Peo v. O'Brien

21CA1975 Peo v O’Brien 11-27-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA1975
Boulder County District Court No. 19CR234
Honorable Norma A. Sierra, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

James O’Brien,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE HARRIS
J. Jones and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 27, 2024

Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Walta LLC, Mark G. Walta, Littleton, Colorado, for Defendant-Appellant
¶1 Defendant, James O’Brien, appeals the judgment of conviction

entered after a jury found him guilty of manslaughter. He contends

that he was denied the effective assistance of counsel due to his

lawyers’ conflict of interest and that the trial court erred by allowing

lay witnesses to give expert testimony. We affirm.

I. Background

¶2 On the night of the incident giving rise to the charges, the

victim, Demetrius Shankling, was celebrating his twenty-third

birthday with college friends in Boulder. By the time the

celebration ended, Shankling was highly intoxicated and needed

some physical support from his friends to walk. About a block

away from the friends’ apartment, Boulder police officers contacted

the group and decided to transport Shankling to a detox facility.

¶3 O’Brien and Adam Lunn, then deputies with the Boulder

County Sheriff’s Office (BCSO), responded to the scene with a

transport van. The van had three compartments — two accessible

from the rear of the van (a long compartment on the left side and a

shorter compartment on the right side) and one small seating cell

accessible from the side, located right behind the front passenger

seat, as depicted in the diagram below.

1
Transport Van Diagram

¶4 When Shankling refused to step into the van, O’Brien and

Lunn picked him up and wedged him face down, with his hands

cuffed behind his back, onto the floor of the right rear

compartment. Shankling was six feet tall. The compartment was

four feet nine inches long and eighteen inches wide. The officers’

positioning of Shankling’s body forced his legs and head upward,

causing his neck to compress, which restricted his oxygen supply

and ultimately cut off blood flow to his brain.

¶5 Sixteen minutes later, the van arrived at the detox facility.

Shankling was limp and unresponsive. He died about a month

later, without having regained consciousness. According to the

medical examiner who conducted the autopsy, the cause of death

was positional asphyxiation, complicated by the effects of alcohol

and amphetamines.

2
¶6 The People charged O’Brien and Lunn separately with one

count of manslaughter. Their cases were later joined for trial.

From the beginning, they were jointly represented.

¶7 The jury found both defendants guilty as charged. The court

sentenced O’Brien to a six-year prison term and Lunn to a three-

year term.

II. Ineffective Assistance of Counsel

¶8 O’Brien contends that he received ineffective assistance of

counsel because his lawyers had an actual conflict that he did not

validly waive.

A. Facts

¶9 O’Brien and Lunn were jointly represented by two lawyers

from the same firm. About eight months into the case, at the

prosecution’s request, the court conducted a hearing to determine

whether the defendants wished to waive their right to conflict-free

counsel.

¶ 10 At the hearing, defense counsel told the court that although

she did not perceive any conflict or “anticipate any arising,” the

lawyers had advised O’Brien about any potential conflicts. The

3
court did not ask, and counsel did not offer, any specifics about

counsel’s advisement.

¶ 11 For its part, the court told the defendants that they had “the

right to conflict-free counsel,” meaning the right to “have separate

counsel” represent each of them at trial. The court cautioned that if

at some point the defendants’ interests “bec[a]me adverse,” they

“m[ight] not have independent representation at that point.” The

court explained that O’Brien’s “interests m[ight] be affected by the

defense that [was] being raised on behalf of” Lunn and that the

defense strategy “could impact [one defendant’s] rights versus [the

other defendant’s] rights.” O’Brien confirmed that he did not know

“of any claim that [Lunn] ha[d] raised that would impact [his] right

to a fair trial.” O’Brien did not consult with independent counsel

but said he had spoken to his lawyers about how the joint

representation “might impact [him],” and he did not have any

questions about the issue.

¶ 12 The court found that O’Brien waived his right to conflict-free

counsel knowingly, intelligently, and voluntarily.

¶ 13 At trial, O’Brien and Lunn advanced a coordinated defense.

