22CA1974 Peo v Larkin 05-08-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1974 Arapahoe County District Court No. 12CR1664 Honorable Andrew C. Baum, Judge Honorable Darren L. Vahle, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
David James Larkin,
Defendant-Appellant.
ORDER AFFIRMED
Division VII Opinion by JUDGE LIPINSKY Johnson and Moultrie, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 8, 2025
Philip J. Weiser, Attorney General, Patrick A. Withers, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Robert P. Borquez, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant ¶1 David James Larkin appeals the denial of his petition for
postconviction relief under Crim. P. 35(c). We affirm.
I. Background
¶2 In August 2012, Larkin was charged with four counts of
sexual assault on a child by one in a position of trust as part of a
pattern of abuse, four counts of aggravated incest, and one count of
indecent exposure based on allegations that he sexually assaulted
his stepdaughter.
¶3 Larkin was tried twice on the charges. Larkin’s first trial, in
February 2014, resulted in a hung jury. During that trial,
attorneys from the Public Defender’s office represented Larkin.
After the first trial, Larkin retained private counsel, who
represented him at his second trial in October 2014. At the
conclusion of his second trial, a jury found Larkin guilty as
charged.
¶4 The court merged the aggravated incest convictions with their
analogous sexual assault on a child convictions. It then sentenced
Larkin to an indeterminate sentence of sixteen years to life in the
custody of the Department of Corrections, with twenty years to life
of mandatory parole. A division of this court affirmed Larkin’s
1 convictions on direct appeal. People v. Larkin, (Colo. App. No.
15CA0213, Aug. 31, 2017) (not published pursuant to C.A.R. 35(e)).
¶5 In February 2019, Larkin filed a pro se petition under Crim. P.
35(c) asserting twenty-seven grounds for relief. The postconviction
court grouped Larkin’s twenty-seven claims into four categories:
1. Claims 1-16 alleged, in substance, constitutional
violations arising from discovery violations or evidentiary
errors.
2. Claims 17-23 alleged ineffective assistance of trial
counsel and Claim 24 alleged ineffective assistance of
direct-appeal counsel.
3. Claim 25 alleged cumulative error based on the above
claims.
4. Claims 26-27 challenged Larkin’s sentence.
¶6 The postconviction court concluded that Claims 1-16 were
successive because they either were or could have been raised and
resolved in Larkin’s direct appeal. It denied those claims without a
hearing. The court denied Claim 24 without a hearing because
Larkin failed to allege facts sufficient to warrant a hearing. It
denied Claims 26-27 without a hearing because Larkin’s underlying
2 arguments were time barred and bare and conclusory, or they failed
on the merits.
¶7 The postconviction court concluded that the remaining claims
— Claims 17-23 and Claim 25 — were factually sufficient to
warrant a hearing. The court reframed the issues, as it deemed
necessary, and appointed postconviction counsel to represent
Larkin at a hearing on the following claims:
• Claims 17-20 (consolidated): “[W]hether trial counsel was
deficient, and prejudiced [Larkin], by: (1) failing to
adequately investigate; (2) failing to adequately review
discovery; (3) and failing to address Brady violations” (the
failure to investigate claim).
• Claim 21: “[W]hether trial counsel was deficient, and
prejudiced [Larkin], by: (1) failing to object to improperly
admitted evidence; (2) failing to object to improper jury
instructions; (3) failing to renew previously raised
objections; and (4) failing to object to improper
statements in the Prosecution’s closing argument” (the
failure to object claim).
3 • Claim 22: “[W]hether trial counsel was deficient, and
prejudiced [Larkin], by failing to use an expert to: (1)
rebut the [prosecution’s] expert; (2) challenge the
propriety of the investigation; and (3) challenge a
witness’s testimony based on that witness’s substance
abuse and sexual abuse” (the expert witness claim).
