22CA1320 Peo v Samuels 07-25-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1320
Arapahoe County District Court No. 05CR926
Honorable Darren L. Vahle, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Ricardo Lemar Samuels,
Defendant-Appellant.
ORDER AFFIRMED
Division VI
Opinion by JUDGE LIPINSKY
Freyre and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 25, 2024
Philip J. Weiser, Attorney General, Jacob R. Lofgren, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Victor T. Owens, Alternate Defense Counsel, Parker, Colorado, for Defendant-
Appellant
1
¶ 1 Ricardo Lemar Samuels appeals the postconviction court’s
order denying his Crim. P. 35(c) claim that newly discovered
evidence warrants a new trial. We affirm.
I. Background
A. The Charges, Trial, and Direct Appeal
¶ 2 In 2005, Samuels was charged with first degree murder,
among other crimes, for his role in a drive-by shooting that resulted
in the death of one of the three victims. The evidence at Samuels’s
trial showed that Samuels (who was referred to by the nickname
“Smoke”) was the shooter and that Cameron Davis was driving the
car from which Samuels fired the gunshots.
¶ 3 Davis did not testify at Samuels’s trial. He was tried
separately after Samuels’s trial.
¶ 4 Samuels’s theory of defense was that an alternate suspect,
Q.W., was the shooter.
¶ 5 The jury found Samuels guilty of one count of first degree
murder, two counts of attempted first degree murder, one count of
conspiracy to commit first degree murder, one count of possession
of a weapon by a previous offender, and two crime of violence
2
counts. The trial court sentenced him to life plus 150 years in the
custody of the Department of Corrections.
¶ 6 On direct appeal, a division of this court affirmed the
App. 2009).
¶ 7 Davis testified at his separate trial for first degree murder and
other charges. See Davis v. People, 2013 CO 57, ¶ 4, 310 P.3d 58,
from which “Smoke” shot the victims, but he claimed he did not
know in advance that “Smoke” was going to shoot anyone. Davis,
¶ 4, 310 P.3d at 59. The jury found Davis guilty of the lesser
included offense of reckless manslaughter, as well as accessory to a
crime and reckless endangerment. Id. at ¶ 10, 310 P.3d at 60.
B. The Postconviction Filings and Initial Rulings
¶ 8 In 2014, Samuels filed a pro se Crim. P. 35(c) motion for
postconviction relief that raised numerous issues not germane to
this appeal.
¶ 9 The postconviction court summarily denied as time barred
several of Samuels’s claims in the Crim. P. 35(c) motion and
3
appointed counsel to represent Samuels for purposes of his
remaining postconviction claims.
¶ 10 In 2021 — fifteen years after Samuels’s trial — Samuels’s
postconviction counsel filed a supplemental Crim. P. 35(c) motion
that raised two claims. First, postconviction counsel raised an
ineffective assistance claim regarding trial counsel’s performance
during voir dire. The second claim addressed newly discovered
evidence.
¶ 11 Postconviction counsel based the newly discovered evidence
claim on Davis’s alleged recantation of his trial testimony that
Samuels was the shooter. According to the Crim. P. 35(c) motion,
Davis, who had finished serving his sentence for his participation in
the drive-by shooting, wanted “to set the record straight that [Q.W.]
was the shooter, not Samuels.” In the motion, postconviction
counsel explained that Davis had originally testified that Samuels
was the shooter “to conform to his trial counsel’s advice to ensure
less than a life sentence for his part in the drive-by given that his
trial came after Samuel[s]’s.” The motion continued, “[Davis] didn’t
want to do something that would jeopardize his ability to get the
4
best possible result in his own case. Now that he knows he can’t be
put away for life, he’s ready to tell the truth.”
¶ 12 The postconviction court granted a hearing on Samuels’s
newly discovered evidence claim, but summarily denied the other
claims in Samuels’s original pro se Crim. P. 35(c) motion and the
supplemental motion. In addressing the newly discovered evidence
claim, the court noted that Samuels “faces a steep climb in
attempting to gain a new trial based on new, inconsistent
statements of a co-defendant. This is especially true 15 years after
the conviction.” In addition, the court alerted the parties that, if
Samuels’s counsel intended to call Davis as a witness at the
evidentiary hearing on the Crim. P. 35(c) motion, “the court must
appoint counsel to advise [Davis] of the possible perjury charges
that may be involved when he has made diametrically opposed
statements in court and on the record.”
