24CA0019 Peo v Cockrell 10-02-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0019 El Paso County District Court No. 13CR2514 Honorable R. Michael Mullins, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Brandon Cockrell,
Defendant-Appellant.
ORDER AFFIRMED
Division II Opinion by JUDGE FOX Brown and Meirink, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 2, 2025
Philip J. Weiser, Attorney General, Jillian J. Price, Deputy Attorney General, Denver, Colorado, for Plaintiff-Appellee
Suzan Trinh Almony, Alternate Defense Counsel, Broomfield, Colorado, for Defendant-Appellant ¶1 Defendant, Brandon Cockrell, appeals the postconviction
court’s order denying his Crim. P. 35(c) motion for postconviction
relief after an evidentiary hearing. We affirm.
I. Background
¶2 The victim in this case was shot multiple times and left on a
trail outside of Colorado Springs, where bystanders discovered him
and called 911. En route to the hospital, the victim said that
Cockrell had shot him. The victim died after arriving at the
hospital. Cockrell was arrested and charged with first degree
murder.
¶3 At trial, the prosecution presented evidence of (1) the victim’s
identification of Cockrell; (2) eyewitness reports of a white Cadillac
matching the description of one owned by Cockrell speeding away
from the scene; and (3) cell phone data indicating that Cockrell’s
cell phone was near the shooting. The victim and Cockrell had
injuries consistent with a physical altercation, so the prosecution
theorized that the victim and Cockrell were in a fight that ended
with Cockrell shooting the victim. But the prosecution did not
present any forensic evidence tying Cockrell to the murder.
1 ¶4 Cockrell was represented by two attorneys from the public
defender’s office. The attorneys endorsed a general denial defense,
and at trial they attempted to cast doubt on the victim’s
identification of Cockrell and the cell phone data’s reliability. They
also highlighted the lack of forensic evidence and argued that law
enforcement officers did not perform an adequate investigation. As
for Cockrell’s injuries, they offered that Cockrell was a boxer and
sustained those injuries in the ring rather than a fight with the
victim.
¶5 The jury found Cockrell guilty of first degree murder. The
district court sentenced him to life in prison without the possibility
of parole.
¶6 Cockrell appealed the judgment of conviction, asserting that
(1) the dying declaration statute was unconstitutional; (2) the trial
court erred by admitting evidence of the victim’s dying declaration;
and (3) the evidence was insufficient to sustain the jury’s verdict.
See People v. Cockrell, 2017 COA 125, ¶¶ 8, 19, 30. A division of
this court rejected Cockrell’s arguments and affirmed the judgment
of conviction. See id. at ¶¶ 18, 29, 33-34.
2 ¶7 Cockrell then filed a pro se Crim. P. 35(c) motion for
postconviction relief, alleging that his attorneys were ineffective.
After reviewing Cockrell’s claims, the postconviction court
appointed counsel, who supplemented Cockrell’s pro se motion,
asserting that his trial attorneys were ineffective by failing to
(1) investigate witnesses and present evidence; (2) consult with and
present an expert witness; and (3) develop a cohesive theory of
defense.
¶8 After considering Cockrell’s motion and supplement and the
People’s response, the postconviction court set the matter for an
evidentiary hearing. At the hearing, Cockrell presented testimony
that he had been in a fight two days before the murder and that he
had a close relationship with the victim. The court also heard
testimony from only one of Cockrell’s trial attorneys. Finally,
Cockrell presented testimony from an expert in gunshot residue
(GSR) evidence and a criminal defense expert. In a written order
following the hearing, the postconviction court rejected Cockrell’s
ineffective assistance claims and denied his motion.
3 II. Discussion
¶9 Cockrell contends that, contrary to the postconviction court’s
findings, the evidence at the postconviction hearing established that
his attorneys provided ineffective assistance by failing to
(1) adequately investigate and call witnesses in his defense;
(2) consult with or retain an expert witness in GSR; and (3) present
an alternate suspect defense. We address and reject each of these
contentions below.
