People v. Genrich

• Decision Date: 29 August 2019
• Docket Number: Court of Appeals No. 16CA0651
• Citation: 471 P.3d 1102
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James GENRICH, Defendant-Appellant.
• Court: Colorado Court of Appeals

471 P.3d 1102

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.James GENRICH, Defendant-Appellant.

Court of Appeals No. 16CA0651

Colorado Court of Appeals, Division I.

Announced August 29, 2019

As Modified on Denial of Rehearing November 27, 2019

Philip J. Weiser, Attorney General, Matthew S. Holman, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Cummins Krulewitch, Beth L. Krulewitch, Aspen, Colorado; Weil, Gotshal & Manges, LLP, Irwin H. Warren, Edward Soto, New York, New York; M. Chris Fabricant, Dana M. Delger, New York, New York, for Defendant-Appellant

Opinion by JUDGE TAUBMAN

¶1 Defendant, James Genrich, appeals the district court's denial of his Crim. P. 35(c) motion for postconviction relief. He contends that the district court erred in denying him an evidentiary hearing to prove allegations set forth in his motion and incorporated affidavit. In support of his argument, he points to a 2009 report, commissioned by Congress and published by the National Academy of Sciences, Nat'l Research Council of the Nat'l Acads., Strengthening Forensic Science in the United States: A Path Forward (2009), https://perma.cc/8H3Q-S9SU (hereinafter NAS Report), that found toolmark identification evidence — which served as a linchpin in the prosecution's case against him — had not been scientifically validated. He also alleges that the district court violated his right to due process by admitting such evidence to support his conviction. In addition, he contends that the opinions of a forensic scientist, premised on extensive scholarship, review of the evidence, knowledge of contemporary scientific consensus, and authorship of the NAS Report, constitute newly discovered evidence that undermines confidence in the jury's verdicts. We agree in part and remand for a new evidentiary hearing.

¶2 Following oral arguments, we requested that the parties file supplemental briefs addressing (1) whether Farrar v. People , 208 P.3d 702 (Colo. 2009), establishes a new standard for granting a new trial based on a claim of newly discovered evidence; and, if so, (2) whether the proffered newly discovered evidence set forth in the petition for postconviction relief is affirmatively probative of Genrich's innocence.

I. Law of this Case

¶3 Based on my opinion, Judge Berger's concurring opinion, and Judge Tow's partially dissenting opinion, we believe that the law of this case is as follows:

• The postconviction court's order denying Genrich's Crim. P. 35(c) motion is affirmed in part and reversed in part. It is affirmed as to all of Genrich's convictions other than his convictions for class 1 felonies. It is reversed as to the class 1 felonies, and the case is remanded to the postconviction court for an evidentiary hearing and for findings of fact and conclusions of law following the hearing.

• Farrar v. People , 208 P.3d 702, 706-07 (Colo. 2009), did not establish a heightened standard for Genrich's Crim. P. 35(c) newly discovered evidence claim. Instead, on remand the postconviction court should apply the supreme court's holdings in People v. Rodriguez , 914 P.2d 230, 292 (Colo. 1996) ; People v. Gutierrez , 622 P.2d 547, 559 (Colo. 1981) ; People v. Scheidt , 187 Colo. 20, 22, 528 P.2d 232, 233 (1974) ; and Digiallonardo v. People , 175 Colo. 560, 568, 488 P.2d 1109, 1113 (1971).

• This division has not made a determination whether the exclusion of O'Neil’s testimony would likely result in an acquittal; that determination is for the postconviction court to make following the evidentiary hearing.

¶4 This division expresses no view as to whether Genrich ultimately is entitled to a new trial.

II. Background

¶5 Genrich was convicted of two counts of first degree murder, and multiple other felonies, arising from a series of pipe bombs detonated in Grand Junction, Colorado, in 1991.

¶6 In April 1989, law enforcement officers launched an investigation in connection with a pipe bomb discovered and disarmed in the parking lot of the La Court Motor Lodge in Grand Junction. Investigators did not identify the perpetrator, and the case lay dormant until three pipe bombs exploded within months of each other in the spring of 1991. The bombs — set off at the Two Rivers Convention Center, a residence, and the Feedlot Restaurant — left one injured and two dead, spurring terror in Grand Junction and a joint investigation by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and local police.

