23CA1594 Peo v Howell 08-07-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1594 Adams County District Court No. 87CR504 Honorable Roberto Ramirez, Judge Honorable Kyle Seedorf, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Thomas J. Howell,
Defendant-Appellant.
ORDERS AFFIRMED
Division VI Opinion by JUDGE YUN Tow and Graham*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced August 7, 2025
Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan Bishop, Alternate Defense Counsel, Denver, Colorado, for Defendant- Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 Thomas J. Howell appeals the postconviction court’s orders
denying his Crim. P. 35(c) motion arising from the discovery of a
serology report. The court denied his motion primarily because of a
stipulation by the parties at trial that contained “concessions
beyond what the serology report asserted.” We affirm.
I. Background
¶2 In March 1987, Howell kidnapped, at gunpoint, three children
and one adult and later held hostage and sexually assaulted one of
the children — his nine-year-old stepdaughter. Howell’s
stepdaughter was taken to the hospital, where a doctor examined
her and collected samples for laboratory analysis. The doctor told
the investigating officer that he saw no signs of sperm, trauma, or
blood, but the victim’s hymen was not intact.
¶3 Howell was later told by his attorney that “the rape kit was
lost” but the prosecution was willing to stipulate to the doctor’s
findings. At the start of Howell’s two-day bench trial, the parties
stipulated that
as a result of a medical examination performed by [the doctor] there was no sperm found and no semen found on the victim . . . . There were no vaginal tears, vaginal abrasions or bleeding and there was no hymen intact.
1 ¶4 The victim testified that Howell licked her vagina, laid on top of
her, and put his penis in her vagina. She did not testify that he
ejaculated. (When asked if Howell had “messed on” her, she
responded by referring to her scraped knee.)
¶5 After hearing the evidence, the court found Howell guilty of
(1) three counts of second degree kidnapping; (2) second degree
kidnapping — sexual assault; (3) attempted second degree
kidnapping; (4) first degree sexual assault; (5) sexual assault on a
child; (6) aggravated motor vehicle theft; (7) failure to leave
premises; (8) four counts of menacing; and (9) first degree criminal
trespass. Regarding the sexual assault charges, the court explained
that it was
convinced beyond a reasonable doubt that the sexual assault testified to by [the victim] occurred. The Court is convinced by the details submitted by [the victim] as to the act and the fact that she did make outcry to the very first person she could identify as being a friend as to what occurred.
The Court . . . further is convinced by [the victim’s] steadfast story from the date of the offense to the date of trial. True, details changed in minor aspects but the Court would expect that from a child of [the victim’s] tender years.
2 True, there’s no medical evidence to support [the victim’s] allegation but the Court can utilize its life experiences in arriving at the decision that it can be easily explained by a child’s intolerance to pain and believes that Mr. Howell did not intend to hurt the child and would withdraw in sexual conduct when the child cried out.
¶6 The court sentenced Howell to an aggregate term of 112 years
in prison. A division of this court affirmed the judgment of
conviction but vacated the sentence and remanded the case for
resentencing. See People v. Howell, (Colo. App. Nos. 88CA0752 &
88CA1106, Nov. 23, 1990) (not published pursuant to C.A.R. 35(f)).
On remand, the trial court again sentenced Howell to an aggregate
term of 112 years in prison, and a division of this court affirmed the
sentence. See People v. Howell, (Colo. App. No. 92CA0247, Dec. 31,
1992) (not published pursuant to C.A.R. 35(f)). Thereafter, Howell
filed numerous unsuccessful postconviction motions and appeals.
¶7 In 2018, Howell filed a request under the Colorado Criminal
Justice Records Act for materials related to his case. In response,
he received a document that neither he nor his lawyers had seen
before: a serology report from the Colorado Bureau of Investigation
with the laboratory results from the victim’s rape kit. The report
3 stated only that the “examinations conducted . . . did not indicate
the presence of semen.”
¶8 In 2021, Howell filed a Rule 35(c) motion claiming that he was
entitled to a new trial based on newly discovered evidence and that
his trial and postconviction counsel were ineffective for failing to
discover the serology report. He also made conclusory allegations
that the prosecution had withheld the report from the defense in
violation of Brady v. Maryland, 373 U.S. 83 (1963).
