Peo v. Johnston

22CA0367 Peo v Johnston 04-24-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0367
Arapahoe County District Court No. 10CR787
Honorable Shay K. Whitaker, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Steven Earl Johnston,

Defendant-Appellant.

ORDER AFFIRMED

Division VI
Opinion by JUDGE BROWN
Welling and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 24, 2025

Philip J. Weiser, Attorney General, Melissa D. Allen, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Robin M. Lerg, Alternate Defense Counsel, Montrose, Colorado, for
Defendant-Appellant
¶1 Defendant, Steven Earl Johnston, appeals the postconviction

court’s January 2022 order denying his request for postconviction

relief under Crim. P. 35(c). We affirm the court’s order.

I. Background

¶2 In March 2010, Johnston and Paul Chatman entered the back

seat of a car occupied by the victim (who sat in front of Johnston in

the passenger seat) and D.D-L. (who sat in front of Chatman in the

driver’s seat). Once inside the car, Chatman pulled out a gun,

pointed it at the victim and D.D-L. and said, “[T]his is some

cold-hearted shit, but it’s hard times out here, empty everything out

of your pockets, money, everything.” Johnston also pulled out a

gun and held it to the back of the victim’s head. The victim told

D.D-L. to leave the car, and as she was walking away, “seven or

eight” gunshots rang out from inside the vehicle. The victim and

Chatman suffered fatal gunshot wounds, and Johnston fled the

scene.

¶3 Johnston was charged with first degree felony murder, two

counts of attempt to commit aggravated robbery, conspiracy to

commit aggravated robbery, possession of a weapon by previous

offender, and two crime of violence sentence enhancers. At trial,

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the prosecution argued that Chatman and Johnston had conspired

and attempted to rob the victim and D.D-L. during a drug deal and

that Chatman and the victim were both killed during the attempt.

Through counsel, Johnston denied any conspiracy to rob the victim

and D.D-L. and explained that he only shot at the victim in

self-defense. The jury found Johnston guilty of first degree felony

murder, one count of attempted aggravated robbery, conspiracy to

commit aggravated robbery, and two crime of violence sentence

enhancers.1

¶4 On direct appeal, a division of this court affirmed the

convictions. People v. Johnston, (Colo. App. No. 12CA0855, Apr. 14,

2016) (not published pursuant to C.A.R. 35(e)). A year later,

Johnston filed a pro se motion for postconviction relief under Crim.

P. 35(c), raising fifteen claims relating to juror misconduct and

ineffective assistance of counsel. The court appointed

postconviction counsel, who filed a separate Crim. P. 35(c) motion,

expanding on five of the claims Johnston brought in his original pro

1 The jury acquitted Johnston of one count of attempted aggravated

robbery, and the prosecution moved to dismiss the possession of a
weapon by previous offender charge after the jury rendered its
verdict.

2
se motion and adding a sixth claim relating to cumulative error.

After conducting a two-day hearing, the postconviction court denied

Johnston’s request for postconviction relief in an order that

addressed only the claims in the counseled motion.

II. Analysis

¶5 Johnston contends that the postconviction court erred by

(1) failing to resolve the ten claims Johnston brought in his original

pro se motion and (2) denying three claims of ineffective assistance

of counsel. Recent precedent forecloses Johnston’s first contention,

and he has failed to show sufficient prejudice resulting from the

balance of his ineffective assistance claims. Accordingly, we affirm

the postconviction court’s order.

A. Pro Se Crim. P. 35(c) Claims

¶6 In his opening brief, Johnston contended that the

postconviction court erred by not resolving the ten claims he

asserted in his pro se motion that were not addressed in the motion

filed by postconviction counsel. But after Johnston filed his

opening brief, the supreme court held that counsel abandons

postconviction claims made in a pro se motion by not addressing

them in a later-filed counseled motion. See People v. Smith, 2024

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CO 3, ¶¶ 17-20. The People argue, Johnston concedes, and we

agree that postconviction counsel abandoned Johnston’s remaining

pro se claims by not reasserting them in the counseled motion or

demonstrating any intent to revisit them during the proceeding.

