United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
Richard P. Matsch, Senior District Judge.
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:
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.
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
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
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.
referring to Colorado Supreme Court guidelines the CCOA held
that the trial court proceeded properly and need not have
declared a mistrial sua sponte.
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.
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.
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.
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 ...