Peo v. Aguirre

19CA2370 Peo v Aguirre 01-20-2022

COLORADO COURT OF APPEALS

Court of Appeals No. 19CA2370

Larimer County District Court No. 13CR209

Honorable Susan Blanco, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Richard John Aguirre,

Defendant-Appellant.

ORDER AFFIRMED

Division VI

Opinion by JUDGE FREYRE

Navarro and Harris, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced January 20, 2022

Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant

Attorney General, Denver, Colorado, for Plaintiff-Appellee

Amelia Power, Alternate Defense Counsel, Denver, Colorado, for Defendant-

Appellant

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¶ 1 Defendant, Richard John Aguirre, challenges the

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

without a hearing. He contends the postconviction court (1) erred

by not conducting an evidentiary hearing on his newly discovered

evidence claim; and (2) improperly evaluated his claim of

cumulative error and should have granted him a hearing.

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We

disagree with his contentions and affirm the court’s order.

I. Factual and Procedural Background

¶ 2 In 2013, a jury convicted Aguirre of first degree assault for

stabbing Gilbert Gonzales. A division of this court affirmed his

conviction in People v. Aguirre, (Colo. App. No. 14CA0588, Mar. 3,

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Because Aguirre’s appeal challenges only two of his original eleven

claims, we deem his remaining nine claims abandoned. People v.

Ortega, 266 P.3d 424, 428 (Colo. App. 2011) (citing People v.

Rodriguez, 914 P.2d 230, 249 (Colo. 1996)) (stating that a

defendant’s failure to specifically reassert claims on appeal that the

district court disposed of is a conscious relinquishment of those

claims). Aguirre’s abandoned claims include allegations that trial

counsel was ineffective (1) due to a conflict of interest; (2) for failing

to object to the images of a knife being shown to the jury; (3) in the

plea-bargaining stage; (4) for failure to investigate and put on a

defense; (5) for failure to consult with a medical expert; (6) for

failure to investigate and collaterally attack his habitual

convictions; and (7) for introducing Aguirre’s in-custody status to

the jury. He also abandoned his ineffective assistance of appellate

counsel claim and his claim that the prosecutor used false evidence

at trial.

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2016) (not published pursuant to C.A.R. 35(f)). The mandate issued

on August 22, 2016. Aguirre filed a pro se Crim. P. 35(c) motion in

October 2018 that was later supplemented by appointed counsel.

The court denied the motion without a hearing on November 25,

2019, and this appeal followed.

¶ 3 As relevant here, Gonzales testified at trial that he and three

other people were at a friend’s home, when two of them, Roger

Sanchez and Aguirre, got into a verbal argument on the front porch.

Gonzales said he went outside to stop the fight and to tell Aguirre to

leave. Aguirre “got in his face,” and the two of them stepped off the

porch. When Gonzales turned around to tell Sanchez to go back

inside, he felt a punch to his side. He turned back toward Aguirre,

who struck him with a bat and ran away. Gonzales went back

inside and noticed that he had been stabbed. He recalled Aguirre

handling a knife earlier in the day.

¶ 4 Gonzales went to the hospital and first told the doctors that he

had accidentally injured himself installing a garage door. He

testified that he lied to the doctors to avoid retaliation from his

family for calling the police. Later, he spoke with investigating

officers and told them about the altercation with Aguirre.

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¶ 5 During cross-examination, defense counsel attacked

Gonzales’s credibility through questioning about his prior felony

convictions, his probation status, his alcohol use on the day of the

stabbing, and inconsistencies between his testimony and his

statements to police.

¶ 6 Sanchez also testified about the stabbing. He described being

on the porch with Gonzales and Aguirre before the stabbing. He

said that he and Aguirre were simply talking, and that Gonzales

instigated the argument by being rude and disrespectful to Aguirre.

He recalled Aguirre and Gonzales being near each other, then

seeing Aguirre walk away and Gonzales walk into the house,

holding his side and bleeding. When asked about detailed

statements he had made to the police about the argument and the

stabbing before trial — such as seeing Aguirre punch Gonzales in

the side — Sanchez either denied making the statements or said

that he was too drunk to remember making them.

¶ 7 Aguirre claimed in his supplemental postconviction motion

that new evidence was discovered when Sanchez spoke to

postconviction counsel’s investigator. Sanchez reported that when

Gonzales returned from the hospital, he said another party — not

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Aguirre — had stabbed him. Sanchez also said that Gonzales told

him that he planned to make money from his injury by filing a

victim impact statement. Sanchez claimed that he and Gonzales

had serious substance abuse issues that could have affected their

testimony at the time of the trial.

¶ 8 In a thorough written order, the postconviction court denied

Aguirre’s Crim. P. 35 (c) motion without a hearing. As relevant

here, the court found that while Sanchez’s new statements were

inconsistent with his trial testimony, the record showed that

Sanchez gave inconsistent testimony at trial and that the new

statement represented his third version of the events. It reasoned

that even if this third version cast doubt on the credibility of other

witnesses who testified at trial, Aguirre failed to show that a

reasonable juror with the appropriate degree of awareness of all the

circumstances would believe Sanchez’s third version more than the

prior two versions; therefore, this evidence would probably not

result in Aguirre’s acquittal.

II. Newly Discovered Evidence

¶ 9 Aguirre contends that the postconviction court erroneously

applied the holding in Farrar v. People, 208 P.3d 702, 706 (Colo.

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2009), to deny him an evidentiary hearing rather than first

determining whether his allegations, if true, warranted a hearing.

See White v. Denver Dist. Ct., 766 P.2d 632, 634-35 (Colo. 1988).

