22CA1917 Peo v Owens 04-03-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1917 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 II Opinion by JUDGE FOX Gomez and Lum, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 3, 2025
Philip J. Weiser, Attorney General, Katharine Gillespie, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Jonathan D. Reppucci, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Sir Mario Owens, appeals the order denying his
2017 motion for postconviction relief as successive under Crim. P.
35(c)(3)(VII). We affirm.
I. Background
A. The Underlying Trial
¶2 In 2007, Owens was convicted of various crimes including the
first degree murder of Gregory Vann and the attempted murders of
Javad Marshall-Fields and Elvin Bell in connection with a 2004
shooting at Lowry Park in Aurora. After two witnesses to the Lowry
Park shooting were killed in 2005 on Dayton Street in Aurora,
Owens was separately tried and convicted of those murders. See
People v. Owens, 2024 CO 10, ¶¶ 5, 17, 62 (Owens III). A division
of this court affirmed Owens’ convictions for the Lowry Park
shooting.1 People v. Owens, (Colo. App. No. 07CA0895, July 26,
2012) (not published pursuant to C.A.R. 35(f)) (Owens I). Divisions
of this court and our supreme court have heard several appeals
1 This appeal concerns only the Lowry Park trial and related
postconviction proceedings. We discuss the Dayton Street trial solely for context and because the postconviction court in the Lowry Park proceedings reviewed evidence from the Dayton Street postconviction proceedings.
1 related to both trials, and a further recitation of the underlying facts
may be found in those opinions. E.g., id.; Owens III, ¶¶ 5-62;
People v. Owens, slip op. at ¶¶ 1-13 (Colo. App. No. 17CA1182, Oct.
7, 2021) (not published pursuant to C.A.R. 35(e)) (Owens II).
B. The 2014 Postconviction Motion
¶3 In 2014, Owens filed a Crim. P. 35(c) motion for postconviction
relief, alleging, as relevant here, that a juror in the Lowry Park trial,
Juror 75, engaged in misconduct by “failing to disclose critical
information during jury selection,” among other things.
¶4 The events leading to this claim began mid-trial in 2007. The
district court notified the parties that a juror had informed the
bailiff that “she recognized an individual who came into the
courtroom,” the district court asked the bailiff “to inquire as to who
that person is,” and the court (via the bailiff) confirmed that the
person, Melissa White, was not a witness and was only observing
the trial. Later, the prosecution revisited the issue, noting that
White was sitting with Owens’ mother, so “it might be wise to
inquire if [Juror 75] does know Mr. Owens[’] family . . . [and] the
nature of [Juror 75’s] relationship with Ms. White.”
2 ¶5 When asked if the defense wanted to further inquire, counsel
said, “I’m not requesting that, but . . . I don’t have any objection to
it.” The district court then denied the prosecution’s request for
additional inquiry, citing concerns about chilling the right to
observe court proceedings “just based upon where an individual is
sitting in the courtroom and who they may be seated next to.”
¶6 Juror 75’s relationship to the case was not revisited until after
trial. However, postconviction proceedings revealed that Juror 75’s
connections were more extensive than the parties initially believed.
As relevant here, Owens believed Juror 75 told the bailiff she knew
more people than just White, and in his postconviction motion, he
asserted that “at least based on what [Juror 75] has stated, the
judge who presided over the Lowry Park trial . . . was aware of the
fact that [Juror 75] was working under the influence of extraneous
information, but he did not disclose this information to the parties.”
¶7 As discussed below, Juror 75 gave conflicting testimony and
statements about whether she told the bailiff she knew other
witnesses and/or people in addition to White. But in various
postconviction pleadings, Owens repeatedly asserted that the
district court knew more about Juror 75’s familiarity with the case
3 than it disclosed at trial. Owens also suggested that the district
court’s failure to disclose Juror 75’s communications with the court
and/or the bailiff may have constituted judicial misconduct.
Despite repeatedly suggesting that the district court may have erred
by withholding information about Juror 75 from the parties, Owens
did not raise such a claim in the first postconviction proceedings.
¶8 In May 2017, the postconviction court denied Owens’ Crim. P.
35(c) motion, concluding, as relevant here, that he failed to prove
that Juror 75 committed juror misconduct or that her presence on
the jury prejudiced him. The postconviction court found that
“Juror 75 realized that she recognized [the] faces of some people in
the courtroom,” including “at least three and probably four
witnesses and possibly other people in the gallery,” beyond White.
However, in part because Juror 75 did not have a relationship with
these witnesses, the postconviction court concluded that Owens
was not denied “a fair trial due to Juror 75’s recognition of
witnesses and courtroom observers.”
