Peo v. Spencer

23CA0422 Peo v Spencer 09-04-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0422
El Paso County District Court No. 13CR3449
Honorable William H. Moller, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Larry E. Spencer, Jr.,

Defendant-Appellant.

ORDER AFFIRMED

Division I
Opinion by JUDGE J. JONES
Kuhn and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 4, 2025

Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Tanja Heggins, Alternate Defense Counsel, Denver, Colorado, for Defendant-
Appellant
¶1 Defendant, Larry E. Spencer, Jr., appeals the district court’s

order denying his Crim. P. 35(c) motion for postconviction relief.

We affirm.

I. Background

¶2 The People charged Spencer with first degree murder after

deliberation, first degree murder (extreme indifference), possession

of a weapon by a previous offender, and three habitual criminal

counts. (The People later dismissed the habitual criminal counts.)1

The charges arose out of a melee outside a nightclub during which

Spencer shot and killed one of the participants.

¶3 At trial, Spencer’s defense was that someone else had shot the

victim. A jury rejected Spencer’s alternative suspect theory and

found him guilty as charged. A division of this court affirmed the

judgment of conviction on appeal. People v. Spencer, (Colo. App.

No. 14CA0860, Mar. 30, 2017) (not published pursuant to C.A.R.

35(e)).

¶4 Spencer, proceeding pro se, timely filed a Rule 35(c) motion

asserting several claims. The postconviction court reviewed the

1 The People also charged Spencer with two crime of violence

sentence enhancers. The jury found him guilty on those counts.

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motion and summarily denied the claim alleging that the trial judge

made a remark to Spencer in a previous case that showed he wasn’t

impartial. The court ordered the district attorney to respond to the

motion in writing. After the district attorney did so, the court

appointed alternate defense counsel (ADC) to represent Spencer.

ADC filed a supplemental motion for postconviction relief clarifying

and expanding on Spencer’s claims.

¶5 Following an evidentiary hearing, the court issued a written

order denying Spencer’s motion, as supplemented, in its entirety.

That order addressed the merits of the three claims Spencer

pursued at the hearing. The court deemed abandoned any other

claims raised in the motion.

II. Discussion

¶6 Spencer contends that the postconviction court erred by (1)

failing to deliver a “complete” copy of his motion to ADC after not

summarily denying it in its entirety; (2) rejecting two of his

ineffective assistance of counsel claims on the merits; and (3)

deeming abandoned the claims he didn’t pursue at the evidentiary

hearing. We address and reject these contentions in turn.

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A. Violation of Crim. P. 35(c)(3)(V)

¶7 Crim. P. 35(c)(3)(V) provides that if the postconviction court

doesn’t deny a postconviction motion without a hearing under Crim.

P. 35(c)(3)(IV), “the court shall cause a complete copy of said motion

to be served on the prosecuting attorney if one has not yet been

served by counsel for the defendant.” It goes on to require the court

to serve a complete copy of the motion on the Public Defender (if, as

in this case, the defendant requested appointed counsel). If the

Public Defender determines that there is a conflict, the court should

appoint ADC and ADC must review the motion and may add any

claims counsel finds to have arguable merit. After the prosecution

responds to the motion (including any supplement), the court must

determine whether a hearing is warranted on any of the claims.

¶8 Relying on several decisions by divisions of this court and the

Colorado Supreme Court’s more recent decision in People v. Segura,

2024 CO 70, Spencer contends that the postconviction court erred

by failing to forward a complete copy of the motion — that is, one

including the judicial bias claim — to the prosecution and ADC. He

asserts that the appropriate remedy for this error is to “put the

train back on the tracks at the point it derailed” and refer a

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complete copy of the motion to ADC. It appears that Spencer wants

a complete do-over — a new opportunity for ADC to supplement the

motion and a new evidentiary hearing.

¶9 We conclude, however, that even if the court erred, any error

was harmless.

¶ 10 In Segura, the court held that when the postconviction court

determines that at least one claim in a pro se Rule 35(c) motion has

arguable merit, it must grant the defendant’s request for

appointment of counsel (assuming the defendant qualifies) and

must forward a complete copy of the motion to the prosecution and

the Public Defender. At that point, the other requirements and

procedures of subsection (c)(3)(V) kick in. Id. at ¶¶ 7, 26. The

supreme court ordered the postconviction court to allow

postconviction counsel to review the claims that hadn’t been

adjudicated, supplement the existing claims counsel determined to

have arguable merit, and add any claims that in counsel’s view had

arguable merit. Id. at ¶ 39.

¶ 11 But Segura doesn’t support imposition of the remedy Spencer

seeks in this case. In Segura, the postconviction court summarily

denied ten of eleven claims asserted in the defendant’s motion and

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appointed a public defender only on the one remaining claim. The

court didn’t allow appointed counsel to proceed on the denied

claims or to supplement the motion. Id. at ¶ 13.

