DISTRICT COURT, ARAPAHOE COUNTY,
COLORADO
7325 South Potomac Street
Centennial, Colorado 80112

PEOPLE OF THE STATE OF COLORADO

COURT USE ONLY

vs.
Case Number: 05CR2945
SIR MARIO OWENS

Div: SR

ORDER RE: PETITION FOR RELIEF PURSUANT TO CRIM. P. 35(C)
THIS MATTER comes before the court on Sir Mario Owens’s Petition for
Relief Pursuant to Crim. P. 35(c). The motion is hereby DENIED.
I. Introduction
Following a ten-day jury trial in January of 2007, a jury convicted Sir Mario
Owens (Owens) of the first-degree murder of Gregory Vann (Vann) and, as a
complicitor, the attempted murders of Javad Marshall-Fields (Marshall-Fields) and
Elvin Bell (Bell). Daniel King (King), Laurie Rose Kepros (Kepros), and Jason
Middleton (Middleton) represented Owens at trial. On April 3, 2007, the trial
court sentenced Owens to life in prison without parole plus 64 years. Owens filed
a Notice of Appeal on May 10, 2007. The Colorado Court of Appeals affirmed his
convictions in People v. Owens, No. 07CA0895, 2012 WL 3031232 (Colo. App.
July 26, 2012) (not published pursuant to C.A.R. 35(f)), cert. denied, No.
12SC810, 2013 WL 4426399 (Colo. Aug. 19, 2013).
In December of 2014, Owens brought this Crim. P. 35(c) motion alleging
that his constitutional rights were violated. He raised over 150 specific claims.
With its four supplements, the petition’s length exceeds 400 pages. His assertions

 include, inter alia, that (1) both his trial and appellate counsel were constitutionally
inadequate, (2) his trial was unconstitutionally tainted by juror misconduct, (3) his
trial was tainted by unconstitutional prosecutorial misconduct, and (4) his trial
counsel labored under conflicts of interest. The trial judge did not rule on this
motion, and the case was assigned to this court.
A defendant who seeks “postconviction relief pursuant to Crim. P. 35 is
entitled to a prompt evidentiary hearing unless the motion, the files, and the record
‘clearly establish that the allegations presented in the defendant’s motion are
without merit and do not warrant postconviction relief.’” People v. Rodriguez, 914
P.2d 230, 255 (Colo. 1996) (quoting People v. Trujillo, 549 P.2d 1312, 1313 (Colo.
1976)). The court granted Owens an evidentiary hearing on some but not all of the
claims raised in the petition and its four supplements. The court conducted a fiveday hearing that ended on October 21, 2016, a one-day hearing on April 17, 2017,
took additional telephone testimony on April 28, 2017, and considered certain
offers of proof. The court has read the transcripts of the trial and sentencing and
has reviewed many thousands of pages of additional material designated by the
parties.

It also reviewed hundreds of exhibits and considered the written

arguments submitted in November of 2016 and May of 2017.
This Order resolves all of Owens’s claims.
II. Facts
A. The events at Lowry Park
Around dusk on July 4, 2004, Owens shot and killed Vann. Robert Ray
(Ray) shot and injured Bell and Marshall-Fields. The shootings occurred in and
near a parking lot at Lowry Park in Aurora. People had gathered at the park for a
barbeque and rap contest promoted and sponsored by Vann and Marshall-Fields.

2

 At the time, Ray was married to Latoya Sailor (Sailor) who, along with other
young women, went to the barbeque and rap contest. Ray arrived later. He was
drunk, driving his Suburban on the lawn, playing rap music on his car radio so
loudly as to interfere with the rap contest, and generally interacting with people in
offensive and obnoxious ways.
Sailor called Owens and asked him to come to the park. She told him that
Ray was drunk, “acting a fool,” and she feared that the crowd was about to
physically attack him. Sailor believed that Owens – Ray’s closest friend – would
protect Ray.
After the rap contest ended, Sailor and the other young women attempted to
drive out of the parking lot. Their path was impeded by pedestrians who were
standing around in the parking lot. The pedestrians were asked to move and the
situation escalated. Ray got into a verbal confrontation with several young people.
This exchange, coupled with Ray’s earlier conduct, caused tempers to flare. Some
in the crowd flipped their middle fingers at Ray.
confrontational.

Many were loud and

Different witnesses recalled details differently.

The various

perceptions included:
• The driver of Sailor’s car honked her horn at the pedestrians.
• One or more young men yelled epithets at Sailor.
• Ray suggested, in offensive language, that the driver of Sailor’s car
run the pedestrians over.
• Ray put his open hand on a female pedestrian’s face and pushed her,
and her brother angrily confronted Ray.
• A crowd of people moved toward Ray and angrily confronted him.
• Ray flailed his arms and repeatedly said he would kill those who were
confronting him.
3

 • While retreating toward his Suburban, Ray pushed another woman out
of the way with his shoulder.
• Jeremy Green (Green) removed his shirt as a prelude to a fight, lightly
head-butted Ray, and said Ray was a “pussy” unless he agreed to fight
Green without weapons.
• Ray continued to verbally threaten to kill those who were advancing
upon him.
• Owens, without saying anything, came to Ray’s side.
• Owens and Ray lifted their shirts to show the crowd that they were
armed with handguns.
• There was substantial yelling back and forth between Ray and the
crowd.
• Owens waived his gun as he and Ray were retreating toward the
Suburban.
• Vann ran toward Owens, and raised his arms. Some felt that Vann
was verbally expressing his anger that Owens brought a gun to the
event. Others felt that Vann was trying to break up the argument and
confrontation. One witness, Jamar Johnson (Johnson), testified that
Vann punched Owens in the face.
Shortly before the shootings, Sailor and the young women drove out of the
park. Owens then shot and killed Vann. Vann was shot twice. The second shot
was delivered after Vann had fallen to the ground. Owens then ran to Ray’s
Suburban to escape, but Marshall-Fields, Bell, and possibly others attempted to
detain him. Ray shot and wounded both Bell and Marshall-Fields as they tried to
prevent Owens from leaving with Ray in the Suburban. Ray and Owens then left

4

 hurriedly in the Suburban, drove over the lawn, and possibly had a passing, minor
collision with another vehicle.
Police arrived shortly thereafter. The scene was chaotic, hard to control, and
exacerbated because Aurora officers were trying to identify possible witnesses
while Denver officers were trying to clear the park. The police received minimal
cooperation from the people who were present. Most refused to talk to the police.
Many were hostile and insulting. Some even had physical altercations with the
police. No one at the scene identified either shooter by name. But some of the
people present spoke to the police, and Green accompanied them to their station
where his interview about the events was video-recorded.
B. Subsequent facts relating to the crimes
The police later obtained an amateur video that appears to show two men
lifting their shirts in a way that would show whether they had guns in their
waistbands, but the quality of the video is not good. No reliable identification
could be made based upon the video alone, nor was it of sufficient quality to see
whether any item in the waistband was a gun.
Bell and Marshall-Fields were taken to area hospitals. An Aurora police
officer interviewed Bell, who described the shooter as a 6’ tall, light-skinned black
male, 19-20 years old, wearing a white shirt, jean shorts, and a white hat. Other
officers interviewed Marshall-Fields, who described the shooter as 6’1”, 180 lbs.
with braids and wearing a white shirt, jean shorts, and a white hat. Both of these
descriptions were consistent with Owens.
Green’s description was similar, although he described the shooter as darkskinned. The clothing descriptions generally match a person who can be seen on
the video lifting his shirt.

5

 According to Bell and Marshall-Fields, Vann’s shooter fled in a goldcolored Suburban, which was driven by someone else. Bell described the getaway
driver as a darker-skinned black male, 20 years old, wearing a white t-shirt.
After she left the park, Sailor found Ray and Owens in the home she and
Ray shared.

According to Sailor, Ray was very upset with Owens over the

shootings. Ray anticipated that he would be quickly identified as the driver of the
Suburban. In an emotional state, Ray berated Owens, indicating that it was not
necessary to shoot Vann because those who were closing in on Ray and Owens
were not armed.
Later that night, Sailor, Ray, and Owens cleaned blood off the Suburban and
hid the Suburban in a garage belonging to Ray’s sister-in-law, Brandi Taylor (B.
Taylor). After pouring bleach on the clothes worn by Ray and Owens, Sailor
disposed of the clothes by throwing them into one or more dumpsters.

Ray

directed Percy Carter, Sr. (Carter, Sr.) to dispose of the guns that he and Owens
used that night. Owens cut off his braids in order to change his appearance. Carter
Sr. and his girlfriend rented two motel rooms. Ray, Sailor, Owens, and Owens’s
girlfriend, Cashmier Jones (Jones), spent the night in the motel rooms that had
been registered to Carter, Sr. and his girlfriend. The next day, the four moved to
the home of Ray’s other sister-in-law and stayed there for a couple of days. Then
Owens and Jones drove to Shreveport, Louisiana, where they stayed with Owens’s
relatives. Owens was from Shreveport and had a large, extended family in the
area. Owens remained in Shreveport until late fall 2004. The guns, clothing, and
Suburban were never recovered.
Askari Martin (A. Martin) surfaced as an eyewitness when he returned to
Lowry Park on the morning of July 5 to retrieve his vehicle. While speaking with
a detective, he identified Ray as the driver of the Suburban. On July 13, Marshall6

 Fields identified Ray in a photo lineup, and on July 20, the prosecution charged
Ray as an accessory to Vann’s murder. Ray posted a $25,000 bond and was
released.
The prosecution provided discovery to Ray’s attorney who provided a copy
to Ray. Ray and Owens reviewed the discovery and identified Marshall-Fields and
A. Martin as the only witnesses who had identified Ray as the driver of the
Suburban. The discovery confirmed that the identity of the person who shot and
killed Vann was unknown.
Ray’s jury trial was scheduled for April 25, 2005, with a pretrial motions
hearing on February 24, 2005. The prosecution subpoenaed Marshall-Fields and
A. Martin to testify during the motions hearing. After the hearing, because he was
afraid that Ray would harm him, A. Martin sought out Ray in the courthouse
parking lot and promised he would not appear for trial.
Due to a continuance of the motions hearing, a new trial date was set for
June 27, 2005. On June 20, 2005, Marshall-Fields and his fiancée, Vivian Wolfe
(Wolfe), were shot and killed while driving on Dayton Street.1 In the aftermath of
the Dayton Street homicides, evidence was developed that identified Owens as the
man who shot Vann. Sailor was in jail on drug and gun charges, and she agreed to
cooperate with the prosecution. Johnson was in jail on a probation violation and
aggravated robbery charges, and he agreed to cooperate as well. Both were given
very favorable plea bargains and witness protection relocation.

Jones also

cooperated and was given witness protection relocation. Their cooperation led the
police to other witnesses and evidence that inculpated Owens for the murders of
Vann, Marshall-Fields, and Wolfe.

1

See People v. Owens, Arapahoe County case 06CR705.

7

 Once Owens was identified, the police developed ample evidence of the
close relationship between Ray and Owens. They had attended middle and high
school together in Aurora and had been almost inseparable friends ever since.
While the jury did not hear about their business relationship, the prosecution was
in a position to prove – had the trial court allowed it – that Ray ran a successful
drug distribution business out of his barbershop, and that Owens was his secondin-command and almost constant companion.
Owens was arrested on November 8, 2005, in the Shreveport area. When
interviewed by Aurora officers in Shreveport, Owens claimed that he had been in
Shreveport at the time of Vann’s shooting and denied any involvement in the
crime.
C. Selected trial evidence of significance
Johnson testified that he was close by when the shootings occurred, and that
he saw Vann punch Owens and Owens shoot Vann. He testified that, after the first
shot, Vann fell to the ground, and Owens fired into Vann’s body until the clip in
his gun was empty or the gun jammed. Johnson also testified that he saw Ray
shoot the men who were attempting to detain Owens. Johnson knew Ray and
Owens well and was certain of his identification. When cross-examined, Johnson
gave significant evidence that was helpful to a claim of defense of Ray and selfdefense. He testified that Owens and Ray were vastly outnumbered; that the crowd
was angry and advancing upon them; that one or more of the young men had
removed their shirts and that – given the nature of the young men in the crowd – at
least some of them were almost certainly armed; and that Owens did not shoot
until Vann attacked Owens and punched Owens in the face.
Green’s trial testimony was not particularly helpful to either party. But his
videotaped interview provided significant corroboration of points that may have
8

 been important to both parties. His description of the shooter corroborated the
identity of Owens, and his description of the events corroborated many facts
supporting the defense of defense of Ray/self-defense.
Sailor and Jones testified concerning Sailor’s phone call to Owens, the
verbal exchange as the young women were trying to leave the park, and the events
that occurred after the shooting. Sailor also recounted Ray’s berating of Owens
over the shooting.
Several police officers and technicians testified about the chaotic nature of
the crime scene; the uncooperativeness and hostility of the crowd and the potential
witnesses; the steps taken to attempt to secure the crime scene; the crime scene
investigation; the three shell casings recovered from the scene; and their inability
to find any other slugs or casings with a metal detector sweep. Medical doctors
testified as to the cause of Vann’s death and the nature of Bell’s and MarshallFields’s wounds. Forensic experts testified, based upon slugs recovered from
Vann and a fragment recovered from Bell, that Bell and Vann were shot with guns
of different calibers.
The jury did not hear any evidence about the Dayton Street homicides.
III. Trial Counsel’s Performance
A. Parties’ Positions
Owens challenges nearly every facet of his trial counsel’s performance,
including their investigation, pretrial motions practice, and their performance
during trial with respect to evidentiary objections, cross-examinations, and
arguments.
The prosecution responds that Owens can neither show that his counsel
performed incompetently nor that his counsel’s performance prejudiced his
defense.
9

 B. Overview, staffing, and diligence
Owens was charged with the Lowry Park murder on September 30, 2005.
The Public Defender’s office anticipated that the death penalty would be sought
against Owens for the Dayton Street homicides, so when Owens was arrested on
November 8, 2005, Douglas Wilson (D. Wilson) of the Public Defender’s office
flew to Shreveport and met with him a few days later. The Public Defender
formally entered on November 23, 2005. A conviction in Lowry Park would be an
aggravator in Dayton Street, and the Lowry Park facts were connected as the
motive for the Dayton Street homicides. Thus, to the Public Defender’s office, it
seemed appropriate to have the same team of lawyers handle both cases. The
Public Defender’s office attempted, as best as it could, to follow its death penalty
protocol in staffing both cases even though Lowry Park did not involve the death
penalty. When possible, the Public Defender’s office assigns three lawyers and
one investigator to death penalty cases. The lead lawyer is someone with death
penalty trial experience as either lead counsel or second chair. The second lawyer
is someone with prior first-degree murder trial experience.
The Public Defender’s office assigned three lawyers and an investigator to
Owens’s cases. The initial staffing had D. Wilson as the lead lawyer, King as
second chair, and Middleton as the third lawyer. About four months before the
Lowry Park trial, D. Wilson was appointed the State Public Defender. The State
Public Defender does not carry a caseload so King was elevated to the lead lawyer
and Kepros was appointed as second chair. Middleton remained as the third
lawyer.
King was licensed to practice law in 1995 and had been a public defender
for just over 11 years before the trial in this case. During that time, he tried
hundreds of jury trials including approximately 20 homicides.
10

Kepros was

 licensed to practice law in 1999 and began working as a public defender in 2000.
Prior to the trial in this case, she had tried two homicide cases to a jury. Kepros
was selected to represent Owens because of her work ethic, litigation skills, and
diligence. While King and Kepros investigated and litigated, Middleton drafted a
majority of the motions and participated in the jury instruction conferences.
Middleton was licensed to practice law in Texas in 1993. While in Texas, he was
second chair on a capital case, although the death penalty was withdrawn shortly
before trial. Since moving to Colorado in 1995, Middleton had worked as a private
criminal defense attorney and as an appellate public defender. As an appellate
public defender, Middleton represented Nathan Dunlap on his post-conviction
appeal.
When he was second chair, King was primarily responsible for the guilt
phase of the Dayton Street trial and he shared trial responsibility for Lowry Park
under D. Wilson’s leadership. He also had some responsibilities in other cases – a
first-degree homicide case which he took to trial in June 2006, one potential death
penalty case in Southern Colorado that resolved in August 2006, and a few nontrial cases that were so far along before his appointment to represent Owens that it
was most efficient for him to finish rather than transfer them. Kepros also had
transition issues.

While concentrating on the Owens cases, she had to write

transition memos to the attorneys who were taking over her cases and meet with
some clients to explain the transition. Both King and Kepros found the situation
stressful to a degree that bordered on overwhelming.
At the time of D. Wilson’s elevation, the Public Defender’s office was
highly stressed. Three of their experienced death penalty lawyers had left the
office and another had passed away. There was also a substantial increase in their

11

 load of serious cases. Lawyers on various cases around the state were making
requests for additional resources that could not be provided.
The Lowry Park murder had occurred on July 4, 2004, Ray was charged
shortly thereafter and as the investigation continued, thousands of pages of
discovery built up. Because Owens was not identified as a suspect until the second
half of 2005 and Kepros did not join the team until September of 2006, the team’s
workload was extremely heavy. King’s primary focus was on the Dayton Street
case, and Kepros worked very long hours every day to prepare. She also had some
medical issues that required her to attend some outpatient medical appointments.
As she worked through the discovery, she spotted various issues or areas where
additional investigation might be useful but the magnitude was such that she had to
focus primarily on the Lowry Park witnesses whom King had assigned to her.
Their investigator, the lead investigator in the Arapahoe County regional
office, was also overwhelmed.

Mitigation aspects of the Dayton Street case

required significant travel, some of the Lowry Park witnesses would not cooperate
with the defense, and at one point he was injured when he fell off a roof.
Thus, as the January 2007 trial date grew close, the defense did not feel that
they were ready. On December 27, 2006, they moved to continue the trial. Both
in the written motion and in oral argument they informed the trial judge that there
were many witnesses who had not been interviewed, substantial discovery that had
not been reviewed, and experts who had not been consulted. The trial judge denied
the motion to continue and, on appeal, that decision was found not to be an abuse
of discretion. See People v. Owens, No. 07CA0895, 2012 WL 3031232 (Colo.
App. July 26, 2012) (not published pursuant to C.A.R. 35(f)), cert. denied, No.
12SC810, 2013 WL 4426399 (Colo. Aug. 19, 2013).

12

 C. Principles of Law
The Sixth Amendment to the United States Constitution provides that “the
accused shall enjoy the right . . . to have the Assistance of Counsel for his
defen[s]e.” U.S. CONST. amend. VI; see also COLO. CONST. art. II, § 16; C.R.S. §
18-1-403. “That a person who happens to be a lawyer is present at trial alongside
the accused, however, is not enough to satisfy [this] constitutional command.”
Strickland v. Washington, 466 U.S. 668, 685 (1984). Accordingly, “the right to
counsel is the right to the effective assistance of counsel.” McMann v. Richardson,
397 U.S. 759, 771 n.14 (1970).
“The benchmark for judging any claim of ineffectiveness must be whether
counsel’s conduct so undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just result.” Strickland, 466
U.S. at 686.
To prevail on an ineffective assistance of counsel claim,
First, the defendant must show that counsel’s
performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by
the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense.
This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.
Strickland, 466 U.S. at 687. “Surmounting Strickland’s high bar is never an easy
task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
“In any case presenting an ineffectiveness claim, the performance inquiry
must be whether counsel’s assistance was reasonable considering all the
circumstances.” Strickland, 466 U.S. at 688. In making this assessment, the court
should not “second-guess counsel’s assistance” or let itself be swayed by “the
13

 distorting effects of hindsight.” Id. at 689. Instead, the court should make every
effort “to reconstruct the circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the time.” Id. Simply put,
“[t]he Sixth Amendment guarantees reasonable competence, not perfect advocacy
judged with the benefit of hindsight.” Yarborough v. Gentry, 540 U.S. 1, 8 (2003).
Moreover, the “court must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.” Strickland, 466 U.S.
at 689.
With respect to counsel’s pretrial investigation and preparation for trial, the
United States Supreme Court observed that,
[S]trategic choices made after thorough investigation of
law and facts relevant to plausible options are virtually
unchallengeable; and strategic choices made after less
than complete investigation are reasonable precisely to
the extent that reasonable professional judgments support
the limitations on investigation. In other words, counsel
has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations
unnecessary. In any ineffectiveness case, a particular
decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy
measure of deference to counsel’s judgments.
Strickland, 466 U.S. at 690-91. Furthermore, “[c]ounsel [is] entitled to formulate a
strategy that was reasonable at the time and to balance limited resources in accord
with effective trial tactics and strategies.” Harrington v. Richter, 562 U.S. 86, 107
(2011).
Proving that counsel performed deficiently is not enough to succeed on an
ineffectiveness claim. The defendant must also demonstrate that the deficient
14

 performance prejudiced the defense to the point of deprivation of a fair trial with a
reasonable result. Strickland, 466 U.S. at 687. There is prejudice when there is “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”

Id.

“The

likelihood of a different result must be substantial, not just conceivable.”
Harrington, 562 U.S. at 112. The United States Supreme Court has observed that
a “verdict or conclusion only weakly supported by the record is more likely to have
been affected by errors than one with overwhelming record support.” Strickland,
466 U.S. at 696.
The court must ultimately determine whether “the identified acts or
omissions were outside the wide range of professionally competent assistance” and
whether “the defendant has met the burden of showing that the decision reached
would reasonably likely have been different absent the errors.” Id. However,
“there is no reason for a court . . . to approach the inquiry in the same order or even
to address both components of the inquiry if the defendant makes an insufficient
showing on one.” Id. at 697. “A court need not determine whether counsel’s
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies.” Id. If it is easier to dispose of an
ineffectiveness claim because there is a lack of prejudice, courts are encouraged to
do so. See id.
When relief is sought based on a claim of ineffectiveness, the defendant
must “state with particularity the grounds upon which the defendant intends to
rely.” C.R.S. § 16-12-206(1)(b). Failure to state claims with specificity can result
in a summary denial of the claim. Rodriguez, 914 P.2d at 300-01 (a vague and
unsupported claim of ineffective assistance will be denied).
15

 D. Trial Counsel’s Investigation
1. Choice of Defense Strategy
Owens asserts that his trial counsel were constitutionally inadequate. Many
of the claims flow from Owens’s assertion that trial counsel’s choice of defense
strategy – defense of Ray/self-defense – was unreasonable and was selected before
an adequate investigation was done. While defense of Ray/self-defense did not
prove a successful strategy, it was not only a reasonable strategy, but the more
reasonable strategy in this case.
The defense team seriously considered two generally inconsistent defense
strategies.

Some consideration was given to adopting the position that the

prosecution could not prove beyond a reasonable doubt that Owens killed Vann.
Identity depended largely upon the testimony of Johnson, Jones, and Sailor,
including Sailor’s recounting of Ray’s remarks after the Lowry Park shootings.
But Owens’s identity was corroborated by strong inferences from the descriptions
of Green, Bell, Marshall-Fields, and others, as well as Owens’s relationship with
Ray. And his hiding, cutting his braids, disposing of evidence, and flight after the
homicide would be viewed as corroboration of his involvement. Ultimately King
determined that a jury was likely to conclude that Owens was a shooter and that
defense of Ray/self-defense was the more viable defense.
Many factors suggested that defense of Ray/self-defense was viable.
Defense counsel knew the following information before deciding on a defense
strategy. No further investigation was necessary before making the decision.
Factors suggesting that defense of Ray/self-defense was viable included:
• Sailor called Owens to the park. She asked him to come to the
park and get Ray because the crowd was about to cause Ray
serious harm. Thus, Owens’s state of mind when he arrived at the
16

 park might reasonably have been that Ray needed to be defended
against mob violence.
• As Sailor and the other young women were attempting to leave the
park, Ray’s drunken talk was again obnoxious and offensive. But
there was very little evidence that Owens, himself, did anything
aggressive or inflammatory. According to Green, Owens never
said anything.
• Before any shooting occurred, Owens and Ray retreated toward the
Suburban in what could reasonably be inferred to be an attempt to
avoid or withdraw from the growing confrontation.
• A large, angry crowd kept advancing on Ray and Owens. Some
young men in the crowd removed their shirts – an indication that
they intended to engage in a fight. Others were yelling, flipping
their middle fingers, and otherwise acting confrontationally. Green
head-butted Ray, removed his shirt to fight, and told Ray he was a
“pussy” if he would not fight without a gun.
• Ray and Owens were greatly outnumbered, and no one seemed to
be coming to their aid.
• When Owens first showed and later waived his gun, it appeared to
be in an effort to dissuade the crowd from advancing further. The
crowd was not deterred and continued to advance aggressively
toward Ray and Owens.
• According to Jamar Dickey (Dickey), Vann ran toward Owens and
raised his hands, possibly to hit Owens, right before shots were
fired. Dickey followed Vann, planning to assist Vann in what
appeared to Dickey to be an imminent fight.
17

 • According to Johnson, Owens was physically attacked by Vann,
who struck Owens in the face with a fist.
• Owens could reasonably have believed that some of his attackers
had guns.
• From the police description of their interactions with people in the
park, it was reasonable for trial counsel to predict that jurors might
infer that many people at the park might have been carrying guns.
The police consistently described the crowd as belligerent, hostile,
and aggressive – some even fought with the police.
Factors suggesting that an alternate suspect/reasonable doubt as to
identification approach would be problematic included:
• Evidence identifying Owens as Vann’s shooter
o Johnson, who knew Owens, identified him as the man who shot
and killed Vann.
o Ray’s berating of Owens for shooting Vann.
o Marshall-Fields’s, Bell’s, and Green’s descriptions of the man
who shot Vann are consistent with Owens.
• Ballistics evidence
o The ballistics experts’ evidence established that the bullet
fragment removed from Bell was from a different caliber gun
than the bullets removed from Vann. Thus, the jury would
conclude that because there were two different guns, there were
two different shooters.
• Inference from Ballistics Evidence
o The jury would conclude Ray was one of the shooters. Some
potential witnesses identified Ray as the only shooter. Ray was
18

 the person who initially drew everyone’s attention through his
obnoxious talk and threats. And after Owens’s two shots drew
people’s attention, it was Ray alone who was shooting. Ray
shot Bell, who was trying to detain Owens, and the gun used to
shoot Bell was not used to kill Vann. So Vann was shot by the
other man with a gun – the man who was trying to protect or
assist Ray. That was the man who, along with Ray, lifted his
shirt to display a gun, and the man who fled with Ray in the
Suburban.
• Owens’s relationship with Ray
o Dickey characterized Owens and Ray as “best friends.”
o Sailor’s testimony that Owens was Ray’s best friend, constant
companion, and loyal assistant, and that she called Owens to
come to the park and get Ray.
o Owens was at the house with Ray after the shooting.
• Efforts to conceal evidence
o Owens changed his appearance the night of the shooting by
cutting his braids.
o Sailor poured bleach on the clothes that Owens and Ray wore at
the park and later disposed of the clothes in one or more
dumpsters.
o Owens and Ray arranged for the disposal of the Suburban and
guns.
o Ray, Sailor, Owens, and Jones stayed at a motel on the night of
July 4, 2004, in rooms that were registered in the names of
others.
19

 o Then after staying with Ray’s relatives for a couple nights,
Owens and Jones went to Louisiana in what could reasonably
be inferred to be an effort to avoid apprehension.
Trial counsel reasonably concluded that it was likely that the jury would
conclude that Owens shot Vann. Based on the analysis set forth above, defense of
Ray/self-defense was not only a reasonable strategy, but the more reasonable
strategy in this case.
2. Interviewing and Investigating Witnesses
Owens contends his trial counsel were ineffective because they did not
interview or investigate 23 potential witnesses whose testimony, Owens asserts,
would have contradicted the prosecution’s theory that Owens shot and killed Vann.
According to Owens, discovery reflected that 14 of those 23 witnesses would have
named Ray as the individual who killed Vann.2
As discussed above, (1) it is unlikely that a jury would entertain a reasonable
doubt as to whether Owens shot Vann, and (2) trial counsel’s review of the
evidence before selecting their theory of defense was adequate. Trial counsel
might have preferred to interview some of these witnesses, had time and resources
permitted, but the choice of defense strategy obviated the need to interview them.
Choosing not to interview and investigate the 14 witnesses who would have
inculpated Ray was reasonable in light of all of the evidence. Several witnesses
either identified Owens as having been at Lowry Park or provided suspect
descriptions that closely matched Owens. Several described Ray’s and Owens’s
close relationship. Further evidence implicating Ray would not have been helpful.

