People v. Newmiller

• Decision Date: 03 July 2014
• Docket Number: Court of Appeals No. 10CA2139
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Todd William NEWMILLER, Defendant–Appellant.
• Court: Colorado Court of Appeals

338 P.3d 459
2014 COA 84

The PEOPLE of the State of Colorado, Plaintiff–Appellee
v.
Todd William NEWMILLER, Defendant–Appellant.

Court of Appeals No. 10CA2139

Colorado Court of Appeals, Div. II.

Announced July 3, 2014

John W. Suthers, Attorney General, Patricia R. Van Horn, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee

Douglas K. Wilson, Colorado State Public Defender, Andrew C. Heher, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant

Opinion

Opinion by JUDGE BERGER

¶ 1 Defendant, Todd William Newmiller, appeals the district court's order denying his Crim. P. 35(c) motion for postconviction relief. We affirm.

I. Background

A. Facts

¶ 2 Defendant, his brother, and their friends, Brad Orgill, Jason Melick, and Michael Lee, went to a strip club in Colorado Springs to celebrate defendant's birthday. When the group was leaving the club, they had an altercation with another group, consisting of the victim, Chisum Lopez, and Charles Schwartz, regarding a comment someone in the victim's group had made to a dancer.

¶ 3 Both groups eventually left the club in separate vehicles. About a half block away, the victim's group stopped its pickup truck in the middle of the street. Defendant's group stopped its Jeep behind the truck. The two groups confronted each other, and at some point during that confrontation, the victim was stabbed in the heart.

¶ 4 All the participants, including the victim, fled from the scene. The victim's group headed to the hospital but pulled over when the 911 dispatcher told them to wait for an ambulance. The victim was transported to the hospital by ambulance and pronounced dead on arrival.

¶ 5 The following day, Melick learned that someone had been killed in the same area where the fight had occurred. He placed an anonymous phone call to the police and named defendant as the killer. Defendant was arrested and a search of his person uncovered a knife. Forensic testing revealed a small amount of blood matching the victim's on the blade of the knife.

B. Trial

¶ 6 Defendant was charged with second degree murder. He did not testify at trial, but everyone else involved did. Although there were substantial inconsistencies in the testimony, the record establishes that no one saw defendant stab the victim, no one saw defendant confront the victim, and no one saw any of the parties with a weapon that night before or during the fight. The record also establishes that during the altercation, Orgill exchanged punches with the victim and defendant verbally argued with Lopez. It was uncontested that defendant stabbed one of the truck's tires right before the victim's group drove away.

¶ 7 The prosecution's theory of the case was that defendant stabbed the victim at the very beginning of the confrontation and the victim remained alive for several minutes after he had been stabbed. The prosecution

338 P.3d 462

had to establish that defendant stabbed the victim then because other than during the first few seconds after defendant and the victim left their respective vehicles, someone from the victim's or defendant's group saw either the victim or defendant at all times, and no one saw them near each other. The prosecution thus had to show that the victim lived for some time after he was stabbed, during which time he fought with Orgill.

¶ 8 In support of its theory, the prosecution offered testimony from Joel Newmiller (defendant's brother), Melick, Orgill, and Lee.¹ Joel testified that when defendant's group got back in the Jeep after the fight, he became upset after seeing a cut on his brother's (defendant's) face. Joel testified that defendant attempted to calm him down by saying, “[d]on't worry about it. I slashed their tire and I stabbed one of them.” Melick also testified that Joel started “freaking out” because defendant had been hit; in response, defendant said to Joel, “[d]on't worry. Don't worry, I stabbed him.” Melick testified that defendant then said to the other occupants of the vehicle, “I stabbed the guy, okay?” and “[y]ou guys don't know nothing about this, okay?”

¶ 9 Orgill and Lee testified that they did not hear defendant say anything at that time about stabbing anyone; however, they both testified that when the three of them were at Orgill's house later that night, defendant said something like he hoped he had not stabbed anyone or he thought he might have stabbed someone. Orgill, Lee, and defendant looked at defendant's knife, but no blood was visible.