¶9 The postconviction court denied Howell’s ineffective assistance
of counsel claim without a hearing, finding that trial and
postconviction counsel acted reasonably by not further investigating
the missing rape kit when the prosecution said it was lost.
However, the court determined that Howell was entitled to a hearing
on his newly discovered evidence claim and ordered that a copy of
his motion be sent to the Public Defender’s Office. It did not
address his Brady claim.
¶ 10 Although Howell was appointed a public defender, he
disagreed with her about what arguments to raise, told the court
that he did not want her to represent him, and asked the court to
appoint alternate defense counsel to take over the case until private
4 counsel could enter an appearance. The court held a hearing and
determined there was no good cause for substituting counsel, only
a disagreement about strategy. At Howell’s request, the court
allowed the public defender to withdraw and granted additional
time for private counsel to enter an appearance; when private
counsel did not do so, the court allowed Howell to proceed pro se.
¶ 11 Following the hearing on the newly discovered evidence claim,
the postconviction court ruled that Howell was not entitled to a new
trial. The court found that the serology report was not newly
discovered evidence because “the parties stipulated to the serology
report results” at trial. It further found that, even if it constituted
newly discovered evidence, the serology report was not likely to lead
to an acquittal on retrial because (1) the stipulation at trial
contained “concessions beyond what the serology report asserted —
all of which operate[d] in [Howell’s] favor”; (2) the trial court “clearly
accepted the fact that the medical exam rendered no physical
evidence of the sexual assault” and found that “the lack of physical
evidence was entirely consistent with guilt”; and (3) “even if the
serology report had been introduced at trial, it would not have given
5 the [c]ourt any facts it did not already have when it decided the
case.”
¶ 12 Howell now appeals.
II. Analysis
¶ 13 Howell contends that (1) the postconviction court erred by
denying his newly discovered evidence claim; (2) the prosecution
violated Brady by withholding the serology report; (3) the
postconviction court erred by denying his ineffective assistance of
counsel claim; and (4) the postconviction court erred by denying his
request for alternate defense counsel.
¶ 14 The People argue that Howell’s claims were both untimely and
successive; however, we decline to address the People’s argument
because we agree with the postconviction court that the claims fail
on the merits.
A. Newly Discovered Evidence
¶ 15 Howell contends that the postconviction court erred by
denying his motion for a new trial based on newly discovered
evidence. We disagree.
1. Governing Law and Standard of Review
¶ 16 A defendant may challenge a conviction on the basis
6 [t]hat there exists evidence of material facts, not theretofore presented and heard, which, by the exercise of reasonable diligence, could not have been known to or learned by the defendant or his attorney prior to the submission of the issues to the court or jury, and which requires vacation of the conviction or sentence in the interest of justice.
Crim. P. 35(c)(2)(V).
¶ 17 To succeed on a motion for a new trial based on newly
discovered evidence, the defendant must show that (1) the evidence
was discovered after trial; (2) he and his counsel were diligent in
attempting to discover it before trial; (3) the evidence is material and
not merely cumulative or impeaching; and (4) the evidence would
probably result in an acquittal if presented at another trial.
People v. Muniz, 928 P.2d 1352, 1357 (Colo. App. 1996).
¶ 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.
7 2. Discussion
¶ 19 Howell argues that the postconviction court erred by finding
that the serology report was not newly discovered evidence and was
not likely to lead to an acquittal on retrial. Specifically, he argues
that the doctor’s conclusion, based on a physical examination, that
there was no semen on the victim is not as reliable as the result of a
laboratory analysis that “did not indicate the presence of semen.”
While “[t]he lack of . . . semen through the physical examination is
not enough to create a reasonable doubt,” he argues, the “lack
of . . . semen through a lab examination is.”
