Peo v. Owens

Opinion

17CA1182 Peo v Owens 10-07-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 17CA1182

Arapahoe County District Court No. 05CR2945

Honorable Christopher J. Munch, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Sir Mario Owens,

Defendant-Appellant.

ORDER AFFIRMED

Division VI

Opinion by JUDGE RICHMAN

Welling, J., concurs

Berger, J., specially concurs

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced October 7, 2021

Philip J. Weiser, Attorney General, Katharine J. Gillespie, Senior Assistant

Attorney General, Jillian J. Price, Senior Assistant Attorney General, Denver,

Colorado, for Plaintiff-Appellee

Blain Myhre, Alternate Defense Counsel, Englewood, Colorado; Jonathan D.

Reppucci, Alternate Defense Counsel, Denver, Colorado, for Defendant-

Appellant

Table of Contents

I. Background . . . . . . . . . . . . . . . . . . . . . . . . 1-3

II. Postconviction Procedures . . . . . . . . . . . . 3-12

A. Law and Standard of Review . . . . . . . . . . 7-8

B. Discussion . . . . . . . . . . . . . . . . . . . . . . . 8-12

1. Rule 35(c) Procedures . . . . . . . . . . . . . 8-10

2. Due Process . . . . . . . . . . . . . . . . . . . . 10-11

3. Review of Post. Court’s Find. of Fact . . 12

III. Alleged Prosecutorial Misconduct . . . . . . 12-39

A. Brady . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-15

B. Napue . . . . . . . . . . . . . . . . . . . . . . . . . . . 15-16

C. Postconviction Court’s Application of Law 16-17

D. Materiality of Suppressed Evidence . . . . . 18-39

1. Police Bulletin and Versadex Report . . 19-21

2. Impeachment Evidence . . . . . . . . . . . . 21-38

a. Johnson . . . . . . . . . . . . . . . . . . . . . 22-30

b. Sailor . . . . . . . . . . . . . . . . . . . . . . . 30-36

c. Brewer . . . . . . . . . . . . . . . . . . . . . . 36-38

3. Cumulative Effect On the Trial . . . . . . 39

IV. Ineffective Assistance of Trial Counsel . . 39-56

A. Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40-41

B. Discussion . . . . . . . . . . . . . . . . . . . . . . . 42-56

1. Discovery . . . . . . . . . . . . . . . . . . . . . . 42-45

2. Investigation . . . . . . . . . . . . . . . . . . . . 45-54

3. Prejudice . . . . . . . . . . . . . . . . . . . . . . 54-56

V. Juror Misconduct . . . . . . . . . . . . . . . . . . 56-87

A. Postconviction Order . . . . . . . . . . . . . . . 57-62

1. Relationship with Uncles . . . . . . . . . . 57-58

2. Dayton Street Murders Connection . . . 58-59

3. Juror 75’s Questionnaire . . . . . . . . . . 59-60

4. Failure to Disclose Recognition. . . . . . 60-62

B. Applicable Law . . . . . . . . . . . . . . . . . . . . 62-68

C. Standard of Postconviction Review . . . . . 69

D. Discussion . . . . . . . . . . . . . . . . . . . . . . . 69-87

1. Relationship with Uncles . . . . . . . . . . . 69-71

2. Dayton Street Murders Connection . . . 71-74

3. Juror 75’s Questionnaire . . . . . . . . . . 74-77

4. Failure to Disclose Recognition . . . . . . 78-85

5. Cumulative Effect . . . . . . . . . . . . . . 85-87

VI. Ineffective Assistance of A. Counsel . . . . 87-92

A. Applicable Law . . . . . . . . . . . . . . . . . . . 89-90

B. Discussion . . . . . . . . . . . . . . . . . . . . . . . 90-93

VII. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . 93

VIII. Special Concurrence . . . . . . . . . . . . . . . . 94-98

1

¶ 1 Defendant, Sir Mario Owens, was convicted of the first degree

murder of Gregory Vann and the attempted murders of Javad

Marshall-Fields and Elvin Bell in Lowry Park. His conviction was

affirmed on direct appeal. People v. Owens, (Colo. App. No.

07CA0895, July 26, 2012) (not published pursuant to C.A.R. 35(f))

(Owens I). He now appeals from an order denying his Crim. P. 35(c)

motion for postconviction relief. We affirm the postconviction

court’s order.

I. Background

¶ 2 According to the evidence presented at trial, in the summer of

2004, at the end of a large event in Lowry Park, Owens shot and

killed Vann. Owens’s best friend, Robert Ray, subsequently shot

Marshall-Fields and Bell but they survived the shootings. The

prosecution presented evidence that Owens and Ray fled the scene

together, stowed their escape vehicle in a friend’s garage, and spent

the night in two motel rooms rented by Ray’s extended family

members. A couple of days later, Owens cut his hair, rented a car,

and drove to Louisiana.

¶ 3 Before any trial for the Lowry Park shootings, key prosecution

witness Marshall-Fields and his fiancee were murdered on Dayton

2

Street. Owens and Ray were separately tried, convicted, and

sentenced to death for the Dayton Street murders.

1

The Lowry Park

crimes served to aggravate the Dayton Street sentences.

¶ 4 Owens’s Lowry Park conviction was affirmed on direct appeal

in Owens I. He sought review of his Dayton Street conviction via

the procedures prescribed for death penalty cases. See Crim. P.

32.2; §§ 16-12-201 to -210, C.R.S. 2020. He later moved for

postconviction relief in this case — the Lowry Park case — pursuant

to Rule 35(c). The postconviction court denied his Rule 35(c)

motion, concluding that Owens had received a fair trial.

¶ 5 On appeal of the Rule 35(c) order, Owens contends that (1) the

postconviction court reversibly erred by departing from the

postconviction procedures required by Rule 35(c)(3)(V); (2) the

prosecution unlawfully suppressed materially favorable evidence;

(3) his trial counsel’s deficient investigation constituted ineffective

assistance of counsel; (4) misconduct by deliberating Juror 75

deprived him of an impartial jury; and (5) his appellate counsel was

1

Governor Jared Polis has since commuted the death sentences to

life in prison.

3

ineffective. We consider the postconviction court’s extremely

thorough order and an unprecedentedly voluminous record in

rejecting each contention below.

II. Postconviction Procedures

¶ 6 Rule 32.2 proceedings for the Dayton Street case were well

underway in 2014, when Owens filed his Rule 35(c) motion for

postconviction relief in the Lowry Park case. At that time, Judge

Rafferty was assigned to preside over the Rule 32.2 proceedings,

and the Lowry Park trial court, Judge Spear, was assigned to the

Rule 35(c) proceedings.

¶ 7 After Judge Spear had denied multiple defense motions to

disqualify himself in connection with the juror misconduct claim,

and after Judge Rafferty had held over eighty days of Dayton Street

postconviction review hearings without issuing a decision, the

postconviction proceedings for both of Owens’s cases were

reassigned to Judge Munch by order of the Colorado Supreme

Court.

¶ 8 Shortly after his assignment, Judge Munch informed the

parties that he would address the Rule 35(c) petition first, and he

authorized an evidentiary hearing on each of the issues now raised

4

on appeal. Judge Munch ordered that he would “allow testimony

from witnesses whose credibility might be important to the

determination” of significant issues in the petition. He allocated six

days for the Rule 35(c) evidentiary hearing, and, acknowledging

substantial witness testimony overlap between the Dayton Street

and Lowry Park proceedings,

2

he ordered counsel to designate Rule

32.2 transcripts and exhibits — from Judge Rafferty’s hearings —

for his consideration.

¶ 9 The People submitted a witness list of over 100 witnesses, and

Owens submitted a witness list of 82 witnesses. After reviewing the

parties’ witness lists and offers of proof in conjunction with the Rule

35(c) petition and response, the postconviction court ultimately

designated twenty-one witnesses for live testimony — twenty of

those witnesses were requested by Owens. The court would allow

additional rebuttal witnesses for good cause shown. It further

expressed a preference for testimony supplemental to that already

2

The facts of the Lowry Park shootings were presented as CRE

404(b) and res gestae evidence in the Dayton Street murder trial

and sentencing.

5

received in Rule 32.2 hearings, and it allowed the parties to submit

offers of proof to supplement the live testimony.

¶ 10 Owens objected to the postconviction court’s outlined

procedures. He argued that his presentation of evidence was

unduly limited; six days was insufficient time to call twenty

witnesses, and he should be permitted to call all of the witnesses on

his list. The court stated that it would reconsider receiving live

testimony from any undesignated witnesses whose sworn affidavits

(or other relevant information) persuaded it that the witness’s

credibility was important to the determination of a significant issue.

It further explained that it had not authorized live testimony from

witnesses (1) whose testimony did not involve a significant

credibility question, or (2) who were unlikely to be located and to

appear in court to give testimony for the first time after the many

intervening years.

3

The court repeatedly told Owens’s counsel that

it would consider a departure from these restrictions on a showing

of good cause.

3

Judge Munch reasoned that an affidavit from any witnesses who

had not previously testified would be adequate.

6

¶ 11 Our review of the record does not show that Owens asked the

postconviction court to reconsider its need to assess the credibility

of any specific witness, submitted any affidavits in support of this

need, or asked leave to depart from the court’s guidelines as to any

specific witness. Owens presented his evidence in just one full day

and two half days, due in part to reaching stipulations with the

prosecution as to the testimony to be considered from some of the

designated witnesses. Owens called only seven witnesses. The

prosecution presented two witnesses in two additional half days.

The court accepted written closing arguments, and Owens

submitted arguments in excess of 300 pages.

¶ 12 The postconviction court later granted a motion to reopen the

proceedings for newly discovered evidence concerning Juror 75’s

relationship with Marshall-Fields’s uncles. The court heard

additional live testimony from Juror 75 and four new witnesses in a

one-day hearing.

¶ 13 One month later, in an extraordinarily lengthy and

comprehensive order, the postconviction court denied Owens’s Rule

35(c) petition. On appeal, Owens contends that the court’s

evidentiary hearing procedures (1) departed from the procedural

7

requirements of Rule 35(c) and (2) deprived him of due process. We

disagree.

A. Law and Standard of Review

¶ 14 A Rule 35(c) motion for postconviction relief “may be denied

without an evidentiary hearing only where the motion, files, and

record in the case clearly establish that the allegations presented in

the defendant’s motion are without merit and do not warrant

postconviction relief.” Ardolino v. People, 69 P.3d 73, 77 (Colo.

2003). If an evidentiary hearing is required, Rule 35(c)(3)(V)

requires a postconviction court to “take whatever evidence is

necessary for the disposition of the motion” at the evidentiary

hearing. In reviewing de novo a rule of criminal procedure, we

construe the rules to “secure simplicity in procedure, fairness in

administration, and the elimination of unjustifiable expense and

delay.” Crim. P. 2; see People v. Steen, 2014 CO 9, ¶¶ 9-10.

¶ 15 A postconviction court has broad discretion to control “the

‘mode and extent of the presentation of evidence.’” People v. Finney,

2012 COA 38, ¶ 64 (quoting People v. Cole, 654 P.2d 830, 832 (Colo.

1982)), aff’d, 2014 CO 38. We review decisions on the presentation

of evidence for an abuse of discretion. Id. A court abuses its

8

discretion only when its decisions are manifestly arbitrary,

unreasonable, unfair, or based on a misapplication of the law.

People v. Kendrick, 2017 CO 82, ¶ 36.

B. Discussion

1. Rule 35(c) Procedures

¶ 16 Owens first argues that the postconviction court abused its

discretion and departed from the procedural requirements of Rule

35(c)(3)(V) because it arbitrarily limited the number of witnesses

from whom it would consider live testimony and considered

transcripts of hearings conducted before Judge Rafferty. We reject

these arguments.

¶ 17 Judge Munch’s limitations on the presentation of witnesses

were not arbitrary. He agreed to hear live testimony from any

witness whose testimony involved a significant credibility question.

And he reviewed all designated postconviction testimony related to

the Lowry Park case that had been presented before Judge Rafferty.

Judge Munch authorized live testimony from eleven witnesses who

had previously given postconviction testimony before Judge

Rafferty. Despite this authorization, Owens presented only two of

those witnesses. As noted on this issue and others, Judge Munch

9

invited counsel to persuade him to reconsider. Owens did not

respond to the invitation.

¶ 18 Owens argues that he was prohibited from presenting any

witnesses to support his governmental misconduct/discovery claim.

Owens submitted offers of proof for several witnesses related to this

claim — Judge Munch took live testimony from two of the

witnesses, and nearly all of them had testified before Judge

Rafferty. Similarly, Owens argues that his ineffective assistance of

counsel claims were hobbled by witness limits. Judge Munch

received live testimony from several relevant witnesses, and nearly

all of the named witnesses testified before Judge Rafferty. We

conclude that Judge Munch considered the evidence “necessary for

the disposition of the motion.” Crim. P. 35(c)(3)(V).

4

¶ 19 Nothing in the plain language of Rule 35, and nothing in any

of the cases cited by Owens, prohibits a postconviction court from

4

In contending otherwise, Owens cites numerous cases in which

defendants were denied a postconviction hearing. See, e.g., People

v. Higgins, 2017 COA 57, ¶ 1. These cases are inapposite to our

analysis. The grant of a six-day postconviction hearing is not

equivalent to a summary denial of a postconviction motion without

a hearing.