A. Applicable Law and Standard of Review
¶ 10 “A criminal defendant is constitutionally entitled to effective
assistance from his counsel.” Ardolino v. People, 69 P.3d 73, 76
(Colo. 2003). To succeed on an ineffective assistance claim, the
defendant must establish that (1) counsel’s performance was
deficient, meaning it fell below an objective standard of
reasonableness; and (2) counsel’s deficient performance prejudiced
the defendant, meaning that a reasonable probability exists that,
but for counsel’s deficient performance, the result of the proceeding
would have been different. Strickland v. Washington, 466 U.S. 668,
687-88 (1984); Dunlap v. People, 173 P.3d 1054, 1062-63 (Colo.
2007). A postconviction court may reject an ineffective assistance
4 claim if the defendant fails to demonstrate either deficient
performance or prejudice. See People v. Aguilar, 2012 COA 181,
¶ 9.
¶ 11 The denial of a Crim. P. 35(c) motion after a hearing is a mixed
question of fact and law. People v. Corson, 2016 CO 33, ¶ 25. We
defer to the postconviction court’s factual findings but review de
novo the court’s ultimate conclusions regarding performance and
prejudice. See People v. Sharp, 2019 COA 133, ¶ 12. The
postconviction 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. Accordingly, “[w]here the
evidence in the record supports the findings and holding of the
postconviction court that presided over an evidentiary hearing, the
judgment will not be disturbed on review.” People v. Wardell, 2020
COA 47, ¶ 27.
B. Investigate and Call Witnesses
¶ 12 Cockrell asserts that his attorneys failed to adequately
investigate witnesses and present evidence in his favor.
Specifically, Cockrell asserts that, because his counsel did not
adequately investigate the case, they did not present evidence that
5 (1) he sustained the injuries in a fight two days before the murder,
and (2) he and the victim had a close relationship. We disagree.
¶ 13 Criminal defendants are entitled to sufficiently thorough
pretrial investigations “to develop potential defenses and uncover
facts relevant to guilt and punishment.” People v. Davis, 849 P.2d
857, 861 (Colo. App. 1992), aff’d, 871 P.2d 769 (Colo. 1994); see
Davis, 871 P.2d at 773 (“[C]ounsel has a duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary.”). When reviewing a claim of
ineffective assistance, the court must evaluate counsel’s alleged
failure to investigate for reasonableness, “applying a heavy measure
of deference to counsel’s judgments.” Strickland, 466 U.S. at 691.
Mere disagreement as to trial strategy will not support an ineffective
assistance claim. Davis, 849 P.2d at 861; People v. Apodaca, 998
P.2d 25, 29 (Colo. App. 1999).
1. Injuries from a Fight
¶ 14 Cockrell contends that his attorneys were ineffective for failing
to investigate his claim that his injuries were the result of a fight
that occurred two days before the murder and call witnesses to
testify about the fight and injuries. We disagree.
6 ¶ 15 At the evidentiary hearing, one of Cockrell’s acquaintances
testified that she attended Cockrell’s birthday party two days before
the murder. She said that Cockrell and another man at the party
got into a fight after the other man “came from behind and hit
[Cockrell] in the head with a bottle.” The witness testified that the
fight was “pretty intense” and that Cockrell suffered injuries to his
face and hands. The witness said that Cockrell’s attorneys visited
her, they asked her about the fight, and she told them the “exact
story” she testified to at the evidentiary hearing.
¶ 16 Cockrell’s attorney testified that he recalled talking to Cockrell
about “what the source of those injuries might have been.” He also
recalled that “Mr. Cockrell went to a boxing gym, and that that may
have actually been the explanation for some of those injuries.”
When asked whether he remembered any discussions about a fight
that had occurred before the murder, he said that he did not “have
a very firm recollection,” but “it sounded very familiar.” When
confronted with information that the defense case file did not
mention the fight, the attorney expressed surprise because he
remembered discussing the issue with his co-counsel.
7 ¶ 17 The criminal defense expert testified that it was “crucially
important” for the defense to explain the source of Cockrell’s
injuries because “it was . . . the only other physical evidence that
[the prosecution] had that Mr. Cockrell had been involved in an
altercation with the victim.” The expert believed that the boxing
angle was “fairly weak,” and the attorneys were therefore ineffective
for failing to investigate the earlier fight and present evidence of
that fight to explain Cockrell’s injuries.
