22CA0367 Peo v Johnston 04-24-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA0367 Arapahoe County District Court No. 10CR787 Honorable Shay K. Whitaker, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Steven Earl Johnston,
Defendant-Appellant.
ORDER AFFIRMED
Division VI Opinion by JUDGE BROWN Welling and Moultrie, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 24, 2025
Philip J. Weiser, Attorney General, Melissa D. Allen, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Robin M. Lerg, Alternate Defense Counsel, Montrose, Colorado, for Defendant-Appellant ¶1 Defendant, Steven Earl Johnston, appeals the postconviction
court’s January 2022 order denying his request for postconviction
relief under Crim. P. 35(c). We affirm the court’s order.
I. Background
¶2 In March 2010, Johnston and Paul Chatman entered the back
seat of a car occupied by the victim (who sat in front of Johnston in
the passenger seat) and D.D-L. (who sat in front of Chatman in the
driver’s seat). Once inside the car, Chatman pulled out a gun,
pointed it at the victim and D.D-L. and said, “[T]his is some
cold-hearted shit, but it’s hard times out here, empty everything out
of your pockets, money, everything.” Johnston also pulled out a
gun and held it to the back of the victim’s head. The victim told
D.D-L. to leave the car, and as she was walking away, “seven or
eight” gunshots rang out from inside the vehicle. The victim and
Chatman suffered fatal gunshot wounds, and Johnston fled the
scene.
¶3 Johnston was charged with first degree felony murder, two
counts of attempt to commit aggravated robbery, conspiracy to
commit aggravated robbery, possession of a weapon by previous
offender, and two crime of violence sentence enhancers. At trial,
1 the prosecution argued that Chatman and Johnston had conspired
and attempted to rob the victim and D.D-L. during a drug deal and
that Chatman and the victim were both killed during the attempt.
Through counsel, Johnston denied any conspiracy to rob the victim
and D.D-L. and explained that he only shot at the victim in
self-defense. The jury found Johnston guilty of first degree felony
murder, one count of attempted aggravated robbery, conspiracy to
commit aggravated robbery, and two crime of violence sentence
enhancers.1
¶4 On direct appeal, a division of this court affirmed the
convictions. People v. Johnston, (Colo. App. No. 12CA0855, Apr. 14,
2016) (not published pursuant to C.A.R. 35(e)). A year later,
Johnston filed a pro se motion for postconviction relief under Crim.
P. 35(c), raising fifteen claims relating to juror misconduct and
ineffective assistance of counsel. The court appointed
postconviction counsel, who filed a separate Crim. P. 35(c) motion,
expanding on five of the claims Johnston brought in his original pro
1 The jury acquitted Johnston of one count of attempted aggravated
robbery, and the prosecution moved to dismiss the possession of a weapon by previous offender charge after the jury rendered its verdict.
2 se motion and adding a sixth claim relating to cumulative error.
After conducting a two-day hearing, the postconviction court denied
Johnston’s request for postconviction relief in an order that
addressed only the claims in the counseled motion.
II. Analysis
¶5 Johnston contends that the postconviction court erred by
(1) failing to resolve the ten claims Johnston brought in his original
pro se motion and (2) denying three claims of ineffective assistance
of counsel. Recent precedent forecloses Johnston’s first contention,
and he has failed to show sufficient prejudice resulting from the
balance of his ineffective assistance claims. Accordingly, we affirm
the postconviction court’s order.
A. Pro Se Crim. P. 35(c) Claims
¶6 In his opening brief, Johnston contended that the
postconviction court erred by not resolving the ten claims he
asserted in his pro se motion that were not addressed in the motion
filed by postconviction counsel. But after Johnston filed his
opening brief, the supreme court held that counsel abandons
postconviction claims made in a pro se motion by not addressing
them in a later-filed counseled motion. See People v. Smith, 2024
3 CO 3, ¶¶ 17-20. The People argue, Johnston concedes, and we
agree that postconviction counsel abandoned Johnston’s remaining
pro se claims by not reasserting them in the counseled motion or
demonstrating any intent to revisit them during the proceeding.