10

considering evidence from postconviction proceedings presided over

by a different judge. To the contrary, even at trial, “any judge

regularly sitting in or assigned to the court may perform postverdict

duties if the judge before whom the defendant was tried is unable to

perform those duties because of absence from the district, death,

sickness, or other disability.” People v. Rivera-Bottzeck, 119 P.3d

546, 550 (Colo. App. 2004); see Crim. P. 25. And, in any event,

Crim. P. 25 limitations on substitution of a judge do not apply to

postconviction proceedings. See People v. Brewster, 240 P.3d 291,

301-02 (Colo. App. 2009).

¶ 20 For all of these reasons, we conclude that there was no abuse

of discretion and no departure from the procedural requirements of

Rule 35 in Owens’s postconviction proceedings.

2. Due Process

¶ 21 Next, Owens argues that Judge Munch’s postconviction

procedures violated his due process rights. In disagreeing with this

proposition, we note this case was granted virtually every exception

to a typical amount of appellate and postconviction review because

it served as an aggravator to a death penalty case. Courts

considering Owens’s case made many significant accommodations.

11

Owens was granted significantly oversized appellate briefs on direct

appeal; he was permitted to present seven days of postconviction

evidence specific to Lowry Park; and Judge Munch considered a

monumental amount of evidence from dozens of other

postconviction hearings. Moreover, Owens did not argue to Judge

Munch that he should hear live testimony from any specific

witness. Now, on appeal, Owens argues that live testimony from

twelve specific witnesses, including two who were designated for live

testimony but Owens did not call, was necessary to the disposition

of his motion.

5

This position is untenable.

¶ 22 By any measure, Owens has had a meaningful opportunity to

challenge his convictions. That he may not have taken full

advantage of the opportunities afforded by Judge Munch does not

deprive him of due process.

5

In his opening brief, Owens names Jamar Johnson, Latoya Sailor

Ray, John Gonglach, Sharlene Reynolds, Jahmon Gaines, Michael

McPherson, Askari Martin, Marcus Baker, Jon Martin, Jamar

Dickey, Rashad Mayes, and Stacy Hicks as witnesses precluded

from presenting live testimony to Judge Munch. Judge Munch

approved two of these witnesses — Jamar Dickey and Jamar

Johnson — for live testimony. Owens did not call either of them.

Moreover, Owens did not include John Gonglach on the witness list

he submitted to Judge Munch.

12

3. Review of Postconviction Court’s Findings of Fact

¶ 23 We are unpersuaded by Owens’s argument that our normal

deference to the postconviction court’s findings of fact and

assessments of credibility should be discarded due to the nature of

the postconviction proceedings. We note that the only credibility

findings in the court’s order concerned Juror 75, a witness from

whom it heard multiple days of live testimony. Accordingly, we will

apply the established standard applicable to appellate review of

factual findings. We defer to all findings of fact and assessments of

credibility for which there is record support. See People v. Corson,

2016 CO 33, ¶ 40.

III. Alleged Prosecutorial Misconduct

¶ 24 Owens next contends that the prosecution violated his

constitutional due process rights by failing to disclose material

exculpatory evidence within its control and by eliciting, or failing to

correct, false trial testimony and using it to obtain a conviction —

conduct recognized as constitutionally repugnant. Brady v.

Maryland, 373 U.S. 83 (1963); Napue v. Illinois, 360 U.S. 264

(1959). His claims are based on the prosecution’s failure to

disclose: (1) a police bulletin created during the initial investigation

13

of the Lowry Park shootings and a Versadex report;

6

(2) evidence

regarding the criminal histories of and prosecutorial favors done for

two of the state’s principal witnesses, Jamar Johnson and Latoya

Sailor (Ray’s wife), which might have been used to further impeach

their credibility; and (3) a note memorializing statements made by

Tetrick Brewer during a police interview. Owens alleges that Brewer

was an eyewitness to the Lowry Park shootings.

¶ 25 These contentions present mixed questions of law and fact.

People v. Bueno, 2018 CO 4, ¶ 20. We apply a clear error standard

to the postconviction court’s findings of fact and review its legal

conclusions de novo. Id. A court’s findings are clearly erroneous

when they are unsupported by the record. Id.

A. Brady

¶ 26 In Brady, the Supreme Court recognized that “the suppression

by the prosecution of evidence favorable to an accused upon

request violates due process where the evidence is material either to

6

A Versadex report is a document generated by the Aurora Police

Department’s records management system. It contains every piece

of information compiled by the record-keeping staff or entered by

officers.

14

guilt or to punishment, irrespective of the good faith or bad faith of

the prosecution.” 373 U.S. at 87. Later, the Court also recognized

that to ensure the “elementary fairness” intrinsic to due process,

the prosecution has a duty to disclose material exculpatory

evidence even if the defense has not requested it. United States v.

Agurs, 427 U.S. 97, 110-11 (1976), abrogated on other grounds by

United States v. Bagley, 473 U.S. 667, 682 (1985).

¶ 27 To obtain reversal of a conviction based on a Brady violation, a

defendant must demonstrate that (1) the prosecution suppressed

specific evidence; (2) the suppressed evidence is exculpatory or

favorable to the defendant; and (3) it is material to the case. Bueno,

¶ 29.

¶ 28 Evidence is considered exculpatory or favorable under Brady if

it has a tendency to decrease the likelihood of conviction or the

severity of the sentence. Id. at ¶ 31. Thus, evidence that suggests

a defendant is innocent or impeaches the credibility of adverse

witnesses must be disclosed if it is material. Bagley, 473 U.S. at

676-78. Evidence is sufficiently material where “there is a

reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different.”

15

Id. at 682. A reasonable probability is demonstrated when the

suppression of evidence undermines confidence in the trial’s

outcome. Id. at 678. Given this standard, the materiality of

suppressed evidence must be assessed in light of its cumulative

effect on the trial, not according to the potential impact of each

piece of evidence individually. Kyles v. Whitley, 514 U.S. 419, 436-

37 (1995).

B. Napue

¶ 29 Like Brady, Napue addressed the prosecution’s duty to

proceed with basic fairness. In Napue, the prosecution’s principal

witness testified that he had received no consideration in exchange

for his testimony. 360 U.S. at 265. The prosecutor knew this

testimony was false but failed to correct it. Id. at 266-67. The

Napue Court held that when the prosecution knowingly obtains a

conviction through the use of false testimony, even if the testimony

goes only to the credibility of the witness, it violates the defendant’s

due process rights. Id. at 269. The Court later reexamined this

rule in Giglio v. United States, 405 U.S. 150, 153-54 (1972), holding

that a defendant’s due process rights are violated not only where

16

the prosecution knew testimony was false, but also where it should

have known testimony was false.

¶ 30 To receive a new trial based on a Napue violation, a defendant

must show that (1) “the prosecution’s case included perjured

testimony”; (2) “the prosecution knew or should have known of the

perjury”; and (3) “the perjury was material.” People v. Medina, 260

P.3d 42, 48 (Colo. App. 2010). False testimony is considered

material where there is “any reasonable likelihood that the false

testimony could have affected the judgment of the jury.” Id.

(quoting United States v. Helmsley, 985 F.2d 1202, 1205-06 (2d Cir.

1993)). Mere inconsistencies in a witness’s story are insufficient to

show that testimony was perjured. Gallegos v. People, 116 Colo.

129, 132, 179 P.2d 272, 273-74 (1947) (“The mere fact that sworn

testimony may differ from extrajudicial statements does not

constitute perjury.”); People v. Valera-Castillo, 2021 COA 91, ¶ 44.

C. Postconviction Court’s Application of Law

¶ 31 We first address Owens’s contention that the postconviction

court’s entire analysis was flawed because it analyzed the

significance of each piece of evidence separately rather than in the

17

aggregate. We reject this argument on both legal and factual

grounds.

¶ 32 We reject the legal argument because Kyles’s admonition that

a court should assess the impact of all suppressed evidence

collectively does not preclude a preliminary analysis of the impact of

each piece of evidence. As the Kyles Court acknowledged, it is

impossible to assess the collective impact of suppressed evidence

without first understanding the individual force and relevance of

each item. 514 U.S. at 436 n.10 (noting that while the cumulative

effect of the evidence would be discussed separately, the court

evaluated “the tendency and force of the undisclosed evidence item

by item; there is no other way”).

¶ 33 We reject the factual argument because the record belies the

assertion that the postconviction court failed to analyze the

collective effect of all the suppressed evidence. In a section of its

order entitled “cumulative effect,” the postconviction court explicitly

discussed its view of the evidence as a whole and drew conclusions

based on all the evidence. Accordingly, Owens’s contention is

without merit.

18

D. Materiality of Suppressed Evidence

¶ 34 The parties largely agree that the items of evidence at issue

were not disclosed by the prosecution and that this evidence was, to

varying degrees, favorable to Owens or exculpatory. To the extent

they disagree, we need not resolve these disagreements because

even if we assume that each piece of evidence at issue was

suppressed and was also favorable or exculpatory, Owens’s Brady

claims fail. He has not shown there is a “reasonable probability

that, had the evidence been disclosed to the defense, the result of

the proceeding would have been different.” Thus, the allegedly

suppressed evidence is insufficiently material to warrant a new

trial.

¶ 35 Further, to the extent Owens asserts that his due process

rights were violated under Napue or Giglio, he has not shown that

the objectionable testimony was false, much less perjured, nor has

he demonstrated its materiality. Medina, 260 P.3d at 48; Gallegos,

116 Colo. at 132, 179 P.2d at 273-74.

¶ 36 We address the materiality and, if relevant, alleged falsity of

each type of evidence separately and then turn to its collective

impact. Kyles, 514 U.S. at 436-37.

19

1. Police Bulletin and Versadex Report

¶ 37 Owens asserts, and the prosecution concedes, that the

prosecution did not disclose (1) a police bulletin, created the night

of the shootings and distributed to patrol officers, that listed

preliminary descriptions of one or more Lowry Park suspects and a

description of the escape vehicle; and (2) a Versadex report that

purported to show, among other things, a list of initial suspect

descriptions and/or identities. The Versadex report named Owens,

Ray, Sailor, and one other person as possible suspects and also

separately identified five suspects exclusively by their physical

descriptions.

¶ 38 According to Owens, these documents are exculpatory because

many of the preliminary suspect descriptions are inconsistent with

descriptions of Owens on the night of the shootings. He argues that

had the evidence been available, these suspect descriptions would

have substantially undercut the prosecution’s argument that

descriptions of Vann’s shooter were relatively consistent, and

Owens’s attorneys, in turn, might have chosen to rely on

misidentification or alternate suspect defenses rather than self-

defense.

20

¶ 39 Although this argument has some superficial appeal, it fails in

light of the cumulative testimony and evidence before the

postconviction court. At one postconviction hearing, the author of

the bulletin, Officer Thomas Wilson, testified that it did not

accurately reflect the number of suspects, nor did it contain an

accurate description of any particular suspect. Rather, the

bulletin’s suspect descriptions were an amalgam of the average

heights and weights of several possible suspects based on

multitudinous witness descriptions. The only description that

Wilson knew to be accurate was the description of the escape

vehicle, which was undisputed at trial. Similarly, Wilson explained

that the Versadex report reflected a jumbled mix of raw data

gathered by multiple officers and put in the system without context

by the records staff. Thus, it did not necessarily provide accurate

descriptions of the number of suspects or the appearance of any

particular suspect.

¶ 40 Given the paucity of meaningful data contained in these

documents, they would not have materially added to the mix of

identity information available to defense counsel, who possessed

myriad police reports containing a great variety of suspect

21

descriptions. Further, as discussed more fully below, infra Part

III.D.2.a, when compared with other forceful and ample evidence

that Owens was the person who shot Vann, the bulletin and report

were unlikely to convince defense counsel to abandon their self-

defense strategy.

¶ 41 While we have carefully considered Owens’s argument that the

postconviction court erred by placing great reliance on Wilson’s

testimony about the purpose for which the evidence was created,

rather than considering its value to the defense, we do not agree

that the bulletin and Versadex report are material when viewed

from the perspective of the defense. The evidentiary significance of

these documents cannot be accurately assessed by either party

apart from the context in which they were created. Given this

context, and in light of other available evidence, we conclude that

the bulletin and report are not material under Brady.

2. Impeachment Evidence

¶ 42 Owens further contends that the prosecution’s failure to

disclose several pieces of evidence relevant to the credibility of

witnesses Johnson and Sailor prevented the defense from effectively

impeaching these witnesses. According to Owens, these failures

22

likely changed the outcome of the case because Johnson’s and

Sailor’s testimony was necessary to prove two facts essential to the

prosecution’s theory of the case: (1) that Owens was the person who

shot Vann; and (2) that the shooting was the result of an argument

that had spontaneously erupted at Lowry Park between Ray and

Owens on one side and the victims and their friends on the other.

Owens asserts that had the defense been aware of all of the

impeachment evidence known to the prosecution, they might have

chosen to contest Owens’s identity as Vann’s shooter and argue

that the shooting was caused by a gang-related altercation that did

not involve Owens.