C. The Postconviction Hearing and Ruling at Issue
¶ 13 At the evidentiary hearing on Samuels’s newly discovered
evidence claim, the postconviction court asked Davis’s appointed
counsel whether she had informed Davis that he could be charged
with perjury if he gave testimony at the hearing that contradicted
5
his testimony at his trial. Davis’s counsel responded that she had
discussed the issue with Davis. She said, “[I]t is my client’s
position that he would be asserting his Fifth Amendment right to
remain silent regarding any questions related to differing
statements about who the shooter had been.”
¶ 14 Nonetheless, Samuels’s counsel called Davis, who was under
subpoena, to testify at the hearing. But because Davis had invoked
his privilege against self-incrimination, he only provided testimony
that did not incriminate him: that he was Samuels’s codefendant in
this case, he was convicted of reckless manslaughter in 2006, he
completed serving the parole component of his sentence on that
conviction in 2017 or 2018, and in 2021 he met with Samuels’s
defense lawyer’s investigator.
¶ 15 Because Davis had invoked his privilege against
self-incrimination, the court agreed with the defense that Davis was
“unavailable” for purposes of CRE 804, which sets forth the hearsay
exceptions that may be invoked when the declarant is unavailable.
See CRE 804(a)(1).
¶ 16 Samuels’s counsel then called the investigator, who had met
with Davis in August 2021, to testify. Among other questions,
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Samuels’s counsel asked the investigator what Davis had told her
about Samuels’s involvement in the shooting. The prosecutor
immediately objected on hearsay grounds. In response, Samuels’s
counsel argued that Davis’s hearsay statements to the investigator
were admissible as statements against interest under CRE
804(b)(3).
¶ 17 After hearing further argument, the court sustained the
hearsay objection on the grounds that Davis’s statements to the
investigator did not qualify as statements against interest under
CRE 804(b)(3). The court concluded that (1) because Davis wasn’t
willing to testify at the Crim. P. 35(c) hearing, there was an
insufficient indication that he would be charged with perjury based
on his statements to the defense investigator; and (2) the
circumstances indicated that Davis’s statements to the investigator
were not trustworthy.
¶ 18 Following the court’s evidentiary ruling, neither party had
further questions for the defense investigator. But to complete the
record, the court admitted into evidence the investigator’s written
report describing Davis’s hearsay statements to her.
7
¶ 19 At the conclusion of the hearing, the court denied Samuels’s
newly discovered evidence claim in a ruling from the bench. First,
the court held that Davis’s new statements would not be admissible
at a retrial of Samuels because (1) Davis would invoke his privilege
against self-incrimination at the new trial and (2) the defense
investigator’s testimony about Davis’s statements to her was
inadmissible hearsay. Therefore, Samuels had not presented any
admissible evidence in support of his newly discovered evidence
claim. Second, the court held that, even if Davis’s new statements
could be admitted at a retrial through the investigator’s testimony,
they would not be of sufficient consequence to lead a jury to acquit
Samuels.
II. Abandoned Claims
¶ 20 On appeal, Samuels does not challenge the postconviction
court’s denial of any of his postconviction claims other than his
newly discovered evidence claim. He also does not appeal the
court’s ruling that his postconviction claims pertaining to his
non-class 1 felony convictions were time barred. We therefore deem
those claims to be abandoned. See People v. Osorio, 170 P.3d 796,
801 (Colo. App. 2007) (holding that a defendant effectively
8
abandons a postconviction claim raised in the district court but not
specifically reasserted on appeal).
III. Newly Discovered Evidence Claim
A. Standard of Review
¶ 21 In a Crim. P. 35(c) proceeding, a presumption of validity
attaches to a judgment of conviction, and the defendant, as the
moving party, bears the burden to establish his claim by a
379 P.3d 288, 293.
¶ 22 In reviewing the denial of a Crim. P. 35(c) motion following an
evidentiary hearing, we review the postconviction court’s legal
conclusions de novo but defer to its factual findings if they are
supported by the record. People v. Smith, 2024 CO 3, ¶ 16, 541
¶ 23 Although the People cite these legal principles, they also cite
People v. Huggins, 2019 COA 116, ¶ 28, 463 P.3d 294, 299, for the
proposition that we should review the denial of a Crim. P. 35(c)
motion following a hearing for an abuse of discretion. Although
neither Huggins nor the case it cited for this proposition, People v.
Firth, 205 P.3d 445, 449 (Colo. App. 2008) (Gabriel, J.), has been
9
overruled, both are inconsistent with the standard of review the
supreme court articulated in Smith and Corson. We apply the
Smith/Corson standard of review because we are not free to depart
(Colo. App. 2003).
