The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
July 30, 2020
2020COA117
No. 17CA0999, People v. Thompson — Criminal Procedure —
Postconviction Remedies; Criminal Law — Content of
Application for DNA Testing
A division of the court of appeals considers whether Crim. P.
35(c) authorizes postconviction DNA testing. The division concludes
that, while section 18-1-413(1), C.R.S. 2019 may entitle a defendant
to testing if he satisfies the statutory criteria, Crim. P. 35(c) does
not independently authorize such testing.
COLORADO COURT OF APPEALS 2020COA117
Court of Appeals No. 17CA0999
City and County of Denver District Court No. 93CR2979
Honorable Brian R. Whitney, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Larry Allen Thompson,
Defendant-Appellant.
ORDERS AFFIRMED
Division III
Opinion by JUDGE BERGER
Furman and Grove, JJ., concur
Announced July 30, 2020
Philip J. Weiser, Attorney General, Brittany L. Limes, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Christopher Gehring, Alternate Defense Counsel, Denver, Colorado, for
Defendant-Appellant
¶1 In 1994, a jury found defendant, Larry Allen Thompson, guilty
of first degree murder. Police discovered the victim in an alley
wrapped in a blanket, mattress cover, and electrical cord. He had
been stabbed more than forty times.
¶2 In this postconviction proceeding, Thompson’s second, he
appeals the postconviction court’s order denying DNA testing of the
blanket, mattress cover, electrical cord, and the victim’s clothes. He
contends that the court erred in denying his requests for DNA
testing under section 18-1-413, C.R.S. 2019, and Crim. P. 35(c).
He also appeals the order denying his various ineffective assistance
of counsel claims as to his trial counsel and his first postconviction
counsel.
¶3 We hold, as a matter of first impression, that Crim. P. 35(c)
does not authorize postconviction DNA testing. We further agree
with the postconviction court that Thompson failed to satisfy the
actual innocence standard under section 18-1-413, so he is not
entitled to DNA testing under that statute. Finally, we conclude
that the postconviction court properly denied his ineffective
assistance of counsel claims. Accordingly, we affirm the
postconviction court’s orders.
1
I. Relevant Facts and Procedural History
A. Evidence at Trial
¶4 The prosecution presented evidence that, although Thompson
lived in Portland, Oregon, with his wife, he was in Denver, caring for
his mother, at the time of the murder. Thompson stayed in the
same apartment complex as the victim, and he and his brother
regularly purchased crack cocaine from the victim. The victim’s
girlfriend testified about animosity between Thompson and the
victim over drug dealings.
¶5 Thompson confessed to four people that he murdered the
victim, and all four testified at trial. One witness was Thompson’s
wife. She testified that Thompson had told her that he and his
brother were upset with the victim for selling them diluted crack
cocaine, so they decided that the victim had “to die today.”
Thompson also told her that his brother held the victim down while
Thompson stabbed him, and that Thompson accidentally cut
himself on his wrist during the altercation. Enraged by the cut,
Thompson stabbed the victim “over and over.” Thompson and his
2
brother “rolled the victim up in something,” put the body in the
brother’s van,1 and dumped him in an alley.
¶6 Another witness testified that Thompson told him that he had
stabbed a drug dealer in Denver. Still another said that Thompson
told him he had murdered someone. The fourth witness testified
that Thompson told him that, while he was in Denver, he had killed
the person who cut him on the wrist.
¶7 On the day that police discovered the victim’s body, Thompson
went to a Denver hospital for treatment for a cut to his wrist. A
doctor testified at trial that Thompson’s cut was consistent with a
stab wound. Thompson testified differently; he said that the cut on
his wrist came from a broken piece of glass.
¶8 The prosecution also presented scientific evidence to the jury
to establish that the blood found on a carpet in the van likely came
from the victim.
1 At various points in the record, the vehicle used to transport the
victim’s body is referred to as a truck and as a van. This distinction
makes no difference to our analysis.
3
B. First Postconviction Proceeding
¶9 DNA testing conducted after Thompson’s trial revealed that
the bloodstain in the van did not belong to the victim, contrary to
the prosecution’s arguments and evidence at trial. After this came
to light, Thompson’s first postconviction counsel moved for a new
trial based on newly discovered evidence under Crim. P. 35(c)(2)(V).