¶ 43 To address these contentions, a brief summary of the relevant

statements and history of each witness is necessary.

a. Johnson

¶ 44 Johnson testified that he knew Ray and Owens and he was at

Lowry Park at the time of the shootings. He also testified that he

saw Vann punch Owens and Owens shoot Vann. In addition, he

said that he saw Ray shoot Marshall-Fields and Bell.

¶ 45 At trial, the prosecution asked Johnson about his reasons for

testifying. He stated that he did not want to testify. He also noted

23

that the first time he spoke to police about this case, he was in jail

because he had violated the terms of his probation on a felony

menacing conviction in Boulder County. He stated that he had lied

to police at that time, telling them he had no idea how the shootings

happened.

¶ 46 The prosecution then asked why he had eventually agreed to

cooperate. He said that his Boulder County probation violation

resulted from new robbery and theft charges in Arapahoe County,

that the district attorney “bumped up” the Arapahoe County

charges so that his bond would be revoked, and that he had worked

out a deal with the prosecutor’s office for a deferred judgment on

the new charges. Johnson explained that his deal required him to

testify truthfully and that he would not have testified unless

prosecutors had made a deal with him.

¶ 47 On cross-examination, Johnson admitted that when he agreed

to testify, he was facing substantial prison sentences in his Boulder

and Arapahoe County cases, he was in “a bind,” and he had “a big

hammer over his head.” He agreed, with respect to his Arapahoe

County deal, that he had “never gott[en] a deal that good before,”

presumably in prior cases in which he was charged as a criminal

24

defendant. He further agreed that the Boulder County prosecutors

did not ask the sentencing court to impose a custodial sentence,

although he had violated his probation, and that they simply

reinstated his probation without any further penalty.

7

Johnson

conceded that if he had not cooperated with the prosecution, he

would likely have faced prison time.

¶ 48 In his postconviction motion, Owens alleged that the

prosecution suppressed several pieces of material evidence that

would have shown:

• In a prior case, Johnson had cooperated with prosecutors

to get a deal for himself while implicating his

codefendants.

• In his initial police interview, a detective told Johnson

that if he did not cooperate, he could face charges in the

Dayton Street murders under a complicity theory.

7

In closing arguments, the defense highlighted the lenient

treatment Johnson received from the Boulder County prosecutors,

reminding the jury that “[t]he probation violation in Boulder just

disappears. It’s dismissed. . . . Oh, worked out well for him and all

he’s got to do is come in here and say what the prosecutors want

him to say.”

25

• Before grand jury proceedings began, prosecutors kept

applying pressure regarding potential charges in the

Dayton Street murders by emailing Johnson’s counsel

and urging him to cooperate and by issuing a grand jury

subpoena advising Johnson of his rights.

• Before Johnson decided to cooperate, the lead prosecutor

in Owens’s case pressured Boulder prosecutors to revoke

Johnson’s probation to secure his cooperation.

• After Johnson decided to cooperate, the prosecutors in

Owens’s case advised the Boulder prosecutors that they

needed to “do more for [Johnson]” because he was “the

single most important witness,” and they subsequently

reinstated his probation with better terms.

• After Johnson agreed to cooperate, he was ticketed for

driving under suspension in Arapahoe County; the lead

prosecutor said he’d “take care of it,” and he got

Johnson’s court date postponed because Johnson was in

the witness protection program.

• The driving charge could have triggered revocation of his

probation or deferred judgment, but neither the Boulder

26

nor the Arapahoe prosecutors imposed any

consequences.

• Johnson witnessed or was temporarily a suspect in

several gang-related shootings after the Lowry Park

shootings; relatedly, during one police interview, he

admitted he was associated with the Bloods gang

although he had previously denied being a member.

¶ 49 While we agree that much of this evidence should have been

disclosed and that some of it could have been used to further

impeach Johnson, for two reasons, it is not material under Brady’s

standard.

¶ 50 First, the evidence is merely cumulative of other significant

trial evidence that Johnson was in severe legal jeopardy when he

agreed to testify and prosecutors gave him an extremely favorable

deal. In fact, Johnson admitted that he was testifying to gain

prosecutorial leniency and would not have done so otherwise, the

very point the additional evidence would have supported. Where

evidence provides only marginal additional impeachment value

because the credibility of the witness has already been impeached

in the same respect by other evidence, there is generally no

27

reasonable probability that disclosure of the additional evidence

would have changed the outcome. United States v. Cooper, 654

F.3d 1104, 1120 (10th Cir. 2011) (stating that additional

impeachment of an already-compromised witness is not material

unless the evidence provides an entirely new basis for

impeachment); Douglas v. Workman, 560 F.3d 1156, 1174 (10th

Cir. 2000) (noting that cumulative “evidence insignificantly

impacting the degree of impeachment may not be sufficient to meet

the Kyles materiality standard, while evidence significantly

enhancing the quality of the impeachment evidence usually will”).

¶ 51 Second, Johnson’s testimony that Owens was one of the

shooters at Lowry Park was corroborated by several sources. Sailor

testified that Ray made statements implying that Owens shot Vann,

and more significantly, Owens admitted in her presence that he

“emptied his clip” at the park, see infra Part III.D.2.b. Sailor also

identified Owens and Ray in a video, taken on the night of the

shooting, showing two men lifting up their shirts, apparently to

flash the guns in their waistbands. Cashmeir Jones, Owens’s

girlfriend, testified that she saw “[Ray] or [Owens] or both” lifting

their shirts that night, but she did not recognize Owens on the

28

video. Bell, Marshall-Fields, and eyewitness Jeremy Green all

described a shooter that matched Owens’s description: 6’ 1”, 165 or

180 pounds, wearing a white t-shirt, braids, blue jean shorts, and a

white hat.

8

Both Jones and Sailor testified that after the shooting,

Owens cut off his distinctive braids. He then left the state, driving

to Louisiana and staying there until he was arrested. The

materiality of cumulative impeachment evidence is reduced where

an adverse witness’s testimony is strongly corroborated. Johnson v.

Folino, 705 F.3d 117, 129 (3d Cir. 2013); United States v. Jones,

160 F.3d 473, 479 (8th Cir. 1998); Graham v. Wilson, 828 F.2d 656,

660-61 (10th Cir. 1987).

¶ 52 Finally, we reject Owens’s contention that Johnson’s alleged

gang activity was material. The evidence cited by Owens

demonstrates that Johnson was a witness, not a participant, in

several possible gang shootings. And Owens presents scant

evidence that prosecutors ever acted on Johnson’s behalf in this

respect. He cites only one specific incident of potential favorable

8

Green described the shooter as “dark-skinned” and wearing a

dark-colored hat, features that did not match other descriptions of

Owens.

29

treatment: after one shooting in which Johnson was not a suspect,

he might have given police a fake name (this evidence was

controverted) and he did not face charges for that alleged conduct.

Evidence that the government was not as hard on a witness as it

might have been with respect to each and every potential charge

does not amount to proof that a witness had a tacit agreement to

testify in exchange for additional governmental leniency. Wisehart

v. Davis, 408 F.3d 321, 325-26 (7th Cir. 2005) (Criminal trials

“must not be allowed to turn into [inquiries] into disparate

treatment of criminals, with . . . witness[es] being asked whether

[they]’d received any benefit that [they] would not have received had

the state not wanted [their] testimony and whether therefore [they]

feared retaliation if [they] stopped playing ball.”). Absent such an

agreement, this evidence lacks both probative force and materiality.

¶ 53 Moreover, to the extent that Owens asserts Johnson perjured

himself when he denied being a “member” of a gang during his

grand jury testimony and later admitted to being an “associate” of

the Bloods gang during a police interview, we conclude that Owens

has not shown that Johnson testified falsely. Johnson used

different terms for his involvement with gangs, or lack thereof, in

30

these statements — denying he was a “member” but admitting he

was an “associate.” This testimony was buttressed by a detective’s

grand jury testimony, disclosed to the defense, where she stated

that Johnson was “affiliated” with gangs but may not have been a

“blessed in member.” Because these statements are nuanced, they

are not patently false. As such, they do not trigger prosecutorial

obligations under Napue or Giglio. Gallegos, 116 Colo. at 132, 179

P.2d at 273-74.

b. Sailor

¶ 54 Sailor testified at trial that Ray showed up at Lowry Park

angry and drunk. She feared Ray might get into a fight, so she

called Owens and asked him to come get Ray. Owens arrived at the

park a short time later. Sailor testified that as she was leaving the

park, she heard gunshots but did not see who was shooting. Later,

she met up with Ray and Owens at Ray’s apartment. She stated

that Ray was angry with Owens and asked him “why he did the

shooting, why he didn’t just shoot in the air.” Sometime later,

Owens admitted that he “emptied his clip.” She also testified that

Ray and Owens hid at a motel and at family members’ houses for

several days after the shootings.

31

¶ 55 At trial, she admitted that, before she agreed to cooperate, she

was charged as an accessory to murder in this case and was also

facing separate drug and weapons possession charges. She stated

that her attorney had worked out a plea bargain with prosecutors in

exchange for her cooperation, that prosecutors dismissed her drug

and weapons charges as a result, and that she was given a deferred

judgment on the accessory charge. She further conceded that her

deal required her to testify and that she had testified five times.

When asked whether she would have come forward had she not

faced criminal charges, she noted that she would have done so but

that she did not “agree to come forward” until police caught “the

main suspect.”

¶ 56 In his postconviction motion, Owens asserts that prosecutors

suppressed several material items:

• evidence that, contrary to Sailor’s testimony, she did

come forward before Owens was in custody, and that

Sailor’s lawyer started negotiating a plea deal with

prosecutors before Owens was arrested;

• evidence that Sailor received prosecutorial assurance

that social services would not take her son; and

32

• evidence that, while Sailor was in witness protection, a

detective in Owens’s case set up an interview with Sailor

in Colorado at the request of detectives in Michigan so

that she could confirm or controvert the alibi given by an

ex-boyfriend in an unrelated Michigan homicide case.

¶ 57 After reviewing the allegedly suppressed evidence, we conclude

that it was not material under Brady nor did its nondisclosure

violate the due process rights recognized in Napue or Giglio.

¶ 58 As an initial matter, although Owens alleges that Sailor falsely

testified that she did not “come forward” until Owens was in

custody, the record does not support the assertion that this

testimony was false or perjurious. United States v. McNair, 605

F.3d 1152, 1208 (11th Cir. 2010) (noting that perjury requires a

willful intent to provide false testimony, not a misstatement

resulting from mistake, confusion, or faulty memory). The

postconviction evidence did show that Sailor authorized her

attorney to initiate plea negotiations well before police arrested

Owens and that her attorney provided prosecutors with a skeletal

outline of her knowledge before Owens was in custody.

33

Nonetheless, it also showed that Sailor did not speak to the police

herself or make a formal proffer until after Owens was arrested.

¶ 59 The trial transcripts indicate that Sailor did not view the pre-

proffer negotiations as “coming forward.” Thus, she did not give

false or perjured testimony. In fact, in a follow-up question, the

lead prosecutor clarified what Sailor’s statement meant:

Prosecutor: Did you become aware under [sic]

November or December 2005, that Mr. Owens

was arrested?

Sailor: Yes

Prosecutor: Is that what you’re referring to that

you came forward then?

Sailor: Yup

Prosecutor: All right. . . . [B]y [the date of the

proffer] at least, [you had] worked out an

agreement with my officers?

Sailor: Correct

¶ 60 It is apparent that Sailor was referring to her final agreement

with prosecutors when she said she did not “come forward” prior to

Owens’s arrest. Prosecutors had no obligation, pursuant to Napue

or Giglio, to correct this testimony because it was not false or

perjurious.

34

¶ 61 Further, we agree with the postconviction court’s conclusion

that even if Sailor’s testimony that she did not “come forward”

before Owens was arrested were inaccurate, the testimony is

insufficiently material to support reversal of Owens’s conviction. As

the postconviction court noted, during the Lowry Park trial, Sailor

did not testify that she failed to come forward because she was

afraid of Owens, thereby implying that he was capable of harming a

witness. Rather, without explicitly offering a motive, she described

the timing of her cooperation as it related to Owens’s arrest.

Because she did not clarify why she hesitated to make a deal with

prosecutors, the challenged testimony did not necessarily

incriminate Owens or explain Sailor’s motives. Accordingly,

controverting this testimony would not have “affected the judgment

of the jury.” Medina, 260 P.3d at 48.

¶ 62 Moreover, with respect to the assertion that prosecutors

assured Sailor they would prevent social services from becoming

involved, the postconviction court found there was no evidence of

such a promise. This finding is supported by the record. The

record shows that, while she was in jail, Sailor’s priority was to be

reunited with her son. Her attorney told prosecutors that she

35

feared social services might become involved. Defense counsel’s

notes reflect only that prosecutors responded, “they are looking at

[Sailor] being allowed to leave to another state with her child, and a

sentence with no incarceration.” This statement does not amount

to a secret promise to prohibit social services’ involvement.

Further, the defense knew Sailor had been moved out of state with

the witness protection program, the very thing prosecutors

promised her. Because the allegedly suppressed evidence does not

demonstrate the existence of an undisclosed promise, it is not

material.

¶ 63 Finally, evidence showing that a Colorado detective helped

Michigan detectives set up an interview with Sailor is also

immaterial under Brady. Owens asserts that this evidence would

have been “another link in a chain of threats, intimidation, and

promises that secured Sailor’s cooperation.” However, the record

shows that neither the detective in this case nor the Michigan

detectives ever believed Sailor was a suspect in the Michigan case.