2

Deonta Combs, Jamar Dickey, Jahmon Gaines, Bertino Gordon, Stacy Hicks, Nicole Huntley,
Rashika Kelly, Michael McPherson, Askari Martin, Rashad Mayes, Leon Mickling, Sr., Maisha
Pollard, Miguel Taylor, and Charona Wilson.

20

 Indeed, because Owens was charged as Ray’s accomplice to the shootings of
Marshall-Fields and Bell, it might have been detrimental.
Four of the witnesses gave suspect descriptions that did not match Owens.3
But their descriptions did not match each other’s and would not have raised a
serious doubt about identity.
Testimony from Winona Bartlemay would have been inadmissible hearsay.
Amber Johnson was a character witness. Reasonable trial counsel would not
have deliberately opened the door to Owens’s character.
Jon Martin (J. Martin) did not testify at trial. In the 32.2 hearing in Owens’s
Dayton Street case, J. Martin testified that he did not see who shot Vann initially,
but later saw a dark-skinned man who was bald or had a bald fade and gold teeth
shoot three to five shots into Vann’s body. But J. Martin was an acquaintance of
Ray and Owens who had his own significant criminal issues. Even if trial counsel
had been able to interview J. Martin before the Lowry Park trial, and had he
offered the same description, it is highly unlikely that trial counsel would have
called him to testify. J. Martin’s description of the shooter would not have been
believed. And his testimony about shots fired into Vann’s body would corroborate
the part of Johnson’s testimony that Owens wanted to discredit.

Competent

defense counsel would not have called J. Martin.
The final two, Sailor and Johnson, testified.

Trial counsel interviewed

Sailor. Owens’s assertion seems to be that a more thorough interview might have
uncovered useful impeachment evidence.
It is not clear that Johnson, who was represented by counsel and in witness
protection, would have submitted to a defense interview. But it is clear that Owens

3

Cherie Crawford, Jennifer Newton, Frank Rogers, and Armando Taylor.

21

 suffered no prejudice from trial counsel’s failure to interview Johnson before trial.
The court has evaluated the evidence as it relates to these two witnesses, including
the direct and cross-examinations. The record does not support the claim that trial
counsel inadequately impeached Sailor and Johnson.

See part III.K.2 of this

Order.
3. Failure to Use Experts
Owens faults his trial counsel for failing to employ a ballistics expert to
contradict Johnson’s testimony that Owens shot Vann again after Vann had fallen
to the ground. This court authorized Owens’s post-conviction counsel to employ a
ballistics expert, allow the expert unfettered access to the evidence, and present the
expert and/or the expert’s report at the hearing. They chose not to call the expert
or submit a report. The court concludes that no prejudice has been shown.
Similarly, no prejudice has been shown with respect to Owens’s claim that
his trial counsel did not consult a pathologist. The conclusions of the pathologist
do not appear to be subject to legitimate dispute and no contrary evidence has been
submitted.
Owens also faults his trial counsel for failing to consult a crime scene expert.
Because Owens was not identified until more than a year after the homicide, there
is little that such an expert could have examined first hand. The expert could have
criticized the police preservation or investigation of the scene, but the evidence
showed that the scene was chaotic and difficult to control. Again, no prejudice has
been shown.
E. Pretrial Litigation
1. Counsel of Choice
D. Wilson, King, and Middleton were initially assigned to represent Owens.
D. Wilson stopped actively representing Owens in October of 2006 when he was
22

 appointed State Public Defender. Owens advances three arguments: (1) D. Wilson
failed to comply with any requirements for withdrawal; (2) D. Wilson’s departure
violated Owens’s right to continued representation by counsel of choice; and (3) D.
Wilson withdrew on account of a personal conflict of interest.
a. Withdrawal
The court must give an attorney permission to withdraw from representing a
client. See generally People v. Schultheis, 638 P.2d 8 (Colo. 1981). In some
scenarios, “a written substitution of counsel is filed which is signed by current
counsel, future counsel and the defendant.” Crim. P. 44(d)(1). Here, a state
commission appointed D. Wilson as State Public Defender. D. Wilson elevated
King to Chief Trial Deputy, substituted King for himself on the team, and assigned
Kepros to fill King’s role as second chair. With Owens present, King made a
record about D. Wilson’s departure and the necessity for Kepros’s substitution in
October of 2006. Owens did not voice any concerns. Owens was also present
when King argued for a continuance of the trial because Kepros had only recently
been assigned to the case.

Again, Owens did not object.

Under these

circumstances, it can reasonably be inferred that Owens was apprised of the
circumstances involving D. Wilson’s departure. In the court’s view, the records
made by King together with Owens’s silence is evidence that neither D. Wilson,
King, Kepros, nor Owens would have withheld their consent to the substitution of
counsel. As such, the court perceives no error under either Crim. P. 44 or Colo.
RPC 1.16(c).
b. Continued Representation by Counsel of Choice
While an indigent defendant has a constitutional right to appointment of
counsel, Gideon v. Wainwright, 372 U.S. 335, 345 (1963), s/he does not have a
right to demand a particular attorney, People v. Arguello, 772 P.2d 87, 92 (Colo.
23

 1989). But once an attorney is appointed, the attorney-client relationship is no less
inviolable than if counsel had been retained. People v. Harlan, 54 P.3d 871, 878
(Colo. 2002). Indeed, an indigent defendant has a presumptive right to continued
representation by counsel of choice. Id.
Contrary to Owens’s assertion that D. Wilson was clearly was Owens’s
counsel of choice, the record is devoid of any evidence that Owens objected to D.
Wilson’s departure or to King assuming the role of lead counsel. Owens did not
put the trial court on notice that he did not understand why D. Wilson was no
longer working on his cases or that he was dissatisfied with King or Kepros. In
addition, Owens presumably consulted with his appellate counsel yet did not claim
on appeal that D. Wilson’s departure deprived him of his right to continued
representation by counsel of his choice. That Owens now claims for the first time
that he would have objected to D. Wilson’s departure if D. Wilson had consulted
with him appears to be a contrived argument. Cf. Anaya v. People, 764 P.2d 779
(Colo. 1988) (no indication defendant acquiesced to replacement counsel when he
continually renewed his objection to the disqualification of his original counsel).
State appointed lawyers are often replaced when, for example, they leave the
Public Defender’s office, die, become infirm, or retire. Those who choose to leave
their public office or accept a promotion have a liberty interest to do so. No
persuasive authority has been presented which suggests that D. Wilson’s right to
accept the promotion to State Public Defender would be trumped by Owens’s
desire to have him remain as lead counsel, even if such a desire had been timely
expressed.
Because Owens was not denied his counsel of choice, there is no structural
error. Id. at 781-83 (erroneous denial of the right to representation by counsel of
choice is structural error).
24

 c. Personal Conflict of Interest
Owens contends D. Wilson was conflicted because his personal interests in
accepting the appointment as State Public Defender materially limited his ability to
represent Owens. See Colo. RPC 1.7(a)(2) (A lawyer shall not represent a client if
“there is a significant risk that the representation of one or more clients will be
materially limited by . . . a personal interest of the lawyer.”). Owens claims D.
Wilson’s departure is proof that he knew he had a conflict. D. Wilson’s departure
was not an acknowledgment that there was a conflict but was, rather, necessitated
by his assuming responsibility for running a multi-million dollar governmental
agency with hundreds of employees that provides critical services to indigent
citizens. D. Wilson did not leave the trial team due to a personal conflict of
interest.
2. Motion to Continue
Owens contends the motion to continue filed and argued by his trial counsel
was incompetently drafted and argued, which caused him to be deprived of a
much-needed continuance of the trial. He also contends his trial counsel should
have withdrawn from representing him on account of their unpreparedness for trial.
Trial counsel filed a thorough, six-page motion to continue two weeks
before trial in which they set forth in detail why a continuance was necessary.
SOPC.EX.D-1327. Trial counsel represented in their motion that “[i]f Mr. Owens
is required to proceed to trial[,] . . . he will be denied his state and federal
constitutional rights to effective assistance of counsel.” Id. When the motion was
argued in court, Kepros expanded on the reasons set forth in the motion and told
the judge, “if we are unable to render effective assistance of counsel on behalf of
Mr. Owens, I believe this case will not end with the trial this month. This case
won’t end for years and years and years and years.” Hrg Tr. 9:15-18 (Jan. 2,
25

 2007).

And on no less than three occasions during trial, the trial team

supplemented its request for a continuance based on the fact that it had yet to
receive transcripts for witnesses’ prior testimony. See generally Trial Tr. 27-28
(Jan. 9, 2007); Trial Tr. 4 (Jan. 12, 2007); Trial Tr. 115-116 (Jan. 16, 2007); and
Trial Tr. 46 (Jan. 18, 2007).
Kepros testified during the Dayton Street post-conviction hearing that she
did not feel comfortable informing the court that the trial team was unable to locate
or subpoena certain witnesses because she was concerned that the prosecution
would interfere with the team’s efforts to locate those witnesses. She did not list
which experts the trial team had not interviewed, and she did not describe why
interviewing certain witnesses or conducting certain investigation was important.
She also did not fully disclose the extent of her health problems that were limiting
the amount of time she could dedicate to trial preparation, and she did not disclose
that, in her opinion, D. Wilson and King had done minimal work on the case prior
to her assignment to the case.
Owens alleges that trial counsel did not make offers of proof as to the
devastating impact of not having the transcripts with which to impeach the
prosecution witnesses yet he fails to describe how the lack of transcripts
devastatingly affected his defense at trial. Nor does he point to a single missing
transcript that his trial counsel could have used to impeach a witness.
In the end, there may have been additional reasons to support a continuance,
but there is no evidence suggesting that the trial court would have been persuaded
by those additional reasons. In fact, based on the trial court’s affect and rulings in
other situations, King did not believe the trial court would grant the continuance.
He also did not believe that submitting additional material or making further
argument would result in the trial court changing its ruling.
26

 Prior to trial, Kepros suggested that the trial team withdraw from
representing Owens based on the team’s unpreparedness. King seemed to agree
that the team was unprepared. See SOPC.EX.D-2150 (email from King to defense
team in which he says “at the very least [the Lowry Park] trial will help bring us up
to speed on things we need to know for the [Dayton Street] trial”). Yet he
ultimately decided not to move to withdraw.

Again, there is no evidence

suggesting that the trial court would have allowed the trial team to withdraw,
especially in light of the nature of the charges and the impending trial date.
King’s decisions not to further supplement the motion to continue and not to
move to withdraw are entitled to great deference. Owens has failed to prove that
he received ineffective assistance of counsel with respect to the request to continue
his trial. He has also failed to prove that it was ineffective for his trial team not to
move to withdraw.
3. Staffing of the Case
Owens contends he was prejudiced because the Office of the State Public
Defender (OSPD) grossly understaffed his case thereby depriving him of an
adequate and thorough investigation.
D. Wilson was a Chief Trial Deputy when he was assigned as lead counsel
in this case. He was responsible for staffing Owens’s case, and the attorneys he
selected were King and Middleton.

According to D. Wilson, the team was

supplemented at times by Kathleen Moore, who was the head of the OSPD’s
appellate section at the time.

When D. Wilson was appointed State Public

Defender, King was promoted to Chief Trial Deputy and substituted as lead
counsel for Owens. With input from King, D. Wilson selected Kepros as second
chair. Middleton continued to handle motions and jury instructions.

27

 D. Wilson chose two investigators to work on Owens’s cases – Michelle
Lapidow (Lapidow) and John Gonglach (Gonglach). Lapidow was designated as
the mitigation specialist for the Dayton Street case because of her familiarity with
mental health mitigation. Lapidow’s involvement on Owens’s cases diminished in
the fall of 2006 because of her assignment to another pending capital case. But
Gonglach was an experienced investigator who had worked on many first-degree
homicides and on other potential capital cases as a mitigation investigator. As a
result, Gonglach became primarily responsible for all facets of the investigation for
both cases in late 2006. Due to an injury in November 2006, Gonglach was
unavailable for a few weeks leading up to trial.
Three attorneys and an investigator worked on Owens’s case. Owens does
not indicate what investigation those individuals failed to complete or how the lack
of investigation prejudiced him at trial. Thus, Owens failed to prove that he was
prejudiced by the OSPD’s staffing decisions.
4. Motion to Suppress Owens’s Shreveport Statements
Owens argues his trial counsel were ineffective because they did not argue
that his statements in Louisiana were obtained in violation of his Sixth Amendment
right to counsel. The court denied Owens an evidentiary hearing on this claim
because it requires resolution of only a legal issue.
The prejudice prong of Strickland is assessed now – the time at which the
defendant filed his post-conviction petition. See Henderson v. United States, 568
U.S. 266 (2013); People v. Ray, 378 P.3d 772 (Colo. App. 2015). At the time of
the trial, Owens may have had a legitimate argument for suppression under
Michigan v. Jackson, 475 U.S. 625 (1986).

But that case was overruled by

Montejo v. Louisiana, 556 U.S. 778 (2009). Under Montejo, Owens’s Shreveport
statement would be admissible during a retrial. Because prejudice is assessed
28

 under the current law, he was not prejudiced by his trial counsel’s failure to move
to suppress the Shreveport statement.
5. Motion to Change Venue
Owens contends his trial counsel failed to make an adequate record in
support of the motion to change venue. Owens’s trial counsel filed a five-page
motion, elicited testimonial evidence in support of the motion, submitted exhibits
in support of the motion, and addressed the issue in court at least three times. And
after a jury was selected, Middleton tendered to the court additional materials
regarding media coverage, including more than 100 articles that were published in
the three years leading up to trial, and argued that the extensive nature of the
publicity would jeopardize the jurors’ ability to remain impartial:
[T]he coverage of these two cases has been so extensive
and is so interrelated that it does create a great problem
of having an impartial jury in this case. And I would, as
an example, raise Mr. – I believe it was [Juror] Spiers,
who was the last one to speak individually yesterday
afternoon, who indicated at that time that he had
recognized the name of Mr. Marshall-Fields – and this
was on Tuesday afternoon – even though the name had
been raised in the questionnaire on Friday and he had
several days to think about it, some – something on
Tuesday triggered his memory. And it’s our belief that,
due to the nature of the publicity in this case and the
extent of it, that that’s a concern with all the jurors that
have been seated in this case, that there will be events
during this trial that will trigger their memory, that they
will have been exposed to the publicity, and that it will
affect their ability at that time to be fair and impartial in
this case.
Trial Tr. 5:22-25; 6:1-15 (Jan. 10, 2007).
Hower responded that very few jurors had been exposed to publicity about
the case and pointed out that those jurors assured the court and the parties that they
29

 would not let the publicity affect their judgment. Id. at 6:20-25; 7:1. Middleton
did not reply to Hower’s statements. Id. at 7:5-8.
Owens faults Middleton’s decision not to reply to Hower’s argument but
presents no evidentiary basis for such a reply. Without evidence that Hower’s
representations were untruthful or misleading, declining to make an additional
record was reasonable. Trial counsel had already filed a motion, addressed the
issue several times on the record, and submitted evidence in support of the motion.
Trial counsel’s handling of the motion to change venue was not ineffective.
6. Protective Orders
Owens contends his trial counsel were ineffective because they did not
investigate or contest the prosecution’s claims of witness fear, which Owens
claims resulted in unwarranted and highly restrictive protective orders that required
trial counsel to access certain witnesses via the prosecution. The prosecution
responds that Owens, in light of People v. Ray, 252 P.3d 1042 (Colo. 2011), cannot
prove that he was prejudiced by trial counsel’s acquiescence to the protective
orders.
The court entered protective orders based on the prosecution’s
representations that many witnesses formally entered the witness protection
program, left the area out of fear of retaliation for cooperating, or expressed a fear
of retaliation. The protective orders allowed the prosecution to withhold addresses
for the protected witnesses from Owens and his trial counsel.

Because trial

counsel could not contact the protected witnesses, the subpoenas for those
witnesses had to be served by the prosecution, and trial counsel, if they wanted to
interview a protected witness, had to contact the protected witnesses via telephone
at the prosecution’s office.

30

 “To aid the defendant’s right of confrontation, an accused generally has the
right to know a witness’s identity and address.” Ray, 252 P.3d at 1048. But “[t]he
right to know a witness’s identity and address is not absolute.” Id. If a witness’s
personal safety is in jeopardy, “the court must balance the threat to witness safety
against the materiality of the witness’s address and information.” Id. at 1049. In
striking that balance, the court must consider the defendant’s ability to “‘place the
witness in his proper setting’ without learning [the witness’s] address.”

Id.

(quoting People v. District Court, 933 P.2d 22, 25 (Colo. 1997)). If the materiality
of the witness’s address and information outweighs the threat to the witness’s
safety, the prosecution must disclose the witness’s identity and address to the
defense. Id. at 1049-50.
In the Dayton Street case, Owens was accused and convicted of murdering
Marshall-Fields in order to prevent Marshall-Fields from testifying in Ray’s trial
arising from the Lowry Park events. A witness killing case naturally lends itself to
witnesses who are fearful of retaliation. It is difficult to imagine how trial counsel
could have convinced the trial court that the materiality of the witnesses’ addresses
outweighed the threat to the witnesses’ safety after Marshall-Fields was killed. See
generally id. (more than five years after the date of offense, prosecution’s showing
of threat to witnesses’ safety outweighed defendant’s showing of materiality of
witnesses’ addresses). Owens has failed to prove that he was prejudiced by trial
counsel’s acquiescence to the protective orders.
7. Prosecution’s

Proximity

to

the

Jury

Box

and

Audible

Commentary During Trial
Owens contends his trial counsel were ineffective because they did not
object to the prosecution’s private yet audible commentary during the trial, which
could allegedly have been heard by the jury.
31

 Kepros brought to the court’s attention that she could hear the prosecutors
talking to each other at counsel table, and the trial court instructed the prosecutors
to be careful in their conversations:
MS. KEPROS: Judge, I am hearing every word that Ms.
Warren is saying.
She’s commenting on my
performance, the questions I’m asking. She is about four
times closer to the jury than she is to me and she’s
making comments and I’m very concerned the jury can
hear every word that she’s saying, which is basically
providing editorial on the testimony and I would ask that
she be asked to stop talking or at least lower her voice.
MR. HOWER: I know my hearing isn’t so good, but I’ll
say I have not heard that. My hearing isn’t so good.
THE COURT: Mr. Hower, let me just indicate that for
some reason Ms. Warren’s tone is something that carries
very well, not necessarily a bad thing in an attorney, but
nonetheless, her whispers [are] what I would consider to
be stage whispers at best, so she will have to be careful
because I noted through the course of the trial that
oftentimes her comments may not be audible to the court,
but certainly there is an audible nature to them.
MR. HOWER: Okay.
THE COURT: To draw my attention to it.
Trial Tr. 79:17-25; 80:1-11 (Jan. 19, 2007). Thus, not only did Kepros bring this
issue to the trial court’s attention, she convinced the trial court to admonish the
prosecution. The prosecution apparently corrected its behavior because Kepros did
not raise the issue again. There was no need for Kepros to make any additional
record, and therefore, the court concludes that Kepros was not ineffective with
respect to how she addressed the prosecution’s audible commentary during the
trial.
32

 8. Security Methods Employed at Trial
Owens contends he was prejudiced by his trial counsel’s failure to formally
object to the added security checkpoint set up outside the courtroom during his
trial.
A security checkpoint was set up outside the courtroom door during the trial
in this case. Trial Tr. 10:16-18 (Jan. 10, 2007). With the exception of counsel and
their investigators, all individuals were wanded by a sheriff’s deputy as they
entered the courtroom. Id. at 10:18-20. The jury deliberation room was just down
the hall from the courtroom. The jury room has two doors – one leads into the
secure hallway and a second leads into the public hallway. Id. at 9:16-17. Jurors
could use both doors. Id. at 9:23-25. But the trial court instructed the jury to use
the secure hallway:
You were introduced to the back hallway today, that is
for your area, as well, and I would prefer that you use the
back hallway in coming to and leaving the jury room. So
if you would leave that way instead of going out the front
hallway area where, of course, you would have the
possibility of running into people involved.
Id. at 124:11-17.
The record is devoid of an instruction to the jury that the security checkpoint
set up outside the courtroom door was added security for this trial. The record is
also devoid of evidence showing that the jurors observed the added security. Thus
the added security could not have prejudiced Owens and therefore his trial counsel
were not ineffective for not raising the issue again with the trial court.
F. Opening Statement
Owens argues his trial counsel did not present evidence in support of certain
claims made in opening statement – namely that J. Martin or Johnson would be
identified as the person who shot Vann and that Owens was repeatedly punched
33

 and strangled.

Because a discovery reference indicated the possibility that a

witness would say that J. Martin or Johnson was shooting at Lowry Park, it was not
unreasonable for Kepros to make such a claim in her opening. And while there
was no evidence that Owens was repeatedly punched and strangled, there was
evidence that Vann punched Owens right before the shooting, that Green headbutted Ray, and that others were physically confronting them.
Owens also faults Kepros for presenting inconsistent theories of defense
during opening statement. She focused on self-defense but also intimated that
someone else – possibly J. Martin or Johnson – killed Vann. It would have been
difficult for Kepros to have predicted exactly what the evidence would be at trial.
Ray and Owens had been hanging out with J. Martin and Johnson shortly before
the shootings and the discovery suggested that a witness might identify J. Martin or
Johnson as having fired shots. There was, therefore, at least a remote possibility
that the jury could hear evidence from which it might conclude that there were
more than two shooters. By referencing J. Martin and Johnson during her opening,
Kepros kept open a line of argument that the prosecution did not prove beyond a
reasonable doubt that Owens fired the fatal shot.
Kepros did not think that her opening statement was one of her best. It may
not have been. But it did not fall below the standard of competence.
G. Trial Preparation and Handling of Evidence Related to Owens’s
Arrest in Louisiana
The essence of these claims is that Owens’s trial counsel failed to order
transcripts from pretrial hearings in a timely manner.

Aside from the cross-

examinations of Sailor and Johnson, see part III.K.2 of this Order, the prejudice
Owens asserts is that trial counsel were unable to support their mistrial motion
following opening statements. During opening, the prosecutor mentioned that
34

 Owens was arrested in Louisiana. Because they did not have the pretrial hearing
transcript, trial counsel could not dispute the prosecutor’s and trial court’s
recollection that the court had excluded evidence of the circumstances of the arrest
in Louisiana but not the mere fact that the arrest occurred on Louisiana. Owens
has not supplied this court with evidence that the trial court’s recollection was
inaccurate, and even if trial counsel’s recollection of the order of exclusion were
accurate, the reference in the prosecutor’s opening was innocuous. The trial court
would not have granted a mistrial. Because the court would not have granted a
mistrial, Owens was not prejudiced.
H. Introduction of Testimony Regarding Gang-Related Shooting and
Testimony Regarding Propensity of Owens to Possess Firearms
Defense attorneys commonly exercise a certain degree of discretion when
objecting. A failure to object must be viewed in light of the totality of the evidence
at trial. The defense objected more than 100 times at trial. When viewed as a
whole, the defense was diligent in their effort to prevent inadmissible and harmful
evidence from being admitted at trial and to keep the prosecution’s style of
examination within the proper boundaries.
Trial counsel successfully urged the trial court to exclude evidence of gangs,
but the trial court denied their request to redact a 911 call in which the caller
speculated that the shooting might be gang related. Owens faults his trial team for
failing to contemporaneously object to the 911 call.

But a contemporaneous

objection at the time the call was admitted might have had the effect of
highlighting, and possibly validating that suspicion.
The defense objected to the prosecutor’s attempts to elicit evidence that
Owens habitually carried a gun.

With Jones, the prosecutor’s attempts were

unsuccessful. In essence, Jones testified that Owens was not that kind of man.
35

 And Johnson was equivocal about whether Owens carried a gun. It may not have
been wise to further highlight whether Owens typically carried a gun. No evidence
suggested that Owens carried a gun unlawfully, and it could not be reasonably
disputed that he had a gun when the Lowry Park events occurred. Some jurors
look unsympathetically upon those who deliberately seek out a gun, load it, and
bring it to an encounter – only to then claim self-defense.
Substantial deference should be afforded to trial counsel’s tactical decisions
regarding objections.

Trial counsel’s handling of this evidence was not

unreasonable.
I. Jamar Johnson Interview Tape
The essence of this claim is that trial counsel did not adequately prepare for
Johnson’s cross-examination by studying the content of the police interview. The
cross-examination of Johnson was more than adequate. See part III.K.2 of this
Order.

Any additional impeachment that could have been attempted with

information derived from studying the interview would have minimal. Because no
prejudice has been shown, there is no further need to address this claim.
J. Police Investigation
Owens argues his trial counsel should have impeached the allegedly poor
police investigation of the Lowry Park crime scene, of witnesses, and of potential
suspects. As the court has discussed above, trial counsel made a competent and
reasonable, strategic decision to argue Owens acted in defense of Ray and in selfdefense. In light of that decision, the court questions how impeaching the quality
of the police investigation on the basis that the APD did not develop other potential
suspects would have furthered the defense of Ray/self-defense argument.
Owens’s arguments about the preservation of the crime scene, interviews of
witnesses, and investigation of potential suspects are unpersuasive.
36

Law

 enforcement and lay witnesses alike testified at trial about the chaotic nature of the
crime scene after the shootings occurred. People ran to their cars and fled as soon
as they heard gunshots. Some people refused to talk with the police. Others
refused to give their names to the police. Despite those circumstances, T. Wilson
made significant efforts to investigate. Again, many people were unwilling to
cooperate with the investigation. The defense would have been ill advised to
question T. Wilson about the difficulties he encountered while trying to investigate
this case.

Only damaging evidence would have flowed from that line of

questioning – most notably, T. Wilson’s accounts that witnesses did not want to
cooperate out of fear that they would be ostracized, harmed, or killed for
cooperating with the police.
Owens’s argument that his counsel should have exposed the government’s
failure to conduct DNA testing on the blood on Vann’s clothing is without merit.
This, again, is an argument that seems premised upon an alternate suspect theory.
K. Cross-Examination and Impeachment of Witnesses
1. Kimberly Bellanger
Kimberly Bellanger (Bellanger) admitted at trial that she, together with
Carter, Sr., rented motel rooms on July 4, 2004, in an effort to harbor Ray and
Owens from the police. There was no need and nothing to be gained attempting to
impeach Bellanger with the fact that she was given immunity to testify, because
her testimony was corroborated by Sailor, Jones, and the disinterested motel clerk.
2. Jamar Johnson and Latoya Sailor
Owens asserts that trial counsel inadequately impeached Sailor and Johnson.
The record does not support the claim. The teaching of Strickland and its progeny
is that it is inappropriate for the reviewing court to second-guess trial counsel –
particularly when, as with these two witnesses, they did a good job.
37

 Appropriate cross-examination depends upon what the cross-examiner is
trying to achieve with a witness. Trial counsel developed substantial parts of their
defense through Johnson and Sailor. Trial counsel needed to walk a fine line.
They wanted to demonstrate that these witnesses had a strong incentive to shade
their testimony toward the prosecution without devaluing the parts of the testimony
that were favorable to the defense. They did so in textbook fashion. With each
witness, they reinforced the favorable testimony that had come out on direct;
expanded and emphasized that testimony; and emphasized the available
impeachment that would underscore the witnesses’ need to please the prosecutors –
essentially, that each witness had received a favorable plea deal and might face
lengthy prison time if the prosecution revoked their deals. While there may have
been additional material available for impeachment, its use would create a risk of
being counterproductive.
A cross-examiner must always be mindful of the risks that certain forms and
methods of impeachment might entail.

When possible, one wishes to avoid

diminishing the credibility of the favorable admissions that have been elicited.
Except in rare instances, one must also be careful not to appear to be unnecessary
bullying the witness. With witnesses like Johnson and Sailor, the purpose of the
cross-examination and impeachment is usually to demonstrate to the jury that even
when shading their testimony favorably for the prosecution, these witnesses still
had to acknowledge certain facts that are favorable to the defense – facts that
should therefore be viewed as indisputable.
Through Sailor, trial counsel elicited these favorable facts, among others:
• Owens was Ray’s closest friend.

38

 • Ray did not usually drink and could not hold his liquor. He came to
the park and, due to the alcohol he was drinking, was being verbally
obnoxious.
• Sailor called Owens to come get Ray.

