Hobdy v. Raemisch

          MEMORANDUM OPINION AND ORDER

          Richard P. Matsch, Senior District Judge.

         Christopher Hobdy was convicted of first degree assault and aggravated robbery by jury verdict in March, 1998, in the District Court for Arapahoe County, Colorado. He was sentenced to 58 years imprisonment. The conviction was affirmed by a three-judge panel of the Colorado Court of Appeals (CCOA) in March, 2000. The opinion described the evidence substantially as follows:

         The victim Jerry Williams was a retired police officer living in a hospice because he was suffering from terminal cancer. He went to a convenience store close to that residence near midnight. After his purchase he used a pay telephone outside the store where he encountered the defendant briefly. He was walking back to the hospice when he was struck from behind, knocked to the ground and his possessions fell to the ground. They were taken by the assailant. The victim went back to the store and asked the clerk to call 911 which he did. Williams then asked that an in-store video surveillance camera tape be retained and he gave the police his description of the assailant. The police made three still photographs from the tape and Williams said they showed his assailant.

         Williams gave the police an audiotaped interview the day after the attack. It was played to the jury. Because of his failing health and the expectation that he may die before trial, his deposition was taken pursuant to Colo. Crim. P. 15. He did die before trial and the transcript was read at trial with some deletions.

         The CCOA found no errors in admission of this evidence. An additional issue on appeal was the failure to declare a mistrial after the jury reported that it was deadlocked. The CCOA referred to this issue as follows:

During deliberations, the jury sent three notes-one requesting an opportunity to re-read the victim's deposition testimony, and two indicating that it was having difficulty in reaching agreement on a verdict. After discussing how best to respond to the jury, both parties agreed to have certain deposition testimony re-read to the jury.

Thereafter, the jury informed the court that it was waiting for a response to its inquiry regarding its difficulty in reaching a verdict. The court stated that it would ask the jurors whether they were making any progress toward a unanimous verdict or whether they were deadlocked. Defense counsel indicated that he had no objection to that procedure. Thereafter, the trial court fashioned the following response, to which both parties agreed: "The court must ask you whether you are making any progress towards a unanimous verdict or are you deadlocked?"

The jury replied to the court's inquiry by writing "deadlocked" on the note. The court then told counsel for both parties that it intended to give the jury an instruction in the form of COLJI-Crim. No. 38:14(1983). Counsel for defendant sated, "Okay." The court then gave such an instruction, and defendant did not object. Nor did defendant move for mistrial based on the court's responses or the procedure it followed.

Appendix N (Doc. 7-14), pp 11-12.

         After referring to Colorado Supreme Court guidelines the CCOA held that the trial court proceeded properly and need not have declared a mistrial sua sponte.

         Hobdy timely filed a Rule 35(c) motion in August, 2001, asserting ineffective assistance of trial counsel in failing to preserve a jury deadlock challenge and failure to call a medical expert to opine about the effects of the multiple medications the victim was taking on his ability to perceive, recall and relate information.

         In that motion counsel advised that because the transcript of the trial had not been reviewed a supplement would be filed. That was done on July 5, 2005, as an amended motion. Additional claims were made and the claims of ineffective assistance of trial counsel and structural error in the handling of jury notes during deliberations were amplified. The district court denied both motions summarily. The CCOA on September 25, 2008, reversed because the trial court had not ruled on the merits of the timely filed Rule 35 (c) motion and it should have held a hearing to determine if the amended motion's untimely filing should be excused.

         Pursuant to remand, a different district judge conducted an evidentiary hearing in January, 2011. The defendant produced the opinion testimony of Dr. William Alexander Morton as an expert in psychopharmacology as to the probable effects of the drugs Williams was taking on his central nervous system and the opinion testimony of Hugh Patrick Furman, as a legal expert opining as to the conduct of trial counsel in failing to investigate and present testimony of an expert witness such as Dr. Morton. The district court judge entered an order denying the motions on January 10, 2012, Appendix F (Doc. 7-6).

         The district judge made findings of fact from the record in more detail than those recited in the CCOA opinion affirming the convictions. Of particular relevance here, the following paragraphs were included.

8. Aurora Police Officer, Jerry Williams, the victim, was living in a hospice facility and receiving treatment for terminal cancer. On May 15, 1997, the victim checked out of the hospice to go to a nearby 7-11 store, He checked out at 12:40 a.m., and took ...