People v. Ray
| Decision Date | 16 July 2015 |
| Docket Number | Court of Appeals No. 12CA0263 |
| Citation | 2015 COA 92,378 P.3d 772 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Robert Keith RAY, Defendant–Appellant. |
| Court | Colorado Court of Appeals |
Cynthia H. Coffman, Attorney General, Elizabeth Rohrbough, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee
Katherine C. Spicer, P.C., Katherine C. Spicer, Colorado Springs, Colorado, for Defendant–Appellant
Opinion by JUDGE TAUBMAN
¶ 1 Defendant, Robert Keith Ray, appeals the order dismissing his Crim. P. 35(c) motion for postconviction relief. On appeal, he maintains that ineffective assistance of trial and appellate counsel entitles him to a new trial on the charge of Possession of a Weapon by a Previous Offender (POWPO).
¶ 2 Ray is on death row after having been convicted of first degree murder in a separate case. His POWPO conviction was used as an aggravating factor in determining his death sentence, and the Colorado Supreme Court has not yet heard an appeal in the capital case. Assuming without deciding that heightened scrutiny applies to his claims, we conclude that the trial court did not err when it dismissed Ray's Crim. P. 35(c) motion. Therefore, we affirm.
¶ 3 In July 2004, Ray was on probation after having been adjudicated a delinquent on controlled substances and motor vehicle theft charges. Officers on a routine patrol followed Ray after they observed him continue straight through an intersection while in a left turn lane. As they followed him, officers observed Ray exceed the speed limit, play loud music, and drive recklessly. Ray came to a stop after officers activated their overhead lights. When they approached the car and ordered Ray to get out, he did not comply. Ray remained seated and at one point appeared to drop his arm as if reaching for something. Officers pulled Ray from the car, placed him under arrest, handcuffed him, and put him in the back of a patrol car.
¶ 4 One officer searched the passenger compartment of Ray's car and discovered a BB gun. Another officer noticed that the driver side door panel was loose and, after removing the panel, discovered a firearm.
¶ 5 Ray was charged with POWPO. Before trial, defense counsel filed a motion to suppress evidence of the firearm, claiming that officers lacked reasonable suspicion to stop Ray, did not have probable cause to search the vehicle, and that the search was not a valid search incident to arrest. The trial court disagreed. Relying on Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), the court found that officers had reasonable suspicion to stop Ray, and that the search of the vehicle was a valid protective search for weapons.
¶ 6 In May 2008, a division of this court affirmed Ray's conviction. In November 2008, the Colorado Supreme Court denied Ray's petition for certiorari. The mandate was issued on November 25, 2008, and Ray did not petition the United States Supreme Court for certiorari.
¶ 7 In November 2011, Ray filed this Crim. P. 35(c) motion for postconviction relief, claiming that (1) appellate counsel should have filed a petition for certiorari in the Supreme Court; (2) trial counsel should have investigated whether others had driven Ray's car before the POWPO arrest; and (3) trial counsel should have asserted Ray's Second Amendment right to possess firearms for self-defense.1 In a written order addressing each of his claims, the trial court denied his postconviction motion.
¶ 8 Ray was convicted of two other crimes related to events in 2004 and 2005.
¶ 9 First, in July 2004, Ray shot Elvin Bell several times and Javad Marshall–Fields twice during a confrontation at a free picnic and rap music contest in Lowry Park (the Lowry Park shooting). Bell's brother, Gregory Vann, was attempting to break up a fight when Ray's accomplice, Sir Mario Owens, shot and killed him. Ray then shot Bell and Marshall–Fields to facilitate Owens's escape. As a result, Ray was charged with and convicted of accessory to murder, two counts of attempted murder, and two counts of first degree assault. Those convictions were affirmed on appeal in January 2015. See People v. Ray, slip op. at 4–5, 2015 WL 339316 (Colo.App. No. 07CA0561, Jan. 22, 2015) (not published pursuant to C.A.R. 35(f) ).