Thompson’s first postconviction counsel also asserted eight
ineffective assistance of trial counsel claims. The first
postconviction court denied the eight ineffective assistance claims
after a hearing.
¶ 10 That postconviction court also concluded that the new DNA
evidence was insufficient to warrant a new trial. The court
reasoned that, although the newly discovered evidence was
significant, when considered in combination with all the other
evidence, it would not likely have resulted in an acquittal —
particularly given Thompson’s four confessions. On that basis, the
court concluded that Thompson’s argument was “too great a reach.”
¶ 11 For seven reasons, a division of this court affirmed the first
postconviction court’s order:
4
First, the evidence established that defendant
and the victim knew each other well and lived
“very close” to each other.
Second, they had a relationship pertinent to
the case: defendant regularly purchased drugs
from the victim. Indeed, defendant admitted
that he purchased drugs from the victim
during the time frame in which the murder
occurred.
Third, defendant had a motive to kill the
victim. The victim’s girlfriend testified that
there was animosity between defendant and
the victim because of problems arising out of
their drug transactions. . . .
Fourth, while living in Portland after the
murder, defendant admitted to his wife that he
had murdered the victim. Defendant’s wife
testified that defendant provided explicit
details about the killing, including how his
brother held the victim while defendant
stabbed the victim; how the victim struggled,
causing defendant to cut himself on the wrist;
how this cut enraged defendant and led him to
stab the victim “over and over”; and how they
disposed of the body.
....
Fifth, while living in Portland, defendant also
made admissions to three men about the
killing. . . .
Sixth, physical evidence corroborates this
testimony. On the same day that the police
found the victim’s body, shortly after the
victim was slain, defendant sought treatment
at Denver General Hospital for the cut on his
5
wrist. This cut was consistent with the type of
wound one might receive from a knife. . . .
Seventh, the prosecution’s closing arguments
focused on the testimony from defendant’s
wife, the three men, and the cut on
defendant’s wrist. The prosecutors mentioned
the results of the tests on the carpet, but that
evidence was used to corroborate defendant’s
various admissions; it did not serve as the
centerpiece of the prosecution’s case.
People v. Thompson, slip op. at 9–11 (Colo. App. No. 06CA2270,
Sept. 10, 2009) (not published pursuant to C.A.R. 35(f)).
Ultimately, that division concluded that the blood stain evidence
was “corroborative of, but not crucial to, defendant’s guilt.” Id. at
11. The supreme court denied certiorari, and this court issued the
mandate.
C. Second Postconviction Proceeding
¶ 12 Years later, Thompson again moved for postconviction relief
under Crim. P. 35(c)(2)(V) based on newly discovered evidence.2 He
requested additional DNA testing of the victim’s clothing, the
mattress cover, the blanket, and the extension cord, on the theory
that there was a strong possibility that the actual perpetrator’s DNA
2 There is no time bar on motions for postconviction relief from
class 1 felony convictions. § 16-5-402(1), C.R.S. 2019.
6
was on those items, but that Thompson’s DNA was not. Later,
Thompson moved for preservation of evidence and DNA testing
under section 18-1-413.
¶ 13 The second postconviction court first denied Thompson’s
motion for postconviction relief based on newly discovered evidence
because it was premature.
¶ 14 Thompson again moved for a new trial based on newly
discovered evidence, this time based on an expert opinion that the
cut on his wrist was not caused by a knife but was instead caused
by a piece of glass (as Thompson had testified at trial). Thompson
also alleged that trial counsel was ineffective for failing to present
such an expert opinion at trial, and that postconviction counsel was
ineffective for failing to investigate this theory and for failing to raise
this issue in the first postconviction motion.
¶ 15 The second postconviction court held a hearing on
Thompson’s motion for DNA testing of various items that had not
been previously tested. Experts hired by both Thompson and the
prosecution testified about DNA testing and the possible results.
The court denied Thompson’s motion in a thorough written order,
concluding that Thompson failed to show that additional DNA
7
testing would prove his actual innocence, as required by section
18-1-413.
