Peo v. Cockrell

24CA0019 Peo v Cockrell 10-02-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0019
El Paso County District Court No. 13CR2514
Honorable R. Michael Mullins, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Brandon Cockrell,

Defendant-Appellant.

ORDER AFFIRMED

Division II
Opinion by JUDGE FOX
Brown and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 2, 2025

Philip J. Weiser, Attorney General, Jillian J. Price, Deputy Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Suzan Trinh Almony, Alternate Defense Counsel, Broomfield, Colorado, for
Defendant-Appellant
¶1 Defendant, Brandon Cockrell, appeals the postconviction

court’s order denying his Crim. P. 35(c) motion for postconviction

relief after an evidentiary hearing. We affirm.

I. Background

¶2 The victim in this case was shot multiple times and left on a

trail outside of Colorado Springs, where bystanders discovered him

and called 911. En route to the hospital, the victim said that

Cockrell had shot him. The victim died after arriving at the

hospital. Cockrell was arrested and charged with first degree

murder.

¶3 At trial, the prosecution presented evidence of (1) the victim’s

identification of Cockrell; (2) eyewitness reports of a white Cadillac

matching the description of one owned by Cockrell speeding away

from the scene; and (3) cell phone data indicating that Cockrell’s

cell phone was near the shooting. The victim and Cockrell had

injuries consistent with a physical altercation, so the prosecution

theorized that the victim and Cockrell were in a fight that ended

with Cockrell shooting the victim. But the prosecution did not

present any forensic evidence tying Cockrell to the murder.

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¶4 Cockrell was represented by two attorneys from the public

defender’s office. The attorneys endorsed a general denial defense,

and at trial they attempted to cast doubt on the victim’s

identification of Cockrell and the cell phone data’s reliability. They

also highlighted the lack of forensic evidence and argued that law

enforcement officers did not perform an adequate investigation. As

for Cockrell’s injuries, they offered that Cockrell was a boxer and

sustained those injuries in the ring rather than a fight with the

victim.

¶5 The jury found Cockrell guilty of first degree murder. The

district court sentenced him to life in prison without the possibility

of parole.

¶6 Cockrell appealed the judgment of conviction, asserting that

(1) the dying declaration statute was unconstitutional; (2) the trial

court erred by admitting evidence of the victim’s dying declaration;

and (3) the evidence was insufficient to sustain the jury’s verdict.

See People v. Cockrell, 2017 COA 125, ¶¶ 8, 19, 30. A division of

this court rejected Cockrell’s arguments and affirmed the judgment

of conviction. See id. at ¶¶ 18, 29, 33-34.

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¶7 Cockrell then filed a pro se Crim. P. 35(c) motion for

postconviction relief, alleging that his attorneys were ineffective.

After reviewing Cockrell’s claims, the postconviction court

appointed counsel, who supplemented Cockrell’s pro se motion,

asserting that his trial attorneys were ineffective by failing to

(1) investigate witnesses and present evidence; (2) consult with and

present an expert witness; and (3) develop a cohesive theory of

defense.

¶8 After considering Cockrell’s motion and supplement and the

People’s response, the postconviction court set the matter for an

evidentiary hearing. At the hearing, Cockrell presented testimony

that he had been in a fight two days before the murder and that he

had a close relationship with the victim. The court also heard

testimony from only one of Cockrell’s trial attorneys. Finally,

Cockrell presented testimony from an expert in gunshot residue

(GSR) evidence and a criminal defense expert. In a written order

following the hearing, the postconviction court rejected Cockrell’s

ineffective assistance claims and denied his motion.

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II. Discussion

¶9 Cockrell contends that, contrary to the postconviction court’s

findings, the evidence at the postconviction hearing established that

his attorneys provided ineffective assistance by failing to

(1) adequately investigate and call witnesses in his defense;

(2) consult with or retain an expert witness in GSR; and (3) present

an alternate suspect defense. We address and reject each of these

contentions below.