¶ 24 Similarly, the People cite People v. Gee, 2015 COA 151, ¶ 72,
371 P.3d 714, 725, for the proposition that we apply the abuse of
discretion standard when reviewing a ruling on a motion for a new
trial based on newly discovered evidence. However, that case
involved a Crim. P. 33(c) motion, and not a Crim. P. 35(c) motion.
inconsistent with supreme court cases such as Smith, we follow the
latter for the reasons noted above. See also People v. Lopez, 2015
COA 45, ¶ 65, 399 P.3d 129, 139 (noting that we do not review a
trial court’s ruling on a Crim. P. 33 motion “with the same
analytical lenses” that we employ when evaluating a postconviction
court’s ruling on a Crim. P. 35(c) motion).
B. Applicable Law
¶ 25 “Motions for a new trial based upon newly discovered evidence
are looked on ‘with great disfavor,’ and the defendant has the
10
burden of proving a new trial is warranted under a four-part test.”
People v. Bueno, 2013 COA 151, ¶ 24, 411 P.3d 62, 70 (quoting
People v. Hopper, 284 P.3d 87, 92 (Colo. App. 2011)). Specifically,
the defendant must show that (1) the subject evidence was
discovered after the trial; (2) the defendant and his counsel
exercised diligence to discover all possible evidence favorable to the
defendant prior to and during the trial; (3) the newly discovered
evidence is material to the issues involved, and not merely
cumulative or impeaching; and (4) on retrial, the newly discovered
evidence would “probably produce an acquittal.” People v.
Gutierrez, 622 P.2d 547, 559-60 (Colo. 1981); People v. Bonan, 2014
COA 156, ¶ 27, 357 P.3d 231, 235.
¶ 26 Similarly, “[c]ourts generally view a witness’s recantation of
prior trial testimony with great suspicion.” People v. Schneider, 25
P.3d 755, 763 (Colo. 2001). Because new evidence in the form of a
witness recantation, whether believed or not, necessarily serves to
impeach the recanting witness’s credibility to some degree, “it can
justify a new trial only to the extent that it not only impeaches the
prior testimony but does so by contradicting it with a different and
more credible account.” Farrar v. People, 208 P.3d 702, 708 (Colo.
11
2009) (emphasis added). In measuring the credibility of a recanting
witness and determining whether a jury would probably believe the
witness’s new version of events, the trial court is not barred from
relying on its own experience. Id. The court must consider all the
testimony and circumstances, in addition to its own experience and
observations of the witness. Id.
C. Analysis
¶ 27 On appeal, Samuels argues that we “should allow [Davis] to
correct his wrongdoing against Mr. Samuels by testifying at a new
trial on his behalf in the interest of justice.” But he then concedes
that Davis “would likely be an unavailable witness on retrial”
because Davis invoked his privilege against self-incrimination to
avoid testifying at the Crim. P. 35(c) hearing.
¶ 28 So at any retrial of Samuels, Davis’s recantation would
presumably have to be admitted through the testimony of the
defense investigator who met with Davis in 2021. However, unless
a hearsay exception applies, that testimony would constitute
inadmissible hearsay. CRE 801, 802.
12
1. A “Statement Against Interest” Under CRE 804(b)(3)
¶ 29 That brings us to one of the central issues before us: whether
the defense investigator’s testimony regarding what Davis told her
in 2021 would be admissible under the hearsay exception of a
“statement against interest” under CRE 804(b)(3).
¶ 30 A “statement against interest,” although hearsay, is admissible
if the declarant is unavailable. CRE 804(b)(3). A statement against
interest is one that:
(A) a reasonable person in the declarant’s
position would have made only if the person
believed it to be true because, when made, it
was so contrary to the declarant’s proprietary
or pecuniary interest or had so great a
tendency to invalidate the declarant’s claim
against someone else or to expose the
declarant to civil or criminal liability; and
(B) is supported by corroborating
circumstances that clearly indicate its
trustworthiness, if it is offered in a criminal
case as one that tends to expose the declarant
to criminal liability.
CRE 804(b)(3).
¶ 31 As noted above, Davis’s unwillingness to testify at the Crim. P.
35(c) hearing and apparent unwillingness to do so at any retrial of
Samuels make him “unavailable” under CRE 804(b)(3). See Stevens
13
v. People, 29 P.3d 305, 310 (Colo. 2001), overruled on other grounds
by People v. Fry, 92 P.3d 970, 975-76 (Colo. 2004). So we must
consider whether Davis’s statement to the defense investigator met
the definition of a “statement against interest” under CRE
804(b)(3)(A) and 804(b)(3)(B).