See id. Thus, the postconviction court did not err by not resolving

those claims.

B. Ineffective Assistance of Counsel

¶7 Johnston contends that the postconviction court erred by

denying his claims that trial counsel provided ineffective assistance

by (1) failing to ask the trial court to remove a juror who had a

familial relationship with a prosecution witness; (2) failing to

consult with an independent forensic expert to provide evidence

that would support Johnston’s theory of defense; and (3) failing to

provide the prosecution with age-related mitigating evidence during

plea negotiations. We disagree.

1. Applicable Law and Standard of Review

¶8 Both the United States and the Colorado Constitutions

guarantee a criminal defendant the right to effective assistance of

counsel. U.S. Const. amends. VI, XIV; Colo. Const. art. II, § 16. To

succeed on a claim of ineffective assistance of counsel, a defendant

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must show that (1) counsel’s performance was deficient, in that it

fell below the minimum standard guaranteed by the Sixth

Amendment; and (2) the defendant was prejudiced, in that there is

a reasonable probability that, but for counsel’s errors, the result of

the proceeding would have been different. Strickland v. Washington,

466 U.S. 668, 687-94 (1984); Dunlap v. People, 173 P.3d 1054,

1063 (Colo. 2007). A reasonable probability is “a probability

sufficient to undermine confidence in the outcome.” Dunlap, 173

P.3d at 1063 (quoting Strickland, 466 U.S. at 694). It requires that

the defendant prove more than a “mere possibility that counsel’s

errors affected the outcome” but does not require the defendant to

prove that counsel’s errors “more likely than not altered the

outcome in the case.” People v. Garcia, 815 P.2d 937, 941 (Colo.

1991) (quoting Strickland, 466 U.S. at 694). “Only where both the

performance prong and the prejudice prong have been proven will a

defendant be entitled to postconviction relief because of the

ineffective assistance of counsel.” Dunlap, 173 P.3d at 1063.

¶9 A claim of ineffective assistance of counsel presents mixed

questions of fact and law. Id. We review the postconviction court’s

factual findings for clear error but review de novo its ultimate

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determinations on each of the performance and prejudice prongs.

Id.; People v. Newmiller, 2014 COA 84, ¶ 18; People v. Brown, 250

P.3d 679, 681 (Colo. App. 2010).

2. Failing to Remove a Juror

¶ 10 Johnston contends that his trial counsel provided ineffective

assistance by affirmatively agreeing to retain a juror after the juror

disclosed a familial relationship with one of the prosecution’s

witnesses and that counsel’s conduct prevented him from

successfully appealing the issue. We disagree that Johnston has

shown sufficient prejudice to warrant reversal.

a. Additional Background

¶ 11 Prior to jury selection, potential jurors were provided with a

questionnaire and a witness list and were asked to identify any

familiar names from the list in their questionnaire. Juror R

completed his questionnaire indicating that his stepdaughter was

employed by the Colorado Bureau of Investigation (CBI), but he did

not indicate that he knew any of the prospective witnesses. Neither

party questioned Juror R about his questionnaire during voir dire.

Juror R was selected to serve on the jury.

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¶ 12 The next morning, before evidence was presented, Juror R

notified the court that his stepdaughter, Agent Green, was listed as

a potential witness for the prosecution. When questioned by the

district court, Juror R explained that he and his wife married when

Agent Green was in college, that his relationship with his

stepdaughter “wouldn’t impact [him] at all,” and that he could

effectively evaluate her credibility despite their close relationship.

Defense counsel then asked Juror R whether he had any

discussions with Agent Green about the case and whether her work

led him to feel any “partisanship or bias” in favor of the

prosecution. Juror R stated that he and Agent Green “never”

discuss her cases or the work she does for CBI.

¶ 13 Following defense counsel’s questions, the prosecutor

proffered that Agent Green would testify that she conducted latent

fingerprint examinations on firearms and bullet casings connected

to the crime but “didn’t find anything.” The prosecutor explained

that Agent Green’s role was “somewhat minimal” and merely to

establish that the investigation was thorough. Rather than

objecting to Juror R serving on the jury, defense counsel stated,

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“[W]e would leave [Juror R] as a juror in this case based upon his

answers to my questions.”