¶ 16 The postconviction court held a separate hearing on
Thompson’s newly discovered evidence and ineffective assistance of
counsel claims regarding the wrist-laceration theory. The court
denied Thompson’s newly discovered evidence claim because
evidence regarding “the source of the scarring was available both at
trial and at the prior 35(c) hearing” such that the wrist-laceration
theory was “not ‘evidence that could not have been discovered
previously through the exercise of due diligence’ as it was known
and knowable at the time of trial.” Thompson does not appeal the
denial of this newly discovered evidence claim.
¶ 17 The court also denied all of Thompson’s ineffective assistance
of counsel claims pertaining to the wrist-laceration theory. The
court reasoned that the claims pertaining to trial counsel were
procedurally barred as successive because they could have been
raised in the first postconviction motion. As to his first
postconviction counsel’s claimed ineffectiveness, the court
concluded that Thompson did not prove prejudice under Strickland
v. Washington, 466 U.S. 668 (1984).
8
II. Analysis
A. Order Denying Additional DNA Testing
¶ 18 Thompson first contends that the postconviction court erred
by denying his motion for additional DNA testing under section
18-1-413.
1. We Have Jurisdiction to Review the Order
¶ 19 The Attorney General argues that this court does not have
jurisdiction to review the order denying DNA testing because
Thompson did not timely appeal it. We reject the Attorney
General’s argument.
¶ 20 Jurisdiction is a question of law that we review de novo.
People v. Vargas-Reyes, 2018 COA 181, ¶ 9. We lack jurisdiction to
hear untimely appeals. People v. Baker,
104 P.3d 893, 895 (Colo.
2005). “[I]n a criminal case the notice of appeal by a defendant
shall be filed in the appellate court and an advisory copy served on
the clerk of the trial court within 49 days after the entry of the
judgment or order appealed from.” C.A.R. 4(b)(1).
¶ 21 It was unclear whether the postconviction court’s order
denying additional DNA testing was a final order. Indeed, in a later
order the postconviction court stated, “[t]he Court notes that
9
Defendant may appeal [the order denying DNA testing] once the
pending 35(c) hearing is resolved.”3 Under these circumstances, we
conclude that Thompson’s appeal is timely because the
postconviction court entered an interlocutory order, not a final
order.
¶ 22 Alternatively, even if the order denying DNA testing was a final
appealable order, we conclude that we have jurisdiction to hear the
appeal under the unusual circumstances doctrine. This doctrine
“may apply if a party reasonably relies and acts upon an erroneous
or misleading statement or ruling by a trial court regarding the time
for filing post-trial motions.” Converse v. Zinke, 635 P.2d 882, 886
(Colo. 1981). The postconviction court told counsel that he could
appeal “once the pending 35(c) hearing is resolved”; any error in
failing to timely appeal the order was made in reasonable reliance
on the postconviction court’s statement.
3The quoted language appears in the court’s order denying
Thompson’s request to stay the court’s order on DNA testing.
10
2. The Postconviction Court Correctly Denied Thompson’s Motion
for Additional DNA Testing
¶ 23 Thompson argues that additional DNA testing would
demonstrate his actual innocence, and that the postconviction
court erred by concluding otherwise.
¶ 24 Review of a postconviction motion for DNA testing presents a
mixed question of fact and law. People v. Young, 2014 COA 169,
¶ 37. We review the postconviction court’s factual findings for clear
error and the court’s legal conclusions de novo.
Id.
¶ 25 Section 18-1-413(1) prohibits a court from ordering
postconviction DNA testing “unless the petitioner demonstrates by a
preponderance of the evidence that . . . [f]avorable results of the
DNA testing will demonstrate the petitioner’s actual innocence.”4
Actual innocence is “clear and convincing evidence such that no
reasonable juror would have convicted the defendant.”
§ 18-1-411(1), C.R.S. 2019.
¶ 26 We agree with the postconviction court that the absence of
Thompson’s DNA on the mattress pad, blanket, extension cord, and
4 A petitioner must also demonstrate three other statutory elements
that are not at issue in this appeal. § 18-1-413(1), C.R.S. 2019.
11
victim’s clothes would not constitute “clear and convincing evidence
such that no reasonable juror would have convicted the defendant.”
