People v. Garner

381 P.3d 320

2015 COA 174

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Jason GARNER, Defendant–Appellant.

Court of Appeals No. 12CA0575

Colorado Court of Appeals, Div. II.

Announced December 17, 2015

Cynthia H. Coffman, Attorney General, William G. Kozeliski, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Lynn Noesner, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion by JUDGE DAILEY

¶ 1 Defendant, Jason Garner, appeals the district court's order denying his Crim. P. 35(c) motion for postconviction relief. We affirm.

I. Background

¶ 2 Defendant filed a pro se motion for postconviction relief, in which he alleged various grounds for vacating his conviction and sentence for first degree murder.

¶ 3 Defendant's conviction arose out of a February 1998 incident that occurred when he and a female friend (the victim) drove to Gypsum, returning from Grand Junction. Defendant was aware that the victim had large amounts of methamphetamine and cash in her possession, and the two ingested methamphetamine at least three times within forty-eight hours of leaving Gypsum.

¶ 4 After visiting with friends in Grand Junction, the two left one evening to return to Gypsum. The next morning, defendant contacted the police and told them that, after the car in which he and the victim were travelling had gotten stuck on a back road, the victim had gotten lost in the woods. Within hours, police recovered the vehicle, but the victim's methamphetamine and cash were no longer inside.

¶ 5 In December 2002, almost five years later, a hunter and his son discovered the victim's remains at the bottom of a ravine approximately two miles from where the vehicle was found in 1998.

¶ 6 In August 2003, defendant was arrested and charged with first degree murder of the victim. At trial, the prosecution presented (1) a forensic anthropologist, who opined that the victim suffered a perimortem¹ sharp force trauma injury, typical of a stab wound to the abdomen and consistent with one made by a single-edged knife; and (2) a forensic pathologist who, after collecting the victim's remains, examining them and the victim's medical history, and consulting with the forensic anthropologist, opined that the cause of death was the sharp force trauma injury identified by the anthropologist.

¶ 7 The prosecution also presented evidence that (3) defendant bought methamphetamine from the victim; (4) because she supplied him methamphetamine, the victim was able to exercise control over defendant; (5) before going on the trip, defendant had obtained an eight-inch single blade knife from a friend; (6) defendant never returned the knife; (7) defendant told others that he and the victim had been using methamphetamine and had gotten into an argument; (8) some of the victim's clothing had been cut in several places; (9) when his brother confronted him, saying, “you know you killed her. Why don't you just admit it?,” defendant told him to “shut the fuck up”; (10) defendant told one individual that, after he had tried to scare the victim into giving him drugs, she had attacked him and he had accidentally stabbed her; and (11) defendant told a friend that he had killed the victim.

¶ 8 The prosecution's theory was that defendant, “crazed on methamphetamine, chased [the victim] down and stabbed her to death.” Defendant denied killing her, testifying that, after their car had gotten stuck, they had become separated in the woods and that, once he was no longer able to hear her, he decided to go to the closest house and call for help. He also presented one witness who related a different description of the knife that had been provided to defendant; two witnesses to impeach the testimony of the friend whom the prosecution had presented; three witnesses to testify to the effect drugs had on defendant (e.g., when on drugs, he would be “calm” or “mellow,” not violent, and, when “coming down from drugs,” he would be unable to recall things); and several other witnesses to testify to search and rescue efforts or the conditions of the areas where the car broke down and the victim was found.

¶ 9 The jury found defendant guilty as charged, and the trial court sentenced him to life imprisonment without the possibility of parole. A division of this court affirmed his conviction on direct appeal. See People v. Garner, 2006 WL 3028152 (Colo. App. No., Oct. 26, 2006) (not published pursuant to C.A.R. 35(f) ).

¶ 10 Subsequently, defendant filed the pro se motion for postconviction relief that is the subject of this appeal. In his motion, defendant alleged, among other things, several claims of ineffective assistance of trial counsel. After determining that defendant's allegations were “of such a nature that the Court is unable to determine clearly ... that Defendant is not entitled to post-conviction relief,” the court referred defendant's motion to the public defender's office for consideration. A public defender entered the case as postconviction counsel for defendant and filed a supplement to defendant's motion, in which counsel alleged six claims of ineffective assistance of trial counsel and requested an evidentiary hearing.