See id. Thus, the postconviction court did not err by not resolving
those claims.
B. Ineffective Assistance of Counsel
¶7 Johnston contends that the postconviction court erred by
denying his claims that trial counsel provided ineffective assistance
by (1) failing to ask the trial court to remove a juror who had a
familial relationship with a prosecution witness; (2) failing to
consult with an independent forensic expert to provide evidence
that would support Johnston’s theory of defense; and (3) failing to
provide the prosecution with age-related mitigating evidence during
plea negotiations. We disagree.
1. Applicable Law and Standard of Review
¶8 Both the United States and the Colorado Constitutions
guarantee a criminal defendant the right to effective assistance of
counsel. U.S. Const. amends. VI, XIV; Colo. Const. art. II, § 16. To
succeed on a claim of ineffective assistance of counsel, a defendant
4 must show that (1) counsel’s performance was deficient, in that it
fell below the minimum standard guaranteed by the Sixth
Amendment; and (2) the defendant was prejudiced, in that there is
a reasonable probability that, but for counsel’s errors, the result of
the proceeding would have been different. Strickland v. Washington,
466 U.S. 668, 687-94 (1984); Dunlap v. People, 173 P.3d 1054,
1063 (Colo. 2007). A reasonable probability is “a probability
sufficient to undermine confidence in the outcome.” Dunlap, 173
P.3d at 1063 (quoting Strickland, 466 U.S. at 694). It requires that
the defendant prove more than a “mere possibility that counsel’s
errors affected the outcome” but does not require the defendant to
prove that counsel’s errors “more likely than not altered the
outcome in the case.” People v. Garcia, 815 P.2d 937, 941 (Colo.
1991) (quoting Strickland, 466 U.S. at 694). “Only where both the
performance prong and the prejudice prong have been proven will a
defendant be entitled to postconviction relief because of the
ineffective assistance of counsel.” Dunlap, 173 P.3d at 1063.
¶9 A claim of ineffective assistance of counsel presents mixed
questions of fact and law. Id. We review the postconviction court’s
factual findings for clear error but review de novo its ultimate
5 determinations on each of the performance and prejudice prongs.
Id.; People v. Newmiller, 2014 COA 84, ¶ 18; People v. Brown, 250
P.3d 679, 681 (Colo. App. 2010).
2. Failing to Remove a Juror
¶ 10 Johnston contends that his trial counsel provided ineffective
assistance by affirmatively agreeing to retain a juror after the juror
disclosed a familial relationship with one of the prosecution’s
witnesses and that counsel’s conduct prevented him from
successfully appealing the issue. We disagree that Johnston has
shown sufficient prejudice to warrant reversal.
a. Additional Background
¶ 11 Prior to jury selection, potential jurors were provided with a
questionnaire and a witness list and were asked to identify any
familiar names from the list in their questionnaire. Juror R
completed his questionnaire indicating that his stepdaughter was
employed by the Colorado Bureau of Investigation (CBI), but he did
not indicate that he knew any of the prospective witnesses. Neither
party questioned Juror R about his questionnaire during voir dire.
Juror R was selected to serve on the jury.
6 ¶ 12 The next morning, before evidence was presented, Juror R
notified the court that his stepdaughter, Agent Green, was listed as
a potential witness for the prosecution. When questioned by the
district court, Juror R explained that he and his wife married when
Agent Green was in college, that his relationship with his
stepdaughter “wouldn’t impact [him] at all,” and that he could
effectively evaluate her credibility despite their close relationship.
Defense counsel then asked Juror R whether he had any
discussions with Agent Green about the case and whether her work
led him to feel any “partisanship or bias” in favor of the
prosecution. Juror R stated that he and Agent Green “never”
discuss her cases or the work she does for CBI.
