the prosecution opened the door through

Detective Andrew’s testimony and because the statements qualified

as residual hearsay. We disagree.

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1. Opening the Door

¶ 54 The opening-the-door doctrine serves to “prevent one party in

a criminal trial from gaining and maintaining an unfair advantage

by the selective presentation of facts that, without being elaborated

or placed in context, create an incorrect or misleading impression.”

Golob v. People, 180 P.3d 1006, 1012 (Colo. 2008). However, it does

not give “unbridled license to introduce otherwise inadmissible

evidence.” People v. Cohen, 2019 COA 38, ¶ 23 (quoting United

States v. Martinez, 988 F.2d 685, 702 (7th Cir. 1993)).

¶ 55 According to Li, even though Detective Andrews did not testify

to Martinez’s exact statements, his testimony still opened the door

because it revealed that Martinez provided information that allowed

Detective Andrews to “track down the rest of the parties who were

inside the vehicle.” Li argues that this left the impression that

Martinez had described to the police the nature of the incident and

the individual responsible.

¶ 56 Detective Andrews’s testimony, however, merely described his

investigative process and made no comment about who was

responsible for Francis’s death. True, Detective Andrews said that

Martinez’s statements allowed him to find the other people “inside

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the vehicle,” but he did not suggest that Martinez identified the

“individual responsible” or anything to that effect. Thus, Detective

Andrews’s statement was unlikely to mislead the jury to believe that

Martinez told Detective Andrews that Li was responsible. Therefore,

it did not open the door to admit Martinez’s out-of-court

statements.

1. Residual Hearsay Exception

¶ 57 Hearsay is an out-of-court statement admitted for the truth of

the matter asserted. People v. Thompson, 2017 COA 56, ¶ 101.

Hearsay statements are generally inadmissible unless they fall

within an exception. Id. The exception for residual hearsay allows

a hearsay statement to be admitted if it has “circumstantial

guarantees of trustworthiness” and satisfies CRE 807’s three-part

test: (1) the statement is offered as evidence of a material fact;

(2) the statement is more probative on the point for which it is

offered than any other available evidence; and (3) admission of the

statement will serve the purpose of the rules and the interests of

justice. CRE 807; see Vasquez v. People, 173 P.3d 1099, 1106

(Colo. 2007). In considering the trustworthiness of a statement,

courts should examine the nature and character of the statement,

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the relationship of the parties, the probable motivation of the

declarant in making the statement, and the circumstances under

which the statement was made. People v. Jensen, 55 P.3d 135, 139

(Colo. App. 2001).

¶ 58 We perceive no abuse of discretion in the trial court’s

determination that Martinez’s statements lacked circumstantial

guarantees of trustworthiness. First, because Martinez was sitting

in the driver’s seat in front of Li, the shooting was out of his direct

line of vision. See People v. Blackwell, 251 P.3d 468, 477 (Colo.

App. 2010) (no circumstantial guarantees of trustworthiness where

there was no indication the unnamed declarant observed conduct in

question). Second, Martinez’s interview took place after a shooting

had occurred in his car, a situation that may have led him to make

self-serving statements. Cf. People v. Lujan, 2018 COA 95, ¶ 27

(statements “motivated by a police investigation” are generally not

trustworthy), rev’d on other grounds, 2020 CO 26.

¶ 59 We acknowledge that part of the court’s determination that

Martinez’s statements lacked circumstantial guarantees of

trustworthiness may have been premised on the court’s apparent

misunderstanding of Detective Andrews’s testimony that Martinez

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was Francis’s best friend.5 However, the nature of the relationship

between Martinez and Li has no bearing on the other factors that

the court considered when deciding to exclude Martinez’s

statement. Thus, even if the court misunderstood the nature of Li

and Martinez’s relationship, its decision to not admit the evidence

was still grounded in reason and was not manifestly arbitrary or

unfair.

VI. Disposition

¶ 60 We affirm the judgment of conviction.

JUDGE YUN and JUDGE SCHOCK concur.

5 The court may have — as Li argues — incorrectly believed that

Martinez’s best friend was Li, not Francis, because, when denying
Li’s CRE 807 motion, the court stated that Martinez was “the only
person who said a positive thing” and “a best friend would say
that.”

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