¶ 14 In testimony during the Crim. P. 35(c) hearing, trial counsel

conceded that she “should have excused Juror [R and] preserved

the appellate issue with respect to Juror [R], which by not excusing

him, essentially [she] waived.” Johnston also offered a criminal

defense expert who reviewed Johnston’s direct appeal counsel’s file

and testified that because trial counsel failed to object, direct

appeal counsel did not pursue the issue on appeal.

¶ 15 The postconviction court rejected Johnston’s claim, concluding

first that trial counsel’s failure to ask additional questions of Juror

R did not constitute deficient performance. “Perhaps even more

persuasive,” the court continued, “is the failure of the defense to

demonstrate prejudice to the defendant by leaving Juror [R] as a

sitting juror.” The court reasoned that Agent Green’s testimony

“indicated no specific scientific findings” and “had little to no

relevance to the case,” and when trial counsel was questioned about

the issue, she “indicated that she did not believe Agent Green said

anything relevant to the case.”

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b. Johnston Has Failed to Demonstrate Prejudice

¶ 16 Johnston argues that his trial counsel’s decision to leave

Juror R on the jury amounted to deficient performance and resulted

in prejudice to him because he lost the ability to argue on appeal

that the trial court erred by not removing Juror R. Even assuming

counsel performed deficiently, we conclude that Johnston has failed

to demonstrate that he suffered prejudice.

¶ 17 As an initial matter, the People contend that Johnston failed to

preserve the claim he raises on appeal. They argue that Johnston

“makes no argument on appeal that the postconviction court’s

ruling on prejudice was incorrect” but instead asserts a “whole new

claim” arguing that “the loss of his right to appeal this issue” is the

source of prejudice. In response, Johnston highlights a statement

in his written closing argument to the postconviction court that

“trial counsel’s failure to object obviated an appellate issue that had

to be analyzed under plain error as [trial counsel] did not object.”

Although this claim of prejudice was only meagerly developed before

the postconviction court, we address and reject it on the merits.

See People v. Melendez, 102 P.3d 315, 322 (Colo. 2004) (to preserve

an issue for appeal, a party must present the trial court with “an

9
adequate opportunity to make findings of fact and conclusions of

law” on the issue).

¶ 18 Johnston asserts that he “does not have to argue why the loss

of his right to appeal the issue resulted in prejudice” because “the

loss of the right to appeal itself is the prejudice.” He draws support

for his argument from People v. Baker, 104 P.3d 893 (Colo. 2005),

and People v. Long, 126 P.3d 284 (Colo. App. 2005). Both cases

found Strickland prejudice when appellate counsel’s failure to timely

file a notice of appeal entirely deprived the appellant of the right to

a direct appeal. Baker, 104 P.3d at 897-98; Long, 126 P.3d

at 286-87.

¶ 19 We acknowledge that when an ineffective assistance claim is

based on counsel’s failure to perfect a direct appeal, we do not

analyze the merits of the proposed appellate claims because, in

such cases, the prejudice is not in the outcome of the proceeding

but in the forfeiture of it. People v. Lancaster, 2018 COA 168, ¶ 11

(citing Long, 126 P.3d at 286-87). But Johnston did not lose his

right to a direct appeal. In fact, Johnston filed a direct appeal,

which resulted in his convictions being affirmed. Johnston cannot

10
dispense with his obligation to demonstrate prejudice based on the

rule applied in Baker and Long.

