Peo v. Hebert

24CA0169 Peo v Hebert 07-17-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0169
City and County of Denver District Court No. 01CR2554
Honorable Alex C. Myers, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Hal Lewis Hebert,

Defendant-Appellant.

ORDER AFFIRMED

Division VII
Opinion by JUDGE PAWAR
Lipinsky and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 17, 2025

Philip J. Weiser, Attorney General, Paul Koehler, Senior Counsel, Denver,
Colorado, for Plaintiff-Appellee

Hal Lewis Hebert, Pro Se
¶1 Defendant, Hal Lewis Hebert, appeals the postconviction

court’s order denying his motion to conduct postconviction DNA

testing. We affirm.

I. Background

¶2 The relevant facts are set forth in the division’s opinion

affirming Hebert’s judgment of conviction on direct appeal, People v.

Hebert, (Colo. App. No. 03CA1471, Feb. 15, 2007) (not published

pursuant to C.A.R. 35(f)) (Hebert I).

On the evening of April 11, 2001, a white
Toyota Camry was observed parked, engine
running, in a northeast Denver neighborhood.
When local residents noticed the car was still
running in the same place late the following
afternoon, they investigated, discovered the
victim’s body in the trunk, and called the
police.

The police ran a motor vehicle report and
learned that the car was registered to Carol
Hebert. According to motor vehicle records,
Carol Hebert was five feet four inches tall,
weighed 120 pounds, and had brown hair and
brown eyes — a description matching the
victim.

The victim’s body was bloody, and it appeared
that she had been killed by a single gunshot to
the back of the head. Based on the body’s
position in the trunk, the police determined
that she had been killed somewhere else.

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Officers went to the Hebert residence and
conducted a warrantless search. They
discovered very small blood droplets in various
areas, including the carport, the sidewalk to
the garage, the hardwood floor, and on a pair
of men’s shoes. The officers did not touch
anything, but covered the suspected blood
droplets on the patio with plastic.

Using information obtained from the initial
search, the police obtained a search warrant.
From the subsequent search, it appeared that
the victim had been shot while sitting in a
chair in the office and her body had been
carried or dragged through the home into the
attached garage. An officer testified that it
looked like someone had tried to clean up the
blood in the house.

Bullet fragments recovered from the victim
were from a .22 or possibly a .38 caliber gun.
Although the fragments did not match
weapons found in the Heberts’ home,
twenty-eight .22 caliber shell casings fired
from the same unknown gun were found in a
shooting range in the Heberts’ basement.

Id. at 1-2.

¶3 Hebert’s neighbors reported to police officers that they had

seen him back his wife Carol’s car into the garage the day before

her body was found. Id. at 5-7. The neighbors remarked that this

was unusual because Hebert did not drive her car and never

backed cars into the garage. Id.

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¶4 At trial, a bail bondsman testified that Hebert told him that he

“didn’t mean to intentionally kill” his wife. Id. at 13.

¶5 Another witness, with whom Hebert had an affair, testified

that she received a letter from Hebert after his arrest, in which he

said that she knew “how he felt about Carol, and he was . . . trying

to make clear that he would never hurt a woman, he would never

hurt Carol, he would never intentionally hurt Carol.” Id. at 22.

Hebert also said in the letter that “there was an accident, a terribly

grievous accident, Carol was hurt badly and she died.” Id. The

witness testified that the letter had scared her, so she burned it. Id.

at 22-23.

¶6 Linda Davis testified that Hebert gave her husband a book

“where somebody had been killed, [and] the two guys who did the

killing said, ‘Let’s just put the body in the trunk and leave the car in

a bad neighborhood.’” Id. at 16. Davis also testified

that her husband sold a handgun to [Hebert].
[Richard White], the person who sold the gun
to [Davis’s] husband, testified that the gun he
sold was either a .22 caliber Beretta or a .410
caliber Cobray. The prosecution used this
testimony to support its theory that [Hebert]
purchased a .22 caliber gun, which was the
same caliber as the murder weapon.

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People v. Hebert, slip op. at 4-5 (Colo. App. No. 09CA1423, March

10, 2011) (not published pursuant to C.A.R. 35(f)) (Hebert II).

¶7 A jury convicted Hebert of first degree murder, and the trial

court sentenced him to life without parole in the custody of the

Department of Corrections. Hebert directly appealed his conviction

and, as noted above, a division of this court affirmed. See Hebert I.

The mandate was issued on November 15, 2007.

¶8 Hebert filed several unsuccessful postconviction motions and

appeals between 2008 and 2019. See Hebert II; People v. Hebert,

(Colo. App. No. 14CA2307, Aug. 18, 2016) (not published pursuant

to C.A.R. 35(e)) (Hebert III); People v. Hebert, (Colo. App. No.