The record is also devoid of evidence that prosecutors personally, or

through the Michigan detectives, threated Sailor or offered her

benefits, implicit or otherwise, in exchange for the interview. There

36

is some evidence that Sailor, nonetheless, felt vaguely threatened by

the additional contact with another law enforcement agency. This

evidence might have some impeachment value, but it would only be

incremental in light of the much more forceful evidence that she

was motivated to testify by her plea deal. Douglas, 560 F.3d at

1174.

¶ 64 In any event, had defense counsel chosen to elicit evidence

that prosecutors attempted to intimidate Sailor by setting up a

police interview while she was in witness protection, this testimony

was likely to have opened the door to damaging evidence that

Owens previously sought to exclude — the fact that Sailor could not

be located because she was in the witness protection program due

to the Dayton Street murders and her status as a witness in this

case. Given this risk, it is unlikely that defense counsel would have

elicited evidence on this topic or that if the defense had done so, it

would have changed the outcome.

c. Brewer

¶ 65 According to notes taken by a detective in the Lowry Park and

Dayton Street cases, Tetrick Brewer served as a one-time

confidential informant. The detective interviewed Brewer after each

37

incident. Her notes reflect that, with respect to the Lowry Park

shootings, Brewer first stated he had talked to Candace Parker.

The notes then explain, “Had just got there right before it happened.

There was a fight. The dude got into the fight and lost and went to

the car [sic] get a gun [sic] came back and shot . . . . Just heard

that there was one shooter.”

9

When asked about these notes, the

detective testified that what Brewer told her was “all secondhand

stuff that he had heard from Candace Parker.” The defense

disputes the assertion that Brewer was not an eyewitness.

¶ 66 On appeal, Owens contends, and the prosecution concedes,

that the detective’s notes were not disclosed to the defense.

According to Owens, Brewer’s statements suggest that “Ray, not

9

The notes also reflect that Brewer indicated Johnson was “hanging

with the Montbello bloods” at the time of the Dayton Street murders

and was “pretty much the leader.” On appeal, Owens argues these

statements provided additional evidence the shootings were

“possibly gang related” and Johnson was involved. However, he

made no such argument in his Crim. P. 35(c) motion. In fact,

postconviction counsel argued the opposite, asserting that trial

counsel rendered ineffective assistance because they failed to object

to the admission of any and all gang-related evidence. With respect

to that issue, counsel asserted, “There is no evidence that the Lowry

Park shooting was gang related in any fashion.” Because Owens

did not preserve this argument, we do not address it. People v.

Huggins, 2019 COA 116, ¶ 17.

38

Owens, was Vann’s shooter” and, when viewed in conjunction with

similar eyewitness statements, Brewer’s statement might have

convinced defense counsel to abandon a self-defense theory and, in

turn, convinced a jury that Johnson’s and Sailor’s testimony was

false. We disagree.

¶ 67 As the postconviction court concluded, the trial evidence

showed that Vann and Bell were shot with guns of different

calibers, making it unlikely that defense counsel would have

argued, or the jury would have believed, that Ray was the only

shooter. For that reason, like the postconviction court, we are not

persuaded that Brewer’s statements would have altered defense

counsel’s strategy.

¶ 68 In addition, as Owens noted, several eyewitnesses whose

statements were apparently disclosed to the defense described a

single shooter that matched Ray’s description. Even assuming that

Brewer was an eyewitness, we are not persuaded that his

cumulative statement would have tipped the scales in favor of

pursuing a mistaken identity defense. Therefore, we do not perceive

his statements to be material under Brady.

39

3. Cumulative Effect on the Trial

¶ 69 After a careful review of the cumulative effect of all the

allegedly suppressed evidence, we conclude that Owens failed to

demonstrate the trial was materially altered by prosecutorial

failures to disclose identity evidence. The defense was in

possession of multiple items of evidence that permitted the jury to

infer that Owens was not Vann’s shooter. Brewer’s statements and

the Versadex report and police bulletin did not add significant new

information. We further conclude that all the impeachment

evidence raised by Owens is cumulative of other significant

impeachment evidence. This evidence was used to comprehensively

and competently impeach Sailor and Johnson at trial. There is no

reasonable probability that the outcome would have been different if

the allegedly suppressed evidence had been disclosed.

IV. Ineffective Assistance of Trial Counsel

¶ 70 Owens next contends that trial counsel rendered ineffective

assistance by failing to devote adequate time and to conduct a

reasonable investigation of Owens’s case. According to Owens,

counsel’s failures include a lack of diligence in reviewing discovery,

interviewing eyewitnesses, and investigating adverse witnesses.

40

Owens asserts that these investigatory failures made it impossible

for defense counsel to make a professionally reasonable decision

regarding whether to pursue a self-defense strategy or to contest

Owens’s identity as Vann’s shooter. He argues that had counsel

done a more thorough investigation, it is likely they would have

presented a different defense, successfully arguing that an alternate

suspect killed Vann. Thus, Owens contends that trial counsel’s

failures deprived him of a fair trial.

A. Law

¶ 71 The right to counsel, as guaranteed by the United States and

Colorado Constitutions, necessarily includes the right to effective

assistance of counsel. U.S. Const. amend. VI; Colo. Const. art. II,

§ 16; Strickland v. Washington, 466 U.S. 668, 686 (1984). In a

postconviction proceeding, a conviction is presumed valid 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). To prove that counsel provided ineffective assistance, a

defendant must show that (1) counsel’s acts or omissions “fell below

an objective standard of reasonableness”; and (2) he was prejudiced

by counsel’s errors, meaning that there is a reasonable probability

41

that “but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at 688,

694; People v. Washington, 2014 COA 41, ¶ 23. Both prongs of the

Strickland test present mixed questions of law and fact. Dunlap,

173 P.3d at 1063. We review findings of fact for clear error but

legal questions are subject to do novo review. Id.

¶ 72 Because our analysis may be distorted by hindsight, we must

be highly deferential to counsel, giving them the benefit of a strong

presumption that their conduct was within the “wide range of

professionally competent assistance.” Strickland, 466 U.S. at 690;

see People v. Gandiaga, 70 P.3d 523, 525 (Colo. App. 2002) (the

constitutional right to effective assistance of counsel is not a

guarantee against strategic mistakes or a critique of counsel’s

judgment using the benefit of hindsight). We must judge the

reasonableness of counsel’s conduct on the facts of the case, viewed

as of the time of the conduct. Strickland, 466 U.S. at 691. The

benchmark for evaluating any claim of ineffectiveness is whether

counsel’s conduct so undermined the adversarial process that the

result of the trial is unreliable. Id. at 686.

42

B. Discussion

¶ 73 First, we note that Owens’s representation was complicated by

the fact that he had two different teams of lawyers before trial. He

received appointed counsel through the public defender’s office

shortly after his arrest in November 2005. His first team consisted

of Douglas Wilson as lead lawyer, Daniel King as second chair, and

Jason Middleton as third chair. In late September 2006, Wilson

was appointed to head the state public defender system and he

accordingly transferred his caseload to others. King became lead

counsel, Laurie Rose Kepros was chosen as second chair, and

Middleton remained in third position. This second team tried

Owens’s case. Owens’s ineffective assistance claim arises, in part,

from an assertion that the transition impeded counsel’s

investigation. We discuss the effect of the transition on the

investigation in more detail below.

1. Discovery

¶ 74 Defense counsel received the first batch of discovery in late

December 2005. Owens asserts that, for the following three

months, his defense team completely ignored the 1,255 pages of

discovery provided. By April 2006, according to Owens, over 8,000

43

pages of unreviewed discovery had built up. In May 2006, counsel

successfully moved to continue the preliminary hearing, noting that

they needed more time to review discovery. In June, counsel filed

another motion to continue the preliminary hearing, but the motion

was denied. In October, Kepros joined the team. She was

“concerned” because she had “something like 12,000 pages of

discovery to review.” Approximately three months later, the defense

team moved unsuccessfully to continue the impending January

2007 trial because, among other issues, they weren’t fully familiar

with all the discovery materials.

¶ 75 Despite these allegations, the postconviction court found that

“trial counsel’s review of the evidence before selecting their theory of

defense was adequate.”

¶ 76 Insofar as this finding applies to the trial team’s efforts to

review discovery, we conclude that there is evidence to support the

finding. In their postconviction testimony and their motion to

continue the trial, both King and Kepros were indeed clear that they

desired more time to review discovery. Even so, the record belies

Owens’s assertions that counsel simply ignored discovery or were

unable to review it in any meaningful way before they made a

44

decision to pursue a self-defense strategy sometime after October

2006.

10

¶ 77 At a hearing in mid-January 2006, King indicated to the trial

court that he had read all 1,300 pages of initial discovery. The next

month, in a motion seeking additional discovery, counsel indicated

that the defense had reviewed 1,825 pages of discovery as well as

various media items. Contrary to Owens’s assertion that by month

four, 8,000 pages of previously disclosed materials remained

unreviewed, the record shows that, in April 2006, the defense had

just received 8,000 pages of new discovery pertaining to both the

Dayton Street murders and the Lowry Park shootings. According to

King, the defense had to read “every word” to determine which case

each piece of discovery pertained to. Despite this burden, King had

10

King testified that when Wilson left the case in October 2006, no

final decision regarding defense strategy had been made. A final

decision was reached only after Kepros joined the team and trial

was approaching. Kepros testified that, at least initially, she and

King had some disagreement regarding which defense to pursue.

She was troubled that some witnesses described a shooter who did

not resemble Owens. However, since King was lead counsel, he

ultimately made the final decision to pursue self-defense sometime

between October 2006 and the January 2007 trial. Middleton

testified that the selection of a defense was not his role, although he

may have participated in discussions.

45

scanned and at least “cursedly [sic] read” all discovery before trial.

Further, although Kepros had a steep hill to climb in familiarizing

herself with all the discovery, she attended most of Ray’s Lowry

Park trial in October 2006 to “get up to speed on the big picture

issues in the case” and continued to review discovery as she worked

on the investigation. Given this evidence, the postconviction court’s

finding that trial counsel’s review of the unusually voluminous

discovery materials was adequate was not clearly erroneous.

2. Investigation

¶ 78 Owens’s challenge to defense counsel’s investigation also

arises from their failure to interview multiple eyewitnesses whose

descriptions of the shooter purportedly aligned more closely with

Ray’s appearance than with Owens’s, or who named Ray as a

shooter based on familiarity with him. Owens also raises counsel’s

alleged failure to investigate Johnson and another eyewitness, Jon

Martin, as likely alternate suspects. According to Owens, because

the defense team didn’t interview all the eyewitnesses, it didn’t have

enough information to make a reasonable decision regarding

defense strategy. In other words, in the absence of a reasonable

investigation, no reasonable strategic decision was possible.

46

¶ 79 With respect to counsel’s duty to investigate, Strickland directs

that “strategic choices made after thorough investigation of law and

facts relevant to plausible options are virtually unchallengeable;

and strategic choices made after less than complete investigation

are reasonable precisely to the extent that reasonable professional

judgments support the limitations on investigation.” 466 U.S. at

690-91. Here, Kepros and King both stated that they believed their

investigation was incomplete at the time of trial. The motion to

continue also reflected this belief.

11

Thus, the question before us is

whether the purportedly “less than complete investigation” was

nonetheless the result of trial counsel’s reasonable professional

judgment regarding which avenues of investigation to pursue given

11

We note that, when trial is upon them, most good defense

attorneys would prefer to have more time to investigate the case.

King’s and Kepros’s testimony supports the notion that the trial

judge should have granted a continuance, but the fact that the

defense wanted more time to investigate does not necessarily mean

their investigation fell below a standard of professional

reasonableness. Harrington v. Richter, 562 U.S. 86, 105, 109 (2011)

(noting that the Strickland standard measures whether counsel was

incompetent under objective professional norms, not whether they

followed best practices or common custom according to their own

subjective assessments). In any case, in Owens I, another division

of this court previously denied Owens’s challenge to the trial court’s

denial of a continuance and that issue has been fully resolved.

47

the time and resources available. Id. at 691 (“[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.”).

¶ 80 The postconviction court answered this question in the

affirmative because, while counsel may have preferred to interview

additional witnesses before trial, their investigation was not so

incomplete that it failed to meet a standard of professional

reasonableness. For several reasons, we agree with the

postconviction court’s conclusion.

¶ 81 First, our charge is to evaluate the reasonableness of counsel’s

conduct in light of the surrounding circumstances. Id. Here, in

evaluating counsel’s conduct, we are cognizant that Owens’s case

was unusually burdensome for the lawyers. At the time of these

investigations, Owens’s counsel was simultaneously representing

Owens in the Dayton Street murders and the Lowry Park shootings.

Thus, although counsel did not “choose” to stop pursuing certain

eyewitnesses even up to the time of trial, counsel did choose to

pursue certain witnesses first, knowing that, at some point, a

strategy decision would have to be made. Harrington v. Richter, 562

48

U.S. 86, 108 (2011) (stating that counsel is entitled to balance

limited resources according to their expertise on effective trial

tactics and strategies). Given the fact that the shootings took place

in a crowded park, and the number of eyewitnesses was therefore

unusually large, there was a risk that some eyewitnesses might not

be interviewed or subpoenaed before trial. Counsel need not

interview every potential witness in a case to provide effective

assistance. People v. Benney, 757 P.2d 1078, 1080 (Colo. App.