• Claim 23: “[W]hether trial counsel was deficient, and
prejudiced [Larkin], by: (1) failing to meet with [him]; (2)
failing to disclose to [him] prior to trial that the
prosecution told trial counsel [his] allegations were
untrue; (3) failing to disclose to [him] prior to trial that
the prosecution misrepresented facts to trial counsel;
(4) failing to disclose to [him] prior to trial that trial
counsel lacked access to discovery; and (5) failing to
disclose to [him] that new discovery had been provided”
(the failure to communicate claim).
• Claim 25: “[W]hether [Larkin’s] right to due process was
violated based on the accumulation of those errors” (the
cumulative error claim).
4 Alternate defense counsel (ADC) entered an appearance to represent
Larkin.
¶8 ADC filed a supplemental petition for postconviction relief,
asserting legal arguments regarding the reframed claims. In
addition, ADC asserted two claims regarding plea bargaining that
Larkin did not include in his pro se petition.
¶9 The postconviction court granted a hearing on the
supplemental petition. At the hearing, ADC focused on the failure
to investigate claim, the expert witness claim, the failure to
communicate claim, and those claims’ cumulative effect. ADC
withdrew the failure to object and the plea bargaining claims.
¶ 10 At the conclusion of the testimony, ADC argued that private
counsel provided constitutionally deficient representation by failing
to adequately demonstrate to the jury that the criminal
investigation into Larkin was flawed. ADC theorized that Larkin
was prejudiced because, if private counsel “had presented all of the
deficiencies in this case and argued [about] the sum of the shoddy
investigation,” it might have instilled reasonable doubt in the jury.
ADC conceded that private counsel made the investigation a central
theme at trial but argued that counsel’s failure to follow up on
5 discovery, read a critical pretrial transcript, or call a witness to
testify about the investigation prevented private counsel from
proving the theory with evidence. The postconviction court entered
an oral ruling denying the petition.
¶ 11 Larkin asserts four arguments on appeal. First, Larkin
contends that the postconviction court “misapprehended” the expert
witness claim. Second, Larkin argues that the court erred by
concluding that a portion of the failure to investigate claim did not
prejudice Larkin. Third, Larkin asserts that these errors
cumulatively prejudiced him. Fourth, Larkin argues that the
postconviction court erred by denying Claims 1-3 without a hearing
on the grounds that they were successive. We address and reject
each argument in turn.
II. Ineffective Assistance of Counsel
A. Applicable Law and Standard of Review
¶ 12 A convicted defendant may collaterally attack a conviction on
the ground that, as relevant here, the defendant’s counsel provided
constitutionally deficient representation. See Crim. P. 35(c)(2)(I).
Because we presume a conviction is valid, the defendant bears the
burden of proving entitlement to postconviction relief. Dunlap v.
6 People, 173 P.3d 1054, 1061 (Colo. 2007). Postconviction
proceedings are “intended to prevent injustices after conviction and
sentencing, not to provide perpetual review.” People v. Rodriguez,
914 P.2d 230, 249 (Colo. 1996).
¶ 13 A court must conduct an evidentiary hearing on a Crim. P.
35(c) petition when a defendant alleges facts that, if true, may
warrant relief. People v. Chalchi-Sevilla, 2019 COA 75, ¶ 7, 454
P.3d 359, 361. To sufficiently allege a claim of ineffective
assistance of counsel, a defendant must show that (1) his attorney’s
performance was deficient and (2) the deficient performance
prejudiced him. Strickland v. Washington, 466 U.S. 668, 687-88
(1984); Dunlap, 173 P.3d at 1062.
¶ 14 In general, we presume that counsel’s conduct fell within the
wide range of reasonable professional assistance and sound trial
strategy. Rodriguez, 914 P.2d at 294. But an attorney’s
performance is deficient if it falls “below an objective standard of
reasonableness.” Strickland, 466 U.S. at 688. A postconviction
court may not rely on “the distorting effects of hindsight” and must
“evaluate the conduct from counsel’s perspective at the time.”