21CA0120, Oct. 6, 2022) (not published pursuant to C.A.R. 35(e))

(Hebert IV).

¶9 In 2023, Hebert filed the postconviction motion at issue. He

requested postconviction DNA testing pursuant to sections

18-1-411, C.R.S. 2024, 18-1-412, C.R.S. 2024, and 18-1-416,

C.R.S. 2024. Specifically, he claimed that the gun he purchased

from Davis’s husband was a 9mm Makarov, which he alleged

Davis’s husband had purchased from White. Hebert claimed that

White lied on the witness stand when he said he sold either a .22

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caliber Beretta or a .410 caliber Cobray to Davis’s husband. Hebert

requested DNA testing on the Makarov, which he alleged was in

police custody, claiming it would reveal White’s DNA, undermine

White’s testimony, and “erase any inference of premeditation,”

thereby requiring reversal of his “false conviction.” Hebert further

asserted that the prosecution engaged in misconduct and violated

Brady v. Maryland, 373 U.S. 83 (1963).

¶ 10 The postconviction court denied Hebert’s motion, finding there

was “no reasonable probability that the testing [Hebert] seeks would

yield a favorable result.” The court relied on the “plethora of

evidence” presented against Hebert, “irrespective of the gun he

purchased from [Davis’s husband],” including

(1) blood linked to the victim was found on
[Hebert’s] shoes; (2) a neighbor saw [Hebert]
backing the victim’s car into their garage on
the day of the murder; (3) many .22 shell
casings were found in a makeshift shooting
range in the basement of the couple’s home;
(4) [Hebert] wrote a letter in which he stated
that his wife had died in a terrible accident; (5)
[Hebert] told a bondsman that he would never
kill his wife intentionally; (6) [Hebert] delivered
a book to [Davis’s husband] sometime before
the murder which contained discussion from
two characters about committing a murder,
placing the body into the trunk of the victim’s
car, and leaving it in a “bad” neighborhood.

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¶ 11 The court further found that

the record shows that [White’s] testimony
about the sale of the gun was in direct conflict
with that of [Davis], who was present when
[Hebert] purchased the gun from [her
husband]. While [White] stated that he sold
[the husband] a .22 Beretta without double
stamping, [Davis] stated that the gun [her
husband] sold [Hebert] was double stamped
and had not been a Beretta. Additionally,
testimony revealed that [Davis’s husband] had
been relieved upon finding out the caliber of
gun that had been used in the crime, allowing
the jury to infer that it was not the gun he had
sold to [Hebert].

The court concluded that “the record at trial already reveals ample

evidence from which the jury could have inferred that the gun sold

by [White] and [Davis’s husband], which eventually ended up in the

possession of [Hebert], was not a .22 caliber gun.”

¶ 12 The postconviction court did not address Hebert’s

prosecutorial misconduct or Brady violation claims.

II. Discussion

¶ 13 On appeal, Hebert contends that the postconviction court

erred by denying his motion for postconviction DNA testing. We are

not persuaded.

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A. Applicable Law and Standard of Review

¶ 14 Sections 18-1-411 to -416 govern an incarcerated person’s

postconviction motion for DNA testing. Under section 18-1-412(2),

a motion for such testing “shall include specific facts sufficient to

support a prima facie showing that post-conviction relief is

warranted under the criteria set forth in section 18-1-413, [C.R.S.

2024].” Under section 18-1-413(1), a court “shall order DNA testing

if:”

(a) It finds a reasonable probability that the
petitioner would not have been convicted if
favorable results had been obtained through
DNA testing at the time of the original
prosecution;

(b) It finds by a preponderance of the evidence
that a law enforcement agency collected
biological evidence pertaining to the offense;

(c)

(I) It finds by a preponderance of the
evidence that DNA results were not
available prior to the petitioner’s
conviction or, if previously available and
tested, the evidence can be subjected to
more advanced, scientifically reliable DNA
testing that provides a reasonable
likelihood of more probative results; or

(II) The petitioner did not secure the
requested DNA testing prior to the
petitioner’s conviction because DNA

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testing was not reasonably available or
for reasons that constitute justifiable
excuse, ineffective assistance of counsel,
or excusable neglect; and

(d) The petitioner consents to provide a
biological sample for DNA testing.

“If the motion, files, and record of the case show to the satisfaction

of the court that the petitioner is not entitled to relief based on the

criteria specified in section 18-1-413, the court shall deny the

motion without a hearing and without appointment of counsel.”

§ 18-1-412(3).

