Arapahoe County District Court No. 04CR2316 Honorable Michael J. Spear, Judge.
Cynthia H. Coffman, Attorney General, Elizabeth Rohrbough, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Katherine C. Spicer, P.C., Katherine C. Spicer, Colorado Springs, Colorado, for Defendant-Appellant
¶ 1 Defendant, Robert Keith Ray, appeals the order dismissing his Crim. P. 35(c) motion for postconviction relief. On appeal, he maintains that ineffective assistance of trial and appellate counsel entitles him to a new trial on the charge of Possession of a Weapon by a Previous Offender (POWPO).
¶ 2 Ray is on death row after having been convicted of first degree murder in a separate case. His POWPO conviction was used as an aggravating factor in determining his death sentence, and the Colorado Supreme Court has not yet heard an appeal in the capital case. Assuming without deciding that heightened scrutiny applies to his claims, we conclude that the trial court did not err when it dismissed Ray's Crim. P. 35(c) motion. Therefore, we affirm.
¶ 3 In July 2004, Ray was on probation after having been adjudicated a delinquent on controlled substances and motor vehicle theft charges. Officers on a routine patrol followed Ray after they observed him continue straight through an intersection while in a left turn lane. As they followed him, officers observed Ray exceed the speed limit, play loud music, and drive recklessly. Ray came to a stop after officers activated their overhead lights. When they approached the car and ordered Ray to get out, he did not comply. Ray remained seated and at one point appeared to drop his arm as if reaching for something. Officers pulled Ray from the car, placed him under arrest, handcuffed him, and put him in the back of a patrol car.
¶ 4 One officer searched the passenger compartment of Ray's car and discovered a BB gun. Another officer noticed that the driver side door panel was loose and, after removing the panel, discovered a firearm.
A. Trial and Appeal
¶ 5 Ray was charged with POWPO. Before trial, defense counsel filed a motion to suppress evidence of the firearm, claiming that officers lacked reasonable suspicion to stop Ray, did not have probable cause to search the vehicle, and that the search was not a valid search incident to arrest. The trial court disagreed. Relying on Michigan v. Long, 463 U.S. 1032, 1049 (1983), the court found that officers had reasonable suspicion to stop Ray, and that the search of the vehicle was a valid protective search for weapons.
¶ 6 In May 2008, a division of this court affirmed Ray's conviction. In November 2008, the Colorado Supreme Court denied Ray's petition for certiorari. The mandate was issued on November 25, 2008, and Ray did not petition the United States Supreme Court for certiorari.
¶ 7 In November 2011, Ray filed this Crim. P. 35(c) motion for postconviction relief, claiming that (1) appellate counsel should have filed a petition for certiorari in the Supreme Court; (2) trial counsel should have investigated whether others had driven Ray's car before the POWPO arrest; and (3) trial counsel should have asserted Ray's Second Amendment right to possess firearms for self-defense. In a written order addressing each of his claims, the trial court denied his postconviction motion.
B. Other Convictions
¶ 8 Ray was convicted of two other crimes related to events in 2004 and 2005.
¶ 9 First, in July 2004, Ray shot Elvin Bell several times and Javad Marshall-Fields twice during a confrontation at a free picnic and rap music contest in Lowry Park (the Lowry Park shooting). Bell's brother, Gregory Vann, was attempting to break up a fight when Ray's accomplice, Sir Mario Owens, shot and killed him. Ray then shot Bell and Marshall-Fields to facilitate Owens's escape. As a result, Ray was charged with and convicted of accessory to murder, two counts of attempted murder, and two counts of first degree assault. Those convictions were affirmed on appeal in January 2015. See People v. Ray, slip op. at 4-5 (Colo.App. No. 07CA0561, Jan. 22, 2015) (not published pursuant to C.A.R. 35(f)).
¶ 10 Second, Ray was convicted of first degree murder for the killing of Marshall-Fields, a key prosecution witness in Ray's accessory murder trial, and Vivian Wolfe, Marshall-Fields's fiancee. In June 2005, just days before Ray's accessory murder trial was set to begin, Owens, along with an associate, Parish Carter, shot and killed Marshall-Fields and Wolfe. Evidence established that Ray orchestrated the killings. As a result, Ray was convicted and sentenced to death for their murders.
II. Crim. P. 35(c) Law and Standard of Review
¶ 11 A claim of ineffective assistance of counsel presents a mixed question of fact and law. Dunlap v. People, 173 P.3d 1054, 1063 (Colo. 2007). While we defer to the trial court's findings of fact, if they are supported by the record, we review legal conclusions de novo. Id.
¶ 12 Criminal defendants are constitutionally entitled to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685-86 (1984); Ardolino v. People, 69 P.3d 73, 76 (Colo. 2003). To prevail on a claim of ineffective assistance of counsel, defendants must show that (1) their counsel's performance was deficient; and (2) the deficient performance prejudiced the defense. Ardolino, 69 P.3d at 76, see also Silva v. People, 156 P.3d 1164, 1168 (Colo. ...