In her phone call, Sailor

expressed that Ray was in urgent need of protection against a mob that
was on the verge of assaulting him. Her best memory was that her
words included, “[Owens], you need to get down here, get your boy.
He drunk, he acting a fool, he talking shit to people, and he going to
get his ass whooped.” Trial Tr. 126:5-7 (Jan. 18, 2007).
• Owens calmed Ray down for a time.
• When Sailor was trying to leave and asked people to move, someone
yelled, concerning her and the other women in her car, “Fuck them
bitches.” Id. at 142:10. Ray responded, saying, “They ain’t gonna
move, run them motherfuckers over.” Id. at 256:21-24.
• The crowd grew loud and angry.
• Ray was totally outnumbered.
• Johnson and J. Martin were also present. Neither they nor anyone else
came to Ray’s aid, other than Owens.
• Ray and Owens kept backing toward Ray’s Suburban.
• The crowd kept advancing and it looked like the crowd was going to
beat them up.
• Someone may have snatched Ray’s neckless off.
• Many in the mob were drinking alcohol, smoking marijuana, and
ingesting ecstasy.
• Owens, himself, never did or said anything to insult or anger the mob,
other than to lift his shirt to show the mob that he was armed.
39

 • A big, aggressive man in yellow and black was beating on his chest
and provoking Owens to get into a fight.
• Even after Ray and Owens showed their guns, the crowd kept
advancing on them.
Through the cross-examination of Johnson, the defense was able to
establish, among other favorable facts, that:
• Many in the mob were likely armed with guns.
• Owens and Ray were greatly outnumbered.
• Some in the crowd had expressed both verbally and by their actions,
their intent to fight.
• The mob kept advancing, even after Owens and Ray showed that they
had weapons.
• Owens did not remove his gun from his waist until Vann had attacked
him and punched him in the face.
Cross-examination is not the only way to effectively minimize the adverse
effect of evidence. Other methods are sometimes stronger and less risky. Among
them are seeking to have the harmful evidence excluded and stressing other more
persuasive evidence.
Trial counsel sought to exclude Sailor’s testimony that, at their home after
the shootings, Ray had berated Owens for shooting Vann rather than shooting into
the air.

The defense made a strong albeit unsuccessful argument that Ray’s

statement should be excluded. They argued that it did not conform to any wellestablished hearsay exception and that it violated the United States and Colorado
constitutions as articulated in Lilly v. Virginia, 527 U.S. 116 (1999), People v.
Vigil, 127 P.3d 916 (Colo. 2006), and People v. Dement, 661 P.2d 675 (Colo.

40

 1983). After failing to exclude the hearsay evidence, trial counsel attempted to
minimize its effect by eliciting evidence to impeach Ray. 4 They elicited that:
• although he berated Owens for shooting Vann rather than shooting
into the air, Ray did not, himself, shoot into the air;
• Ray shot two people; and
• when berating Owens, Ray’s real concern was self-centered. Ray was
primarily concerned about the trouble that he would encounter
because he, unlike Owens, would be readily identified.
Such evidence put the defense in a position to argue that Ray was doing
nothing more than attempting to blame Owens for the consequences of Ray’s own
drunken misconduct. Trial counsel focused on impeaching Ray instead of Sailor,
and that was not an unreasonable tactic.
Johnson testified that after the first shot Vann fell to the ground and Owens
shot several more times into Vann’s fallen body. But strong evidence contradicted
this harmful aspect of Johnson’s testimony. The pathologist testified that Vann
was shot only two times. The police used a metal detector to sweep the area where
Vann had fallen and found no additional spent bullets. In fact, in their closing
argument, 5 the prosecution conceded that Owens only shot Vann twice. Memories

4

When faced with potentially damaging hearsay evidence, counsel must often decide whether it
is more efficacious to attempt to impeach the witness, the declarant, or both. Attempting to
impeach both has so much potential to undermine the credibility of defense counsel that it is
generally not a wise choice. Counsel can attempt to impeach the witness in the hope that the jury
will doubt whether the declarant’s statement was actually made or was accurately reported. Or,
as in this case, they can attempt to minimize the impact of the hearsay by impeaching the
declarant.
5
The prosecutor argued,
Recall Jamar Johnson said he sees that first shot, Greg falls
to the ground, he says Owens stands over him and empties the gun
into him.

41

 of many witnesses regarding the timing of shots were arguably consistent – they
heard two batches of shots, each in quick succession. That would be consistent
with two shots by Owens, then a delay while he tried to get to and into the
Suburban, followed by several shots by Ray. The defense was in a position to
argue that both the physical evidence and the witnesses’ memories were
inconsistent with Johnson’s version of one shot – then a passage of time while
Vann fell – then the cold-blooded firing of multiple shots into Vann’s fallen body.
3. Brandi Taylor
Owens asserts that the cross-examination of B. Taylor was ineffective. The
record does not support the claim. B. Taylor was the girlfriend of Ray’s brother,
Dumas Brown (Brown), at the time of these events. She testified that Ray called
her on the night of July 4, 2004, and asked her to clean out her garage. He and
Owens arrived and parked the Suburban in the garage. They then brought heavy
speakers into the house and put them in her closet. She did not pay attention to
what they were doing because she had remained in the house. A couple weeks
later, she got Brown to get Ray to move the Suburban out of the garage, and
several months later, she sold the speakers.
On cross-examination, trial counsel elicited that, when her memory was
fresher, she submitted to a long interview with the police and told them that it was
only Ray who brought the Suburban to her house and that Ray alone had moved
the speakers into the house. They also elicited her opinion that Sailor was a liar.
The cross-examination was effective.

We know he’s only shot once. It’s unlikely that he would
have missed from that close range. Different people saw and heard
different things.
Trial Tr. 86:19-24 (Jan. 25, 2007).

42

 4. Detective Thomas Wilson
a. Police Investigation
Part III.J of this Order is incorporated as though fully set forth herein.
b. Testimony about the Video
Owens asserts that trial counsel should have objected to APD Detective
Thomas Wilson’s (T. Wilson) testimony about the video evidence of some of the
events leading up to the shootings at Lowry Park. The video did not capture the
shootings.
The jurors saw the video. Its poor quality would have been obvious to them.
They would have realized that T. Wilson’s opinion that Owens can be seen on the
video was based on witness descriptions. While an inadmissible opinion objection
to the identification might have been sustained, it would have served no useful
purpose. After the ruling, a proper question would have then directed the jury’s
attention to the slim, tall man with braids wearing a white t-shirt, blue jeans, and a
white hat. The video shows that the man lifted his shirt in a way that would have
exposed a handgun if there were one in his waistband. The defense did not dispute
that Owens displayed his handgun. Its position was that Owens did not do this to
menace but to dissuade the crowd against further aggression. The video is not
inconsistent with that position.

Because there was no harm in T. Wilson’s

testimony, there was no reason for trial counsel to have objected.
c. Statements by Marshall-Fields to T. Wilson
Marshall-Fields told T. Wilson that he saw Ray and Owens earlier in the day
at Lowry Park, and T. Wilson recounted as much at trial. But the evidence
established that Owens did not arrive at Lowry Park until the evening. And (1) T.
Wilson was merely repeating what Marshall-Fields had told him; (2) the
prosecution did not stress this aspect of the testimony in closing – on the contrary,
43

 they stressed that Owens came in response to Sailor’s call; and (3) competent
defense counsel would generally want to avoid unnecessarily impeaching the
words of a shooting victim who was now deceased. Owens has not shown that he
was prejudiced by trial counsel’s tactical judgment not to impeach MarshallFields’s statements to T. Wilson.
L. Testimony Concerning Uncooperative Witnesses
Owens contends his trial counsel were ineffective because they did not
object to testimony at trial that witnesses were uncooperative with law
enforcement’s investigation of the Lowry Park shootings. That witnesses were
uncooperative with the investigation was relevant and any objection would have
been overruled.
M. Presenting a Defense Case and Introducing Favorable Evidence
1. Testimony that Someone other than Owens was the Shooter
In light of trial counsel’s reasonable choice of defense strategy, trial counsel
would have no rational reason to present witnesses who might have identified
someone else as the individual who shot Vann.
2. Testimony from Expert Witnesses
Part III.D.3 of this Order is incorporated herein.
3. Annetta Vann’s Testimony
Annetta Vann was Vann’s mother, and she testified at trial that she saw
Owens at Lowry Park earlier in the day. But her description was not consistent
with Owens’s appearance. One must be careful when cross-examining the mother
of a homicide victim. It was not in the best interest of the defense to impeach her
through cross-examination. Rather, it was best to allow the jury to believe that she
mistakenly identified someone else as Owens.

44

 N. Prosecution’s Opening Statement and Closing Argument
Owens identifies several portions of the prosecution’s opening statement and
closing argument which he asserts were improper. He also argues his trial counsel
were ineffective because they failed to object. With the two exceptions 6 discussed
below, the prosecutor’s statements were not improper and therefore there was no
reason for trial counsel to object.
“[T]he primary purpose of an opening statement is to provide the jury, in
brief, outline form and without argument, a preview of what counsel expects to
show by the evidence he intends to present.” People v. Barron, 578 P.2d 649, 650
(Colo. 1978). And in closing arguments, prosecutors may argue the facts admitted
into evidence and any reasonable inferences drawn therefrom. Domingo-Gomez v.
People, 125 P.3d 1048, 1048 (Colo. 2005). “[A]rguments delivered in the heat of
trial are not always perfectly scripted . . . [so] reviewing courts accord prosecutors
the benefit of the doubt where remarks are ambiguous or simply inartful.” People
v. McBride, 228 P.3d 216, 221 (Colo. App. 2009) (internal citations and quotations
omitted).
1. Bolstering and Vouching for Witnesses
Owens takes issue with the prosecutors’ references to the witnesses’ plea
agreements.

He claims those references improperly bolstered the witnesses’

credibility.
Improper vouching occurs when a prosecutor indicates s/he has a personal
belief in a witness’s credibility or implies that s/he has special knowledge of facts
unavailable to the jury. People v. Coughlin, 304 P.3d 575, 582 (Colo. App. 2011).
However, a prosecutor may elicit testimony regarding plea agreement provisions
6

See Deliberation Requirement in part III.N.6 of this Order and Duty to Convict in part III.N.7
of this Order.

45

 requiring the witness to testify truthfully. Id. Such boundaries allow the jury to
assess the witness’s credibility with all of the pertinent factors surrounding the plea
agreement. Id. Prosecutors must also refrain from arguing that witnesses were
given favorable plea agreements because the witnesses were telling the truth.
Nevertheless, written plea agreements are often self-serving because they require
the witness to give truthful testimony.
The prosecution in this case specifically asked the jury to closely scrutinize
the testimony of the witnesses who were given favorable plea agreements and to
identify the evidence that corroborates those witnesses’ testimony:
Ms. Warren, in her jury selection, or what we
called voir dire, yesterday addressed a little bit about how
you’re going to hear witnesses in this case have been
given plea agreements that have been – that the people
have made favorable plea agreements with them in
exchange for their truthful testimony in this trial and that,
because of that, you might scrutinize their testimony
more closely.
And I would ask you to do so. In fact, I would
encourage you to do so . . . .
But what you will notice about their testimony – I
think is a better way to say it – is that it is corroborated;
it’s corroborated by the testimony of other witnesses that
didn’t receive favorable plea agreements, and it is
corroborated by the physical evidence in this case.
Trial Tr. 69:23-25; 70:1-17 (Jan. 10, 2007). The prosecutor reiterated the same in
closing argument:
If you don’t like the fact they got a deal, that they
got a plea bargain, hold that against me. I made these
deals. I made those decisions. If it takes giving a thief a
break, if it takes giving an accessory a break in order to
get them to share their information to solve a murder like
this one and catch a murderer like that one, I’ll do it
every day of the week. Don’t throw the baby out with the
46

 bath. Scrutinize their testimony. Does it make common
sense, common sense to you? Is it corroborated by other
things? Very easy to say you can’t believe them, they got
a deal, DA bought their testimony.
You heard what the agreement was. They had to
make themselves available, had to accept subpoenas, they
had to testify truthfully.
You determine whether they met that last one, I
guess. Apply your reason and common sense to that.
Trial Tr. 91:4-19 (Jan. 25, 2007). There is nothing wrong with a prosecutor asking
the jury to scrutinize certain witnesses’ testimony.
Owens’s remaining claims that the prosecution improperly vouched for
witnesses’ credibility (both law enforcement and lay witnesses) and bolstered the
other prosecutors’ credibility are without merit and do not warrant additional
discussion.
2. Appealing to Fear and Sympathy
The prosecution used their opening statement and closing argument to
explain why it took law enforcement over a year to identify Owens as the
individual who killed Vann by offering reasons why witnesses were reluctant to
cooperate, namely their fear of Ray and/or Owens. Evidence that witnesses were
afraid to cooperate was admitted at trial so it was available for closing argument.7
The court does not view the prosecutor’s opening comments as anything other than
a preview of the evidence or their closing comments as anything other than
reasonable argument. There was no reason for trial counsel to object.

7

See People v. Villalobos, 159 P.3d 624, 630 (Colo. App. 2006) (“[E]vidence of a witness’s fear
of retaliation is admissible to explain his or her . . . reluctance to testify.”). But see People v.
Trujillo, 338 P.3d 1039, 1053 (Colo. App. 2014) (gang expert’s “snitch” evidence offered to
explain reluctance to testify was unduly prejudicial).

47

 Owens also argues the prosecution’s characterizations of the victims as “real
people,”8 “good citizens,”9 and “courageous young men” 10 were improper. “[I]t is
impermissible for a prosecutor to use arguments calculated to inflame the passions
or prejudice of the jury.” People v. Dunlap, 975 P.2d 723, 758 (Colo. 1999). As
the court finds in part IV.B.4 of this Order, the prosecutor’s argument humanized
the victims in a way that did not rise to the level of impermissibly inflaming the
passions of the jury.
3. Describing Self-Defense
Owens argues that the prosecutor improperly shifted the burden of proving
that he acted in self-defense when the prosecutor argued to the jury,
The affirmative defense of self-defense means that the
defendant is saying even if I committed all of the acts
that I’m charged with, even if I – if the evidence proves
all of the other elements of these crimes, I’m not guilty, I
committed no crime because I was justified in killing and
attempting to kill.
Trial Tr. 74:21-25; 75:1 (Jan. 25, 2007). Owens also argues the prosecution
misstated the law when it remarked that (1) Vann was not armed, (2) Owens was
not attacked before he fired his gun, (3) Owens could not have acted in selfdefense because he was taller than Vann, and (4) neither Ray nor Owens was
injured.

The court reviewed the prosecution’s opening statement and closing

argument, and does not deem any of these comments as a misstatement of the law.
The prosecution did not say that it was Owens’s burden to prove that he was
justified when he acted or that Owens would be justified to use physical force only

8

Trial Tr. 98:23 (Jan. 25, 2007).
Trial Tr. 90:10 (Jan. 25, 2007).
10
Trial Tr. 64:12-13 (Jan. 25, 2007).
9

48

 if he had been attacked first. Rather, the prosecution argued that certain facts
militated against self-defense.
4. Defining Complicity
The prosecutor remarked in opening statement, “[b]ut what you will know,
after hearing all the evidence in this case, beyond a reasonable doubt, is that the
defendant is legally accountable for the attempted murder of Javad and Elvin under
the rule of complicity.” Trial Tr. 64:17-21 (Jan. 10, 2007). This remark does not
suggest, as Owens urges, that the prosecution was relieved of its burden of proving
the mens rea beyond a reasonable doubt for the attempted murders of MarshallFields and Bell.
5. Jury Urged Not to Follow Jury Instructions
The prosecutor said in closing argument, “[the jury instructions are] intended
to assist you.

They’re intended to explain things and clear up confusion.

Sometimes, I fear, they may engender more confusion than assistance.” Trial Tr.
70:21-23 (Jan. 25, 2007). The prosecutor then moved on to a discussion about the
charges against Owens. His remarks were made in passing, did not appear to
suggest that jurors would be justified in failing to follow the court’s instructions,
and did not have an adverse effect on the jury.
6. Deliberation Requirement
“The term ‘after deliberation’ means not only intentionally but also that the
decision to commit the act has been made after the exercise of reflection and
judgment concerning the act. An act committed after deliberation is never one
which has been committed in a hasty or impulsive manner.” C.R.S. § 18-3-101(3).
The prosecutor misstated the law when he said during closing argument that the
time necessary for deliberation can be simply “the time necessary for one thought
to follow another.” Trial Tr. 95:2-3 (Jan. 25, 2007). Had trial counsel objected
49

 and/or requested a curative instruction, the objection would have been sustained,
that portion of the argument would have been stricken, and a curative instruction
would probably have been given. But the jury instruction given in this case
correctly stated the law. This prosecutorial misstatement has been considered by
the appellate courts. When the jury instructions accurately state the law, this
misstatement is not grounds for a new trial. See People v. Grant, 174 P.3d 798,
810-11 (Colo. App. 2007) (prosecutor’s misstatement of the definition of “after
deliberation” as the time necessary for “one thought to follow another” was not
plain error because the jury instructions accurately defined “after deliberation.”).
7. Duty to Convict
“[E]xhort[ing] the jury to do its job” is improper. United States v. Young,
470 U.S. 1, 18 (1985) (internal quotations omitted). “[T]hat kind of pressure . . .
has no place in the administration of criminal justice.” Id. “Prosecutors may not
pressure jurors by suggesting that guilty verdicts are necessary to do justice for a
sympathetic victim.” McBride, 228 P.3d at 223. In McBride, the prosecutor asked
the jury to “do justice for other strangers,” which the Attorney General conceded
was an ill-advised argument. Id. The Colorado Court of Appeals condemned the
prosecutor’s plea to the jury to do justice on behalf of the victim and the victim’s
family. Id.
In opening statement, the prosecutor in this case said,
After hearing all the evidence in this case and
receiving the instructions at the end of the evidence, it
will be your duty to find the defendant, Sir Mario Owens,
guilty of all of the charges against him.
Trial Tr. 71:11-14 (Jan. 10, 2007).
This theme was revisited in closing argument,
The evidence has proven each of those elements beyond
a reasonable doubt. It’s your duty to hold him
50

 accountable by finding him guilty of the first degree
murder of Greg Vann, the attempted first degree murder
of Jeremy Green, the attempted first degree murder of
Elvin Bell, the attempted first degree murder of Javad
Marshall-Fields, and the first degree assault of Javad and
of Elvin.
Trial Tr. 103:1-8 (Jan. 25, 2007). Because the prosecutor linked the jury’s duty to
convict to the evidence, this portion of the argument was not improper. But then
the prosecutor went on to suggest that the function of the jury is like the function
of the police – not to release Owens:
Ladies and gentlemen, Elvin, Jeremy, and Javad
never let go. They didn’t let him get away. They and
those outstanding officers found him in his hideout. They
took hold of him and they didn’t let go. They brought
him to you. Ladies and gentlemen, don’t you let him get
away, don’t you let go.
Id. at 103:9-14. It is the view of this court that this portion of the argument
suggests an erroneous starting point for the jurors in their deliberative process. An
accused enjoys the presumption of innocence. It is the duty of the jury to “let the
accused go” unless the evidence proves him guilty beyond a reasonable doubt.
However, the jury was properly instructed as to the presumption of innocence and
the burden of proof, and the jury is presumed to have followed the instructions.
While trial counsel might have objected and the objection might have been
sustained, neither the closing argument nor trial counsel’s failure to object was so
prejudicial to Owens as to warrant relief.
8. Louisiana Arrest
Owens moved to suppress evidence surrounding his arrest in November,
2005, in Shreveport, Louisiana. The trial court ruled that that evidence “will
essentially not be permitted unless there is established that concept of the open
51

 door that is understood under the law.”

Hrg Tr. 71:20-23 (Nov. 8, 2006).

Evidence of Owens’s conduct at the time of his arrest could have inflamed the jury.
The court precluded the prosecution from eliciting the circumstances surrounding
the arrest, but did not preclude the prosecution from discussing the fact that Owens
had been arrested in Louisiana. Thus, the prosecutor’s reference to Owens’s arrest
during opening statement did not violate a court order.
9. Dehumanizing Owens
Owens argues the prosecutor improperly referred to him as a “killer” during
closing argument. As the court finds in part IV.B.4 of this Order, “killer” was used
to describe the individual who shot and killed Vann as opposed to the
“accomplice” who shot and injured Marshall-Fields and Bell. The prosecutor’s use
of that term did not constitute misconduct.
10. Denigrating Owens’s defense and burden shifting
In response to defense counsel’s rhetorical questions posed to the jury during
closing argument, the prosecutor suggested in rebuttal that the jury should question
trial counsel’s actions:
Now you have to consider the defense has no
burden in any case, right?
But when they choose to admit certain items of
evidence, you have to scrutinize those items the way that
you scrutinize anything in a case.
So, what’s the job of the defense attorney if they
don’t have any burden? The burden rests entirely on the
People to prove beyond a reasonable doubt all of the
charges. What’s their job? Well, their job is to do exactly
what Mr. King did in his closing argument. Their job is
to make a pitch to you for an acquittal, to try to inject
doubt, because if there’s a reasonable doubt, you have to
acquit. So you have to consider why do they do certain
things.

52

 Trial Tr. 152:3-15 (Jan. 25, 2007).

Later, the prosecutor again responded to

rhetorical questions,
Mr. King questions why, oh, why does the number
of wounds that we know occurred in this case not match
the number of bullets or the number of shell casings.
Well, Alan Hammond told you a number of
reasons why that can be true. Sometimes you just can’t
find all of the evidence at a crime scene because it is the
kind of evidence that disappears.
But by asking that question, he’s trying to inject
doubt. You have to consider what’s the conclusion
supposed to be from that? That Elvin Bell wasn’t shot
that many times? That Javad Marshall-Fields wasn’t
shot? That Gregory Vann wasn’t shot? That there really
wasn’t a shooting in this park?
Id. at 153:16-25; 154:1-3.
It is improper for a prosecutor to denigrate the motives or responsibilities of
defense counsel. But in rebuttal, a prosecutor is “allowed considerable latitude in
responding to defense counsel’s arguments.” People v. Salyer, 80 P.3d 831, 839
(Colo. App. 2003). Here, the prosecutor’s comments may have been inartful, but
they did not denigrate the defense.
11. Arguing facts not in evidence
While it is improper for a prosecutor to argue facts not admitted into
evidence, People v. Davis, 280 P.3d 51, 53-55 (Colo. App. 2011), a prosecutor in
rebuttal is “allowed considerable latitude in responding to defense counsel’s
arguments[,]”Salyer, 80 P.3d at 839. In this case, defense counsel pointed out
during closing argument that the prosecution did not produce numerous witnesses
who were mentioned during trial. Defense counsel argued the prosecution’s failure
was tantamount to reasonable doubt. See Trial Tr. 139-141 (Jan. 25, 2007). In
rebuttal, the prosecutor explained that those witnesses were not called because they
53

 would have provided cumulative or irrelevant information. Id. at 154:8-11. The
court is not convinced that the prosecutor argued facts not in evidence. The
remarks fall within the considerable latitude afforded by Salyer to respond to trial
counsel’s closing argument.
O. Conclusion as to Trial Counsel’s Performance
Among many other things, this court has considered extensive designated
excerpts from the testimony of King and Kepros at the 32.2 hearing in the Dayton
Street case and their testimony at the 35(c) hearing in this case. Despite the
diligent and professional efforts of three excellent and experienced criminal
defense lawyers, they were not as prepared as they would have liked to have been.
There were lines of investigation, which might have proved useful, that they did
not have the time or resources to pursue. But the issue for this court to resolve is
not whether the defense provided was up to the level that these lawyers would have
liked or whether it was up to the high standard to which the Colorado State Public
Defender’s office strives in a case that might serve as an aggravator in a
subsequent death penalty case. The issue for this court is whether the defense
provided was constitutionally adequate. It most certainly was.
IV. Direct Appeal Counsel’s Performance
The principles of law set forth in part III.C of this Order are incorporated
herein.
A. Overview, staffing, and diligence
The Office of Alternate Defense Counsel (ADC) generally assigns one
lawyer to pursue the direct appeal of a first-degree murder conviction that does not
result in the death penalty. In this case, because Owens faced the death penalty in
his other case, ADC assigned a team that originally consisted of four experienced

54

 appellate lawyers. The team was later reduced to three. This team constitutes
Direct Appeal counsel.
One of the attorneys had done around two hundred Colorado criminal
appeals, another had done several dozen, and one was a national death penalty
expert at the time they represented Owens. In order to adequately develop issues
and remain within the word limit imposed by the appellate court, attorneys exercise
their professional judgment to select some issues and disregard others. Each of the
attorneys read the entire record independently and noted possible issues for appeal.
They conferred several times in person, by phone, and via email. They initially
noted roughly forty potential issues and ultimately settled upon twelve, which they
thought had the best potential for success on appeal. They submitted an opening
brief on November 10, 2010, (the “Rejected Brief”) that contained about 40,000
words. The Colorado Court of Appeals rejected it on January 31, 2011, because it
exceeded the 9,500-word limit. In its Order rejecting the brief, the Colorado Court
of Appeals set the limit at 20,000 words. Direct Appeal counsel streamlined the
Rejected Brief without abandoning or unduly minimizing any issue and submitted
an amended brief (the “Opening Brief”) of more than 24,000 words on March 3,
2011. The Court of Appeals accepted the Opening Brief, which framed the issues
for appeal. Owens’s convictions were affirmed on July 26, 2012. People v.
Owens, No. 07CA895, 2012 WL 3031232 (Colo. App. July 26, 2012) (not
published pursuant to C.A.R. 35(f)), cert. denied, No. 12SC810, 2013 WL
4426399 (Colo. Aug. 19, 2013).
The staffing and diligence of Direct Appeal counsel more than met the
competency standard. The Opening Brief was generally very good. But as to the
first Strickland prong, there was one issue which they should have yet did not raise
– the DeBella issue (see part IV.D of the Order). It is clear, however, that the
55

 second prong of Strickland has not been met as to the DeBella issue or any of the
other claims raised in the petition regarding the direct appeal.
B. Issues not selected
Owens’s primary assertion is that there were other issues that should have
been asserted on appeal and that the failure to assert them resulted in the waiver of
potentially valid grounds for reversal. But “[a]ppellate counsel is not required to
raise on appeal every nonfrivolous issue a defendant desires to raise.” People v.
Trujillo, 169 P.3d 235, 238 (Colo. App. 2007). “[O]nly when ignored issues are
clearly stronger than those presented, will the presumption of effective assistance
of counsel be overcome.” Id. (quoting Ellis v. Hargett, 302 F.3d 1182, 1189 (10th
Cir. 2002)).
With the exception of the DeBella issue (see part IV.D of the Order), the
evidence suggests that Direct Appeal counsel spotted the issues discussed below
and made the professional judgment that each had less potential for reversal than
the issues raised in the Opening Brief. As to each issue, the exercise of judgment
was sound and reasonable and did not fall below the Strickland competency
standard. This court has considered the testimony of the experts, reviewed the
exhibits, the arguments, and the trial record. This court agrees with Direct Appeal
counsel that none of the other issues appear to have had a higher likelihood of
reversal than the issues they selected. The other issues included the failure to
designate:
1. The admission of the interview of Jeremy Green over objection on
Confrontation grounds.
Direct Appeal counsel considered whether to designate a Confrontation issue
regarding the admission of the interview and concluded that any error was unlikely
to lead to a reversal of Owens’s conviction. See SOPC.EX.P-2037 (Direct Appeal
56

 counsel’s email characterizing this as a “loser” claim.). Not only was Direct
Appeal counsel’s judgment reasonable but United States v. Owens, 484 U.S. 554
(1988) would have appeared to be dispositive at the time of their evaluation.11
Moreover, Direct Appeal counsel correctly concluded that even had the trial court
erred in admitting the interview, there was no reasonable probability that Owens’s
convictions would be reversed.

The interview was corroborative of other

testimony, except concerning the charges in which Green was a named victim.
Because Owens was acquitted of those charges, Direct Appeal counsel’s decision
not to raise this issue on appeal does not constitute ineffective assistance of counsel
under Strickland.

11

The United States Supreme Court held:
The Confrontation Clause includes no guarantee that every
witness called by the prosecution will refrain from giving
testimony that is marred by forgetfulness, confusion, or evasion.
To the contrary, the Confrontation Clause is generally satisfied
when the defense is given a full and fair opportunity to probe and
expose these infirmities through cross-examination, thereby calling
to the attention of the factfinder the reasons for giving scant weight
to the witness’ testimony.
Our opinion noted that a defendant seeking to discredit a
forgetful expert witness is not without ammunition, since the jury
may be persuaded that his opinion is as unreliable as his memory.
We distinguished, however, the unresolved issue in Green on the
basis that that involved the introduction of an out-of-court
statement.
....
Here that question is squarely presented, and we agree with
the answer suggested 18 years ago by Justice Harlan. The
Confrontation Clause guarantees only an opportunity for effective
cross-examination, not cross-examination that is effective in
whatever way, and to whatever extent, the defense might wish.
Owens, 484 U.S. at 558-59 (internal citations and quotations omitted).

