Peo v. Larkin

22CA1974 Peo v Larkin 05-08-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1974
Arapahoe County District Court No. 12CR1664
Honorable Andrew C. Baum, Judge
Honorable Darren L. Vahle, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

David James Larkin,

Defendant-Appellant.

ORDER AFFIRMED

Division VII
Opinion by JUDGE LIPINSKY
Johnson and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 8, 2025

Philip J. Weiser, Attorney General, Patrick A. Withers, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Robert P. Borquez, Alternate Defense Counsel, Denver, Colorado, for
Defendant-Appellant
¶1 David James Larkin appeals the denial of his petition for

postconviction relief under Crim. P. 35(c). We affirm.

I. Background

¶2 In August 2012, Larkin was charged with four counts of

sexual assault on a child by one in a position of trust as part of a

pattern of abuse, four counts of aggravated incest, and one count of

indecent exposure based on allegations that he sexually assaulted

his stepdaughter.

¶3 Larkin was tried twice on the charges. Larkin’s first trial, in

February 2014, resulted in a hung jury. During that trial,

attorneys from the Public Defender’s office represented Larkin.

After the first trial, Larkin retained private counsel, who

represented him at his second trial in October 2014. At the

conclusion of his second trial, a jury found Larkin guilty as

charged.

¶4 The court merged the aggravated incest convictions with their

analogous sexual assault on a child convictions. It then sentenced

Larkin to an indeterminate sentence of sixteen years to life in the

custody of the Department of Corrections, with twenty years to life

of mandatory parole. A division of this court affirmed Larkin’s

1
convictions on direct appeal. People v. Larkin, (Colo. App. No.

15CA0213, Aug. 31, 2017) (not published pursuant to C.A.R. 35(e)).

¶5 In February 2019, Larkin filed a pro se petition under Crim. P.

35(c) asserting twenty-seven grounds for relief. The postconviction

court grouped Larkin’s twenty-seven claims into four categories:

1. Claims 1-16 alleged, in substance, constitutional

violations arising from discovery violations or evidentiary

errors.

2. Claims 17-23 alleged ineffective assistance of trial

counsel and Claim 24 alleged ineffective assistance of

direct-appeal counsel.

3. Claim 25 alleged cumulative error based on the above

claims.

4. Claims 26-27 challenged Larkin’s sentence.

¶6 The postconviction court concluded that Claims 1-16 were

successive because they either were or could have been raised and

resolved in Larkin’s direct appeal. It denied those claims without a

hearing. The court denied Claim 24 without a hearing because

Larkin failed to allege facts sufficient to warrant a hearing. It

denied Claims 26-27 without a hearing because Larkin’s underlying

2
arguments were time barred and bare and conclusory, or they failed

on the merits.

¶7 The postconviction court concluded that the remaining claims

— Claims 17-23 and Claim 25 — were factually sufficient to

warrant a hearing. The court reframed the issues, as it deemed

necessary, and appointed postconviction counsel to represent

Larkin at a hearing on the following claims:

• Claims 17-20 (consolidated): “[W]hether trial counsel was

deficient, and prejudiced [Larkin], by: (1) failing to

adequately investigate; (2) failing to adequately review

discovery; (3) and failing to address Brady violations” (the

failure to investigate claim).

• Claim 21: “[W]hether trial counsel was deficient, and

prejudiced [Larkin], by: (1) failing to object to improperly

admitted evidence; (2) failing to object to improper jury

instructions; (3) failing to renew previously raised

objections; and (4) failing to object to improper

statements in the Prosecution’s closing argument” (the

failure to object claim).

3
• Claim 22: “[W]hether trial counsel was deficient, and

prejudiced [Larkin], by failing to use an expert to: (1)

rebut the [prosecution’s] expert; (2) challenge the

propriety of the investigation; and (3) challenge a

witness’s testimony based on that witness’s substance

abuse and sexual abuse” (the expert witness claim).