¶ 20 But even assuming Howell is correct that the serology report is
newly discovered evidence and more reliable evidence of the
absence of semen than the doctor’s examination, he does not
address the fact that the absence of semen is consistent with the
victim’s testimony regarding the sexual assault. Indeed, as the
postconviction court noted, the trial court expressly found that “the
lack of physical evidence was entirely consistent with guilt.” Howell
does not explain how the serology report would undermine or call
into doubt any part of the victim’s testimony.
8 ¶ 21 Further, although the stipulation at trial was based on the
“result of a medical examination performed by [the doctor]” and not
on a laboratory analysis, it was considerably broader and more
favorable to Howell than the serology report indicating only the
absence of semen. Specifically, the stipulation provided that the
doctor’s examination had revealed “no vaginal tears, vaginal
abrasions or bleeding.” Yet despite the absence not only of semen
but also of any physical evidence of sexual assault, the trial court
was convinced of Howell’s guilt beyond a reasonable doubt based on
the victim’s testimony, steadfast story, and immediate outcry. We
thus cannot agree with Howell that, “had [he] been allowed to
present evidence that the serology results excluded semen . . . , the
result of the trial likely would have been different.”
¶ 22 We are not persuaded otherwise by Howell’s reliance on
Commonwealth v. Hawk, 709 A.2d 373 (Pa. 1998), and State v.
Fitzpatrick, 118 So. 3d 737 (Fla. 2013). In Hawk, 709 A.2d at 374,
377, the Pennsylvania Supreme Court held that the trial court erred
by not allowing the defense “to present the testimony of a forensic
scientist concerning the negative test results of a rape kit
administered to the alleged victim” because “scientific evidence
9 corroborative of [the defendant’s] denial of sexual intercourse would
have been highly probative of his credibility.” In Fitzpatrick, 118 So.
3d at 760, the Florida Supreme Court held that the defendant’s trial
counsel was ineffective for (among other things) failing to challenge
the qualifications of a forensic nurse examiner because counsel
“was ‘under the impression’ that she was qualified to testify.” In
reaching this conclusion, the court referenced testimony elicited
during a postconviction evidentiary hearing that “forensic nurse
examiners . . . have little to no involvement in the interpretation of
the evidence.” Id. But here, in contrast to both Hawk and
Fitzpatrick, the parties stipulated to the lack of physical evidence of
sexual assault. The doctor who examined the victim did not testify,
and his qualifications were not at issue.
¶ 23 We thus agree with the postconviction court that the serology
report would not likely result in an acquittal on retrial and,
accordingly, that Howell is not entitled to a new trial based on
newly discovered evidence. See Muniz, 928 P.2d at 1357.
B. Brady
¶ 24 Howell contends that the prosecution violated Brady by
withholding the serology report. We are not persuaded.
10 ¶ 25 Although the postconviction court denied Howell’s Rule 35(c)
motion without expressly addressing this issue, we may affirm on
any ground supported by the record. People v. Cooper, 2023 COA
113, ¶ 7.
¶ 26 It is a violation of a defendant’s constitutional right to due
process if the prosecution suppresses evidence that is “favorable to
an accused” and “material either to guilt or to punishment.” Brady,
373 U.S. at 87; see also People v. Bueno, 2018 CO 4, ¶ 27. A Brady
claim requires the defendant to show that “(1) the prosecution
suppressed evidence (2) that is exculpatory or favorable to the
defendant and (3) that is material to the case.” Bueno, ¶ 29.
¶ 27 Suppression occurs where a prosecutor fails to disclose
evidence, regardless of whether the prosecutor acts in good or bad
faith. Kyles v. Whitley, 514 U.S. 419, 432 (1995). Evidence is
exculpatory “if it tends to mitigate the likelihood of guilt or the
severity of the sentence.” Bueno, ¶ 31. And evidence is material “if
there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have
been different.” Id. at ¶ 32 (quoting United States v. Bagley,
473 U.S. 667, 682 (1985)). A “reasonable probability” is “a
11 probability sufficient to undermine confidence in the outcome.” Id.
(quoting Bagley, 473 U.S. at 682).
