Peo v. Hughes

22CA2213 Peo v Hughes 07-11-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA2213

El Paso County District Court No. 14CR1962

Honorable David L. Shakes, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Marshall M. Hughes,

Defendant-Appellant.

ORDER AFFIRMED IN PART AND REVERSED IN PART,

AND CASE REMANDED WITH DIRECTIONS

Division IV

Opinion by JUDGE PAWAR

Navarro and Johnson, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced July 11, 2024

Philip J. Weiser, Attorney General, Caitlin E. Grant, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Frank Law Office LLC, Adam Frank, Denver, Colorado, for Defendant-Appellant

1

¶ 1 Defendant, Marshall M. Hughes, appeals the postconviction

court’s order denying his ineffective assistance of trial and direct

appeal counsel claims after a hearing. We reverse the denial of one

claim, otherwise affirm, and remand the case with directions.

I. Background

¶ 2 When Hughes returned from an overseas military deployment,

his girlfriend, who lived in Virginia, A.B., met him in Colorado

Springs. One night, they went to a bar where Hughes accused her

of flirting with another patron, and they got into an argument. A.B.

testified at trial that Hughes grabbed her and threw her to the

ground outside the bar. When they returned to the hotel room they

were staying in, Hughes destroyed the room, causing thousands of

dollars in damage.

¶ 3 Over the next several months, they continued their

relationship. A.B., her two-year-old daughter, and A.B.’s mother

relocated to Colorado and moved in with Hughes. During this time,

Hughes repeatedly accused A.B. of infidelity and repeatedly called

her “whore,” “slut,” and “bitch.”

¶ 4 The prosecution charged Hughes with several offenses,

including as relevant here, criminal mischief for destroying the

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hotel room, third degree assault for his conduct outside the bar and

in the hotel room, and multiple harassment counts.

¶ 5 The jury found Hughes not guilty of third degree assault and

all but one of the harassment counts. The jury found him guilty of

criminal mischief and the harassment count based on section 18-9-

111(1)(h), C.R.S. 2023, for repeatedly insulting A.B. over the course

of several months.

¶ 6 Hughes directly appealed his convictions, and a division of this

court affirmed. People v. Hughes, slip op. at 23 (Colo. App. No.

14CA2475, Sept. 1, 2016) (not published pursuant to C.A.R. 35(e)).

He then filed the Crim. P. 35(c) petition that gave rise to this appeal.

In it, he alleged multiple claims of ineffective assistance of trial and

direct appeal counsel. The postconviction court held an evidentiary

hearing and ultimately denied all of Hughes’ claims. The claims

relevant to this appeal alleged that

• trial counsel was ineffective for failing to properly

investigate the case and present testimony from the

bouncer at the bar;

• both trial and appellate counsel were ineffective for failing

to challenge the sufficiency of the evidence to support the

3

harassment conviction because Hughes’ speech was

protected by the First Amendment; and

• the cumulative effect of trial counsel’s deficient

performance constituted ineffective assistance.

¶ 7 Hughes appeals the postconviction court’s order denying these

claims. He argues that the postconviction court erred by

(1) applying an incorrect legal standard to all his claims;

(2) concluding that trial counsel was not ineffective for failing to call

the bouncer as a witness at trial; (3) denying his claims based on

the First Amendment argument as to both trial and direct appeal

counsel; and (4) denying his cumulative effect claim.

¶ 8 We disagree with Hughes’ first two arguments. But we agree

that the postconviction court erred by denying his First Amendment

claim as to trial counsel. We therefore reverse the order denying

that claim without addressing the related claim as to direct appeal

counsel. Finally, we reject Hughes’ cumulative effect argument.

II. Ineffective Assistance

¶ 9 To succeed on an ineffective assistance claim, the defendant

must prove that (1) counsel’s performance was constitutionally

deficient and (2) counsel’s deficient performance prejudiced the

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defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

The first prong, deficient performance, requires the defendant to

prove that counsel’s representation fell below an objective standard

of reasonableness. Id. at 688. This prong requires us to indulge a

strong presumption that counsel’s conduct fell within the wide

range of professional assistance. Id. at 689.

