23CA0625 Peo v Miller 04-10-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0625 City and County of Denver District Court No. 11CR5114 Honorable Jennifer B. Torrington, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Ryan J. Miller,
Defendant-Appellant.
ORDER AFFIRMED
Division VII Opinion by JUDGE MOULTRIE Lipinsky and Johnson, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 10, 2025
Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Reppucci Law Firm, P.C., Jonathan D. Reppucci, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Ryan J. Miller, appeals the court’s denial of his
Crim. P. 35(c) motion without a hearing. We affirm.
I. Background and Procedural History
¶2 The historical facts giving rise to this case are set forth in
People v. Miller, (Colo. App. No. 13CA1371, Sept. 21, 2017) (not
published pursuant to C.A.R. 35(e)) (Miller I) and People v. Miller,
(Colo. App. No. 19CA1456, Aug. 5, 2021) (not published pursuant
to C.A.R. 35(e)) (Miller II). As recited in Miller II:
In brief, the People charged both Miller and his friend [Richard Leavitt] with, among other things, murdering [the victim], Miller’s ex-girlfriend. [Leavitt] agreed to testify against Miller at trial in exchange for pleading guilty to a reduced charge of second degree murder. [Leavitt] testified that Miller had admitted shooting and killing [the victim.] The People also presented other evidence linking Miller to [the victim’s] murder; for example, Miller had previously forced his way into [the victim’s] apartment and assaulted her after she broke up with him and he became bitter and obsessed about the breakup, and Miller’s DNA was on the murder weapon (a handgun). Miller’s defense was that [Leavitt] murdered [the victim], and he wasn’t involved at all.
Miller II, ¶ 2.
¶3 A jury convicted Miller of first degree murder, second degree
kidnapping, first degree burglary, first degree criminal trespass, and
1 third degree assault. A division of this court affirmed Miller’s
convictions. Miller I, ¶ 66.
¶4 In 2017, Miller filed a pro se Crim P. 35(c) motion for
postconviction relief, asserting that his trial and appellate counsel
were ineffective. The postconviction court summarily denied
Miller’s motion without a hearing. Miller appealed the
postconviction court’s ruling, and a division of this court affirmed.
Miller II, ¶ 59.
¶5 In 2022, Miller, through counsel, filed the Crim P. 35(c) motion
for postconviction relief (the 2022 motion) at issue in this appeal.
Miller asserted two claims based on newly discovered evidence
arising from (1) Leavitt’s alleged confession to a cellmate and (2)
alleged “new technology, scientific advances, and professional
and/or academic consensus” related to the analysis and mapping of
cell phone records. Miller also asserted two claims based on
constitutional error. He requested an evidentiary hearing on the
2022 motion and an order reversing his judgment of conviction and
granting him a new trial. The postconviction court issued a
thorough written order denying the 2022 motion without holding an
evidentiary hearing.
2 ¶6 On appeal, Miller contends that the postconviction court erred
by summarily denying the 2022 motion.1
II. Standard of Review
¶7 We review de novo a postconviction court’s decision to
summarily deny a Crim. P. 35(c) motion. People v. Cali, 2020 CO
20, ¶ 14. In a Crim. P. 35(c) proceeding, we presume the validity of
the convictions, and the defendant bears the burden of proving that
he is entitled to postconviction relief. Dunlap v. People, 173 P.3d
1054, 1061 (Colo. 2007). A court “may deny a Crim. P. 35(c) motion
without a hearing if the allegations are bare and conclusory; the
allegations, even if true, do not warrant relief; or the record refutes
the claims.” People v. Joslin, 2018 COA 24, ¶ 4; Crim. P.
35(c)(3)(IV).
III. Newly Discovered Evidence
¶8 Miller contends that he was entitled to a hearing on the 2022
motion because his two claims of newly discovered evidence had
1 Miller didn’t challenge his convictions for kidnapping, burglary,
assault, and trespass in the 2022 motion. Accordingly, we review only his challenge to his first degree murder conviction. See People v. Goldman, 923 P.2d 374, 375 (Colo. App. 1996) (“Allegations not raised in a Crim. P. 35(c) motion . . . and thus not ruled on by the trial court are not properly before this court for review.”).