¶ 28 Here, even assuming that the prosecution suppressed
exculpatory evidence when it did not disclose the serology report to
the defense, we conclude that the report was not “material” for
Brady purposes — that is, there is no reasonable probability that,
had the report been disclosed, the result of the proceeding would
have been different. Id. As discussed above, the stipulation at trial
was significantly broader and more favorable to Howell than the
single result contained in the serology report, as the stipulation
stated not only that no semen was found on the victim but also that
she suffered no “vaginal tears, vaginal abrasions or bleeding.” But
the trier of fact nonetheless found the victim’s testimony more
persuasive than the lack of corroborating medical evidence.
Accordingly, the serology report confirming part of the stipulation
would not have changed the outcome.
C. Ineffective Assistance of Counsel
¶ 29 Howell contends that the postconviction court erred by
denying his ineffective assistance of counsel claim. We disagree.
12 1. Governing Law and Standard of Review
¶ 30 “A criminal defendant is constitutionally entitled to effective
assistance from his counsel.” Ardolino v. People, 69 P.3d 73, 76
(Colo. 2003). “[T]o prevail on an ineffective assistance of counsel
claim, a defendant must prove that 1) counsel’s performance was
deficient and 2) the deficient performance prejudiced the defense.”
Dunlap v. People, 173 P.3d 1054, 1062 (Colo. 2007). The failure to
prove either of these two prongs defeats an ineffective assistance
claim. People v. Thompson, 2020 COA 117, ¶ 50.
¶ 31 To establish deficient performance, a defendant must prove
that counsel’s representation “fell below an objective standard of
reasonableness.” Strickland v. Washington, 466 U.S. 668, 687-88
(1984). “[J]udicial scrutiny of counsel’s performance must be highly
deferential, evaluate particular acts and omissions from counsel’s
perspective at the time, and indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.” Ardolino, 69 P.3d at 76.
¶ 32 To establish prejudice, a defendant must show that “there is a
reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Strickland,
13 466 U.S. at 694. A reasonable probability is “a probability sufficient
to undermine confidence in the outcome.” Id.
¶ 33 We review the summary denial of a Rule 35(c) motion de novo.
People v. Joslin, 2018 COA 24, ¶ 5. A postconviction court may
deny a Rule 35(c) motion without an evidentiary hearing if the
allegations are bare and conclusory; the allegations, even if true, do
not warrant relief; or the record directly refutes the allegations. Id.
at ¶ 4.
2. Discussion
¶ 34 Howell argues that the postconviction court erred by finding
that trial and postconviction counsel acted reasonably by not
further investigating the missing rape kit after the prosecution said
it was lost. But he overlooks the stipulation that his trial counsel
obtained. “[C]ounsel has a duty to make reasonable investigations
or to make a reasonable decision that makes particular
investigations unnecessary,” and “a particular decision not to
investigate must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to counsel’s
judgments.” Strickland, 466 U.S. at 691. Here, considering that
counsel did not know what the results of the laboratory test would
14 be, counsel’s decision not to independently investigate the missing
rape kit was reasonable in light of the stipulation that there was no
physical evidence of sexual assault.
¶ 35 Further, even if counsel performed deficiently, Howell’s claim
nevertheless fails the prejudice prong of Strickland. Because
counsel obtained a stipulation broader and more favorable than the
results of the rape kit and, as the trial court explained, the lack of
physical evidence was consistent with the victim’s testimony
regarding the sexual assault, Howell cannot show a reasonable
probability that, had counsel further investigated the missing rape
kit, the result of the proceeding would have been different. See id.
at 694; People v. Phipps, 2016 COA 190M, ¶ 39 (holding that, even
if counsel “was deficient in failing to investigate,” the defendant’s
ineffective assistance claim failed because he could not show
prejudice).
¶ 36 We thus conclude that the postconviction court did not err by
denying Howell’s ineffective assistance of counsel claim without a
hearing.
15 D. Substitute Counsel
¶ 37 Howell contends that the postconviction court erred by
denying his request for substitute counsel. We again disagree.
