Peo v. Thames

23CA0888 Peo v Thames 06-05-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0888
Larimer County District Court No. 95CR885
Honorable Susan Blanco, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Douglas Thames JR,

Defendant-Appellant.

ORDER AFFIRMED

Division IV
Opinion by JUDGE FREYRE
Gomez and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced June 5, 2025

Philip J. Weiser, Attorney General, Brian M. Lanni, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Law Office of Mark Burton, P.C., K. Mark Burton, Denver, Colorado, for
Defendant-Appellant
¶1 Defendant, Douglas Thames, Jr., appeals the district court’s

order denying his Crim. P. 33 motion for a new trial. We affirm.

I. Background

¶2 The relevant facts giving rise to this case are set forth in the

opinion resolving Thames’ Crim. P. 35(c) motions, People v. Thames,

(Colo. App. No. 07CA1378, Sept. 24, 2009) (not published pursuant

to C.A.R. 35(f)) (Thames I).

On August 19, 1989, the home of the victim,
S.D., was burglarized and, among other things,
twenty-five pairs of her underwear were stolen.
Also taken from the victim’s home was a
distinctive athletic bag, emblazoned with the
words “March of Dimes Walk-a-thon.” The
burglar left behind several pairs of underwear
that were stretched out of shape, as well as a
towel that was stained with what appeared to
be semen.

Approximately ten days later, the home was
again burglarized, and the victim was sexually
assaulted and strangled with a telephone
answering machine cord. During the
inspection of the crime scene, police collected
various biological materials, including hair and
semen, as well as fingerprint evidence. Among
the evidence collected was a plaque with
fingerprints on it.

While investigating S.D.’s murder, biological
specimens were taken from over one hundred
suspects and tested against the specimens
taken from the crime scene. None of these

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suspects’ DNA matched the DNA found at the
scene.

The case remained unsolved until 1995. At
that time, a furnace repairman discovered a
number of pairs of semen-stained women’s
underwear stuffed into a duct in a home where
he was performing a furnace inspection. The
repairman called the police, who determined
that defendant and his family had lived in the
home in August 1989, at the time of S.D.’s
murder. Police obtained a court order
requiring that defendant, his brother, and a
friend who had lived with the family in the
home in August 1989 provide samples of
blood, saliva, hair, and fingerprints. Tests of
the specimens obtained from the three men
revealed that defendant’s blood type and DNA
matched that of the evidence recovered from
the scene, while those of the other two men did
not. Defendant’s fingerprints also matched
those found at the crime scene.

Defendant was charged with and convicted of
first degree murder.

Id. at 1-3. Thames appealed his conviction, and a division of this

court affirmed. People v. Thames, (Colo. App. No. 96CA1312, Aug.

13, 1998) (not published pursuant to C.A.R. 35(f)) (Thames II).

¶3 Thames filed a series of Crim. P. 35(c) motions, which were

denied by the district court in a single order and affirmed on

appeal. See Thames I.

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¶4 In 2017, Thames filed a “Petition for Rule to Show Cause” in

the Colorado Supreme Court, which the Court summarily denied.

People v. Thames, (Colo. No. 17SA205, Mar. 1, 2018) (unpublished

order).

¶5 In 2022, Thames filed a “Motion for New Trial Pursuant to

Crim. P. 33 Based on New Evidence.” He asserted that in 2021,

investigators had obtained a “cold hit” linking a latent fingerprint

lifted from the door of S.D.’s car with another individual. He

claimed that “[t]his proves that another alternate suspect, the

actual offender committed this crime, not Thames.” He also briefly

asserted claims of ineffective assistance of counsel, prosecutorial

misconduct, and the trial court’s abuse of discretion, all related to

his alibi defense. Thames requested a new trial, or, alternatively, a

hearing, as well as the appointment of counsel.

¶6 After the prosecution filed a response, Thames filed a “Revised

and Final Supplemental Motion for New Trial Pursuant

to Crim. P. 33 Based on New Evidence.” He reasserted his Crim. P.

33 newly discovered evidence claim regarding the fingerprint and

also argued at length that the prosecution’s serology and DNA

evidence were unreliable as compared to evidence produced

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through more modern methods. The district court denied the

motion, concluding that (1) Thames had failed to submit affidavits

with his motion, as required by Crim. P. 33(c); (2) it was “highly

unlikely that a single fingerprint on the car, if presented to the jury

during the original trial, would have swayed the jury’s guilty

verdict”; and (3) Thames’ DNA evidence reliability claim was not

properly brought under Crim. P. 33.