3 arguable merit and asserted facts that, if true, would entitle him to
relief. We address and reject each of his claims of newly discovered
evidence.
A. Applicable Law
¶9 To succeed on a motion for a new trial based on newly
discovered evidence, a defendant must satisfy the factors identified
in People v. Muniz, 928 P.2d 1352, 1357 (Colo. App. 1996) (the
Muniz elements):
the evidence was discovered after trial; that defendant and his counsel exercised diligence to discover all possible evidence favorable to the defendant prior to and during the trial; that the newly discovered evidence is material to the issues involved, and not merely cumulative or impeaching; and lastly, that the newly discovered evidence is of such character as probably to bring about an acquittal verdict if presented at another trial.
See Farrar v. People, 208 P.3d 702, 706-07 (Colo. 2009); see also
People v. Genrich, 2019 COA 132M, ¶ 41.
B. Leavitt’s Alleged Confession
¶ 10 Miller first contends that the postconviction court erred by
denying him the opportunity to present at an evidentiary hearing
4 newly discovered evidence of Leavitt’s alleged confession to a third
party. We disagree.
1. Additional Facts
¶ 11 At trial, Leavitt testified that Miller planned the victim’s
murder and fatally shot her. Miller asserted in the 2022 motion
that, after his conviction, Leavitt told a fellow inmate that Leavitt
was in custody because of his marijuana business; an unidentified
person “owed him some money and they got killed, and [Leavitt] got
48 years in prison and his partner got life”; and Leavitt’s partner
was lucky that “he did not get what she got too.” When asked
about the word “she,” Leavitt told the inmate, “well I owe a lot of
money and there are debts that we take in” and “I wound up taking
48 years while he got life, he’s lucky I did not kill him too.” Leavitt
continued, “she owed the money, and I was going to knock off both
of them”; through his plea deal, Leavitt “got 48 years and lucked
out on that”; and “that fool is lucky I did not off him too, he got life.”
¶ 12 The postconviction court rejected Miller’s claim, concluding
that, while the 2022 motion satisfied the first two Muniz elements, it
failed to satisfy the third and fourth elements because the evidence
was “merely cumulative or impeaching” and Leavitt’s statements
5 were “not of such character as to probably bring about an acquittal
if presented at another trial.”
2. Application
¶ 13 We agree with the postconviction court that Miller failed to
allege facts that, even accepted as true, were sufficient to satisfy the
third and fourth Muniz elements. See Genrich, ¶ 41.
¶ 14 As the postconviction court noted, with respect to the first two
Muniz elements, it’s undisputed that Leavitt’s alleged statements
were made after trial and that due diligence by Miller or his counsel
therefore wouldn’t have revealed the evidence before the end of trial.
¶ 15 With respect to the third Muniz element, we conclude that
Miller failed to show that the newly discovered evidence “is material
to the issues involved, and not merely cumulative or impeaching.”
Id. At most, Leavitt’s statements, even if true, merely impeach his
trial testimony that Miller planned the victim’s murder and fatally
shot her — it doesn’t necessarily demonstrate Miller’s innocence.
See Farrar, 208 P.3d at 707 (to be sufficiently material, new
evidence must be “consequential in the sense of being affirmatively
probative of the defendant’s innocence”).
6 ¶ 16 Leavitt’s alleged statements aren’t material because they don’t
contain “sufficiently significant new evidence” that “will probably be
believed” over his trial testimony. See id. at 707-08. Instead, Miller
asks us to (1) speculate that Leavitt’s statements relate to this case
and the victim, even though neither Miller nor the victim is
identified by name in the statements, and (2) interpret Leavitt’s
statements to mean that Leavitt — not Miller — shot the victim.
