Peo v. Martinez

23CA1475 Peo v Martinez 12-11-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1475
Gilpin County District Court No. 14CR37
Honorable David C. Taylor, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Kenny Lee Martinez,

Defendant-Appellant.

ORDER AFFIRMED

Division III
Opinion by JUDGE DUNN
Lipinsky and Graham*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 11, 2025

Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Tanja Heggins, Alternate Defense Counsel, Denver, Colorado, for Defendant-
Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2025.
¶1 Kenny Lee Martinez appeals the postconviction court’s order

denying his Crim. P. 35(c) motion after an evidentiary hearing. We

affirm.

I. Background

¶2 In 2014, while staying in a hotel in Black Hawk, Martinez

pinned his wife — the victim — down, choked her, and told her that

he was going to kill her. The victim escaped and reported the

assault to hotel security. Police and medical personnel arrived and

saw red marks and swelling on the victim’s neck, along with other

injuries.

¶3 Though Martinez denied being “involved in any altercation,”

the prosecution charged Martinez with attempted second degree

murder, second degree assault with a deadly weapon, and multiple

related counts.

¶4 On the second day of trial, the court reported that one of the

jurors was sick and could not continue serving. After conferring

with his counsel, Martinez elected to proceed with eleven jurors.

The jury convicted Martinez on all counts. The court imposed a

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controlling twenty-eight-year prison sentence to be served

concurrently with his sentence in a separate Denver case.1

¶5 A division of this court affirmed the judgment of conviction,

People v. Martinez, slip op. at ¶ 53 (Colo. App. No. 15CA0632, July

27, 2017) (not published pursuant to C.A.R. 35(e)), and the

mandate issued in 2018.

¶6 In 2021, Martinez filed a motion for postconviction relief under

Crim. P. 35(c) alleging ineffective assistance of counsel. The court

appointed postconviction counsel who filed two supplemental

motions alleging, among other claims, that trial counsel coerced

Martinez to proceed with eleven jurors and that trial counsel was

ineffective for failing to obtain an allegedly exculpatory hotel

surveillance video.2

1 After successfully challenging the legality of his twenty-eight-year

sentence, the court resentenced Martinez to twenty-two years.

2 Because Martinez reasserts only two postconviction claims, we

deem abandoned the remaining postconviction claims asserted in
either Martinez’s Crim. P. 35(c) motion or the supplemental motions
filed by postconviction counsel. See People v. Rodriguez, 914 P.2d
230, 249 (Colo. 1996) (a defendant’s failure to specifically reassert
on appeal a claim that the postconviction court denied constitutes a
“conscious relinquishment” and abandonment of the claim).

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¶7 The postconviction court set an evidentiary hearing. At the

hearing, Martinez testified that he had asked trial counsel to get a

hotel surveillance video that he said showed the victim kicking in

the door to their hotel room the night before the assault, but that

counsel did not get the video. And he testified that he did not want

to waive his right to a twelve-person jury, but trial counsel

“coerced” him to make the decision “with a coin toss.” Martinez

said that the coin toss was trial counsel’s idea, and after he “lost

the coin toss,” Martinez proceeded with eleven jurors.

¶8 Regarding the alleged hotel surveillance video, Martinez’s trial

counsel testified that he had instructed his investigator to “try to

subpoena” video from the night before the assault but that the hotel

was “not able to provide any surveillance footage.” And while some

evidence showed that a hallway camera may have been present in

2014, no evidence was presented that the camera would have

captured the recessed doorway or that any exculpatory video

existed.

¶9 As to the decision to proceed with eleven jurors, both lead and

co-counsel testified. They described conferring with Martinez and

that Martinez struggled with whether to waive a twelve-person jury.

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Lead counsel testified that he advised proceeding with eleven jurors

under the circumstances. Specifically, he testified that he advised

Martinez that, in his professional opinion, a mistrial would probably

result in a trial before a different judge, and, based on lead

counsel’s personal experience, the new judge would be more likely

than the current judge to impose any sentence in this case

consecutive to Martinez’s sentence in the Denver case. Lead

counsel testified that Martinez “wasn’t interested” in taking his

advice; Martinez “insisted on doing a coin toss” and, “having no

coin, [they] ended up tossing a [s]ticky [n]ote [p]ad.” Lead counsel

confirmed that the coin toss was Martinez’s idea, and that he

thought it was “crazy” that Martinez would not take his advice and

instead “would do a coin toss” to make that decision. Lead counsel

testified that whether to proceed or pursue a mistrial was “100

percent [Martinez’s] choice.”