DNA testing of these items would not necessarily or logically rebut
other strong evidence of Thompson’s guilt: (1) his confessions to
four different people; (2) the fact that he lived in the same
apartment complex as the victim and was in Denver at the time of
the murder; (3) his acquaintance with the victim; (4) the fact that he
had a motive, according to his wife and the victim’s girlfriend,
because Thompson had received bad drugs from the victim; and (5)
the cut on his wrist, for which he received treatment at a Denver
hospital on the same day that police found the victim’s body.
¶ 27 Furthermore, the court credited the prosecution’s expert, who
testified that Thompson’s DNA could “be missed due to overarching
DNA evidence from the victim . . . and the ‘needle’ of locating bodily
fluid of [Thompson] in a ‘haystack’ of the clearly overwhelming
amount of bodily fluids on the crime scene.”
¶ 28 The court ruled that “[b]ecause so many factors can influence
the outcome, the court cannot find by a preponderance of the
evidence that a finding of the absence of [Thompson’s] DNA would
demonstrate his actual innocence.” This factual finding and the
12
resulting legal conclusions are amply supported by the record and
we cannot disturb them.
3. Thompson’s Other Arguments Regarding DNA Testing Fail
¶ 29 Thompson next argues that the court erred by requiring him
to proceed exclusively under the DNA testing statute, sections
18-1-411 to -416, C.R.S. 2019, instead of allowing him to claim an
independent right to DNA testing under Crim. P. 35(c). We
disagree.
¶ 30 The meaning of a court rule is a question of law that we review
de novo. Mercantile Adjustment Bureau, L.L.C. v. Flood, 2012 CO
38, ¶ 30.
¶ 31 It is unnecessary for us to decide whether sections 18-1-411
to -416 constitute the exclusive basis on which a postconviction
court can order DNA testing. The only other basis posited by
Thompson for DNA testing is Crim. P. 35(c). So, we only need to
decide whether Crim. P. 35(c) authorizes a DNA testing order. We
hold that it does not.
¶ 32 The plain language of Crim. P. 35(c), promulgated by the
supreme court, does not authorize discovery procedures, including
DNA testing. Had the supreme court intended to allow such
13
discovery in connection with a Crim. P. 35(c) motion, it easily could
have said so. It did not.
¶ 33 True, Crim. P. 35(c)(2)(V) permits a motion based on newly
discovered evidence, but that section does not address or authorize
the discovery of such evidence — DNA or otherwise. Rather, “[t]o
succeed on a motion for a new trial [based on newly discovered
evidence], the defendant should show that the evidence was
discovered after the trial.” People v. Rodriguez, 914 P.2d 230, 292
(Colo. 1996) (emphasis added) (quoting People v. Gutierrez,
622 P.2d
547, 559 (Colo. 1981)). Simply put, Crim. P. 35(c) is not a discovery
mechanism to find new evidence, but, rather, prescribes a
procedure to present such evidence when it has been obtained
through other sources.
¶ 34 In his notice of supplemental authority, Thompson cites
Bresnahan v. District Court for the proposition that a Crim. P. 35(c)
proceeding is controlled by criminal procedural rules with respect to
any permitted discovery.5
164 Colo. 263,
434 P.2d 419 (1967).
5Obviously, Bresnahan v. District Court,
164 Colo. 263,
434 P.2d
419 (1967), decided more than fifty years ago, is not “new” authority
within the meaning of C.A.R. 28(i). Nevertheless, because one of the
14
While that is true, Bresnahan does not entitle a defendant to any
postconviction discovery under Crim. P. 35(c).
¶ 35 There, the Colorado Supreme Court addressed whether
criminal or civil procedural rules applied to taking depositions in
connection with a postconviction deposition. The court said, “[a]
35(b) hearing is not a civil proceeding. Rather, it is but one phase
of a criminal proceeding. Such being the case, then, the taking of
any deposition to be used in a 35(b) hearing is governed by our
Rules on Criminal Procedure . . . .”6 Id. at 268,
434 P.2d at 421.
Thus, Bresnahan stands only for the proposition that if depositions
are taken in a Crim. P. 35(c) proceeding, they must be taken in
accordance with criminal, not civil, procedural rules. See
id.
Nothing in Bresnahan authorizes any particular discovery in
postconviction proceedings, much less DNA testing.