¶ 13 Following defense counsel’s questions, the prosecutor
proffered that Agent Green would testify that she conducted latent
fingerprint examinations on firearms and bullet casings connected
to the crime but “didn’t find anything.” The prosecutor explained
that Agent Green’s role was “somewhat minimal” and merely to
establish that the investigation was thorough. Rather than
objecting to Juror R serving on the jury, defense counsel stated,
7 “[W]e would leave [Juror R] as a juror in this case based upon his
answers to my questions.”
¶ 14 In testimony during the Crim. P. 35(c) hearing, trial counsel
conceded that she “should have excused Juror [R and] preserved
the appellate issue with respect to Juror [R], which by not excusing
him, essentially [she] waived.” Johnston also offered a criminal
defense expert who reviewed Johnston’s direct appeal counsel’s file
and testified that because trial counsel failed to object, direct
appeal counsel did not pursue the issue on appeal.
¶ 15 The postconviction court rejected Johnston’s claim, concluding
first that trial counsel’s failure to ask additional questions of Juror
R did not constitute deficient performance. “Perhaps even more
persuasive,” the court continued, “is the failure of the defense to
demonstrate prejudice to the defendant by leaving Juror [R] as a
sitting juror.” The court reasoned that Agent Green’s testimony
“indicated no specific scientific findings” and “had little to no
relevance to the case,” and when trial counsel was questioned about
the issue, she “indicated that she did not believe Agent Green said
anything relevant to the case.”
8 b. Johnston Has Failed to Demonstrate Prejudice
¶ 16 Johnston argues that his trial counsel’s decision to leave
Juror R on the jury amounted to deficient performance and resulted
in prejudice to him because he lost the ability to argue on appeal
that the trial court erred by not removing Juror R. Even assuming
counsel performed deficiently, we conclude that Johnston has failed
to demonstrate that he suffered prejudice.
¶ 17 As an initial matter, the People contend that Johnston failed to
preserve the claim he raises on appeal. They argue that Johnston
“makes no argument on appeal that the postconviction court’s
ruling on prejudice was incorrect” but instead asserts a “whole new
claim” arguing that “the loss of his right to appeal this issue” is the
source of prejudice. In response, Johnston highlights a statement
in his written closing argument to the postconviction court that
“trial counsel’s failure to object obviated an appellate issue that had
to be analyzed under plain error as [trial counsel] did not object.”
Although this claim of prejudice was only meagerly developed before
the postconviction court, we address and reject it on the merits.
See People v. Melendez, 102 P.3d 315, 322 (Colo. 2004) (to preserve
an issue for appeal, a party must present the trial court with “an
9 adequate opportunity to make findings of fact and conclusions of
law” on the issue).
¶ 18 Johnston asserts that he “does not have to argue why the loss
of his right to appeal the issue resulted in prejudice” because “the
loss of the right to appeal itself is the prejudice.” He draws support
for his argument from People v. Baker, 104 P.3d 893 (Colo. 2005),
and People v. Long, 126 P.3d 284 (Colo. App. 2005). Both cases
found Strickland prejudice when appellate counsel’s failure to timely
file a notice of appeal entirely deprived the appellant of the right to
a direct appeal. Baker, 104 P.3d at 897-98; Long, 126 P.3d
at 286-87.
¶ 19 We acknowledge that when an ineffective assistance claim is
based on counsel’s failure to perfect a direct appeal, we do not
analyze the merits of the proposed appellate claims because, in
such cases, the prejudice is not in the outcome of the proceeding
but in the forfeiture of it. People v. Lancaster, 2018 COA 168, ¶ 11
(citing Long, 126 P.3d at 286-87). But Johnston did not lose his
right to a direct appeal. In fact, Johnston filed a direct appeal,
which resulted in his convictions being affirmed. Johnston cannot
10 dispense with his obligation to demonstrate prejudice based on the
rule applied in Baker and Long.