57

 2. The denial of the motion for mistrial after the prosecutor
mentioned in her opening statement that Owens had been arrested
in Louisiana.
The prosecution did not violate a court order. See part III.N.8 of this Order.
Thus, Direct Appeal counsel’s decision not to raise this issue was not ineffective
under Strickland.
3. Prosecutorial misconduct in closing argument.
In discussing the elements of first-degree murder, the prosecutor said, “[t]he
time for deliberation has been described as the time necessary for one thought to
follow another. Use your reason and common sense. You know just because
someone acts quickly doesn’t mean it was hasty and impulsive.” Trial Tr. 95:2-5
(Jan. 25, 2007). As the court found in part III.N.6 of this Order, the prosecutor’s
closing argument was not of a kind which had any reasonable likelihood of leading
to a reversal under the plain error standard because the jury instructions correctly
defined “after deliberation.” See Grant, 174 P.3d at 810-11 (observing that the
“one thought to follow another” standard has not been in effect since 1973 and
concluding that the prosecutor’s misstatement of the definition of “after
deliberation” as the time necessary for “one thought to follow another” was not
plain error because the jury instructions accurately defined “after deliberation”).
Thus, Direct Appeal counsel’s decision not to raise this issue on appeal did not fall
below the standard of competency set forth in Strickland. The remaining claims
regarding the prosecutor’s closing argument do not merit discussion.
4. The admission of supposedly character evidence.
The supposedly negative character references to Owens consist of evidence
that he had a propensity to carry a gun and that the prosecutor referred to him as
the “killer.” The prosecutor did not assert that Owens carried a gun unlawfully.
58

 While some citizens may believe that people should not carry guns, no authority
has been cited indicating that any court has found it to be inadmissible character
evidence to have a propensity to carry one. And in the context of the entire trial,
“killer” was not used as a pejorative (i.e., a person who, by character or history, is
not adverse to killing others). Instead, the term was used to distinguish the person
who shot and killed Vann from the other shooter who shot and injured, but did not
kill, Marshall-Fields and Bell.
The supposedly positive character evidence – or vouching for witnesses –
consisted of little more than the sort of brief humanizing of witnesses and victims
that trial courts generally allow and comments about certain witnesses’ willingness
to attempt to detain Owens after the killing and their willingness to come to court
and testify. It is a matter of trial court discretion to determine when a line is
crossed between testimony that simply supplies some humanization and testimony
of a CRE 404(b) nature.
It is unlikely that an appellate court would find any abuse of the trial court’s
discretion in this area; there is no realistic chance that an appellate court would
find grounds for reversal; and Direct Appeal counsel’s judgment not to designate
this as an issue for appeal was reasonable.
C. Raising issues that might prejudice Owens
Owens also faults Direct Appeal counsel for raising issues on appeal
regarding the adequacy of trial counsel. The argument seems to be that either the
appellate decision or Direct Appeal counsel’s characterizations in their briefs
might be viewed as a judicial admission or otherwise bar Crim. P. 35(c) review of
certain issues. No prejudice having been shown, these arguments will not analyzed
further.

59

 D. The DeBella issue
The DeBella issue is the most significant issue relating to Direct Appeal
counsel. As to this issue: (1) Direct Appeal counsel should have spotted the issue
and failed to do so,12 (2) had the issue been designated, the appellate court would
have found that the trial court committed error, and (3) there is no reasonable
probability that the error would have led to a reversal.
The DeBella issue concerns a video-recorded police interview of Green
taken hours after the Lowry Park shootings.

Green was a listed victim of

attempted murder and the lesser non-included offense of felony menacing. Owens
was acquitted of those charges. Green testified at the trial and repeatedly denied
any significant memory of the events. He also repeatedly denied that his memory
was refreshed or could be refreshed by reviewing a transcript of the interview. He
was asked numerous questions about the interview and its contents on both direct
and cross-examination.
When the police officer who had conducted the interview later testified, both
the video and a transcript of it were admitted over objections on hearsay and
Confrontation grounds. The interview substantially corroborated other testimony
as to how the shooting of Vann occurred and it provided a detailed physical and
clothing description that corroborated evidence from others identifying Owens as
the person who shot Vann. Over objection that the court should not allow the jury
unfettered access to the video and transcript, the trial court ruled that it would
allow unfettered access to both. Apparently relying on People v. McKinney, 80
P.3d 823 (Colo. App. 2003), rev’d on other grounds, 99 P.3d 1038 (Colo. 2004),
12

An original member of the Direct Appeal team had highlighted language from DeBella and
brought it to the attention of one of his colleagues in an e-mail related to another appeal upon
which they were working. SOPC.EX.D-2371. That attorney withdrew from the team, however,
and it does not appear that designating the issue was seriously considered thereafter.

60

 and other appellate cases following its reasoning, the trial court ruled that
unfettered access was mandated by an applicable rule of civil procedure because
the rules of criminal procedure were silent on the subject. While, as a matter of
law, this grant of unfettered access constituted an abuse of the trial court’s
discretion, the trial court’s ruling was based upon appellate decisions that many
trial judges would have considered to be correct statements of the law as it existed
at the time.
An appellate court will generally apply the law as it exists at the time of the
appeal.

See Henderson, 568 U.S. 266; Ray, 378 P.3d 772.

Thus, Colorado

appellate counsel have a duty to keep abreast of significant, relevant cases decided
by the Colorado Supreme Court. When a case from the Colorado Supreme Court
modifies or clarifies the law in a manner that gives rise to a claim of abuse of
discretion, appellate counsel are expected to spot the issue and consider whether
the issue should be designated in an opening brief.
Following the trial but before the Opening Brief was filed, the Colorado
Supreme Court decided DeBella.

DeBella made it clear that trial judges in

criminal cases have a duty to exercise discretion in deciding what restrictions, if
any, should be placed upon the jury’s access during deliberations to recorded
statements. In exercising its discretion, “the trial court’s ultimate objective must
be to assess whether the exhibit will aid the jury in its proper consideration of the
case, and even if so, whether a party will nevertheless be unfairly prejudiced by the
jury’s use of it.” Frasco v. People, 165 P.3d 701, 704-05 (Colo. 2007). When the
trial court exercises discretion, “a court’s refusal to exclude or otherwise limit the
use of an exhibit will generally be overturned only when it is manifestly arbitrary,
unreasonable, or unfair.” DeBella v. People, 223 P.3d 664, 667 (Colo. 2010). But

61

 failing to exercise any discretion in a situation where the exercise of discretion is
mandated constitutes an abuse of the trial court’s discretion. Id.
The interview could have aided the jury in its proper consideration of the
case. The interview occurred shortly after the events being described. Green had
been directly involved in the events leading up to the killing and had observed it
from, at most, a few feet away. Green’s description of the events was clear and
articulate. At the time of the interview, he was forthcoming and cooperative. He
supplied reasonably detailed descriptions of some of the people and vehicles
involved, drew a diagram that might have been helpful to the jury, and volunteered
information that included his own part in possibly escalating events. Had the trial
judge exercised discretion, it seems likely that he would have allowed the jury to
review the interview at least once or twice, had the jury sought to do so. In
addition to Green’s verbal description of the events, the jury might have found it
helpful to hear Green’s recorded remarks for a second time because what he said as
he was drawing and adding to the diagram would have been helpful to the jury’s
understanding of the diagram.
Because the trial court appears to have concluded that it was not permitted to
restrict the jury’s access to the interview, there is a near certainty that, had the issue
been designated in the Opening Brief, the appellate court would have agreed that
the trial court abused its discretion by failing to exercise any discretion at all.
There is, however, no reasonable probability that the appellate court would have
found this error to be grounds for reversal.
In DeBella, the video recording of the victim’s interview was the only
complete recounting of the sexual assaults and “the inconsistencies of the tape’s
content with [the victim’s] trial testimony were central to the resolution of the
case.” 223 P.3d at 669. Similarly, in People v. Jefferson, 2017 CO 35, there were
62

 no eyewitnesses to the sexual assaults and no corroborating physical evidence.
The video recording of the victim’s interview provided the only complete and
detailed account of the incidents.
The improper admission of the recordings

in

DeBella and Jefferson can

be contrasted with Martinez v. People, 2017 CO 36, a child sexual assault case in
which the trial court granted unfettered access to three DVDs.

In Martinez,

defense counsel did not object to the admission of the DVDs. While recognizing
that a plain error standard applies in such circumstances, the court stated,
Assuming without deciding both that the trial court
abused its discretion and that, in doing so, it committed
an obvious and substantial error, we still perceive no
grounds for reversal because as we proceed to discuss,
we cannot say that any error here so undermined the
fundamental fairness of the trial itself as to cast serious
doubt on the reliability of the judgment of conviction.
Martinez v. People, 2017 CO 36, ¶ 25.
The court then pointed out that, unlike in DeBella and Jefferson, Martinez’s
defense did not significantly rely on inconsistencies between the victim’s trial
testimony and their recorded statements, the recordings did not constitute the
lynchpin of the prosecution’s case because significant other evidence corroborated
the evidence on the recordings, and the case against the defendant was strong.
Unfettered access to video recorded statements, like the improper admission
of such evidence, is particularly concerning in a case like DeBella where the video
constitutes “the only complete recounting of the assaults” and is “the linchpin of
the prosecution’s case.” 223 P.3d at 669. In such cases, there are “grave doubts as
to whether the error adversely affected the fairness of the trial proceedings.” Id.

63

 But unlike DeBella and Jefferson, this is a case where the interview
corroborated other evidence provided by several witnesses. Had the DeBella issue
been raised, it would have been analyzed in the following manner:
Unlike the type of statements at issue when convictions
have been reversed because of similar errors—recorded
statements of child victims of sexual assault—[the
interview was] not of a comparable inflammatory nature
that would have aroused the passion or sympathy of the
jurors each time they listened to the recording. Moreover,
unlike DeBella and Jefferson, [the interview] was not the
linchpin of the prosecution’s case against [Owens].
People v. Riley, 380 P.3d 157, 166 (Colo. App. 2015) (internal citations omitted).
Here, the trial court’s failure to exercise its discretion before allowing the jury
unfettered access to the video did not substantially influence the verdict or affect
the fairness of the trial.
Direct Appeal counsel should have spotted the DeBella issue and they did
not. Had the issue been spotted and designated, the appellate court would have
found that the trial court committed error. But there is no reasonable probability
that the appellate court would have reversed Owens’s convictions. Direct Appeal
counsel’s failure to raise the DeBella issue did not therefore prejudice Owens.
E. Conclusion as to Direct Appeal Counsel’s Performance
Direct Appeal Counsel provided constitutionally sound representation to
Owens.
V. Juror 75
A significant claim in the petition has been titled Juror Misconduct. This
court does not find that the juror in question was deliberately dishonest about any
material matter or that she engaged in any deliberate misconduct. Nevertheless,
this is a significant issue that deserves findings of fact and legal analysis.
64

 Juror 75’s maiden name was Ealy. Her last name at the time of the trial was
Griggs, the name of a former husband. Her current last name is Manuel. These
names are reflected in various parts of the record. In this order, she will be
referred to as Juror 75.
A. Parties’ Positions
The claim can be divided into four basic assertions, all relating to the same
juror.

First, Owens asserts that Juror 75 was dishonest in answering a

questionnaire given to all jurors as part of voir dire. The prosecution disputes the
materiality of Juror 75 questionnaire answers.
Second, Owens asserts that Juror 75 violated the trial court’s instructions by
failing to inform the court that during the trial that, (a) she recognized and had
contact with one witness; (b) one or more other witnesses looked familiar and were
probably friends of her grown son; and (c) she recognized another witness,
Marshall-Fields’s mother, who had spoken at Juror 75’s church and appeared on
television seeking help in identifying those who had murdered her son. The
prosecution argues Juror 75’s familiarity with the witnesses did not rise to the level
where Juror 75 would be biased against Owens.
Third, Owens asserts that Juror 75 was biased because she was friends with
two of Marshall-Fields’s uncles. The prosecution admits that Juror 75 is now
familiar with Marshall-Fields’s uncles but points out that she did not meet them
until after the Lowry Park trial.
Fourth, Owens asserts that Juror 75 had knowledge about the Dayton Street
murders and improperly used that knowledge in reaching her verdict in the Lowry
Park case. The prosecution disputes that Juror 75 improperly employed or shared
extraneous information.

65

 B. Principles of Law
As to the first three assertions, the court has conducted its legal analysis
based upon both Colorado and federal law. The federal law is, at least arguably,
more fully developed.
1. Balancing fair trial and finality concerns
This and similar cases present a troubling dilemma.

When there is

information that the attorneys would have found relevant in deciding whether to
seek the replacement of a juror, it is regrettable that the attorneys did not have the
information in order to present their positions to the trial court. The law recognizes
that no trial is perfect. “A defendant is entitled to a fair trial, but not a perfect
trial.” People v. Rodriguez, 794 P.2d 965, 971 (Colo. 1990). When the parties
have received a fair, albeit imperfect, trial, the law strongly favors finality. As the
United States Supreme Court stated,
To invalidate the result of a three-week trial because of a
juror’s mistaken, though honest response to a question, is
to insist on something closer to perfection than our
judicial system can be expected to give. A trial represents
an important investment of private and social resources,
and it ill serves the important end of finality to wipe the
slate clean simply to recreate the peremptory challenge
process because counsel lacked an item of information
which objectively he should have obtained from a juror
on voir dire examination.
McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 555 (1984).
Often, as in this case, a retrial would occur many years after the events in
question, and it cannot be denied that the passage of time is not a friend to the
search for truth.
But while trials may be imperfect, they may not be unfair. "The due process
clauses of the United States and Colorado constitutions guarantee every criminal
66

 defendant the right to a fair trial." Morrison v. People, 19 P.3d 668, 672 (Colo.
2000). "An impartial jury is a fundamental element of the constitutional right to a
fair trial." Id.; see also U.S. CONST. amend. VI ("In all criminal prosecutions, the
accused shall enjoy the right to . . . trial[] by an impartial jury . . . ."); COLO.
CONST. art. II, § 16 ("In criminal prosecutions the accused shall have the right to . .
. trial by an impartial jury . . . .").
2. Overall Analytic Framework
As to the first three of Owens’s basic assertions, this court must first
determine the standard to be applied to a case of claimed juror misconduct when
(1) the juror gave incomplete or inaccurate biographical information during voir
dire and/or recognized one or more witnesses once the trial began, (2) the juror
served, (3) the jury has returned a verdict and (4) the matter first arises in post-trial
proceedings.
Relevant categories of alleged juror misconduct include:
• False or undisclosed biographical information; and
• Recognizing or having a relationship with a witness, victim, or party.
a. Colorado Law
Colorado grants relief when the defendant proves by a preponderance of
evidence that either (1) the juror was deliberately dishonest about a material matter
to such a degree that prejudice should be found despite the juror’s claim to have
served without bias or (2) the juror misstated or failed to disclose a material matter,
and while the mistake was not deliberately dishonest, the party challenging the
verdict has proven that they suffered prejudice.
In Colorado . . . untruthful answers on voir dire
concerning material matters do not entitle a party to a
new trial per se . . . . Under some circumstances,
however, a juror’s non-disclosure of information during
jury selection may be grounds for a new trial.
67

 Allen v. Ramada Inn, Inc., 778 P.2d 291, 292-93 (Colo. App. 1989).
Dunoyair involved a juror’s inadvertent non-disclosure of his acquaintance
with a prosecution witness. But in affirming a denial of post-conviction relief, the
supreme court discussed how deliberate misconduct concerning a material matter
might affect the analysis:
Where . . . a juror deliberately misrepresents important
biographical information relevant to a challenge for cause
or a peremptory challenge or knowingly conceals a bias
or hostility towards the defendant, a new trial might well
be necessary. See People v. Borrelli, 624 P.2d 900 (Colo.
App. 1980); People v. Rael, 40 Colo. App. 374, 578 P.2d
1067 (1978). In such instances the juror’s deliberate
misrepresentation or knowing concealment is itself
evidence that the juror was likely incapable of rendering
a fair and impartial verdict in the matter.
People v. Dunoyair, 660 P.2d 890, 895 (Colo. 1983).
Christopher also involved a juror’s inadvertent failure to disclose that she
was familiar with the prosecution’s advisory witness:
[Juror] Digeser testified that [prosecution advisory
witness] Officer Moran was a former neighbor who used
to live two houses away from her, that they had both
been at several social functions together, that Officer
Moran had driven Digeser to the airport to pick up
Digeser’s friend, that she had not seen Officer Moran in
over a year, and that she had not recognized Officer
Moran’s surname when the list of witnesses was read to
her prior to trial. Digeser stated that she believed Officer
Moran to be a ‘trustworthy’ person based on the fact that
her house was well-kept and that Officer Moran had once
driven Digeser to the airport to pick up Digeser’s friend.
Digeser responded affirmatively to questions concerning
her ability to be objective and evaluate Officer Moran’s
testimony, deliberate fairly, and render a fair verdict.

68

 People v. Christopher, 896 P.2d 876, 877 (Colo. 1995). The trial court found that
Digeser’s relationship with Moran would not affect her ability to remain impartial
and denied the defendant’s motion to replace her with an alternate. The defendant
claimed on appeal that he was denied of the opportunity to exercise a peremptory
challenge. The court of appeals,
[C]oncluded that the trial court had abused its discretion,
finding that defendant’s right to exercise a peremptory
challenge was curtailed by Digeser’s failure to initially
disclose her acquaintance with Officer Moran during voir
dire and that the defendant was therefore prejudiced by
the trial court’s decision not to replace Digeser with an
alternate juror.
Id. at 878. The Colorado Supreme Court granted certiorari on the following
question:
Whether the court of appeals erred in holding that the
trial court’s failure to replace a juror who recognized a
prosecution witness after trial began was an abuse of
discretion that prejudiced the defendant and curtailed his
right to exercise peremptory challenges.
Id. The Colorado Supreme Court held that prejudice would not be presumed in
light of the juror’s inadvertent failure to disclose her acquaintance with a
prosecution witness.
[T]he court of appeals erred in presuming prejudice from
Digeser’s inadvertent failure to recognize Officer
Moran’s name as it was read off during jury selection.
We conclude that the trial court did not abuse its
discretion in determining not to replace Digeser with an
alternate juror since the juror was able to fairly evaluate
the credibility of Officer Moran’s testimony and could
reach an impartial verdict based on the evidence.
Accordingly, we reverse the court of appeals and remand
with directions to consider any unresolved issues.
69

 Id. at 880. See also People v. Meis, 837 P.2d 258 (Colo. App.). 13
In analyzing whether prejudice has been shown when the inadvertent
nondisclosure is discovered after the trial, Colorado appellate courts have
discussed certain factors relevant to prejudice in cases involving undisclosed
material information and recognizing witnesses.

They have included (1) the

significance of the undisclosed information, see Dunoyair, 660 P.2d at 895-96
(where the testimony was of only peripheral significance and was not disputed,
there was no prejudice); (2) whether the nondisclosure was the product of the
juror’s forgetfulness, see Moynahan v. State, 334 A.2d 242 (Conn. 1974 ), cited
in Dunoyair, 660 P.2d at 895 (no prejudice when the juror forgot about a prior
attorney-client relationship with the prosecutor); (3) the remoteness of the juror’s
contact with the witness, see Moynahan, 334 A.2d 242, cited in Dunoyair, 660
P.2d at 895 (no prejudice when the juror had an attorney-client relationship with
the prosecutor ten years prior to trial); and (4) the nature of the question asked,
see People v. Torres, 224 P.3d 268 (Colo. App. 2009) (no prejudice because the
present-tense question did not require disclosure that family members had been
involved in law enforcement in the past).
b. Federal Law
Because constitutional rights are involved and because the federal law is
arguably more fully developed, the court has also conducted a federal law analysis.

13

The factors suggested in Meis for replacing a sitting juror with an alternate were quoted with
approval in Christopher. Those factors are, (1) the juror’s assurance of impartiality; (2) the
nature of the information withheld in voir dire; (3) whether the nondisclosure was deliberate; (4)
any prejudicial effect the nondisclosed information would have had on either party including the
defendant’s right to exercise peremptory challenges; and (5) and the practical remedies available
at the stage of the proceedings when the nondisclosure is revealed. Meis, 837 P.2d at 259.

70

 In this court’s view, the proper approach is a two-fold process. First, ask
whether the defendant has shown that the juror was actually biased. In doing so,
apply a McDonough analysis as developed in various federal cases. As set forth
below, the court does not find that such an analysis provides a basis for relief.
Second, determine whether relief should be granted under a common law implied
bias basis. See Gonzales v. Thomas, 99 F.3d 978 (10th Cir. 1996) (conducting
three-part analysis under McDonough and the doctrines of actual and implied bias).
i. Actual Bias
The federal standard is set forth in McDonough and developed in more detail
in various federal cases, including Sampson v. United States, 724 F.3d 150 (1st Cir.
2013).
The defendant must demonstrate by a preponderance of the evidence not
only that the juror’s answers were not fully accurate and/or that she failed to
disclose her recognition of one or more witnesses, but also that “under the totality
of the circumstances . . . the juror lacked the capacity and the will to decide the
case based on the evidence.” Sampson v. United States, 724 F.3d 150, 165-66 (1st
Cir. 2013).
A McDonough juror failed to disclose material biographical information
during voir dire. The verdict was adverse to the plaintiff. Had plaintiff’s counsel
known the true biographical facts, a peremptory challenge would almost certainly
have been used against the juror. The 10th Circuit reversed the federal trial court
judgment and concluded that the false voir dire information deprived the plaintiff
of the right to meaningfully exercise peremptory challenges. The United States
Supreme Court reversed and reinstated the verdict, stating:
We hold that to obtain a new trial in such a situation, a
party must first demonstrate that a juror failed to answer
honestly a material question on voir dire, and then further
71

 show that a correct response would have provided a valid
basis for a challenge for cause. The motives for
concealing information may vary, but only those reasons
that affect a juror’s impartiality can truly be said to affect
the fairness of a trial.
McDonough, 464 U.S. at 556.
One factor to be determined is whether a biographical or relationship
misrepresentation was deliberately dishonest. Under the McDonough standard, the
fact that a nondisclosure is deliberate does not prove, in and of itself, that the juror
was not impartial. Sampson, 724 F.3d at 164-65; Skaggs v. Otis Elevator Co., 164
F.3d 511, 516 (10th Cir. 1998). But in some cases, deliberate dishonesty might be
persuasive of a juror’s inability to be impartial. The ultimate question remains, did
the juror lack the capacity and the will to decide the case based on the evidence.
As the First Circuit pointed out in Sampson:
When all is said and done, the existence vel non of a
valid basis for a challenge for cause is not a matter of
labels. Any inquiry into potential bias in the event of
juror dishonesty must be both context specific and fact
specific. The outcome of this inquiry depends on whether
a reasonable judge, armed with the information that the
dishonest juror failed to disclose and the reason behind
the juror’s dishonesty, would conclude under the totality
of the circumstances that the juror lacked the capacity
and the will to decide the case based on the evidence (and
that, therefore, a valid basis for excusal for cause
existed).
Sampson, 724 F.3d at 165-66. Sampson suggested,
A number of factors may be relevant in determining
whether a juror has both the capacity and the will to
decide the case solely on the evidence. This compendium
may include (but is not limited to) the juror’s
interpersonal relationships, the juror’s ability to separate
her emotions from her duties, the similarity between the
72

 juror’s experiences and important facts presented at trial,
the scope and severity of the juror’s dishonesty, and the
juror’s motive for lying[.] Although any one of these
factors, taken in isolation, may be insufficient to ground a
finding of a valid basis for a challenge for cause, their
cumulative effect must nonetheless be considered
Id. at 166 (internal citations omitted). 14
ii. Common Law Implied Bias
Implied bias can be divided into statutory or rule-based implied bias on the
one hand and common law implied bias on the other.
Colorado case law is clear that implied bias challenges based upon C.R.S.
16-10-103(1) and/or Crim. P. 24(b) must be based upon the plain language of the
statute or rule and not judicial attempts to discern the spirit of the rule or intent of
the legislature. People v. Bonvicini, 366 P.3d 151, 157 (Colo. 2016); People v.
Rhodus, 870 P.2d 470, 477 (Colo. 1994).
Some jurisdictions, California, for example, expressly limit implied bias
challenges to those set forth in their rule. See Cal.C.C.P. § 229 (“A challenge for
implied bias may be taken for one or more of the following causes, and for no
other . . . .”).
This court also recognizes that there is discussion among the federal circuits
as to whether, when not dealing with grounds expressly set forth in a statute or
rule, common law implied bias is an independent basis for review.
But in this court’s view, there could be grounds under federal common law,
albeit in extremely rare circumstances, for finding implied bias that does not
involve deliberate juror dishonesty and which are not expressly covered by a
statute or rule.
14

The court has considered these factors. See n.35.

73

 A determination of common law implied bias “turns on an objective
evaluation of the challenged juror’s experiences and their relation to the case being
tried.” Gonzales, 99 F.3d at 987, and involves a determination of “whether an
average person in the position of the juror in controversy would be
prejudiced.” United States v. Powell, 226 F.3d 1181, 1188 (10th Cir. 2000).
If justified by the facts, implied bias could be found even if a juror denied
any bias. As Justice O’Connor recognized, “the juror may have an interest in
concealing his own bias [and/or] may be unaware of it.” Smith v. Phillips, 455
U.S. 209, 221-22 (1982) (O’Connor, J., concurring).
Actual bias is a factual matter so appellate courts afford deference to the trial
court’s findings. Implied bias is a matter of law, to which no such deference is
appropriate. Appellate cases discussing implied bias generally involve a single
experience or relationship of a juror. In this case, Owens asserts that there are
several. Owens argues that, even if none of these would individually be sufficient,
collectively they should be sufficient to demonstrate implied bias notwithstanding
a juror’s honest assertion that she served without bias. Thus, although this court
does not consider this to be one of those rare and extreme cases in which a finding
of common law implied bias would be appropriate, but to facilitate appellate
review, some factors for de novo review are highlighted in footnote 36.
3. Additional Legal Questions
The court has considered these additional questions: (a) whether a juror’s
testimony concerning his or her bias is admissible evidence under CRE 606(b)
and/or the implied bias doctrine, and (b) whether the legal standard is affected by
the trial court’s decision not to talk to the juror.

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 a. Is a juror’s testimony as to her lack of bias admissible under
CRE 606(b)?
Owens asserts that the court should employ the hypothetical, reasonable
juror standard employed in cases where extraneous information has been injected
into the jury deliberation process. CRE 606(b) memorializes the concept that
courts may not delve into the jury’s deliberative process.
Under [CRE 606(b)’s] plain language, we exclude
juror testimony or affidavits divulging juror
deliberations, thought processes, confusion, mistake,
intent, or other verdict impeaching grounds. Thus,
investigation into juror misconduct must cease once any
possibility arises that the juror is acting during
deliberations based on his or her view of the sufficiency
of the evidence.
Black v. Waterman, 83 P.3d 1130, 1137 (Colo. App. 2003) (internal quotations and
citations omitted).

Except in cases of alleged racial bias,15 when extraneous

information has been introduced into that process, rather than inquiring into the
effect on the actual jury, courts ask whether hypothetical, reasonable jurors would
have had their verdict affected by the extraneous information.
Cases involving false voir dire information or witness recognition do not
present the same problem. Nothing prohibits counsel from presenting evidence
concerning the false voir dire information, the relationship of the juror to a witness,
or evidence of actual bias of the particular juror. There is no need to resort to a
hypothetical, reasonable juror standard.

Counsel are at liberty to not only

investigate, but also present evidence of, and the court may make findings
regarding, the actual facts.

15

Pena-Rodriguez v. Colorado, 137 S. Ct. 855 (2017).

75

 Owens takes the view that CRE 606(b) bars Juror 75’s testimony as to her
lack of bias. In the view of this court, it depends to some degree on how the
question to the witness is phrased and, more importantly, to what ultimate inquiry
it is addressed. CRE 606(b)’s purpose and its language are intended to prohibit
inquiry into the deliberation process. CRE 606(b) “is designed to promote finality
of verdicts, shield verdicts from impeachment, and protect jurors from harassment
and coercion.” People v. Harlan, 109 P.3d 616, 624 (Colo. 2005). Neither the
language nor the purpose of the rule is intended to preclude inquiry into whether a
juror was biased for or against either party. This court distinguishes between two
inquiries.
The proper inquiry goes to bias.