¶ 10 The People asked the postconviction court to take judicial

notice of the record, which included a transcript of the trial court’s

advisement to Martinez that he had a right to twelve jurors and that

the court would grant a mistrial if Martinez did not want to proceed

with eleven jurors. After Martinez conferred with his attorneys and

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had the “coin toss,” the court and Martinez had the following

exchange:

Court: I don’t want to get into the
conversations you had with your attorneys.
It’s your choice on what you want to do. You
should get their advice[,] . . . but, ultimately,
you can accept or reject their advice. The
decision is yours.

Martinez: So if I decide I try to get a mistrial,
how long would the case be for?

Court: If you want a mistrial, I will grant that.
So I’ll tell you that right now. I can’t force you
to proceed with eleven jurors. So the question
is whether you’ll proceed with eleven jurors or
whether there will be a mistrial. So those are
the two options first. The case has to be set
within [ninety] days. . . . So today is November
19. We would probably be looking at the trial
dates that we had in January and February.

Martinez: Yeah. I’ll proceed, Your Honor.

Court: You want to proceed today with eleven
jurors?

Martinez: Yes.

Court: Is that your own decision?

Martinez: Well, talking to my attorneys and
everything, they think it’s the right decision.

Court: Sir, it has to be your decision. You get
to decide this.

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Martinez: We’ll proceed, Your Honor.

Court: Do you want to proceed with eleven
jurors?

Martinez: Yes.

Court: And is that your own decision?

Martinez: Yes.

¶ 11 In a detailed written order, the postconviction court denied

Martinez’s Rule 35(c) motion. The court found that all the

witnesses — except Martinez — were credible.

II. Discussion

¶ 12 Martinez contends that the postconviction court erred by

denying his claims that (1) trial counsel was ineffective by failing to

obtain allegedly exculpatory video surveillance footage and

(2) counsel coerced him into proceeding with eleven jurors. We

disagree.

A. Legal Principles and Standard of Review

¶ 13 “A criminal defendant is constitutionally entitled to effective

assistance from his counsel.” Ardolino v. People, 69 P.3d 73, 76

(Colo. 2003). To succeed on an ineffective assistance claim, the

defendant must establish that (1) counsel’s performance was

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deficient, meaning it fell below an objective standard of

reasonableness; and (2) the deficient performance prejudiced the

defendant, meaning that a reasonable probability exists that, but

for counsel’s deficient performance, the result of the proceeding

would have been different. Strickland v. Washington, 466 U.S. 668,

687-88 (1984); Dunlap v. People, 173 P.3d 1054, 1061-63 (Colo.

2007). A postconviction court may reject an ineffective assistance

claim if the defendant fails to demonstrate either deficient

performance or prejudice. See People v. Duran, 2025 COA 34, ¶ 16.

¶ 14 If a postconviction court denies a Rule 35(c) motion after an

evidentiary hearing, we defer to the court’s credibility

determinations and factual findings if they are supported by the

record. See Dunlap, 173 P.3d at 1061-63; People v. Hardin, 2016

COA 175, ¶ 39.

¶ 15 We may affirm the denial of a postconviction motion for any

reason supported by the record. People v. Taylor, 2018 COA 175,

¶ 8.

B. Hotel Surveillance Footage

¶ 16 Martinez maintains that the postconviction court erred by

denying his claim that his trial counsel was ineffective for failing to

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obtain hotel surveillance footage that purportedly showed the victim

kicking in their hotel room door the day before he assaulted her.

¶ 17 But the record supports the postconviction court’s findings

that no evidence was presented that — even assuming there was a

hallway security camera in place in 2014 — the camera “recorded

anything of exculpatory value.” Indeed, no witness testified about

the hotel’s 2014 video surveillance system, the location of any

hallway security cameras at that time, and if there was a hallway

security camera, the scope of its coverage. While the hotel’s

director of security and surveillance opined that he “believe[d]”

based on “conversation” with “other people” that there was a

hallway security camera “in the general area” in 2014, he admitted

that he “couldn’t speak to if there was a camera or not because [he]

wasn’t” employed at the hotel in 2014. And even as to the hallway

security camera in place at the time of the evidentiary hearing, the

director of security testified that he didn’t know whether it “would

capture activity outside” of Martinez’s hotel door because of “the

way that the door is recessed.”

¶ 18 A defense investigator similarly opined that although he

“believe[d]” the current hallway security camera would capture

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something outside the door, he admitted he did not know if any

camera was in place in 2014 and could not “testify to anything from

2014.” Thus, even if we assume the hotel had a hallway security

camera in 2014, Martinez presented no evidence about the scope of

coverage and specifically whether it would have captured anything

outside his hotel room door.