¶ 10 Under the second prong, prejudice, the defendant must

demonstrate a reasonable probability that but for counsel’s

deficient performance, the result of the proceeding would have been

different. Id. at 694. Failure to prove either prong is fatal to an

ineffective assistance claim, regardless of whether defendant has

proved the other prong. Id. at 700.

¶ 11 We review a postconviction court’s denial of ineffective

assistance claims after an evidentiary hearing as a mixed question

of fact and law. See People v. Corson, 2016 CO 33, ¶ 25. We defer

to the postconviction court’s factual findings if they are supported

by the record. Id. But we review the court’s legal conclusions de

novo, including the determinations of whether the defendant

adequately proved deficient performance and prejudice. See People

v. Brown, 250 P.3d 679, 681 (Colo. App. 2010).

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¶ 12 With these standards in mind, we now address Hughes’

challenges to the denial of his ineffective assistance claims.

III. The Legal Standard Applied by the Postconviction Court

¶ 13 We disagree with Hughes’ argument that the postconviction

court applied the wrong legal standard.

¶ 14 Hughes rightly points out that while deficient performance

must be proved by a preponderance of the evidence, the burden of

proof for prejudice is different — and lower. Strickland, 466 U.S. at

694; People v. Washington, 2014 COA 41, ¶¶ 22-27. As mentioned

above, to prove prejudice a defendant must show only that there

was a reasonable probability that the result of the proceeding would

have been different but for counsel’s actions. Strickland, 466 U.S.

at 694; Washington, ¶ 23. Hughes argues that the postconviction

court erroneously applied the higher preponderance standard in its

prejudice analysis.

¶ 15 We take Hughes’ point that when setting out the governing law

in its order, the postconviction court wrote that “the defendant

must prove, by a preponderance of the evidence, each prong.” But

the court also correctly articulated the defendant’s burden of proof

for prejudice: “the defendant must demonstrate a reasonable

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probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” And most

importantly, in its substantive discussion of Hughes’ claims, the

court applied the reasonable probability standard in all its prejudice

analyses. We therefore reject Hughes’ argument that the

postconviction court erred by applying an incorrect legal standard.

IV. Claim Based on Failure to Investigate

¶ 16 Hughes next argues that the postconviction court erred by

denying his claim that trial counsel was ineffective for failing to

discover and present testimony from a vital witness — the bouncer

at the bar.

¶ 17 The bouncer testified at the postconviction hearing that he

saw Hughes and A.B. outside the bar in an argument the night

Hughes destroyed the hotel room. The bouncer described A.B. as

intoxicated, belligerent, and shoving Hughes. He testified that

Hughes was trying to calm her down and Hughes never put his

hands on her.

¶ 18 Like the postconviction court, we conclude that there was not

a reasonable probability that this testimony would have changed

the outcome of the trial. The jury found Hughes not guilty of the

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assault, which A.B. testified occurred outside the bar. And the

bouncer’s testimony did not bear directly on any other counts

Hughes was convicted of (criminal mischief for destroying the hotel

room and harassment for calling A.B. a bitch, whore, and slut).

¶ 19 Hughes argues otherwise, asserting that this testimony would

have damaged A.B.’s credibility in general and therefore weakened

her testimony that Hughes destroyed the hotel room. But A.B.’s

credibility was already successfully challenged at trial. She testified

that outside the bar, Hughes grabbed her by the back of the head

and threw her to the ground. But on cross-examination, trial

counsel confronted her with her previous statement that Hughes

“never laid hands on me that night” and that she never felt

threatened or intimidated that night. Thus, her credibility was

already damaged, and the bouncer’s effect on her credibility would

have been largely cumulative.

¶ 20 For these reasons, we conclude there was no reasonable

probability that the bouncer’s testimony would have changed the

outcome of trial. Hughes therefore failed to establish prejudice, and

we need not address deficient performance before concluding that

the postconviction court properly denied this claim.