¶ 32 We assume, without deciding, that CRE 804(b)(3)(A) is met
based on Davis’s claim that his recantation to the defense
investigator could expose him to criminal liability for perjury.
(Davis’s recantation could also expose him to criminal liability for
attempt to influence a public servant and false reporting to
authorities.)
¶ 33 However, Davis’s recantation does not meet CRE 804(b)(3)(B)
because it is not “supported by corroborating circumstances that
clearly indicate its trustworthiness.” (Emphasis added.) We reach
that conclusion for four reasons.
¶ 34 First, we note Davis’s significant delay in coming forward with
his recantation, which he made fifteen years after his trial. As
another state supreme court has explained,
skepticism [regarding the truth of
recantations] increases with the passage of
time. Recantation evidence appearing long
14
after the trial has ended places the opposing
party at a disadvantage similar to that which
justifies statutes of limitations. Memories may
have faded, witnesses may have disappeared
or become incapable of testifying, physical
evidence may be unrecoverable and the
recanting witness may have had ample time to
acquire an extraneous motive to falsify his
original testimony.
Haas v. Commonwealth, 721 S.E.2d 479, 482 (Va. 2012) (footnote
omitted); see also In re Lambrix, 624 F.3d 1355, 1365 (11th Cir.
2010) (concluding that a recantation was “exceeding unreliable”
because it was made twenty years after the witness testified against
the defendant) (citation omitted); Christian v. Frank, 595 F.3d 1076,
1084 n.11 (9th Cir. 2010) (concluding that a recantation was
“especially unreliable” because it was made more than a decade
after the witness identified the defendant as the perpetrator).
¶ 35 Second, there is no indication in the record that Davis made
the statements to the defense investigator under oath. In contrast,
Davis testified that Samuels was the shooter under oath at his own
trial in front of a jury in 2006. See Farrar, 208 P.3d at 709
(concluding that “a jury’s credibility determinations are entitled to
respect” and “any inherent doubts about the trustworthiness of a
self-impeaching witness must militate against, rather than in favor
15
of, granting a new trial”). And there would be no way to
cross-examine Davis about his prior sworn testimony and
subsequent recantation because he was unwilling to testify at the
Crim. P. 35(c) hearing and apparently would be unwilling to do so
at any retrial of Samuels.
¶ 36 Third, Samuels’s proffered assertions regarding why Davis
finally came forward with his recantation in 2021 are unpersuasive.
For example, in Samuels’s Crim. P. 35(c) motion, he asserted that
Davis came forward with his recantation after his release from
parole because, “[n]ow that he knows he can’t be put away for life,
he’s ready to tell the truth.” But once the jury effectively acquitted
Davis on the first degree murder charge (and instead found him
guilty of the lesser included offense of reckless manslaughter) in
2006, he could not be retried for first degree murder. See People v.
Aguilar, 2012 COA 181, ¶ 19, 371 P.3d 1255, 1259 (“[A]n implied
acquittal [on a greater offense] prevents retrial on the greater
offense because a second trial would violate a defendant’s
constitutional protection against double jeopardy. A defendant is
impliedly acquitted of a greater offense when he or she is charged
with greater and lesser offenses and the jury finds him or her guilty
16
of only the lesser offense.” (quoting People v. Cardenas, 25 P.3d
1258, 1261 (Colo. App. 2000))). Further, even if Davis believed that
the prosecution’s ability to retry him for first degree murder
depended on whether he was still in custody on his conviction for
reckless manslaughter, Samuels did not explain why Davis waited
until 2021 to talk to the defense investigator, when he had been
released from parole in 2017 or 2018.
¶ 37 Samuels also asserts that Davis is “in mourning for causing
the unjust incarceration of his childhood friend.” But Davis did not
plead guilty in exchange for an agreement to testify against Samuels
at Samuels’s trial. Davis did not testify at Samuels’s trial and only
testified that Samuels was the shooter after Samuels had been
convicted. So the record does not indicate that Davis caused
Samuels’s incarceration.
¶ 38 As the postconviction court found, the record indicates that
Davis and Samuels were friends at the time of the shooting. The
People argue it is unlikely that Davis would have testified at his own
trial that Samuels was the shooter if Samuels had not, in fact, shot
the victims. Regardless of Samuels’s arguments about Davis’s
motivation to protect Q.W. (the brother of Davis’s girlfriend at the
17
time), the main thrust of Davis’s testimony at his own trial appears
to have been that he did not know in advance that his passenger
was going to shoot at the victims (making the shooter’s identity a
relatively unimportant issue at Davis’s trial). There is reason to
question the credibility of Davis’s unsworn recantation because of
the possibility that he is trying to free his friend from a sentence of
life in prison without the possibility of parole.