A. Applicable Law and Standard of Review

¶ 10 “A criminal defendant is constitutionally entitled to effective

assistance from his counsel.” Ardolino v. People, 69 P.3d 73, 76

(Colo. 2003). To succeed on an ineffective assistance claim, the

defendant must establish that (1) counsel’s performance was

deficient, meaning it fell below an objective standard of

reasonableness; and (2) counsel’s deficient performance prejudiced

the defendant, meaning that a reasonable probability exists that,

but for counsel’s deficient performance, the result of the proceeding

would have been different. Strickland v. Washington, 466 U.S. 668,

687-88 (1984); Dunlap v. People, 173 P.3d 1054, 1062-63 (Colo.

2007). A postconviction court may reject an ineffective assistance

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claim if the defendant fails to demonstrate either deficient

performance or prejudice. See People v. Aguilar, 2012 COA 181,

¶ 9.

¶ 11 The denial of a Crim. P. 35(c) motion after a hearing is a mixed

question of fact and law. People v. Corson, 2016 CO 33, ¶ 25. We

defer to the postconviction court’s factual findings but review de

novo the court’s ultimate conclusions regarding performance and

prejudice. See People v. Sharp, 2019 COA 133, ¶ 12. The

postconviction court determines the weight and credibility to be

given to the testimony of witnesses in a Crim. P. 35(c) hearing.

People v. Hardin, 2016 COA 175, ¶ 39. Accordingly, “[w]here the

evidence in the record supports the findings and holding of the

postconviction court that presided over an evidentiary hearing, the

judgment will not be disturbed on review.” People v. Wardell, 2020

COA 47, ¶ 27.

B. Investigate and Call Witnesses

¶ 12 Cockrell asserts that his attorneys failed to adequately

investigate witnesses and present evidence in his favor.

Specifically, Cockrell asserts that, because his counsel did not

adequately investigate the case, they did not present evidence that

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(1) he sustained the injuries in a fight two days before the murder,

and (2) he and the victim had a close relationship. We disagree.

¶ 13 Criminal defendants are entitled to sufficiently thorough

pretrial investigations “to develop potential defenses and uncover

facts relevant to guilt and punishment.” People v. Davis, 849 P.2d

857, 861 (Colo. App. 1992), aff’d, 871 P.2d 769 (Colo. 1994); see

Davis, 871 P.2d at 773 (“[C]ounsel has a duty to make reasonable

investigations or to make a reasonable decision that makes

particular investigations unnecessary.”). When reviewing a claim of

ineffective assistance, the court must evaluate counsel’s alleged

failure to investigate for reasonableness, “applying a heavy measure

of deference to counsel’s judgments.” Strickland, 466 U.S. at 691.

Mere disagreement as to trial strategy will not support an ineffective

assistance claim. Davis, 849 P.2d at 861; People v. Apodaca, 998

P.2d 25, 29 (Colo. App. 1999).

1. Injuries from a Fight

¶ 14 Cockrell contends that his attorneys were ineffective for failing

to investigate his claim that his injuries were the result of a fight

that occurred two days before the murder and call witnesses to

testify about the fight and injuries. We disagree.

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¶ 15 At the evidentiary hearing, one of Cockrell’s acquaintances

testified that she attended Cockrell’s birthday party two days before

the murder. She said that Cockrell and another man at the party

got into a fight after the other man “came from behind and hit

[Cockrell] in the head with a bottle.” The witness testified that the

fight was “pretty intense” and that Cockrell suffered injuries to his

face and hands. The witness said that Cockrell’s attorneys visited

her, they asked her about the fight, and she told them the “exact

story” she testified to at the evidentiary hearing.

¶ 16 Cockrell’s attorney testified that he recalled talking to Cockrell

about “what the source of those injuries might have been.” He also

recalled that “Mr. Cockrell went to a boxing gym, and that that may

have actually been the explanation for some of those injuries.”

When asked whether he remembered any discussions about a fight

that had occurred before the murder, he said that he did not “have

a very firm recollection,” but “it sounded very familiar.” When

confronted with information that the defense case file did not

mention the fight, the attorney expressed surprise because he

remembered discussing the issue with his co-counsel.

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¶ 17 The criminal defense expert testified that it was “crucially

important” for the defense to explain the source of Cockrell’s

injuries because “it was . . . the only other physical evidence that

[the prosecution] had that Mr. Cockrell had been involved in an

altercation with the victim.” The expert believed that the boxing

angle was “fairly weak,” and the attorneys were therefore ineffective

for failing to investigate the earlier fight and present evidence of

that fight to explain Cockrell’s injuries.