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V. Claims Based on the First Amendment

¶ 21 Hughes contends that both trial and direct appeal counsel

were ineffective by failing to argue that the speech underlying the

harassment conviction was protected by the First Amendment. We

agree with Hughes that the postconviction court erroneously denied

this claim as to trial counsel. Based on this conclusion, we need

not address the claim involving direct appeal counsel.

¶ 22 We begin by explaining the free speech argument that trial

counsel could have made. We then explain why failing to make it

constituted deficient performance that resulted in prejudice.

A. Governing Law and the Free Speech Argument

¶ 23 The harassment statute Hughes was convicted under provides

that a person commits harassment if, with intent to harass, annoy,

or alarm another, he “[r]epeatedly insults, taunts, challenges, or

makes communications in offensively coarse language to, another

in a manner likely to provoke a violent or disorderly response.”

§ 18-9-111(1)(h).

¶ 24 Our supreme court has long since addressed the tension

between this statute and the right to freedom of speech enshrined

in the First Amendment of the U.S. Constitution and article 2,

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section 10 of the Colorado Constitution. That court held that

section 18-9-111(1)(h) does not violate the constitutional right to

freedom of speech because it prohibits only fighting words, and

there is no constitutional right to use fighting words. People ex rel.

VanMeveren v. Cnty. Ct., 191 Colo. 201, 204, 551 P.2d 716, 719

(1976). The court defined fighting words as “only those words

which have a direct tendency to cause acts of violence by the

persons to whom, individually, the words are addressed.” Id.

¶ 25 More recent opinions, including those from divisions of this

court, have emphasized that the category of speech that can be

considered fighting words is narrow and getting narrower. People in

Interest of R.C., 2016 COA 166, ¶ 17 (“That the category of ‘fighting

words’ has been shrinking is obvious — the Supreme Court has

overturned every single fighting words conviction it has reviewed

since . . . 1942.”). And these cases have reiterated that fighting

words are not defined by their offensiveness or substantive

reprehensibility — rather, they are defined by their tendency to

10

provoke a violent response from the person to whom they are

addressed.

1

See id. at ¶ 13.

¶ 26 Whether words meet this standard is “an objective

determination.” VanMeveren, 191 Colo. at 206, 551 P.2d at 720.

To satisfy this objective standard, we must ask whether the words

were, “‘as a matter of common knowledge, inherently likely to

provoke a violent reaction’ from a reasonable person.” R.C., ¶ 13

(quoting Coggin v. State, 123 S.W.3d 82, 90 (Tex. App. 2003)).

¶ 27 Although this is an objective determination to be made based

on a reasonable person’s reaction, context matters. A fighting

words determination must be made “on a case-by-case basis,

considering all of the particular facts and circumstances.” Id. at

¶ 22. This context includes that society is less comfortable now

1

The prosecution argues that People in Interest of R.C., 2016 COA

166, cannot be considered in analyzing whether trial counsel’s

performance was deficient because it was announced after the trial

in this case. We rely on it here only for the long-established

standard for what constitutes fighting words and the observation

that fighting words are a narrow and shrinking category of

unprotected speech. Both propositions were clearly established

before R.C. was announced and before the trial in this case. See

State v. Tracy, 2015 VT 111, ¶¶ 18-26 (discussing the Supreme

Court’s fighting words opinions from 1942 to 2015). We therefore

see no problem in relying on R.C. for these general principles.

11

than it was when the fighting words doctrine was established over

eighty years ago with the idea that mere words can move a

reasonable person to physical violence. See State v. Tracy, 2015 VT

111, ¶¶ 36-37.

¶ 28 The speech at issue in this case is Hughes’ repeatedly calling

A.B. a “whore,” “slut,” and “bitch.” Hughes argues that trial

counsel was ineffective for failing to move for a judgment of

acquittal (JOA) at the close of evidence on the ground that this

speech did not rise to the level of fighting words and was therefore

constitutionally protected, thereby leaving the prosecution with

insufficient evidence of the harassment count. We agree and next

explain why.