¶ 39 Fourth, even considering only the substance of Davis’s
recantation compared to the substance of his original trial
testimony, Samuels fell far short of showing “corroborating
circumstances that clearly indicate” Davis’s recantation was
trustworthy, and that his original trial testimony was not. CRE
804(b)(3)(B) (emphasis added).
¶ 40 The evidence of Samuels’s guilt presented at his trial, although
circumstantial, was strong. That evidence included the following:
• The trial testimony of Davis’s then girlfriend (Q.W.’s
sister) was consistent with her statements to a detective
following the shooting — that she witnessed (1) Davis and
Samuels leaving Davis’s house together before the
shooting; (2) the two of them saying they were going to
18
get some “oops” (meaning shoot at someone in the Bloods
gang and, indeed, one of the victims was wearing all red
that night); (3) a handgun in the waistband of Samuels’s
pants before they left; and (4) them leaving in Davis’s
girlfriend’s white Acura.
• At trial, one of the surviving victims and another witness
of the shooting were shown photographs of Davis’s
girlfriend’s white Acura, and they testified that the car
depicted in the photographs looked similar to the one
used during the shooting.
• After the shooting, testing of the white Acura revealed
gunshot residue inside.
• Davis’s girlfriend testified that, after the shooting, she
witnessed (1) Davis and Samuels arriving back at Davis’s
house and (2) Samuels wrapping his handgun in a shirt.
When Davis’s girlfriend asked Samuels what had
happened, he told her to “shut the fuck up.”
• Gunshot residue was later found on Samuels’s jacket
and shoes. And a cartridge found in Samuels’s jacket
was the same caliber as the bullet casings found at the
19
scene of the shooting, albeit from a different
manufacturer.
• A jailhouse informant, who was housed in the same jail
as Samuels and Davis, testified that Samuels told the
informant to pass along a message to Davis (1) that he
and Davis would “get out of this” “scot free” if Davis
would stop talking to the police and (2) threatening to kill
Davis if Davis kept talking to the police.
This evidence provides strong corroboration that Davis testified
truthfully at his trial that Samuels was the shooter, and it thereby
undermines the credibility of his recantation.
¶ 41 Indeed, some evidence supported Samuels’s alternate suspect
defense that Q.W. was the shooter. Specifically, one of the
surviving victims positively identified Q.W. as the shooter.
However, several witnesses established an alibi for Q.W. at the time
of the shooting. Specifically, several witnesses testified that Q.W.
was sleeping with his girlfriend at his girlfriend’s house at the time
of the shooting, which took place in the middle of the night. Those
witnesses included Q.W.’s girlfriend, her mother, and her siblings.
Further, when Q.W.’s ex-girlfriend heard the gunshots that night
20
(she lived down the street), she telephoned the house where Q.W.
was sleeping and spoke with Q.W. on the telephone. Beyond the
surviving victim’s positive identification of Q.W., however, Samuels’s
defense at trial heavily depended on arguments that numerous
prosecution witnesses were lying to protect Q.W.
¶ 42 Given the evidence introduced at Samuels’s trial, as noted
above, we conclude that Samuels failed to establish sufficient
“corroborating circumstances that clearly indicate” the
trustworthiness of Davis’s recantation. CRE 804(b)(3)(B) (emphasis
added).
2. A “Different and More Credible Account” Under Farrar
¶ 43 For the same reasons, we also conclude that Samuels has not
met the requirement in Farrar that, to be entitled to a new trial
based on Davis’s recantation, the recantation must be “more
credible” than Davis’s original trial testimony. 208 P.3d at 708.
Davis made the recantation fifteen years after his trial testimony;
although his trial testimony was under oath, the record shows that
his recantation was not under oath; there was no way to
cross-examine Davis regarding his recantation; Davis’s alleged
reasons for recanting are unpersuasive; the evidence of Samuels’s
21
guilt was strong; and there are insufficient corroborating
circumstances showing that Davis’s recantation was trustworthy.
¶ 44 In light of our ruling, we need not address the People’s
argument, and the postconviction court’s conclusion, that Davis’s
recantation did not constitute newly discovered evidence.
IV. Disposition
¶ 45 The order is affirmed.
JUDGE FREYRE and JUDGE SCHUTZ concur.