• Claim 23: “[W]hether trial counsel was deficient, and

prejudiced [Larkin], by: (1) failing to meet with [him]; (2)

failing to disclose to [him] prior to trial that the

prosecution told trial counsel [his] allegations were

untrue; (3) failing to disclose to [him] prior to trial that

the prosecution misrepresented facts to trial counsel;

(4) failing to disclose to [him] prior to trial that trial

counsel lacked access to discovery; and (5) failing to

disclose to [him] that new discovery had been provided”

(the failure to communicate claim).

• Claim 25: “[W]hether [Larkin’s] right to due process was

violated based on the accumulation of those errors” (the

cumulative error claim).

4
Alternate defense counsel (ADC) entered an appearance to represent

Larkin.

¶8 ADC filed a supplemental petition for postconviction relief,

asserting legal arguments regarding the reframed claims. In

addition, ADC asserted two claims regarding plea bargaining that

Larkin did not include in his pro se petition.

¶9 The postconviction court granted a hearing on the

supplemental petition. At the hearing, ADC focused on the failure

to investigate claim, the expert witness claim, the failure to

communicate claim, and those claims’ cumulative effect. ADC

withdrew the failure to object and the plea bargaining claims.

¶ 10 At the conclusion of the testimony, ADC argued that private

counsel provided constitutionally deficient representation by failing

to adequately demonstrate to the jury that the criminal

investigation into Larkin was flawed. ADC theorized that Larkin

was prejudiced because, if private counsel “had presented all of the

deficiencies in this case and argued [about] the sum of the shoddy

investigation,” it might have instilled reasonable doubt in the jury.

ADC conceded that private counsel made the investigation a central

theme at trial but argued that counsel’s failure to follow up on

5
discovery, read a critical pretrial transcript, or call a witness to

testify about the investigation prevented private counsel from

proving the theory with evidence. The postconviction court entered

an oral ruling denying the petition.

¶ 11 Larkin asserts four arguments on appeal. First, Larkin

contends that the postconviction court “misapprehended” the expert

witness claim. Second, Larkin argues that the court erred by

concluding that a portion of the failure to investigate claim did not

prejudice Larkin. Third, Larkin asserts that these errors

cumulatively prejudiced him. Fourth, Larkin argues that the

postconviction court erred by denying Claims 1-3 without a hearing

on the grounds that they were successive. We address and reject

each argument in turn.

II. Ineffective Assistance of Counsel

A. Applicable Law and Standard of Review

¶ 12 A convicted defendant may collaterally attack a conviction on

the ground that, as relevant here, the defendant’s counsel provided

constitutionally deficient representation. See Crim. P. 35(c)(2)(I).

Because we presume a conviction is valid, the defendant bears the

burden of proving entitlement to postconviction relief. Dunlap v.

6
People, 173 P.3d 1054, 1061 (Colo. 2007). Postconviction

proceedings are “intended to prevent injustices after conviction and

sentencing, not to provide perpetual review.” People v. Rodriguez,

914 P.2d 230, 249 (Colo. 1996).

¶ 13 A court must conduct an evidentiary hearing on a Crim. P.

35(c) petition when a defendant alleges facts that, if true, may

warrant relief. People v. Chalchi-Sevilla, 2019 COA 75, ¶ 7, 454

P.3d 359, 361. To sufficiently allege a claim of ineffective

assistance of counsel, a defendant must show that (1) his attorney’s

performance was deficient and (2) the deficient performance

prejudiced him. Strickland v. Washington, 466 U.S. 668, 687-88

(1984); Dunlap, 173 P.3d at 1062.

¶ 14 In general, we presume that counsel’s conduct fell within the

wide range of reasonable professional assistance and sound trial

strategy. Rodriguez, 914 P.2d at 294. But an attorney’s

performance is deficient if it falls “below an objective standard of

reasonableness.” Strickland, 466 U.S. at 688. A postconviction

court may not rely on “the distorting effects of hindsight” and must

“evaluate the conduct from counsel’s perspective at the time.”