¶ 18 The postconviction court rejected this assertion, finding that,

although the defense case file did not include notes about the fight,

the evidence established that defense counsel knew about it but

“chose not to proceed with” it. The court also determined that, even

if Cockrell’s attorneys’ decision to present the boxing angle to the

jury was a “weak explanation,” it was a strategic decision that was

not objectively unreasonable.

¶ 19 We agree with the postconviction court that Cockrell did not

establish that his attorneys provided deficient performance by not

investigating the fight or presenting it to explain his injuries.

Although Cockrell named at least four witnesses who could have

testified about the fight or his injuries, only one of those potential

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witnesses testified at the evidentiary hearing. See People v.

Chambers, 900 P.2d 1249, 1252 (Colo. App. 1994) (when a

defendant alleges that counsel failed to investigate, he must

produce evidence of potential witnesses and their willingness to

testify). That witness said that Cockrell’s attorneys spoke with the

witness before the trial and that she told them about the fight. And

although Cockrell’s attorney could not remember much, he recalled

speaking to Cockrell and his co-counsel about the injuries and the

source of those injuries. Therefore, the record supports the court’s

finding that Cockrell’s attorneys adequately investigated the fight.

See People v. Newmiller, 2014 COA 84, ¶ 45 (noting that counsel’s

only duty is to conduct a reasonable investigation that is sufficient

to reveal potential defenses and facts related to guilt).

¶ 20 Having investigated the claim, the attorneys presumably made

a strategic decision to explain the injuries by telling the jury that

Cockrell was a boxer. See Arko v. People, 183 P.3d 555, 558 (Colo.

2008) (decisions about what witness to call are reserved to defense

counsel). And even if this explanation was relatively weak, as the

criminal expert opined, we agree with the postconviction court that

it was not objectively unreasonable, considering that the other

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theory would have required the defense to admit evidence of

Cockrell’s violent acts and rely on testimony from a witness with a

criminal history. See Newmiller, ¶ 48; Davis, 849 P.2d at 861.

2. Close Relationship with the Victim

¶ 21 Cockrell argues that his attorneys were ineffective by failing to

investigate and call witnesses to testify about his close relationship

with the victim. We disagree.

¶ 22 At the evidentiary hearing, the postconviction court heard

testimony from one of Cockrell’s friends and Cockrell’s ex-wife.

They testified that Cockrell and the victim had a close relationship

and that Cockrell was like a “big brother figure” to the victim. Both

witnesses admitted that they had spoken to Cockrell’s attorneys

before the trial. Cockrell’s attorney said that he remembered

discussing with Cockrell the nature of the relationship with the

victim, but he did not “have any real specific independent

recollection of” the investigation into the relationship.

¶ 23 The criminal defense expert opined that, although the

attorneys were aware of the relationship between Cockrell and the

victim, they did not do enough to investigate it. However, the expert

admitted that presenting evidence to the jury that Cockrell and the

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victim were close was potentially a “double-edged sword.”

Therefore, she said that she was “not positive” that the evidence

about Cockrell’s relationship was critical to Cockrell’s case.

¶ 24 The postconviction court found that presenting evidence of

Cockrell’s relationship with the victim was a “double-edged sword,”

as the criminal defense expert testified. Specifically, the court

noted that the evidence could have given “substantial support” to

the victim’s identification of Cockrell as the shooter and “undercut”

his defense that the victim had misidentified him. The court

therefore concluded that it was not objectively unreasonable for the

attorneys to avoid presenting evidence of the relationship.

¶ 25 Again, we agree with the postconviction court that Cockrell did

not establish that his attorneys provided deficient performance.

The record shows that the attorneys knew about the relationship

between Cockrell and the victim and that they interviewed the

witnesses with information about their relationship. Because the

strongest evidence against Cockrell was the victim’s identification, it

was reasonable for his attorneys to avoid anything that would add

weight to that identification, such as evidence that the victim was

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very familiar with Cockrell. Therefore, based on these facts, we

reject Cockrell’s assertion. See Newmiller, ¶ 48.

C. GSR Expert Witness

¶ 26 Cockrell maintains that his attorneys were ineffective for

failing to consult with and obtain an expert witness in GSR. We

disagree.