¶ 20 Instead, there are only two possible consequences flowing from
trial counsel’s allegedly deficient performance: (1) if the appellate
court were to determine that counsel’s conduct amounted to waiver,
Johnston would lose the right to raise an appellate claim that the
trial court erred by failing to remove Juror R, see People v. Johnson,
2021 COA 102, ¶ 49 (“We do not review waived arguments.”), aff’d
on other grounds, 2023 CO 7; or (2) if the appellate court were to
determine that counsel’s conduct merely forfeited the claim,
Johnston would lose the right to have the claim reviewed under a
harmless error or constitutional harmless error standard rather
than under the plain error standard, see People v. Rediger, 2018 CO
32, ¶ 40 (Appellate courts “may review a forfeited error under the
plain error standard.”). To demonstrate prejudice under either
scenario, Johnston must show a reasonable probability that, had
his claim been preserved, it would have succeeded on appeal. See
Dunlap, 173 P.3d at 1063; cf. People v. Trujillo, 169 P.3d 235, 239
(Colo. App. 2007) (the defendant failed to show prejudice from
appellate counsel’s allegedly deficient performance in failing to raise
11 certain claims of error because he would not have prevailed on the
additional issues); Long, 126 P.3d at 286 (“To demonstrate
prejudice [in the context of a perfected appeal], the defendant must
show a reasonable probability that, but for counsel’s errors, [they]
would have prevailed on the appeal.”).
¶ 21 Because Johnston does not even attempt to argue that a
properly preserved claim would have been successful on appeal, he
has failed to demonstrate the requisite prejudice to sustain a claim
for ineffective assistance of counsel. See People v. Washington,
2014 COA 41, ¶ 20 (“If a court determines that a defendant has
failed to prove either prong of the Strickland analysis, it may deny
an ineffective assistance claim without addressing the other
prong.”); see also People v. Dyer, 2019 COA 161, ¶ 39 (“[A]n
appellate court may affirm a lower court’s decision on any ground
supported by the record . . . .”).2
2 Given how innocuous Agent Green’s testimony was, we fail to see
how the claim would have prevailed on appeal under any standard of reversal. Thus, we also agree with the postconviction court’s reason for concluding that Johnston failed to demonstrate prejudice.
12 3. Failing to Consult with an Independent Forensic Expert
¶ 22 Johnston contends that trial counsel rendered ineffective
assistance when she failed to consult with an independent forensic
expert about the interpretation, timing, and significance of the
victim’s injuries. We conclude that Johnston has failed to
demonstrate Strickland prejudice.
¶ 23 At the Crim. P. 35(c) hearing, trial counsel testified that while
she did not consider consulting an independent forensic expert
concerning the timing of the gunshots, she agreed that “offering an
expert opinion to the jury that [the victim] likely fired his gun prior
to sustaining his injuries” would have been helpful to the defense’s
theory of self-defense. Johnston also called a forensic pathologist
who offered several opinions concerning the sequence of events
based on the location and directionality of the victim’s wounds
relative to where Johnston and Chatman sat in the vehicle. The
postconviction court even allowed the expert to conduct a
demonstration in the courthouse garage using the vehicle in which
the crime occurred to support his opinion that the victim likely fired
his gun first, leading Johnston to fire back in self-defense.
13 ¶ 24 The postconviction court “found [the expert’s] testimony to be
speculative, hypothetical, and based on assumptions made by the
expert to conform to the evidence or to the ultimate opinion
rendered.” “Ultimately,” the court observed, “[the expert] could not
testify who fired first, could not opine as to what happened before
the first shot was fired, and could not opine as to anything that
took place outside of the car leading up to the alleged robbery.” The
court concluded that trial counsel’s failure to retain an independent
forensic expert did not fall “outside the wide range of professionally
competent assistance” and denied this claim.
b. Johnston Has Failed to Demonstrate Prejudice
¶ 25 Johnston contends that counsel performed deficiently by
failing to consult with an independent forensic expert because
“offering an expert opinion that [the victim] likely fired his gun
before sustaining his injuries could have helped the self-defense
theory.” (Emphasis added.) Even assuming counsel should have
retained such an expert, we conclude that Johnston has failed to
demonstrate that he was prejudiced.