II. Discussion

¶7 Thames contends that the district court erred by denying his

motion. He does not, however, reassert his newly discovered

evidence claim on appeal. Rather, he contends that the district

court erred by failing to liberally construe his motion as one

cognizable under Crim. P. 35(c) or as a motion for postconviction

DNA testing under section 18-1-412, C.R.S. 2024. He also asserts

new claims of a due process violation, prosecutorial misconduct,

and ineffective assistance of trial counsel.

A. Crim. P. 33, Crim. P. 35(c), or Section 18-1-412?

¶8 Construing Thames’ motion liberally, as we must, see People v.

Bergerud, 223 P.3d 686, 697 (Colo. 2010), we conclude that the

postconviction court properly reviewed it under Crim. P. 33.

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¶9 First, the record is clear that Thames intended to raise his

claims under Crim. P. 33, not Crim. P. 35. The motion repeatedly

cited Crim. P. 33 and also cited case law applying Crim. P. 33. It

did not mention directly or through case law citation Crim. P. 35(c).

See People v. Lopez, 2015 COA 45, ¶ 74 (“Because defendant . . .

filed a motion . . . that mentioned Crim. P. 33 repeatedly, but that

did not refer to Crim. P. 35(c) at all, he is bound by the choice that

he made.”).

¶ 10 The motion also included an attached letter from Thames’

appellate counsel advising him of the newly matched fingerprint.

The letter advised Thames that he could proceed with this new

evidence under either Crim. P. 33 or Crim. P. 35:

What you do with this evidence is entirely up
to you. I am not offering legal advice, but I will
tell you generally that newly discovered
evidence (which this appears to be) can either
be raised in a motion for new trial pursuant to
Crim. P. 33(c) or a motion for postconviction
relief pursuant to Crim. P. 35(c)(2)(V). You will
need to look closely at both rules, because the
procedures for pursuing relief under Rule 33
differ[] a bit from the Rule 35 procedures.

The letter further explained that any claims other than newly

discovered evidence claims, such as ineffective assistance or

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prosecutorial misconduct claims, would need to be raised under

Crim. P. 35(c).

¶ 11 Moreover, Thames was obviously aware that he could seek

postconviction relief under Crim. P. 35(c) because he previously

filed motions under that rule.

¶ 12 The record is also clear that Thames did not intend to raise his

claims under section 18-1-412. Sections 18-1-412 and 18-1-413,

C.R.S. 2024, govern postconviction requests for additional DNA

testing. But Thames’ motion sought a new trial, which is not relief

that is available under either of these statutes. And Thames did not

cite these statutes in his motion. Nor did he comply with the

requirements of section 18-1-412 by “includ[ing] the results of all

prior DNA tests.” § 18-1-412(2).

¶ 13 For these reasons, we conclude that the district court did not

err by construing Thames’ motion under Crim. P. 33, rather than

Crim. P. 35(c) or section 18-1-412.

B. Crim. P. 33 Standard of Review and Applicable Law

¶ 14 We review the denial of a Crim. P. 33 motion for an abuse of

discretion. People v. Lopez, 2015 COA 45, ¶ 69. “We will uphold

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the trial court’s ruling if it is not manifestly arbitrary, unreasonable,

or unfair.” Id.

¶ 15 To succeed on a motion for a new trial based on newly

discovered evidence, a defendant must show that (1) the evidence

was discovered after the trial; (2) the defendant and their counsel

exercised diligence to discover all possible evidence; (3) the newly

discovered evidence is material to the issues involved; and (4) the

newly discovered evidence is of such character as to bring about

acquittal if presented at another trial. People v. Gutierrez, 622 P.2d

547, 559-60 (Colo. 1981).

C. The District Court Did Not Err by Denying the Motion

¶ 16 We conclude that the district court did not abuse its discretion

by denying Thames’ Crim. P. 33 motion for two reasons.