1. Additional Background
¶ 38 After the postconviction court determined that Howell was
entitled to a hearing on his newly discovered evidence claim, a
public defender was appointed to represent him. When the People
responded to Howell’s Rule 35(c) motion, the public defender filed a
reply acknowledging that “[t]he [c]ourt has granted a hearing on a
limited issue related to the issue of newly discovered evidence” and
stating that, although she did not intend to file a supplement,
“Mr[.] Howell maintains his initial claims in the petition he filed.”
¶ 39 One month later, Howell sent a letter to the postconviction
court, saying that he disagreed with the public defender about what
arguments to raise. Howell wrote that
I have drafted the arguments in this Reply hoping that my lawyer would adopt them, and file them with the Court. I was advised by my lawyer that if I broached certain issues or arguments she would not file the Reply.
16 Two months later, the public defender filed a motion to continue the
hearing on Howell’s newly discovered evidence claim, explaining
that
Mr. Howell has continued to communicate with defense counsel in preparation for the hearing. Mr. Howell has stated both that he intends to have [private counsel] enter on his case and that he will be filing a motion to dismiss undersigned counsel due to a conflict. . . . Defense counsel does ask that the Court leave the case set on that date so Mr. Howell can address the Court on his conflict claims.
Howell also drafted a pro se motion requesting a conflict hearing, in
which he asserted that the public defender had not “taken the time
to read and understand” his postconviction motion; had suggested
to him that the postconviction court did not “have the acumen to
understand” his motion; had failed to timely contact him after her
entry of appearance; had not requested sanctions against the
prosecution; and “would not utter the words ‘new evidence’ or
‘DNA.’”1
1 Howell was not able to file this motion with the postconviction
court before the conflict hearing, and the court accordingly did not consider it, but it is included in the record on appeal.
17 ¶ 40 On the date of the scheduled hearing regarding Howell’s newly
discovered evidence claim, Howell informed the court that he no
longer wanted the public defender to represent him and that he was
in touch with private counsel who was considering taking the case
pro bono. In the meantime, Howell asked the court to appoint
“attorney defense counsel,” which we understand to mean alternate
defense counsel. The postconviction court agreed to hold a conflict
hearing and explained that
if I find that there is a conflict which is preventing you, at no-fault of your own, from having adequate representation, then I pay for another lawyer to step in. If I don’t, then your choices are [the public defender] with her legal education and training or you doing this by yourself or you having private counsel to do it.
¶ 41 In describing the alleged conflict, Howell said he believed that
“the prosecution has committed nine false statements” but that the
public defender disagreed and was “holding the prosecution’s
position.” He mentioned that he and the public defender “went over
the evidence and over it” but could not agree on the scope of the
stipulation at trial and its relationship to the contents of the
serology report.
18 ¶ 42 After hearing Howell’s explanation, the court found that there
was no conflict but rather “a disagreement on the strategy of
attacking [sic] the post-conviction relief.” At Howell’s request, the
court then excused the public defender and granted a thirty-day
continuance to allow private counsel to enter an appearance.
Ultimately, Howell appeared at the hearing on his newly discovered
evidence claim pro se.
2. Governing Law and Standard of Review
¶ 43 “[T]here is no constitutional right to post-conviction counsel
under either the United States Constitution or the Colorado
Constitution.” Silva v. People, 156 P.3d 1164, 1167 (Colo. 2007).
But “there exists a limited statutory right to post-conviction counsel
in Colorado if a defendant’s Crim. P. 35(c) motion has arguable
merit” arising from section 21-1-103, C.R.S. 2024 (providing for the
representation of indigent persons by the state public defender),
and section 21-1-104, C.R.S. 2024 (describing the duties of the
state public defender). Id. at 1167-68.
¶ 44 A defendant’s waiver of the constitutional right to counsel is
effective only if “the waiver is made voluntarily, knowingly, and
intelligently.” People v. Lavadie, 2021 CO 42, ¶ 26. But because a
19 defendant’s right to counsel in a Rule 35(c) proceeding “is statutory
and not constitutional, [the defendant’s] waiver must be voluntary
but need not be knowing and intelligent.” People v. Duran, 757 P.2d
1096, 1097 (Colo. App. 1988). A defendant’s waiver is voluntary
when the defendant refuses to proceed with appointed counsel
without good cause. People v. Arguello, 772 P.2d 87, 94 (Colo.
