People v. Thompson

• Decision Date: 30 July 2020
• Docket Number: Court of Appeals No. 17CA0999
• Citation: 485 P.3d 566
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Larry Allen THOMPSON, Defendant-Appellant.
• Court: Colorado Court of Appeals

485 P.3d 566

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

v.Larry Allen THOMPSON, Defendant-Appellant.

Court of Appeals No. 17CA0999

Colorado Court of Appeals, Division III.

Announced July 30, 2020

Philip J. Weiser, Attorney General, Brittany L. Limes, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Christopher Gehring, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE BERGER

¶1 In 1994, a jury found defendant, Larry Allen Thompson, guilty of first degree murder. Police discovered the victim in an alley wrapped in a blanket, mattress cover, and electrical cord. He had been stabbed more than forty times.

¶2 In this postconviction proceeding, Thompson's second, he appeals the postconviction court's order denying DNA testing of the blanket, mattress cover, electrical cord, and the victim's clothes. He contends that the court erred in denying his requests for DNA testing under section 18-1-413, C.R.S. 2019, and Crim. P. 35(c). He also appeals the order denying his various ineffective assistance of counsel claims as to his trial counsel and his first postconviction counsel.

¶3 We hold, as a matter of first impression, that Crim. P. 35(c) does not authorize postconviction DNA testing. We further agree with the postconviction court that Thompson failed to satisfy the actual innocence standard under section 18-1-413, so he is not entitled to DNA testing under that statute. Finally, we conclude that the postconviction court properly denied his ineffective assistance of counsel claims. Accordingly, we affirm the postconviction court's orders.

I. Relevant Facts and Procedural History

A. Evidence at Trial

¶4 The prosecution presented evidence that, although Thompson lived in Portland, Oregon, with his wife, he was in Denver, caring for his mother, at the time of the murder. Thompson stayed in the same apartment complex as the victim, and he and his brother regularly purchased crack cocaine from the victim. The victim's girlfriend testified about animosity between Thompson and the victim over drug dealings.

¶5 Thompson confessed to four people that he murdered the victim, and all four testified at trial. One witness was Thompson's wife. She testified that Thompson had told her that he and his brother were upset with the victim for selling them diluted crack cocaine, so they decided that the victim had "to die today." Thompson also told her that his brother held the victim down while Thompson stabbed him, and that Thompson accidentally cut himself on his wrist during the altercation. Enraged by the cut, Thompson stabbed the victim "over and over." Thompson and his brother "rolled the victim up in something," put the body in the brother's van,¹ and dumped him in an alley.

¶6 Another witness testified that Thompson told him that he had stabbed a drug dealer in Denver. Still another said that Thompson told him he had murdered someone. The fourth witness testified that Thompson told him that, while he was in Denver, he had killed the person who cut him on the wrist.

¶7 On the day that police discovered the victim's body, Thompson went to a Denver hospital for treatment for a cut to his wrist

. A doctor testified at trial that Thompson's cut was consistent with a stab wound. Thompson testified differently; he said that the cut on his wrist came from a broken piece of glass.

¶8 The prosecution also presented scientific evidence to the jury to establish that the blood found on a carpet in the van likely came from the victim.

B. First Postconviction Proceeding

¶9 DNA testing conducted after Thompson's trial revealed that the bloodstain in the van did not belong to the victim, contrary to the prosecution's arguments and evidence at trial. After this came to light, Thompson's first postconviction counsel moved for a new trial based on newly discovered evidence under Crim. P. 35(c)(2)(V). Thompson's first postconviction counsel also asserted eight ineffective assistance of trial counsel claims. The first postconviction court denied the eight ineffective assistance claims after a hearing.

¶10 That postconviction court also concluded that the new DNA evidence was insufficient to warrant a new trial. The court reasoned that, although the newly discovered evidence was significant, when considered in combination with all the other evidence, it would not likely have resulted in an acquittal — particularly given Thompson's four confessions. On that basis, the court concluded that Thompson's argument was "too great a reach."

¶11 For seven reasons, a division of this court affirmed the first postconviction court's order:

First, the evidence established that defendant and the victim knew each other well and lived "very close" to each other.