¶ 36 Next, Thompson argues that the postconviction court erred by
denying DNA testing because he needed it to prove Strickland
judges on this division asked counsel at oral argument whether he
had any supporting authority on this point, we exercise our
discretion to address, and reject, Thompson’s reliance on that case.
6 Many of the postconviction remedies now provided for in Crim. P.
35(c) were previously found in Crim. P. 35(b). People v. Wiedemer,
852 P.2d 424, 430 n.6 (Colo. 1993).
15
prejudice, and because his first postconviction counsel allegedly
was ineffective for not requesting that testing. These arguments fail
because, as stated previously, Crim. P. 35(c) does not provide an
independent basis for DNA testing.
¶ 37 Lastly, Thompson argues that he is entitled to additional DNA
testing because the prosecution allowed him to test the blood in the
van during his first postconviction proceeding. But the fact that the
prosecution previously stipulated to DNA testing of other evidence
does not entitle Thompson to whatever additional DNA testing he
now seeks.
¶ 38 Because Thompson failed to satisfy the statutory requirements
for postconviction DNA testing, the second postconviction court
properly denied his DNA testing request.
B. Order Denying Ineffective Assistance Claims
¶ 39 Thompson next contends that the postconviction court erred
by denying his ineffective assistance of counsel claims as to both
his trial counsel and his first postconviction counsel.
16
1. The Ineffective Assistance Claim Regarding Trial Counsel is
Successive
¶ 40 Thompson argues that his trial counsel provided ineffective
assistance because he failed to investigate or to provide expert
testimony regarding his wrist-laceration theory.
¶ 41 The postconviction court denied this claim because it was
successive and thus barred under Crim. P. 35(c)(3)(VII).
¶ 42 We review de novo whether a postconviction claim is
successive. People v. Taylor, 2018 COA 175, ¶ 8.
¶ 43 Crim. P. 35(c)(3)(VII) requires a court to “deny any claim that
could have been presented in an appeal previously brought or
postconviction proceeding previously brought.” Claims that could
have been brought in a previous postconviction motion are barred
because they are successive. Taylor, ¶ 20.
¶ 44 The postconviction court correctly denied Thompson’s claim
that trial counsel was ineffective because Thompson could have
raised this claim in his first postconviction motion. Thompson’s
argument that this claim has never previously been litigated fails
because it ignores the plain language of Crim. P. 35(c)(3)(VII), which
bars claims that “could have been presented” in a previous
17
postconviction proceeding. And the fact that Thompson argues that
his first postconviction counsel was ineffective for not arguing the
ineffectiveness of trial counsel in this regard does not automatically
revive the claim as to trial counsel.
¶ 45 Undeterred, Thompson argues that his first postconviction
counsel’s ineffectiveness constituted a justifiable excuse or
excusable neglect for not raising the ineffective assistance claim as
to trial counsel earlier. But while Crim. P. 35(c)(3)(VII) contains five
exceptions to the successiveness bar, justifiable excuse and
excusable neglect are not among them. The cases cited by
Thompson address the Crim. P. 35(c) motion time bar, which may
be tolled by justifiable excuse or excusable neglect. See, e.g., People
v. Chavez-Torres, 2016 COA 169M, ¶¶ 10–12, aff’d,
2019 CO 59.
The time bar is not at issue here; therefore, the authorities relied on
by Thompson are inapposite.
2. The Ineffective Assistance Claims Regarding Postconviction
Counsel Fail on the Merits
¶ 46 Thompson next argues that his first postconviction counsel
provided ineffective assistance of counsel because she (1) failed to
investigate or to procure expert testimony about the wrist-laceration
18
theory and (2) failed to request additional DNA testing of objects
associated with the murder.
¶ 47 As to the first claim, the postconviction court reasoned that
Thompson did not establish prejudice because Thompson argued
the wrist-laceration theory at trial (albeit not through expert
testimony), and the prosecution challenged the legitimacy of the
wrist-laceration theory through an expert who called it “junk
science.” The court ultimately concluded,
[T]he Court cannot find that [Thompson] has
demonstrated that [expert testimony on the
wrist-laceration theory] would have caused a
different result. Judge Stern clearly
determined that a new piece of exculpatory
evidence was not sufficient to tip the balance
in [Thompson’s] favor at trial. It is evident that
the addition of evidence with limited value
would [not] have overcome the “great reach” he
alluded to and change the outcome resulting
in a new trial.