¶9 As for Juror 75’s conversation with the bailiff, the
postconviction court found that
4 Juror 75 told the bailiff that she knew people in the courtroom. The bailiff then reported to the judge, who told the bailiff to get a name. When asked for a name, Juror 75 specifically mentioned Melissa White — the only person whom she knew by name. The bailiff reported back to the judge. When contacted years later, the bailiff could not recall what Juror 75 told her or what she told the judge.
When she testified in 2015, Juror 75 was sure that she told the bailiff that she recognized several people — plural. When she testified again in 2016 she only remembered telling the bailiff about White. The 2015 version was more detailed and appears to be more accurate. Her intention was to explain the entire situation to the judge, but she was never given the opportunity and was told that she would remain on the jury.
¶ 10 Thus, the postconviction court concluded that the district
court “may have erroneously inferred from the bailiff’s reports that
Juror 75 recognized only one person — White.” It also noted that
Juror 75 was denied an opportunity to speak with the district court
after attempting to bring the issue to its attention and that “it would
certainly have been preferable if the trial court had spoken to Juror
75 as she, and later the prosecution, requested.” Therefore,
although it found that the “court’s decision not to interview the
juror deprived the court and parties of information that would have
5 been useful in deciding whether to replace [her],” the postconviction
court noted that “[t]he issue . . . [was] whether [J]uror 75’s service
deprived Owens of his constitutional right[s] . . . not whether the
trial court should have” granted the requests to interview her.
C. The 2017 Appeal and Second Postconviction Motion
¶ 11 In July 2017, Owens appealed the first postconviction court’s
order denying his 2014 Crim. P. 35(c) motion. In December 2017,
while the appeal was pending, he filed a second Crim. P. 35(c)
motion. In his appeal and his 2017 postconviction motion, Owens
alleged that the first postconviction court’s findings gave rise to new
claims. On appeal, he argued that the first postconviction court
found that Juror 75 had ex parte communications with the district
court and those communications “denied Owens’ rights to counsel
and to be present” and violated his due process rights. In the
second postconviction motion, he similarly alleged that the first
postconviction court found that “substantive, ex parte
communications occurred . . . wherein Juror 75 actually advised
the court that she knew several people in the courtroom”; the court
withheld the communications from the parties; and this violated
Owens’ rights to counsel, to be present, and to due process.
6 ¶ 12 In 2021, a division of this court affirmed the first
postconviction court’s order denying relief under Crim. P. 35(c).
Owens II, slip op. at ¶ 168. The division held that “Juror 75’s jury
service did not deprive Owens of a fair trial.” Id. at ¶ 154. It also
disagreed with Owens’ claim that the postconviction court “found
that there were undisclosed ex parte communications, and [it]
decline[d] to make that factual finding on appeal.” Id. at ¶ 143
n.29; see also People v. A.W., 982 P.2d 842, 852 (Colo. 1999)
(“Appellate courts are not empowered to make factual findings,
absent such findings in the record below.”). The division also
concluded that “Owens was not denied due process or fundamental
fairness” because the district court’s communications were
“sufficient to alert the parties that further inquiry was necessary,”
and “Owens did not request the opportunity to question Juror 75.”
Owens II, slip op. at ¶ 143 n.29.
¶ 13 In 2022, the second postconviction court summarily denied
Owens’ 2017 postconviction motion as successive under Crim. P.
35(c)(3)(VII). It held that all the evidence alleged in the 2017
postconviction motion “came to light well before [that] motion was
filed, well before this Court’s May 16, 2017, order denying the prior
7 [Crim. P.] 35(c) petition, and before the last amendment to that . . .
petition.” It also rejected Owens’ argument that the first
postconviction court’s findings gave rise to new claims because the
“findings and order on the prior [Crim. P.] 35(c) petition do not
constitute a legitimate basis for a new [Crim. P.] 35(c) petition. The
remedy for any error in the ruling on the earlier petition would be
review on appeal.”2 This appeal followed.
II. Issues Raised on Appeal
¶ 14 On appeal, Owens argues that his second postconviction
motion was not successive. Therefore, he asks us to reach the
merits of his claim raised in the motion that the district court erred
by “fail[ing] to relay to the parties that Juror 75 disclosed she knew
multiple people in the courtroom,” which he contends violated his
rights (1) to counsel at a critical stage; (2) to be present at a critical
stage; and (3) to due process. Because we conclude that the second
postconviction court did not err by denying Owens’ second
postconviction motion as successive, we do not address the merits.