7
Rodriguez, 914 P.2d at 294 (quoting Strickland, 466 U.S. at 689);

see also People v. Gandiaga, 70 P.3d 523, 525 (Colo. App. 2002).

¶ 15 To prove prejudice, the defendant must show “a reasonable

probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” Strickland, 466 U.S.

at 694. In other words, the defendant must show “a probability

sufficient to undermine confidence in the outcome.” Id.; see

Ardolino v. People, 69 P.3d 73, 76 (Colo. 2003).

¶ 16 If a postconviction court determines that a defendant failed to

prove either prong of the Strickland test, it may deny the ineffective

assistance claim on that ground without addressing the other

prong. Strickland, 466 U.S. at 697; People v. Luong, 2016 COA

13M, ¶ 9, 378 P.3d 843, 847-48.

¶ 17 We review the postconviction court’s resolution of an

ineffective assistance of counsel claim after a hearing as a mixed

question of fact and law. See People v. Wardell, 2020 COA 47, ¶ 27,

474 P.3d 154, 160. We defer to the court’s factual findings if they

are supported by the record but review de novo the court’s ultimate

conclusions. Dunlap, 173 P.3d at 1063. “Where the evidence in the

record supports the findings and holding of the postconviction court

8
that presided over an evidentiary hearing, the judgment will not be

disturbed on review.” Wardell, ¶ 27, 474 P.3d at 160.

B. The Expert Witness Claim

1. Additional Background

¶ 18 In the supplemental petition, ADC highlighted several

deficiencies in the investigator’s performance during the criminal

investigation, including his failure to (1) record the initial interview

with the alleged victim; (2) collect digital evidence; (3) obtain the

alleged victim’s complete diary; and (4) interview the alleged victim’s

brother. ADC argued that private counsel “should have retained an

expert in the area of law enforcement investigation” to establish that

the investigator’s conduct “was in violation of commonly accepted

procedures.” ADC reasoned that such testimony would have had “a

powerful effect” on the jury and that counsel’s “failure to at least

consult with an expert on these issues” constituted ineffective

assistance.

¶ 19 At the hearing, Larkin presented the testimony of a law

enforcement investigation expert who discredited the investigator’s

actions on the above grounds, among others. Larkin also presented

the testimony of a criminal practice standards expert, who opined,

9
as relevant here, that private counsel should have presented to the

jury more information about the deficiencies of the investigation

and that an expert witness would have been helpful in establishing

why certain practices were inadequate.

¶ 20 Private counsel testified that he did not consider using law

enforcement investigation experts because their pretrial disclosures

generally give the prosecution an opportunity to fill holes in the

investigation ahead of trial. He testified that using such experts

requires that defense attorneys “tip [their] hand” to the prosecution

before trial instead of playing that hand for the first time in front of

the jury.

¶ 21 After hearing argument, the postconviction court found that

private counsel adequately attacked the investigation at trial. The

court also found that private counsel “considered the issue” and

“understands the nature of these types of experts” — including

when they may or may not be helpful to a case. The court found

that private counsel decided, as a matter of strategy, that using

such an expert was not a “wise use of his client’s money.” The

court went on to conclude that, even if deficient performance, the

failure to call the expert did not prejudice Larkin because his trial

10
was largely a credibility battle and an expert’s testimony on the

nature of the investigation would not have changed that.

2. Private Counsel’s Failure to Consult with an Expert Witness
Was Not Deficient

¶ 22 On appeal, Larkin asserts that the postconviction court

“ignored the allegation that [private counsel] should have consulted

with a police investigative practices expert and addressed only the

issue of whether [private counsel] should have called such an expert

to testify.” We are unpersuaded.

¶ 23 The postconviction court found that private counsel

understood the risks and potential benefits of working with law

enforcement investigation experts. The record supports that

finding. Private counsel testified that consulting with a law

enforcement investigation expert in this case would have been

strategically unwise and an imprudent use of his client’s limited

funds. Whether Larkin’s criminal practice standards expert agreed

with private counsel’s chosen strategy is beside the point. The

decision to call a particular witness is “within the discretion of trial

counsel,” and “[m]ere disagreement” with that strategy “will not

support a claim for ineffective assistance of counsel.” People v.

