v. Thompson
485 P.3d 566
Colo. Ct. App.2020Background:
- Larry Allen Thompson was convicted of first-degree murder (1994) after the victim was found stabbed and wrapped in a blanket, mattress cover, and electrical cord. Thompson confessed to four people, and was treated for a wrist cut on the day the body was found.
- Post-trial DNA testing showed the bloodstain in the vehicle did not match the victim; that testing was raised in a prior Crim. P. 35(c) proceeding and a new-trial motion was denied on the strength of confessions and other corroborating evidence.
- Years later Thompson sought additional DNA testing of the blanket, mattress cover, extension cord, and victim’s clothes under § 18-1-413 and Crim. P. 35(c); he also renewed ineffective-assistance claims against trial and first postconviction counsel.
- The second postconviction court denied DNA testing under § 18-1-413 (no showing of actual innocence) and denied the ineffective-assistance claims (some as successive, others for lack of prejudice).
- On appeal this division held (1) Crim. P. 35(c) does not independently authorize discovery or DNA testing, (2) Thompson failed to meet the statute’s "actual innocence" standard for testing, and (3) ineffective-assistance claims were either barred as successive or failed on prejudice grounds.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Crim. P. 35(c) independently authorizes postconviction DNA testing | Crim. P. 35(c) is not a discovery mechanism and does not authorize DNA testing; statutory DNA scheme controls | Crim. P. 35(c) proceedings permit discovery and thus authorize DNA testing | Crim. P. 35(c) does not authorize postconviction DNA testing independent of statute |
| Whether Thompson is entitled to DNA testing under § 18-1-413 (actual innocence) | Thompson cannot show by clear and convincing evidence that favorable DNA would establish actual innocence given confessions and other corroboration | Absence of Thompson’s DNA on key items would demonstrate actual innocence | Denied — Thompson failed to meet the clear-and-convincing/actual-innocence standard |
| Whether trial counsel was ineffective for failing to obtain an expert on the wrist-laceration theory | Claim is successive and could have been raised previously; barred by Crim. P. 35(c)(3)(VII) | Trial counsel failed to investigate/present expert on glass-laceration theory, prejudicing defense | Denied as successive/barred (could have been presented earlier) |
| Whether first postconviction counsel was ineffective for not pursuing experts/DNA | Even assuming deficiency, Thompson cannot show prejudice — prior proceedings would not have had a different outcome | Failure to obtain expert testing or DNA deprived Thompson of a viable claim | Denied on the merits for lack of prejudice (speculative benefit; other strong evidence of guilt) |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-pronged ineffective-assistance standard)
- Bresnahan v. District Court, 434 P.2d 419 (Colo. 1967) (Crim. P. 35 depositions governed by criminal procedure rules)
- People v. Rodriguez, 914 P.2d 230 (Colo. 1996) (newly discovered evidence must be discovered after trial)
- People v. Gutierrez, 622 P.2d 547 (Colo. 1981) (standards for newly discovered evidence)
- Silva v. People, 156 P.3d 1164 (Colo. 2007) (Strickland applies to postconviction counsel claims)
- People v. Naranjo, 840 P.2d 319 (Colo. 1992) (burden of proof for postconviction claims is preponderance)
- People v. Scott, 116 P.3d 1231 (Colo. App. 2005) (appellate court may affirm on any ground supported by the record)