¶ 18 The postconviction court rejected this assertion, finding that,
although the defense case file did not include notes about the fight,
the evidence established that defense counsel knew about it but
“chose not to proceed with” it. The court also determined that, even
if Cockrell’s attorneys’ decision to present the boxing angle to the
jury was a “weak explanation,” it was a strategic decision that was
not objectively unreasonable.
¶ 19 We agree with the postconviction court that Cockrell did not
establish that his attorneys provided deficient performance by not
investigating the fight or presenting it to explain his injuries.
Although Cockrell named at least four witnesses who could have
testified about the fight or his injuries, only one of those potential
8 witnesses testified at the evidentiary hearing. See People v.
Chambers, 900 P.2d 1249, 1252 (Colo. App. 1994) (when a
defendant alleges that counsel failed to investigate, he must
produce evidence of potential witnesses and their willingness to
testify). That witness said that Cockrell’s attorneys spoke with the
witness before the trial and that she told them about the fight. And
although Cockrell’s attorney could not remember much, he recalled
speaking to Cockrell and his co-counsel about the injuries and the
source of those injuries. Therefore, the record supports the court’s
finding that Cockrell’s attorneys adequately investigated the fight.
See People v. Newmiller, 2014 COA 84, ¶ 45 (noting that counsel’s
only duty is to conduct a reasonable investigation that is sufficient
to reveal potential defenses and facts related to guilt).
¶ 20 Having investigated the claim, the attorneys presumably made
a strategic decision to explain the injuries by telling the jury that
Cockrell was a boxer. See Arko v. People, 183 P.3d 555, 558 (Colo.
2008) (decisions about what witness to call are reserved to defense
counsel). And even if this explanation was relatively weak, as the
criminal expert opined, we agree with the postconviction court that
it was not objectively unreasonable, considering that the other
9 theory would have required the defense to admit evidence of
Cockrell’s violent acts and rely on testimony from a witness with a
criminal history. See Newmiller, ¶ 48; Davis, 849 P.2d at 861.
2. Close Relationship with the Victim
¶ 21 Cockrell argues that his attorneys were ineffective by failing to
investigate and call witnesses to testify about his close relationship
with the victim. We disagree.
¶ 22 At the evidentiary hearing, the postconviction court heard
testimony from one of Cockrell’s friends and Cockrell’s ex-wife.
They testified that Cockrell and the victim had a close relationship
and that Cockrell was like a “big brother figure” to the victim. Both
witnesses admitted that they had spoken to Cockrell’s attorneys
before the trial. Cockrell’s attorney said that he remembered
discussing with Cockrell the nature of the relationship with the
victim, but he did not “have any real specific independent
recollection of” the investigation into the relationship.
¶ 23 The criminal defense expert opined that, although the
attorneys were aware of the relationship between Cockrell and the
victim, they did not do enough to investigate it. However, the expert
admitted that presenting evidence to the jury that Cockrell and the
10 victim were close was potentially a “double-edged sword.”
Therefore, she said that she was “not positive” that the evidence
about Cockrell’s relationship was critical to Cockrell’s case.
¶ 24 The postconviction court found that presenting evidence of
Cockrell’s relationship with the victim was a “double-edged sword,”
as the criminal defense expert testified. Specifically, the court
noted that the evidence could have given “substantial support” to
the victim’s identification of Cockrell as the shooter and “undercut”
his defense that the victim had misidentified him. The court
therefore concluded that it was not objectively unreasonable for the
attorneys to avoid presenting evidence of the relationship.
¶ 25 Again, we agree with the postconviction court that Cockrell did
not establish that his attorneys provided deficient performance.
The record shows that the attorneys knew about the relationship
between Cockrell and the victim and that they interviewed the
witnesses with information about their relationship. Because the
strongest evidence against Cockrell was the victim’s identification, it
was reasonable for his attorneys to avoid anything that would add
weight to that identification, such as evidence that the victim was
11 very familiar with Cockrell. Therefore, based on these facts, we
reject Cockrell’s assertion. See Newmiller, ¶ 48.
C. GSR Expert Witness
¶ 26 Cockrell maintains that his attorneys were ineffective for
failing to consult with and obtain an expert witness in GSR. We
disagree.