7 Rodriguez, 914 P.2d at 294 (quoting Strickland, 466 U.S. at 689);
see also People v. Gandiaga, 70 P.3d 523, 525 (Colo. App. 2002).
¶ 15 To prove prejudice, the defendant must show “a reasonable
probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Strickland, 466 U.S.
at 694. In other words, the defendant must show “a probability
sufficient to undermine confidence in the outcome.” Id.; see
Ardolino v. People, 69 P.3d 73, 76 (Colo. 2003).
¶ 16 If a postconviction court determines that a defendant failed to
prove either prong of the Strickland test, it may deny the ineffective
assistance claim on that ground without addressing the other
prong. Strickland, 466 U.S. at 697; People v. Luong, 2016 COA
13M, ¶ 9, 378 P.3d 843, 847-48.
¶ 17 We review the postconviction court’s resolution of an
ineffective assistance of counsel claim after a hearing as a mixed
question of fact and law. See People v. Wardell, 2020 COA 47, ¶ 27,
474 P.3d 154, 160. We defer to the court’s factual findings if they
are supported by the record but review de novo the court’s ultimate
conclusions. Dunlap, 173 P.3d at 1063. “Where the evidence in the
record supports the findings and holding of the postconviction court
8 that presided over an evidentiary hearing, the judgment will not be
disturbed on review.” Wardell, ¶ 27, 474 P.3d at 160.
B. The Expert Witness Claim
1. Additional Background
¶ 18 In the supplemental petition, ADC highlighted several
deficiencies in the investigator’s performance during the criminal
investigation, including his failure to (1) record the initial interview
with the alleged victim; (2) collect digital evidence; (3) obtain the
alleged victim’s complete diary; and (4) interview the alleged victim’s
brother. ADC argued that private counsel “should have retained an
expert in the area of law enforcement investigation” to establish that
the investigator’s conduct “was in violation of commonly accepted
procedures.” ADC reasoned that such testimony would have had “a
powerful effect” on the jury and that counsel’s “failure to at least
consult with an expert on these issues” constituted ineffective
assistance.
¶ 19 At the hearing, Larkin presented the testimony of a law
enforcement investigation expert who discredited the investigator’s
actions on the above grounds, among others. Larkin also presented
the testimony of a criminal practice standards expert, who opined,
9 as relevant here, that private counsel should have presented to the
jury more information about the deficiencies of the investigation
and that an expert witness would have been helpful in establishing
why certain practices were inadequate.
¶ 20 Private counsel testified that he did not consider using law
enforcement investigation experts because their pretrial disclosures
generally give the prosecution an opportunity to fill holes in the
investigation ahead of trial. He testified that using such experts
requires that defense attorneys “tip [their] hand” to the prosecution
before trial instead of playing that hand for the first time in front of
the jury.
¶ 21 After hearing argument, the postconviction court found that
private counsel adequately attacked the investigation at trial. The
court also found that private counsel “considered the issue” and
“understands the nature of these types of experts” — including
when they may or may not be helpful to a case. The court found
that private counsel decided, as a matter of strategy, that using
such an expert was not a “wise use of his client’s money.” The
court went on to conclude that, even if deficient performance, the
failure to call the expert did not prejudice Larkin because his trial
10 was largely a credibility battle and an expert’s testimony on the
nature of the investigation would not have changed that.
2. Private Counsel’s Failure to Consult with an Expert Witness Was Not Deficient
¶ 22 On appeal, Larkin asserts that the postconviction court
“ignored the allegation that [private counsel] should have consulted
with a police investigative practices expert and addressed only the
issue of whether [private counsel] should have called such an expert
to testify.” We are unpersuaded.
¶ 23 The postconviction court found that private counsel
understood the risks and potential benefits of working with law
enforcement investigation experts. The record supports that
finding. Private counsel testified that consulting with a law
enforcement investigation expert in this case would have been
strategically unwise and an imprudent use of his client’s limited
funds. Whether Larkin’s criminal practice standards expert agreed
with private counsel’s chosen strategy is beside the point. The
decision to call a particular witness is “within the discretion of trial
counsel,” and “[m]ere disagreement” with that strategy “will not
support a claim for ineffective assistance of counsel.” People v.