¶ 10 Orgill's clothes were covered heavily in blood. Defendant also had some blood on his clothing. As a result, both Orgill and defendant burned their clothes.

¶ 11 Defendant was convicted of second degree murder with a deadly weapon and sentenced to thirty-one years imprisonment.

C. Direct Appeal

¶ 12 A division of this court affirmed defendant's conviction and sentence on direct appeal. People v. Newmiller, (Colo.App. No. 06CA1402, 2008 WL 2133008, May 22, 2008 ) (not published pursuant to C.A.R. 35(f) ). The supreme court denied defendant's petition for writ of certiorari.

D.Crim. P. 35(c) Motion

¶ 13 Defendant moved for postconviction relief pursuant to Crim. P. 35(c), claiming that his trial attorneys rendered ineffective assistance of counsel. After holding a hearing, the postconviction court issued a lengthy and comprehensive written order denying the motion.

¶ 14 Defendant appeals. Specifically, he argues that his trial attorneys, Attorney 1 and Attorney 2, were ineffective because (1) they failed to request instructions on lesser included offenses and did not consult with and advise defendant regarding lesser included offenses; (2) they failed to request an instruction on the lesser nonincluded offense of accessory to crime; (3) they failed to offer testimony from a medical expert and failed to consult with and retain an expert in crime scene analysis; and (4) Attorney 1 labored under an actual conflict of interest that affected his advice regarding defendant's right to testify and both attorneys failed to adequately consult with and advise defendant regarding testifying.

II. Law

¶ 15 A criminal defendant is constitutionally entitled to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To obtain relief based on ineffective assistance of counsel, a defendant must show that (1) counsel's performance was deficient and (2) counsel's deficient performance prejudiced the defense. Ardolino v. People, 69 P.3d 73, 76 (Colo.2003) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052 ). The defendant bears the burden of proving both prongs of the Strickland test. Dunlap v. People, 173 P.3d 1054, 1061 (Colo.2007).

¶ 16 Counsel's performance is deficient if the defendant shows that counsel's representation “fell below an objective standard of reasonableness.” Ardolino, 69 P.3d at 76 (citing

338 P.3d 463

Strickland, 466 U.S. at 687–88, 104 S.Ct. 2052 ). Judicial scrutiny of counsel's performance is highly deferential. Id. (citing Strickland, 466 U.S. at 698, 104 S.Ct. 2052 ). The court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Davis v. People, 871 P.2d 769, 772 (Colo.1994) (citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052 ). Because hindsight is almost always accurate, it is easy for a court evaluating an ineffective assistance claim to point to some action counsel should have taken. A reviewing court therefore must make “every effort ... to eliminate the distorting effects of hindsight ... and to evaluate [counsel's challenged] conduct from counsel's perspective at the time.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

¶ 17 To establish prejudice, the defendant must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Ardolino, 69 P.3d at 76 (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052 ). A reasonable probability does not mean that counsel's deficient performance more likely than not altered the outcome in the case. Id. (citing Strickland, 466 U.S. at 693–94, 104 S.Ct. 2052 ). Rather, a reasonable probability means a probability sufficient to undermine confidence in the outcome. Id. (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052 ).

¶ 18 A claim of ineffective assistance of counsel presents a mixed question of law and fact. Dunlap, 173 P.3d at 1063. In reviewing a postconviction court's findings on a mixed question of law and fact, we defer to the court's findings of fact as long as they are supported by the record but review its conclusions of law de novo. Id. The ultimate determination of whether an attorney rendered ineffective assistance of counsel is a question of law we review de novo. See People v. Brown, 250 P.3d 679, 681 (Colo.App.2010).

III. Defendant's Ineffective Assistance Allegations

A. Failure to Request Lesser Included Offense Instructions

¶ 19 Defendant argues that trial counsel's failure to request lesser included offense instructions and consult with and advise him on lesser included offenses constituted ineffective assistance of counsel. He asserts that...