Peo v. Ashby

• Court: Colorado Court of Appeals
• Decided: September 12, 2024
• Docket: 22CA0244
• Status: Unknown

Opinion

22CA0244 Peo v Ashby 09-12-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0244

Otero County District Court No. 14CR217

Honorable Mark A. MacDonnell, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

James Adam Patrick Ashby,

Defendant-Appellant.

ORDER AFFIRMED

Division VII

Opinion by JUDGE TOW

Pawar and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced September 12, 2024

Philip J. Weiser, Attorney General, Brittany Limes Zehner, Assistant Solicitor

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jason C. Middleton, Deputy

State Public Defender, Denver, Colorado, for Defendant-Appellant

1

¶ 1 Defendant, James Adam Patrick Ashby, appeals the district

court’s order denying his Crim. P. 35(c) motion entered after an

evidentiary hearing. We affirm.

I. Background

¶ 2 Ashby worked as a police officer for the Rocky Ford Police

Department. While on patrol with a civilian ride-along passenger,

he saw Jack Jacquez, the victim, riding his skateboard in the street.

¶ 3 Ashby pulled up next to Jacquez, and Jacquez got off his

skateboard and moved to the side of the road. Ashby spoke to

Jacquez through the open passenger side window, saying he

wanted to talk with him. According to Ashby, Jacquez said “fuck

you” before walking off. But the passenger did not hear Jacquez

say this. Rather, the passenger heard Jacquez say something

about “home.”

¶ 4 Jacquez turned around and began walking toward a nearby

house. Ashby got out of the car and followed him. Jacquez reached

into his backpack as he walked up to the house. Ashby later told

investigators that he thought that Jacquez could be reaching into

the backpack for a weapon. The investigators found Jacquez’s

housekeys, but no weapon, in the backpack.

2

¶ 5 Jacquez began knocking on the door, and called for his

mother, Violet Jacquez,

1

to answer the door. Ashby stepped on the

porch, grabbed Jacquez by the arm, drew his pistol, and pointed it

at him. Ashby told him to remove his hand from the backpack, and

he complied. There was nothing in his hand. Ashby holstered the

pistol.

¶ 6 Ms. Jacquez opened the door. Ashby said that he was still

holding Jacquez’s wrist when the door opened. But Ms. Jacquez

testified that Ashby was engaged in a “tug of war” over Jacquez’s

skateboard. Ashby said that, as he held onto Jacquez’s wrist,

Jacquez pulled him inside. In contrast, Ms. Jacquez testified that

Ashby won the tug of war over the skateboard, which he tossed into

the yard.

¶ 7 According to Ashby, Jacquez picked up a baseball bat, and

Ashby ordered him to drop it. But Ms. Jacquez testified that

Jacquez did not pick up a bat, and Ashby never ordered him to do

anything.

1

Because this case involves two people with the last name

Jacquez, like the district court, we will refer to Violet Jacquez as

Ms. Jacquez.

3

¶ 8 Ms. Jacquez said that Jacquez stepped into the kitchen and

that, while Ashby stood in the doorway, he shot Jacquez in the back

as Jacquez walked away. In contrast, Ashby later told investigators

that Jacquez was about to hit him with the bat when he fired.

¶ 9 Ms. Jacquez testified that after Ashby shot Jacquez, Ashby ran

into the yard, she went past Jacquez to see where Ashby went, she

went past Jacquez again to get her phone to call her daughter, and

she hit an object with her foot and tossed it into her bedroom. She

testified that she later found out that the object was the bat. She

said the bat had been by the refrigerator that night and that she

never went into the bedroom or saw anyone go into the bedroom

and did not hear Ashby say, “Drop the bat.”

¶ 10 The jury was shown photos of the bat on the bed in the

bedroom, partially covered with a blanket. In response to the jury

question, “Who put the bat on the bed, if you know?” Ms. Jacquez

testified that she did not know.

¶ 11 Jacquez died from a single gunshot wound to the middle of his

back.

¶ 12 The Rocky Ford Police Department asked a special team of

officers from other law enforcement agencies to investigate the

4

shooting. Corporal Randy Garrett, Sergeant Angelo Griego, Chief of

Police Frank Gallegos, Captain Micky Bethel, and Sergeant Vince

Fraker, among others, were involved in the investigation.

¶ 13 Following the team’s investigation, the prosecution charged

Ashby, and he went to trial on the second degree murder charge.