2 The postconviction court’s 2022 order did not discuss Owens II.
8 III. The 2017 Postconviction Motion was Successive
A. Standard of Review
¶ 15 “We review de novo a trial court’s decision to deny a
postconviction motion as successive.” People v. Bonan, 2014 COA
156, ¶ 26 (citing People v. Muniz, 667 P.2d 1377, 1380-81 (Colo.
1983)).
B. Relevant Law and Analysis
¶ 16 Under Crim. P. 35(c)(3)(VI) and (VII), subject to certain
exceptions, “court[s] shall deny any claim[s]” (1) that were “raised
and resolved in a prior appeal or postconviction proceeding”; or (2)
“that could have been presented ” in a previous appeal or
postconviction proceeding. (Emphasis added.) Under both
subsections, an exception applies to “claim[s] based on evidence
that could not have been discovered previously through the exercise
of due diligence.” Crim. P. 35(c)(3)(VI)(a), (VII)(b). Under Crim. P.
35(c)(3)(VII)(a) and (e), claims that could have been brought are also
not barred if they are “based on events that occurred after initiation
of the defendant’s prior appeal or postconviction proceeding” or if
“an objective factor, external to the defense and not attributable to
the defendant, made raising the claim[s] impracticable.”
9 ¶ 17 Owens argues that his second postconviction motion was not
successive because the facts supporting his claims “came to light
only through the postconviction court’s findings.” He contends that
his second postconviction motion satisfied the exceptions in Crim.
P. 35(c)(3)(VII)(a), (b), and (e) because the first postconviction court’s
findings were new evidence, a new event, and “an objective
factor . . . [that] made raising the claims impracticable.” We
conclude that these arguments rest on a fundamental
misunderstanding.
¶ 18 First, with respect to Owens’ argument that his “claims are
based on the facts as found by the postconviction court — facts that
could not have been reasonably discovered or presented previously,”
Owens appears to misunderstand the difference between evidence
and a court’s findings of fact. See Crim. P. 35(c)(3)(VII)(b).
¶ 19 According to Black’s Law Dictionary, evidence is “[s]omething
(including testimony, documents, and tangible objects) that tends to
prove or disprove the existence of an alleged fact; anything . . .
offered to prove the existence or nonexistence of a fact”; or “[t]he
collective mass of things, esp. testimony and exhibits, presented
before a tribunal in a given dispute.” Black’s Law Dictionary 696
10 (12th ed. 2024) (emphasis added). A finding of fact, or a finding, is
“[a] determination by a judge . . . of a fact supported by the evidence
in the record . . . ; a conclusion or ruling that an alleged fact more
probably exists than not.” Id. at 772 (emphasis added).
¶ 20 A Texas court aptly illustrated this distinction: “[A] finding of
fact is not evidence proving the fact supposedly found to exist. This
is so because a finding of fact is little more than a characterization
or construction of the evidence by the fact-finder. And, before a
finding can be valid, it must enjoy evidentiary support.” Vidaurri v.
Ensey, 58 S.W.3d 142, 146 (Tex. App. 2001). Thus, a fact finder
cannot conclude that an object is a car without “evidence from
which it can be deduced that the object is a car. That the fact-
finder concludes that it is a car, is not proof that it is a car.” Id.
Other courts have reached similar conclusions. See In re B.R.W.,
2021-NCCOA-343, ¶ 40 (“[A] trial court’s findings of fact are not
evidence . . . .”); Tex. Real Est. Comm’n v. Nagle, 767 S.W.2d 691,
695 (Tex. 1989) (“[F]indings of fact and conclusions of law . . . are
not evidence.”).
¶ 21 A division of this court applied similar reasoning to conclude
that new academic theories do not constitute new evidence under
11 Crim. P. 35(c). Bonan, ¶¶ 30-31 (“Academic theories merely form
the basis for interpreting evidence when they are applied to existing
evidence.”). Just as a fact finder uses academic theories to
interpret existing evidence, a court uses its interpretation of existing
evidence as the basis for its factual findings. The findings
themselves are not evidence. Therefore, we reject Owens’ argument
that the first postconviction court’s findings were “evidence that
could not have been discovered previously” under Crim. P.
35(c)(3)(VII)(b).
¶ 22 For similar reasons, we also conclude that Owens’ second
postconviction motion was successive because he could have
brought the same claims in an earlier proceeding. See Crim. P.
35(c)(3)(VII).
