CourtListener 10747804•Peo v. Smith
Testo completo
24CA0713 Peo v Smith 12-04-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0713
Arapahoe County District Court No. 16CR2385
Honorable Darren L. Vahle, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Ernest Daron Smith,
Defendant-Appellant.
ORDER AFFIRMED
Division A
Opinion by CHIEF JUDGE ROMÁN
Bernard* and Taubman*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 4, 2025
Philip J. Weiser, Attorney General, Austin R. Johnston, Assistant Attorney
General, Denver, Colorado for Plaintiff-Appellee
Law Office of Gary Fielder, Gary D. Fielder, Denver, Colorado for Defendant-
Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2025.
¶1 Defendant, Ernest Daron Smith, appeals the postconviction
court’s order denying his Crim. P. 35(c) motion without a hearing.
We affirm.
I. Background
¶2 A jury found Smith guilty of one count of attempted first
degree murder and four counts of attempted second degree murder
based on evidence that he fired several bullets near five victims in a
motel parking lot. The judgment of conviction was affirmed by a
division of this court. See People v. Smith, (Colo. App. No.
17CA2245, Oct. 19, 2020) (not published pursuant to C.A.R. 35(e))
(Smith I). The division summarized the facts of the crime as follows:
Four of the victims — Stacey Pena and her
three [teenage and young adult] daughters —
had been residing at the motel with other
family members. On the night of the incident,
as the Penas pulled their van into the parking
lot, a motel guest in room 143 accused them of
damaging his car.
During the ensuing argument, two or three
men emerged from room 143 and one of them
— later identified by the witnesses as Smith —
shot several rounds at the victims’ van. One of
the bullets grazed the shirt of a security guard
[Latrice Wray] who had intervened to try to
de-escalate the argument.
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Police officers quickly arrived at the scene. On
entering room 143, they found the accuser’s
girlfriend, Jennifer Elias, along with Smith,
who was in bed with the blankets pulled up
nearly over his head. A search of the room
uncovered the gun used in the shooting hidden
in a shoe.
Smith I, ¶¶ 3-5.
¶3 The central issue at trial was the identity of the shooter. Wray
and all three Pena sisters identified Smith as the shooter on the
night of the incident, and all three sisters identified him again in
the courtroom. Dtonio Rutherford — a man who emerged from
room 143 with Smith and testified at trial — implicated Smith on
the night of the incident but not at trial. Id. at ¶ 22.
¶4 As relevant here, the division concluded that under the totality
of the circumstances, the trial court had not abused its discretion
by denying Smith’s motion to continue his trial so that he could
secure Elias’s appearance as a witness. Id. at ¶ 18. It further
concluded that Smith was not prejudiced by Elias’s absence
because (1) her alleged testimony was immaterial and largely
introduced through other witnesses; and (2) the evidence against
Smith was overwhelming. Id. at ¶¶ 19-23.
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¶5 Represented by postconviction counsel, Smith filed a Crim. P.
35(c) motion alleging that his trial counsel had provided ineffective
assistance. The postconviction court ordered a response from the
People and denied the motion in a thorough order, generally
concluding that Smith had failed to allege facts demonstrating
prejudice. We agree.
II. Discussion
¶6 As best we understand the postconviction motion and opening
brief, Smith asserts that he is entitled to a hearing on whether he
received ineffective assistance of trial counsel based on claims that
his counsel (1) lacked a coherent strategy of defense and generally
failed to prepare for trial; (2) neglected to endorse an alternate
suspect defense; (3) failed to request additional DNA evidence; and
(4) failed to diligently pursue Elias so that she could testify at trial.
Because Smith points to one key fact in support of the latter three
claims — that Rutherford “was the only other person that could
reasonably be the shooter” — we will address those three claims in
tandem.
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A. Standard of Review and Applicable Law
¶7 We review de novo the denial of a Crim. P. 35(c) motion
without a hearing. People v. Marquez, 2020 COA 170M, ¶ 17. A
district court may deny a Crim. P. 35(c) motion without an
evidentiary hearing if the motion, files, and record of the case
clearly show the defendant is not entitled to relief. Crim. P.
35(c)(3)(IV).
¶8 To adequately allege a claim of ineffective assistance of counsel
under Strickland v. Washington, 466 U.S. 668 (1984), a defendant
must (1) “identify the acts or omissions of counsel that are alleged
not to have been the result of reasonable professional judgment”
(the deficient performance prong), id. at 690; and (2) “assert facts
that, if true, show a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different” (the prejudice prong), People v. Timoshchuk, 2018 COA
153, ¶ 22. A postconviction court may deny an ineffective
assistance claim without conducting a hearing when the supporting
allegations are bare and conclusory; fail to establish either prong of
the Strickland test, even if taken as true; or are directly refuted by
the record. People v. Duran, 2015 COA 141, ¶ 9; see Crim. P.