14 ¶ 26 Johnston was convicted of first degree felony murder, with
robbery or attempted robbery as the predicate offense, pursuant to
section 18-3-102(1)(b), C.R.S. 2009:
A person commits the crime of murder in the first degree if . . . [a]cting either alone or with one or more persons, [they] commit[] or attempt[] to commit . . . robbery . . . , and, in the course of or in furtherance of the crime that [they are] committing, . . . the death of a person, other than one of the participants, is caused by anyone . . . .
“A person who knowingly takes anything of value from the person
or presence of another by the use of force, threats, or intimidation
commits robbery.” § 18-4-301(1), C.R.S. 2024. One attempts to
commit a crime “if, acting with the kind of culpability otherwise
required for commission of an offense, he engages in conduct
constituting a substantial step toward the commission of the
offense.” § 18-2-101(1), C.R.S. 2024. Thus, to convict Johnston of
felony murder, the jury had to find that (1) Johnston committed or
attempted to commit robbery, and (2) someone died during the
commission or attempted commission of that crime.
¶ 27 For three reasons we conclude that Johnston failed to
demonstrate a reasonable probability that, but for trial counsel’s
15 allegedly deficient performance, the outcome of the trial would have
been different. See Dunlap, 173 P.3d at 1063.
¶ 28 First, the proposed forensic testimony pertaining to the timing
and significance of the victim’s injuries would have done nothing to
undermine the jury’s findings that (1) Johnston attempted3 to rob
the victim; and (2) during the attempted robbery, the victim was
killed. Even if the victim shot first, that fact would be irrelevant to
(1) whether Johnston knowingly took a substantial step toward
taking something of value from the victim by the use of force,
threats, or intimidation, see §§ 18-2-101(1), 18-4-301; or
(2) whether the victim died, see § 18-3-102(1)(b), C.R.S. 2009. See
CRE 401 (Relevant evidence is “evidence having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would be without the evidence.”).
3 Johnston was charged with two counts of attempted aggravated
robbery; he was not charged with robbery or aggravated robbery. The jury convicted him of one count of attempted aggravated robbery. Thus, we know that the jury found Johnston guilty of felony murder based on the predicate offense of attempted robbery.
16 ¶ 29 Second, self-defense is not an affirmative defense to felony
murder. People v. Renaud, 942 P.2d 1253, 1256 (Colo. App. 1996);
see § 18-3-102(2), C.R.S. 2009 (containing the exclusive list of
affirmative defenses to felony murder). Self-defense “may be
available as an affirmative defense to a predicate felony but not as
to the resulting death.” Renaud, 942 P.2d at 1256. Johnston does
not argue that he acted in self-defense in attempting to rob the
victim, nor does he argue that trial counsel was ineffective for
failing to argue self-defense as to the attempted aggravated robbery
charges. Instead, Johnston argues that his expert’s testimony
“would have illustrated how [he] could not have fired the fatal shots
first, not to support a ‘self-defense’ claim, but because if he had,
[the victim] would not have been able to return fire given the extent
of his injuries,” which may have helped create reasonable doubt in
the minds of the jurors. But Johnston has failed to explain, and we
fail to see, how the forensic expert’s testimony would have created a
reasonable doubt regarding the elements of felony murder.
¶ 30 Third, even if trial counsel had consulted with the proposed
forensic expert, we doubt the expert’s testimony would have been
admitted at trial given the postconviction court’s assessment that
17 the testimony was speculative and hypothetical. See Lorenzen v.
Pinnacol Assurance, 2019 COA 54, ¶ 51 (“A court may reject expert
testimony that relies on bare assertions, subjective belief, or
unsupported speculation.”). If the evidence would not have been
admitted, then it is difficult to see (and Johnston has not explained)
how trial counsel’s failure to consult with the expert could have
affected the outcome of the proceeding. See Dunlap, 173 P.3d
at 1063.
¶ 31 Thus, we conclude that Johnston has failed to demonstrate
the requisite prejudice to sustain this claim of ineffective assistance
of counsel. See Washington, ¶ 20; see also Dyer, ¶ 39.