¶ 48 As to the second claim, the court concluded that Thompson
“didn’t present sufficient evidence for the court’s consideration that
post-conviction counsel erred in not requesting further DNA testing
of objects associated with the murder . . . .”
¶ 49 “A claim of ineffective assistance of counsel presents a mixed
question of law and fact.” People v. Stovall, 2012 COA 7M, ¶ 18.
19
We review de novo the postconviction court’s legal conclusions but
defer to its factual findings when they are supported by the record.
Id.
¶ 50 A defendant bears the burden to prove his postconviction
claims by a preponderance of the evidence. People v. Naranjo,
840
P.2d 319, 325 (Colo. 1992). To prevail on a claim of ineffective
assistance, a defendant must show that (1) counsel performed
deficiently and (2) prejudice resulted from the deficient
performance. Strickland,
466 U.S. at 686; Carmichael v. People,
206 P.3d 800, 805–06 (Colo. 2009). “[T]he failure to establish one
prong of the two-part test defeats a claim for ineffective assistance.”
People in Interest of S.L.,
2017 COA 160, ¶ 60. The Strickland
standard applies “for evaluating the effectiveness of post-conviction
counsel.” Silva v. People,
156 P.3d 1164, 1169 (Colo. 2007).
¶ 51 To prove prejudice, a defendant must show that there is a
reasonable probability that, but for counsel’s deficient performance,
the result of the proceeding would have been different. Dunlap v.
People,
173 P.3d 1054, 1063 (Colo. 2007). “A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” Strickland,
466 U.S. at 694.
20
¶ 52 We reject Thompson’s argument that the postconviction court
applied the wrong standard for evaluating prejudice. The court
correctly noted that Thompson had the burden to prove his
postconviction claims by a preponderance of the evidence. Then,
the court correctly applied the reasonable probability standard for
determining whether Thompson demonstrated prejudice. But the
court concluded that “the outcome [of the prior proceeding] would
not have been different.”
¶ 53 Like the postconviction court, we reject both of Thompson’s
ineffective assistance claims regarding his postconviction counsel
because he has not demonstrated prejudice.
¶ 54 Thompson has not demonstrated that expert testimony on the
wrist-laceration theory would have changed the result of the first
postconviction proceeding. First, there is evidence in the record
supporting the postconviction court’s conclusion that the wrist-
laceration theory was “evidence with limited value,” including the
fact that the prosecution’s expert called the theory “junk science.”
Second, as the second postconviction court found (and as the first
postconviction court found, and a division of this court determined),
21
there was other strong evidence of Thompson’s guilt, including the
four witnesses’ testimony about Thompson’s confessions.
¶ 55 Thompson also failed to demonstrate that the result of the
prior proceeding would have been different had counsel requested
additional DNA testing.7 Such an argument is inherently
speculative because the testing has not been performed. “When the
evidence only provides speculative proof of prejudice,” a defendant’s
ineffective assistance claim fails. People v. Finney, 2012 COA 38,
¶ 66, aff’d,
2014 CO 38.
III. Conclusion
¶ 56 The orders are affirmed.
JUDGE FURMAN and JUDGE GROVE concur.
7 The Attorney General contends that Thompson’s claim regarding
DNA testing fails because he did not present any evidence about it
at the hearing. This appears to be the basis on which the trial
court denied the claim, as it reasoned that Thompson “didn’t
present sufficient evidence for the court’s consideration . . . .” But
the prosecutor at the Crim. P. 35(c) hearing stipulated that
Thompson’s expert’s testimony and affidavit from the hearing on
DNA testing could be incorporated into the record of the Crim. P.
35(c) hearing, and that the testimony and affidavit addressed this
argument. That being the case, we resolve this argument on
Thompson’s deficient evidence of prejudice. We may affirm a
district court’s judgment on any ground supported by the record,
even if the district court did not raise or address that ground.
People v. Scott, 116 P.3d 1231, 1233 (Colo. App. 2004).
22
