El Paso County District Court No. 95CR2076. Honorable Leonard P. Plank, Judge.
John W. Suthers, Attorney General, Christine C. Brady, Assistant Attorney General, Denver, for Plaintiff-Appellee.
Kelvin A. Washington, Pro se.
Opinion by JUDGE GABRIEL. Hawthorne and Lichtenstein, JJ., concur.
[¶1] Defendant, Kelvin A. Washington, appeals the denial after a hearing of his Crim. P. 35(c) motion alleging ineffective assistance of trial counsel. We conclude that (1) the postconviction court applied the correct burden of proof on Washington's ineffective assistance claims; (2) evidence in the record amply supported the postconviction court's findings on ineffective assistance; and (3) there is no evidence in the record supporting the ineffective assistance allegations on which the district court did not make findings. Accordingly, we affirm.
[¶2] The victim was shot and killed outside an auto parts store. According to eyewitness accounts, after the shooting, the shooter ran from the store to a car, and the car drove away. One witness viewed a photo lineup and identified Washington as the person who ran from the store.
[¶3] In the course of the investigation of the shooting, an investigator interviewed J.G., another witness who had seen the car that drove away. J.G. was shown two photo lineups. He picked out of one lineup the person who was driving the car (this was not Washington). Although a photograph of Washington was included in the second lineup, J.G. was unable to make any type of identification. As part of their investigation, the police also conducted a gunshot residue test on Washington's hands.
[¶4] Washington was subsequently charged with first degree murder. Before trial, the prosecution gave notice pursuant to CRE 404(b) of its intent to introduce certain of Washington's prior acts involving the victim. One of these acts was a 1994 incident in which Washington and his stepbrother were involved in a fight with the victim and another man. In the course of this fight, Washington allegedly pointed a gun at the man with the victim and said, " I'll kill both you motherfuckers." The second of these prior acts was a 1995 incident in which Washington allegedly drove by the victim's grandmother's house and shot at a group that included the victim, striking the victim's cousin.
[¶5] The trial court subsequently conducted a hearing on the prosecution's request to introduce the foregoing evidence. At this hearing, defense counsel requested a continuance to investigate the 1995 incident because he had received information suggesting that Washington may have had an alibi regarding that incident. The trial court deferred ruling on the request for a continuance, pending trial counsel's preliminary investigation and a status report from him. The court, however, noted its inclination to admit the CRE 404(b) evidence at issue.
[¶6] Approximately one month later, the court conducted another hearing and revisited the question of the CRE 404(b) evidence. At this hearing, defense counsel reported that he had no evidence to present at that time, although he reserved the right to raise
the issue of the CRE 404(b) evidence's admissibility again " if something comes up. .. different than what we know now." The trial court then reaffirmed its prior view that the prior acts evidence was admissible, concluding that such evidence could be introduced to show Washington's motive or his intent to commit first degree murder.
[¶7] The case then proceeded to a jury trial. At trial, Washington's theory of defense was one of identity. Specifically, he asserted that he was not the person who killed the victim.
[¶8] During trial, J.G. failed to appear to testify, notwithstanding the fact that the prosecution had subpoenaed him. Defense counsel thus requested, and the court issued, a warrant for J.G.'s arrest. Counsel, however, did not request a continuance to locate J.G. Also during trial, without contemporaneous objection from defense counsel, the prosecution presented evidence of the above-described prior acts and referred to those acts during closing argument.
[¶9] The jury subsequently convicted Washington of first degree murder.
[¶10] Thereafter, J.G. was located, and the trial court conducted a contempt hearing relating to his failure to appear. J.G. testified at this hearing, and his testimony was consistent with his earlier statements to the police. As pertinent here, he testified that he had seen a car coming back from the auto parts store and traveling at a high rate of speed. He recognized the driver and also saw a black male in the car ducking down. He did not know who this black male was and added that he did not even see the man's face in the car.
[¶11] On direct appeal, the division affirmed the judgment of conviction against Washington. People v. Washington,
(Colo. App. No. 96CA0901, Jan. 28, 1999) (not published pursuant to C.A.R. 35(f)) ( Washington I ). As pertinent here, the division analyzed the admission of the prior acts for plain error. The division concluded that although the trial court had erred in not making specific findings regarding this evidence's admissibility, reversal was not warranted because, among other things, the trial court did not abuse its discretion in admitting the evidence. In reaching this conclusion, and notwithstanding the fact that its review was for plain error, the division performed the applicable CRE 404(b) merits analysis. Id. at 3-4.
[¶12] Thereafter, Washington filed a pro se Crim. P. 35(c) motion alleging ineffective assistance of his trial counsel, and the postconviction court appointed counsel for Washington. Washington and, later, counsel then filed amended Crim. P. 35(c) motions, after which the court conducted an evidentiary hearing on Washington's ineffective assistance claims.
[¶13] Washington and his trial counsel both testified at this hearing, and as pertinent here, Washington argued that his trial counsel was ineffective in (1) failing to present evidence of the gunshot residue test; (2) failing to request a continuance to procure J.G.'s testimony or to offer his out-of-court statements to investigators through the residual hearsay exception; (3) failing to present two particular witnesses' testimony concerning the 1994 incident; (4) failing to present evidence of an alibi to the 1995 incident; and (5) failing to object to the prior act evidence when the evidence was introduced and when the prosecution referred to that evidence in closing argument.
[¶14] In a thorough and detailed order, the postconviction court rejected Washington's claims. The court generally credited trial counsel's testimony and found that many of the deficiencies that Washington alleged involved strategic decisions by counsel that fell within the range of professionally competent assistance. The postconviction court also found that Washington failed to show that but for counsel's alleged errors or omissions, the result of the trial would have been different, concluding that Washington's claim in this regard was unsupported by any evidence and amounted to " pure speculation."
[¶15] Washington now appeals.