Peo v. Lucero

24CA1478 Peo v Lucero 12-04-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1478
Mesa County District Court No. 95CR258
Honorable Matthew D. Barrett, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Fred R. Lucero,

Defendant-Appellant.

ORDER AFFIRMED

Division V
Opinion by JUDGE PAWAR
Freyre and Yun, JJ., concur

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

Philip J. Weiser, Attorney General, Paul Koehler, Senior Counsel, Denver,
Colorado, for Plaintiff-Appellee

Fred R. Lucero, Pro Se
¶1 Defendant, Fred R. Lucero, appeals the postconviction court’s

order summarily denying his motion for additional DNA testing

under section 18-1-413, C.R.S. 2025. We affirm.

I. Background

¶2 Lucero was convicted in 1996 of two counts of first degree

murder for stabbing his ex-girlfriend and a male victim to death in

the male victim’s apartment, as well as one count of retaliation

against a witness or victim. The following facts are taken from the

postconviction court’s order at issue here, and they are not

challenged on appeal.

¶3 In the weeks leading up to the murders, Lucero had multiple

altercations with the male victim because Lucero believed the male

victim and his ex-girlfriend might have been romantically involved.

The month before the murders, Lucero’s ex-girlfriend received

treatment at a hospital because, according to her, Lucero beat her

and held her captive for over a week. The murders occurred late at

night, and witnesses saw Lucero leaving the male victim’s

apartment early the next morning. After the murders, Lucero made

inculpatory statements to fellow inmates and provided law

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enforcement with information about the murders that was not

public knowledge.

¶4 DNA evidence was collected from the crime scene, including

from beneath the male victim’s fingernails and from blood splatter

on the wall. Lucero was ruled out as a donor of this DNA.

Nevertheless, the jury found him guilty and the court imposed a

controlling sentence of two consecutive life terms.

¶5 In 2004, Lucero filed his first motion for additional DNA

testing. The postconviction court denied it without a hearing and

without appointing counsel.

¶6 In 2024, Lucero filed a second motion for additional DNA

testing — the motion at issue in this appeal. In it, he sought to

retest various samples from the crime scene and test for the first

time samples from elsewhere. Again the court denied the motion

without a hearing and without appointing counsel.

¶7 Lucero appeals, arguing that he was entitled to a hearing and

appointed counsel on his second motion. We disagree.

II. Appeal

¶8 We review a postconviction court’s ruling on a motion for DNA

testing as a mixed question of fact and law. People v. Thompson,

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2020 COA 117, ¶ 24. This means we review the court’s factual

findings for clear error and review the court’s legal conclusions de

novo. Id.

¶9 One of the required elements for postconviction DNA testing is

a reasonable probability that the defendant would not have been

convicted if favorable results had been obtained through the

requested DNA testing at the time of the original prosecution. § 18-

1-413(1)(a). It is the defendant’s burden to allege “specific facts”

and support a “prima facie showing” that this and other required

elements are met. § 18-1-412(2), C.R.S. 2025. The postconviction

court may deny a motion without a hearing or appointing counsel if

the motion, files, and record show that the defendant is not entitled

to relief. § 18-1-412(3).1

A. Already-Tested Samples

¶ 10 In his 2024 motion, Lucero sought to retest samples taken

from beneath the male victim’s fingernails and from blood on the

1 We recognize that this is Lucero’s second motion for

postconviction DNA testing, and the Attorney General argues that it
is barred for various reasons. We express no opinion on this issue
and instead conclude that the postconviction court properly denied
the motion on its merits.

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wall of the crime scene. The postconviction court found that these

previously tested samples showed that they did not include Lucero’s

DNA but did include the DNA of an unknown person. In other

words, the results of these DNA tests were favorable to Lucero, yet

the jury convicted him anyway. As the postconviction court put it,

“If the jury already was aware that DNA of an unknown person was

at the crime scene and still convicted Defendant then it is not

reasonable to believe they would have reached a different result if

the DNA matched another person.” We agree and conclude that the

record shows that Lucero is not entitled to additional testing of

these samples because there is no reasonable probability that

favorable results would have affected his conviction.

B. Samples Never Tested

¶ 11 Lucero’s motion also sought to test for the first time (1) his ex-

girlfriend’s purse that was found in a public park while he was

incarcerated and (2) a knife and two knife sheaths that the male

victim’s neighbor provided to police. Lucero characterized the

neighbor as an alternate suspect and implied he might be the

actual murderer.

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¶ 12 As for the purse, Lucero did not fully explain in his motion

why favorable DNA test results on it would have changed the

outcome of his trial. He argued only that the real killers must have

left it in the park, and “[c]ommon sense supports that the purse

couldn’t have been there for more than a few minutes and the

inference suggests that [the neighbor] left it there to mock the police

or to hint or indicate that they had arrested the wrong person.” But

we fail to see how discovering the neighbor’s or anyone else’s DNA

on the purse would have changed the outcome of the trial. There

was no dispute that the neighbor and Lucero’s ex-girlfriend were

acquainted, and unlike Lucero, the neighbor could not be excluded

as a contributor to some of the DNA found at the crime scene. The

jury also heard that an unknown person’s DNA was found at the

crime scene. Lucero did not explain why finding the neighbor’s or

anyone else’s DNA on the purse, which was not linked to the crime

scene, would have changed the outcome of the trial. We therefore

conclude that the postconviction court properly denied Lucero’s

request to test the purse.

¶ 13 Turning to the knife and sheaths, Lucero did not specify how

these items are related to the murders or how favorable DNA test

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results would have impacted his case. These items belonged to the

neighbor, so they would be expected to have his DNA on them. We

cannot tell if Lucero’s contention is that these items were used in

the murders and would therefore have the victims’ DNA on them.

All he said in his motion is, “The victims were allegedly stabbed and

[the neighbor] gave the police one knife and two sheaves [sic] with

no explanation as to what happened to the knife that belonged to

the empty sheave [sic].”

¶ 14 As the postconviction court observed, Lucero provided no

specific facts to support his possible implication that these items

were related to or involved in the murders. We therefore conclude

that Lucero’s motion failed to meet his burden of alleging specific

facts supporting a prima facie showing that favorable DNA test

results on these items would have changed the outcome of this

trial.

III. Disposition

¶ 15 The postconviction court’s order is affirmed.

JUDGE FREYRE and JUDGE YUN concur.

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