It is, “under the totality of the

circumstances, did the juror lack the capacity and the will to decide the case based
on the evidence?” Questions going to this inquiry are proper and the answers to
those questions are admissible.
The improper inquiry goes to the deliberation process. It is, “how did the
juror’s relationship with or recognition of someone affect the juror or other jurors
in the deliberation process?” This second inquiry violates CRE 606(b).
Many of the questions asked of Juror 75 on this topic were leading and
phrased in terms of whether certain circumstances affected her verdict and not
whether she was able to serve without bias.16 The court has disregarded the

16

This may be attributed to this court’s explanation of what would and would not be admitted.
Because the court could not operate the recording equipment, it had an off-the-record sidebar
conference with the attorneys. The court doubts that it explained its view of the distinction
between bias and 606(b) evidence with appropriate clarity. The on-the-record attempt to
summarize the conference was:
THE COURT: Counsel, we had a bench conference and because
of, frankly, I think because of my lack of knowledge of what to do
with respect to all of this technology, we had to have an old-

76

 answers to such questions. A couple questions, however, related to bias and not to
how information affected her verdict. 17 To the degree that her testimony goes to
the proper inquiry, this court has considered it. To the degree that it goes to the
improper inquiry, it has not been considered. The distinction is certainly a fine and
difficult one, particularly when the juror is questioned after a verdict has been
reached. Nevertheless, it is this court’s view that while a juror’s testimony about
what influenced her deliberation process is inadmissible, her testimony about
whether she was biased is admissible.

fashioned sidebar and it wasn't recorded. I want you to all have an
opportunity to correct my summary of it if you would like to.
What I indicated -- what I believe I indicated to you was
that there was one evidentiary ruling that Judge Rafferty made
which precluded certain evidence being elicited from this witness
and that I would permit either side to ask questions on that point if
they chose to.
We will determine later on what the standard is, what the
law is on this subject in Colorado, and if it turns out that anything
that you all elicit on this point is inadmissible, there's no jury here
to be prejudiced and it will simply be disregarded, but I'm not
going to preclude either side, particularly the defense, from asking
questions in this particular area just because that was the ruling of
Judge Rafferty in the 32.2.
That's my summary of basically what the sidebar was about
and I want to give both sides the opportunity to clarify that or add
to if either side would like to.
MR. HOWER: That's my understanding.
MR. CASTLE: That's my understanding.
Hrg Tr. 15:25; 16:1-23 (Oct. 14, 2016).
17
The two questions related to bias include:
Q Can you think of any of that information that created in you a
bias against the defendant?
A No.
Q Did any of that information that you did not disclose create a
bias for you in favor of the prosecution?
A No.
Hrg. Tr. 85:8-13 (Oct. 14, 2016).

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 b. Is a juror’s testimony as to her lack of bias admissible under
an implied bias analysis?
Alternatively, Owens asserts that Juror 75’s testimony is irrelevant because
this court should apply an objective standard in implied bias analysis.
Implied bias cases can be divided into statutory and common law cases.
Colorado law specifies relationships whose existence is grounds for a challenge for
cause. C.R.S. § 16-10-103(1); Crim. P. 24(b). Were the basis for the implied bias
claim one of those relationships, Owens’s position would have merit. In those
circumstances, the conclusion of bias is automatic if the relationship is established
so while the juror’s testimony about the existence of the relationship would be
admissible, the juror’s testimony regarding her bias would be appropriately
excluded as irrelevant under CRE 402.
But where the claim is based on the common law, this court has found no
authority supporting Owens’s position. For the most part, the cases stress how
sparingly the common law doctrine should be used. But in doing so, they point out
that, in an appropriate case, a court would be justified in discounting or totally
disregarding the juror’s testimony that she or he served without bias. But the fact
that a court might be justified in disregarding certain evidence does not mean that
the evidence should not have been received.

It simply means that relevant,

admissible evidence may properly be discounted or even completely disregarded in
certain circumstances. Indeed, leading cases on implied bias seem to assume, in
pointing out that a court might be justified in disregarding such testimony, that the
juror’s testimony as to her or his bias will be received. See, e.g., Smith, 455 U.S. at
221-22 (O’Connor, J., concurring) (discussing a juror’s interest in concealing his
bias without indicating the juror’s testimony concerning his bias is inadmissible);
Gonzales, 99 F.3d at 982 (recounting juror’s testimony concerning the alleged
78

 similarities between her experience and the victim’s experience). In determining
whether a defendant has sustained his burden, the court should consider the totality
of the circumstances. These can include the nature of any relationship with a party
or witness, any involvement in the events giving rise to the case, any history that
might suggest a predisposition or bias on cases of a particular nature and any
evidence indicating that the juror had a particular desire or motivation to serve on
the jury. The juror’s testimony may be relevant to one or more of the factors
considered by the court.
A juror’s post-trial testimony that he or she was or was not biased is
certainly not conclusive and in some cases might carry very little weight. But in
the view of this court, it is admissible evidence to be weighed and evaluated along
with all other relevant evidence.
c. Is the legal standard affected by the trial court’s decision not
to talk to the juror?
This court has found only one Colorado case involving a failure of court
staff to adequately convey information to the judge regarding a juror’s recognition
of a witness or party. In People v. Hernandez, 695 P.2d 308 (Colo. App. 1984),
the defendant sought a new trial for juror misconduct. In support of his motion for
new trial, the defendant submitted the affidavit and testimony of a juror detailing
her recognition of the defendant, her attempts to inform the court, and her
assurances that recognizing the defendant did not affect her verdict.
During voir dire the juror thought she recognized
defendant; during recess she attempted to contact the
judge in this regard through the bailiff and the bailiff told
her to “forget it”; she then brought the matter to the
attention of a jury clerk; during trial she saw the
defendant’s parents and realized she did know the
defendant; she was unable to bring these matters to the
attention of the trial court following the trial; and this
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 matter weighed on her mind because she knew that it was
her duty to disclose this matter to the trial court. In
answer to the court’s questions she testified that this
knowledge did not affect her verdict.
People v. Hernandez, 695 P.2d 308, 310 (Colo. App. 1984). The Colorado Court
of Appeals held that the defendant needed to prove prejudice to obtain relief.
Defendant must establish that he was prejudiced
by misconduct in the jury selection process in order to
overturn his conviction. Here, the misconduct was that of
the trial court bailiff and of the jury clerk, and not of the
juror. We conclude that defendant failed to establish that
he was prejudiced by this misconduct.
Id. (internal citations omitted). Thus, Hernandez suggests that the standard is the
same regardless of whether the inquiry relates to juror misconduct or court
misconduct.
C. Findings of Fact and Analysis
1. Juror 75’s credibility and basic general facts
This court heard Juror 75 testify in October of 2016 and April of 2017, read
lengthy designated testimony that she had given before another judge in Owens’s
32.2 hearing, and read investigators’ reports of interviews of her by both parties.
When the trial occurred in early 2007, Juror 75 was a 40-year-old, single
mother of two sons. She was the only African-American on the jury. She lived in
an apartment near the intersection of Dayton and Florida. She did not believe that
she lived in a bad neighborhood, but at that time there was significant gang activity
in the area and shootings and other violent incidents were not uncommon.
When called for the trial, Juror 75 had some, but not significant, knowledge
of the criminal legal system and little knowledge of its terminology. She had never
served on a jury or witnessed a trial.

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 The court finds Juror 75 to be generally credible. When she testified in
October of 2016 and April of 2017, she appeared honest and straightforward in her
answers. While her recollection of the events that had occurred between 2004 and
2007 was not always consistent in its details, she cooperated with both parties on
the several occasions when she was contacted in 2013 and 2014 and did her best to
answer all questions honestly. She did not appear to be coloring her testimony to
be beneficial to the prosecution’s position.
She had no apparent desire to please or displease either side or to promote
any political, social, or personal agenda.
Juror 75 had no particular desire to serve on the jury. On the contrary, she
tried to bring matters to the attention of the trial judge that, she hoped, would have
resulted in her being replaced by an alternate. Nevertheless, when selected and
later directed to remain on the jury, this court finds she served without bias toward
or against either party. In her post-conviction testimony the juror maintained her
clear opinion that, although she served without bias, the court should have
considered what she had to say and replaced her when she unsuccessfully
attempted to talk to the judge.
Nor does the court find that this juror had a reason to be biased against
Owens or in favor of the prosecution. The court notes that, as will be discussed
below: (1) Juror 75 knew and liked Melissa White (White), whom she knew to be a
friend of Owens. A conviction would be expected to disappoint White. See part
V.C.3.a of this Order. (2) Juror 75’s son Q was a member of a gang subculture that
disdained cooperation with the police or prosecution. Arising from that, she was
concerned for her son’s safety and also had concern for her own. But these
concerns would be exacerbated, not ameliorated, by the juror serving on the jury
and voting for conviction. Those concerns would be an inducement to get off the
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 jury, and failing that, to acquit. See part V.C.3.c of this Order. (3) Juror 75 was
the only African-American on the jury. Some might infer that this would suggest
an affinity with Owens. While it is possible that concerns about racial bias within
the legal system might have made her sympathetic to Owens, it must be
remembered that the victims were also young African-American men and that
Juror 75 was the mother of a son whose age was similar to Vann, Bell, and
Marshall-Fields, as well as Owens. Juror 75 could reasonably have been expected
to be sympathetic to both Owens and to the victims and their families.
The court also notes that neither side asked Juror 75 any meaningful
questions during voir dire.

See Trial Tr. 128-31; 206-07 (Jan. 9, 2007).

Experienced trial attorneys such as these often try to ascertain jurors’
predispositions by observing them during the questioning of other jurors. The lack
of any meaningful questions suggests that, after observing her body language and
her reactions to questions asked of others, neither side perceived any bias concern
that they deemed worthy of exploring.
2. Voir dire and the questionnaire
a. General facts
Before the trial, all jurors were directed to complete a questionnaire. The
attorneys prepared the questionnaire. The jurors had nothing to do with either its
design or the conditions under which it was to be completed. The questionnaire is
single-spaced. It has 35 questions, some with follow-up parts. No question allows
more than two lines for an answer. It instructs jurors to print their answers, tells
them that time will be saved if they answer completely and accurately, but does not
invite comment beyond the provided space, or supply any space for additional
explanation. The jurors are directed not to show the questionnaire to anyone or
discuss it with other jurors. In assessing whether an answer is dishonest, one must
82

 view the answer in the context of the questionnaire and its limitations on space,
ability to explain or amplify answers and its apparent prohibition against obtaining
any explanation or clarification. Juror 75’s questionnaire is SOPC.EX.D-1052.
After the 35 questions, the questionnaire includes a four page, single spaced,
double column list of 316 names of persons “who may have been involved in the
investigation of this case, or whose names may be mentioned during the course of
the trial” with direction to circle any whom the juror believes that he or she
recognizes.
Juror 75 indicated on the questionnaire that she worked two jobs – one in a
nursing capacity for disabled adults and the other for a title company. As to the
question of whether service would pose a hardship, she answered “Yes/no” and
explained, “Just work – single parent – need income.” She did not ask to speak to
the judge and the attorneys without the other jurors present.
As Juror 75 acknowledged when she testified in 2015 and again in 2016, in
hindsight she wishes she had been more careful, taken more time, and possibly
taken a broader point of view when answering the questionnaire.

It seemed

lengthy and she wanted to get it done. When filling in the questionnaire, she did
not have in mind certain things that the attorneys drew to her attention years later.
b. Answers on the questionnaire
At issue are her answers to several questions and her failure to circle any
names. Her answers were not deliberately false or dishonest, but in hindsight, at
least two were not accurate.
The first relevant question asked:
Question 21. Have you, a member of your family, or a
close friend ever been convicted of a crime other than a
traffic offense? If yes, please state who, what, when &
where.
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 Answer: No
The questionnaire allowed 1 ½ lines for who, what, when
and where.
Juror 75. Twenty-two years before answering the questionnaire, at age 18
or 19, Juror 75 had shoplifted and suffered a municipal conviction. And in 1988 –
some 19 years before the trial – Juror 75 had been involved in an altercation with
three other young women. Although she believed she was innocent, she was
arrested, spent one day in jail, and apparently suffered a municipal or misdemeanor
conviction. Between 1991 and the trial in 2007, to this court’s knowledge, she was
never again in trouble with the law. She did not have in mind her own two rather
remote and minor difficulties when answering the question in the context of a
murder case.
As to herself, this answer was not accurate. But Juror 75’s failure to recall
and/or relate her two, remote misdemeanor or ordinance cases was neither
deliberate no material and is of no constitutional consequence.
Her son, D. At the time of the trial, Juror 75 had two sons, 21-year-old Q
and 17-year-old D. D was a parochial high school student at the time of the trial.
His first two years he received an athletic scholarship and in his junior and senior
years he was awarded an academic scholarship. Other than one fight in middle
school, to this court’s knowledge, D was never in any legal trouble prior to the
time of trial. When she completed the questionnaire, Juror 75 did not consider D’s
middle school fight to be a criminal matter, although it did result in a juvenile
adjudication and a period of probation.
As to D, her answer was not inaccurate. A misdemeanor level juvenile
adjudication is not a criminal conviction. But Juror 75’s failure to recall and/or

84

 relate D’s middle school fight, even if a juvenile adjudication were a criminal
conviction, would not have been material and is of no constitutional consequence.
Her son, Q. Q was fully emancipated well before the 2008 trial. He had
joined the Navy in 2003, and was discharged in less than a year. He returned to
Aurora, although not to Juror 75’s home. He and Juror 75 gradually became more
estranged in significant part because she disapproved of his post-Navy choices in
lifestyle and friends. She correctly suspected that he was becoming involved in
gang activity. Still, for a while after his Navy discharge, he would often visit her
and even at the time of the trial, she would visit him to see her two grandchildren.
She sometimes provided Q and his girlfriend with groceries and/or modest
amounts of money. She neither knew nor wanted to know about the things Q was
doing.
Juror 75 was never asked whether her son was getting into trouble with the
law, 18 but she knew that he was. On one occasion she bailed him out of jail. And
although she did not know it, Q had, in fact, suffered a class six felony check fraud
conviction on June 26, 2006.
Although her emancipated son, Q, had suffered a class six felony conviction,
Juror 75 was not aware of it. Her answer was not deliberately untruthful as to her
son, Q, and was of no constitutional consequence.
Family of origin and ex-husband. Juror 75 was a 40-year-old mother of
two when she answered the questions. She considered her family to be her sons
18

It is regrettable that the Question 21 asked only about convictions with follow-up questions of
who, what, when, and where. It might have been more helpful had it invited comments about,
for example, being in trouble with the law. Although attempts were made to insulate the jury
from any gang overtones surrounding the Lowry Park events, the attorneys would have liked to
have known that Juror 75 suspected Q of gang involvement. The attorneys knew, although the
jurors did not, that there were gang relationships between many of the people at Lowry Park.

85

 and herself. She did not view the questionnaire’s use of the phrase “your family”
as referring to ex-husbands, cousins, or other relatives. Two cousins with whom
she was never close had been murdered – one while in the Colorado Department of
Corrections. An aunt and Juror 75’s mother had each spent at least some time in
jail, although Juror 75 did not know why. She had briefly married Rodney Griggs
and lived with him for about 30 days before seeking a divorce, which was
ultimately granted in 2006.

She knew that he had once been to prison in

California, although she did not know for what crime.
Juror 75 did not view the question as asking about her cousins, aunt, mother,
or ex-husband and, although she knew that they had been incarcerated, she did not
know what conviction(s) any of them had suffered. Thus, she could not answer the
question as it was posed. While information that these people had been in legal
trouble might have been useful in evaluating whether to use a peremptory
challenge, her answer was not material, deliberately false, or of any constitutional
consequence.
The second relevant question asked:
Question 22. Have you ever been a witness or a party to
any court proceeding? When and what type of case?
Answer: No
The questionnaire allowed 1 line for when and what type
of case.
Over the years, Juror 75 had encountered financial difficulties. She was
sued several times as part of collection efforts. When sued, she did not employ an
attorney, defend, or appear in court for the several judgments that were taken
against her. She also took bankruptcy at least twice. On two occasions, she
employed an attorney and on one signed the bankruptcy petition that identified her
86

 as a party to various collection cases. When answering the questionnaire, she did
not view the “court proceeding” question as asking about the debt collection
matters that she did not contest or her bankruptcies.
Juror 75’s answer was false. She had been a party to civil collection and
bankruptcy cases. She did not view the question as asking about such cases.
While her answer was not accurate, her failure to relate her history of financial
difficulties was not material and is of no constitutional consequence.
The third relevant question asked:
Question 20. Have you, a member of your family, or a
close friend ever been a victim of crime? If yes, please
state who, when, where & what.
Answer: No
The questionnaire allowed 1 ½ lines for who, when,
where & what.
The juror knew that Q had been shot in the leg at an IHOP restaurant in
April 2006. Neither Q nor any of his friends called Juror 75, but a friend of hers
had been eating at the restaurant and called to tell her that her son had been shot.
After he was shot, she visited Q at the hospital and/or his home. She never sought
nor was given information about what really happened at the IHOP. She did not
know or want to know who shot Q. Nor did she know or want to know whether it
was accidental, criminal, or deliberate. No one was ever charged with a crime in
connection with her son’s shooting.
Juror 75 did not know whether her son had been a victim of a crime, but she
did know that he had been shot. It would have been preferable if (in the allocated
1 ½ lines) she had given an answer such as, “son was shot in leg; do not know if
crime.” But given the nature of the question, the circumstances and the limitation
87

 on space, the court concludes the answer was not untruthful. It was therefore of no
constitutional consequence.
The next series of relevant questions and answers must be considered in
context with one another. Those questions include 11, 13, 14, 17, and 33.
Question 11. Occupation and employer?
Answer: Nurse and Title Company.
The questionnaire allowed about 3/4 of one line for a
response.
Question 13: Job responsibilities and duties.
Answer: Care for handicapped adults, process title ins.
The questionnaire allowed about 2/3 of one line for a
response. The space was so limited that she had to write
“ins” in the margin below “title.”
Question 14. Level of education/degrees?
Answer: College.
The questionnaire allowed about 2/3 of one line for a
response, and she did not include whether she had earned
any degrees.
Question 17. Have you ever had a pleasant or unpleasant
experience involving law enforcement? If yes, please
describe.
Answer: I was once accused of running a stop sign I did
not run.
The questionnaire allowed almost two lines for if yes,
please describe.

88

 Question 33. This trial is scheduled for 4 weeks. Except
in extraordinary circumstances jury trials are not heard
on Saturdays of Sundays. Is there any reason the time
necessary for you to act as a juror on this case would
cause a hardship? If yes, please explain.
Answer: Yes/No. Just work, single parent need income.
The questionnaire allowed about 2/3 of one line for an
answer, and her answer filled the entire space allowed.
Owens asserted in 2017 that some or all of these answers to the five
questions set forth above were untruthful.

He asserts, in essence, that these

answers suggest that she was claiming to be a governmentally licensed nurse with
a college degree. The court is not persuaded. To the court, these answers are not
only consistent with, but when taken together, suggest that the juror needed two
jobs to support her family. They suggest that she took some college, but did not
obtain a degree. They suggest that she would prefer to be excused from the jury
because the income from her two jobs was necessary to support her family. Owens
was denied a hearing on this claim, but he was authorized to submit any affidavits
or documentation suggesting that the juror did not attend college, did not hold two
jobs, or did not have a job assisting the handicapped. Nothing has been submitted.
Owens failed to prove these answers were untruthful and they are of no
constitutional consequence.
c. Failure to circle names
Juror 75 did not circle any of the 316 names. Owens asserts that she should
have circled four -- Dickey, Johnson, Rhonda Fields (Fields), and Alan Baxter. As
noted below, although she ultimately felt that she recognized Johnson and Dickey
(who were past and/or current friends of Q) she did not know their names and
could not have circled them. She ultimately recognized Fields as the woman who
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 had come to her church, but did not know her by name, and could not have circled
her name. At the time of the trial, she had never met Alan Baxter, and could not
have circled his name. 19 Alan Baxter, an uncle of Marshall-Fields, did not testify
in the Lowry Park case, his name never came up in the testimony, and he did not
attend the trial.
Because she did not recognize the names Dickey, Johnson, Fields, or Alan
Baxter, the juror could not reasonably be expected to have circled those names.
3. The juror’s recognition of witnesses and observers
a. Melissa White
Years before the trial, White had dated Juror 75’s younger son, D. White
had trouble at home and occasionally lived for short times in Juror 75’s home.
White also became friends with Q’s girlfriend. White’s relationship with D ended,
but she continued to be close to Q and Q’s girlfriend at the time of the trial, and
often helped with Q’s two children – Juror 75’s grandchildren. At the time of the
trial, Juror 75 liked White and continued to have contact with her at Q’s home.
White attended the trial regularly.

While testifying in 2015, Juror 75

recalled that at some point during the trial White told her that she, White, was a
friend of Owens. On January 23, 2007, when the matter arose in court, White was
sitting with Owens’s mother. By then, Juror 75 had noticed that White was present
at trial much of the time.

19

She may have seen his name and face on television, however. Question 26: What news
programs do you regularly watch or listen to on TV or radio? Answer: 9 6A & 10P. Juror 75
lived in the neighborhood and had seen the Dayton Street homicides crime scene. The day after
the murders, 9news ran a news clip on its 10:00 p.m. broadcast that included brief comments by
Alan Baxter, whose name appeared on the screen. See SOPC.EX.D-3008. But no evidence was
developed as to whether she either saw or remembered the news clip.

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 b. Rhonda Fields
See part V.C.4 of this Order.
c. Q’s current or former friends
When Q was in middle and high school, his friends and acquaintances would
often come to Juror 75’s home. She welcomed them all, allowed them to hang out
at her home, and often fed them.
She did not have a close relationship with these boys, and it does not appear
that she spent significant time with them, but some referred to her as “mom.” She
did not know the full names of these youngsters, who referred to one another by
nicknames, street names, or first names.
In time, Q and some of his acquaintances drifted apart, but some remained
friends and, as time went on, some, including Q, began favoring red clothing – the
color symbolic of one of the street gangs. It is likely that this latter group included
Dickey and Johnson. While Juror 75 did not know it, subsequent events indicate
that Q, Dickey, and Johnson became associated with Bloods street gangs and
remained friends, although possibly not as close as when they were younger.
Juror 75 did not know these things at the time of the trial, but when in prison
many years later, Q said that:
• People involved in the trial – including Vann, Dickey, and Johnson –
were among the boys who had been to his home as youngsters; 20 and
• while he did not witness the shootings, he, Q, had been at Lowry Park
when Vann was killed; but
• he did not convey any of this information to Juror 75 at or before the
time of the trial.
20

When he testified in Owens’s 32.2 hearing in the Dayton Street case, Johnson could not recall
ever being in Juror 75’s home as a youngster.

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 As the trial proceeded, Juror 75 realized that she recognized faces of some
people in the courtroom. At the time of the trial, Juror 75 had no relationship with
any of these young men. She had never had a close or significant relationship with
any of them, and she did not recognize any of their true names.
Years later she testified that it also seemed to her that one or two witnesses
looked at her specifically, and she thinks that at least one person – probably a
witness – mouthed, “Hi, mom” to her. Years later she also testified that some of
the nicknames also seemed familiar – particularly J-something 21 and Showtime. 22
One evening during the trial, Juror 75 went to Q’s apartment to see her
grandchildren.

Dickey 23 was there and said he had seen her in court.

She

acknowledged that, but had no conversation with him and he left immediately. Q
and Juror 75 then had a conversation in which Q told her that she should get off the
jury. Q told her that if she needed to get off the jury if she had been seeing his
friends in the courtroom. She told him that she had tried, but was told by the court
that she was to stay on the jury. She had a concern for Q’s safety and to some
degree her own because of familiar faces in the courtroom and her son’s suspected

21

Johnson, whose street name was J-5, testified on January 17, 2007.
J. Martin had the nickname Showtime. He did not testify at trial.
23
On October 18, 2016, the parties stipulated that Dickey was the person she encountered.
When she testified in 2015 and 2016, Juror 75 believed that he said, “I saw you in court today.”
But it seems unlikely that the encounter occurred on the day that Dickey testified. Dickey
testified on Friday, January 19, 2007. Juror 75 had only one relevant series of conversations
with the bailiff. They occurred on the following Tuesday, January 23, 2007. Both Juror 75 and
Q testified that the brief encounter with Dickey occurred on the same evening that Q confronted
Juror 75 about getting off the jury. Juror 75’s memory that her conversation with Q occurred
after the exchanges with the bailiff is particularly clear, credible, and in conformity with Q’s
testimony. Thus, this court concludes that the brief encounter occurred on or after January 23,
2007. When Dickey later testified, he indicated that he had recognized Juror 75 in court, but
never spoke to her.
22

92

 gang involvement. Juror 75 did not know Owens or any member of his family; she
did not have any fear of them; and she did not feel that she had reason to fear them.
Years later, when interviewed by both parties and/or testifying in court,
Juror 75 indicated that she thought she had recognized the faces of at least three
and probably four witnesses and possibly other people in the gallery. One witness
was Fields. Two were men – Dickey and Johnson. The other was a heavy-set
woman. That description did not help the prosecution or post-conviction counsel
identify any witness so it seems unlikely that she could have offered significant
testimony.
Johnson was an important witness for both parties. He identified Owens as
the man who shot Vann and gave significant evidence supporting the defense. See
part III.K.2 of this Order.
Dickey was considerably less important. He testified that he and Vann were
very close friends. He had assisted in breaking up an earlier argument between
Marshall-Fields and Ray. Shortly before the shooting, he noticed a commotion and
saw Vann running toward it. He started to run that way too, intending to join with
Vann if a fight ensued. He witnessed the shooting from the parking lot, possibly
one hundred feet away. He testified,
Q A hundred feet?
A Something like that. I don’t know, I was not – I don’t
know. I was far.
Trial Tr. 56:22-24 (Jan. 19, 2007). Dickey later continued,
As soon as Greg [Vann] got over towards where the
fight was taking place, I don’t know, he put his hands
out, I don’t know if it was to throw a punch or to break it
up. You know, he was running so fast, I really couldn’t
catch on to what was going on because I was on my way
93

 headed over there. I was headed over there. I couldn’t
exactly see what happened and shots started to be fired.
Id. at 57:12-18. He testified that he thought Ray shot Vann, but was
not certain.
Q Okay. With what degree of certainty have you said
that you believed it was Robert [Ray] who shot Greg?
Are you certain of that is my question.
A I’m not certain of anything. I wasn’t right there when
it happened, so I can’t be certain that this man right here
shot him or Robert shot him or who shot him because I
wasn’t exactly right there when it happened. I was
several – I was a little distance away and it was a little
dark outside. It wasn’t pitch black, but it was, I don’t
know –
Id. at 68:10-18. Dickey then acknowledged that he had earlier told the police that
Ray shot Vann and had not mentioned Owens as a possible shooter. Id. at 88:1325; 89:1-4.
When she testified in 2015, more than eight years after the trial, Juror 75
was shown photographs of Johnson and Dickey. She was not certain, but under the
totality of the circumstances it seems clear that she recognized both men. She
selected Johnson as the person she had seen in court and in Q’s apartment. But
Johnson was in the witness protection program at the time of the trial. He was
escorted from the airport to court and back to the airport. He could not have gone
to Q’s apartment. The parties have stipulated that she encountered Dickey at Q’s
apartment. 24

24

Dickey, when testifying years later, did not recall encountering Juror 75 at Q’s apartment.

94

 On January 23, 2007, Juror 75 told the bailiff that she knew people in the
courtroom. 25 The bailiff then reported to the judge, who told the bailiff to get a
name. When asked for a name, Juror 75 specifically mentioned Melissa White –
the only person whom she knew by name. The bailiff reported back to the judge.
When contacted years later, the bailiff could not recall what Juror 75 told her or
what she told the judge. 26 In 2015, when testifying about her memory of this
situation, Juror 75 said the following:
THE COURT: I am lost. I’m sorry. Are there two
conversations with the bailiff? Can you clarify for me?
THE WITNESS: I had one conversation with the bailiff
about a person that was sitting in the courtroom and she
was Melissa White.
Q (By Mr. Castle) So during that conversation with the
bailiff, you didn’t tell them that you also knew witnesses
or that a witness had been to your son’s apartment?
A Nope, I didn’t say anything about witnesses. I just said
I knew Melissa White’s name and I knew other faces that
were out there, not that they were a witness.
Q So to be clear when you said you told the Judge, did
you have a personal –
A I told the bailiff and the bailiff told the Judge and the
Judge told the bailiff and the bailiff came back and told
me what the Judge said.
25

When she testified in 2015, Juror 75 was sure that she told the bailiff that she recognized
several people – plural. When she testified again in 2016 she only remembered telling the bailiff
about White. The 2015 version was more detailed and appears to be more accurate. Her
intention was to explain the entire situation to the judge, but she was never given the opportunity
and was told that she would remain on the jury.
26
Two possible bailiffs were identified. They, too, were contacted some eight years after the
trial. Neither could recall anything about the events.

