People v. Thompson
2020 COA 117. No. 17CA0999. Criminal Procedure—Post-Conviction Relief—DNA Testing—Ineffective Assistance of Counsel.
July 30, 2020
Police discovered the victim in an alley wrapped in a blanket, mattress cover, and electrical cord. He had been stabbed more than 40 times. At trial, among other evidence, the prosecution presented evidence that defendant stayed in the same apartment complex as the victim, defendant and his brother regularly purchased crack cocaine from the victim, and there was animosity between defendant and the victim over drug dealings. In addition, defendant confessed to four people that he murdered the victim, and they all testified at trial. A jury found defendant guilty of first degree murder. Defendant unsuccessfully moved for postconviction relief in two proceedings. As relevant here, the second postconviction court denied his motion for DNA testing and his claims regarding ineffective assistance of counsel.
On appeal, defendant contended that the postconviction court erred by denying his motion for additional DNA testing under CRS § 18-1-413, which prohibits a court from ordering postconviction DNA testing unless the petitioner demonstrates that favorable DNA testing results will show the petitioner’s actual innocence. Actual innocence is clear and convincing evidence that no reasonable juror would have convicted the defendant. Here, the absence of defendant’s DNA on the mattress pad, blanket, extension cord, and victim’s clothes failed to satisfy the actual innocence standard because the other evidence against defendant was so strong. Further, Crim. P. 35(c) does not authorize postconviction DNA testing. Accordingly, the postconviction court did not err.
Defendant next contended that the postconviction court erred by denying his ineffective assistance of counsel claims as to his trial counsel, alleging that trial counsel failed to investigate or provide expert testimony regarding defendant’s theory that during his altercation with the victim, his wrist was cut by broken glass rather than the victim. These claims were procedurally barred because they could have been raised in the first postconviction motion and were thus successive under Crim. P. 35(c)(3)(VII).
Defendant also argued that his first postconviction counsel provided ineffective assistance of counsel because she failed to investigate or to procure expert testimony about the wrist-laceration theory and failed to request additional DNA testing of objects associated with the murder. Defendant did not demonstrate that expert testimony on the wrist-laceration theory would have changed the result of the first postconviction proceeding or that the result of the prior proceeding would have been different had counsel requested additional DNA testing. Therefore, defendant failed to demonstrate prejudice from counsel’s alleged deficient performance, so the court properly denied these claims.
The orders were affirmed.