11 Bradley, 25 P.3d 1271, 1275 (Colo. App. 2001). “To establish
ineffective assistance, the defendant was required to overcome the
presumption that, under the circumstances, the challenged conduct
of his counsel might be considered sound trial strategy.” Ardolino,
69 P.3d at 78.
¶ 24 Larkin further attacks private counsel’s decision not to engage
a law enforcement investigation expert for financial reasons. Larkin
argues that, if private counsel “needed more money,” he was
“ethically obligated to ask his client for more money.” This
argument, too, misses the mark because private counsel testified
that, in his assessment, consulting with and calling a law
enforcement investigation expert would not have been a wise use of
his client’s funds, not that his client lacked the funds to engage
such an expert. Thus, Larkin cannot overcome the presumption
that private counsel’s choice not to consult with an expert witness,
whom private counsel had the discretion to call, see Bradley, 25
P.3d at 1275, was a matter of trial strategy — a requirement to
establish deficient performance. See Ardolino, 69 P.3d at 78.
¶ 25 For these reasons, we agree with the postconviction court’s
conclusion on the expert witness claim.
12 C. The Failure to Investigate Claim
¶ 26 The prosecution did not call the investigator to testify during
its case-in-chief in either the first or the second trial. Thus, private
counsel had to decide whether to call him as a defense witness to
establish deficiencies in the investigation. Although private counsel
subpoenaed the investigator at the second trial, counsel ultimately
decided not to call him to testify.
¶ 27 In the supplemental petition, ADC alleged that private counsel
failed to review a transcript of a 2013 motions hearing in which the
investigator testified. ADC alleged that reviewing the transcript
would have been “instrumental” in private counsel’s decision
whether to call the investigator to testify and “critical to adequate
preparation for cross-examination.”
¶ 28 Private counsel testified that he did not want to risk calling the
investigator because he did not know what the investigator would
say, and doing so would give the prosecution the opportunity to ask
him leading questions on cross-examination. Private counsel
testified that he believed he successfully impeached the alleged
victim throughout trial — a task that the postconviction court
13 identified as paramount in a case like Larkin’s — and that the
investigator’s testimony was “not the kind of evidence that I would
want at the end of my case.” Private counsel admitted, however,
that he had no recollection of reading the transcript of the
investigator’s former testimony before deciding whether to call him
as a witness at trial.
¶ 29 The postconviction court found that private counsel indeed
failed to review the transcript, but that any error in failing to read
the transcript did not prejudice Larkin because his and the alleged
victim’s credibility were more critical to the case than was the
inadequacy of the investigation.
2. Counsel’s Failure to Review the Transcript Did Not Prejudice Larkin
¶ 30 In our view, it is a close question whether private counsel’s
failure to read a potentially key witness’s pretrial testimony before
deciding whether to call him as a witness constitutes deficient
performance. Private counsel asserted credible reasons for not
calling the investigator — a matter usually left to trial counsel’s
sound discretion. See Bradley, 25 P.3d at 1275. But his failure to
review the transcript calls into question whether he had sufficient
14 information to make such a decision. Thus, we assume, without
deciding, that counsel’s performance was deficient and turn to the
prejudice prong of the Strickland test. See Luong, ¶ 9, 378 P.3d at
847-48.
¶ 31 We conclude that Larkin was not prejudiced by private
counsel’s failure to review the transcript and decision not to call the
investigator to testify. As the merits appeal division astutely
observed in considering whether Larkin should have been provided
with the investigator’s personnel file,
Even if the files had been disclosed and also revealed that the [investigator] was untruthful in investigating Larkin’s case, that evidence would not have changed the outcome of the trial; the victim’s testimony, which had nothing to do with the [investigator], was strong evidence of Larkin’s guilt. And we fail to see how, after reviewing the files, it would have benefited Larkin to call the [investigator] as a witness, have him give inculpatory testimony, and then impeach him. Although the [investigator]’s credibility would have suffered, the jury’s consideration of the credibility of the victim’s testimony and other evidence of Larkin’s guilt would have been unaffected.