¶ 20 Instead, there are only two possible consequences flowing from

trial counsel’s allegedly deficient performance: (1) if the appellate

court were to determine that counsel’s conduct amounted to waiver,

Johnston would lose the right to raise an appellate claim that the

trial court erred by failing to remove Juror R, see People v. Johnson,

2021 COA 102, ¶ 49 (“We do not review waived arguments.”), aff’d

on other grounds, 2023 CO 7; or (2) if the appellate court were to

determine that counsel’s conduct merely forfeited the claim,

Johnston would lose the right to have the claim reviewed under a

harmless error or constitutional harmless error standard rather

than under the plain error standard, see People v. Rediger, 2018 CO

32, ¶ 40 (Appellate courts “may review a forfeited error under the

plain error standard.”). To demonstrate prejudice under either

scenario, Johnston must show a reasonable probability that, had

his claim been preserved, it would have succeeded on appeal. See

Dunlap, 173 P.3d at 1063; cf. People v. Trujillo, 169 P.3d 235, 239

(Colo. App. 2007) (the defendant failed to show prejudice from

appellate counsel’s allegedly deficient performance in failing to raise

11
certain claims of error because he would not have prevailed on the

additional issues); Long, 126 P.3d at 286 (“To demonstrate

prejudice [in the context of a perfected appeal], the defendant must

show a reasonable probability that, but for counsel’s errors, [they]

would have prevailed on the appeal.”).

¶ 21 Because Johnston does not even attempt to argue that a

properly preserved claim would have been successful on appeal, he

has failed to demonstrate the requisite prejudice to sustain a claim

for ineffective assistance of counsel. See People v. Washington,

2014 COA 41, ¶ 20 (“If a court determines that a defendant has

failed to prove either prong of the Strickland analysis, it may deny

an ineffective assistance claim without addressing the other

prong.”); see also People v. Dyer, 2019 COA 161, ¶ 39 (“[A]n

appellate court may affirm a lower court’s decision on any ground

supported by the record . . . .”).2

2 Given how innocuous Agent Green’s testimony was, we fail to see

how the claim would have prevailed on appeal under any standard
of reversal. Thus, we also agree with the postconviction court’s
reason for concluding that Johnston failed to demonstrate
prejudice.

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3. Failing to Consult with an Independent Forensic Expert

¶ 22 Johnston contends that trial counsel rendered ineffective

assistance when she failed to consult with an independent forensic

expert about the interpretation, timing, and significance of the

victim’s injuries. We conclude that Johnston has failed to

demonstrate Strickland prejudice.

a. Additional Background

¶ 23 At the Crim. P. 35(c) hearing, trial counsel testified that while

she did not consider consulting an independent forensic expert

concerning the timing of the gunshots, she agreed that “offering an

expert opinion to the jury that [the victim] likely fired his gun prior

to sustaining his injuries” would have been helpful to the defense’s

theory of self-defense. Johnston also called a forensic pathologist

who offered several opinions concerning the sequence of events

based on the location and directionality of the victim’s wounds

relative to where Johnston and Chatman sat in the vehicle. The

postconviction court even allowed the expert to conduct a

demonstration in the courthouse garage using the vehicle in which

the crime occurred to support his opinion that the victim likely fired

his gun first, leading Johnston to fire back in self-defense.

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¶ 24 The postconviction court “found [the expert’s] testimony to be

speculative, hypothetical, and based on assumptions made by the

expert to conform to the evidence or to the ultimate opinion

rendered.” “Ultimately,” the court observed, “[the expert] could not

testify who fired first, could not opine as to what happened before

the first shot was fired, and could not opine as to anything that

took place outside of the car leading up to the alleged robbery.” The

court concluded that trial counsel’s failure to retain an independent

forensic expert did not fall “outside the wide range of professionally

competent assistance” and denied this claim.

b. Johnston Has Failed to Demonstrate Prejudice

¶ 25 Johnston contends that counsel performed deficiently by

failing to consult with an independent forensic expert because

“offering an expert opinion that [the victim] likely fired his gun

before sustaining his injuries could have helped the self-defense

theory.” (Emphasis added.) Even assuming counsel should have

retained such an expert, we conclude that Johnston has failed to

demonstrate that he was prejudiced.

14
¶ 26 Johnston was convicted of first degree felony murder, with

robbery or attempted robbery as the predicate offense, pursuant to

section 18-3-102(1)(b), C.R.S. 2009:

A person commits the crime of murder in the
first degree if . . . [a]cting either alone or with
one or more persons, [they] commit[] or
attempt[] to commit . . . robbery . . . , and, in
the course of or in furtherance of the crime
that [they are] committing, . . . the death of a
person, other than one of the participants, is
caused by anyone . . . .