We discern no abuse of discretion.

A. Standard of Review and Applicable Law

¶ 10 We review de novo a postconviction court’s decision to deny a

Crim. P. 35(c) motion without a hearing. People v. Cali, 2020 CO

20, ¶ 14. A court may deny a hearing only if the motion, files, and

record in the case clearly establish that the defendant’s allegations

are without merit and do not warrant postconviction relief. Ardolino

v. People, 69 P.3d 73, 77 (Colo. 2003) (first citing People v. Hutton,

183 Colo. 388, 517 P.2d 392 (1973); and then citing White, 766

P.2d 632).

¶ 11 Newly discovered evidence entitles a defendant to a new trial

only if the evidence would likely result in an acquittal for reasons

beyond simply impeaching other evidence already presented at trial;

it must contradict previous evidence “with a different and more

credible account.” Farrar, 208 P.3d at 707-08. A witness’s

recantation justifies a new trial “only if it contains sufficiently

significant new evidence, and if it, rather than the witness’s

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inconsistent trial testimony, will probably be believed.” Id. at 708

(citing United States v. McCullough, 457 F.3d 1150, 1167 (10th Cir.

2006)).

¶ 12 To determine whether a witness’s new testimony would

probably be believed, the court may rely on its own experience, but

it must also consider all of the other testimony and circumstances

of the case. Id. The standard is an objective one — “whether a

reasonable person with the appropriate degree of skepticism and

awareness of the relevant circumstances, rather than a typical

juror, would probably believe the witness’s new version of events.”

Id. (citing People v. Wadle, 97 P.3d 932, 937 (Colo. 2004)).

¶ 13 To succeed on a motion for new trial, a defendant must show

that (1) the evidence was discovered after the trial; (2) the defendant

and counsel exercised due diligence to discover all possible

favorable evidence before and during the trial; (3) the newly

discovered evidence is material to the issues involved and not

merely cumulative or impeaching; and (4) a retrial with the newly

discovered evidence would probably result in an acquittal. People v.

Gutierrez, 622 P.2d 547, 559-60 (Colo. 1981) (citing People v.

Scheidt, 187 Colo. 20, 22, 528 P.2d 232, 233 (1974)).

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B. Analysis

¶ 14 We conclude that even if Aguirre’s claim is true, it would not

entitle him to an evidentiary hearing because the new evidence

claim is meritless under a Farrar analysis. Ardolino, 69 P.3d at 77.

Therefore, his reliance on White is misplaced.

¶ 15 We reach this conclusion for two reasons. First, Sanchez’s

new testimony constitutes a “third version” of what occurred. If

true, Sanchez’s recantation would be sufficiently significant new

evidence because it identifies another as the perpetrator rather than

Aguirre. However, it strains credulity to conclude that a jury would

probably believe Sanchez’s third version of events any more than it

believed his prior inconsistent trial testimony. This latest version

does not identify the alleged new perpetrator or what the

circumstances were leading to Gonzales’s injury. Nor does it

identify any independent corroborating evidence produced at the

trial that would lead a reasonable jury to probably acquit Aguirre on

retrial.

¶ 16 Second, Aguirre has not shown that Sanchez’s new testimony

does anything more than merely impeach Sanchez’s and Gonzales’s

trial testimony. In our view, it falls short of satisfying the

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requirement that it be sufficiently substantial to probably result in

an acquittal.

¶ 17 As the postconviction court noted, relief under Farrar requires

a defendant to show that reasonable jurors — appropriately

skeptical and aware of the circumstances and content of Sanchez’s

previous statements — would more likely than not believe the more

recent statement and disbelieve the prior trial testimony. 208 P.3d

at 706-08. Aguirre failed to meet his burden under Farrar and

therefore is not entitled to relief. And because Aguirre’s claim, even

if true, would not entitle him to relief, he is not entitled to an

evidentiary hearing under White. Accordingly, we discern no error

here and affirm the court’s ruling.

III. Cumulative Error

¶ 18 Aguirre also contends that the court erred in denying his

cumulative error claim. He asserts that the court considered and

dismissed his claims individually rather than considering them in

the aggregate. As well, he asserts that the court could not properly

rule on the claim without an evidentiary hearing. We disagree.

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A. Standard of Review and Applicable Law

¶ 19 Cumulative error is a question of law that we review de novo,

and it applies where there are numerous formal irregularities, but

none individually warrants reversal. Howard-Walker v. People,

2019 CO 69, ¶¶ 22, 24. Though an error, when viewed in isolation,

may be harmless or not affect the defendant’s substantial rights,

reversal will nevertheless be required when “the cumulative effect of

[multiple] errors and defects substantially affected the fairness of

the trial proceedings and the integrity of the fact-finding process.”

Id. at ¶ 24 (quoting People v. Lucero, 200 Colo. 335, 344, 615 P.2d

660, 666 (1980)). To warrant reversal of a conviction on direct

appeal based on cumulative error, numerous errors must have been

committed, not merely alleged. People v. Thomas, 2014 COA 64,

¶ 61.

B. Analysis

¶ 20 Even assuming the cumulative error doctrine applies to

ineffective assistance of counsel claims, because we discern no

error in the court’s newly discovered evidence ruling, we necessarily

discern no cumulative error; the cumulative effect of nothing is still

nothing. And to the extent Aguirre asserts that the court erred in

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denying a hearing on the cumulative error claim, we cannot

consider that issue because he did not appeal the court’s rulings on

the nine other claims.

IV. Conclusion

¶ 21 The order is affirmed.

JUDGE NAVARRO and JUDGE HARRIS concur.