Without more context to or evidence supporting Leavitt’s
statements, we decline to do so. See People v. Bossert, 772 P.2d
618, 621 (Colo. 1989) (stating that, to prove that testimony was
perjured, a defendant must show that the declarant made a
materially false statement); see also Farrar, 208 P.3d at 708 (noting
that a witness’s recantation necessarily serves to impeach their
credibility and therefore “it can justify a new trial only to the extent
that it not only impeaches the prior testimony but does so by
contradicting it with a different and more credible account”). And
as the postconviction court noted, Miller presented no evidence or
defense at trial concerning his and Leavitt’s involvement in an
illegal marijuana business, such that Leavitt might have had a
7 motive to kill the victim or indicating that Leavitt was specifically
referring to Miller and Miller’s girlfriend.
¶ 17 Moreover, even if evidence of Leavitt’s alleged recantation
satisfied the materiality prong of Muniz, we would affirm the
postconviction court’s order because “the newly discovered evidence
is [not] of such character as probably to bring about an acquittal if
presented at another trial.” Genrich, ¶ 41. As the Miller I division
noted, the prosecution presented “ample evidence from which the
jury could have concluded that [Miller] had . . . a motive” to kill the
victim, and — even if Leavitt shot and killed the victim — the
prosecution presented sufficient evidence for the jury to find Miller
guilty under a complicity theory of liability. See § 18-1-603, C.R.S.
2024 (a defendant is liable under a complicity theory of liability for
a criminal offense committed by another if, “with the intent to
promote or facilitate the commission of the offense, [he] aids, abets,
advises, or encourages the other person in planning or committing
the offense”). Considering the vagueness of Leavitt’s statements
and the ample evidence that Miller participated in planning the
victim’s murder and killed her, as detailed in the postconviction
8 court’s order, Miller has not alleged facts sufficient to show that the
new evidence would likely lead to his acquittal.
C. Cell Phone Science
¶ 18 Miller also contends that the postconviction court erred by
denying him an evidentiary hearing to present newly discovered
evidence related to the reliability of the prosecution’s cell phone
expert’s methods. We disagree.
¶ 19 Before trial, Miller objected to the proposed testimony of the
prosecution’s cell phone expert, Detective Alfonso Cervera, and
moved for an evidentiary hearing under People v. Shreck, 22 P.3d 68
(Colo. 2001), which the trial court denied.
¶ 20 At trial, the court admitted into evidence the “call detail”
records from Miller’s and Leavitt’s respective cell phones and
qualified Detective Cervera as an expert in cell site analysis and call
record detail over Miller’s objection. Detective Cervera described
“call detail” records as a phone’s billing records, which include
information about the dates and times that a phone was used, as
well as information about what cell site or antenna the phone used
during a specified period of the phone’s usage. Detective Cervera
9 testified that he examined historical data from the call detail
records to determine whether Miller’s and Leavitt’s cell phones were
near specific locations — the crime scene and other locations of
interest — on the day the victim was murdered. Detective Cervera
prepared a “slide show” to display some of the cell phone data.
¶ 21 Using that slide show, he explained that each cell phone
antenna site covers approximately a half mile to one mile in an
urban area. Detective Cervera also explained that, while a phone’s
exact location could not be determined from the data, the data
generally represented where a phone was located in the cell site
area during the phone’s call, text, or internet activity. He said that
his opinion about where a particular phone was located in relation
to particular antennae was “an estimate based on training and
experience” and was “very conservative.” Detective Cervera
concluded that the cell site location data were consistent with
Miller’s and Leavitt’s phones being near the crime scene around the
time of the victim’s murder.
¶ 22 On cross-examination, and as noted in Miller II,
Detective Cervera testified that tracking cell phone call activity isn’t an exact science, all activity data doesn’t reveal the length of a call
10 or a person’s direction of travel during a call; various environmental factors, including the distance between the cell towers facilitating signal reception, affect a call’s indicated location; and ultimately cell phone activity data provides only an approximate location of someone using a cell phone.
Miller II, ¶ 44.
¶ 23 In the 2022 motion, Miller argued that newly discovered
evidence in the form of derivative mapping based on “new scientific
developments” and “previously unavailable technology,” coupled
with current professional or academic consensus regarding “the use
of call detail records analysis to pinpoint a device’s location,” would
prove that Detective Cervera’s testimony was unsupported,
unreliable, and misleading. Miller specifically challenged the way
Detective Cervera drew pie-shaped wedges on his mapping to depict
cell site coverage ranges of over one and a half miles. He also
asserted that the locations of Miller’s phone could not be
determined without a “drive test” of the cell tower coverage area.