“A person who knowingly takes anything of value from the person

or presence of another by the use of force, threats, or intimidation

commits robbery.” § 18-4-301(1), C.R.S. 2024. One attempts to

commit a crime “if, acting with the kind of culpability otherwise

required for commission of an offense, he engages in conduct

constituting a substantial step toward the commission of the

offense.” § 18-2-101(1), C.R.S. 2024. Thus, to convict Johnston of

felony murder, the jury had to find that (1) Johnston committed or

attempted to commit robbery, and (2) someone died during the

commission or attempted commission of that crime.

¶ 27 For three reasons we conclude that Johnston failed to

demonstrate a reasonable probability that, but for trial counsel’s

15
allegedly deficient performance, the outcome of the trial would have

been different. See Dunlap, 173 P.3d at 1063.

¶ 28 First, the proposed forensic testimony pertaining to the timing

and significance of the victim’s injuries would have done nothing to

undermine the jury’s findings that (1) Johnston attempted3 to rob

the victim; and (2) during the attempted robbery, the victim was

killed. Even if the victim shot first, that fact would be irrelevant to

(1) whether Johnston knowingly took a substantial step toward

taking something of value from the victim by the use of force,

threats, or intimidation, see §§ 18-2-101(1), 18-4-301; or

(2) whether the victim died, see § 18-3-102(1)(b), C.R.S. 2009. See

CRE 401 (Relevant evidence is “evidence having any tendency to

make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it

would be without the evidence.”).

3 Johnston was charged with two counts of attempted aggravated

robbery; he was not charged with robbery or aggravated robbery.
The jury convicted him of one count of attempted aggravated
robbery. Thus, we know that the jury found Johnston guilty of
felony murder based on the predicate offense of attempted robbery.

16
¶ 29 Second, self-defense is not an affirmative defense to felony

murder. People v. Renaud, 942 P.2d 1253, 1256 (Colo. App. 1996);

see § 18-3-102(2), C.R.S. 2009 (containing the exclusive list of

affirmative defenses to felony murder). Self-defense “may be

available as an affirmative defense to a predicate felony but not as

to the resulting death.” Renaud, 942 P.2d at 1256. Johnston does

not argue that he acted in self-defense in attempting to rob the

victim, nor does he argue that trial counsel was ineffective for

failing to argue self-defense as to the attempted aggravated robbery

charges. Instead, Johnston argues that his expert’s testimony

“would have illustrated how [he] could not have fired the fatal shots

first, not to support a ‘self-defense’ claim, but because if he had,

[the victim] would not have been able to return fire given the extent

of his injuries,” which may have helped create reasonable doubt in

the minds of the jurors. But Johnston has failed to explain, and we

fail to see, how the forensic expert’s testimony would have created a

reasonable doubt regarding the elements of felony murder.

¶ 30 Third, even if trial counsel had consulted with the proposed

forensic expert, we doubt the expert’s testimony would have been

admitted at trial given the postconviction court’s assessment that

17
the testimony was speculative and hypothetical. See Lorenzen v.

Pinnacol Assurance, 2019 COA 54, ¶ 51 (“A court may reject expert

testimony that relies on bare assertions, subjective belief, or

unsupported speculation.”). If the evidence would not have been

admitted, then it is difficult to see (and Johnston has not explained)

how trial counsel’s failure to consult with the expert could have

affected the outcome of the proceeding. See Dunlap, 173 P.3d

at 1063.

¶ 31 Thus, we conclude that Johnston has failed to demonstrate

the requisite prejudice to sustain this claim of ineffective assistance

of counsel. See Washington, ¶ 20; see also Dyer, ¶ 39.