¶ 27 Trial counsel has a duty to make reasonable investigations,
including consulting experts that could help rebut or severely
undermine the prosecution’s evidence. See id. at ¶¶ 45, 51. But
counsel need not introduce expert testimony if the attorney can
effectively cross-examine prosecution witnesses and elicit helpful
testimony. Id. at ¶ 60. Therefore, reviewing courts should afford
deference to trial counsel’s decisions about whether to call expert
witnesses. People v. Bradley, 25 P.3d 1271, 1276 (Colo. App. 2001).
¶ 28 At trial, the prosecution presented evidence that law
enforcement had collected samples from Cockrell’s hands and face,
as well as his vehicle, to test for GSR. Yet law enforcement did not
submit these samples for testing, and the prosecution therefore did
not have any evidence that Cockrell had fired a gun. The defense
12 pointed to the lack of GSR testing as evidence of law enforcement’s
shoddy investigation.
¶ 29 In his Crim. P. 35(c) motion, Cockrell asserted that his
attorneys needed to consult with and call a GSR expert witness to
rebut the prosecution’s assertion that GSR testing was “not very
relevant or important” in this case. In support, Cockrell presented
testimony from a GSR expert, who explained the mechanics and
collection of GSR, including the best sources where gunshot residue
might be found on a shooter. He also explained that if a person had
fired a gun multiple times, that person would likely have GSR on
their hands and clothes, which could then be transferred to
surfaces that they touched. The criminal defense expert then
testified that Cockrell’s attorneys were ineffective for failing to
present expert testimony to explain to the jury how significant it
was that the prosecution did not have any GSR evidence, given the
circumstances of this case.
¶ 30 The postconviction court determined that, although Cockrell’s
attorneys had not presented a GSR expert, they cross-examined the
prosecution’s witnesses and elicited testimony that supported their
theory of the case. See Newmiller, ¶ 60. The court concluded that
13 “even if [Cockrell’s] method of proof would have been better,” he had
not shown that “the method and strategy used by [his attorneys] fell
below the level of reasonably competent assistance demanded of
attorneys in criminal cases.”
¶ 31 To begin with, Cockrell did not present any evidence that his
attorneys were unfamiliar with GSR evidence and that they needed
to consult with an expert witness to properly understand the
evidence or cross-examine the prosecution’s witnesses on this
issue. Rather, as described in more detail below, the attorneys
demonstrated that they knew about the general mechanics of GSR
and used cross-examination to attack law enforcement’s lack of
investigation into GSR evidence.
¶ 32 The record indicates that Cockrell’s attorneys elicited the same
or similar information from the prosecution’s witnesses that
Cockrell wanted presented by an expert witness:
• Mechanics: One of the officers trained to collect GSR
evidence testified that it was “standard practice” to
collect GSR evidence in a shooting investigation. He said
that the presence of GSR can indicate whether someone
14 fired a gun and that when someone does, the most likely
place to find GSR is on the hands and face.
• Collection: A crime scene investigator (CSI) testified that
GSR is collected using “stubs,” which have an adhesive
side that is applied to a surface. He said that the stubs
are then logged into the evidence locker at the police
department. A detective testified that the test kits are
sent to the Colorado Bureau of Investigation for testing.
• Transfer: A different CSI testified that GSR can be
transferred from one place to another and even though
there is a chance it can be cleaned off, law enforcement
still tries to collect samples. A third CSI testified that
GSR is “very mobile” and noted that a gunshot victim
could potentially transfer GSR onto surfaces of the
ambulance he is transported in.
¶ 33 Using this evidence, Cockrell’s attorneys argued that, if
Cockrell had shot the victim as the prosecution theorized, it would
be surprising not to find GSR on him or his vehicle. Cockrell’s GSR
expert reviewed the testimony from the trial and could not identify
specific inaccuracies in the testimony.
15 ¶ 34 In sum, because the record supports the postconviction
court’s finding that Cockrell’s attorneys did not perform deficiently
under the circumstances presented here, we discern no error in the
court’s decision to reject Cockrell’s claim. See Bradley, 25 P.3d at
1276 (counsel’s decision to not call an expert motorcycle driver was
a tactical decision and therefore the defendant had not established
his ineffective assistance claim).