Miller thus argued that it was “impossible to determine with any
reasonable degree of certainty” that his cell phone was at or near
the location of the victim’s murder. In denying Miller’s motion, the
postconviction court determined that Miller had not established any
11 of the four Muniz elements such that a hearing on newly discovered
cell phone science was warranted.
2. Analysis
¶ 24 Accepting as true Miller’s assertion that, since his trial, there
have been technological or scientific advances pertaining to the
analysis and mapping of cell phone records, and that Miller and his
counsel acted with the necessary reasonable diligence in
discovering this new information, we conclude that Miller wasn’t
entitled to a hearing because he failed to establish the third and
fourth Muniz elements.
¶ 25 As to the third Muniz element, Miller has failed to show that
the newly discovered evidence is material. Genrich, ¶ 41. The jury
received substantial evidence from other witnesses about Miller’s
actions on the day of the victim’s murder, independent of Detective
Cervera’s testimony that Miller’s cell phone records placed Miller
near the crime scene. Detective Cervera repeatedly acknowledged
that his mapping was an estimate of cell site coverage and Miller’s
phone may have been located inside or outside of the areas he
identified, and on cross-examination, Miller’s counsel thoroughly
questioned the reliability of Detective Cervera’s methods and
12 mapping. Thus, Miller fails to explain how his purported new
evidence calls into doubt the previously presented evidence
indicating that determining a cell phone’s location from cell cite
data is an imprecise science at best.
¶ 26 Moreover, Miller makes the conclusory allegation that
Detective Cervera’s methods were “scientifically baseless, absent
drive testing.” But “drive testing” — a different method used to
determine the approximate, but not exact, location of a cell phone
— is based on the same principles underlying the historic cell site
analysis to which Detective Cervera testified. See United States v.
Morgan, 45 F.4th 192, 203-04 (D.C. Cir. 2022). And Detective
Cervera used historical cell site analysis, which a division of this
court has held to be “widely accepted as reliable” when used “to
determine the general geographic location of a cell phone.” People
v. Shanks, 2019 COA 160, ¶ 35. Accordingly, Miller’s alleged new
evidence is cumulative.
¶ 27 We also conclude that, because ample other evidence
supported his conviction, Miller has failed to establish that the
newly discovered evidence would probably lead to his acquittal, as
the fourth Muniz element requires. See People v. Tomey, 969 P.2d
13 785, 787 (Colo. App. 1998) (noting that, in determining whether
newly discovered evidence would likely lead to an acquittal, a court
should consider the newly discovered evidence along with all other
evidence likely to be presented at a new trial).
¶ 28 As the postconviction court noted, substantial evidence
supported Miller’s conviction independent of the cell phone
evidence, including detection of gunshot residue on sweatpants
linked to Miller through DNA and witness testimony; congruent
markings on a bullet recovered from the victim’s skull and a bullet
“test fired” from a gun that Miller had in his possession when he
was arrested; and multiple witnesses’ testimony regarding Miller’s
erratic behavior and hysterical demeanor the day of the victim’s
murder. Therefore, we discern no error in the postconviction
court’s determination that Miller was not entitled to a hearing based
on newly discovered cell phone science evidence.
IV. Constitutional Error
¶ 29 Miller argues the postconviction court further erred by
summarily denying the 2022 motion because it included an
allegation that the trial court violated his constitutional rights to
14 due process and a fair trial by permitting the prosecution to
introduce the cell phone evidence. We disagree.
¶ 30 As a preliminary matter, the People contend that this claim
should be denied as successive. We reject this argument because
Miller’s claim is based upon alleged new evidence that could not
have been previously discovered through due diligence and an
asserted new rule of constitutional law. Crim. P. 35(c)(3)(VI)(a)-(b).
