Peo v. Whitefield

22CA0844 Peo v Whitefield 04-10-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0844
El Paso County District Court No. 17CR1087
Honorable Lin Billings Vela, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Scott Anthony Whitefield,

Defendant-Appellant.

ORDER AFFIRMED

Division IV
Opinion by JUDGE HARRIS
Grove and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 10, 2025

Philip J. Weiser, Attorney General, Claire V. Collins, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Scott Anthony Whitefield, Pro Se
¶1 Defendant, Scott Anthony Whitefield, appeals the

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

postconviction relief. We affirm.

I. Background

¶2 Whitefield was charged with multiple sexual offenses based on

allegations that he sexually assaulted the victim on a couch in the

basement of her home. A jury acquitted Whitefield of a sentence

enhancer but otherwise convicted him as charged. The district

court sentenced Whitefield to a controlling indeterminate sentence

totaling eighteen years to life in prison.

¶3 After voluntarily dismissing his direct appeal, Whitefield timely

filed a Crim. P. 35(c) motion raising numerous claims. The

postconviction court appointed counsel to represent Whitefield, and

postconviction counsel filed a supplement to Whitefield’s pro se

motion. The supplement expounded on Whitefield’s claim that trial

counsel was ineffective for failing to call his sister as a witness and

incorporated his other pro se claims, including, as relevant here, an

allegation that counsel also should have called a “sleep specialist

psychologist” to testify.

1
¶4 In a written order, the postconviction court denied Whitefield’s

motion and supplement without a hearing.

II. Denial of the Crim. P. 35(c) Motion

¶5 Whitefield appeals the postconviction court’s denial of his

Crim. P. 35(c) motion and supplement. While numerous claims

were raised in the pleadings below, he appeals only the denial of his

claims that counsel was ineffective for failing to subpoena his sister

and a sleep psychologist expert to testify at the trial.1

A. Legal Principles and Standard of Review

¶6 Upon receipt of a motion for postconviction relief under Crim.

P. 35(c), a postconviction court must hold an evidentiary hearing

unless “the motion and the files and record of the case show to the

satisfaction of the court that the defendant is not entitled to relief.”

Crim. P. 35(c)(3)(IV). A defendant need not set forth the evidentiary

support for their allegations in their initial Crim. P. 35(c) motion;

instead, a defendant need only assert facts that, if true, would

provide a basis for relief. White v. Denver Dist. Ct., 766 P.2d 632,

1 Any claims raised in the postconviction motions but not

reasserted on appeal are deemed abandoned. People v. Ortega, 266
P.3d 424, 428 (Colo. App. 2011).

2
635 (Colo. 1988). Thus, a postconviction court may deny a Crim. P.

35(c) motion without a hearing if (1) the allegations are merely

conclusory, vague, or lacking in detail; (2) the allegations, even if

true, do not warrant relief; or (3) the record directly refutes the

claims. See Crim. P. 35(c)(3)(IV); People v. Duran, 2015 COA 141,

¶ 9.

¶7 We review de novo a postconviction court’s ruling denying a

Crim. P. 35(c) motion without an evidentiary hearing. People v.

Cali, 2020 CO 20, ¶ 14.

B. Ineffective Assistance of Counsel Claims

¶8 Defendants have a constitutional right to effective assistance

of counsel. Strickland v. Washington, 466 U.S. 668, 684-86 (1984).

To demonstrate ineffective assistance of counsel, a defendant must

show that (1) counsel’s performance was deficient and (2) the

deficient performance prejudiced the defense. Id. at 687. An

ineffective assistance claim fails if the defendant is unable to satisfy

either prong. Id. at 697.

¶9 To establish deficient performance, the defendant must show

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

reasonableness.” Dunlap v. People, 173 P.3d 1054, 1062 (Colo.

3
2007) (quoting Strickland, 466 U.S. at 688). To establish prejudice,

the defendant must show that there is a reasonable probability

that, but for counsel’s errors, the result of the proceeding would

have been different. Strickland, 466 U.S. at 694. A reasonable

probability means a probability sufficient to undermine confidence

in the outcome. Ardolino v. People, 69 P.3d 73, 76 (Colo. 2003).

1. Failure to Present Testimony from Whitefield’s Sister

¶ 10 In his motion, Whitefield asserted that trial counsel provided

ineffective assistance because he failed to present testimony from

Whitefield’s sister concerning her firsthand knowledge of the “home

dynamics,” including the condition of the home as a basis for DNA

transfer and the bias of the victim’s mother against Whitefield.

¶ 11 The postconviction court denied this claim concluding that

there was “no reasonable probability that the result of the trial

would have been different” had counsel called Whitefield’s sister to

testify. We agree with the postconviction court’s assessment.

¶ 12 First, based on the allegations in Whitefield’s postconviction

motion, we conclude that the sister’s testimony about the condition

of the house would have been cumulative of other admitted

4
evidence. Consequently, Whitefield cannot demonstrate prejudice

from defense counsel’s decision not to call her as a witness.