Second, they had a relationship pertinent to the case: defendant regularly purchased drugs from the victim. Indeed, defendant admitted that he purchased drugs from the victim during the time frame in which the murder occurred.

Third, defendant had a motive to kill the victim. The victim's girlfriend testified that there was animosity between defendant and the victim because of problems arising out of their drug transactions....

Fourth, while living in Portland after the murder, defendant admitted to his wife that he had murdered the victim. Defendant's wife testified that defendant provided explicit details about the killing, including how his brother held the victim while defendant stabbed the victim; how the victim struggled, causing defendant to cut himself on the wrist; how this cut enraged defendant and led him to stab the victim "over and over"; and how they disposed of the body.

....

Fifth, while living in Portland, defendant also made admissions to three men about the killing....

Sixth, physical evidence corroborates this testimony. On the same day that the police found the victim's body, shortly after the victim was slain, defendant sought treatment at Denver General Hospital for the cut on his wrist. This cut was consistent with the type of wound

one might receive from a knife....

Seventh, the prosecution's closing arguments focused on the testimony from defendant's wife, the three men, and the cut on defendant's wrist. The prosecutors mentioned the results of the tests on the carpet, but that evidence was used to corroborate defendant's various admissions; it did not serve as the centerpiece of the prosecution's case.

People v. Thompson , slip op. at 9–11, 2009 WL 2883407 (Colo. App. No. 06CA2270, Sept. 10, 2009) (not published pursuant to C.A.R. 35(f) ). Ultimately, that division concluded that the blood stain evidence was "corroborative of, but not crucial to, defendant's guilt." Id. at 11, 2009 WL 2883407. The supreme court denied certiorari, and this court issued the mandate.

C. Second Postconviction Proceeding

¶12 Years later, Thompson again moved for postconviction relief under Crim. P. 35(c)(2)(V) based on newly discovered evidence.² He requested additional DNA testing of the victim's clothing, the mattress cover, the blanket, and the extension cord, on the theory that there was a strong possibility that the actual perpetrator's DNA was on those items, but that Thompson's DNA was not. Later, Thompson moved for preservation of evidence and DNA testing under section 18-1-413.

¶13 The second postconviction court first denied Thompson's motion for postconviction relief based on newly discovered evidence because it was premature.

¶14 Thompson again moved for a new trial based on newly discovered evidence, this time based on an expert opinion that the cut on his wrist was not caused by a knife but was instead caused by a piece of glass (as Thompson had testified at trial). Thompson also alleged that trial counsel was ineffective for failing to present such an expert opinion at trial, and that postconviction counsel was ineffective for failing to investigate this theory and for failing to raise this issue in the first postconviction motion.

¶15 The second postconviction court held a hearing on Thompson's motion for DNA testing of various items that had not been previously tested. Experts hired by both Thompson and the prosecution testified about DNA testing and the possible results. The court denied Thompson's motion in a thorough written order, concluding that Thompson failed to show that additional DNA testing would prove his actual innocence, as required by section 18-1-413.

¶16 The postconviction court held a separate hearing on Thompson's newly discovered evidence and ineffective assistance of counsel claims regarding the wrist-laceration

theory. The court denied Thompson's newly discovered evidence claim because evidence regarding "the source of the scarring was available both at trial and at the prior 35(c) hearing" such that the wrist-laceration theory was "not ‘evidence that could not have been discovered previously through the exercise of due diligence’ as it was known and knowable at the time of trial." Thompson does not appeal the denial of this newly discovered evidence claim.

¶17 The court also denied all of Thompson's ineffective assistance of counsel claims pertaining to the wrist-laceration

theory. The court reasoned that the claims pertaining to trial counsel were procedurally barred as successive because they could have been raised in the first postconviction motion. As to his first postconviction counsel's claimed ineffectiveness, the court concluded that Thompson did not prove prejudice under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

II. Analysis

A. Order Denying Additional DNA Testing

¶18 Thompson first contends that the postconviction court erred by denying his motion for additional DNA testing under section 18-1-413.

1. We Have Jurisdiction to Review the Order

¶19 The Attorney General argues that this court does not have jurisdiction to review the order denying DNA testing because Thompson did not timely appeal it. We reject the Attorney General's argument.

¶20 Jurisdiction is a question of law that ...