¶ 10 Second, Ray was convicted of first degree murder for the killing of Marshall–Fields, a key prosecution witness in Ray's accessory murder trial, and Vivian Wolfe, Marshall–Fields's fiancee. In June 2005, just days before Ray's accessory murder trial was set to begin, Owens, along with an associate, Parish Carter, shot and killed Marshall–Fields and Wolfe. Evidence established that Ray orchestrated the killings. As a result, Ray was convicted and sentenced to death for their murders.
¶ 11 A claim of ineffective assistance of counsel presents a mixed question of fact and law. Dunlap v. People, 173 P.3d 1054, 1063 (Colo.2007). While we defer to the trial court's findings of fact, if they are supported by the record, we review legal conclusions de novo. Id.
¶ 12 Criminal defendants are constitutionally entitled to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685–86, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; Ardolino v. People, 69 P.3d 73, 76 (Colo.2003). To prevail on a claim of ineffective assistance of counsel, defendants must show that (1) their counsel's performance was deficient; and (2) the deficient performance prejudiced the defense. Ardolino, 69 P.3d at 76, see also Silva v. People, 156 P.3d 1164, 1168 (Colo.2007) ().
¶ 13 Generally, “[t]he test for determining whether a defendant has received ineffective assistance of appellate counsel is the same as the test for ineffective assistance of trial counsel.” People v. Alexander, 129 P.3d 1051, 1055 (Colo.App.2005). However, “the test will vary in its application, depending on the type of claim presented.” People v. Long, 126 P.3d 284, 286 (Colo.App.2005). Claims of ineffective assistance of appellate counsel may stem from allegations that counsel failed to perfect an appeal or that, having perfected the appeal, counsel failed to present the case effectively by overlooking a meritorious argument that was more likely to succeed than the argument presented. People v. Trujillo, 169 P.3d 235, 238 (Colo.App.2007).
¶ 14 Judicial scrutiny of defense counsel's performance is highly deferential, and we indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. A defendant must show that counsel's representation fell below an objective standard of reasonableness. Id. at 688, 104 S.Ct. 2052. “Strategic choices made after thorough investigation of the 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.” Ardolino, 69 P.3d at 76 ; see also Strickland, 466 U.S. at 690–91, 104 S.Ct. 2052. A reasonable investigation is one that is “ ‘sufficient to reveal potential defenses and the facts relevant to guilt.’ ” People v. Newmiller, 2014 COA 84, ¶ 45, 338 P.3d 459, 468 (quoting Davis v. People, 871 P.2d 769, 773 (Colo.1994) ). In assessing the reasonableness of defense counsel's conduct, we must make “every effort ... to eliminate the distorting effects of hindsight ... and to evaluate the conduct from counsel's perspective at the time.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052.
¶ 15 Ray argues that we should apply the heightened scrutiny applied in death penalty cases because his POWPO conviction served as an aggravating factor in the penalty phase of his subsequent capital case. Both the Colorado and United States Supreme Courts have recognized that “the death penalty is qualitatively different from any other punishment under the law,” and require heightened reliability in capital cases. Dunlap, 173 P.3d at 1092 ; see People v. Ray , 252 P.3d 1042, 1049 (Colo.2011) ; see also Mills v. Maryland, 486 U.S. 367, 376, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988) (); Zant v. Stephens , 462 U.S. 862, 884–85, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983) ; ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases § 1.1 (2003) ().
¶ 16 Further, both courts have recognized that “[d]eath is a uniquely severe and irrevocable penalty, which requires the utmost scrutiny to the underlying verdict and sentence,” and that “[p]ostconviction counsel in a death penalty case must continue an aggressive investigation of all aspects of the case.” Ray, 252 P.3d at 1049 (internal quotation marks omitted); see also California v. Ramos, 463 U.S. 992, 998–99, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983) ().
¶ 17 However, Ray cites no authority supporting his assertion that noncapital cases should be treated as capital cases when...
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