¶ 17 First, as the district court found, Thames did not comply with

the requirements of Crim. P. 33(c). A motion for a new trial “based

upon newly discovered evidence . . . shall be supported by

affidavits.” Crim. P. 33(c). “The phrase containing ‘shall’ is a

mandatory provision impervious to judicial discretion, which makes

it impossible to carve out an exception.” People in Interest of J.P.L.,

214 P.3d 1072, 1077 (Colo. App. 2009). To a degree, Thames

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acknowledged this requirement in his motion by indicating that he

would provide “verbal” affidavits in the future to support his

contentions and in the reply when he “admit[ted] that the motion

will preferably be completed in a timely manner with affidavits.”

But acknowledging the requirement without including the actual

affidavits is not sufficient. Therefore, the district court did not err

by denying Thames’ motion for lack of supporting affidavits.

¶ 18 On appeal, Thames argues that the affidavit requirement

under Crim. P. 33(c) violates the Supremacy Clause and the

Supreme Court’s holding in Haines v. Kerner, 404 U.S. 519 (1972).

Specifically, he claims that “Rule 33’s affidavit requirement on its

strict terms is in direct conflict with [Haines], because [Haines]

requires a liberal construction of the pleadings, whereas Crim. P.

Rule 33 jurisprudence applies a strict construction and application

of an affidavit requirement to establish a basis for reversal of a

judgment.” We disagree that any such conflict exists because a

party’s pro se status does not relieve them of complying with the

rules. Indeed, pro se parties are bound to follow the procedural

rules just as represented parties are required to do. See People v.

Romero, 694 P.2d 1256, 1266 (Colo. 1985). Moreover, as discussed,

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Thames was aware that he could file a motion under either Crim. P.

33 or Crim. P. 35, but he chose Crim. P. 33. And he was

specifically aware of the affidavit requirement, as he acknowledged

in the motion and reply. Because Thames did not raise this issue

in his motion, we will not further address it. See People v. Cali,

2020 CO 20, ¶ 34 (“[A]lthough we will broadly construe a pro se

litigant’s pleadings to effectuate the substance, rather than the

form, of those pleadings, we will not consider issues not raised

before the district court in a motion for postconviction relief.”).

¶ 19 Second, Thames has abandoned his newly discovered evidence

claim by not specifically reasserting it on appeal. See People v.

Hunsaker, 2020 COA 48, ¶ 10, aff’d, 2021 CO 83. Rather than

reassert the claim, Thames argues that the district court’s

interpretation of his claim was “inaccurate and distorted and fail[ed]

to address the facts that the prosecutor’s DNA evidence and other

identification evidence was fraudulent.” He then asserts new claims

regarding a violation of his due process rights, prosecutorial

misconduct, and ineffective assistance of trial counsel. While

Thames mentions in passing that the “new fingerprint evidence”

was “exculpatory,” he presents no further argument regarding it,

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much less an argument that the district court’s conclusion that the

evidence would not likely result in an acquittal was erroneous. “It

is the duty of counsel for appealing parties to inform a reviewing

court both as to the specific errors relied upon and as to the

grounds, supporting facts and authorities therefor.” People v.

Diefenderfer, 784 P.2d 741, 752 (Colo. 1989). Furthermore, “we do

not address skeletal arguments.” People v. Leverton, 2017 COA 34,

¶ 65.

D. Thames’ Remaining Claims

¶ 20 For the first time on appeal, Thames contends that his trial

attorneys were ineffective because (1) forensic scientist Yvonne

Woods “concealed exculpatory evidence from the defense and

presented false identification evidence”; (2) they failed to properly

investigate “viable leads” for alternate suspects; and (3) they failed

to prepare for trial by not developing an alternate suspect defense

and by not “attack[ing] the prosecution identification evidence.”

Thames also claims prosecutorial misconduct based on “the

governments’ false evidence and concealment of exculpatory

evidence concerning an alternative suspect and the unreliability of

CBI forensic scientist Woods’ identification practices.” Finally, he

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asserts that “Wood[s’] corrupt and fraudulent DNA practices . . .

present[] a meritorious due process violation based on the lack of

actual identification evidence.” Although Thames argues to the

contrary, he did not raise these claims in his Crim. P. 33 motion.

We therefore will not address them. See Cali, ¶ 34.

III. Disposition

¶ 21 The order is affirmed.

JUDGE GOMEZ and JUDGE MEIRINK concur.

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