1989).
¶ 45 Good cause for the substitution of counsel includes “a conflict
of interest, a complete breakdown of communication or an
irreconcilable conflict which leads to an apparently unjust verdict.”
Id. (quoting McKee v. Harris, 649 F.2d 927, 931 (2d Cir. 1981)).
“However, before the substitution of counsel is warranted, the court
must confirm that the defendant has ‘some well[-]founded reason
for believing that the appointed attorney cannot or will not
competently represent him.’” People v. Faussett, 2016 COA 94M,
¶ 20 (alteration in original) (quoting People v. Kelling, 151 P.3d 650,
653 (Colo. App. 2006)).
¶ 46 “A conflict of interest exists when an attorney’s ability to
represent a client is materially limited by the attorney’s own
interests” or responsibility to another client. People v. Stroud, 2014
20 COA 58, ¶ 38; Colo. RPC 1.7(a). A complete breakdown in
communication warranting substitution of counsel “must be
evidenced by proof ‘of a severe and pervasive conflict with [the
defendant’s] attorney or evidence that [the defendant] had such
minimal contact with the attorney that meaningful communication
was not possible.’” Faussett, ¶ 24 (alteration in original) (quoting
United States v. Lott, 310 F.3d 1231, 1249 (10th Cir. 2002)).
“Disagreements pertaining to matters of trial preparation, strategy,
and tactics do not establish good cause for substitution of counsel.”
Kelling, 151 P.3d at 653.
¶ 47 “We review the trial court’s denial of an indigent defendant’s
request for substitute counsel for an abuse of discretion.” People v.
Johnson, 2016 COA 15, ¶ 29. “A trial court abuses its discretion
when its decision is manifestly arbitrary, unreasonable, or unfair,
or is based on an erroneous understanding or application of the
law.” Id.
3. Discussion
¶ 48 Howell argues that the postconviction court erred by finding
that no good cause existed for substituting counsel. Specifically, he
argues that the record supports a finding that the public defender
21 “would not file the Reply” and “refused to advocate for him,”
indicating a conflict so severe and pervasive as to constitute a
complete breakdown in communication. See Faussett, ¶ 24.
¶ 49 But what Howell actually told the postconviction court was
that the public defender “would not file the Reply . . . if I broached
certain issues or arguments.” (Emphasis added.) As he explained to
the court, he had “drafted the arguments” he wanted to make, but
the public defender refused to adopt them. Howell’s explanation of
the alleged conflict thus supports the postconviction court’s finding
of “a disagreement on . . . strategy,” which would not constitute
good cause for substitution of counsel. See Kelling, 151 P.3d at
653.
¶ 50 Moreover, the record does not reflect that the public defender
refused to represent Howell at the hearing. Although she elected
not to file a supplement to his postconviction motion, she
acknowledged the issue set for hearing and told the court that
Howell maintained his claims. She also indicated that she and
Howell had “continued to communicate . . . in preparation for the
hearing,” and Howell similarly acknowledged their ongoing
communication when he told the court that he and the public
22 defender had been “over the evidence and over it.” Although “[a]
court-appointed public defender does not have a duty to prosecute
a claim for post-conviction relief after determining that there is no
arguable merit to the defendant’s claim,” People v. Breaman,
939 P.2d 1348, 1351 (Colo. 1997), the public defender here never
indicated that she thought there was no arguable merit to Howell’s
claim or that she would not prosecute the claim for postconviction
relief on his behalf. Rather, she would not adopt the strategy
Howell proposed and make the arguments he wanted her to make.
¶ 51 Because the record supports the postconviction court’s
determination that no good cause existed for substitution of
counsel, we conclude that the court did not abuse its discretion by
declining to appoint alternate defense counsel. See
§ 21-2-103(1)(a), C.R.S. 2024 (“The office of alternate defense
counsel shall provide legal representation . . . [i]n cases involving
conflicts of interest for the state public defender . . . .”).
III. Disposition
¶ 52 The postconviction court’s orders are affirmed.
JUDGE TOW and JUDGE GRAHAM concur.