Peo v. Samuels

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

judgment of conviction. See People v. Samuels, 228 P.3d 229 (Colo.

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,

59; People v. Davis, 312 P.3d 193, 194-95 (Colo. App. 2010), aff’d,

2023 CO 57, 310 P.3d 58. Davis admitted that he drove the car

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

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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.

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¶ 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

preponderance of the evidence. People v. Corson, 2016 CO 33, ¶ 25,

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

P.3d 1191, 1195; Corson, ¶ 25, 379 P.3d at 293-94.

¶ 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

from supreme court precedent. People v. Robson, 80 P.3d 912, 914

(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.

See Gee, ¶ 15, 371 P.3d at 719. To the extent that Gee is

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

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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

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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

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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

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(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.