1987) (holding that trial counsel did not render ineffective

assistance where he only interviewed some of the prosecution’s

witnesses and largely focused on the chief witness); see also Riley v.

Payne, 352 F.3d 1313, 1318 (9th Cir. 2003) (noting that counsel

does not perform deficiently simply because some witnesses were

not interviewed). They need only conduct an investigation sufficient

to reveal potential defenses as well as weaknesses in the

prosecution’s case. People v. Dillard, 680 P.2d 243, 245 (Colo. App.

1984).

¶ 82 Second, Owens was a suspect in the Dayton Street murders.

Many of the Lowry Park witnesses were placed in the witness

protection program based on the risk that Ray or Owens would

49

want them killed to keep them from testifying. Thus, while counsel

faced formal barriers to contacting and interviewing witnesses —

namely, the need to contact them through the prosecution — they

faced informal barriers as well. As discussed more fully below,

many witnesses were hiding from the defense or were disinclined to

grant interviews. Where witnesses decline to have contact with the

defense, counsel’s ability to investigate is hampered and a limited

investigation is more likely to be deemed adequate. Walls v.

Bowersox, 151 F.3d 827, 834 (8th Cir. 1998) (noting that counsel

did not render ineffective assistance in a mitigation case where

counsel did not present family statements because the family

uniformly declined to speak to the defense).

¶ 83 Third, and most importantly, the record shows that Owens’s

counsel actually interviewed or attempted to interview nearly all the

eyewitnesses before trial, and that they made significant efforts to

investigate nearly all the adverse witnesses. For those they did not

interview, we conclude that reasonable counsel might not have

prioritized these witnesses.

¶ 84 In the initial stages of the investigation, Douglas Wilson and

his investigator traveled to Louisiana to interview Owens’s family.

50

These interviews were done for a dual purpose: to begin mitigation

research in the Dayton Street case and to conduct factual research

into the relationships between Ray, Owens, and Sailor. In addition,

they flew to Michigan to investigate Sailor. Some of her family lived

there and she had a potential criminal history in Michigan.

Counsel also interviewed Sailor’s family in Colorado.

¶ 85 The defense also quickly interviewed Ray’s brother, Maurice,

who was implicated in a scheme to hide the escape vehicle. Defense

counsel additionally requested grand jury transcripts and sought

prosecutorial help to interview multiple witnesses who were in

witness protection. In April 2006, the defense team conducted

interviews with eyewitnesses Cashmeir Jones and Askari Martin,

both of whom were in witness protection. Martin said he “never

saw” Owens but told the defense, “I don’t want to talk to you guys.”

The grand jury transcripts, which were disclosed to the defense,

revealed that Martin testified he never saw Owens at Lowry but he

had seen Ray there and believed he was the shooter. Jones

“continually avoided contact” with the defense and was evasive.

They also interviewed Teresa Riley, who was well-acquainted with

Sailor and was knowledgeable about the Lowry Park shootings, in

51

April 2006. She stated, “I don’t feel like talking about [Ray] and

[Owens].”

¶ 86 The defense twice attempted to interview eyewitness Jamar

Dickey. Discovery materials showed that Dickey may have seen

Ray shoot Vann. However, attempts to interview Dickey were

unsuccessful. In response to counsel’s second attempt to secure an

interview, Dickey stated, “good luck trying to find me.” In any case,

Kepros testified she had concerns about presenting evidence that

Ray was the only shooter because even if the jury believed that,

Owens might be liable as a complicitor.

¶ 87 In August, the defense interviewed Sailor, one of the two

principal witnesses for the prosecution, and they attempted to

interview victim Bell and eyewitness Green. They were unable to

reach Bell, and Green refused to speak to the defense; when they

stopped him at the courthouse, Green said that he was

uncomfortable talking there.

¶ 88 In the last three months before the trial, the defense attempted

to contact at least eighteen additional eyewitnesses, many of whom

described a shooter who looked like Ray or was dressed like him.

52

However, these witnesses either denied having useful knowledge,

could not be located, or refused to speak to the defense.

¶ 89 Despite these extensive efforts to talk to nearly every

eyewitness available, Owens asserts that the investigation was

inadequate because counsel did not interview alternative suspects

Johnson or Jon Martin. However, it is unlikely that Johnson or

Martin would have submitted to an interview with the defense,

knowing that they might be suspects and that their testimony was,

at least in part, adverse to Owens, who was perceived as dangerous

to adverse witnesses. Moreover, it would not have been clear to

reasonable counsel that Johnson or Martin would have offered

exculpatory testimony beyond that already provided by Johnson or

other eyewitnesses — that Owens did not shoot until Vann punched

him and that Vann’s shooter might not have resembled Owens.

12

In

some cases, where counsel has initial information about what a

witness might say, the information dictates that counsel investigate

12

In postconviction testimony, Martin testified he saw Vann’s

shooter and he had dark skin, a bald “fade” hairstyle, and gold

teeth. However, he did not know who it was. Martin is one of

multiple witnesses whose description of the shooter did not match

Owens.

53

further. See Wiggins v. Smith, 539 U.S. 510, 527 (2003) (stating

that a court must consider both the quantum of available evidence

and whether the known evidence should have reasonably led to

further investigation). Here, because these witnesses were highly

unlikely to make themselves available or provide important

exculpatory testimony, it was reasonable not to prioritize these

interviews.

¶ 90 Owens similarly contends that counsel should have

interviewed Jahmon Gaines and Michael McPherson, both of whom

gave postconviction statements or testimony that they saw Ray

shoot Vann. McPherson also testified that Ray shot Marshall-

Fields. Neither of these witnesses knew whether Owens was at the

park that night. While this testimony places the blame squarely on

Ray, as Kepros noted in her testimony, in light of the strong

evidence that Owens came to Lowry Park to help Ray, inculpating

Ray did not necessarily exculpate Owens. Owens was likely to be

held complicit in Ray’s crimes and, even if he wasn’t, the ballistics

evidence indicated there were two different shooters. Therefore,

deciding not to prioritize interviews of additional witnesses that

54

might have pinned one or more of the shootings on Ray was

reasonable.

3. Prejudice

¶ 91 After reviewing the reasons that self-defense was a reasonable

strategy, and an identity defense was problematic, the

postconviction court concluded that “defense of Ray, self-defense

was not only a reasonable strategy, but the more reasonable

strategy.” Whether this statement is reviewed as a factual

determination to which we defer, or a conclusion of law that we

review de novo, we agree with the postconviction court.

¶ 92 Although there was some evidence Ray or others may have

shot Vann, there was overwhelming evidence that Owens was at the

park that night and that he shot Vann in an effort to fend off a

group of angry young men. Sailor testified that she had asked

Owens to come to Lowry Park to help Ray and that a large group of

men had been in a heated argument with Owens and Ray just

before the shooting. Johnson also testified that a group of men had

been fighting with Owens and Ray and that Vann had struck Owens

just before Owens shot him. Marshall-Fields’s and Green’s

statements and Bell’s testimony support Johnson’s version of

55

events. In addition, Sailor testified that when she met up with Ray

and Owens after the shootings, Ray was angry at Owens because

Owens had decided to turn a fistfight into a gunfight. Multiple

victims and eyewitnesses described a shooter that resembled

Owens. Finally, shortly after the shootings, Owens and Ray

disposed of their clothes and hid the escape vehicle. Owens then

cut off his braids and left Colorado.

¶ 93 Although an alternative suspect defense implicating a myriad

of others might have been considered by the defense, in light of the

strong evidence that Owens had not been misidentified, it was

reasonable for the defense to pursue a self-defense strategy, and we

agree with the postconviction court that it was the better choice.

Much of the postconviction evidence cited by Owens was duplicative

of other known evidence showing that several witnesses saw

someone resembling Ray shooting at Lowry Park.

13

Counsel’s

13

This includes the potential testimony of McPherson and Gaines,

who might have testified that they saw Ray shoot Vann. This

testimony was largely cumulative of the testimony of Dickey, who

admitted he “probably” told police that he saw Ray shoot Vann, and

Askari Martin, who, according to police testimony at trial, identified

Ray as the shooter. Martin also testified that he did not see Owens

at Lowry Park.

56

failure to uncover duplicative evidence that Ray was a shooter did

not preclude them from making a reasonable decision that an

identity defense was unlikely to succeed. Kipp v. Davis, 971 F.3d

866, 879-80 (9th Cir. 2020) (holding that failure to uncover

duplicative evidence is not prejudicial). The record demonstrates

that there was no reasonable likelihood that a jury would have

believed Owens did not participate in the shootings, and his counsel

therefore did not prejudice his case by failing to conduct an

investigation into alternate suspects. Harrington, 562 U.S. at 108.

V. Juror Misconduct

¶ 94 Next, Owens contends that Juror 75’s “misconduct” deprived

him of due process and a fair and impartial jury. The

postconviction court identified four types of alleged misconduct by

Juror 75, separately and exhaustively evaluated each one, and

concluded that Owens was not entitled to relief under any of the

four assertions, separately or cumulatively. We describe those

findings in Part V.A. On appeal, Owens maintains that the

postconviction court erred by limiting postconviction hearings — an

argument addressed and rejected in Part II — and with respect to

its findings and conclusions as to each type of alleged misconduct.

57

¶ 95 Before we recount the court’s findings, we first consider a

“fact” Owens alleged at the beginning of his oral argument — that

Juror 75 knew the murder victim, Vann. Juror 75 did not testify

that she knew Vann, and the postconviction court did not make an

explicit finding about this. Our de novo review of the evidence

referenced by Owens reveals minimal support for this alleged fact in

postconviction testimony from Juror 75’s son Q.E. He testified that

Vann, a high school friend of his, had been to his house four or five

times, as recently as 2002 (five years before trial). He further

testified that Vann had “possibly” eaten at his house, and that if so,

Juror 75 would have been home and he would have introduced

Vann to her. But even if they had met, Juror 75 most likely would

not have learned Vann’s actual name, since, according to Q.E.,

most of his friends used nicknames. Evidence of a possible

introduction does not lead to a conclusion that Juror 75 “knew” the

murder victim in this case.

A. Postconviction Order

1. Relationship with Marshall-Fields’s Uncles

¶ 96 Owens alleged that Juror 75, through her husband, Mr.

Manuel, had a personal friendship with two of Marshall-Fields’s

58

uncles, Alan Baxter and Michael Baxter, and she failed to disclose

that to the trial court or the attorneys at any time until after the

trial.

14

The postconviction court found that the “evidence

overwhelmingly demonstrate[d]” that Juror 75 did not know either

of the uncles “until well after her jury service was concluded,” and,

therefore, her friendship with them could not and did not have any

influence on her jury service in this case.

2. Dayton Street Murders Connection

¶ 97 Charges arising from the Dayton Street murders were pending

against Owens at the time of his Lowry Park trial. The trial court

ordered that no information regarding the Dayton Street case was to

be disclosed at the Lowry Park trial. In his postconviction motion,

Owens asserted that Juror 75 knew of the Dayton Street case prior

to, or during, deliberations in this case, and she may have disclosed

Owens’s alleged involvement in the Dayton Street case to other

jurors. Owens contends that this extraneous information tainted

the jury deliberations.

14

Juror 75 married this husband many years after the Lowry Park

trial.

59

¶ 98 The postconviction court found that there was conflicting

evidence in Juror 75’s testimony about when she had connected the

two cases. Nonetheless, the postconviction court found that,

although Juror 75 had some knowledge about the Dayton Street

murders at some point in time, there was no evidence showing that

she connected Owens to those murders or that she shared any

information about Dayton Street with other jurors. The

postconviction court thus concluded that Owens had failed to prove

that “any extraneous information was introduced into the jury

deliberation process.”

3. Juror 75’s Questionnaire

¶ 99 Owens asserted that Juror 75 was not honest in completing

the jury questionnaire because she did not fully answer several

questions that sought information about prior involvement with

judicial processes, she did not truthfully reveal her education and

occupational background, and she did not indicate on an

attachment to the questionnaire that she recognized the names of

potential witnesses. As a result of these alleged nondisclosures,

Owens contends that he was not prompted to ask questions during

60

voir dire that would have revealed Juror 75’s awareness that Q.E.

had been wounded twice in suspected gang-related shootings.

¶ 100 The postconviction court found that Juror 75’s incomplete

answers were not intentional falsifications and that the omitted

information was not material or of “constitutional consequence.”

4. Failure to Disclose Recognition of Individuals at Trial

¶ 101 Owens contends that several trial events indicate Juror 75’s

dishonesty or failure to disclose information to the trial court.

¶ 102 At postconviction hearings, Juror 75 testified that (1) during

the trial she noticed a woman, whom she knew as Melissa White,

sitting in the gallery; (2) when Marshall-Fields’s mother testified at

the trial, she recognized Ms. Fields as a person who had spoken at

her church about the Dayton Street killings; (3) she recognized

faces in the courtroom; and (4) she encountered one of the

witnesses, Dickey, at Q.E.’s apartment during the trial.

¶ 103 The postconviction court made the following specific findings:

• Juror 75 knew and liked White; at some point during

the trial, White told her she was Owens’s friend.

