2014 COA 41
Colo. Ct. App.2014Background
- Washington was convicted of first-degree murder and challenged the conviction via Crim. P. 35(c) postconviction motion alleging ineffective assistance of trial counsel.
- The prosecution sought to introduce CRE 404(b) evidence of two prior acts involving the victim (1994 gun-point incident and 1995 drive-by incident).
- Defense sought a continuance to investigate the 1995 incident and possibly present an alibi; the trial court tentatively admitted the 404(b) evidence.
- J.G., a key witness, did not testify at trial; later testified at a contempt hearing consistently with police statements.
- Jury trial led to Washington’s conviction; on direct appeal, the appellate division affirmed a portion of the 404(b) analysis, while noting the lack of explicit trial-court findings.
- The postconviction court credited trial counsel’s testimony, found most asserted deficiencies to be strategic, and held Washington failed to show prejudice under Strickland, leading to denial of relief and this appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Burden of proof on prejudice prong under Strickland | Washington contends prejudice prong was misapplied | People argues correct burden was applied | Burden correctly applied; no sufficient prejudice shown |
| Failure to introduce gunshot residue evidence | Washington claims counsel erred by not introducing residue test results | Counsel acted within strategic choices; test would not have helped | No deficient performance; record supports trial strategy and no prejudice |
| Failure to obtain J.G.'s testimony or use statements via residual hearsay | Washington asserts continuance should have been sought | Testimony would have been cumulative and not prove identity | Not ineffective; no prejudice from lack of continuance or residual statements |
| Failure to object to CRE 404(b) evidence and closing argument references | Counsel should have objected to mischaracterization of evidence | Objections would be strategic; closing emphasized admissible purpose | Not ineffective; no prejudice from lack of objection |
| Alibi evidence for the 1995 incident | Counsel failed to investigate/present alibi evidence | Investigation occurred; no usable alibi evidence found | Counsel’s investigation deemed adequate; no prejudice |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance; prejudice defined by reasonable probability of different outcome)
- Silve v. People, 156 P.3d 1164 (Colo. 2007) (confirms Strickland prejudice standard in Colorado context)
- Fisher v. Gibson, 282 F.3d 1283 (10th Cir. 2002) (prejudice standard; less than a preponderance required to show prejudice)
- Krutsinger v. People, 219 P.3d 1054 (Colo. 2009) (defines the degree of proof for prejudice under Strickland in Colorado)
- People v. Garcia, 815 P.2d 987 (Colo. 1991) (prejudice need not be proven by preponderance; requires probability of a different outcome)
- Naranjo v. People, 840 P.2d 319 (Colo. 1992) (Strickland prejudice applied in Colorado context)
- Hagos v. People, 2012 CO 68, 288 P.3d 116 (Colo. 2012) (latest Colorado Supreme Court stance on Strickland prejudice standard)
- Justus v. State, 2012 COA 169, 337 P.3d 1219 (Colo. App. 2012) (addresses conflict among Colorado decisions on burden of proof; follows latest pronouncements)
- Russell v. People, 36 P.3d 92 (Colo. App. 2001) (Colorado appellate guidance on postconviction issues)