¶ 12 In this case, in contrast, the court summarily denied one claim

(among many), appointed counsel to represent Spencer, allowed

ADC to supplement the claims asserted in Spencer’s pro se motion,

didn’t deny ADC the ability to add new claims, and held an

evidentiary hearing open to all remaining claims. So, except as to

the judicial bias claim, Spencer received the benefit of all

procedures and protections contemplated by the rule. We note that

in Segura, the supreme court ruled that the defendant wasn’t

entitled to a do-over on the one claim that had been fully

adjudicated. Id. at ¶ 39. Spencer’s desired remedy can’t be

squared with that ruling.

¶ 13 As for the judicial bias claim, it is clearly successive. It is

based on a remark allegedly made by the trial judge in another case

before this case was even commenced. Thus, Spencer could have

raised it during the trial court proceedings or direct appeal.

Because he didn’t, the postconviction court was required to deny it.

Crim. P. 35(c)(3)(VII) (“The court shall deny any claim that could

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have been presented in an appeal previously brought . . . .”). There

wasn’t anything ADC could have done to save that claim, and

Spencer doesn’t contend otherwise. Indeed, Spencer doesn’t

challenge the People’s argument that the judicial bias claim was

successive.

¶ 14 In sum, if the court erred, the error was harmless. Spencer

wasn’t prejudiced at all by the error: he received the process under

Rule 35(c)(3)(V) to which he was entitled.

B. Ineffective Assistance of Counsel

¶ 15 Next, Spencer challenges the postconviction court’s denials of

his claims that his trial counsel provided ineffective assistance of

counsel by (1) failing to have an eyewitness identification expert

testify at trial; and (2) misadvising him that, if he testified, the

prosecutor could cross-examine him about previous arrests, not

just convictions.

1. Applicable Law and Standard of Review

¶ 16 “[T]o prevail on an ineffective assistance of counsel claim, a

defendant must prove that 1) counsel’s performance was deficient

and 2) the deficient performance prejudiced the defense.” Dunlap v.

People, 173 P.3d 1054, 1062 (Colo. 2007). The failure to prove

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either of these two prongs defeats an ineffective assistance claim.

People v. Thompson, 2020 COA 117, ¶ 50.

¶ 17 To establish deficient performance, a defendant must prove

that counsel’s representation “fell below an objective standard of

reasonableness.” Strickland v. Washington, 466 U.S. 668, 687-88

(1984). “[J]udicial scrutiny of counsel’s performance must be highly

deferential, evaluate particular acts and omissions from counsel’s

perspective at the time, and indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable

professional assistance.” Ardolino v. People, 69 P.3d 73, 76 (Colo.

2003).

¶ 18 To establish prejudice, a defendant must show that “there is 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. A reasonable probability is “a probability sufficient

to undermine confidence in the outcome.” Id.

¶ 19 “Both prongs of the ineffectiveness inquiry present mixed

questions of law and fact.” Dunlap, 173 P.3d at 1063. “When

reviewing a postconviction court’s findings on a mixed question of

law and fact, we defer to the court’s findings of fact if they are

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supported by the record but review legal conclusions de novo.” Id.

Also, “[t]he postconviction court determines the weight and

credibility to be given to the testimony of witnesses in a Crim. P.

35(c) hearing.” People v. Washington, 2014 COA 41, ¶ 17; accord

Dunlap, 173 P.3d at 1061-62.

2. Analysis

a. Eyewitness Identification Expert

¶ 20 Spencer’s supplemental motion asserted that trial counsel

provided ineffective assistance by failing to call an eyewitness

identification expert.2 At the hearing, Dr. Edie Greene testified as

an expert in the “psychology of eyewitness memory.” And she

testified about various factors that can affect a person’s memory of

an event and the “weak connection with accuracy” of eyewitness

identifications. She testified as to potential problems with

eyewitnesses’ testimony in this case, mostly having to do with

“weapon focus,” the interval between the event and statements to

2 The supplemental motion also asserted other ineffective assistance

in connection with the eyewitness identifications, but Spencer
doesn’t pursue those issues on appeal, and therefore we deem them
abandoned. People v. Rodriguez, 914 P.2d 230, 249 (Colo. 1996);
People v. Osorio, 170 P.3d 796, 801 (Colo. App. 2007).

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the police or others, and repeated exposure to images purporting to

show the defendant. On cross-examination, however, Dr. Greene

acknowledged her unfamiliarity with the totality of the evidence,

going so far as to admit that she hadn’t been provided with any of

the evidence corroborating the eyewitnesses’ accounts.

¶ 21 Randy Canney testified as an expert in criminal defense. He

opined that Spencer’s trial attorney’s failure to call an eyewitness

identification expert constituted ineffective assistance. But he

based that opinion only on his view of the “standard of practice” at

the time of trial and “the specific nature of this case.” He didn’t tie

his opinion to any specific evidence that was presented at trial. And

on cross-examination, Canney admitted that he wasn’t familiar with

all the evidence in the case; that, although he had tried 160 cases

as defense counsel, he had never called an eyewitness identification

expert; and that much of the evidence against Spencer was “outside

the purview” of an identification expert’s expertise.