¶ 35 Finally, Cockrell asserts that his attorneys were ineffective for
failing to object to the coroner’s brief testimony about GSR because
the testimony was outside the scope of the witness’s expertise. The
coroner testified that the standard practice among forensic
pathologists was to not collect GSR because the victim will have
been handled by so many people and therefore produce a false
negative. We agree with the People that the examiner’s testimony
was within the scope of his expertise, and therefore counsel’s failure
to object did not fall below the level of reasonably competent
assistance. Cockrell otherwise fails to direct us to any authority for
his position or fully develop his argument. See People v. Bossert,
722 P.2d 998, 1010 (Colo. 1986) (“Effective assistance of
counsel . . . does not require an attorney to object to every possible
16 error.”); see also People v. Sparks, 914 P.2d 544, 548 (Colo. App.
1996) (counsel did not object to inadmissible character evidence
because “he did not want to draw undue attention to these indirect
references”).
¶ 36 In any event, the forensic examiner’s testimony related to why
GSR evidence is not particularly useful with respect to a shooting
victim, not a potential shooter. In other words, the examiner’s
testimony did not necessarily undermine the defense’s position
that, if Cockrell were the shooter, the prosecution would have found
GSR on him or in his car. Under these circumstances, Cockrell has
not established that, even if his attorneys were deficient for failing
to object, he was prejudiced by this testimony.
D. Alternate Suspect Defense
¶ 37 Cockrell submits that his attorneys were ineffective by failing
to present a cohesive theory of defense and should have instead
presented an alternate suspect defense. We disagree.
¶ 38 In his Crim. P. 35(c) motion, Cockrell asserted that the victim
and a mutual friend were involved in an altercation with two
individuals at the bus station. He claimed that one of the
individuals involved threatened to kill the victim. Cockrell argued
17 that his attorneys failed to investigate this incident and to call the
friend as a witness to support an alternate suspect defense.
¶ 39 At the postconviction hearing, Cockrell testified that he asked
counsel to investigate the incident at the bus terminal. Cockrell’s
friend testified that Cockrell’s counsel and an investigator visited
him in prison, and he told them about the incident. Specifically,
the friend said that he and the victim “got into it” with a couple of
“dudes” at the bus station and one “dude started telling [him] how
they was gonna, you know, kill [him and the victim].” Cockrell did
not present any evidence establishing the identity of the individuals
involved in the alleged incident. Nor did he ask trial counsel any
questions about whether the defense investigated this claim.
¶ 40 Based on this record, the postconviction court rejected
Cockrell’s claim, finding that his “argument [was] not supported by
the record” and that his attorneys were “consistent and focused on
presenting and developing evidence in support of their theory of
defense.”
¶ 41 We agree with the postconviction court that Cockrell did not
establish that his attorneys provided deficient performance by not
investigating an alternate suspect defense or presenting that
18 defense at trial. The record shows that Cockrell’s attorneys talked
to the friend about the incident and decided not to pursue that
theory at trial. And considering that the friend only had a vague
description of the alleged assailants, we are skeptical as to whether
an alternate suspect defense was a viable option. See People v.
Elmarr, 2015 CO 53, ¶ 23 (noting that, to present an alternate
suspect defense, the evidence must establish “a non-speculative
connection or nexus between the alternate suspect and the crime
charged”). Thus, because the record shows that the attorneys
investigated the alternate suspect theory, it was not deficient
performance — under the circumstances presented here — for
Cockrell’s attorneys to pursue a general denial defense. Steward v.
People, 498 P.2d 933, 934 (Colo. 1972) (defense counsel is the
“captain of the ship” on matters of strategy, including the theory of
defense); see Ardolino, 69 P.3d at 76 (noting that “[s]trategic choices
made after thorough investigation of the law and facts relevant to
plausible options are virtually unchallengeable”).
19 E. Abandoned Claims
¶ 42 Any claims that Cockrell raised in his postconviction motion
and supplement but did not reassert in this appeal are abandoned.
See People v. Osorio, 170 P.3d 796, 801 (Colo. App. 2007).
III. Disposition
¶ 43 The order is affirmed.
JUDGE BROWN and JUDGE MEIRINK concur.