¶ 11 At the hearing, testimony was provided by two drug experts, both of defendant's trial counsel, a criminal defense investigator, a witness who had not testified at trial, an attorney who was an expert in criminal defense, and defendant himself. In an eighteen-page written order, the court denied defendant's motion for postconviction relief.

II. Analysis

¶ 12 On appeal, defendant contends that the postconviction court erred in denying his motion. Specifically, he asserts that the evidence at the postconviction hearing established that his trial counsel was ineffective for failing to (1) present evidence from experts in forensic anthropology, hypothermia, and the effects of methamphetamine use; (2) present a particular witness to impeach one of the prosecution's witnesses; (3) disclose a potential conflict of interest; and (4) ensure the jury was properly instructed as to voluntary intoxication.² We disagree.

A. General Legal Principles and Standard of Review

¶ 13 “The constitutional right to effective assistance of counsel ‘is not a guarantee against mistakes of strategy or exercise of judgment in the course of a trial as viewed through the 20–20 vision of hindsight following the return of a verdict in a criminal case.’ ” People v. Gandiaga, 70 P.3d 523, 525 (Colo.App.2002) (quoting Dolan v. People, 168 Colo. 19, 22–23, 449 P.2d 828, 830 (1969) ).

¶ 14 To prevail on a claim of ineffective assistance of counsel, a defendant must show that (1) counsel's performance was deficient and (2) counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; Dunlap v. People, 173 P.3d 1054, 1062–63 (Colo. 2007).

¶ 15 In assessing the first prong of the Strickland test, courts “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955) ); see Davis v. People, 871 P.2d 769, 772 (Colo. 1994). Counsel's performance is deficient when, falling below “an objective standard of reasonableness,” Dunlap, 173 P.3d at 1062 (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052 ), it amounts to “gross incompetence,” Kimmelman v. Morrison, 477 U.S. 365, 382, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986) ; see Le v. Mullin, 311 F.3d 1002, 1025 (10th Cir.2002) (“For counsel's performance to be constitutionally ineffective, it must have been ‘completely unreasonable, not merely wrong, so that it bears no relationship to a possible defense strategy.’ ” (quoting Hoxsie v. Kerby, 108 F.3d 1239, 1246 (10th Cir.1997) )).

¶ 16 To establish prejudice under the second prong of the Strickland test, the defendant must demonstrate “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Dunlap, 173 P.3d at 1063 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052 ).

¶ 17 To obtain relief, a defendant must prove, by a preponderance of the evidence, each prong of the Strickland test. People v. Russell, 36 P.3d 92, 95 (Colo.App.2001). If a court determines that counsel's performance was not constitutionally deficient, it need not consider the prejudice prong of the ineffective assistance of counsel test. People v. Sparks, 914 P.2d 544, 547 (Colo.App.1996). Similarly, if a court determines that a defendant failed to affirmatively demonstrate prejudice, it may resolve the claim on that basis alone. People v. Garcia, 815 P.2d 937, 941 (Colo.1991).

¶ 18 We review defendant's ineffective assistance of counsel claim as a mixed question of fact and law, giving deference to the court's factual findings as long as they are supported by the record, but reviewing the court's legal conclusions de novo. People v. Valdez, 178 P.3d 1269, 1278 (Colo.App.2007) ; cf. People v. Washington, 2014 COA 41, ¶ 17, 345 P.3d 950 (“The postconviction court determines the weight and credibility to be given to the testimony of witnesses in a Crim. P. 35(c) hearing.”).

¶ 19 With these principles and standard of review in mind, we now consider defendant's contentions.

B. Failing To Present Expert Evidence

1. Forensic Anthropologist

¶ 20 At trial, the prosecution presented testimony from two expert witnesses regarding the victim's cause of death. The first, a forensic anthropologist, testified that, upon examining the victim's body, she found a defect in the sacrum that was consistent with a single-edged knife wound travelling from the victim's abdomen back to her sacrum. She also...