61

• While Juror 75 did not have a personal relationship

with any of the witnesses, during the trial she

recognized the faces of at least three of them.

• She attempted to bring her recognition of faces to the

attention of the court, but Owens’s trial counsel chose

not to interview her.

• She was concerned for her sons’ safety and her own

because she recognized faces of people who she

suspected might have gang involvement.

• She did not converse with Dickey at Q.E.’s apartment;

Dickey said he had seen her in court and left

immediately after her arrival.

15

• After that encounter, Q.E. told her that his homeboys

were testifying and that if she had been seeing his

friends testify, she needed to get herself excused from

15

The postconviction court found on conflicting evidence that this

occurred on or after January 23, 2007, when Judge Spear brought

Juror 75’s connection with White to the attorneys’ attention.

However, Juror 75 testified that Dickey said, “I saw you in court

today,” and Dickey testified on January 19, 2007.

62

juror service. She told him that she had tried to get off

the jury, but the court had told her that she was to stay.

• Sometime after the Lowry Park shootings, Q.E. told her

that there had been a shooting at Lowry Park. Knowing

that many in their late teens and early twenties attended

the event, and that Q.E. did not tell her about everything

he was involved in, she looked for him when the video of

the Lowry Park event was shown to the jury.

¶ 104 The postconviction court concluded that Juror 75 had made a

reasonable good faith effort to notify the trial court that she

recognized White and others in the courtroom, but neither the trial

court nor the attorneys understood the full extent of these matters

because the court did not conduct an in camera interview as

requested by the prosecution. Nonetheless, the postconviction

court concluded that Owens “ha[d] not shown he was deprived of a

fair trial due to Juror 75’s recognition of witnesses and courtroom

observers, nor due to her concern for her son’s safety and her own.”

B. Applicable Law

¶ 105 The Due Process Clauses of the United States and Colorado

Constitutions guarantee every criminal defendant the right to a fair

63

trial. See U.S. Const. amends. V, XIV; Colo. Const. art. II, §§ 16,

25; see also Morrison v. People, 19 P.3d 668, 672 (Colo. 2000). An

impartial jury is a fundamental element of the constitutional right

to a fair trial. Morrison, 19 P.3d at 672.

¶ 106 When a juror’s nondisclosure of information during jury

selection arises from actual bias, a defendant may be entitled to a

new trial. Where, for example, a juror deliberately misrepresents

important biographical information relevant to a challenge for cause

or a peremptory challenge, or knowingly conceals a bias or hostility

toward the defendant, a new trial might well be necessary. People v.

Dunoyair, 660 P.2d 890, 895 (Colo. 1983). In such instances, the

juror’s deliberate misrepresentation or knowing concealment is

itself evidence that the juror was likely incapable of rendering a fair

and impartial verdict in the matter. Id.

¶ 107 The United States Supreme Court, in a civil case, has

recognized that a juror’s failure to disclose information may indicate

actual bias. McDonough Power Equip., Inc. v. Greenwood, 464 U.S.

64

548 (1984).

16

The Supreme Court held that to obtain a new trial in

this situation, a party must (1) demonstrate that a juror failed to

honestly answer a material question on voir dire and (2) show that a

correct response would have provided a valid basis for a challenge

for cause. Id. at 556. But the Court clarified that a juror’s

“mistaken, though honest response to a question” is not a basis for

a new trial, because

[a] trial represents an important investment of

private and social resources, and it ill serves

the important end of finality to wipe the slate

clean simply to recreate the peremptory

challenge process because counsel lacked an

item of information which objectively he

should have obtained from a juror on voir dire

examination.

Id. at 555.

¶ 108 In the criminal case Sampson v. United States, 724 F.3d 150

(1st Cir. 2013), the circuit court explained that the test under the

second prong of McDonough comes down to a basic question:

16

McDonough, being a civil case, did not turn on the constitutional

right to a jury trial in a criminal proceeding. Thus, we are not

convinced it governs in Owens’s case. Nonetheless, because the

postconviction court addressed it, and both sides on appeal argue

the application of McDonough, we will address it.

65

“whether a reasonable judge, armed with the information that the

dishonest juror failed to disclose and the reason behind the juror’s

dishonesty, would conclude under the totality of the circumstances

that the juror lacked the capacity and the will to decide the case

based on the evidence.” Id. at 165-66. This is evidence of “actual

bias.”

¶ 109 Sampson identified a number of factors that may be relevant

in determining whether a juror has both the capacity and the will to

decide the case solely on the evidence. This compendium may

include (but is not limited to) the juror’s interpersonal relationships,

the juror’s ability to separate her emotions from her duties, the

similarity between the juror’s experiences and important facts

presented at trial, the scope and severity of the juror’s dishonesty,

and the juror’s motive for lying. Although any one of these factors,

taken in isolation, may not provide sufficient support for a

challenge for cause, their cumulative effect must nonetheless be

considered. Id. at 166.

¶ 110 Similar actual bias rules apply when, during the trial, a seated

juror recognizes a witness. In People v. Christopher, 896 P.2d 876

(Colo. 1995), after jury selection and opening statements, one of the

66

jurors notified the bailiff that she recognized the prosecution’s

advisory witness as a former neighbor and friend. The supreme

court, quoting Dunoyair, 660 P.2d at 896, stated that “[a]bsent a

showing that a juror’s prior acquaintance with a witness created an

actual bias, ‘we will assume that the juror followed the instructions

of the court and decided the case solely on the basis of the evidence

and the law.’” Christopher, 896 P.2d at 879.

¶ 111 The Christopher court identified five factors

17

to consider in

determining whether, under these circumstances, a juror should be

replaced with an alternate: (1) the juror’s assurance of impartiality;

(2) the nature of the information withheld in voir dire; (3) whether

the nondisclosure was deliberate; (4) any prejudicial effect the

nondisclosed information would have had on either party, including

the defendant’s right to exercise peremptory challenges; and (5) the

practical remedies available when the nondisclosure is revealed. Id.

17

In Christopher, the juror disclosed her familiarity with a witness

during trial, the defense requested she be replaced with the

alternate juror, and the court had the opportunity to consider

whether replacement was required. In Owens’s case, the full extent

of Juror 75’s acquaintance with witnesses was not known until the

Rule 35 proceeding, but to the extent we can apply these factors at

this stage, we conclude that the test still applies.

67

¶ 112 Separate from actual bias as discussed above, implied bias

can be a basis for challenging a juror and granting a new trial.

¶ 113 Statutory implied bias requires excusal of a prospective juror

due to statutorily defined connections to the crime or to trial

participants. See § 16-10-103(1)(b)-(i), (k), C.R.S. 2020. These

challenges must be based on the plain language of the statute or

rule, not judicial attempts to discern the spirit of the rule or intent

of the legislature. People v. Bonvicini, 2016 CO 11, ¶ 17 (noting that

implied biases “apart from the statutory scheme” do not exist; we

“apply the plain language of section 16–10–103(1)(k) as written”

(quoting People v. Rhodus, 870 P.2d 470, 477 (Colo. 1994))).

¶ 114 Another form of implied bias, recognized by some federal

courts, is “common law implied bias.”

18

Federal common law may

provide grounds, albeit in extremely rare circumstances, for finding

implied bias not involving deliberate juror dishonesty and not

expressly covered by a statute or rule. A determination of common

18

In Dennis v. United States, 339 U.S. 162, 171 (1950), the

Supreme Court declined to recognize implied juror bias as a basis

for reversal of a conviction. The parties have not referenced, nor

have we found, a Colorado supreme court case recognizing the

doctrine of implied bias.

68

law implied bias “turns on an objective evaluation of the challenged

juror’s experiences and their relation to the case being tried.”

Gonzales v. Thomas, 99 F.3d 978, 987 (10th Cir. 1996). And it

involves a determination of “whether an average person in the

position of the juror in controversy would be prejudiced.” United

States v. Powell, 226 F.3d 1181, 1188 (10th Cir. 2000)). Thus, a

finding of common law implied bias “is appropriate where the juror,

although she believes that she can be impartial, is so closely

connected to the circumstances at issue in the trial that bias is

presumed.” Id. (quoting United States v. Cerrato-Reyes, 176 F.3d

1253, 1260 (10th Cir. 1999)). An appropriate finding of common

law implied bias is rare,

19

and it is unclear whether Colorado even

recognizes implied bias outside those categories specified in section

16-10-103. See Bonvicini, ¶ 17.

19

In Gonzales v. Thomas, 99 F.3d 978, 987 (10th Cir. 1996), the

Tenth Circuit stated that the common law implied bias doctrine

should not be invoked lightly. See also Person v. Miller, 854 F.2d

656, 664 (4th Cir. 1988) (characterizing the extreme situations for

which the doctrine is reserved as those where “the relationship

between a prospective juror and some aspect of the litigation is

such that it is highly unlikely that the average person could remain

impartial in his deliberations under the circumstances”).

69

C. Standard of Postconviction Review

¶ 115 In reviewing a Rule 35(c) claim, “we presume the validity of the

conviction and the defendant bears the burden of proving his claims

by a preponderance of the evidence.” Dunlap, 173 P.3d at 1061.

¶ 116 Actual bias is a factual matter; we thus give great deference to

the postconviction court’s findings. See People v. Garcia, 2018 COA

180, ¶ 16 (applying an abuse of discretion standard on direct

appeal); see also Powell, 226 F.3d at 1188 (holding that findings

regarding actual bias are reviewed for clear error). Implied bias is a

matter of law, and we review these findings de novo. Powell, 226

F.3d at 1188 (“Findings as to implied bias are reviewed de novo.”);

cf. People v. Novotny, 2014 CO 18, ¶ 53 (de novo review applies to

statutory implied bias).

D. Discussion

¶ 117 We first consider whether any one of the four separate alleged

areas of misconduct by Juror 75 warrants a new trial. We then

consider the cumulative effect of the alleged misconduct.

1. Relationship with Marshall-Fields’s Uncles

¶ 118 Owens alleges that Juror 75 had a relationship with two

uncles of Marshall-Fields at the time of trial, which indicates a

70

likely bias against Owens. The postconviction court dismissed this

allegation because it found that Juror 75 did not know the uncles

at the time of the trial.

¶ 119 On appeal, Owens asserts that the postconviction court erred

because Juror 75’s alleged significant other at the time of trial,

Manuel, knew the uncles before the trial; her sons were friends with

the uncles’ sons; and the postconviction court refused to reopen the

postconviction hearing, denying Owens the chance to fully develop

this evidence.

20

¶ 120 We agree with the postconviction court that Owens’s offers of

proof and testimony received tend to show that Juror 75 had a

relationship with Manuel that predated the trial and that Manuel

had a relationship with the uncles. However, even if the offers of

proof submitted to the postconviction court are treated as evidence,

they do not show that Juror 75 knew the uncles or their

relationship to the victim at the time of trial.

20

The record disproves this last contention. The court took a full

day of additional testimony and heard from five witnesses, including

both uncles.

71

¶ 121 As the postconviction court correctly noted, a verdict cannot

be impeached based upon knowledge obtained by a juror after

returning a verdict. People v. Thornton, 712 P.2d 1095, 1099 (Colo.

App. 1985), rev’d, 716 P.2d 1115 (Colo. 1986). We cannot conclude

that the postconviction court erred in finding Juror 75 did not

harbor an actual bias based on a future relationship with a victim’s

uncles, and we cannot conclude that the future relationship

constituted (1) implied bias under section 16-10-103, or (2) an

exceptional circumstance meriting a finding of federal common law

bias, even if we apply that doctrine.

2. Dayton Street Murders Connection

¶ 122 Owens alleged that Juror 75 knew of the Dayton Street

murders during the deliberations in this case and shared her

knowledge with other jurors, thus introducing improper extraneous

information into the deliberations. The postconviction court

rejected this argument, finding that no extraneous information was

introduced into the jury deliberations.

¶ 123 Any information that is not properly received into evidence or

included in the court’s instructions is extraneous to the case and

improper for juror consideration. People v. Harlan, 109 P.3d 616,

72

624 (Colo. 2005). And while CRE 606(b) precludes inquiry into

statements occurring during jury deliberations, the rule excepts

inquiry into “whether extraneous prejudicial information was

improperly brought to the jurors’ attention.”

21

¶ 124 When extraneous information is alleged to have been

considered by a jury, the cases establish a two-part inquiry. First,

the court makes a determination whether extraneous information

was improperly before the jury; and second, if extraneous

21

The postconviction court’s findings on this issue relied, in part,

on testimony from Juror 75. On appeal, Owens appears to argue

that inquiry into Juror 75’s knowledge violated the proscription of

CRE 606(b) against juror testimony regarding the course of a jury’s

deliberations. We reject this argument with respect to extraneous

information.

In evaluating assertions of improper extraneous information,

the courts may consider evidence from jurors regarding the source

of the extraneous information, the manner of its acquisition, its

content, and its presence and use in the jury room during

deliberations. People v. Harlan, 109 P.3d 616, 625 (Colo. 2005)

(first citing People v. Wadle, 97 P.3d 932, 937 (Colo. 2004); and

then citing Wiser v. People, 732 P.2d 1139, 1141 (Colo. 1987)).