¶ 22 Spencer’s trial attorney testified that, when he represented

Spencer, he didn’t believe an eyewitness identification expert was

needed because there wasn’t “an identification of the type that an

eyewitness ID expert would have been helpful for.” And he said

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that, based on his knowledge of Dr. Greene, she wouldn’t have

agreed to testify in this case because the evidence wouldn’t show “a

bad identification.”

¶ 23 In ruling on this claim, the postconviction court pointed out

that Dr. Greene wasn’t familiar with much of the evidence in the

case and that she hadn’t addressed “how her opinions would be

applicable in a case like the present one in which multiple

individuals identified the defendant nor did she address the issue in

this case where some of the witnesses had observed the defendant

over a relatively lengthy period of time.” The court also relied on

trial counsel’s testimony and the facts of the case with which trial

counsel was confronted, including that numerous witnesses,

camera footage, and physical evidence tied Spencer to the scene

and the shooting. The court concluded that this claim failed both

prongs of the Strickland test.

¶ 24 We agree with the postconviction court. In short, Spencer’s

presentation on this claim at the postconviction hearing had too

many holes in it to justify the conclusion that trial counsel’s

decision not to call an eyewitness identification expert was anything

other than a legitimate strategic decision — the kind that is

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“virtually unchallengeable.” Ardolino, 69 P.3d at 76. Given that our

assessment of trial counsel’s performance must be “highly

deferential,” id., we can’t say that trial counsel’s decision fell below

an objective standard of reasonableness.

b. Advice Regarding Whether to Testify

¶ 25 Relying entirely on his own testimony at the hearing that his

trial attorney told him that if he testified at trial, the prosecution

could bring up his past arrests, and not just his convictions,

Spencer contends that the postconviction court erred by finding

that trial counsel hadn’t misadvised him about his right to testify at

trial. But the postconviction court expressly found Spencer’s

testimony on this point not credible. Rather, the court credited the

testimony of trial counsel, who said he would never have told

Spencer that evidence of his arrests would come in at trial if

Spencer testified.

¶ 26 Spencer argues, however, that the postconviction court’s

credibility determinations were clearly erroneous because “there

was no documentation in the public defender’s trial [sic] that

corroborated counsel’s testimony.” But there was no corroboration

of Spencer’s testimony either. In any event, a fact finder isn’t

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precluded from finding a witness’s testimony credible when there is

a lack of corroborating evidence. See, e.g., Kogan v. People, 756

P.2d 945, 951 (Colo. 1988) (testimony of the victims, if accepted as

true, provided sufficient evidence for conviction on charges of

sexual assault on a child), abrogated on other grounds by, Erickson

v. People, 951 P.2d 919, 923 (Colo. 1998). In the end, Spencer asks

us to weigh the relevant witnesses’ credibility. That was the

postconviction court’s job; it isn’t ours. Dunlap, 173 P.3d at 1061-

62; Washington, ¶ 14.

C. Abandoned Issues

¶ 27 Last, Spencer contends that the postconviction court erred by

ruling that any issues raised in his motion and supplemental

motion that he didn’t pursue at the evidentiary hearing were

waived. We disagree.

¶ 28 In People v. Smith, 2024 CO 3, the Colorado Supreme Court

held that where trial counsel is appointed to represent a defendant

in a Rule 35(c) proceeding, and counsel doesn’t pursue claims the

defendant had included in his pro se motion, those claims are

deemed abandoned. Id. at ¶¶ 19-20. In so holding, the court

expressly observed that postconviction counsel in that case hadn’t

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addressed the omitted pro se claims at the hearing on the motion.

Id. at ¶ 19.

¶ 29 In this case, the court held an evidentiary hearing on the

motion and supplemental motion. But Spencer’s appointed counsel

didn’t present evidence on a number of claims.

¶ 30 Spencer says the postconviction court erred by concluding

that the claims (he identifies four) were abandoned because his

attorney filed a motion for reconsideration after the court entered

its written order, in which counsel asserted that the claims hadn’t

been abandoned. But that was too late: the time for presenting

those claims, and evidence to support them, was at the hearing.

¶ 31 In his reply brief, Spencer’s counsel urges us not to follow

Smith. But as counsel must know, we must follow that decision.

People v. Smith, 183 P.3d 726, 729 (Colo. App. 2008).3

D. Claims Not Reasserted on Appeal

¶ 32 To the extent Spencer asserted claims below that he doesn’t

reassert on appeal, we deem those claims abandoned. People v.

3 The People also correctly point out that because Spencer didn’t

present evidence to support these claims at the hearing, Spencer
necessarily failed to meet his burden of proof as to these claims.

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Rodriguez, 914 P.2d 230, 249 (Colo. 1996); People v. Osorio, 170

P.3d 796, 801 (Colo. App. 2007).

III. Disposition

¶ 33 The postconviction court’s order is affirmed.

JUDGE KUHN and JUDGE MOULTRIE concur.

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