Through counsel, they argued that Shankling might have died of

4
alcohol poisoning, not positional asphyxia; Shankling’s placement

in the van could not cause positional asphyxia in any event; and,

even if it could, the defendants were unaware of the risk due to

inadequate training.

B. Legal Principles

¶ 14 A criminal defendant has a constitutional right to effective

assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685-

86 (1984). This right encompasses a right to conflict-free

representation. West v. People, 2015 CO 5, ¶ 15.

¶ 15 When a defendant’s ineffective assistance of counsel claim is

premised on a conflict of interest, we assess the claim under the

standard outlined in Cuyler v. Sullivan, 446 U.S. 335, 349 (1980),

rather than Strickland. To prevail under this standard, the

defendant must show that (1) counsel had a conflict of interest,

meaning, as relevant here, they faced “a situation inherently

conducive to and productive of divided loyalties,” such as

concurrent representation, West, ¶¶ 40, 42 (citation omitted); and

5
(2) the conflict adversely affected counsel’s performance, Sullivan,

446 U.S. at 348.1

¶ 16 To prove an adverse effect, the defendant must

(1) identify a plausible alternative defense strategy or tactic

that trial counsel could have pursued;

(2) show that the alternative strategy or tactic was

objectively reasonable under the facts known to counsel

at the time; and

(3) establish that counsel’s failure to pursue the strategy or

tactic was linked to the actual conflict.

West, ¶ 3. Once the defendant shows that a conflict of interest

adversely affected his lawyer’s performance, prejudice is presumed.

Sullivan, 446 U.S. at 349-50.

¶ 17 A defendant may generally waive the right to conflict-free

counsel. People v. Villanueva, 2016 COA 70, ¶ 43. But a waiver is

valid only if the defendant is “fully advised of existing or potential

1 In contrast, a defendant proves a non-conflict ineffective

assistance of counsel claim by establishing that (1) counsel’s
performance was deficient, and (2) the deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668,
687 (1984).

6
conflicts,” and he understands the potential effect of any conflict on

counsel’s ability to provide effective representation. People v.

Martinez, 869 P.2d 519, 525 (Colo. 1994). The record must show

that the defendant’s waiver of conflict-free counsel was voluntary,

knowing, and intelligent. Id.

¶ 18 A valid waiver bars any later ineffective assistance of counsel

claim based on a conflict. Id. at 524. However, the absence of a

valid waiver does not, by itself, entitle the defendant to relief.

Villanueva, ¶ 48. Instead, it merely allows the defendant to raise

his ineffective assistance of counsel claim. In other words, the

defendant must show that the “failure to validly waive the conflict

mattered” because he ultimately proceeded to trial with a lawyer

who had an actual conflict of interest. Id.

¶ 19 Ordinarily, a claim of ineffective assistance of counsel may not

be raised on direct appeal because “there is usually an insufficient

factual record for the appellate court to decide the issue.” People in

Interest of Uwayezuk, 2023 COA 69, ¶ 21. Likewise, a defendant’s

challenge to the knowing, voluntary, and intelligent waiver of a

constitutional right generally requires the defendant to “bring[]

7
forward” facts not contained in the direct appeal record. People v.

Janis, 2018 CO 89, ¶ 27 (discussing waiver of the right to testify).

¶ 20 But O’Brien insists that we resolve his claim on the current

record. Therefore, reviewing only the record on appeal, we consider

whether O’Brien validly waived his right to conflict-free counsel

and, if he did not, whether he has established that his lawyers had

a conflict of interest that adversely affected their performance.

C. Validity of the Waiver

¶ 21 O’Brien argues that the trial court’s advisement was so

deficient that, as a matter of law, he could not have knowingly,

intelligently, and voluntarily waived his right to conflict-free

counsel.

¶ 22 First, O’Brien says that the court erred by simply accepting

defense counsel’s assurances that they had fully advised him of the

risks of joint representation. We agree that would be error. See

People v. Lopez, 2024 CO 50, ¶ 48 (counsel’s representation that

they have advised the defendant of the possible conflict is

insufficient to show a valid waiver “without [counsel’s] disclos[ure]

[of] the specifics of what [they] said and when”). But the court did

8
not simply accept counsel’s assurances; it conducted its own

colloquy with O’Brien.