¶ 13 One aspect of Whitefield’s theory of defense was that the DNA

found on the victim (which was not a direct match to Whitefield and

could have come from another paternal relative) could have easily

transferred to her from another male in the home due to the home’s

condition. In support of that theory, trial counsel elicited testimony

from various witnesses that the victim’s baby brother was often

changed on the couch on which the offense occurred, and

sometimes his dirty diapers leaked; four children in the home wore

diapers and sometimes wet the bed; the children urinated on the

basement floor and couch; the couch had been moved downstairs

because it had urine on it; and the basement toilet had overflowed

at some point and the basement carpet was “never really cleaned.”

Trial counsel also elicited testimony from a DNA transfer expert who

explained that urine, even if dried, could transfer from a couch to

underwear to a human body and, if not exposed to “environmental

insults” or otherwise “washed off,” it could last on that surface

“indefinitely.”

5
¶ 14 As a general matter, where admissible evidence establishes or

supports a particular fact or proposition, counsel’s decision to forgo

introducing additional (i.e., cumulative) evidence regarding the

same subject matter does not prejudice the defense and, therefore,

does not constitute ineffective assistance. See People v.

Washington, 2014 COA 41, ¶ 35.

¶ 15 Whitefield says that the sister’s testimony was not cumulative

because, on the subject of the home’s cleanliness, she was “more

informed” and credible than Whitefield’s mother, who, at the time of

the offense, had been living in the home for five years. But

Whitefield did not plead any facts to support that conclusory

allegation — he does not say what his sister knew that his mother

did not or why, with respect to this particular issue, the jury was

likely to believe his sister but not his mother. On appeal, the only

testimony he says that his sister could have added is that the victim

did not always wear underwear. But considering that the sister’s

testimony was otherwise cumulative, Whitefield had to explain why

the admission of this one additional statement was likely to affect

the outcome of the case. See, e.g., Commonwealth v. Brown, 196

A.3d 130, 161 (Pa. 2018) (to prevail on ineffective assistance of

6
counsel claim, defendant must show that admission of the

additional, non-cumulative evidence would have affected the

outcome of the trial). He does not provide any explanation, and we

do not think there is a plausible one.

¶ 16 Second, even if the sister would have testified that the victim’s

mother “held a bias against [Whitefield]” and that she and

Whitefield had a falling out a month before the victim’s accusation,

Whitefield does not explain why that evidence, on its own, was

relevant or how its absence prejudiced him. Evidence of bias might

be relevant to show a motive to lie or to coach the victim, but

Whitefield never alleged that the victim’s mother lied about

anything or told the victim to do so. On appeal, Whitefield

reiterates that the sister’s testimony would have “establish[ed]

motive,” but it is still unclear what the mother had a motive to do or

what action she took based on her supposed bias against

Whitefield.

¶ 17 Whitefield has the burden to establish that the absence of the

sister’s testimony prejudiced his defense. See People v. Sharp, 2019

COA 133, ¶ 31. Those allegations are lacking. And in our view,

testimony that the victim’s mother was “biased” or had

7
“disassociated” from Whitefield would not, on its own, have shed

light on Whitefield’s guilt or innocence, and therefore it had almost

no probative value. Thus, counsel’s failure to introduce the

testimony could not have prejudiced Whitefield. See, e.g., People v.

Chambers, 900 P.2d 1249, 1252 (Colo. App. 1994) (counsel’s failure

to procure a witness is not prejudicial unless it would have led to

“substantial evidence which, if introduced, might reasonably have

led to a different result”).

2. Failure to Present Expert Testimony

¶ 18 Next, Whitefield contends that trial counsel was ineffective for

failing to present testimony from a “field specific psychologist that

specializes in sleep.”2 In his motion, Whitefield alleged that an

expert in sleep psychology “would have shown to the jury that there

was a preexisting condition of concurring nightmares that caused

the initial allegation by the alleged victim.” He said that the failure

2 To the extent Whitefield asserts on appeal that trial counsel was

ineffective for failing to investigate the viability of such an expert,
this claim is unpreserved, and we will not address it. See People v.
Cali, 2020 CO 20, ¶ 34 (appellate court will not consider issues that
were not raised before the postconviction court in a motion for
postconviction relief).

8
to present such testimony “materially affected the outcome of the

trial.”

¶ 19 But Whitefield’s claim is speculative, at best. At trial, the

victim denied having nightmares before or on the night of the sexual

assault. Instead, she testified that she did not sleep at all that

night. The forensic interviewer confirmed that the victim never

described what happened as a “dream.” The victim’s mother also

testified that the victim did not experience nightmares before “what

happened.”

¶ 20 Given this evidence, Whitefield’s conclusory allegation that

testimony from an expert sleep psychologist would have resulted in

an acquittal is insufficient to entitle him to a hearing. See People v.

Aguilar, 2012 COA 181, ¶ 12 (holding that the defendant was not

entitled to a hearing on his “facially speculative” claim that a

defense expert could have contradicted the prosecution’s evidence);

see also Gilbert v. Paramo, 754 F. App’x 611, 612 (9th Cir. 2019)

(unpublished opinion) (“[F]ailure to call an expert is not deficient

where there is no evidence to support a defense.”).

¶ 21 Accordingly, with respect to both claims, we conclude that

Whitefield has failed to establish the required prejudice from trial

9
counsel’s allegedly deficient conduct and discern no basis to reverse

the postconviction court’s ruling.

III. Disposition

¶ 22 The order is affirmed.

JUDGE GROVE and JUDGE PAWAR concur.

10