Ashby raised two affirmative defenses at trial. First, he maintained

that he had acted in self-defense under section 18-1-704, C.R.S.

2024. Second, he asserted that he was legally authorized to use

deadly physical force as a peace officer under section 18-1-707,

C.R.S. 2024.

¶ 14 The jury convicted Jacquez of second degree murder, and the

trial court sentenced him to sixteen years in the Department of

Corrections.

¶ 15 After Ashby’s conviction was affirmed on direct appeal, People

v. Ashby, (Colo. App. No. 16CA2140, July 11, 2019) (not published

pursuant to C.A.R. 35(e)), he timely filed a Crim. P. 35(c) motion. In

his motion, Ashby identified, as relevant on appeal, two pieces of

discovery that contained references to Ms. Jacquez saying that she

“hid” or “covered” the bat:

5

(1) Sergeant Fraker’s affidavit in support of his search

warrant, which contained the following statement: “Jack

Jacquez’s mother told Capt. Bethel she hid the baseball

bat.”

(2) Audio recording of dispatch and radio traffic from the

night of the offense, which contained a statement from

Captain Bethel: “The Chief came over and asked [Ms.

Jacquez], and she told him, ‘I took the bat, and I tried to

cover it up,’ and she told him that she is being honest.

The Chief says, ‘she just told me that she put the bat in

her room to cover it up . . . .’”

¶ 16 In his postconviction motion, Ashby contended that his trial

counsel, Carrie Slinkard and Michael Lowe, were ineffective and

that his due process rights were violated because the prosecution

elicited false testimony, among other claims. The district court held

an evidentiary hearing and issued an order, as relevant here,

denying both of those claims.

6

¶ 17 This appeal followed.

2

II. Standard of Review

¶ 18 A postconviction court’s ruling on a Rule 35(c) motion after a

hearing presents a mixed question of fact and law. People v. Sharp,

2019 COA 133, ¶ 12. “We defer to the court’s findings of fact if they

have record support, but we review any legal conclusions de novo.”

Id. The district court determines the weight and credibility to be

given to the testimony of witnesses in a Crim. P. 35(c) hearing.

People v. Hardin, 2016 COA 175, ¶ 39.

III. Analysis

A. Ineffective Assistance of Trial Counsel

¶ 19 Ashby contends that the district court erred by denying his

Crim. P. 35(c) claim, after an evidentiary hearing, that his trial

counsel were ineffective for (1) inadequately investigating the case;

(2) failing to cross-examine Ms. Jacquez about hiding or covering

the bat; and (3) failing to directly introduce evidence that Ms.

2

Claims raised in Ashby’s Crim. P. 35(c) motion but not reasserted

on appeal have been abandoned. See People v. Osorio, 170 P.3d

796, 801 (Colo. App. 2007).

7

Jacquez said that the bat was hidden or covered through various

police officers. We discern no error.

1. Applicable Law

¶ 20 When evaluating claims of ineffective assistance of trial

counsel, we apply the two-prong test set forth in Strickland v.

Washington, 466 U.S. 668 (1984). Ardolino v. People, 69 P.3d 73,

76 (Colo. 2003); People v. Long, 126 P.3d 284, 286 (Colo. App.

2005). To prevail on such a claim, a defendant must show that

(1) counsel’s performance was deficient, and (2) the deficient

performance prejudiced him. Strickland, 466 U.S. at 686.

¶ 21 To establish deficient performance, a defendant must prove

that counsel’s representation “fell below an objective standard of

reasonableness.” Id. at 688. “[A] court must indulge a strong

presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance; that is, the defendant must

overcome the presumption that, under the circumstances, the

challenged action ‘might be considered sound trial strategy.’” Id. at

689 (citation omitted). To establish prejudice, a defendant must

show that there is a reasonable probability that, absent the errors,

“the result of the proceeding would have been different.” Id. at 694.

8

¶ 22 A district court may reject an ineffective assistance of counsel

claim if the defendant fails to demonstrate either deficient

performance or prejudice. People v. Aguilar, 2012 COA 181, ¶ 9.

2. Application

a. Inadequate Investigation

¶ 23 Ashby first claims his trial counsel were ineffective for failing

to adequately investigate before trial, which would have led them to

discover Ms. Jacquez’s statements about hiding or covering the bat.

We disagree.