¶ 23 O’Brien says the colloquy was insufficient, though, because

the trial court did not advise him more specifically of how potential

conflicts might affect counsel’s representation. But because no

specific conflict was apparent, the court properly informed O’Brien

of the general risks associated with joint representation. See United

States v. Brown, 202 F.3d 691, 698 (4th Cir. 2000) (“[I]f a defendant

waives the conflict with knowledge of the crux of the conflict and an

understanding of its implications, the waiver is valid — even if the

defendant does not know each detail concerning the conflict.”).

¶ 24 Second, we disagree with O’Brien that the court engaged in

“rote” questioning. The court asked detailed questions about the

potential impact of the conflict on counsel’s representation,

repeatedly asked O’Brien if he understood the nature of the conflict,

and told O’Brien that he could “talk to independent counsel” or

have separate counsel represent him. The “exchange reveal[ed]

more than pro forma answers to pro forma questions.” People v.

Preciado-Flores, 66 P.3d 155, 168 (Colo. App. 2002). O’Brien

acknowledged that “he was aware of the conflict and its

9
ramifications.” Id. Nothing in the record indicates that O’Brien did

not understand the court’s advisement — indeed, O’Brien has never

said that his waiver was unknowing or involuntary — or that he

“lacked the rational capacity to make a decision of this type.” Id.

¶ 25 And finally, while a written waiver and consultation with

independent counsel might be best practices, O’Brien does not cite

any authority for the proposition that they are necessary

prerequisites to a valid waiver. Under Colorado law, what matters

is that the defendant is made aware of the conflict and its potential

impact on counsel’s ability to offer effective representation. See

People v. Harlan, 54 P.3d 871, 879 (Colo. 2002).

¶ 26 In People v. Waddell, 24 P.3d 3 (Colo. App. 2000), for example,

the defendant apparently neither executed a written waiver nor

consulted independent counsel. The court conducted a brief

colloquy with the defendant to ensure that he was aware his lawyer

was being prosecuted by the same district attorney who was

prosecuting the defendant’s case. Id. at 7-8. The court did not

advise the defendant about the potential impact of the conflict on

counsel’s representation, but it determined that the lawyer had

done so and that the defendant nonetheless wished to waive any

10
conflict. Id. at 8. Under those circumstances, despite the

“abbreviated nature” of the colloquy, the division concluded that the

defendant’s waiver was valid. Id.

¶ 27 On this record, we conclude that the trial court correctly

determined that O’Brien validly waived his right to conflict-free

counsel.

D. Conflict That Adversely Affected Counsel’s Performance

¶ 28 But even if O’Brien’s waiver were invalid, his ineffective

assistance of counsel claim fails. He cannot establish that his

lawyers passed up an objectively reasonable defense due to the

conflict.

¶ 29 On appeal, O’Brien asserts that his “best defense” was that

Lunn was more familiar than him with transport protocols and the

particular van used, and, therefore, “the failure to ensure that

[Shankling] was transported in an appropriate and safe manner . . .

fell more on [Lunn’s] shoulders.” He says that his lawyers could not

11
pursue that defense, though, as it would have been adverse to

Lunn’s interests.2

¶ 30 The argument is unconvincing for several reasons.

¶ 31 First, defense counsel did argue that O’Brien was unfamiliar

with transport protocols and the van’s design. Counsel elicited

testimony from a BCSO detective that O’Brien had spent his career

on the “operations” side of the sheriff’s office, and, unlike jail staff,

operations officers do not receive training concerning “transport

vans.” Then, during closing argument, to rebut the prosecutor’s

assertion that Shankling should have been placed, seated, in the

small side compartment, defense counsel emphasized O’Brien’s lack

of training and knowledge of the van. She argued that the van was

generally used to take sober inmates to and from the county jail,

but on the night Shankling died, it was used for the “completely

unintended purpose” of taking intoxicated people to a detox center.

Neither Lunn nor O’Brien had “seen the van before,” she said, and

2 At oral argument, O’Brien’s appellate lawyer argued that the

conflict also prevented counsel from moving to sever the cases,
seeking a plea deal, or advising O’Brien to testify. We do not
address those arguments. See Rucker v. Fed. Nat’l Mortg. Ass’n,
2016 COA 114, ¶ 35 (court does not address contentions raised for
the first time at oral argument).