4. Failure to Provide Mitigation Evidence
¶ 32 Finally, Johnston contends that his trial counsel provided
ineffective assistance by failing to present the prosecution with
age-related mitigating evidence during plea negotiations. Again, we
perceive no prejudice.
¶ 33 Prior to the start of trial, Johnston and the prosecution
engaged in plea negotiations and “[came] close” to resolving the
matter. According to Johnston’s trial counsel, the prosecution
18 offered Johnston a plea deal requiring him to serve twenty-eight
years in the custody of the Department of Corrections. Despite her
recommendation that Johnston take the deal, Johnston rejected it,
preferring instead to pursue an offer between twenty and
twenty-four years.
¶ 34 Johnston was twenty years old at the time of the offense. At
the postconviction hearing, Johnston’s defense expert testified that
Johnston was a “youthful offender,” and competent criminal
defense counsel would have gathered school records, social service
records, or “as many records as possible” to provide evidence of
diminished culpability relating to his age. When asked if the
evidence he believed counsel should have discovered would have
impacted the plea negotiations in Johnston’s case, the expert
replied, “Potentially, yes.” Johnston’s trial counsel conceded that
she did not “present mitigation surrounding Mr. Johnston’s age and
brain development to the [prosecution],” but she “certainly [could]
not say” whether the evidence would have made a difference in plea
negotiations.
¶ 35 The postconviction court rejected Johnston’s claim due to the
“lack of any information that would indicate that any investigation
19 or presentation would have altered the negotiations in this case.”
The court explained that “[b]ased on the testimony at the hearing,
negotiations took place and [Johnston] had a certain number which
he considered to be acceptable, to which the prosecution did not
agree.” The court concluded that Johnston failed to “demonstrate
there was a prejudice to [him] in failing to obtain this information.”
¶ 36 Johnston contends that his trial counsel provided ineffective
assistance by failing to obtain and provide age-related mitigating
information to the prosecution during plea negotiations. We agree
with the postconviction court that Johnston has failed to
demonstrate prejudice resulting from counsel’s allegedly deficient
performance. See Lafler v. Cooper, 566 U.S. 156, 162 (2012) (the
Strickland test applies to claims that defense counsel provided
ineffective assistance in the plea-bargaining process).
¶ 37 Although Johnston offered expert testimony that mitigating
evidence such as school or social service records would have
“potentially” lowered the prosecution’s offer, his argument ends
there. Johnston points to a mitigation packet appended to his
postconviction counsel’s written closing argument for the Crim. P.
20 35(c) hearing, but he fails to explain how the evidence reflected in it
would have influenced the plea negotiations. Indeed, he argues
only that presenting the prosecution with such a mitigation packet
“might have tipped the scales in favor of a [twenty to twenty-
four]-year sentence offer that Mr. Johnston would have accepted.”4
(Emphasis added.)
¶ 38 To succeed on his claim, Johnston must show a reasonable
probability that the outcome of the proceedings would have been
different — that the prosecution would have made a lower offer and
that he would have accepted it. See Dunlap, 173 P.3d at 1063.
Even though “reasonable probability” is a “standard ‘somewhat
lower’ than a preponderance of the evidence,” People v. Sifuentes,
2017 COA 48M, ¶ 20 (quoting Strickland, 466 U.S. at 694), it still
requires that the defendant prove more than a “mere possibility that
counsel’s errors affected the outcome,” Garcia, 815 P.2d at 941.
“Potentially” or “might have” does not satisfy the standard. In the
4 In this part of his opening brief, Johnston says he would have
accepted a twenty-six-year offer, but the balance of the record suggests that Johnston was seeking a plea agreement between twenty and twenty-four years, so the twenty-six-year offer reference appears to be a typo. The discrepancy does not impact our analysis.
21 end, we conclude that Johnston has failed to meet his burden to
prove that his trial counsel’s failure to present mitigating evidence
to the prosecution during plea negotiations prejudiced him.
Accordingly, we reject this ineffective assistance of counsel claim as
well.
III. Disposition
¶ 39 We affirm the postconviction court’s order.
JUDGE WELLING and JUDGE MOULTRIE concur.