95

 Q So you didn’t have any personal conversations with the
Judge?
A No, I did not.
06CR705 Hrg Tr. 40:14-25; 41:1-8 (Mar. 26, 2015)
From the trial record, it appears that the trial judge may have erroneously
inferred from the bailiff’s reports that Juror 75 recognized only one person –
White. The trial record shows the following:
THE COURT: The record should reflect that all parties
are present. One of the jurors, the juror in Seat 16,
indicated she recognized an individual who came into the
courtroom and I did have the bailiff inquire as to who
that person is. I believe Ms. White and she’s certainly
welcome to be here. I was concerned, of course, if she’s a
witness that there would be a potential problem, but at
this point I believe she is here as an observer and as long
as I don’t see any contact while the jury is in the
courtroom between Ms. White and the defense side of the
room, I don’t think there will be a problem either. My
courtroom is open to anybody who is watching
proceedings.
MR. HOWER: Judge, I don’t know who Ms. White is.
We have a first name with that?
THE COURT: Do we have a first name with that? No.
MR. HOWER: May I get a first name with that?
MS. WHITE: Oh, my name. Melissa.
THE COURT: Melissa White.
MR. HOWER: Not a witness to my knowledge.

96

 THE COURT: I don’t believe she’s a witness for either
side and she’s certainly welcome to stay and watch [the]
proceedings. I just need to make sure there isn’t any sort
of contact between really either side and Ms. White when
the jurors are present. During breaks it’s fine. Whatever
will be permitted.
MS. WARREN: Judge, can you tell us who Juror 16 was
because they’ve all moved around.
THE COURT: That’s [Juror 75].
MS. WARREN: Okay.
THE COURT: All right. With that particular record made
from the court, is there anything for the People at this
point before the jury comes back in?
MR. HOWER: No, Your Honor.
THE COURT: Anything for the defense?
MR. KING: No. Thank you.
Trial Tr. 56:24-25; 57:1-25: 58:1-9 (Jan. 23, 2007).

The prosecution later

reconsidered and asked that Juror 75 be questioned in camera about the situation.
The defense indicated that they did not join in, but did not object to the request.
The judge denied the request. The trial record reflects the following:
MR. HOWER: The situation with [Juror 75], indicating
that she knew Ms. White kind of was -- caught us off
guard a little bit.
Inasmuch as Ms. White I believe is sitting with
Mr. Owens’ mother, I don’t -- I think it might be wise to
inquire if [Juror 75] does know Mr. Owens family at all,
does she -- the nature of her relationship with Ms. White.
I think it can be done very neutrally by the court, you
know, outside the presence of the rest of the jury, but, I
mean, clearly Ms. White is sitting next to the defendant’s
97

 mother and I think that we just need to make a little
further inquiry as to whether [Juror 75] thinks that’s at all
going to affect her.
THE COURT: I can’t recall in the course of this trial that
Mr. Owens’ mother has been identified as being present
in the courtroom, where she is, what she looks like, and
how can I then arrive at the conclusion that a juror
because of her knowledge of the visitor to the courtroom
and because of where she’s sitting would take some sort
of negative inference or impermissible inference from
that.
MR. HOWER: I don’t, I mean, I agree with you, I don’t
believe she has been identified, but if -- if we just
perhaps, you know, the nature of the relationship, her
knowledge of Ms. White, and whether or not anything
related to that would cause any difficulty for her being
fair and impartial. My guess is it won’t, but I think we
ought to know a little bit more about that.
THE COURT: All right. What does the defense think
about that?
MR. KING: Judge, I’m not requesting that, but I don’t -I don’t have an objection to it.
THE COURT: All right. Well, this is an open courtroom
and I actually expand the usual admonition to the jury at
recesses, especially at the evening recess to include not
only the parties present in the courtroom and any
witnesses, but anybody that the jury may see in the
courtroom, including any possible observers to the trial,
and that they should avoid having contact or discussing
the case with those individuals and absent some sort of
showing that there is some difficulty other than just
simply knowing an individual when they come into the
courtroom, I am not going to subject a juror to
examination on that particular issue.
98

 It’s an open courtroom and I certainly don’t want
to do anything as well to quell or in any way chill any
individual’s right to come into the open courtroom and
watch proceedings and absent some sort of information
establishing that just based upon where an individual is
seated in the courtroom and who they may be seated next
to that I should therefore draw the conclusion that the
juror would receive information in an inappropriate
fashion I hesitate to inquire.
So the juror was aware enough to bring the
situation to our attention and I will simply defer to that
juror to continue to adhere to my admonitions and
instructions and restrictions and absent some sort of
indication that that is not being done, I’m not going to
inquire.
So I’ll decline the People’s request.
Id. at 99:18-25; 100:1-25; 101:1-22.
The judge had apparently instructed the bailiff to tell Juror 75 that she was to
continue to serve on the jury. The court made no further inquiry or any further
record about whom Juror 75 might have recognized or why she was concerned.
She did not raise the matter again with the court.

She continued to serve,

deliberated, and was part of the jury that returned the verdict.
According to Juror 75, a fellow juror asked her what she had talked to the
bailiff about. She told her fellow juror that she knew some people but was told by
the bailiff that it was okay. There was no further discussion. Nothing about whom
she knew or how she knew them – and nothing else was said to any fellow juror
until after the verdict.
After the jury returned its verdict, the jurors were sent back to the jury room
so that the judge could thank and debrief them. After the judge left the jury room,
Juror 75 told a fellow juror about recognizing one or more people in the courtroom
and they drew the foreperson into the conversation. The memories of the jurors
99

 were not totally consistent.

One thought Juror 75 knew a member of the

defendant’s family. The foreperson thought “[i]t was almost Kevin Bacon-ish, six
layers of separation type of situation” – that she knew someone who knew
someone. 06CR705 Hrg Tr. 20:3-4 (May 13, 2015). The foreperson asked her if
the judge was aware of the situation and Juror 75 told the foreperson that she had
told the bailiff, who contacted the judge, and they said there was not a problem.
The trial judge had given instructions relating to the possibility that jurors
might recognize witnesses. On January 9, 2007, before evidence began, the judge
had instructed the jury this way:
Also it is important to keep in mind about the
potential witnesses in this case. You received a four page
list of potential witnesses. I asked the parties to be overinclusive, included practically any name that may have
even floated through the county during the period of time
within which the case was being investigated, and many
of you didn’t register any sort of acknowledgment of
information on those particular names, but a person may
walk into the court being called as a witness and
suddenly you realize that you recognize this individual
from some sort of setting outside of the courtroom, if you
would please, again, recognize how important it would
be for you to inform us of your knowledge in regards to
that particular individual so there are a number of times
where I would ask that you please let us know if there’s a
problem or concern so that we can take steps.
Trial Tr. 65:19-25; 66:1-8 (Jan. 9, 2007) (emphasis added). We trial judges are not
always as clear as we would like to be. When they recognize witnesses, trial
judges usually want jurors to speak up (1) promptly, (2) regardless of whether it
creates a problem or concern, and (3) without waiting to be asked. But the trial
court’s direction was not completely clear. It suggests that the court would expect
the juror to speak up if a juror recognized a witness and it caused a problem or
100

 concern, but a juror might not feel an urgency to volunteer, expecting the judge to
raise the subject a number of times during the case.
The trial court revisited his admonition at the end of the trial day on at least
two occasions, but the instruction was not much clearer. On January 19, 2007, the
day that Dickey testified, the trial court said,
[W]atch the conversations around you and don’t discuss
the case with any other persons [sic]. Certainly watch
your contact with anybody that you may have seen here
in the courtroom and don’t discuss the case with them.
Warn people off if they appear to be discussing the case
in your presence and let me know if there’s any problem
in these areas at all.
Trial Tr. 263:6-12 (Jan. 19, 2007). The admonition is subject to the inference that
one should (1) watch her contact with anybody that she saw in the courtroom, (2)
warn people not to discuss the case in her presence, and (3) bring the matter to the
court’s attention if there’s any problem in these areas.
Juror 75 was watchful of her contacts with Dickey (the witness she saw in
Q’s apartment) and White (Owens’s friend who observed the trial). She did not
permit them, her son, or anyone else to discuss the case with her, and she
attempted to bring her recognition of people in the courtroom to the attention of the
court when she thought that there was a problem.
This court finds that, as the trial was progressing, Juror 75 found faces to be
familiar although, other than White, she could not immediately place them. As the
trial proceeded, she came to realize that they were former or current friends of her
son. She attempted to bring the matter to the attention of the judge, but was denied
the opportunity to talk to him and was directed to remain on the jury.
In hindsight, it would certainly have been preferable if the trial court had
spoken to Juror 75 as she, and later the prosecution, requested. This court finds
101

 that, had the trial court spoken to her, it is probable that the court and attorneys
would have learned that (1) she knew and recognized White who was a friend of
her son, (2) White had told her that she was a friend of Owens, (3) she recognized
witnesses but did not know any of them, had no relationship with them, and had
not formed an opinion about their credibility, (4) she thought some recognized her,
(5) because of her son’s suspected gang involvement and suspecting that witnesses
or gallery observers might be associated with that lifestyle, she had a concern for
her son’s welfare and her own, (6) she would prefer to be replaced, (7) but if told
to remain on the jury, she could serve without bias27 toward or against either party.
This court finds that Juror 75 made a reasonable, good faith effort to bring to
the attention of the court her recognition of White and others in the courtroom.
These matters did not come to the attention of the court and attorneys because the
court chose not to conduct the in camera interview that had been requested by the
juror and, later, the prosecution.
The issue before this court is whether juror 75’s service deprived Owens of
his constitutional right to trial by an impartial jury, not whether the trial court
should have acceded to the juror’s and/or prosecutor’s request and interviewed her.
The court’s decision not to interview the juror deprived the court and the parties of
information that would have been useful in deciding whether to replace Juror 75
with an alternate juror. 28

27

This is based on the court’s assessment of the juror at the 2016 and 2017 hearings, and in part,
upon her 2015 testimony. Owens objects to the court considering her testimony that she served
without bias and, as discussed in part V.B.3.a of this Order, the court recognizes the difficulty of
distinguishing between admissible bias testimony and inadmissible CRE 606(b) testimony when
the question first arises after the verdict.
28
This court is unable to make a finding as to whether the juror would have been replaced by an
alternate if the trial court had interviewed the juror. The court might have, but would not have
been required to factored into its decision the fact that Juror 75 was the only African-American

102

 This is not a case in which the court denied a defendant’s request that a juror
be interviewed. While not objecting to the prosecution’s request, Owens’s trial
counsel made it clear that he was not requesting that the juror be interviewed.
Juror 75 recognized witnesses, but did not know their names and did not
have a relationship with any of them. Two were people whom she felt had been,
and might still be, friends of her son from whom she was partially estranged. She
recognized Fields as a woman who had spoken to the congregation of her church,
but she did not know Fields’s name and had no relationship with her.
She had a relationship with White and knew that White was a friend of
Owens, but White was not a witness.
Owens has not shown that he was deprived of a fair trial due to Juror 75’s
recognition of witnesses and courtroom observers, nor due to her concern for her
son’s safety and her own.
3. Relationship with Marshall-Fields’s Uncles
In 2017, the court granted Owens leave to re-open the Crim. P. 35(c)
evidentiary hearing. Owens asked leave to explore whether, at the time of the trial,
Juror 75 had a relationship with members of Marshall-Fields’s extended family
that might have affected her ability to serve without bias. Owens’s counsel had
reviewed Juror 75’s Facebook account and discovered photos of a 2015 Las Vegas
trip. In the photos, Juror 75 and her then husband, James Manuel (Manuel), were
posing with Marshall-Fields’s uncles, Alan “Chipper” Baxter (Chipper) and
juror on a case in which the defendant, all victims, and nearly all non-police and non-expert
witnesses were African-American. There would be no need for a Batson inquiry. See Batson v.
Kentucky, 476 U.S. 79 (1986). Although also not required to do so, trial judges often take into
consideration a juror’s sincere desire to be replaced. Had both parties requested her replacement,
it seems likely that the judge would have replaced Juror 75 with an alternate. Had one party
requested her replacement and the other party objected, it would have been within the trial
court’s discretion to either grant or deny the request.

103

 Michael Baxter (Michael), and their wives. Owens’s counsel interviewed Michael
on January 29, 2017 and he initially told her that he had known Juror 75 and two of
her cousins for over 20 years. When counsel and her investigator returned the next
day and asked Michael to review and initial the investigative report of the
interview, he corrected himself. He told them that he had known members of the
extended Ealy family and particularly two of Juror 75’s male cousins for more than
20 years, but did not meet Juror 75 until years after the Lowry Park trial. Owens’s
counsel also suspected that, because Chipper, Michael, and Juror 75 had all
attended George Washington High School, they might have been high school
friends.
Chipper, Michael, and Juror 75 testified in April of 2017. The court finds as
follows: Chipper and Michael were two of their mother’s ten children, along with
their half-brother, Marshall-Fields’s father.

Marshall-Fields’s father was

incarcerated and Chipper and Michael acted as father figures for Marshall-Fields.
Chipper was a mechanic and Marshall-Fields would regularly go to Chipper’s
home, often for assistance with cars. Marshall-Fields was threatened on the night
before he was murdered on Dayton Street, and went to Chipper’s house to seek the
counsel of Chipper and Michael.
Juror 75’s maiden name was Ealy. Her cousins, Michael and Tim Ealy,
played sports with the Baxter brothers when they were young.
As Juror 75, Michael, and Chipper each credibly testified, Juror 75 did not
know either Chipper or Michael until well after the Lowry Park trial. They met
because her now husband, James Manual, had been a friend of Michael and
Chipper for years, and he introduced her to them. The Baxter brothers did not
know that she had served on the Lowry Park jury until the beginning of 2017, and

104

 she did not she realize until recently that they were uncles of one of the young men
who had been shot at Lowry Park.
The Baxter brothers were never in the same school at the same time as Juror
75 and never lived particularly close to her. Juror 75 graduated from George
Washington High School in 1984, but did not attend the school before transferring
in during her senior year. Chipper attended George Washington High School and
would have graduated in about 1983, but he stopped attending in his sophomore
year and obtained his GED.

Michael is 13 months older than Chipper and

graduated from George Washington High School in 1982.
The Baxters grew up in a home near 29th and Pontiac. Juror 75’s family of
origin moved frequently. The closest they ever lived to the Baxter home was 26th
and Holly, which is several blocks away. Those homes, while both in Park Hill,
are separated by, among more than a dozen other streets, Monaco Parkway.
Juror 75’s maiden name was Ealy. Her cousins, Michael and Tim, played
sports with the Baxter brothers when they were younger. Either before or shortly
after the trial, Juror 75 began a relationship with James Manuel, to whom she is
now married.29 Their relationship developed romantically, and well after the trial,
he introduced her to his friends, Michael and Chipper. Manuel, Juror 75, the
Baxter men, and the Baxters’ wives went on a vacation to the mountains together
in 2014, and in 2015, they met in Las Vegas to celebrate Chipper’s 50th birthday.
They all testified that Juror 75 and the Baxter men first met well after the Lowry
29

Juror 75 testified that she did not meet Manuel until after the trial. But, while her son D has
never testified, in an interview with a defense investigator he gave an account of the timing of
issues he had with Manuel that resulted in his moving from his mother’s home. D’s account to
the investigator suggests that the relationship between Juror 75 and Manuel may very well have
begun before the Lowry Park trial. The court makes no finding as to when Juror 75 and Manuel
first met or began dating. The factual issue that may be of consequence is when her relationship
with the Baxter brothers began, not when her relationship with Manuel began.

105

 Park trial, but their estimates of the particular year in which they met were not
consistent. The evidence overwhelmingly demonstrates, and the court finds, that
Juror 75 did not know either Michael or Chipper until well after her jury service
had concluded. Indeed, there is no evidence other than Michael’s initial statement
to defense counsel on January 29, 2017 that suggests that Juror 75 knew either of
the Baxter brothers before or during the trial.
A verdict cannot be impeached based upon knowledge obtained by a juror
after returning her verdict. People v. Thornton, 712 P.2d 1095, 1099 (Colo. App.
1985), rev’d on other grounds, Thornton v. People, 716 P.2d 1115 (Colo. 1986)
(mem.). Juror 75 did not meet either Chipper or Michael until years after her jury
service in 2007. Since she did not know them, nor know that they were related to
Marshall-Fields until well after her jury service, her subsequent friendship with
them is of no constitutional consequence.
4. Connection with the Dayton Street homicides and extraneous
information
The jurors were never given any information about or asked whether they
knew anything about the Dayton Street homicides. Juror 75 had some knowledge
about the Dayton Street murders, but there is no evidence that any juror, including
Juror 75, shared any information about Dayton Street matters with other jurors.
Nor does the evidence show that any juror, including Juror 75, considered any
information about the Dayton Street murders in reaching their decision. But there
is conflicting evidence concerning whether, in her own mind, Juror 75 started to
see a possible connection between the cases only after the Lowry Park verdict had
been delivered (as she testified) or during the trial (as investigators’ reports of
interviews with Juror 75 suggest).

106

 Juror 75 lived within a block of the Dayton Street homicides scene. She had
seen the police tape and the victims’ car during the investigation. Fields, MarshallFields’s mother, had come to Juror 75’s church. Juror 75’s recollection was that
Fields asked the congregation for assistance in finding those responsible for her
son’s murder. As Fields testified in 2017, she did not live in the neighborhood nor
attend Juror 75’s church, but she knew the pastor and believes she probably went
to the church to give testimony – to tell the congregation about her experience with
her son’s murder and how it affected her spiritually. Juror 75 also saw the mothers
of the two Dayton Street victims make an appeal on TV. Juror 75 believed that she
had also seen Fields in Juror 75’s neighborhood, but did not know her and did not
recognize her name on the questionnaire list.
A poster was mounted on a bus bench in Juror 75’s neighborhood seeking
community assistance in finding those responsible for the Dayton Street murders.
It bore a picture of Marshall-Fields and Wolfe. Although she did not use the bus,
Juror 75 saw the poster on the bench.
Fields testified in the Lowry Park trial. Ray had shot her son, MarshallFields, at Lowry Park. 30 Although the jurors were told that Marshall-Fields had
passed away, they were not told anything about how he died.
When testifying years later, Juror 75 recalled that she connected the cases
because either the judge or a member of the court staff came to the jury room after
the verdict and told them things that helped them make the connection. Juror
Barbara Kloster (Kloster) confirmed that the judge came to the jury room and told
the jurors that Owens would have another trial. Kloster also recalled that while the

30

Owens was convicted as a complicitor of the attempted murder of Marshall-Fields.

107

 jury wondered how Marshall-Fields had passed away none of the jurors talked
about it until after the verdict was returned.31
“[A]ny information that is not properly received into evidence or included
in the court’s instructions is extraneous to the case and improper for juror
consideration.” Harlan, 109 P.3d at 624. In extraneous information cases, the
defense must first show, by a preponderance of the evidence, that extraneous
information was introduced into the jury deliberation process. If so, the court asks,
“whether there is a reasonable possibility that extraneous information or influence
affected the verdict.” Wiser v. People, 732 P.2d 1139, 1142 (Colo. 1987). This
court is not aware of any authority expanding Wiser’s “reasonable possibility”
standard beyond extraneous information and juror coercion cases. See People v.
Rudnick, 878 P.2d 16, 21 (Colo. App. 1993) (applying reasonable possibility
standard to case of juror threats and coercion).
In determining whether Owens has proven a constitutional deprivation under
this section, the court must consider, first, whether Juror 75 possessed extraneous
information; second whether she shared any such information with any other juror
and third whether there is a reasonable possibility that such extraneous information
influenced or affected the verdict.

31

Juror Kloster was interviewed by a defense investigator who reported: “BK stated that the jury
wondered how [Marshall-Fields] had passed away and told me that they only heard about this
after the verdict. She stated that none of the jurors talked about or seemed to know about the
shooting of [Marshall-Fields]. She stated that after the verdict the Judge told them that Mario
was going to have another trial. She stated that after the verdict one of the jurors shared that she
knew about the shooting and that she knew [Owens’s] family. She told the jurors that she was
afraid for her safety because she knew about the people Mario was with. BK stated that this
juror told them that she had privately met with the judge to share her concerns but that she was
told not to discuss this with the other jurors until after the trial.” SOPC.EX.D-1310. It must be
acknowledged, however, that parts of the Kloster interview are not consistent with the facts. For
example, Juror 75 did not know Owens’s family and did not meet privately with the judge.

108

 Any arguable extrinsic evidence that Juror 75 possessed consisted of the
following:
On the night of the Lowry Park shootings, her son Q probably told her that a
shooting occurred at the park. He told her nothing else about it. She may or may
not have recalled this during the trial, but, obviously, all jurors knew that the
Lowry Park shootings had occurred long before they deliberated.
She would have realized that one of the witnesses, Dickey, was a friend of
Q, because she encountered him in Q’s apartment. Dickey was not a particularly
important witness, she did not discuss the case with him and nothing suggests that
this information was communicated to other jurors or that it influenced Juror 75’s
verdict.
She knew that murders had occurred on Dayton Street. She saw the crimetaped murder scene, saw a poster on a bus stop bench, heard Fields’s testimony at
Juror 75’s church, and saw something about the murders on the TV news. No
evidence suggests that she shared any of her limited knowledge with any other
juror until after the verdict.
She did not conceal her knowledge about Dayton Street. The Lowry Park
lawyers made a deliberate decision not to ask what jurors knew about the Dayton
Street murders. Juror 75’s limited knowledge could only be significant if she first
inferred that Marshall-Fields was one of the Dayton Street victims, then inferred
that Owens was involved in the Dayton Street murders and then allowed her
inferences to influence her verdict against him in the Lowry Park trial. This court
finds that Juror 75 did not connect Owens to the Dayton Street murders until after
the Lowry Park verdict was decided.

In making this finding, the court has

considered more than the just the affect, demeanor, and testimony of the juror. She
appeared to this court to be honest in answering questions and never gave an
109

 indication of a bias or prejudice for or against either side.

Until ultimately

becoming quite frustrated,32 she cooperated with both sides in their post-trial
investigations. She appeared to appreciate the gravity and importance of giving
honest answers in court.
The court has also considered Juror 75’s circumstances at the time of these
events. For most of us, shootings and other violent acts do not occur regularly in
our community. For most of us, a parent sharing the impact of their son’s murder
with churchgoers or asking for help in identifying those who killed the parent’s son
would be extraordinary. But then most of us do not live in a community where
there is, at least among many teenagers and young adults, a pervasive culture of
non-cooperation with the authorities. While Juror 75 did not feel that she lived in a
bad neighborhood, she was living in a time and place where gang conflicts and
32

Before 2017, each side had interviewed her at least twice and she had testified twice in posttrial proceedings. Jurors are not obliged to submit to post-trial interviews. After the verdict was
returned the jury in this case was instructed,
You have a right to obviously talk with anybody you would
like about this case. You also have the right to control the nature of
any discussion that is held.
In other words, if you agree to talk to somebody about this
case, you may cut that conversation off at any time.
I would indicate to you that if anyone should persist in
trying to discuss this case with you over your objection or if they
should try to persist in discussing this case after you have told
them you no longer wish to talk with them, you need to inform me
of that immediately. That simply is not permitted and any contact
by anybody with you about this case needs to be on your terms, so
you don't have to talk with anybody. If you do talk with someone,
it can be for as short or as long as you would like.
Trial Tr. 23:21-25; 24:1-10 (Jan. 30, 2007). By 2017, it was clear, from both the examinations in
court and the media coverage, that the juror was being accused of improper conduct and she was
no longer interested in cooperating with either side. Outside a Denver courtroom where she
appeared for a divorce hearing, she refused to accept a subpoena duces tecum, which ultimately
resulted in the issuance of a contempt citation and arrest warrant. While it does not appear to
this court that the attorneys on either side acted improperly or unprofessionally, the court
appreciates the juror’s frustration.

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 shootings were common and where there was, at least among the young, such a
culture of non-cooperation. While Juror 75’s perception that, “on the news there
was people getting shot all the time, every day” 33 may be exaggerated, this court’s
review of the post-trial evidence in this case has included, in addition to the Lowry
Park shootings, mention of (1) a drive-by shooting while Q and his girlfriend were
in his girlfriend’s car, (2) a shooting at a Waffle House, (3) a shooting at an IHOP,
(4) a shooting at the Cherry Street Bar and Grill, (5) another shooting in Lowry
Park, and (6) the Dayton Street homicides. In passing, some of the witnesses
indicated that they were involved in or observed many more local shootings. Juror
75’s perception that people were being shot “all the time” was not inconsistent
with the reality that she perceived. The context makes it much easier to understand
why Juror 75 did not readily relate the Lowry Park case to the Dayton Street
murders, or connect Owens to the Dayton Street murders until she and the other
jurors were debriefed after their verdict and told that Owens would be facing
another trial.
The court recognizes that there is conflicting evidence on whether Juror 75
connected the Lowry Park case to the Dayton Street shootings before or after the
verdict.34 But no evidence suggests that she connected Owens to the Dayton Street
murders until the trial judge told the jurors that Owens would be facing another
trial.
As importantly, however, this court finds that any knowledge that Juror 75
may have had about the Dayton Street murders played no part in either hers or any
33

Hrg Tr. 26:22-23 (Oct. 14, 2016).
This court finds her testimony that she did not connect the Lowry Park case to the Dayton
Street murders until after the verdict to be credible, but realizes that there are portions of the
notes of investigators’ interviews which indicate that Juror 75 made this connection during the
trial. See, e.g., SOPC.EX.D-2141; SOPC.EX.D-2143.
34

111

 other juror’s consideration of the case. Even if it were true that, before the jury
reached its verdict, Juror 75 had privately come to the realization that MarshallFields must have been one of the Dayton Street victims, she did not have
information directly connecting Owens to the Dayton Street murders. Owens’s
trial team made the conscious and tactically sound decision not to ask what jurors
knew about the Dayton Street murders. Neither the trial attorneys nor the trial
court conducted any inquiry about Dayton Street. By making this sound, tactical
judgment, they assumed some risk that one or more jurors might possess
information of which the court and counsel would not become aware. Owens has
not proven that a reasonable possibility exists that Juror 75’s limited information
was improperly used by Juror 75 in her own deliberation and has not presented any
proof that she shared any such information with any other juror.
D. Conclusion as to Juror 75’s Service
1. Under Colorado law, Owens is not entitled to relief. Juror 75 was
not deliberately dishonest and Owens has not shown by a
preponderance of the evidence that he was prejudiced.
2. Under the federal McDonough standard, Owens is not entitled to
relief. He has failed to prove by a preponderance of the evidence
that under the totality of the circumstances Juror 75 lacked the
capacity and the will to decide the case based on the evidence. 35
35

While the court made its determination on the totality of the evidence, it has also considered
Sampson’s non-exclusive compendium of factors that are relevant in deciding if a juror was
biased after she deliberately misrepresented material information during voir dire. This case
does not involve deliberate misrepresentation, but those factors can still be instructive and the
court has considered them.
The juror’s interpersonal relationships.
Juror 75 recognized witnesses, but did not know their names and did not have a significant
relationship with any of them. Dickey and Johnson were people whom she felt had been, and
might still be, friends of a son from whom she was partially estranged. She recognized Fields as

112

 3. Under the common law doctrine of implied bias, Owens is not
entitled to relief. He has failed to prove that this is one of those
extreme and exceptional cases to which the doctrine applies. This
court has found no implied bias case involving facts similar to this
case. In this court’s view, none of Juror 75’s questionnaire answers
are of constitutional significance, nor are any of her alleged
connections to either the Lowry Park facts, the Dayton Street facts,
or the people connected with them. The issue would seem to be
whether the cumulative effect rises to such a level that a new trial is

a woman who had spoken at Juror 75’s church, but she did not know Fields’s name and had no
relationship with her. She had a relationship with White and knew that White was a friend of
Owens, but White was not a witness. She had no relationship with either of the Baxter brothers
at the time of the trial.
The juror’s ability to separate her emotions from her duties.
While Juror 75 was concerned for her son and herself, there is little, if any, evidence that she
ever either acted emotionally or allowed emotion to affect her judgment. What little there is
suggests that she did not. Both Q’s and her accounts of the exchange at his home suggest that,
while disappointed that the judge had not excused her, she steeled herself to do her duty. And
both of the bailiff’s lack of any memory of their exchanges with Juror 75 and the bailiff’s failure
to report any emotional concerns to the judge seem more consistent with an unemotional than an
emotional effect on Juror 75’s part.
The similarity between the juror’s experiences and important facts presented at trial.
Juror 75’s son had once been shot and the Lowry Park victims were young men of a similar age.
The scope and severity of the juror’s dishonesty.
Juror 75 was not deliberately dishonest. Her inaccurate answers consisted of her failure to
mention the civil collection cases to which she had been a party, and the two municipal or
misdemeanor convictions which she had suffered 19 to 22 years earlier. (She did not know
about her son Q’s 2006 fraud by check conviction, and one cannot provide information of which
she is unaware.)
The juror’s motive for lying.
Juror 75 did not lie. She did not have her old shoplifting and municipal or misdemeanor assault
convictions in mind when completing a questionnaire concerning a murder case, and did not
think that the “party” question was asking about civil collection cases.