12
neither had been “trained on the use of th[e] van in connection with

the transport of intoxicated individuals.” The jury was not

persuaded.

¶ 32 At oral argument, O’Brien’s appellate lawyer suggested that

the conflict prevented trial counsel from raising the specific defense

that O’Brien, unlike Lunn, was actually unaware of the van’s small

side compartment. But that defense is unsupported by the

evidence. Just after the incident, O’Brien was interviewed by a

sheriff’s office investigator. He told her that earlier that night, he

and Lunn had used the small side compartment to transport a

different person to the detox center. He also said that while

transporting Shankling, he “got inside that smaller compartment” to

check on him. Thus, an argument that O’Brien was unaware of the

smaller side compartment was neither plausible nor objectively

reasonable under the facts known to counsel. See West, ¶ 3; see

also Gaulden v. United States, 239 A.3d 592, 599 (D.C. 2020) (for

purposes of demonstrating that a conflict of interest adversely

affected counsel’s performance, a defense is not plausible if the

evidence at trial would not support it); Freund v. Butterworth, 165

F.3d 839, 867 (11th Cir. 1999) (the defendant could not

13
demonstrate that a conflict of interest adversely affected counsel’s

performance because the proposed defense of shifting blame to the

codefendant was not reasonable under the facts).

¶ 33 At any rate, that O’Brien was not aware of a more appropriate

compartment for transporting detainees is not a defense to

manslaughter. A person commits manslaughter if he “recklessly

causes the death of another person.” § 18-3-104(1)(a), C.R.S. 2024.

Thus, the prosecution had to prove that O’Brien “consciously

disregard[ed] a substantial and unjustifiable risk” that his actions

would cause Shankling’s death. § 18-1-501(8), C.R.S. 2024; Mata-

Medina v. People, 71 P.3d 973, 978 (Colo. 2003).

¶ 34 The criminal conduct was O’Brien’s act of wedging Shankling,

handcuffed and in a prone position, into the four-foot-nine-inch

rear compartment, despite his knowledge that transporting

Shankling in this position might cause asphyxia. Whatever else

O’Brien knew about the van was irrelevant. The issue was not

whether O’Brien had sufficient information to make a different or

better decision; it was whether the decision he did make

demonstrated his conscious disregard of a substantial and

unjustifiable risk that Shankling would die by suffocation.

14
¶ 35 For this reason, we presume that defense counsel chose to

focus on the defenses that would negate the elements of

manslaughter — that the defendants’ actions did not cause

Shankling’s death and, due to inadequate training, they were

unaware of the risks associated with Shankling’s positioning in the

van. Counsel’s choice to forgo a factually and legally nonviable

defense in favor of a relevant defense does not establish that

counsel’s performance was adversely affected by a conflict. See

McFarland v. Yukins, 356 F.3d 688, 706-07 (6th Cir. 2004)

(Counsel’s choice to forgo a defense “is evidence of adverse effect

only if it is clear that the choice was not part of a legitimate

strategy, judged under [a] deferential review of counsel’s

performance.”).

¶ 36 Finally, we reject O’Brien’s contention that his lawyers’ conflict

of interest prevented them from shifting the blame to Lunn at

sentencing. It is not clear what the lawyers should have said,

unless O’Brien’s argument is that his relative lack of knowledge of

the van constituted mitigating evidence. But for the same reason

his supposed lack of knowledge was not a viable defense, it was also

not viable mitigation. In fact, O’Brien’s own attempt to use his

15
unfamiliarity with the van as mitigation was unsuccessful. Despite

telling the court during his allocution at sentencing that he “wasn’t

familiar with the van,” he “didn’t know” about the other

compartments, and he “didn’t know that the container [they] put

[Shankling] in was too short,” the court adopted the presentence

investigation report’s (PSI) recommendation of a six-year sentence.

¶ 37 The problem for O’Brien at sentencing was not his lawyers’

purported inability to point the finger at Lunn concerning the van.