B. Deficient Performance and Prejudice

¶ 29 To prove that trial counsel’s performance was deficient,

Hughes had to overcome the presumption that the failure to move

for JOA might have been sound trial strategy. See People v. Phipps,

2016 COA 190M, ¶ 17. But we can discern no strategic reason not

to move for JOA on the ground explained above.

¶ 30 We recognize that trial counsel testified at the postconviction

hearing that he made a strategic decision to not raise this free

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speech defense earlier at trial. Trial counsel explained that if he

argued that Hughes’ speech was unlikely to elicit a violent response

from A.B., the prosecution might have called a domestic violence

expert to testify about how domestic violence victims react to verbal

abuse. As trial counsel put it, this would have “expanded my

battlefront.”

¶ 31 This was a strategic reason not to raise this defense before the

close of evidence. But it is not a strategic reason for failing to move

for JOA after the close of evidence — at that point, the prosecution

would have been unable to call a domestic violence expert. Put

simply, there was no downside to moving for JOA on the ground

that Hughes’ speech was constitutionally protected.

¶ 32 The prosecution suggests that trial counsel effectively made

such a motion. But trial counsel’s JOA motion did not reference

the fighting words doctrine. Instead, trial counsel said only, “I

would move for acquittal as to all counts. I would waive argument

as to all counts with the exception of [a count not relevant to this

appeal].” Such a general motion, presented without argument, did

not raise the specific substantive issue on which this ineffective

assistance claim is based. We therefore conclude that there was no

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strategic reason for trial counsel’s failure to move for JOA on the

harassment count at issue here on free speech grounds.

¶ 33 Moreover, we conclude that had trial counsel made such a

motion, there was a reasonable probability that it would have

succeeded.

¶ 34 In general, calling a reasonable person a “whore,” “slut,” and

“bitch” would not elicit an immediate violent response. These

epithets are abusive, profane, and insulting. But the words

themselves fall far short of inciting a reasonable person to

immediate physical violence.

¶ 35 The postconviction court concluded otherwise based on the

circumstances under which Hughes uttered the words. The court

held that a free speech challenge “was not meritorious” because

Hughes engaged in this speech “while [he] was violently destroying

the hotel room, in circumstances where others heard the offensive

insults, while [Hughes] was angrily flailing his hands over the

victim, and causing the victim to roll up in a ball like a fetal

position.” (Citations to the record omitted.)

¶ 36 Initially, we note that the first of these findings is unsupported

by the record. A.B. was the only witness to the destruction of the

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hotel room, and she did not testify that Hughes insulted her in a

manner that could have supported the harassment count during

that incident. The testimony the postconviction court cited to

support its finding to the contrary was as follows.

Trial Counsel: And from December right

around the hotel room incident all the way

through March . . . that period of time was

horrible for you, right?

A.B.: Correct

Trial Counsel: Nonstop abuse, calling you slut,

whore, constantly mistrusting you, making

you go back to talk to cashiers to see if you

had really slept with them, right? During that

period of time, [A.B.], how many times did you

call the police for help?

A.B.: Once.

A.B. did not specifically testify that Hughes called her any name

while he destroyed the hotel room — instead she testified generally

that he repeatedly called her names over the course of several

months.

¶ 37 Next, we question whether the record supports the

postconviction court’s finding that Hughes engaged in the speech at

issue while “angrily flailing his hands over [A.B.].” (Emphases

added.) A.B.’s mother described an instance in which Hughes

15

called A.B. a slut and a whore. A.B.’s mother testified that Hughes

had discovered that A.B. had slept with a man in Hawaii. When

asked to describe what happened after Hughes discovered this,

A.B.’s mother testified,

I saw her sitting on the back steps and over

the top of her hands flailing. I was in the

house with the baby and walked out to observe

it, because I didn’t want [Hughes] to hurt

[A.B.]. And he was yelling at her. He found

out the truth and, you know, what a bitch she

is, calling her names, and then walked into the

house. I was with the baby. Walked into the

house and let me know in front of my

granddaughter she’s a whore. Your daughter

is a slut. She sleeps around. She’s sick. She

needs help. I was pretty devastated . . . . [A.B.

was s]itting in the backyard rolled up in a ball.