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 justified without regard to the juror’s testimony, which this court
finds to be credible, that she served without bias. 36
4. Because Juror 75 did not met the Baxter brothers until after her
jury service was concluded, and she did not know that they were
related to Marshall-Fields until many years after that, her
friendship with them could not have influenced and did not have any
influence on her jury service.
5. There is no reasonable possibility that extraneous information or
influence affected the jury verdict. This court finds that Owens has
failed to prove that any extraneous information was introduced into
the jury deliberation process and has failed to prove that Juror 75’s
verdict was influenced by extraneous information. She had seen the
Dayton Street murder scene, heard a news segment, seen a bus stop
flyer about the murders, and heard Fields speak in her church. But
there is no evidence that she ever mentioned anything about the
Dayton Street murders to her fellow jurors. This court finds, by a
preponderance of the evidence, that she did not, herself, connect the
36

Juror 75 testified that she served without bias and this court found her credible. When
reviewing for implied bias, an appellate court performs a de novo review. That court could, if it
deemed it appropriate, disregard or totally discount the testimony of the juror as to her lack of
bias. The appellate court might wish to consider, inter alia, the following: (1) While Juror 75
did not have a personal relationship with any witness, she recognized the faces of at least
three. (2) Sometime after the Lowry Park shootings, Q told Juror 75 that there had been a
shooting at Lowry Park. Knowing that many in their late teens and early twenties attended the
event, and that Q did not tell her about the things he was involved in, she specifically looked for
Q when the Lowry Park video was shown in court. (3) After she encountered Dickey at Q’s
apartment, Q told her that his homeboys were testifying and that if she had been seeing his
friends testify, she needed to get herself excused from juror service. (4) Juror 75 was concerned
for her son’s safety and her own because she recognized faces of people whom she suspected
might have gang involvement. (5) She attempted to bring her recognition of faces to the
attention of the court.

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 Dayton Street murders to the Lowry Park case and she did not
connect Owens to the Dayton Street murders until the judge
addressed the jurors in the jury room after the verdict had been
returned.
VI. Claims of Prosecutorial Misconduct
A. Parties’ Positions
Owens argues the prosecution failed to disclose various pieces of materially
favorable evidence, which, had it been disclosed, would have altered the outcome
of the trial. The prosecution disputes the materiality of all of the undisclosed
evidence.
B. Principles of Law
“The prosecution’s affirmative duty to disclose evidence favorable to a
defendant . . . is . . . most prominently associated with [the United States Supreme]
Court’s decision in Brady v. Maryland.” Kyles v. Whitley, 514 U.S. 419, 432
(1995).37 However, Brady did not create a general constitutional right to discovery
in a criminal case. See Weatherford v. Bursey, 429 U.S. 545, 559 (1977). The oftcited Brady holding “that the suppression by the prosecution of evidence favorable
to an accused . . . violates due process where the evidence is material either to guilt
or to punishment, irrespective of the good faith or bad faith of the prosecution”
continues to guide courts in determining whether the government’s failure to
disclose evidence is a due process violation entitling the defendant to relief. Brady
v. Maryland, 373 U.S. 83, 87 (1963).

As the United States Supreme Court

reiterated in Strickler, “[t]here are three components of a true Brady violation: [t]he
evidence at issue must be favorable to the accused, either because it is exculpatory,

37

Colorado codified Brady in its procedural rules. See Crim. P. 16(I); Crim. P. 32.1(d)(5).

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 or because it is impeaching; that evidence must have been suppressed by the State,
either willfully or inadvertently; and prejudice must have ensued.” Strickler v.
Greene, 527 U.S. 263, 281-82 (1999).
Evidence is favorable to the accused if it “would tend to exculpate [the
defendant] or reduce the penalty,” Brady, 373 U.S. at 88, or if “the defense might
have used [the evidence] to impeach the Government’s witnesses by showing bias
or interest,” United States v. Bagley, 473 U.S. 667, 676 (1985). The United States
Supreme Court “disavow[s] any difference between exculpatory and impeachment
evidence for Brady purposes.” Kyles, 514 U.S. at 433.
Due process does not demand that the government employ an open file
policy.

Id. at 437. And the United States Supreme Court has “rejected the

suggestion that the prosecutor has a constitutional duty routinely to deliver his
entire file to defense counsel.” United States v. Agurs, 427 U.S. 97, 111 (1976).
Thus, there is “no constitutional requirement that the prosecution make a complete
and detailed accounting to the defendant of all police investigatory work on a
case.” Id. at 109 (quoting Moore v. Illinois, 408 U.S. 786, 795 (1972)).
Despite these long-standing limitations on the prosecution’s discovery
obligations, the prosecution, “which alone can know [what evidence] is
undisclosed,” bears the burden of disclosing to the accused all materially favorable
evidence. Kyles, 514 U.S. at 437. In Kyles, the government argued it should not
be held accountable for failing to disclose evidence known only to police
investigators and not to the prosecutor. Id. at 438. The United States Supreme
Court rejected that argument and held that “the individual prosecutor has a duty to
learn of any favorable evidence known to the others acting on the government’s

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 behalf in this case, including the police.” Id. at 437.38 Also, neither the moral
culpability nor the character of the prosecutor is determinative of whether the
government suppressed materially favorable evidence. Agurs, 427 U.S. at 110-11.
“Because we are dealing with an inevitably imprecise standard, and because the
significance of an item of evidence can seldom be predicted accurately until the
entire record is complete, the prudent prosecutor will resolve doubtful questions in
favor of disclosure.” Id. at 108. “But to reiterate a critical point, the prosecutor
will not have violated his constitutional duty of disclosure unless his omission is of
sufficient significance to result in the denial of the defendant’s right to a fair trial.”
Bagley, 473 U.S. at 675-76 (quoting Agurs, 427 U.S. at 108).
“[S]howing that the prosecution knew of an item of favorable evidence
unknown to the defense does not amount to a Brady violation, without more.”
Kyles, 514 U.S. at 437; see also Agurs, 427 U.S. at 109-10 (“The mere possibility
that an item of undisclosed information might have helped the defense, or might
have affected the outcome of the trial, does not establish ‘materiality’ in the
constitutional sense.”). Analyzing the materiality of undisclosed evidence is a factintense inquiry. See Kyles, 514 U.S. at 423-28 (wherein the recitation of facts
spans six pages of the opinion). After all, “[a] fair analysis of the holding in Brady
indicates that implicit in the requirement of materiality is a concern that the
suppressed evidence might have affected the outcome of the trial.” Agurs, 427
U.S. at 104. “[E]vidence is material only if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the proceeding would
38

Crim. P. 16 is not limited to favorable evidence and is therefore broader than the principle set
forth in Kyles. Crim. P. 16(I)(a)(3) extends the prosecution’s disclosure obligations to “material
and information in the possession or control of members of his or her staff and of any others who
have participated in the investigation or evaluation of the case and who either regularly report, or
with reference to the particular case have reported, to his or her office.”

117

 have been different.

A ‘reasonable probability’ is a probability sufficient to

undermine confidence in the outcome.” Bagley, 473 U.S. at 682.39 “The question
is not whether the defendant would more likely than not have received a different
verdict with the evidence, but whether in . . . absence [of the undisclosed evidence]
he received a fair trial, understood as a trial resulting in a verdict worthy of
confidence.” Kyles, 514 U.S. at 434.
C. Analysis
1. Evidence of Plea Negotiations
a. Latoya Sailor
Owens claims that the prosecution violated its disclosure obligations by
withholding impeachment evidence related to Sailor. Sailor was incarcerated in
October of 2005, and facing drug and gun charges. In October, before Owens’s
November 8, 2005, arrest, Sailor authorized her attorney to begin plea negotiations
with the prosecution and authorized him to share a tentative outline of information
she could provide about the Lowry Park and Dayton Street homicides. Shortly
after Owens’s arrest, Sailor made a proffer, met with the prosecution, and entered
into a very favorable plea bargain that included her release from custody. The
prosecution knew that negotiations had occurred before Owens’s arrest, and an
Aurora detective had dated notes concerning at least one meeting with Sailor’s
attorney that preceded Owens’s arrest. Those notes were not provided to the
defense.
Regardless of whether the notes in question were discoverable as a witness
statement under Crim. P. 16(I)(a)(1)(VIII), they were not material in the Lowry
39

“The Bagley materiality standard is couched in terms appropriate for use in appellate review.
It does, however, provide general guidance to trial courts as to the degree of importance that
evidence must possess in order to be considered material.” People v. District Court, 790 P.2d
332, 338 (Colo. 1990).

118

 Park case. Owens asserts that they were discoverable under Crim. P. 16(I)(a)(2)
and Bagley, 473 U.S. at 676, because they would impeach Sailor. In the Dayton
Street case the prosecution took the position that, because she feared Owens, Sailor
was not willing to come forward until he was in custody. 40 While this issue may
have greater significance in connection with Owens’s conviction and/or sentence
in the Dayton Street case, it has little significance here. In this case, Sailor did not
express a fear of Owens. Nor did the prosecution suggest in opening or closing
that she feared him. She testified that she did not agree to come forward until after
the police caught the main suspect, meaning Owens, but she did not indicate that
her delay was because of fear. One could as easily infer that she did not want to
help the police find and arrest Owens out of loyalty to either Owens or Ray.
Owens claims that the prosecution failed to disclose that it promised to move
Sailor out of state. But the defense was aware that Sailor was in the witness
protection program and had been relocated.

Owens also claims that the

prosecution promised to prevent social services’ involvement in Sailor’s
relationship with her son. This claim is unsupported and does not have merit.
None of this additional discovery related to Sailor would have affected the
outcome of the case.
b. Jamar Johnson
Owens asserts the prosecution withheld several pieces of materially
favorable evidence that King could have used to further impeach Johnson. First,
he asserts that the prosecution failed to disclose that APD Detective Gretchen
Fronapfel (Fronapfel) threatened Johnson with co-conspirator liability and life in

40

But the prosecution knew, and the detective’s notes demonstrate, that Sailor’s attorney had
discussed her possible testimony with the prosecution before Owens’s arrest.

119

 prison for killing Marshall-Fields and Wolfe. This non-disclosure claim relates to
a recorded interview. The police recorded some interviews on mini-cassettes,
some on standard audio cassettes, some on video cassettes, and some digitally.
Cassettes were not routinely copied. Instead, the defense was put on notice that the
recording existed and could ask for a copy if they wished. Shortly before trial, the
prosecutor discovered that he did not have the recording of Johnson’s August 2005
interview. He obtained one and the defense was provided a copy of the cassette at
that time. Some parts of the interview were inaudible, including a part in which
the detective attempted to induce Johnson to cooperate by threatening to charge
him as a conspirator in the Dayton Street murders. Johnson testified during the
32.2 hearing in the Dayton Street case that he was not affected by Fronapfel’s
threats because he knew he was not involved with the Dayton Street homicides.
Second, Owens asserts the prosecution failed to disclose that it issued
Johnson a target subpoena to testify before the grand jury. Owens believes it was a
target subpoena because it contained an advisement of rights. While the subpoena
itself was not disclosed, Johnson’s grand jury testimony was, and in it, he
acknowledged that his subpoena contained an advisement of his rights.
Third, Owens asserts the prosecution did not disclose that Johnson received
a deferred judgment and sentence in Arapahoe County. The defense must have
had this information because Johnson admitted it on cross-examination at trial.
Fourth, Owens asserts the prosecution withheld that the prosecution in
Boulder County did not revoke Johnson’s probation after he committed a new law
violation. Again, King impeached Johnson at trial with the fact that Johnson’s
probationary sentence in Boulder County was not revoked after he picked up new
charges. Thus, the defense must have had the information.

120

 Fifth, Owens asserts the prosecution did not disclose that it conferred some
benefit on Johnson with respect to his driving under restraint ticket.

The

impeachment value of such a benefit would have been de minimis.
Sixth, Owens asserts the prosecution withheld information that Johnson
witnessed a shooting incident at the Cherry Street Bar and Grill. Johnson was not
a suspect in that incident. After the shooting, he and the victim fled from the
assailant. Law enforcement officers called them back. Johnson cooperated with
the officers and tried to convince the victim to do so as well. He wandered off
repeatedly and had to be called back, and he gave the officers a date of birth that
was two days off and told them that his name was Jay Johnston. Owens asserts
that this was relevant impeachment evidence because Johnson was on probation
and did not report the police contact to his probation officer until asked about it.
They also assert that it was relevant impeachment evidence because he could have
been charged with an offense for giving false information to a police officer, even
though the officer considered him a cooperating witness and had no intention to
charge him with anything. Even if the trial court had admitted this evidence, it
would not have caused the jury to disbelieve Johnson’s eyewitness account of the
Lowry Park shootings.
Seventh, Owens asserts the prosecution failed to disclose that Johnson
provided a false name to a Denver police officer yet was not charged with
providing false information. The prosecution represents in its response that it has
no knowledge of the incident to which Owens is referring. Even assuming a Crim.
P. 16 violation, the impeachment value would have been de minimis.
Eighth, Owens contends the prosecution did not disclose that Johnson was
involved in a shooting between the Bloods and Crips at a Waffle House. When
interviewed about the incident, Johnson admitted he was associated with the
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 Bloods but did not identify the shooter(s). J. Martin testified during the 32.2
hearing in the Dayton Street case that Johnson was one of the shooters and that 9
mm and .45 caliber guns were used.

According to J. Martin, Johnson was

concerned that he would be charged for the Waffle House incident. According to
Owens, this impeachment might have caused the jury to believe that Johnson did
not need or want witness protection because the Bloods provided him with the
protection he needed. But eliciting that testimony would have opened the door to
rehabilitative evidence about Johnson’s need for witness protection, due to the
murder of Marshall-Fields because he was a Lowry Park witness. Competent
defense counsel would not have chanced opening the door to such evidence.
None of the alleged undisclosed evidence presents a significant issue. These
lines of impeachment would not have affected the outcome of the trial.
c. Miguel Taylor
Miguel Taylor did not testify at trial, and to this court’s knowledge, none of
his information was used to convict Owens. In fact, the exhibits submitted by the
defense in support of this claim reflect that Miguel Taylor consistently reported
that he did not witness the shooting at Lowry Park. Thus the court fails to see how
Owens was prejudiced by the prosecution’s failure to disclose any benefits Miguel
Taylor received in exchange for any cooperation he provided against Owens.
d. Brandi Taylor
Owens argues the prosecution failed to disclose that it caused the dismissal
of a misdemeanor/petty offense case against B. Taylor. She was charged with
throwing missiles at vehicles and disorderly conduct following a road rage

122

 incident.

She threw a pop can and a juice box at another vehicle.41

This

information is not materially favorable.
2. Sailor’s Alleged Involvement in a Michigan Homicide
Sailor’s former boyfriend, a Michigan drug dealer, claimed her as an alibi
witness in a Michigan homicide investigation. The Michigan detectives wanted to
find out whether she would confirm the alibi. The Michigan detectives were not
investigating Sailor. They were interested in her only as a witness in connection
with the homicide.

Without consulting Sailor, Fronapfel and prosecution

investigators arranged a meeting between the Michigan detectives and Sailor at the
Denver airport before Sailor was returned to her protected witness location. No
Colorado investigator or police officer sat in on the interview. Sailor cooperated in
the interview. She did not confirm her ex-boyfriend’s alibi, but he was ultimately
cleared when DNA evidence confirmed that someone else committed the murder.
The prosecution is responsible to disclose information “in the possession or
control of members of his or her staff and of any others who have participated in
the investigation or evaluation of the case and who either regularly report, or with
reference to the particular case have reported, to his or her office.” Crim. P.
16(I)(a)(3). The Michigan detectives do not fall within the ambit of persons whose
information is attributable to the prosecution. But the prosecution’s investigators
accompanied Sailor to the airport, arranged for the detectives to interview her, and
knew the general purpose of the interview. Nevertheless, the court does not find
that the Michigan information constitutes materially favorable evidence. There is

41

As to Owens’s claim that the prosecution did not disclose a letter that Fronapfel wrote to an
apartment complex on B. Taylor’s behalf, the prosecution disclosed the letter and Fronapfel’s
report about the letter to the defense prior to trial.

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 no reasonable probability that the trial’s outcome would have been affected by the
Michigan information.
3. Evidence on Alternate Suspects
Owens argues the prosecution deprived him of three documents – the
Special Bulletin, Case Filing (Versadex Report), and Person Hardcopy – generated
by law enforcement which indicate numerous alternate suspects for the Lowry Park
shootings.
On the night of the Lowry Park shootings, T. Wilson received suspect
descriptions and vehicle descriptions from officers on scene at Lowry Park.
Because the scene was chaotic, the descriptions of the suspects were numerous and
inconsistent. From these varying descriptions, T. Wilson hurriedly compiled three
suspect descriptions for a Special Bulletin. None of the descriptions in the bulletin
pertained to any single suspect. In contrast, the descriptions of the getaway vehicle
were consistent so he entered that description into the Special Bulletin as well and
distributed the Special Bulletin to the officers on the street. The purpose of issuing
the Special Bulletin was to alert patrol officers to the description of the suspects’
vehicle.
The Versadex Report for this case lists seven suspects.

The first five

suspects are not identified by name but include physical descriptions and some
include clothing descriptions. Owens is listed as Suspect 6, and Carter, Sr. is listed
as Suspect 7. The Versadex Report is a compilation of information for a particular
case that is used for administrative purposes such as compiling statistics. It has no
investigative value and does not reflect a belief among law enforcement that there
were seven suspects in the Lowry Park shootings.
T. Wilson ran a special computerized inquiry known as a Person Hardcopy
on Owens on July 21, 2004. T. Wilson does not recall why he ran this inquiry.
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 The report has all of the identifying information on Owens available in the APD’s
system. It also has a Related Persons section, where Perish Carter (Carter) and
Maurice Ray (Ray’s brother) are listed. But there is no information about why the
APD considered these people to be Owens’s associates.

Neither Carter nor

Maurice Ray was significant to the APD at that time. Carter was in prison on July
4, 2004, and there was no information in the report that would have caused T.
Wilson to connect Maurice Ray to Ray and Ray to Owens. In short, the Person
Hardcopy does not constitute evidence that law enforcement viewed Owens as a
suspect well before the Dayton Street homicides, and it does not have any other
material significance.
4. Jimilah Arnold Reports/Recordings
The essence of Jimilah Arnold’s (Arnold) information was that Percy Carter,
Jr. had indicated to Arnold that Ray was facing charges in connection with the
Lowry Park shootings and that after the Dayton Street homicides, he was upset
with Ray because he considered the murders of Marshall-Fields and Wolfe to be
unnecessary and unjustified. In terms of Lowry Park, Arnold did not provide any
exculpatory information because Owens’s trial team was aware that Ray had been
charged as an accessory in Lowry Park.
5. Statements of Tetrick Brewer
Owens claims the prosecution failed to disclose the information Tetrick
Brewer (Brewer) provided to law enforcement about Lowry Park, specifically that
there was only one shooter and that the shooter lost a fight, got a gun, and left.
There was overwhelming evidence that there were two shooters at Lowry Park.
There was also abundant evidence that both had guns on their persons and lifted
their shirts to reveal that guns were tucked into their pants. While Brewer’s
information, if deemed credible, might have provided additional evidence in
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 support of self-defense, namely that another witness saw the shooter attacked, it
also would have provided evidence that the shooting was done after deliberation –
evidence of going to a vehicle to retrieve a gun and returning to shoot someone.
Because the jury would conclude that Owens shot Vann, evidence that Owens was
in a fight, obtained a gun from the Suburban, and then shot Vann would have been
highly detrimental to the self-defense argument. Brewer’s information was not
materially favorable evidence.
6. Police Recordings and Records
As to the audio recording of Fronapfel’s interview of B. Taylor on February
4, 2006, vehicle records, and investigator notes, Owens does not describe in his
petition the materiality of the allegedly undisclosed evidence.
But the undisclosed report of the interview of Brent Harrison (Harrison)
warrants some discussion. An APD officer interviewed Harrison at the scene of
the Dayton Street homicides.

That report reflects that Marshall-Fields and

Harrison attended a Father’s Day barbeque on June 19, 2005. At the barbeque,
Marshall-Fields told Harrison that the man who shot Marshall-Fields and that
man’s girlfriend were at the barbecue. Sailor told law enforcement that she and
Ray attended the barbecue but she could not recall if Owens was there. Thus,
Marshall-Fields’s statements to Harrison tend to indicate that Ray shot MarshallFields.
After being shot at Lowry Park on July 4, 2004, Marshall-Fields was taken
to Denver Health hospital where, at 12:10 a.m. on July 5, 2004, an APD detective
recorded a brief interview with him. It reads in relevant part:
Marshall-Fields: [Vann] runs over to the guy um, and
then the dude pulled out his gun shoots him three, four
times like from a distance we are, from me to you. And
then I start like turning . . . well I’m walk . . . well I’m
going, I’m trying to chase after him. He looks up at me,
126

 sh . . . sh . . . point the gun at me, so I dodge, whatever.
And he shot me twice and then I . . . I think he shot some
more other people. And then uh, him and his friends, they
(inaudible), they drove off.
[Detective]: The person with the gun that shot you and
uh, your friend [Vann], do you remember what he looked
like?
Marshall-Fields: Um, the same person and he had a
white shirt on, braids, uh . . . blue jeans, blue short jeans,
white hat. About 6’1”, 180 or something like that
(inaudible).
SOPC.EX.P-2063.
Owens asserts that the undisclosed Harrison interview was exculpatory. He
argues that Marshall-Fields statements at the barbeque indicate that Ray shot
Marshall-Fields and that Marshall-Fields’s statement to the detective indicate that
the person who shot Marshall-Fields also shot Vann.

He asserts that, taken

together, they suggest that Ray, not Owens, shot and killed Vann.

But the

ballistics evidence clearly established that there were two shooters, not one. The
description Marshall-Fields gave to the detective was a description of Owens and
not Ray. And it was a description of the man who shot Vann and then aimed the
gun at Marshall-Fields before Marshall-Fields dodged and was shot.
Had this evidence been disclosed, it would not have affected the outcome of
the trial.
7. Cumulative Effect
The prosecution presented a convincing case that Owens killed Vann.
Johnson’s eyewitness account of the shooting directly inculpated Owens. Sailor’s
testimony about Ray’s statements to Owens after the shooting was highly
inculpatory.

Green’s video-recorded interview and the various witnesses’
127

 descriptions supplied powerful corroboration of Owens’s identity as Vann’s
shooter.
All of the undisclosed evidence is impeachment evidence. Some of it may
have been used by Owens’s trial team to impeach a witness, the APD’s
investigation, or the prosecution’s integrity.

At trial, Owens’s trial team

impeached witnesses with their criminal histories, they suggested that certain
witnesses were biased in favor of the prosecution, they brought to light
inconsistencies in many witnesses’ testimony, and they generally impeached the
witnesses on salient points.

The points that they made carried greater

impeachment value than any of the undisclosed evidence.
There is no reasonable probability that the outcome of the trial or sentencing
hearing would have been different had the undisclosed evidence been timely
provided to the defense. See Bagley, 473 U.S. at 682 (“The evidence is material
only if there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.”).

The

undisclosed evidence did not violate Owens’s right to a fair trial and therefore did
not undermine confidence in the outcome of his trial. See Kyles, 514 U.S. at 434
(the controlling question is “whether in its absence [the defendant] received a fair
trial, understood as a trial resulting in a verdict worthy of confidence.”).
VII. Conflict of Interest Claims
A. Parties’ Positions
Owens contends he was deprived of his Sixth Amendment right to effective
and conflict-free counsel because four of the government’s witnesses – Sailor,
Johnson, Carter, Sr., and J. Martin – were represented by deputy public defenders
in Boulder and Arapahoe Counties.

In the prosecution’s view, Owens’s trial

counsel were not conflicted because the Office of the State Public Defender’s
128

 (OSPD) conflicts of interest policy anticipated and avoided the very conflict issues
now raised by Owens.
B. Summary of the OSPD’s Conflicts of Interest Policy and Practices
1. Written Conflicts of Interest Policy
The OSPD has maintained a written conflicts of interest policy since
approximately 1993. The 2000 version was in effect at the time of the trial in this
case. SOPC.EX.D-2.
2. Duties of Loyalty
Under the OSPD conflicts of interest policy, each deputy public defender
(DPD) has a duty of loyalty to zealously represent his/her current clients. As used
here, current clients are those clients with whom the DPD appears regularly in
court. For current clients, the DPD also files and argues substantive motions,
engages in plea negotiations and/or takes the case to trial, and represents the client
at sentencing. A current client enjoys a confidential attorney-client relationship
with his/her DPD.
Each DPD also owes a continuing duty of loyalty to each former client. The
OSPD designed its conflicts of interest policy to conform, inter alia, to Colo. RPC
1.9(c)(1), which precludes each DPD from using information relating to his/her
representation of a former client to the former client’s disadvantage. This is
referred to as the duty “to do no harm.”
Within a regional office, each DPD also owes a duty “to do no harm” to
other DPDs’ current and former clients. One DPD cannot use information from
another DPD’s current or former client to that client’s disadvantage. Information
means confidential information, or information that is not within the public realm.

129

 3. Current Clients of a Regional Office42
Whenever a current client of a regional office is a witness against another
current client of the same regional office, the conflicts of interest policy mandates
withdrawal from one of the cases. The policy allows the office to analyze the
cases to determine if the office can remain on the most serious case with the most
culpable defendant. In situations where a conflict is not initially discernible, the
policy still requires withdrawal because in the OSPD’s view, a conflict is
inevitable.
The withdrawing DPD’s client becomes a former client. The remaining
client is known as the surviving client.
After withdrawal has occurred, an ethical screening device is put in place
within the regional office.43 The screening device precludes access to the former
client’s closed file without approval from the office head of the regional office. It
also precludes the withdrawing DPD from discussing the former client’s case with
anyone. Under the policy, the withdrawing DPD is supposed to issue a memo to
the regional office informing the staff of the withdrawal with a reminder that s/he
cannot discuss the former client’s case with anyone. While issuing the memo
rarely happens in practice, the withdrawing DPD adheres to the screening device to
prevent conflicts of interest.
Similarly, the ethical screening device precludes the DPD for the surviving
client from seeking information about the former client from the closed file or from
the DPD who withdrew. The ethical screening device allows the DPD for the
42

The court’s analysis on witness-client conflicts of interest presumes that Owens’s trial team
practiced out of the Arapahoe public defender’s office. In reality, King moved his office to the
OSPD around November 2006. Middleton’s office was always in the OSPD. Only Kepros had
an office in the Arapahoe PDO.
43
Owens argues investigators and other support staff were not subject to the ethical screening
device, but per the policy, the device applies to all employees of the OSPD.