¶ 27 Trial counsel has a duty to make reasonable investigations,

including consulting experts that could help rebut or severely

undermine the prosecution’s evidence. See id. at ¶¶ 45, 51. But

counsel need not introduce expert testimony if the attorney can

effectively cross-examine prosecution witnesses and elicit helpful

testimony. Id. at ¶ 60. Therefore, reviewing courts should afford

deference to trial counsel’s decisions about whether to call expert

witnesses. People v. Bradley, 25 P.3d 1271, 1276 (Colo. App. 2001).

¶ 28 At trial, the prosecution presented evidence that law

enforcement had collected samples from Cockrell’s hands and face,

as well as his vehicle, to test for GSR. Yet law enforcement did not

submit these samples for testing, and the prosecution therefore did

not have any evidence that Cockrell had fired a gun. The defense

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pointed to the lack of GSR testing as evidence of law enforcement’s

shoddy investigation.

¶ 29 In his Crim. P. 35(c) motion, Cockrell asserted that his

attorneys needed to consult with and call a GSR expert witness to

rebut the prosecution’s assertion that GSR testing was “not very

relevant or important” in this case. In support, Cockrell presented

testimony from a GSR expert, who explained the mechanics and

collection of GSR, including the best sources where gunshot residue

might be found on a shooter. He also explained that if a person had

fired a gun multiple times, that person would likely have GSR on

their hands and clothes, which could then be transferred to

surfaces that they touched. The criminal defense expert then

testified that Cockrell’s attorneys were ineffective for failing to

present expert testimony to explain to the jury how significant it

was that the prosecution did not have any GSR evidence, given the

circumstances of this case.

¶ 30 The postconviction court determined that, although Cockrell’s

attorneys had not presented a GSR expert, they cross-examined the

prosecution’s witnesses and elicited testimony that supported their

theory of the case. See Newmiller, ¶ 60. The court concluded that

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“even if [Cockrell’s] method of proof would have been better,” he had

not shown that “the method and strategy used by [his attorneys] fell

below the level of reasonably competent assistance demanded of

attorneys in criminal cases.”

¶ 31 To begin with, Cockrell did not present any evidence that his

attorneys were unfamiliar with GSR evidence and that they needed

to consult with an expert witness to properly understand the

evidence or cross-examine the prosecution’s witnesses on this

issue. Rather, as described in more detail below, the attorneys

demonstrated that they knew about the general mechanics of GSR

and used cross-examination to attack law enforcement’s lack of

investigation into GSR evidence.

¶ 32 The record indicates that Cockrell’s attorneys elicited the same

or similar information from the prosecution’s witnesses that

Cockrell wanted presented by an expert witness:

• Mechanics: One of the officers trained to collect GSR

evidence testified that it was “standard practice” to

collect GSR evidence in a shooting investigation. He said

that the presence of GSR can indicate whether someone

14
fired a gun and that when someone does, the most likely

place to find GSR is on the hands and face.

• Collection: A crime scene investigator (CSI) testified that

GSR is collected using “stubs,” which have an adhesive

side that is applied to a surface. He said that the stubs

are then logged into the evidence locker at the police

department. A detective testified that the test kits are

sent to the Colorado Bureau of Investigation for testing.

• Transfer: A different CSI testified that GSR can be

transferred from one place to another and even though

there is a chance it can be cleaned off, law enforcement

still tries to collect samples. A third CSI testified that

GSR is “very mobile” and noted that a gunshot victim

could potentially transfer GSR onto surfaces of the

ambulance he is transported in.

¶ 33 Using this evidence, Cockrell’s attorneys argued that, if

Cockrell had shot the victim as the prosecution theorized, it would

be surprising not to find GSR on him or his vehicle. Cockrell’s GSR

expert reviewed the testimony from the trial and could not identify

specific inaccuracies in the testimony.

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¶ 34 In sum, because the record supports the postconviction

court’s finding that Cockrell’s attorneys did not perform deficiently

under the circumstances presented here, we discern no error in the

court’s decision to reject Cockrell’s claim. See Bradley, 25 P.3d at

1276 (counsel’s decision to not call an expert motorcycle driver was

a tactical decision and therefore the defendant had not established

his ineffective assistance claim).