With respect to the latter argument, Miller cites the special
concurrence in Genrich for the proposition that he was entitled to
an evidentiary hearing based on his due process claim. Genrich,
¶¶ 134-36 (Berger, J., specially concurring). However, the majority
opinion in Genrich didn’t address whether the trial court deprived
the defendant of due process by denying his Crim. P. 35(c) motion
without a hearing. Id. at ¶ 69. Miller doesn’t cite any other
Colorado law to support his contention.
¶ 31 In any event, we are bound by Farrar, in which the supreme
court held that “claims of newly discovered evidence do not draw
into question the constitutionality of a criminal conviction.” 208
P.3d at 706. And the supreme court “has never suggested that
newly discovered evidence impeaching a guilty verdict implicates
15 due process of law.” Id. Miller’s citations to opinions from other
jurisdictions do not persuade us otherwise. See People v.
Denhartog, 2019 COA 23, ¶ 78 (“[T]he supreme court ‘alone can
overrule [its] prior precedents concerning matters of state law.’”)
(quoting People v. Novotny, 2014 CO 18, ¶ 26).
¶ 32 Accordingly, we conclude the postconviction court properly
denied Miller’s asserted constitutional due process claim premised
on the cell phone evidence.
V. Complicity Theory Jury Instruction
¶ 33 Miller also contends the trial court denied his constitutional
right to due process and a fair trial by instructing the jury on
complicity as a theory of liability because the prosecution didn’t
charge him with complicity. We decline to address this contention
because it is successive.
A. Additional Facts
¶ 34 At trial, at the prosecution’s request, the court instructed the
jury on complicity as a theory of liability. Miller objected on the
basis that complicity was not a charged offense, and the evidence
could not support a guilty verdict on that charge.
16 ¶ 35 In the 2022 motion, Miller asserted that he was deprived of
due process and fair notice of the charges against him when the
trial court submitted the prosecution’s complicity theory to the jury.
Citing Grissom v. People, 115 P.3d 1280, 1283 (Colo. 2005), the
postconviction court noted that complicity is not a distinct crime
but rather a theory “by which a defendant becomes accountable for
a criminal offense committed by another.” The postconviction court
also noted that, in People v. Jimenez, 217 P.3d 841, 871 (Colo. App.
2008), a division of this court held that allowing a jury to consider a
defendant’s culpability under a complicity theory did not violate the
defendant’s due process rights. Thus, the postconviction court
found Miller’s claim “unavailing” because the jury instruction
complied with existing legal standards and because his conviction
was affirmed in Miller I.
B. Applicable Law
¶ 36 Rule 35(c) allows a defendant to challenge a judgment of
conviction on the grounds that it was obtained in violation of his
constitutional or statutory rights. See Crim. P. 35(c)(2)(I). But
unless an enumerated exception applies, a postconviction court
“must deny any Crim. P. 35(c) claim that was raised and resolved,
17 or that could have been raised, in a prior appeal or postconviction
proceeding.” People v. Higgins, 2017 COA 57, ¶ 18; Crim. P.
35(c)(3)(VI), (VII).
C. Analysis
¶ 37 Miller characterizes his claim of instructional error as a
constitutional challenge cognizable under Crim P. 35(c)(2)(I). We
disagree. “As a general rule, errors in jury instructions do not
amount to constitutional error sufficient to merit postconviction
review.” People v. Sherman, 172 P.3d 911, 916 (Colo. App. 2006).
In any event, Miller already had the opportunity to challenge the
instruction in a postconviction motion. In his first postconviction
motion, Miller raised an issue related to the complicity instruction.
See Miller II, ¶ 30 (noting that Miller hadn’t challenged the
complicity instruction itself). And he hasn’t demonstrated that this
claim falls into one of the exceptions in Crim. P. 35(c)(3). Thus, we
conclude that the postconviction court didn’t err by denying Miller’s
claim about the complicity instruction because it was successive.
See Moody v. People, 159 P.3d 611, 615 (Colo. 2007) (appellate
court may affirm on any basis supported by the record). Because
the claim is successive, we decline to address its merits.
18 VI. Disposition
¶ 38 The postconviction court’s order is affirmed.
JUDGE LIPINSKY and JUDGE JOHNSON concur.