¶ 24 Counsel has a duty to make reasonable investigations,

Strickland, 466 U.S. at 691, or to make an informed decision that

further investigation into a particular defense is unnecessary,

Dunlap v. People, 173 P.3d 1054, 1066 (Colo. 2007). A reasonable

investigation means one that is “sufficient to reveal potential

defenses and the facts relevant to guilt.” Davis v. People, 871 P.2d

769, 773 (Colo. 1994).

¶ 25 In its order, the district court did not explicitly credit

Slinkard’s testimony, but it did so implicitly by exclusively relying

on her testimony to make the following findings: Slinkard spoke

with both Captain Bethel and Chief Gallegos prior to trial; and

9

Slinkard and Lowe both independently reviewed discovery, which

included various reports from police officers who had been on the

scene.

¶ 26 Ashby contends that the record does not support that Slinkard

individually interviewed Captain Bethel or Chief Gallegos and that

the district court ignored Captain Bethel and Sergeant Griego’s

contrary testimony. Captain Bethel and Sergeant Griego both

testified that Slinkard had not met with them individually but

rather met with them in a group with other police officers. But

Ashby’s focus on an individual meeting versus a group meeting is

misplaced because the district court found that Slinkard had

spoken with Captain Bethel and Chief Gallegos without specifying

in what setting. Moreover, where such credibility determinations

have record support — as they do here — we will not disturb them.

See Dunlap, 173 P.3d at 1061-62; see also People v. Vicente-Sontay,

2014 COA 175, ¶ 15 (recognizing that the district court determines

the “weight and credibility to be given to the testimony of witnesses

in a Crim. P. 35(c) hearing”).

¶ 27 Ashby also contends that even if counsel did individually

interview the officers, the investigation was inadequate because

10

counsel did not specifically ask them about the bat or Ms. Jacquez’s

statements about the bat. Slinkard testified that she did not

remember if she had asked Sergeant Fraker and Chief Gallegos

about the bat and did not remember if she was aware that Ms.

Jacquez had said she had put the bat on the bed to cover it up.

Slinkard also testified that she knew Ms. Jacquez had moved the

bat and that no witness she spoke with told her that Ms. Jacquez

said that she hid the bat. Lowe testified that, before trial, he would

have almost certainly read the statement in Sergeant Fraker’s

search warrant affidavit about Ms. Jacquez allegedly saying she hid

the bat, but Lowe could not specially recall at the time of the 35(c)

hearing.

¶ 28 Counsel’s specific inability to recall does not overcome the

presumption that, under the circumstances, counsels’ actions

should be considered sound trial strategy. Cf. People v. Gandiaga,

70 P.3d 523, 527 (Colo. App. 2002) (concluding that defendant

failed to carry their burden of proof on ineffective assistance of trial

counsel claim where trial counsel could not specifically recall

discussing plea offer with defendant but felt certain they had done

so). And to the extent Ashby cites other evidence in the record in

11

support of his contention, he merely asks us to reweigh conflicting

evidence — which we cannot do. See Dunlap, 173 P.3d at 1061-62.

¶ 29 Further, as noted, the court credited both trial counsels’

testimony that they had each independently reviewed the discovery

before trial, and we agree with the People that Ashby did not

present any evidence that had counsel asked the officers about Ms.

Jacquez’s alleged statement before trial, it would have revealed any

further information beyond what was in the search warrant affidavit

and audio recording. Thus, Ashby has not shown how he was

prejudiced by any failure of counsel to ask the officers about Ms.

Jacquez’s purported statement about hiding or covering the bat.

See People v. Chambers, 900 P.2d 1249, 1252 (Colo. App. 1994)

(“[D]efendant cannot demonstrate that counsel’s failure to

investigate resulted in any prejudice to him . . . [u]nless such

investigation would have discovered substantial evidence which, if

introduced, might reasonably have led to a different result . . . .”).

¶ 30 In sum, Ashby failed to show trial counsels’ performance was

deficient or that he was prejudiced.

12

b. Cross-Examination

¶ 31 Ashby also contends that trial counsel were ineffective for

failing to cross-examine Ms. Jacquez about her purported prior

inconsistent statements about hiding or covering the bat. We

disagree.

¶ 32 Defense counsel has the final word on strategic decisions,

including “what witnesses to call (excepting the defendant), whether

and how to conduct cross-examination, what jurors to accept or

strike, and what trial motions to make.” Arko v. People, 183 P.3d

555, 558 (Colo. 2008) (quoting People v. Curtis, 681 P.2d 504, 511

(Colo. 1984)).