¶ 35 Finally, Cockrell asserts that his attorneys were ineffective for

failing to object to the coroner’s brief testimony about GSR because

the testimony was outside the scope of the witness’s expertise. The

coroner testified that the standard practice among forensic

pathologists was to not collect GSR because the victim will have

been handled by so many people and therefore produce a false

negative. We agree with the People that the examiner’s testimony

was within the scope of his expertise, and therefore counsel’s failure

to object did not fall below the level of reasonably competent

assistance. Cockrell otherwise fails to direct us to any authority for

his position or fully develop his argument. See People v. Bossert,

722 P.2d 998, 1010 (Colo. 1986) (“Effective assistance of

counsel . . . does not require an attorney to object to every possible

16
error.”); see also People v. Sparks, 914 P.2d 544, 548 (Colo. App.

1996) (counsel did not object to inadmissible character evidence

because “he did not want to draw undue attention to these indirect

references”).

¶ 36 In any event, the forensic examiner’s testimony related to why

GSR evidence is not particularly useful with respect to a shooting

victim, not a potential shooter. In other words, the examiner’s

testimony did not necessarily undermine the defense’s position

that, if Cockrell were the shooter, the prosecution would have found

GSR on him or in his car. Under these circumstances, Cockrell has

not established that, even if his attorneys were deficient for failing

to object, he was prejudiced by this testimony.

D. Alternate Suspect Defense

¶ 37 Cockrell submits that his attorneys were ineffective by failing

to present a cohesive theory of defense and should have instead

presented an alternate suspect defense. We disagree.

¶ 38 In his Crim. P. 35(c) motion, Cockrell asserted that the victim

and a mutual friend were involved in an altercation with two

individuals at the bus station. He claimed that one of the

individuals involved threatened to kill the victim. Cockrell argued

17
that his attorneys failed to investigate this incident and to call the

friend as a witness to support an alternate suspect defense.

¶ 39 At the postconviction hearing, Cockrell testified that he asked

counsel to investigate the incident at the bus terminal. Cockrell’s

friend testified that Cockrell’s counsel and an investigator visited

him in prison, and he told them about the incident. Specifically,

the friend said that he and the victim “got into it” with a couple of

“dudes” at the bus station and one “dude started telling [him] how

they was gonna, you know, kill [him and the victim].” Cockrell did

not present any evidence establishing the identity of the individuals

involved in the alleged incident. Nor did he ask trial counsel any

questions about whether the defense investigated this claim.

¶ 40 Based on this record, the postconviction court rejected

Cockrell’s claim, finding that his “argument [was] not supported by

the record” and that his attorneys were “consistent and focused on

presenting and developing evidence in support of their theory of

defense.”

¶ 41 We agree with the postconviction court that Cockrell did not

establish that his attorneys provided deficient performance by not

investigating an alternate suspect defense or presenting that

18
defense at trial. The record shows that Cockrell’s attorneys talked

to the friend about the incident and decided not to pursue that

theory at trial. And considering that the friend only had a vague

description of the alleged assailants, we are skeptical as to whether

an alternate suspect defense was a viable option. See People v.

Elmarr, 2015 CO 53, ¶ 23 (noting that, to present an alternate

suspect defense, the evidence must establish “a non-speculative

connection or nexus between the alternate suspect and the crime

charged”). Thus, because the record shows that the attorneys

investigated the alternate suspect theory, it was not deficient

performance — under the circumstances presented here — for

Cockrell’s attorneys to pursue a general denial defense. Steward v.

People, 498 P.2d 933, 934 (Colo. 1972) (defense counsel is the

“captain of the ship” on matters of strategy, including the theory of

defense); see Ardolino, 69 P.3d at 76 (noting that “[s]trategic choices

made after thorough investigation of the law and facts relevant to

plausible options are virtually unchallengeable”).

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E. Abandoned Claims

¶ 42 Any claims that Cockrell raised in his postconviction motion

and supplement but did not reassert in this appeal are abandoned.

See People v. Osorio, 170 P.3d 796, 801 (Colo. App. 2007).

III. Disposition

¶ 43 The order is affirmed.

JUDGE BROWN and JUDGE MEIRINK concur.

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