¶ 23 Owens first emphasizes that, because the evidence in the first
postconviction proceedings suggested that Juror 75 only disclosed
knowing or recognizing White, “[t]he postconviction court’s finding
that Juror 75 disclosed her recognition and/or knowledge of
multiple people in the courtroom presented entirely new
information” that could not have been previously discovered. Thus,
he argues that the second postconviction court clearly erred when it
12 concluded that “[a]ll of the evidence . . . came to light well before”
the second postconviction motion. We reject this contention of
error and agree with the second postconviction court that Owens
had access to the evidence supporting the first postconviction
court’s findings before that postconviction court ruled on the first
postconviction motion and before Owens filed his second
postconviction motion.
¶ 24 Owens also places great weight on the conflicting evidence as
to whether Juror 75 told the bailiff and/or the district court that
she recognized or knew multiple people. But conflicting evidence
differs from new evidence. During the first postconviction
proceedings, Owens repeatedly suggested that the district court
knew but did not disclose that Juror 75 recognized multiple
individuals. Moreover, Juror 75 said in 2013 and in 2015 that she
told the bailiff she recognized more than one person. A timeline of
the most pertinent evidence from the postconviction proceedings
and statements in Owens’ pleadings follows.
¶ 25 2008: Another juror in the Lowry Park trial, Juror B.K., told a
defense investigator that, “after the verdict one of the jurors shared
that she knew” about the people involved in the case, and the juror
13 (presumably Juror 75) said “she had privately met with the judge to
share her concerns but that she was told not to discuss this with
the other jurors until after the trial.”
¶ 26 2013: Juror 75 told a prosecution investigator that “she had
informed the judge early on in the process that she knew some
people” but later clarified that she never spoke directly with the
judge. (Emphasis added.) However, Juror 75 told a defense
investigator that “she informed the bailiff that she knew Melissa
White . . . [but] she did not tell the bailiff that she knew some of the
witnesses who testified.”
¶ 27 2014: Owens alleged in his first Crim. P. 35(c) motion that
Juror 75’s statements suggested that the district court knew Juror
75 “was working under the influence of extraneous information, but
[it] did not disclose this information to the parties.”
¶ 28 2014: In a motion to disqualify Judge Spear — who presided
over the Lowry Park trial — from the postconviction proceedings,
Owens quoted an argument from his 2012 Dayton Street
postconviction motion that “the information supplied to date
indicates Judge Spear was contacted” about Juror 75’s familiarity
with the case but “failed to provide notice of potential juror
14 misconduct to the parties,” and while “such a claim [is] difficult to
comprehend . . . this claim is now presented. If true, Judge Spear’s
failure to provide such information to trial counsel prejudiced Owens.”
(Emphasis added.) He also stated that Juror 75 “will testify . . .
that she provided misleading and untrue information . . . that she
was not an impartial juror, and that Judge Spear was told of these
facts during trial but took no action.”
¶ 29 2015: Referencing her conversation with the bailiff, Juror 75
first testified that she “didn’t say anything about witnesses. [She]
just said [she] knew Melissa White’s name and [she] knew other
faces that were out there, not that they were a witness [sic].” On
cross-examination, the prosecution asked: “[A]s I recall what you
have said was that you told [the bailiff] that you knew some people
plural,” and Juror 75 said, “That’s right.” She then clarified that
she “only knew Melissa White’s name,” but when asked if her
“recollection [was] that [she] did let [the bailiff] know that [she] knew
more than one person or at least thought [she] recognized more
than one person,” Juror 75 again said, “That’s right.”
¶ 30 2015: In a renewed motion to disqualify Judge Spear, citing
Juror 75’s testimony, Owens stated, “[A]ccording to [Juror 75], she
15 informed Judge Spear, through the bailiff, that she recognized
witnesses in the case, and that through the bailiff, Judge Spear said
that was okay . . . .”
¶ 31 2016: Juror 75 testified that her “best memory” was that
“when [she] spoke to the bailiff, it was about Melissa, not about . . .
anyone else.”
¶ 32 2016: In another motion to disqualify Judge Spear, Owens
asserted that if the fact finder believed that “Juror [75] . . . informed
[the district court] of her familiarity with several witnesses, . . . then
a claim of judicial misconduct would exist.” (Emphasis added.)
¶ 33 2017: Owens argued in a pleading that Juror B.K.’s 2008
interview “raised the unmistakable specter of judicial misconduct”
by suggesting undisclosed communications between Juror 75 and
the district court. (Emphasis added.)
¶ 34 This evidence presumably formed the basis for the first
postconviction court’s conclusion that Juror 75 told the bailiff she
recognized multiple people. And Owens’ pleadings suggest that he
knew that evidence could support a claim that the district court
erred. When it issued its 2017 order, the first postconviction court
had access to the same information that Owens did when he
16 repeatedly alluded to undisclosed ex parte communications. The
fact that the first postconviction court found Juror 75’s 2015
testimony more credible than other evidence did not create new
evidence previously unavailable to Owens.