His problem was that he appeared more culpable and less

remorseful than Lunn. As he concedes in his opening brief, he had

more experience and training than Lunn, and he was primarily

responsible for monitoring Shankling while Lunn drove the van.

And as he acknowledged at sentencing, he, not Lunn, made

inappropriate comments and jokes on the night of the offense.

According to the PSI writer, O’Brien exhibited little remorse or

empathy, instead blaming Shankling and others for his own

criminal conduct.

¶ 38 Presumably in light of the irrelevance of the van evidence,

defense counsel focused on O’Brien’s personal characteristics,

telling the court that O’Brien was “filled with remorse and shame”

16
but had a “hard time . . . expressing it.” He presented witnesses to

talk about O’Brien’s difficult family circumstances and his

exemplary record as a deputy.

¶ 39 Under the circumstances, O’Brien cannot establish that his

lawyer’s decision to forgo shifting the blame to Lunn was linked to

the conflict arising from joint representation. See State v. West,

2018-Ohio-640, ¶ 32, 106 N.E.3d 96, 106-07 (Ct. App. 2018)

(counsel’s decision at sentencing not to focus on one defendant’s

lesser culpability was not “indicative of an actual conflict of

interest” where a different strategy was more viable).

III. Improper Expert Testimony

¶ 40 As noted, the prosecution had to show that O’Brien

consciously disregarded a substantial and unjustifiable risk that

his actions would cause Shankling’s death. Because the question

of whether O’Brien consciously disregarded a risk turned on what a

reasonable person with his “knowledge and experience would have

been aware of” at the time, People v. Hall, 999 P.2d 207, 216 (Colo.

2000), the prosecution introduced evidence that BCSO deputies are

trained about the risks of and ways to prevent positional asphyxia.

17
• BCSO Sergeant Jeff Pelletier testified that “[a]ll the way back

to the . . . academy . . . there was training specific to . . .

positional asphyxia” and that the “general practice” was to

“not keep people on their stomach.” In response to a juror

question, he explained that his training “contributed to his

concern” about the way Shankling was “loaded into the van.”

• JoAnna Compton, a BCSO detective, testified that she first

learned about positional asphyxia in the police academy and

had subsequent training on the subject. She said that BCSO

officers “are trained not to” “handcuff somebody and leave

them on their stomach . . . for really any period of time.”

• BCSO Commander Jason Oehlkers testified that O’Brien

attended multiple training sessions, beginning in 2007, that

covered positional asphyxia. He told the jury that based on

“everything that [he had] been taught,” he did not think it was

“appropriate” to “leave a handcuffed person on their stomach

for over 16 minutes.”

• Rex Brown, a former police officer, testified that he trained

BCSO deputies on subjects including positional asphyxia. He

described the content of a 2007 training program O’Brien

18
attended that covered positional asphyxia. During his

testimony, he defined positional asphyxia as “a [body] position

that inhibits your ability to breathe” and explained that “if you

get drunk and pass out in a certain position, you can have

this happen.”

• BCSO Sergeant Judson Vaughan testified that deputies are

“consistently” trained about positional asphyxia and

specifically instructed that “once someone’s on the ground,”

the deputies should “roll them over, sit them up, monitor their

breathing, [and] make sure they’re doing okay.” He said that a

training he conducted in 2018 included a description of risk

factors associated with positional asphyxia, including alcohol

and drug use.

• BCSO Commander Tim Oliveira described in detail the content

of a 2018 training session he conducted on the prevention of

in-custody deaths. Trainees were instructed not to leave a

person in the prone position because, among other reasons,

lying face down could inhibit the person’s ability to “get

enough oxygen in.”

19
¶ 41 O’Brien argues that the officers, who testified as lay witnesses,

improperly offered expert testimony “about positional asphyxia,

including proper positioning and transport of handcuffed detainees,

as well as risk factors associated with [positional asphyxia], such as

drugs and alcohol.”3

¶ 42 We review the trial court’s decision to admit evidence for an

abuse of discretion. See People v. Martinez, 2020 COA 141, ¶ 61.

But because O’Brien’s counsel did not object to any of the cited

testimony, we reverse only on a finding of plain error. See id. at

¶ 62. To constitute plain error, the error must be obvious and must

so undermine the fundamental fairness of the trial itself as to cast

serious doubt on the reliability of the verdict. Id.