130

 surviving client to avoid any imputation of a conflict because s/he does not have
access to confidential information about the former client.
4. Former Clients of a Regional Office
When a former client of a regional office becomes a witness against a
current client of the same regional office, the DPD for the current client owes a
duty of loyalty to the current client to zealously represent that client as well as a
duty of loyalty to the former client “to do no harm” to that client. According to the
OSPD’s policy, the concurrent duties of loyalty do not normally result in a conflict
of interest because the DPD for the current client generally does not possess
confidential information from a former client that is relevant to the current client’s
case and that would materially advance the current client’s interests.
To determine if the DPD must withdraw from the current client’s case, the
OSPD’s conflicts of interest policy utilizes Colo. RPC 1.9. Under the policy and
Colo. RPC 1.9, the DPD is allowed to remain on the current client’s case if the
current and former clients’ cases are not the same or substantially related. The
cases are not substantially related if the current client’s DPD does not have
confidential information about the former client that will materially advance the
current client’s case. In that scenario, the DPD can zealously represent the current
client while also honoring the duty to the former client not to use confidential
information to disadvantage the former client.
On the other hand, if the DPD possesses confidential information from a
former client that is relevant to the current client’s case and that would also
materially advance the current client’s interests, the DPD is required to withdraw.
By withdrawing, the DPD preserves the current client’s right to conflict-free
counsel and the DPD complies with the duty of loyalty to the former client not to
use confidential information to that client’s disadvantage.
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 The duty not to harm a former client is therefore not mutually exclusive to
the duty to zealously represent a current client. The duty of loyalty to the former
client does not preclude the current client’s DPD from vigorously cross-examining
the former client as long as the DPD does not have any of the former client’s
confidential information.
The policy also allows the DPD for the current client to determine if
anything else about the former client’s representation precludes him/her from
zealously representing the current client pursuant to Colo. RPC 1.7(a)(2). If there
is, then the policy requires the DPD to withdraw and to ask the court to appoint
ADC.
5. Current and Former Clients of Different Regional Offices
The OSPD views each regional office as a separate firm for purposes of
resolving conflicts. The policy allows DPDs within a regional office to share their
client’s confidences with other DPDs in the same regional office in an effort to
provide the most effective representation available. The policy recognizes the
need for DPDs to share information about their cases in order to take advantage of
the accumulated expertise and knowledge within each regional office. In contrast,
the policy precludes DPDs in one regional office from sharing client confidences
with DPDs in other regional offices. There is one exception – if a client has cases
in multiple jurisdictions, the policy allows the client’s DPDs to discuss the client’s
confidential information for the purpose of reaching a disposition that covers all of
the jurisdictions involved.
Pursuant to the policy, if one regional office’s client is a witness against a
different regional office’s client, neither regional office is required to withdraw
because confidential information cannot be shared among regional offices and thus
there is no conflict of interest.
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 6. Courtesy Appearances During Duty Court
In addition to each DPD’s normal caseload, each DPD in the Arapahoe
Public Defender’s office (PDO) is assigned on a rotating basis to handle the high
volume of initial appearances for recent arrestees in duty court. The duty DPD
appears with all of the recent arrestees unless private counsel appears. It is not
uncommon for there to be many recent arrestees in duty court. Consequently, the
duty DPD handles many cases in a very short period of time. Duty DPDs routinely
address bonds, mandatory protection orders, and set future court appearances.
Duty DPDs will at times even make bond arguments on behalf of codefendants at
the initial appearances. Because a majority of the PDO’s clients are in custody, it
is rare that the duty DPD substantively represents a recent arrestee.
Courtesy appearances usually occur before the court formally appoints the
regional PDO on the case and before any type of conflicts check has occurred.44
Yet the duty DPD must represent each person with the level of competence and
diligence required by the Colorado Rules of Professional Conduct. See, e.g., Colo.
RPC 1.1; Colo. RPC 1.3. The circumstances of each case and the practices of the
individual court determine whether the court formally appoints the regional PDO at
the initial appearance.
Following a courtesy appearance, and without regard to whether a different
DPD is assigned to a recent arrestee’s case or if the recent arrestee retains private
counsel, the duty DPD owes a duty “to do no harm” to all of the recent arrestees
s/he appeared with in duty court.
The OSPD views courtesy appearances as important to the criminal justice
system because the duty DPD can argue bond, put the government on notice that

44

In the court’s view, appearances by the duty DPD are best described as courtesy appearances.

133

 the individual is represented, and identify evidentiary or constitutional issues at an
early stage.

On the other hand, courtesy appearances often occur before the

regional office or the duty DPD determines whether there are any conflict issues
arising out of the recent arrestee’s case.
At other times, a particular case or arrestee has such notoriety within the
courthouse that the duty DPD immediately recognizes a conflict. When a conflict
is recognized, the duty DPD alerts the court of the conflict but still provides limited
assistance, such as arguing bond, to the arrestee. Under the policy, DPDs should
file a Notice of Withdrawal, but in practice, they do not always file the notice,
especially if the DPD only made a courtesy appearance on behalf of the recent
arrestee.45
The OSPD policy encourages duty DPDs to avoid substantive confidential
conversations with the arrestee until the questions of conflicts and indigency are
resolved.
7. The Colorado Supreme Court’s View of the OSPD’s Conflicts of
Interest Policy and Ethical Screening Device
The Colorado Supreme Court in People v. Shari, 204 P.3d 453 (Colo. 2009),
relied on the OSPD’s adherence to its conflicts of interest policy and to its ethical
screening device when it reversed the trial court’s pretrial order disqualifying
Shari’s DPDs. 46 The Shari court reversed the trial court for failing to rely on the

45

This practice differs among and within each regional office.
After the 2008 version of the Colorado Rules of Professional Conduct was issued, the conflicts
of interest policy was updated and revised, and became effective on January 1, 2009. The
written policy regarding one client becoming a witness against another client did not change. No
change was necessary because the 2000 policy was drafted and implemented to conform with
Colo. RPC 1.7 and 1.9, and these rules were not substantially changed in the 2008 revision to the
Rules of Professional Conduct. Thus, the same policy for witness-client conflicts was in place
for both Owens and Shari.
46

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 ethical screening device as an effective tool used to prevent the unauthorized
dissemination of a client’s confidential information. People v. Shari, 204 P.3d
453, 459-60 (Colo. 2009).
In Shari, the Colorado Supreme Court addressed conflicts arising within
different regional offices of the public defender system. 47 In that case, two DPDs
in the Jefferson PDO represented the defendant. Id. at 455-56. At the same time, a
DPD in the Denver PDO represented a government witness against the defendant.
Id. at 456. In addition, other DPDs in the Jefferson PDO and in other regional
offices previously represented two other government witnesses against the
defendant. Id.
During the relevant time period, the OSPD operated pursuant to the ethical
screening device described in its conflicts of interest policy. The screening device
prohibited DPDs from (1) accessing closed files of former clients, (2) using any
confidential information from a former client to that former client’s disadvantage,
and (3) sharing clients’ confidential information between regional offices within
the public defender system. Id. The defendant’s DPDs in Shari were therefore
screened from learning and using confidential information from the other clients
that could be used to the other clients’ disadvantage.
With respect to the Denver DPD’s simultaneous representation of a witness
against Shari, the Colorado Supreme Court found that “the Denver public defender
who handled the Levy case . . . is in no way involved in the Shari case, and neither
[of Shari’s DPDs in Jefferson County] had any involvement in Levy’s case [in
Denver].” Id. at 458.

47

In Rodriguez v. District Court, 719 P.2d 699 (Colo. 1986), the Colorado Supreme Court
addressed a conflict of interest caused by the representation of the defendant and a witness by the
same regional PDO.

135

 With respect to the former representation of two witnesses by other DPDs in
the Jefferson PDO, it found that “none of the individual public defenders involved
in representing these ‘former clients’ is involved in the Shari case, and neither [of
Shari’s DPDs] participated in any of the prior cases.” Id. at 458. Based on those
findings, the Colorado Supreme Court held that there was no conflict of interest
because “there [was] no reason to think that either [of Shari’s public defenders]
obtained any confidential, material information.” Id.
Relying on the adherence to the conflicts of interest policy and the ethical
screening device, the Colorado Supreme Court found there was no conflict of
interest and vacated the trial court’s order disqualifying Shari’s DPDs. Id. at 462;
see also People v. Nozolino, 298 P.3d 915, 921 (Colo. 2013) (trial court’s order
disqualifying public defender was reversed in part because the conflicted DPD was
screened from the case and was not supervising the other DPDs representing the
defendant); People v. Chavez, 139 P.3d 649, 654-55 (Colo. 2006) (whether
prosecutor’s office employed a properly drafted screening device was relevant to
issue of disqualification of entire office).48
C. Principles of Law
1. Sixth Amendment Right to Counsel
The Sixth Amendment to the United States Constitution provides that “the
accused shall enjoy the right . . . to have the Assistance of Counsel for his
defen[s]e.” U.S. CONST. amend. VI; see also COLO. CONST. art. II, § 16; C.R.S. §
18-1-403. “That a person who happens to be a lawyer is present at trial alongside
the accused, however, is not enough to satisfy [this] constitutional command.”
Strickland, 466 U.S. at 685. The constitutional right to counsel, therefore, “has
48

The Colorado Supreme Court did not address the OSPD’s conflicts of interest policy in West
v. People, 341 P.3d 520 (Colo. 2015).

136

 long been recognized” as “the right to the effective assistance of counsel.” United
States v. Cronic, 466 U.S. 648, 654 (1984) (quoting McMann v. Richardson, 397
U.S. 759, 771 n.14 (1970)). “Where a constitutional right to counsel exists, [the]
Sixth Amendment cases hold that there is a correlative right to representation that
is free from conflicts of interest.” Wood v. Georgia, 450 U.S. 261, 271 (1981).
The two-pronged test announced in Strickland generally governs postconviction ineffective assistance of counsel claims. 466 U.S. at 687. But when the
alleged ineffectiveness is based on conflicts of interest stemming from multiple
representation,49 Cuyler v. Sullivan, 446 U.S. 335 (1980), applies.

See also

Armstrong v. People, 701 P.2d 17, 19 (Colo. 1985) (applied Sullivan to multiple
representation conflict of interest where an attorney represented a husband and
wife who were charged with several offenses in connection with an armed
robbery).
In Sullivan, two attorneys represented three codefendants in their separate
trials. 446 U.S. at 337. Sullivan did not object during trial but later claimed his
attorneys labored under a conflict that denied him the right to the effective
assistance of counsel under the Sixth Amendment. Id. at 337-38. The United
States Supreme Court held that “[i]n order to establish a violation of the Sixth
Amendment, a defendant who raised no objection at trial must demonstrate that an
actual conflict of interest adversely affected his lawyer’s performance.” Id. at
348.50 “Thus, a defendant who shows that a conflict of interest actually affected

49

Multiple representation encompasses representation of codefendants by an attorney regardless
of whether the codefendants are tried simultaneously (multiple simultaneous representation) or
separately (multiple serial representation). See Beets v. Scott, 65 F.3d 1258, 1265 n.8 (5th Cir.
1995).
50
Mickens v. Taylor, 535 U.S. 162, 173 (2002), substitutes “significantly” for “adversely” when
describing the Sullivan standard.

137

 the adequacy of his representation need not demonstrate prejudice in order to
obtain relief.” Id. at 349-50.
Conflicts of interest exist in countless forms throughout the practice of law.
The United States Supreme Court in Sullivan analyzed only one type of conflict,
which was multiple representation. Multiple representation does not exist in this
case. According to Owens, other types of conflicts exist, specifically in the form
of his trial team’s (and other DPDs’) simultaneous and successive representation of
government witnesses.
2. Simultaneous Representation of a Government Witness
In January 2015, the Colorado Supreme Court announced West v. People,
341 P.3d 520 (Colo. 2015). West is a joint opinion that addresses conflicts of
interest alleged by West and Cano. In West, the Colorado Supreme Court, relying
primarily on Fourth Circuit precedent, applied Sullivan to conflicts created by
simultaneous representation of the defendant and a government witness. West, 341
P.3d at 531.
West was charged with, inter alia, sexual assault on a child. Id. at 524. The
victim’s mother (the “witness”) testified against West.

Id.

The Mesa PDO

represented West at the same time the El Paso PDO represented the witness on
unrelated charges. Id. An investigator for the Mesa PDO requested the witness’s
file from the El Paso PDO. Id. at 530-31. It is not clear if that request was
fulfilled, but the Colorado Supreme Court, without referring to the OSPD’s ethical
screening device, found that the Mesa PDO “undeniably had access to” the
witness’s confidential information in the El Paso PDO’s file. Id. at 531. The
Colorado Supreme Court viewed that situation as one that was “inherently
conducive to and productive of divided loyalties.” Id. (quoting People v. Castro,
657 P.2d 932, 945 (Colo. 1983)). According to the Colorado Supreme Court, the
138

 Mesa PDO had a potential imputed conflict in representing West because the El
Paso PDO simultaneously represented the witness. Id. Because the Mesa PDO’s
representation of West and the El Paso PDO’s representation of the witness were
simultaneous, the Colorado Supreme Court held that the potential imputed conflict
must be analyzed under Sullivan and remanded the case for that determination. Id.
Cano was charged in Adams County with first-degree murder. Id. at 524-25.
The prosecution endorsed Aguilar as a witness against Cano. Id. At that time,
Aguilar also faced charges in Adams County and was represented by the Adams
PDO. Id. Different DPDs in the Adams PDO represented Cano and Aguilar
simultaneously. Id. The charges against Aguilar were unrelated to the charges
against Cano. Id. at 524. Aguilar did not testify at trial. Id. at 525. Based on its
finding that the DPDs in the Adams PDO “routinely consulted each other on cases
and worked in close proximity to one another,” the Colorado Supreme Court
“presume[d] that Cano’s public defenders . . . had access to confidential material
about Aguilar, and vice versa.” Id. at 531. According to the Colorado Supreme
Court, the Adams PDO had a potential conflict in representing Cano because the
Adams PDO simultaneously represented Aguilar. Id. Because the representation
was simultaneous, the Colorado Supreme Court held that the potential conflict
must be analyzed under Sullivan and remanded the case for that determination.51
Id.

51

The Colorado Supreme Court distinguished direct and imputed conflicts of interest, but that
distinction did not affect its analysis. West, 341 P.3d at 531 n.10 (“[W]e express no opinion
regarding which ethics rule applies to these public defenders—Colo. RPC 1.10 (the general
imputation rule) or Colo. RPC 1.11 (the special conflicts of interest rule for government
employees).”). But see Nozolino, 298 P.3d at 919 n.1 (conflict of one DPD is not imputed to
another DPD under Colo. RPC 1.11 cmt. 2).

139

 Even before West, the Colorado Court of Appeals applied Sullivan to
conflicts of interest stemming from an attorney’s simultaneous representation of
the defendant and a government witness. In People v. Miera, 183 P.3d 672, 67374 (Colo. App. 2008), an attorney simultaneously represented Miera and D.R. who
were both charged with sexually assaulting the same victim but at different times.
Miera and D.R. were charged separately, not as codefendants. Id. at 673. After
five months of simultaneously representing Miera and D.R., the attorney withdrew
from D.R.’s case. Id. D.R. testified at trial against Miera. Id. at 674.
Miera involves conflicts of interest based upon the attorney’s simultaneous
and successive representation of the defendant and a government witness. Even
though the attorney did not represent D.R. during Miera’s trial, the Colorado Court
of Appeals viewed the scenario as more akin to simultaneous than to successive
representation because of the close relationship between the cases: the victim was
the same, D.R. testified against Miera, and the attorney simultaneously represented
Miera and D.R. for five months. Id. at 676.
To resolve whether Sullivan applied, the Miera court surveyed case law
from the Colorado appellate courts as well as from the federal Circuit Courts. Id.
Finding no Colorado authority limiting the scope of Sullivan, the Colorado Court
of Appeals applied Sullivan and concluded the attorney suffered an actual conflict
of interest that adversely affected his performance in representing Miera. Id. at
677-78.
3. Successive Representation of a Government Witness
Whether Sullivan applies to conflicts of interest stemming from an
attorney’s successive representation of a defendant and a government witness is an
“open question.” Mickens v. Taylor, 535 U.S. 162, 176 (2002).

140

 Mickens was convicted of murder and sentenced to death. Id. at 164. In
federal habeas proceedings, Mickens claimed he was denied effective assistance of
counsel due to his attorney’s conflict of interest. Id. at 162. One of Mickens’s
court-appointed trial attorneys had been representing Mickens’s victim in an
unrelated juvenile case at the time that Mickens killed him. Id.
Mickens presents a conflict scenario unlike Sullivan.

In Sullivan, two

attorneys simultaneously represented three codefendants. 446 U.S. at 337. In
Mickens, the defendant’s attorney previously represented the victim. 535 U.S. at
162. Despite the difference, the parties in Mickens assumed Sullivan applied. Id.
at 174. In Mickens, Justice Scalia observed that assuming Sullivan applied was
“not unreasonable” in light of the broad application of Sullivan by the Circuit
Courts. Id. (citing cases); see also Beets v. Scott, 65 F.3d 1258, 1266 n.10 (5th Cir.
1995) (listing cases). Justice Scalia agreed with the Fifth Circuit that the Circuit
Courts have applied Sullivan “unblinkingly” to all types of conflicts. Mickens, 535
U.S. at 174 (quoting Beets, 65 F.3d at 1266). To date, neither the United States
Supreme Court nor the Colorado Supreme Court has resolved whether Sullivan
applies to conflicts arising from successive representation of a government witness
and the defendant.
The Colorado Supreme Court acknowledged the unresolved question in
Dunlap v. People, 173 P.3d 1054, 1073 n.24 (Colo. 2007), when it stated that “[i]n
this case, the parties’ briefs assume [Sullivan] applies . . . . We therefore decide
the issue on the assumption that [Sullivan] applies.” Additionally, the Colorado
Supreme Court stated in West that “[b]ecause the parties have not briefed the issue,

141

 we assume, without deciding, that the Sullivan standard applies to alleged conflicts
arising from successive representation.” West, 341 P.3d at 530. 52
People v. Drake, 748 P.2d 1237 (Colo. 1988) preceded Dunlap and West. In
Drake, the Colorado Supreme Court cited Sullivan when it resolved the
defendant’s ineffective assistance claim based on his counsel’s prior representation
of a government witness. People v. Drake, 748 P.2d 1237, 1247 (Colo. 1988).
The Colorado Supreme Court in Drake disposed of the defendant’s claim finding,
[N]o basis in the record to support the assumption that
defendant’s attorney did not fully explore the
circumstances of [the witness’s] conviction because of
conflict of interest concerns. To the contrary, the public
record of that conviction contained ample information to
illustrate the circumstances thereof without resort to any
information that might have been privileged.
Id.
Like the Colorado Court of Appeals in Miera, the Colorado Supreme Court
in West recognized that “[t]he [United States] Supreme Court has never expressly
limited Sullivan to cases involving only joint representation of codefendants, not
even in Mickens when it plainly could have.” West, 341 P.3d at 528. And, while
noting that the majority of federal Circuit Courts apply Sullivan in cases of
successive representation, id. at 530 n.9 (listing cases), the Colorado Supreme
Court also has not resolved the question.
Following the trend of the federal Circuit Courts and drawing support from
West and Drake, this court will apply Sullivan to the alleged successive
representation conflicts of interest.

52

In this case, the prosecution does not concede that Sullivan applies to successive
representation conflicts of interest.

142

 4. Standard for Post-Conviction Ineffective Assistance of Counsel
Claims Based on Witness-Client Conflicts of Interest
“A defendant seeking post-conviction relief based on ineffective assistance
of counsel resulting from an attorney’s alleged conflict ‘must demonstrate that an
actual conflict of interest adversely affected his [attorney]’s performance.’” Id. at
526 (quoting Sullivan, 446 U.S. at 348). To establish a conflict of interest, the
defendant must prove “that his [attorney] actively represented conflicting
interests.” Id. at 530 (emphasis omitted) (quoting Mickens, 535 U.S. at 175). And
to prove adverse effect, the defendant must,
(1) [I]dentify a plausible alternative defense strategy or
tactic that counsel could have pursued, (2) show that the
alternative strategy or tactic was objectively reasonable
under the facts known to counsel at the time of the
strategic decision, and (3) establish that counsel’s failure
to pursue the strategy or tactic was linked to the actual
conflict.
Id. at 533.

Both the conflict and the adverse effect must be proven by a

preponderance of the evidence. Id. at 534.
D. Analysis
1. King’s prior representation of Carter, Sr.
This purported conflict deserves more attention than the others. Prior to his
appointment to represent Owens, King represented Carter, Sr. in an unrelated case.
In 2003, the prosecution charged Carter, Sr. with illegal distribution of narcotics.
He also faced a special offender charge because he had a revolver and a shotgun on
him at the time of the distribution. King last appeared with him in April 2004
when he entered a guilty plea to drug distribution and was sentenced to probation.
Pursuant to the plea agreement, the trial court ordered that the revolver and
shotgun taken from Carter, Sr. at the time of his arrest be forfeited and destroyed.
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 In January 2006, the prosecution filed a Notice of Potential Conflicts in this
case and raised King’s representation of Carter, Sr. as a potential conflict.
Owens’s trial team responded that there was no conflict. The trial court ruled there
was no conflict yet sought Carter, Sr.’s waiver of any potential conflict. The trial
court also ordered King not to cross-examine Carter, Sr. at trial. Owens was
present during this hearing, but neither the court nor his trial team asked him to
waive any potential conflict. During that hearing, King recalled Carter, Sr. but did
not recall any confidential information about Carter, Sr. or his case.
Although the court prohibited King from cross-examining Carter, Sr., it did
not prohibit King from investigating Carter, Sr. as an alternate suspect. There was
a dispute within the trial team about whether Carter, Sr. was a bona fide alternate
suspect. King viewed the evidence that Carter, Sr. was a viable alternate suspect as
weak. Kepros thought an alternate suspect investigation should be pursued but
deferred to King as lead counsel. In her view, there was no time to pursue an
alternate suspect investigation due to the urgency of other pretrial matters. As a
result, the team did not try to interview Carter, Sr. or his attorney.
While this court does not view King’s prior representation of Carter, Sr. in
the unrelated case as a conflict of interest, it will apply a West analysis and
determine whether King’s representation of Owens was adversely affected by his
prior representation of Carter, Sr.
Owens’s trial team did not investigate Carter, Sr. as an alternate suspect or
portray him as an alternate suspect at trial. According to King and Kepros, King’s
prior representation of Carter, Sr. did not inhibit them from investigating Carter,
Sr. as an alternate suspect and did not impede their representation of Owens in any
way. Neither Kepros nor King discussed King’s prior representation of Carter, Sr.
with Owens because neither viewed it as a conflict.
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 King either never learned confidential information from Carter, Sr. or he had
forgotten it before he began representing Owens.

As a result, he had no

confidential information about Carter, Sr. to utilize while representing Owens.
King testified during the 32.2 hearing that his representation of Carter, Sr. did not
impede his investigation of Carter, Sr.
Owens suggests that Carter, Sr. was an alternate suspect because he disposed
of the guns Ray and Owens used at Lowry Park and rented hotel rooms for Ray
and Owens to stay in the night of the Lowry Park shootings. Compared to the
evidence implicating Owens, see part III.D of the Order, the evidence that Carter,
Sr. disposed of evidence and harbored Ray and Owens was a weak basis for an
alternate suspect strategy. Thus, investigating and portraying Carter, Sr. as an
alternate suspect was not objectively reasonable. See West, 341 P.3d at 533 (prong
two is satisfied if the “plausible alternative that counsel might have pursued . . .
was objectively reasonable under the facts known to counsel at the time of the
strategic decision.”).
2. Representation of Sailor, Johnson, Carter, Sr., and J. Martin
Arapahoe DPD Justin Bogan (Bogan) appeared twice with Sailor and once
with Johnson in duty court in August of 2005. Bogan informed the judge on both
occasions that the OSPD was conflicted from representing Sailor and Johnson, and
asked that ADC be appointed.

Bogan’s practice was to avoid discussing

confidential case-specific matters with recent arrestees during duty week, and he
was particularly cautious not to discuss confidential matters with Sailor or Johnson
because he knew there was a potential conflict. Given that he did not have any
confidential information from Sailor or Johnson, he did not share any information
about them with Owens’s trial team. A different Arapahoe DPD appeared once

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 with Carter, Sr. in September 2005 and moved to withdraw about a month later.
That Arapahoe DPD did not testify during the 32.2 or 35(c) hearings.
A similar situation arose in Boulder when Johnson’s probation was revoked
in August of 2005.

A Boulder DPD appeared with Johnson for his initial

advisement on the revocation complaint. The advisement occurred during her
normal duty rotation for initial appearances. She moved to withdraw shortly
thereafter. It was her practice not to discuss confidential information with new
arrestees until a conflicts check was completed. According to that DPD, she did
not provide any information about Johnson to Owens’s trial team.
Various Boulder DPDs represented J. Martin from February 2004 through
March 2008. None of those DPDs testified during the 32.2 or 35(c) hearings.
In addition to Owens’s trial team, at least 10 DPDs testified during the 32.2
hearing in Owens’s Dayton Street case. Many had appeared with or represented a
witness who was endorsed to testify against Owens. All of the DPDs, including
Owens’s trial team, acknowledged their ethical responsibilities under the Colorado
Rules of Professional Conduct and the OSPD’s conflicts of interest policy.
Without exception, the DPDs testified that they adhered to the ethical screening
device and did not share any confidential information about their clients with
Owens’s trial team.
Owens’s trial team did not attempt to access and did not access the public
defender case files for any endorsed witnesses. The team also did not ask for or
obtain permission to access closed files for any endorsed witnesses. Likewise,
neither King nor Kepros accessed any Arapahoe DPDs’ computer files. Owens
elicited a great deal of testimony during the 32.2 hearing from various DPDs
concerning their access to the shared drive on the public defender computer
network and to open physical case files within each regional office. The consensus
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 was that the shared drive was used to store motions and trial preparation materials
while confidential and privileged information was usually stored in each client’s
physical file. In short, Owens’s trial team did not attempt to learn any confidential
information about any endorsed witnesses from the witnesses’ case files.
Guided by the Colorado Supreme Court’s reliance on the ethical screening
device in Shari, this court relies on the OSPD’s adherence to the conflicts of
interest policy and to the ethical screening device. 204 P.3d at 459 (“We also note
that any concerns regarding the communication of confidential information from
the public defenders who previously represented the prosecution’s witnesses to
[the defendant’s deputy public defenders] are assuaged by the screening policy . . .
in effect throughout the Public Defender’s Office.”). Unlike West, there is no
evidentiary basis in this record to presume that Owens’s trial team acquired
confidential information about Sailor, Johnson, Carter, Sr., or J. Martin from other
DPDs. In fact, the evidence shows that the witnesses’ DPDs and Owens’s trial
team adhered to the Colorado Rules of Professional Conduct and the OSPD’s
conflicts of interest policy. Accordingly, the court finds Owens’s trial team did not
“actively represent conflicting interests.”

West, 341 P.3d at 530 (emphasis

omitted) (quoting Mickens, 535 U.S. at 175).
3. Failure to Consult Owens and to Disclose Conflicts
Owens also asserts that both his trial team and the prosecution ignored their
duties to him and to the court to disclose the conflicts, which deprived him and the
court of the opportunity to address the conflicts. To prevail under Strickland,
Owens must “show that there is a reasonable probability that, but for [his trial
team’s failure to advise him and the court of the purported conflicts of interest], the
result of the proceeding would have been different.”

466 U.S. at 694.

His

argument presumes both that a conflict existed and that his trial team would have
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 been discharged if Owens had been advised of the purported conflicts of interest.
This court finds no such conflict and there is no evidence supporting a presumption
that trial counsel would have been discharged. Thus there is no prejudice from his
trial team’s failure to inform him and the court of the alleged conflicts of interest.
E. Conclusion as to Alleged Conflicts of Interest
Owens failed to prove any of his alleged conflicts of interest and failed to
prove that any of the alleged conflicts of interest adversely affected his trial
counsel’s representation of him.
VIII. Claims Regarding Post Trial Motions
In light of the court’s findings in parts III.N and VI of this Order, there were
no colorable grounds on which trial counsel could have sought a new trial.
IX. Alleged Cumulative Error
Owens argues that cumulative error in this case warrants reversal. The court
has considered the prejudice resulting from trial counsel’s errors, together with the
prosecution’s and direct appeal counsel’s errors, as well as the alleged juror
misconduct, and concludes the errors, when considered cumulatively, are
insufficient to warrant a new trial.
X. Conclusion
Owens is “entitled to a fair trial, but not a perfect trial.” Rodriguez, 794 P.2d
at 971. A fair trial is a trial whose result is reliable. Strickland, 466 U.S. at 687.
Owens received a fair trial, and its result is reliable.
For the reasons set forth herein, the motion is hereby DENIED.
SO ORDERED this 16th day of May 2017.

_______________________
CHRISTOPHER MUNCH
DISTRICT COURT SENIOR JUDGE
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