¶ 35 That the evidence was conflicting or inconsistent also does not
mean, as Owens suggests, that he lacked a basis to argue that the
district court failed to disclose the full extent of Juror 75’s
communications with the bailiff. He relies on C.R.C.P. 11, which is
a rule of civil procedure, but even under the Colorado Rules of
Professional Conduct, a claim is not frivolous merely because “the
facts have not [yet] been fully substantiated.” People v. Layton, 494
P.3d 693, 725 (Colo. O.P.D.J. 2021) (citing Colo. RPC 3.1). And
while Owens emphasizes the discrepancies in Juror 75’s
statements, “defense counsel . . . should not be placed in the
position of warranting the validity of [another’s] assertions” and
“may properly ‘present a supportable argument which is extremely
unlikely to prevail . . . .’” People v. Breaman, 924 P.2d 1139, 1141
(Colo. App. 1996) (alteration in original) (quoting Mission Denver Co.
v. Pierson, 674 P.2d 363, 365 (Colo. 1984)), aff’d, 939 P.2d 1348
(Colo. 1997).
17 ¶ 36 In sum, the first postconviction court’s findings did not create
new evidence, and Owens could have alleged in the first
postconviction proceedings that the district court — via the bailiff —
engaged in undisclosed, allegedly ex parte communications with
Juror 75. See Crim. P. 35(c)(3)(VII)(b). Witness credibility and the
resolution of conflicting testimony were for the fact finder to
determine and did not bear on whether Owens could raise a claim.
See People v. Rau, 2020 COA 92, ¶ 22, aff’d, 2022 CO 3.
¶ 37 Finally, Owens posits that his second postconviction motion
was not barred because the first postconviction court’s factual
findings were (1) an “event[] that occurred after initiation of [his]
prior appeal or postconviction proceeding”; and (2) an “objective
factor, external to the defense and not attributable to [Owens],
[that] made raising the claim impracticable.” Crim. P.
35(c)(3)(VII)(a), (e). Inexplicably, he argues that those findings were
18 an event “because they were against the weight of the evidence.”3
He also contends that the “objective factor” was the district court’s
“nondisclosure of crucial information from a juror,” which
presumably encompasses an argument that the first postconviction
court’s findings proved such nondisclosure.
¶ 38 We do not see how these arguments differ from his contention
that the postconviction court’s findings constituted new evidence.
For the same reasons that we conclude a court’s findings are not
evidence, we conclude that such findings do not amount to
qualifying “events” or “objective factor[s]” under Crim. P.
35(c)(3)(VII)(a) and (e). For example, if a court’s finding were a
qualifying event or objective factor, so too would be a newly
published academic theory. See Bonan, ¶ 31. Moreover, that
3 In his opening brief, Owens similarly notes that, despite evidence
that Juror 75 told the bailiff she only knew or recognized one person, “the postconviction court somehow found that [she] . . . advised the bailiff that she knew several people.” (Emphasis added.) But an argument that these findings lack record support would suggest clear error or an abuse of discretion — not newly discovered evidence or a new event. See People v. Beauvais, 2017 CO 34, ¶ 22 (appellate courts set aside factual findings that are “so clearly erroneous as to find no support in the record”); Robertson v. People, 2017 COA 143M, ¶ 9 (“A district court abuses its discretion if its findings . . . are ‘so manifestly against the weight of evidence in the record as to compel a contrary result’ . . . .”) (citation omitted).
19 Owens’ claims were not based on new evidence and could have been
raised in the first postconviction proceedings precludes a
conclusion that objective factors made raising them impracticable.
See Crim. P. 35(c)(3)(VII)(e).
¶ 39 Thus, we conclude that the exceptions to successive
postconviction motions in Crim. P. 35(c)(3)(VII)(a), (b), and (e) do not
apply, and the postconviction court properly dismissed Owens’
second postconviction motion as successive.4 The People also posit
that (1) Owens’ second postconviction motion was successive under
Crim. P. 35(c)(3)(VI) because the claims had been “raised and
resolved” in Owens II, and (2) the law of the case doctrine precludes
finding for Owens on the merits. Because we conclude that the
motion was successive under Crim. P. 35(c)(3)(VII), we need not
address either argument.
IV. Disposition
¶ 40 The order denying Owens’ 2017 Crim. P. 35(c) motion as
successive is affirmed.
JUDGE GOMEZ and JUDGE LUM concur.
4 Having concluded that the motion is successive, we need not
address Owens’ argument that it was timely.