¶7 ATF investigators connected the bombings to a serial bomber, with Genrich as their primary suspect. They based their suspicions on reports of his unusual behavior, including his former employment at the convention center and his presence near the area of the explosion hours before the detonation of the first of the three 1991 bombs. Investigators learned that Genrich had inquired at a local bookstore about the Anarchist Cookbook — a book that, among other things, contained instructions for manufacturing explosives.

¶8 Officer Robert Russell and ATF Agent Larry Kresl spoke with Genrich twice during the summer of 1991. On both occasions, Genrich invited them into his one-room apartment in a boarding house and voluntarily answered their questions. During the first conversation, Genrich indicated that he was aware of the bombs at the convention center and the Feedlot Restaurant, stating that he had heard the explosion at the Feedlot from his apartment, but that he did not know any details about the incidents. Genrich also shared his background with Officer Russell and Agent Kresl. He said he had studied electronics at DeVry Technical Trade Institute in Phoenix, Arizona, after he graduated from high school and continued to live in Phoenix for a time (including during April 1989, when the first pipe bomb was discovered). Genrich explained that he had worked at the convention center but quit because there was not much work. He denied ordering the Anarchist Cookbook but admitted that he was familiar with it because he had seen it in a Phoenix bookstore where he had worked. When Officer Russell asked about his relationship with women, he said that he "gets upset with women easy."

¶9 During Genrich's second conversation with Officer Russell, and ATF Agents Kresl and Jeffrey Brouse, Genrich allowed the agents to search his room. The agents discovered two electrical Buss-type fuses and a handwritten note expressing anger, frustration, and threatening violence against women. Genrich admitted writing the note.

¶10 Based on this investigation, Officer Russell obtained and executed a search warrant for Genrich's apartment. During this formal search, he found a second note, similar to the first, also threatening to kill unspecified persons, as well as an electrical fuse, a pair of yellow-handled needle-nose pliers with wire cutters, metal wires, a plastic toolbox containing a soldering iron and green-handled pliers, a second toolbox containing yellow-handled pliers and other tools, a home and auto electrical repair kit, wire strippers, and an electrical circuit board. However, investigators did not find traces of gunpowder or other explosives; mercury switches; bombmaking instructions; or diagrams, drawings, or prototypes of plans to construct bombs.

¶11 While Officer Russell conducted his search of Genrich's apartment, Genrich agreed to speak with ATF Agent Debra Dassler. She testified that he told her he had moved back to Grand Junction two and a half years earlier and that, since he had been back, he often walked around alone late at night. He also told her that he had attempted to order the Anarchist Cookbook at a bookstore to "piss the lady off at the bookstore."

¶12 During their conversation, he volunteered that he would not blow up the convention center because he had two friends who worked there. When she asked him what he thought the agents were looking for in their search of his apartment, he replied that they would probably take his electronics tools because they could be used to make a bomb.

¶13 He also said he knew that a bomb had exploded at a residence. He recognized the address but indicated that because he did not own a car, "it would be a long way for him to walk."

¶14 Following the search, the items seized were sent to labs and ATF agents commenced round-the-clock, covert surveillance. However, at some point, Genrich realized that he was being watched and engaged ATF agents in conversation, insisting that he was not the bomber.

¶15 Meanwhile, Agent Brouse visited twenty-five hardware stores in the Grand Junction area to determine which stores carried pipe fittings, specifically "Coin brand end caps," which were used in the construction of the bombs. Agent Brouse found only one store carrying that brand of end caps, Surplus City; it was located five blocks from Genrich's apartment. An employee recalled having seen Genrich wandering the aisles where the galvanized pipe,¹ ammunition, and guns were stocked.

¶16 The surveillance of Genrich did not result in any inculpatory evidence. Further, no crime lab tests showed any trace of gunpowder or other explosive residue on Genrich's seized belongings, and no fingerprints were found on the bombs.

¶17 In an effort to obtain a confession, agents asked Genrich's parents to wear an electronic recording device to allow them to listen in on a rehearsed conversation with Genrich, which invited Genrich to admit that he had committed the crimes. However, Genrich denied involvement and instead expressed dismay that his mother and stepfather could believe he was capable of carrying out the bombings.

¶18 Based on the evidence described above, a grand jury indicted him on two counts of murder and related felonies.

¶19 The trial at which he was convicted took place in 1993. The prosecution called two principal expert witnesses at trial, John O'Neil — an ATF expert in firearms and, as relevant here, toolmark identification — and Agent Jerry Taylor — an expert in bomb technology and explosives analysis.

¶20 O'Neil...