¶ 33 The district court found that Slinkard testified that she

believed at the time of her cross-examination of Ms. Jacquez that

Ms. Jacquez’s credibility had been put into question. The court

also found that Slinkard testified that she took care not to

cross-examine Ms. Jacquez too aggressively because she was the

victim of a traumatic crime and that it might not come across well

to the jury for her to do so. The court noted that Slinkard testified

that there was a multitude of factors to consider when deciding

when to stop cross-examination, including that juries can become

13

tired and stop paying attention, and that deciding how far to take a

cross-examination was a matter of trial strategy. Finally, the court

credited Lowe’s testimony that had he felt there was a topic that

Slinkard had not covered during the cross-examination of Ms.

Jacquez, he would have brought it to Slinkard’s attention.

¶ 34 Ashby asserts that these factual findings were not supported

by the record because counsel did not specifically impeach Ms.

Jacquez with her statement about hiding or covering the bat and

because Slinkard and Lowe did not testify that it was a strategic

decision to not impeach Ms. Jacquez with her statement. We

disagree with both contentions.

¶ 35 Slinkard testified that she did not recall why she would not

have used the statement at trial and did not remember why she

would not have asked Ms. Jacquez about hiding the bat on

cross-examination. But she also testified that she would have

known at the time how she decided whether to impeach a witness

on a particular factual issue, that she conducted Ms. Jacquez’s

cross-examination like she did in other cases, and that she believed

she had adequately impeached Ms. Jacquez.

14

¶ 36 And while Lowe testified that Ms. Jacquez’s statement about

hiding the bat “would so obviously have been something that would

come in at trial that I can’t imagine that it was a conscious choice

or strategic choice not to” elicit it, the district court credited

Slinkard’s testimony about how she chose to do her

cross-examinations in other cases and that she did the same with

her cross-examination of Ms. Jacquez, as well as Lowe’s subsequent

testimony that he would have said something to Slinkard had she

missed an important cross-examination topic.

¶ 37 The district court’s findings have record support, and as such

we will not disturb them. See Dunlap, 173 P.3d at 1061-62; see

also Vicente-Sontay, ¶ 15.

¶ 38 Moreover, although counsel did not specifically testify that it

was a strategic decision to not impeach Ms. Jacquez with Ms.

Jacquez’s statement about hiding or covering up the bat, as noted,

Slinkard testified how she typically conducted cross-examination

and that she did that in this case, and as such the presumption

that her cross-examination was sound trial strategy is not

overcome. See also People v. Moody, 676 P.2d 691, 696 (Colo.

1984) (concluding that testimony by defendant’s trial counsel, who

15

had no specific recollection of meeting with defendant prior to his

preliminary hearing, that it was his practice to do so when

representing defendants and that he had no recollection of not

following such practice with defendant was sufficient to support

finding that defendant had not met his burden of showing

ineffective representation).

¶ 39 Thus, Ashby failed to show trial counsels’ performance was

deficient.

c. Substantive Evidence

¶ 40 Ashby contends that Ms. Jacquez’s statement about hiding or

covering the bat could have been introduced through Sergeant

Fraker, Captain Bethel, and Chief Gallegos as substantive evidence

pursuant to section 16-10-201, C.R.S. 2024.

3

Again, we disagree.

¶ 41 Ashby did not make this argument in his Crim P. 35(c) motion

but did make it in closing argument at the Crim. P. 35(c) hearing

with respect to Sergeant Fraker and Captain Bethel. To the extent

3

Ashby contends, for the first time, in his reply brief that Ms.

Jacquez’s statement about hiding or covering the bat could have

come in through the audio recording. This argument is not

properly before us, and we decline to address it. See People v. Cline,

2022 COA 135, ¶ 75 n.3.

16

that his argument pertains to Chief Gallegos on appeal, it is

unpreserved, and we decline to address it. See People v. Goldman,

923 P.2d 374, 375 (Colo. App. 1996) (“Allegations not raised in a

Crim.P. 35(c) motion or during the hearing on that motion and thus

not ruled on by the trial court are not properly before this court for

review.”).

¶ 42 As to Sergeant Fraker, counsel asked him at trial whether Ms.