11
Bradley, 25 P.3d 1271, 1275 (Colo. App. 2001). “To establish

ineffective assistance, the defendant was required to overcome the

presumption that, under the circumstances, the challenged conduct

of his counsel might be considered sound trial strategy.” Ardolino,

69 P.3d at 78.

¶ 24 Larkin further attacks private counsel’s decision not to engage

a law enforcement investigation expert for financial reasons. Larkin

argues that, if private counsel “needed more money,” he was

“ethically obligated to ask his client for more money.” This

argument, too, misses the mark because private counsel testified

that, in his assessment, consulting with and calling a law

enforcement investigation expert would not have been a wise use of

his client’s funds, not that his client lacked the funds to engage

such an expert. Thus, Larkin cannot overcome the presumption

that private counsel’s choice not to consult with an expert witness,

whom private counsel had the discretion to call, see Bradley, 25

P.3d at 1275, was a matter of trial strategy — a requirement to

establish deficient performance. See Ardolino, 69 P.3d at 78.

¶ 25 For these reasons, we agree with the postconviction court’s

conclusion on the expert witness claim.

12
C. The Failure to Investigate Claim

1. Additional Background

¶ 26 The prosecution did not call the investigator to testify during

its case-in-chief in either the first or the second trial. Thus, private

counsel had to decide whether to call him as a defense witness to

establish deficiencies in the investigation. Although private counsel

subpoenaed the investigator at the second trial, counsel ultimately

decided not to call him to testify.

¶ 27 In the supplemental petition, ADC alleged that private counsel

failed to review a transcript of a 2013 motions hearing in which the

investigator testified. ADC alleged that reviewing the transcript

would have been “instrumental” in private counsel’s decision

whether to call the investigator to testify and “critical to adequate

preparation for cross-examination.”

¶ 28 Private counsel testified that he did not want to risk calling the

investigator because he did not know what the investigator would

say, and doing so would give the prosecution the opportunity to ask

him leading questions on cross-examination. Private counsel

testified that he believed he successfully impeached the alleged

victim throughout trial — a task that the postconviction court

13
identified as paramount in a case like Larkin’s — and that the

investigator’s testimony was “not the kind of evidence that I would

want at the end of my case.” Private counsel admitted, however,

that he had no recollection of reading the transcript of the

investigator’s former testimony before deciding whether to call him

as a witness at trial.

¶ 29 The postconviction court found that private counsel indeed

failed to review the transcript, but that any error in failing to read

the transcript did not prejudice Larkin because his and the alleged

victim’s credibility were more critical to the case than was the

inadequacy of the investigation.

2. Counsel’s Failure to Review the Transcript
Did Not Prejudice Larkin

¶ 30 In our view, it is a close question whether private counsel’s

failure to read a potentially key witness’s pretrial testimony before

deciding whether to call him as a witness constitutes deficient

performance. Private counsel asserted credible reasons for not

calling the investigator — a matter usually left to trial counsel’s

sound discretion. See Bradley, 25 P.3d at 1275. But his failure to

review the transcript calls into question whether he had sufficient

14
information to make such a decision. Thus, we assume, without

deciding, that counsel’s performance was deficient and turn to the

prejudice prong of the Strickland test. See Luong, ¶ 9, 378 P.3d at

847-48.

¶ 31 We conclude that Larkin was not prejudiced by private

counsel’s failure to review the transcript and decision not to call the

investigator to testify. As the merits appeal division astutely

observed in considering whether Larkin should have been provided

with the investigator’s personnel file,

Even if the files had been disclosed and also
revealed that the [investigator] was untruthful
in investigating Larkin’s case, that evidence
would not have changed the outcome of the
trial; the victim’s testimony, which had
nothing to do with the [investigator], was
strong evidence of Larkin’s guilt. And we fail
to see how, after reviewing the files, it would
have benefited Larkin to call the [investigator]
as a witness, have him give inculpatory
testimony, and then impeach him. Although
the [investigator]’s credibility would have
suffered, the jury’s consideration of the
credibility of the victim’s testimony and other
evidence of Larkin’s guilt would have been
unaffected.