¶ 43 A witness’s testimony may be classified as lay testimony, lay

opinion testimony, or expert testimony. People v. Murphy, 2021 CO

22, ¶ 17. Lay testimony is factual in nature, not opinion based. Id.

3 Our review of this argument is hindered by O’Brien’s failure to

specifically identify the challenged testimony and explain why it
amounts to expert testimony. It is not this court’s function “to
make or develop a party’s argument when that party has not
endeavored to do so itself.” Gravina Siding & Windows Co. v.
Gravina, 2022 COA 50, ¶ 71 (citation omitted).

20
But if a lay witness meets the requirements of CRE 701, the witness

may provide opinion testimony. Murphy, ¶ 17.

¶ 44 Whether a witness’s testimony constitutes a lay opinion under

CRE 701 or an expert opinion under CRE 702 depends on the basis

for the witness’s opinion. Venalonzo v. People, 2017 CO 9, ¶¶ 16-

17. If the witness provides testimony that could be expected to be

based on an ordinary person’s experiences or knowledge, then the

witness is offering lay testimony. Id. at ¶ 23. But if the witness

provides testimony that could not be offered without specialized

experiences, knowledge, or training, then the witness is offering

expert testimony. Id.

¶ 45 For the most part, the six officers merely recounted historical

facts — testimony that did not implicate CRE 701 or 702. They

described the training provided to BCSO deputies about positional

asphyxia to show that O’Brien knew he should not have placed a

highly intoxicated handcuffed detainee in a prone position for

sixteen minutes. An officer’s testimony about training received or

conducted is lay testimony because “any ordinary person is capable

of describing her own” training or background. Venalonzo, ¶ 27

(forensic interviewer’s testimony about her training and experience

21
was lay testimony); see also People v. Stewart, 55 P.3d 107, 123

(Colo. 2002) (concluding that an officer’s testimony conveying his

observations of the crime scene was lay testimony and explaining

that “police officers regularly, and appropriately, offer testimony

under Rule 701 based on their perceptions and experiences”); see

also Murphy, ¶ 31 (concluding that an officer’s testimony about an

interviewee’s body language was lay opinion testimony and

explaining that “simply referencing one’s ‘training and experience’

does not transform an officer’s lay opinion testimony into expert

testimony”).

¶ 46 To the extent some of the officers’ testimony crossed the line,

not just into opinion testimony but into expert testimony, we

conclude that any error was not plain. For one thing, it is difficult

on this record to pinpoint when the witnesses may have moved from

recounting their training to offering explanations or opinions, and

O’Brien does not identify any such point. Accordingly, we cannot

say that the trial court should have been able to discern any shift

without the benefit of an objection. See People v. Davis, 2012 COA

56, ¶ 52 (no plain error in admission of improper testimony because

the trial court could not have determined without the benefit of an

22
objection that the officer’s testimony strayed from allowable expert

testimony to impermissible summarizing of facts). Moreover, any

opinions offered by the officers were cumulative of the prosecution’s

medical expert’s testimony. The medical examiner testified that

Shankling died from asphyxia “due to the positioning of the body.”

She opined that when the officers “wedg[ed]” Shankling’s seventy-

two-inch body into the fifty-seven-inch compartment, his buttocks

and pelvic region lifted off the van floor leading to “unnatural

contortion” that compressed his neck either sharply forward or

backward such that the arteries and vessels in his neck (and,

potentially, his airway) were obstructed. According to the medical

examiner, if the “positional event” had not occurred, Shankling

would not have died. Thus, any opinions from the officers that

placing a handcuffed person on his stomach for several minutes

could be harmful would merely amount to similar, but less forceful,

testimony. As a result, any error in admitting the testimony was

not plain. See People v. Douglas, 2015 COA 155, ¶ 41 (“Where the

improperly admitted lay testimony is cumulative of properly

admitted expert testimony, there is no plain error.”).

23
IV. Disposition

¶ 47 The judgment is affirmed.

JUDGE J. JONES and JUDGE GOMEZ concur.

24