¶ 15 A postconviction court’s ruling on a motion for postconviction

DNA testing presents a mixed question of fact and law. People v.

Thompson, 2020 COA 117, ¶ 24. We review the court’s factual

findings for clear error and its legal conclusions de novo. Id. Under

the clear error standard, an appellate court may disregard a

postconviction court’s findings of fact only if the record is “devoid”

of support for them. People v. West, 2019 CO 131, ¶ 7.

B. Additional Testing Would Not Establish a Reasonable
Probability that Hebert Would Not Have Been Convicted

¶ 16 As an initial matter, we are unable to review the trial

transcripts because they were not included in the appellate record.

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Although Hebert asks us to take judicial notice of the transcripts

from his direct appeal, “[i]t is the appellant’s responsibility to

designate the record on appeal, including those parts of the trial

proceedings that are necessary for purposes of the appeal . . . .”

People v. Duran, 2015 COA 141, ¶ 12. “If an appellant intends to

urge on appeal that a finding or conclusion is unsupported by or

contrary to the evidence, the appellant must include in the record a

transcript of all evidence relevant to such finding or conclusion.”

Id. Though Hebert disputes the postconviction court’s factual

findings and legal conclusions on appeal, in the absence of the

transcripts, we presume that they support the court’s ruling. See

id.

¶ 17 Moreover, we conclude that Hebert failed to adequately plead

in his motion that favorable DNA testing would demonstrate a

reasonable probability that he would not have been convicted. See

§ 18-1-413(1)(a). Although he speculates that DNA testing would

establish the presence of White’s DNA on the Makarov and the

inference that he bought the Makarov, not a .22, from Davis’s

husband, such a showing would not negate the ample evidence of

Hebert’s guilt. We agree with the People that, at most, such DNA

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evidence would undermine the credibility of White on a peripheral

issue.

¶ 18 The evidence against Hebert included the following: (1) his

wife’s blood was found on the carport, the sidewalk to the garage,

the hardwood floor, and Hebert’s shoes; (2) a neighbor witnessed

Hebert backing his wife’s car into the garage on the day of the

murder, which was unusual; (3) Hebert told a bail bondsman that

he “didn’t mean to intentionally kill” his wife; (4) Hebert gave

Davis’s husband a book in which the body of someone who was

killed was placed in the trunk of a car and left in a “bad

neighborhood”; (5) Hebert wrote a letter to a witness saying that

there had been “a terribly grievous accident, Carol was hurt badly

and she died”; and (6) shell casings from the gun used to kill

Hebert’s wife were found in a shooting range in the basement of

Hebert’s home. Furthermore, as the postconviction court found,

and as we must presume is supported by the missing trial

transcripts, the record includes testimony from Davis from which

the jury could have inferred that the gun her husband bought from

White and sold to Hebert was not a .22 caliber gun.

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¶ 19 Because (1) the DNA results Hebert hoped to find on the

Makarov would not have negated the evidence against him and

(2) there was already evidence from which a jury could infer that

Hebert did not purchase a .22 caliber gun from Davis’s husband,

favorable DNA results would not have demonstrated a reasonable

probability that Hebert would not have been convicted.

C. Additional Claims

¶ 20 To the extent Hebert reasserts his prosecutorial misconduct

and Brady violation claims on appeal, those claims are cognizable

under Crim. P. 35(c) and are properly denied as successive. See

People v. Collier, 151 P.3d 668, 670 (Colo. App. 2006) (the

substance of a postconviction claim controls how it is designated);

Crim. P. 35(c)(2)(I) (providing for relief where a conviction was

obtained or sentence imposed in violation of the Constitution or

laws of the United States or the constitution or laws of this state).

The claims are successive because Hebert could have raised them

in a prior postconviction motion and did not argue any exception to

this rule. See Crim. P. 35(c)(3)(VII) (a court must deny any claims

as successive that could have been raised in a prior appeal or

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postconviction proceeding, subject to certain exceptions not

relevant here).

¶ 21 And to the extent Hebert asserts new claims on appeal that he

did not raise in his postconviction motion — such as a due process

challenge to the blood spatter evidence — we will not review them.

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.”).

¶ 22 Finally, Hebert raises issues for the first time in his reply brief.

For instance, he claims that a court should

also take into consideration evidence that was
discovered after trial which reveals perjury,
fabricated evidence and other flaws with the
evidence that was introduced at trial when
determining if there is a reasonable probability
that a defendant would not have been found
guilty at trial.

But we do not consider claims raised for the first time in a reply

brief. People v. Owens, 2024 CO 10, ¶ 90.

III. Disposition

¶ 23 The order is affirmed.

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JUDGE LIPINSKY and JUDGE LUM concur.

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