¶ 19 We are also unconvinced that Martinez satisfied his burden to

demonstrate deficient performance. After all, trial counsel testified

that he instructed his investigator to obtain the surveillance video

and the evidence showed that the investigator tried to obtain such a

video. And while counsel could not say when the subpoena for the

surveillance video issued, he testified that he would have sought the

surveillance footage in a timely manner. The postconviction court

credited trial counsel’s testimony.

¶ 20 By contrast, Martinez presented no evidence showing that trial

counsel did not make a timely request for the surveillance footage.

Nor did the evidence establish when the subpoena was issued and,

as already discussed, whether any hallway surveillance video was

even available in 2014. Thus, we cannot conclude that the evidence

presented overcame the strong presumption that trial counsel’s

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actions fell within an objective standard of reasonableness. See

Ardolino, 69 P.3d at 76.

¶ 21 We therefore affirm the postconviction court’s denial of this

claim.

C. Proceeding with Eleven Jurors

¶ 22 Martinez argues that the postconviction court erred by finding

that he voluntarily waived his right to a twelve-person jury.

Martinez persists in his claim that his trial counsel coerced him

into proceeding with eleven jurors. Although the postconviction

court offered several reasons for rejecting this contention, we agree

that the record supports the court’s finding that trial counsel did

not coerce Martinez and affirm on that basis.

¶ 23 A defendant in a felony case may waive his constitutional right

to a twelve-person jury. See People v. Taylor, 2021 COA 133,

¶¶ 29-30; see also Crim. P. 23(a)(7) (setting forth circumstances

under which a defendant may stipulate to fewer than twelve jurors).

¶ 24 Relying on his own testimony and a deputy sheriff’s notarized

statement, Martinez insists that trial counsel coerced him into “a

coin toss,” that counsel’s actions were aggressive and belittling, and

that counsel “threatened” to withdraw if there was a mistrial. The

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notarized statement simply confirmed there was a “coin toss,”

which no one disputed. The statement said nothing about coercive

conduct or who suggested the “coin toss.” That left only Martinez’s

testimony that trial counsel coerced him into the coin toss and

waiving his right to a twelve-person jury. But the court rejected

Martinez’s testimony, finding it not credible.

¶ 25 The court instead expressly credited trial counsel’s testimony.

And lead counsel testified that whether to proceed with eleven

jurors was “100 percent” Martinez’s choice. Trial counsel agreed

that he forcefully expressed his professional opinion that Martinez

should proceed with eleven jurors. And trial counsel explained the

basis of that opinion — that he had concerns about the possibility

of a harsher sentencing judge if there was a mistrial. Martinez does

not dispute that trial counsel’s sentencing concerns were

appropriate and legitimate.3 And even if trial counsel expressed his

opinion forcefully, “[c]ompetent advice of counsel, albeit stated in

3 Lead counsel’s advice that Martinez should continue with eleven

jurors was based on his belief that Martinez potentially faced
consecutive sentences with a new judge. As lead counsel predicted,
the judge who sentenced Martinez ran the sentence concurrent to
Martinez’s sentence in the Denver case.

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strong language, does not constitute coercion standing alone.”

People v. Adams, 836 P.2d 1045, 1048 (Colo. App. 1991). In any

event, trial counsel testified that Martinez was not interested in his

advice and instead insisted on a “coin toss” to make the decision.

Because the postconviction court credited this testimony, we will do

the same.

¶ 26 Martinez also generally asserts that he was “time pressure[d]”

to make the decision to proceed with eleven jurors. While it’s true

that the decision to continue with eleven jurors or declare a mistrial

had to be made during the trial, the court allowed Martinez time to

confer with counsel. Nothing in the record suggests that the court

limited Martinez’s time to confer and Martinez doesn’t argue that

the court coerced him. After Martinez spoke with his counsel, the

court confirmed that Martinez understood that the decision whether

to proceed was his alone. Martinez stated that he wanted to

proceed with eleven jurors. Martinez did not ask the court for more

time or state that he did not have enough time to consider his

options. We therefore disagree that Martinez faced coercive time

pressure to decide whether to proceed with eleven jurors.

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¶ 27 Finally, Martinez says that he was “misadvised as to the

sentencing range” and that he “relied on” that advice “when

relenting to counsel’s pressure to proceed with eleven jurors.” But

again, other than his own testimony, Martinez presented no

evidence that he was misadvised about the sentencing range. And

the postconviction court did not credit Martinez’s testimony.

¶ 28 In sum, because the record supports the postconviction

court’s finding that Martinez was not coerced into proceeding with

an eleven-person jury, we will not disturb it. See Dunlap, 173 P.3d

at 1062.

III. Disposition

¶ 29 The order is affirmed.

JUDGE LIPINSKY and JUDGE GRAHAM concur.

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