Larkin, No. 15CA0213, slip op. at 17.

¶ 32 The postconviction court similarly reasoned,

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[I]n this case, the lack of investigation, the
nature of what happened and what didn’t
happen was in front of the jury, it was argued
to the jury, the jury had it to consider. . . .
But the kinds of cases that have very detailed
investigative processes, specifically evidence
collection processes, evidence preservation
processes, testing of evidence, DNA testing,
fingerprint testing, all those kinds of things,
the Court finds are somewhat more fruitful
when we’re talking about investigative failures
because those cases very frequently come
down to very minute facts, which are found
out by the police and presented to a jury. This
is a different type of case. And these types of
cases . . . are credibility matters. This case
came down to the credibility of [the alleged
victim].

¶ 33 We agree with the reasoning of each court. Even if private

counsel had introduced every detail of the faulty investigation and

supported them with exhibits, such evidence would not have

changed the fact that the alleged victim testified against Larkin at

trial. At no point did private counsel, direct appeal counsel, or

postconviction counsel allege that the investigator coached or

pressured the victim to testify a certain way such that her

testimony was unreliable.

¶ 34 Private counsel’s primary task at trial was to undermine the

alleged victim’s credibility. The record demonstrates that private

16
counsel understood that. So even if the prosecutor’s failure to call

the investigator should have been a “red flag” for private counsel,

the extent to which private counsel challenged the integrity of the

underlying criminal investigation was peripheral to the primary

question the jurors were tasked with deciding: whether they

believed the alleged victim.

¶ 35 Thus, neither this alleged error nor the cumulative effect of

every error that Larkin alleged in his opening brief prejudiced him

such that postconviction relief is warranted.

III. Summary Denial of Pro Se Claims

¶ 36 Larkin lastly contends that the postconviction court erred by

summarily denying Claims 1-3 in his pro se petition because they

were successive. In those claims, Larkin asserted that

1. he “was denied due process when the prosecution

suppressed evidence favorable to the defense by failing to

provide the defense with complete copies of witness

statements in the State’s possession”;

2. he “was denied due process when the prosecution

[s]uppressed [e]vidence by failing to provide the [d]efense

with copies of emails from [the investigator] to [w]itnesses

17
as requested in [d]efense [m]otion for [p]reservation and

[p]roduction January 14, 2013”; and

3. his “right to due process, effective assistance of counsel,

an impartial jury and to confront witnesses against

him . . . were violated when [the investigator] . . .

corrupted progress reports and other documents with

false statements resulting in a defective and biased

investigation, making it impossible for Defense to know

the true contents of interviews or true perceptions of

[w]itnesses. As well as offering false testimony during

motions hearing further obstructing defendant’s ability to

discover exculpatory and material evidence.”

¶ 37 Larkin claims that, because his third ground — which

incorporated the first two grounds — included the term “ineffective

assistance of counsel,” the postconviction court should have

considered the claim instead of denying it because Larkin could not

have raised it in his direct appeal.

¶ 38 Even if we assume that Larkin sufficiently brought this

contention to the postconviction court’s attention, we conclude that

any error was harmless. ADC spent substantial time developing

18
evidence of the discovery dispute implicated in Claims 1-3 during

the postconviction hearing as support for his outstanding ineffective

assistance claims. The court denied any claim associated with the

discovery issue at the end of the hearing. Thus, regardless of

whether the court rejected Claims 1-3 without a hearing, it

considered and denied the same repackaged argument in the

context of the ineffective assistance of counsel claims addressed

during the hearing.

IV. Disposition

¶ 39 The order is affirmed.

JUDGE JOHNSON and JUDGE MOULTRIE concur.

19