Jacquez told Captain Bethel that she hid the bat, an objection was

lodged, and the trial court sustained the hearsay objection. Thus,

because counsel did exactly what Ashby complains they did not do,

Ashby has not demonstrated that their performance was deficient.

¶ 43 Moreover, with respect to both Captain Bethel and Sergeant

Fraker, Ashby points to no testimony from the Crim. P. 35(c)

hearing demonstrating that failing to introduce the statements was

unsound trial strategy or that Slinkard misunderstood the law. Cf.

Gandiaga, 70 P.3d at 527 (concluding that defendant failed to carry

his burden of proof with respect to the claim where defendant

produced no admissible evidence to the contrary). Ashby merely

points to Slinkard’s answers to questions about how to impeach a

witness with a prior inconsistent statement — not about her

17

understanding of introducing Ms. Jacquez’s statement as

substantive evidence.

¶ 44 Thus, although the district court did not make findings with

respect to this argument, there is no evidence in the record to

support Ashby’s contention. See People v. Washington, 2014 COA

41, ¶ 1.

¶ 45 Finally, we reject Ashby’s apparent contention that the district

court unreasonably relied on Slinkard’s testimony. Specifically,

Ashby appears to argue that the court should have placed no

weight on Slinkard’s testimony that she did not want to aggressively

cross-examine Ms. Jacquez and that she felt Ms. Jacquez’s

credibility had been sufficiently impeached on cross-examination.

Slinkard impeached Ms. Jacquez through other direct evidence —

specifically, photographs of the bat partially covered by a blanket

contradicted Ms. Jacquez’s testimony that she simply threw an

unknown object (later determined to be the bat) into the bedroom.

And at the Crim. P. 35(c) hearing Slinkard testified that the fact

that the bat was covered by a blanket on the bed was the same as

the word “hid.” Thus, Ashby has not demonstrated that defense

counsels’ performance was deficient.

18

B. Failure to Correct Allegedly False Testimony

¶ 46 Ashby also contends that the district court erred by denying

his claim that the prosecution violated his due process rights by

allowing Ms. Jacquez to testify that she did not know how the bat

got onto the bed and by failing to correct such testimony. We

discern no error.

¶ 47 When a prosecutor knowingly obtains a conviction using

testimony they should have known was false, even if the testimony

goes only to the credibility of the witness, it violates the defendant’s

due process rights. Napue v. Illinois, 360 U.S. 264, 269 (1959);

Giglio v. United States, 405 U.S. 150, 153-54 (1972). To receive a

new trial, a defendant must show that (1) “the prosecution’s case

included perjured testimony”; (2) “the prosecution knew or should

have known of the perjury”; and (3) “the perjury was material.”

People v. Medina, 260 P.3d 42, 48 (Colo. App. 2010). Mere

inconsistencies in a witness’s story are insufficient to show that

testimony was perjured. Gallegos v. People, 179 P.2d 272, 273-74

(Colo. 1947) (“The mere fact that sworn testimony may differ from

extrajudicial statements does not constitute perjury.”); People v.

Valera-Castillo, 2021 COA 91, ¶ 44.

19

¶ 48 The district court found that Ms. Jacquez made inconsistent

statements and that the People did not have independent

knowledge about what actually happened, concluding that no due

process violation occurred.

¶ 49 Ashby contends that Ms. Jacquez admitted to hiding the bat

but then at trial claimed otherwise. But we agree with the People

that the district court did not clearly err because Ashby has not

shown that the prosecution’s case included perjured testimony.

Although, Ms. Jacquez made inconsistent statements about what

she did with the bat, “a mere inconsistency in a witness’s story is

insufficient to support the conclusion that the testimony was

perjured or that the prosecutor knowingly offered false testimony.”

Valera-Castillo, ¶¶ 44, 46. Thus, to the extent that Ms. Jacquez’s

trial testimony was inconsistent with her prior statement, this fact

alone is not enough to demonstrate that her trial testimony was

false. Indeed, it was a credibility determination to be made by the

jury if they believed Ms. Jacquez’s trial testimony that she threw an

object (that she later found out to be the bat) that ended up on the

bed partially covered by a blanket without anyone going into the

bedroom. See Medina, 260 P.3d at 48; People v. Clark, 2015 COA

20

44, ¶ 175. Accordingly, the district court did not err by concluding

that the prosecution did not violate Ashby’s due process rights.

IV. Disposition

¶ 50 The order is affirmed.

JUDGE PAWAR and JUDGE SCHUTZ concur.