Larkin, No. 15CA0213, slip op. at 17.
¶ 32 The postconviction court similarly reasoned,
15 [I]n this case, the lack of investigation, the nature of what happened and what didn’t happen was in front of the jury, it was argued to the jury, the jury had it to consider. . . . But the kinds of cases that have very detailed investigative processes, specifically evidence collection processes, evidence preservation processes, testing of evidence, DNA testing, fingerprint testing, all those kinds of things, the Court finds are somewhat more fruitful when we’re talking about investigative failures because those cases very frequently come down to very minute facts, which are found out by the police and presented to a jury. This is a different type of case. And these types of cases . . . are credibility matters. This case came down to the credibility of [the alleged victim].
¶ 33 We agree with the reasoning of each court. Even if private
counsel had introduced every detail of the faulty investigation and
supported them with exhibits, such evidence would not have
changed the fact that the alleged victim testified against Larkin at
trial. At no point did private counsel, direct appeal counsel, or
postconviction counsel allege that the investigator coached or
pressured the victim to testify a certain way such that her
testimony was unreliable.
¶ 34 Private counsel’s primary task at trial was to undermine the
alleged victim’s credibility. The record demonstrates that private
16 counsel understood that. So even if the prosecutor’s failure to call
the investigator should have been a “red flag” for private counsel,
the extent to which private counsel challenged the integrity of the
underlying criminal investigation was peripheral to the primary
question the jurors were tasked with deciding: whether they
believed the alleged victim.
¶ 35 Thus, neither this alleged error nor the cumulative effect of
every error that Larkin alleged in his opening brief prejudiced him
such that postconviction relief is warranted.
III. Summary Denial of Pro Se Claims
¶ 36 Larkin lastly contends that the postconviction court erred by
summarily denying Claims 1-3 in his pro se petition because they
were successive. In those claims, Larkin asserted that
1. he “was denied due process when the prosecution
suppressed evidence favorable to the defense by failing to
provide the defense with complete copies of witness
statements in the State’s possession”;
2. he “was denied due process when the prosecution
[s]uppressed [e]vidence by failing to provide the [d]efense
with copies of emails from [the investigator] to [w]itnesses
17 as requested in [d]efense [m]otion for [p]reservation and
[p]roduction January 14, 2013”; and
3. his “right to due process, effective assistance of counsel,
an impartial jury and to confront witnesses against
him . . . were violated when [the investigator] . . .
corrupted progress reports and other documents with
false statements resulting in a defective and biased
investigation, making it impossible for Defense to know
the true contents of interviews or true perceptions of
[w]itnesses. As well as offering false testimony during
motions hearing further obstructing defendant’s ability to
discover exculpatory and material evidence.”
¶ 37 Larkin claims that, because his third ground — which
incorporated the first two grounds — included the term “ineffective
assistance of counsel,” the postconviction court should have
considered the claim instead of denying it because Larkin could not
have raised it in his direct appeal.
¶ 38 Even if we assume that Larkin sufficiently brought this
contention to the postconviction court’s attention, we conclude that
any error was harmless. ADC spent substantial time developing
18 evidence of the discovery dispute implicated in Claims 1-3 during
the postconviction hearing as support for his outstanding ineffective
assistance claims. The court denied any claim associated with the
discovery issue at the end of the hearing. Thus, regardless of
whether the court rejected Claims 1-3 without a hearing, it
considered and denied the same repackaged argument in the
context of the ineffective assistance of counsel claims addressed
during the hearing.
IV. Disposition
¶ 39 The order is affirmed.
JUDGE JOHNSON and JUDGE MOULTRIE concur.