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35(c)(3)(IV); see also People v. Segura, 2024 CO 70, ¶ 7. However,
when a defendant alleges sufficient facts that, if true, may warrant
relief, the court must hold an evidentiary hearing. People v.
Chalchi-Sevilla, 2019 COA 75, ¶ 7.
B. Deficient Defense Strategy and Preparation for Trial
¶9 First, Smith broadly claimed that his trial counsel lacked a
coherent strategy of defense and failed to prepare for trial. In
support of the deficient performance prong of this claim, Smith
alleged that his counsel did not investigate Wray and the Pena
sisters because counsel erroneously believed that the witnesses
would not appear for trial.
¶ 10 Smith did not, however, explain how counsel’s alleged lack of
preparation for these prosecution witnesses prejudiced his defense.
He did not, for example, point to any deficiency in his trial counsel’s
cross-examinations. Rather, he made only the bare and conclusory
allegation that counsel’s lack of investigation resulted in an
“inability to locate and serve Ms. Elias” — an “inexplicable” error
sufficient to undermine confidence in Smith’s verdict. Even
accepting Smith’s allegation of deficient performance on this claim
to be true, we conclude that his Strickland prejudice allegation is
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insufficient to merit a hearing. See Duran, ¶ 9. To the extent
Smith’s reference to Elias’s testimony is more than bare and
conclusory, we conclude that the reference pertains to a separate
ineffective assistance claim — one that we address below.
C. Deficient Pursuit of Rutherford as an Alternate Suspect
¶ 11 Next, Smith claims that his counsel was ineffective for failing
to pursue a defense that Rutherford was an “obvious” alternative
suspect. He alleges that counsel’s performance was deficient
because counsel did not (1) endorse an alternate suspect defense;
(2) seek to have Rutherford’s DNA collected “for identification
comparison”; or (3) diligently pursue Elias — who would testify that
Rutherford left the motel room with a firearm and that she didn’t
see Smith return with it after the shooting.
¶ 12 Smith did not articulate any particular prejudice as to
counsel’s failure to endorse an alternate suspect defense or to
collect and test Rutherford’s DNA. As to prejudice from the lack of
Elias’s testimony, Smith alleged the following:
Without Ms. Elias’s testimony that Rutherford
was the man in possession of the firearm when
he left the motel room, and that when she
observed Mr. Smith come back to the motel he
neither possessed a firearm nor did he hide
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anything in the room, the jury was left with the
impression that Mr. Smith was the only one
who touched that gun. Ms. Elias’[s] testimony
would have been corroborated by the
information dispatch relayed about the
description of the suspect, as Mr. Rutherford
was wearing a white T-shirt and dark pants.
¶ 13 Even assuming that Smith’s allegations establish deficient
performance, we once again conclude that his allegation of
prejudice does not provide a basis for relief.
¶ 14 First, as recognized by the division on direct appeal, a police
officer spoke to Elias on the night of the shooting. See Smith I,
¶ 20. At trial, the officer testified that after Smith was removed
from room 143, Elias told him that “there wasn’t a gun in the
room.” The officer also testified that nobody reported seeing Smith
enter room 143 with a gun or seeing him hide the gun. We agree
with the division that the officer’s testimony is not significantly
different from alleged testimony by Elias that “when she observed
Mr. Smith come back to the motel he neither possessed a firearm
nor did he hide anything in the room.” And the evidence at trial
clearly established that the gun used in the shooting was in the
same room as Smith when he was arrested shortly after the crime.
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¶ 15 Second, we, like the division on direct appeal and the
postconviction court, perceive overwhelming record evidence of
Smith’s guilt. See Smith I, ¶ 22. In addition to the substantial
eyewitness testimony that Smith was the shooter and Smith’s
proximity to the gun when arrested shortly after the shooting, all
five eyewitnesses at trial told the police that Rutherford was not the
shooter. This record clearly establishes that Smith is not entitled to
relief. See Crim. P. 35(c)(3)(IV).
¶ 16 In light of the marginal value of Elias’s testimony and the
overwhelming evidence of Smith’s guilt, we perceive no reasonable
probability that if counsel had further pursued Rutherford as an
alternate suspect, the result of Smith’s proceeding would have been
different. See Timoshchuk, ¶ 22. Accordingly, we conclude that
Smith failed to sufficiently allege Strickland’s prejudice prong, and
the postconviction court properly denied his motion without a
hearing. See Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003) (noting
that sometimes, “the trial record reveals evidence of guilt so strong
and so unlikely to have been adversely affected by counsel’s alleged
deficiencies that denial of an ineffective-assistance claim would be
justified without an evidentiary hearing”).
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III. Disposition
¶ 17 The order is affirmed.
JUDGE BERNARD and JUDGE TAUBMAN concur.
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