4. Failure to Provide Mitigation Evidence

¶ 32 Finally, Johnston contends that his trial counsel provided

ineffective assistance by failing to present the prosecution with

age-related mitigating evidence during plea negotiations. Again, we

perceive no prejudice.

a. Additional Background

¶ 33 Prior to the start of trial, Johnston and the prosecution

engaged in plea negotiations and “[came] close” to resolving the

matter. According to Johnston’s trial counsel, the prosecution

18
offered Johnston a plea deal requiring him to serve twenty-eight

years in the custody of the Department of Corrections. Despite her

recommendation that Johnston take the deal, Johnston rejected it,

preferring instead to pursue an offer between twenty and

twenty-four years.

¶ 34 Johnston was twenty years old at the time of the offense. At

the postconviction hearing, Johnston’s defense expert testified that

Johnston was a “youthful offender,” and competent criminal

defense counsel would have gathered school records, social service

records, or “as many records as possible” to provide evidence of

diminished culpability relating to his age. When asked if the

evidence he believed counsel should have discovered would have

impacted the plea negotiations in Johnston’s case, the expert

replied, “Potentially, yes.” Johnston’s trial counsel conceded that

she did not “present mitigation surrounding Mr. Johnston’s age and

brain development to the [prosecution],” but she “certainly [could]

not say” whether the evidence would have made a difference in plea

negotiations.

¶ 35 The postconviction court rejected Johnston’s claim due to the

“lack of any information that would indicate that any investigation

19
or presentation would have altered the negotiations in this case.”

The court explained that “[b]ased on the testimony at the hearing,

negotiations took place and [Johnston] had a certain number which

he considered to be acceptable, to which the prosecution did not

agree.” The court concluded that Johnston failed to “demonstrate

there was a prejudice to [him] in failing to obtain this information.”

b. Johnston Has Failed to Demonstrate Prejudice

¶ 36 Johnston contends that his trial counsel provided ineffective

assistance by failing to obtain and provide age-related mitigating

information to the prosecution during plea negotiations. We agree

with the postconviction court that Johnston has failed to

demonstrate prejudice resulting from counsel’s allegedly deficient

performance. See Lafler v. Cooper, 566 U.S. 156, 162 (2012) (the

Strickland test applies to claims that defense counsel provided

ineffective assistance in the plea-bargaining process).

¶ 37 Although Johnston offered expert testimony that mitigating

evidence such as school or social service records would have

“potentially” lowered the prosecution’s offer, his argument ends

there. Johnston points to a mitigation packet appended to his

postconviction counsel’s written closing argument for the Crim. P.

20
35(c) hearing, but he fails to explain how the evidence reflected in it

would have influenced the plea negotiations. Indeed, he argues

only that presenting the prosecution with such a mitigation packet

“might have tipped the scales in favor of a [twenty to twenty-

four]-year sentence offer that Mr. Johnston would have accepted.”4

(Emphasis added.)

¶ 38 To succeed on his claim, Johnston must show a reasonable

probability that the outcome of the proceedings would have been

different — that the prosecution would have made a lower offer and

that he would have accepted it. See Dunlap, 173 P.3d at 1063.

Even though “reasonable probability” is a “standard ‘somewhat

lower’ than a preponderance of the evidence,” People v. Sifuentes,

2017 COA 48M, ¶ 20 (quoting Strickland, 466 U.S. at 694), it still

requires that the defendant prove more than a “mere possibility that

counsel’s errors affected the outcome,” Garcia, 815 P.2d at 941.

“Potentially” or “might have” does not satisfy the standard. In the

4 In this part of his opening brief, Johnston says he would have

accepted a twenty-six-year offer, but the balance of the record
suggests that Johnston was seeking a plea agreement between
twenty and twenty-four years, so the twenty-six-year offer reference
appears to be a typo. The discrepancy does not impact our
analysis.

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end, we conclude that Johnston has failed to meet his burden to

prove that his trial counsel’s failure to present mitigating evidence

to the prosecution during plea negotiations prejudiced him.

Accordingly, we reject this ineffective assistance of counsel claim as

well.

III. Disposition

¶ 39 We affirm the postconviction court’s order.

JUDGE WELLING and JUDGE MOULTRIE concur.

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