Evidence relevant to the existence of extraneous information is

admissible under the CRE 606(b) exception for evidence regarding

extraneous information improperly before the jury. Harlan, 109

P.3d at 625. However, “the court may not take into account

testimony regarding the jury’s deliberations, a juror’s mental

processes leading to his or her decision, or whether the extraneous

information actually swayed any of the particular jurors’ votes.” Id.

73

information was introduced, it applies an objective “typical juror”

standard to determine whether that information posed the

reasonable possibility of prejudice to the defendant. Harlan, 109

P.3d at 624.

¶ 125 We are bound by the postconviction court’s factual findings on

this issue unless they are clearly erroneous. See id. The

postconviction court found:

Juror 75’s limited knowledge [of the Dayton

Street murders] could only be significant if she

first inferred that Marshall Fields was one of

the . . . victims, then inferred that Owens was

involved in the Dayton Street murders and

then allowed her inferences to influence her

verdict against him in the Lowry park trial.

This court finds that Juror 75 did not connect

Owens to the Dayton Street murders until

after the Lowry Park verdict was decided.

¶ 126 The postconviction court also found that “any knowledge that

Juror 75 may have had about the Dayton Street murders played no

part in either hers or any other juror’s consideration of the case.”

This is so, the postconviction court concluded, because even if

Juror 75 realized that Marshall-Fields must have been one of the

Dayton Street victims, “she did not have information directly

connecting Owens to the Dayton Street murders.” The court also

74

found, based on testimony from Juror 75 and two other jurors, that

Juror 75 did not mention anything about the Dayton Street

murders to her fellow jurors.

¶ 127 Owens contends on appeal that these factual findings are

clearly erroneous. We disagree because we find support for these

facts in the record.

22

Because no extraneous information about the

Dayton Street murders was improperly before the jury, we need not

inquire about a reasonable possibility of prejudice to Owens.

Owens’s assertions regarding Juror 75’s knowledge of the Dayton

Street murders do not warrant postconviction relief.

3. Juror 75’s Questionnaire

¶ 128 Owens argued to the postconviction court that Juror 75 failed

to honestly complete the jury questionnaire and thereby failed to

disclose information that would have led the defense attorneys to

question her during voir dire, which in turn would have led to her

22

Owens’s brief asserts that Juror 75 had knowledge of the Dayton

Street murders but offers no showing that Juror 75 connected

Owens to those murders. He also notes that Juror Kloster testified

that Juror 75 said she knew about the Dayton Street shootings and

was afraid for her safety. But significantly, Juror Kloster testified

that this disclosure was made after the jury returned its verdict.

75

disqualification for cause or removal by peremptory challenge. The

postconviction court rejected this argument because none of the

omitted information was intentionally withheld, and it was not

material or of constitutional significance.

23

¶ 129 On appeal, Owens continues to press his argument that Juror

75’s nondisclosures on the questionnaire warrant a new trial.

¶ 130 But, as held in McDonough and discussed above, a juror’s

failure to disclose information that would have provided a basis for

peremptory excusal is not sufficient to garner a new trial. The

objecting party must show that the nondisclosed information would

have provided the basis for a challenge for cause. McDonough, 464

U.S. at 556. We conclude that none of Juror 75’s nondisclosures

would have provided a basis for a causal challenge.

¶ 131 Section 16-10-103 and Crim. P. 24(b) set forth eleven specific

bases for challenges for cause. As noted above, only the plain

23

By these terms, we interpret the postconviction court to mean

that Juror 75’s omissions did not show that she decided the case

based on extraneous evidence or that she was prejudiced in favor of

the prosecution.

76

language of those bases support challenges for cause based on

implied bias.

24

See Bonvicini, ¶ 17.

¶ 132 Owens does not contend that Juror 75’s answers, even if

complete, would have provided a valid challenge for cause on any of

these eleven bases. Rather, he argues that Juror 75’s overall

dishonesty in answering the questions violated an obligation to

answer the questions truthfully. That obligation, Owens claims,

arises from the language of section 16-10-103(2). But section

16-10-103(2) does not state that prospective jurors must answer

questions “truthfully;” rather, it states, “[i]f any juror knows of

anything which would disqualify him as a juror or be a ground for

challenge to him for cause, it is his duty to inform the court

concerning it whether or not he is specifically asked about it.”

(Emphasis added.)

¶ 133 The postconviction court expressly found that Juror 75 did not

intentionally provide false information on the questionnaire or fail

24

And it is now clear under federal and Colorado law that the

deprivation of an opportunity to exercise a peremptory challenge

does not violate a defendant’s constitutional rights. See People v.

Novotny, 2014 CO 18, ¶¶ 22-23.

77

to disclose information “she knew would disqualify her as a juror.”

Nonetheless, Owens argues that had Juror 75 revealed she and her

family members had been crime victims, or that her close family

members had prior convictions, or that her son had a juvenile

delinquency proceeding, further questioning would have followed

and a challenge for cause would have been granted.

¶ 134 These nondisclosures do not fit within any of the statutorily

recognized bases for challenges for cause, so excusal based on

honest disclosures would remain in the trial court’s discretion. On

appeal, we review whether “under the totality of the circumstances

. . . the juror lacked the capacity and the will to decide the case

based on the evidence.” Sampson, 724 F.3d at 165-66. We agree

with the postconviction court that Owens failed to prove this by a

preponderance of the evidence.

¶ 135 Moreover, to the extent that Juror 75’s direct and indirect

encounters with the justice system may evince enmity toward the

State, such enmity would not prejudice Owens. See

§ 16-10-103(1)(j).

78

4. Failure to Disclose Recognition of Individuals at Trial

¶ 136 In his postconviction motion, Owens identified a litany of

alleged nondisclosures by Juror 75 that he argues shows

dishonesty and actual or common law implied bias justifying a new

trial. The postconviction court meticulously reviewed each of these

allegations and concluded that Juror 75 was “not deliberately

dishonest,” and under the totality of the circumstances, Owens did

not show that Juror 75 “lacked the capacity and the will to decide

the case based on the evidence,” and therefore, Owens had not

shown he was prejudiced.

25

¶ 137 On appeal, Owens submits that the postconviction court’s

finding as to Juror 75’s honesty is clearly erroneous. Alternatively,

Owens contends that the court’s conclusion that he was not

prejudiced is error as a matter of law.

¶ 138 With respect to actual bias, we find ample support in the

record, as described below, for the postconviction court’s finding

25

In reaching these conclusions, the postconviction court applied

the “compendium” of five factors listed in Sampson v. United States,

724 F.3d 150, 166 (1st Cir. 2013).

79

that Juror 75 was not actually biased. We thus defer to that

finding. See Garcia, ¶ 16.

¶ 139 With respect to common law implied bias, we agree with the

special concurrence that this doctrine may not apply in Colorado.

See Bonvicini, ¶ 17. Colorado recognizes implied bias for specific

categories defined in section 16-10-103, but Juror 75’s alleged

relationships do not fall into any of those categories. Nevertheless,

we analyze Owens’s arguments with respect to this doctrine in the

event that it may be grounded in the United States Constitution.

¶ 140 While Owens’s allegation of common law implied bias arises

from numerous nondisclosures, the postconviction court facilitated

our review by providing specific findings that summarize the

allegations of conduct that could amount to implied bias.

26

We

agree with the postconviction court that unlike the situation in

Dunoyair, Christopher, McDonough, or Sampson, where the alleged

failure to disclose involved a “single experience or relationship,” this

case involves numerous apparent nondisclosures. Owens asserts

26

In his appellate brief, Owens recites these findings and we

assume he agrees with at least these findings.

80

that even if none of these would individually be sufficient to show

implied bias, collectively they are sufficient to allow an inference of

implied bias, notwithstanding Juror 75’s assertion that she served

without bias.

¶ 141 To decide this question, we look collectively at the incidents

referenced in the postconviction court’s footnote 36, as well as other

events alleged by Owens. Like the postconviction court, we see this

as a “troubling dilemma” because had all of this information come

to the attention of the attorneys and the court during the trial, an

alternate may have been seated in Juror 75’s place.

27

But the

information did not come out in a timely manner; and now through

hindsight we have to decide how to address Owens’s claims. In

reaching this answer we are mindful, as was the postconviction

court, that “[a] defendant is entitled to a fair trial, but not a perfect

trial.” People v. Rodriguez, 794 P.2d 965, 971 (Colo. 1990). When a

defendant has received a fair, albeit imperfect, trial, the law strongly

27

Indeed, the trial judge so stated in his affidavit filed with the

postconviction court.

81

favors finality.

28

People v. Wiedemer, 852 P.2d 424, 434 (Colo.

1993) (“[T]he State has a legitimate interest in preserving the finality

of criminal convictions . . . .”); see People v. Thomas, 195 P.3d 1162,

1164 (Colo. App. 2008) (noting that Crim. P. 35 had been amended

to favor finality); see also, e.g., West v. People, 2015 CO 5, ¶¶ 13,

53, 55 (noting public interest in finality of verdicts).

¶ 142 Despite the postconviction court’s finding that Juror 75 did

not deliberately withhold pertinent information either in her

questionnaire answers or during the course of trial, Owens urges us

to find that Juror 75 was intentionally evasive, and at worst

dishonest, in her course of conduct. We will assume, for purposes

of analysis, that for some period of time Juror 75 may have been

withholding information that should have been disclosed,

particularly the points listed by the postconviction court in footnote

36. The postconviction court found that Juror 75 did not realize

28

We are also mindful of the statement by the United States

Supreme Court in Smith v. Phillips, 455 U.S. 209, 217 (1982): “[D]ue

process does not require a new trial every time a juror has been

placed in a potentially compromising situation. Were that the rule,

few trials would be constitutionally acceptable. . . . [I]t is virtually

impossible to shield jurors from every contact or influence that

might theoretically affect their vote.”

82

the significance of the information or did not know how to advise

the court of her knowledge.

¶ 143 But the key event is that when Juror 75 recognized White in

the courtroom, she approached the courtroom bailiff and disclosed

that she recognized “faces.” This is important evidence that Juror

75 was not deliberately concealing information. Had the full extent

of her recognition been made known, the problem could have been

addressed at that time.

29

¶ 144 Juror 75 testified at the postconviction hearings; the

postconviction court found her 2015 testimony to be a more

accurate reflection of what occurred during trial. According to her

2015 testimony, Juror 75 recognized White in the courtroom gallery

29

Owens further asserts that the postconviction court’s finding that

Juror 75 had reported recognizing multiple people at trial raises a

new issue — Judge Spear’s failure to effectively communicate Juror

75’s recognition of multiple people deprived Owens of his rights to

counsel and to be present at trial during the critical stage of ex

parte communication between the court and the juror through the

court’s bailiff. We do not agree that Judge Munch found that there

were undisclosed ex parte communications, and we decline to make

that factual finding on appeal. Moreover, we perceive the court’s

communications to be sufficient to alert the parties that further

inquiry was necessary, such that Owens was not denied due

process or fundamental fairness. Owens did not request the

opportunity to question Juror 75, even though the prosecution did.

83

and told the court bailiff, “I knew Melissa White’s name and I knew

other faces that were out there, not that they were a witness.” The

subsequent sequence of events is detailed at length in the

postconviction court’s order, but rather than restating, we refer to

the postconviction court’s findings:

The court finds that, as the trial was

progressing, Juror 75 found faces to be

familiar although, other than White, she could

not immediately place them. As the trial

proceeded, she came to realize that they were

former or current friends of her son. She

attempted to bring the matter to the attention

of the judge, but was denied the opportunity to

talk to him and was directed to remain on the

jury.

. . . .

Juror 75 made a reasonable good faith effort to

bring to the attention of the court her

recognition of White and others in the

courtroom. These matters did not come to the

attention of the court and attorneys because

the court chose not to conduct the in camera

interview that had been requested by the juror

and, later the prosecution.

84

¶ 145 The postconviction court noted that it would have been

preferable for the trial court to have spoken to Juror 75, and if it

had done so, it would have learned more detailed information.

30

¶ 146 Those undisclosed matters might have provided a basis for

excusing Juror 75, but as the postconviction court recognized, the

issue on appeal is not whether Juror 75 should have been, or would

have been, excused. The issue is whether Juror 75’s service

deprived Owens of a trial by an impartial jury.

¶ 147 Before answering this question, the postconviction court again

summarized the evidence relating to Juror 75:

Juror 75 recognized witnesses, but did not

know their names and did not have a

relationship with any of them. Two were

people whom she felt had been, and might still

be, friends of her son from whom she was

partially estranged. She recognized Fields as a

woman who had spoken to the congregation of

her church, but she did not know Fields’s

name and had no relationship with her. She

had a relationship with White and knew White

was a friend of Owens, but White was not a

witness.

30

Even if we assume misconduct on the part of the court bailiff, or

the trial judge, Owens still must establish that he was prejudiced by

this misconduct. People v. Hernandez, 695 P.2d 308, 310 (Colo.

App. 1984).

85

¶ 148 Based on this evidence, the postconviction court found that

“Owens has not shown that he was deprived of a fair trial due to

Juror 75’s recognition of witnesses and courtroom observers, nor

due to her concern for her son’s safety and her own.” We find

support in the record for the court’s finding.

5. Cumulative Effect

¶ 149 Whether Owens was deprived of a fair trial is a conclusion of

law that we must consider de novo. But we must defer to historical

findings of fact that underly that conclusion of law. For the

following reasons, we agree with the postconviction court’s

conclusion that Owens received a fair trial.