¶ 38 This testimony supports that Hughes engaged in the speech at

issue in front of people other than A.B. and that he caused A.B. to

“roll up in a ball.” The testimony is ambiguous, however, as to

whose hands were flailing over the top of A.B. and whether those

hands were flailing “angrily.”

¶ 39 Even accepting the postconviction court’s finding that Hughes’

hands were flailing angrily over A.B., we nevertheless conclude that

a JOA motion challenging the sufficiency of the evidence on First

Amendment grounds was reasonably probable to succeed. The

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record reveals that the circumstances surrounding the speech at

issue were that Hughes was a verbally abusive and distrustful

partner, and his relationship with A.B. was unhealthy, perhaps

even toxic. But there was no evidence that Hughes used the

epithets at issue in conjunction with threats or acts of physical

violence.

2

See State v. Parnoff, 186 A.3d 640, 648-49 (Conn. 2018)

(defendant’s threats to retrieve a gun and “shoot” and “fucking kill”

water company employees on his property were not fighting words).

¶ 40 Considered in context, Hughes’ speech was certainly abusive,

derogatory, and hurtful. But fighting words are a narrow class of

speech that are unprotected because they would provoke violence in

an average person. Speech must go beyond being merely “abusive”

or “harsh [and] insulting” to lie outside the protection of the First

Amendment. Gooding v. Wilson, 405 U.S. 518, 525 (1972) (citation

omitted). We conclude that in the context of a verbally abusive,

toxic, and distrustful relationship with allegations of infidelity, the

use of the words “whore,” “slut,” and “bitch” would not induce an

2

Although A.B. did testify that Hughes pushed her in the hallway of

their home, she did not testify that Hughes used the speech at issue

here during that alleged incident. Moreover, the jury found Hughes

not guilty of the counts related to that alleged incident.

17

immediate and violent response from the average person.

Accordingly, these words fall short of the threshold for fighting

words, and Hughes’ use of them was likely protected by the First

Amendment. See, e.g., State v. Baccala, 163 A.3d 1, 13-16 (Conn.

2017) (customer calling store manager a “fat ugly bitch” and “cunt,”

and telling the manager, “fuck you, you’re not a manager” was

constitutionally protected speech). There was therefore a

reasonable probability that a motion for JOA on the section 18-9-

111(1)(h) count would have been successful.

¶ 41 Because there was no strategic reason for failing to file a JOA

motion and there was a reasonable probability the motion would

have succeeded, we conclude that Hughes proved both deficient

performance and prejudice as to trial counsel. In light of this

conclusion, we need not address the related ineffective assistance

claim as to direct appeal counsel because both claims seek the

same relief: reversal of the section 18-9-111(1)(h) conviction.

VI. Cumulative Error

¶ 42 Finally, Hughes argues that when all of trial counsel’s deficient

performance is considered in the aggregate, it resulted in prejudice,

entitling him to reversal of all his convictions. We disagree.

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¶ 43 We have identified only a single instance of deficient

performance: trial counsel’s failure to move for JOA on the section

18-9-111(1)(h) count. Even if we assume that trial counsel was also

deficient for failing to present testimony from the bouncer, we

conclude that the combined effect of that conduct did not deprive

Hughes of his right to constitutionally effective assistance.

VII. Disposition

¶ 44 The postconviction court’s order denying Hughes’ ineffective

assistance claim based on trial counsel failing to challenge the

section 18-9-111(1)(h) count is reversed. The postconviction court’s

order is otherwise affirmed. The case is remanded to the

postconviction court with directions to set aside Hughes’

harassment conviction and conduct whatever further proceedings

might be appropriate consistent with this opinion.

JUDGE NAVARRO and JUDGE JOHNSON concur.