¶ 150 First, the postconviction court found, with record support,

that Owens’s conviction was based on the evidence presented, and

not on extraneous information.

¶ 151 Second, the postconviction court correctly applied Sampson,

made the factual findings listed in footnote 35 of its order, and

found that Juror 75 did not lack the capacity and the will to decide

the case based on the evidence. She was not actually biased.

¶ 152 Third, and importantly, Juror 75’s disclosure to the bailiff,

though ultimately incomplete as conveyed to counsel, demonstrates

86

that she did not seek to improperly remain on the jury. She did not

conceal from the court the recognition of various persons in the

courtroom, nor did she misrepresent her connections to them.

Moreover, these connections did not constitute implied bias under

section 16-10-103.

¶ 153 Finally, even if we were to consider the doctrine of implied

common law bias, we would conclude that the circumstances here

are not the sort of extreme circumstances to which the doctrine

applies. See Gonzales, 99 F.3d at 987 (The common law implied

bias doctrine should not be invoked lightly; it must be reserved for

those “extreme” and “exceptional” circumstances that “leav[e]

serious question whether the trial court . . . subjected the

defendant to manifestly unjust procedures resulting in a

miscarriage of justice.” (quoting Smith v. Phillips, 455 U.S. 209, 222

(1982) (O’Connor, J., concurring))). Juror 75 did not have an

existing relationship with any witness or a close connection to the

crime. See Smith, 455 U.S. at 222 (O’Connor, J., concurring)

(suggesting that extreme situations that would support a finding of

implied bias “might include a revelation that the juror is an actual

employee of the prosecuting agency, that the juror is a close relative

87

of one of the participants in the trial or the criminal transaction, or

that the juror was a witness or somehow involved in the criminal

transaction”). And courts have declined to find implied bias when a

juror was personally acquainted with a witness, provided no actual

bias existed. See, e.g., United States v. Bradshaw, 787 F.2d 1385,

1390 (10th Cir. 1986) (stating that jurors knew government

witnesses).

¶ 154 We conclude that Juror 75’s jury service did not deprive

Owens of a fair trial. See Christopher, 896 P.2d at 879. In reaching

this conclusion, we do not consider Juror 75’s postconviction

assurances of impartiality in deference to CRE 606(b). See id.

VI. Ineffective Assistance of Appellate Counsel

¶ 155 Finally, Owens contends that his appellate counsel in Owens I

were ineffective for failing to raise a DeBella issue — an issue he

asserts was more likely to succeed on appeal than the issues

actually raised.

31

See DeBella v. People, 233 P.3d 664 (Colo. 2010).

31

Owens identified additional issues not raised on direct appeal in

his postconviction motion, but he has abandoned those issues in

his Rule 35(c) appeal. See People v. Osorio, 170 P.3d 796, 799

(Colo. App. 2007).

88

¶ 156 At trial, witness Jeremy Green testified that he could not

remember the events of the day of the shooting. The trial court

admitted the entire videotape of Green’s police interview into

evidence, as well as a transcript of the interview, over Owens’s

objection. Later, the trial court ruled, again over Owens’s objection,

that it would allow the jurors unfettered access to both the video

and the transcript during their deliberations.

¶ 157 The postconviction court found that this latter ruling was error

in light of supreme court decisions subsequent to the trial court’s

2004 ruling but prior to the filing of the opening brief on direct

appeal. See id. at 668 (“[T]he trial court’s failure to assess the

potential for undue prejudice with respect to the jury’s access to

[video evidence] was a failure to exercise its discretion” and

therefore an abuse of discretion.); see also Frasco v. People, 165

P.3d 701, 704-05 (Colo. 2007). The postconviction court concluded,

however, that there was no reasonable probability that an appellate

court would have found this error to be grounds for reversal, and

accordingly rejected this argument as grounds for relief under Rule

35(c). We agree with the postconviction court’s conclusion.

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A. Applicable Law

¶ 158 Claims that appellate counsel overlooked “a meritorious

argument that was more likely to succeed than the argument

presented” may prevail on postconviction review. People v. Trujillo,

169 P.3d 235, 238 (Colo. App. 2007). However, even a properly

objected-to error of allowing unfettered jury access to an exhibit

“will be disregarded as harmless if that error did not substantially

influence the verdict or affect the fairness of the trial proceedings.”

Ray v. People, 2019 CO 21, ¶ 16; see Strickland, 466 U.S. at 694.

And to satisfy the prejudice prong of Strickland for ineffective

assistance of appellate counsel, “the defendant must demonstrate

meritorious grounds for reversal.” People v. Dunlap, 124 P.3d 780,

795 (Colo. App. 2004).

¶ 159 A trial court must exercise discretion in permitting testimonial

exhibits to be viewed by deliberating juries, “to guard against their

being given undue weight or emphasis.” Ray, ¶ 16. Failure to

control jury access to exhibits is “most problematic where the jury’s

ultimate determination would necessarily turn on its assessment of

the credibility of witnesses, as distinguished from the force of real,

or demonstrative, evidence.” Id. at ¶ 18. The assessment of the

90

credibility of witnesses is most acute where resolution turns on one

witness’s account of the crime — the “linchpin” of the prosecution’s

case — as the “only person other than the defendant to have

purportedly witnessed the crime denied by him, which account is

both contradictory of the principal defense and the only testimonial

account the jury is permitted to repeatedly view.” Id.

B. Discussion

¶ 160 In Ray, as in this case, the trial court permitted the jury

unfettered access to the very same videotaped interview of Green.

In that case, the supreme court, relying on Frasco and DeBella,

concluded that the trial court had erred by allowing unfettered

access to the Green interview without any exercise of discretion.

Ray, ¶ 15. However, the supreme court concluded that there was

not a reasonable possibility that allowing the jury to view the

exhibit during deliberation adversely affected the verdict or affected

a substantial right of the defendant. Id. at ¶ 23.

¶ 161 In this case, Green’s testimony was not a linchpin of the

prosecution’s case; he was not the only person other than Owens to

witness the crime, nor was his account necessarily contradictory to

the principal defense. In his interview, Green disclosed that he saw

91

Owens shoot Vann; at trial, Owens did not deny shooting Vann but

argued that the shooting was self-defense. Moreover, the events

described in the Green interview were corroborated by other

evidence provided by several witnesses, as described below. Thus,

there was little risk of the jury giving undue weight to the Green

interview.

¶ 162 Here, as in Ray, the finding of Owens’s guilt did not turn on

the credibility of conflicting testimony between the defendant and

Green. See id. at ¶ 20. Rather, there was ample testimony from

other witnesses to the shooting.

¶ 163 Marshall-Fields’s police interview corroborated Green’s. His

description of the shooter matched Owens’s appearance as

described by Green. He also stated, as had Green, that the shooter

shot Vann multiple times at close range, was right handed, and had

escaped in a gold Suburban vehicle.

¶ 164 Elvin Bell provided a description of the shooter that was

similar to the one provided by Marshall-Fields, and similarly

described the shooter’s escape in a gold vehicle.

¶ 165 Johnson, who knew Owens prior to the shooting, testified that

Vann ran up to Owens, swung his fist, and hit Owens, whereupon

92

Owens pulled out his gun and shot Vann multiple times. Johnson

also testified that Owens left with Ray in the gold-colored

Suburban.

¶ 166 Green’s interview was also relevant to the reasonableness of

Owens’s claim of self-defense. Green explained that none of the

attendees had any weapons at all, and the event was intended to be

violence free. But Green’s interview was not the only evidence of

these facts; both Johnson’s and Dickey’s testimony corroborated

what Green said in the interview. Moreover, because Green’s

statements tended to corroborate Johnson’s description of the

events immediately prior to the shooting, in which he described

Vann’s attack on Owens, the Green interview was helpful in that it

provided Owens with evidence to support his self-defense theory.

¶ 167 Because Green’s interview was only one brick in the wall of the

prosecution’s case, neither substantially helpful nor harmful, we

conclude, as the supreme court did in Ray, that allowing the jury

unfettered access to the interview did not affect a substantial right

of Owens. See id. at ¶¶ 22-23. Thus, if the DeBella issue had been

raised on appeal, there is no reasonable possibility that an appellate

court would have reversed on that basis. It follows that the

93

unraised DeBella issue did not constitute meritorious grounds for

reversal, and we cannot conclude that appellate counsel was

ineffective in failing to raise it. See Dunlap, 124 P.3d at 795.

VII. Conclusion

¶ 168 We affirm the postconviction court’s order.

JUDGE WELLING concurs.

JUDGE BERGER specially concurs.

94

JUDGE BERGER, specially concurring.

¶ 169 I agree with virtually all of the majority’s analysis and its

disposition. I write separately only to explain why I reject Owens’s

claim that he was deprived of a fair trial by Juror 75’s participation

in the trial.

¶ 170 As I read the governing Colorado law, to obtain postconviction

relief based on allegations that a deliberating juror should not have

served, a defendant must establish that either the juror was

actually biased within the meaning of section 16-10-103(1)(j),

C.R.S. 2020, or impliedly biased as defined by section

16-10-103(1)(a)-(i), (k).

¶ 171 None of the implied bias disqualifications prescribed by statute

are applicable here. See id. That leaves only actual bias. See

§ 16-10-103(1)(j). Actual bias is a question of fact, and appellate

courts “defer to the trial court’s findings of fact unless they are so

clearly erroneous as to find no support in the record.” Sanchez-

Martinez v. People, 250 P.3d 1248, 1254 (Colo. 2011). “Such

deference to the fact finding authority of trial courts reflects our

recognition that a trial court is in a unique position to determine

the credibility of witnesses and to weigh conflicting evidence in

95

determining historical facts.” People v. Jordan, 891 P.2d 1010,

1018 (Colo. 1995).

¶ 172 This is not to say that from a juror’s close contacts with

witnesses or other people involved in the case, a postconviction

court could not find actual bias. Indeed, such contacts and

reasonable inferences drawn therefrom are highly relevant and may

support a finding of actual bias. But here, after considering

extensive evidence and testimony, including testimony by Juror 75

and other jurors, the postconviction court determined, as a matter

of fact, that Juror 75 was not actually biased. That finding is

supported by the record, and we are bound by it. Sanchez-

Martinez, 250 P.3d at 1254.

¶ 173 In short, none of the statutory implied bias disqualifications

are present here, and the postconviction court found no actual bias.

Therefore, Owens has not met his burden to obtain postconviction

relief based on Juror 75’s participation in his trial.

¶ 174 Some lower courts have formulated a third basis for

postconviction relief for defendants claiming that a deliberating

juror infected the fairness of the trial. See, e.g., United States v.

Powell, 226 F.3d 1181, 1188 (10th Cir. 2000); Gonzales v. Thomas,

96

99 F.3d 978, 987 (10th Cir. 1996); United States v. Nell, 526 F.2d

1223, 1229 (5th Cir. 1976). This doctrine has sometimes been

called common law implied bias. Neither the United States

Supreme Court nor the Colorado Supreme Court has ever approved

or applied this doctrine.

¶ 175 In fact, I read Colorado Supreme Court precedent as

precluding our application of this doctrine. The court has made

plain that “[i]mplied biases ‘apart from the statutory scheme’ do not

exist, because our task is to apply the plain language of section

16-10-103(1)[] as written.” People v. Bonvicini, 2016 CO 11, ¶ 17.

¶ 176 There is an additional reason we should not adopt the

common law implied bias doctrine. In my view, the doctrine — as

articulated by the United States Court of Appeals for the Tenth

Circuit in Gonzales and Powell — is impossible to apply in a

principled manner. That court, and the few others that have

 Although the Supreme Court has never recognized the doctrine of

common law implied bias, Justice O’Conner observed in a

concurrence that “[d]etermining whether a juror is biased or has

prejudged a case is difficult, partly because the juror may have an

interest in concealing his own bias and partly because the juror

may be unaware of it.” Smith v. Phillips, 455 U.S. 209, 221-22

(1982) (O’Connor, J., concurring).

97

embraced the doctrine, have made it clear that its reach is

extremely limited. The Tenth Circuit has held that “[t]he implied

bias doctrine should not be invoked lightly. It must be reserved for

those ‘extreme’ and ‘exceptional’ circumstances that ‘leav[e] serious

question whether the trial court . . . subjected the defendant to

manifestly unjust procedures resulting in a miscarriage of justice.’”

Gonzales, 99 F.3d at 987 (quoting Smith v. Phillips, 455 U.S. 209,

222 (1982) (O’Connor, J., concurring)).

¶ 177 But no court applying the doctrine has suggested any

principled bases to distinguish cases that require relief from cases

that do not. What constitutes “extreme” and “exceptional”

circumstances? When is there a “serious question” as to whether

the trial court’s actions resulted in a “miscarriage of justice”?

Without meaningful answers to these questions, Colorado courts

should not adopt this doctrine.

¶ 178 Of course, to the extent that the doctrine of common law

implied bias is grounded in the United States Constitution, as

opposed to nonconstitutional federal jurisprudence, we must apply

it because the Constitution is the supreme law of the land. People

v. Crouse, 2017 CO 5, ¶ 13 (citing U.S. Const. art. VI, cl. 2). Even if

98

we are required to apply that doctrine, I agree with the analysis by

the postconviction court and the majority in rejecting Owens’s

claims under that doctrine.