holding the determination of whether newly discovered evidence would probably bring about an acquittal "should be premised on whether the new evidence, as developed in trial, when considered with all the other evidence is such that a reasonable jury would probably conclude that there existed a reasonable doubt as to defendant's guilt and thereby bring about an acquittal verdict"
How later courts described this case
- holding the determination of whether newly discovered evidence would probably bring about an acquittal "should be premised on whether the new evidence, as developed in trial, when considered with all the other evidence is such that a reasonable jury would probably conclude that there existed a reasonable doubt as to defendant's guilt and thereby bring about an acquittal verdict"
- holding that a jury instruction listing additional modes of sexual penetration than those listed in the information did not impermissi-bly amend the charge of sexual assault because/in part, “the added modes of sexual penetration [did] not change the applicable statute, sentence, or level of offense.”
- recognizing that a "fair assesgment of counsel's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time"
- recognizing that a “fair assessment of counsel’s performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time”
Written by the judges who cited it.
The opinion
Justice KIRSHBAUM
concurring in part and dissenting in part.
I concur in the majority’s resolution of the issues it addresses. Although it might ini *322 tially appear that the district court erred in denying Rodriguez’ requests for evidentiary hearings on the allegations contained in his Crim.P. 35(c) motion that the jury commissioner acted in violation of the Uniform Jury Selection and Service Act, §§ 13-71-101 to - 122, 6 C.R.S. (1973 ⅛ 1986 Supp.) (the Act), in selecting prospective jurors (Issue 61) and that Rodriguez was not properly advised of and did not adequately waive his constitutional right to testify at trial (Issue 89), careful examination of the record as a whole supports the majority’s conclusion that the district court did not err in its denial of those requests for evidentiary hearings. 1
On November 25, 1986, Rodriguez filed a motion to quash jury panel with the trial court. The motion contains allegations, supported by an accompanying affidavit, that the jury commissioner improperly excused several classes of potential jurors from the final jury pool, in violation of the Act. However, neither that motion nor Rodriguez’ stated argument in his brief filed here contains allegations that the jury pool as ultimately constituted did not represent a random cross-section of the general public. Absent such allegations, evidence establishing the impropriety of the jury commissioner’s conduct would not establish a violation of Rodriguez’ due process rights.
Similarly, an allegation that a defendant did not knowingly waive the right to testify at trial could in some circumstances require an evidentiary hearing for resolution of that issue. 2 However, Rodriguez’ Crim.P. 35(c) motion contains the following conclusional assertion:
Rodriguez’ motion does not allege any facts in support of those conclusions. In view of this state of the record, the district court did not abuse its discretion in determining this issue solely on the basis of the transcripts of the trial proceedings.
While I concur in the majority’s resolution of the issues it addresses, I cannot join the majority’s conclusion in part IIA of its opinion that in his appeal to this court Rodriguez has consciously relinquished over eighty of the issues he raised in his Crim.P. 35(e) motion. See Maj.op. at 248. I do not speculate whether Rodriguez would or would not prevail on the merits of such issues. I simply do not agree that he has forfeited the procedural right to have the merits of those issues addressed by this court.
The district court dismissed approximately 110 issues contained in Rodriguez’ Crim.P. 35(c) motion on the ground that they had been previously litigated. Stating that Rodriguez “specifically asserts” some eighteen of those issues in this appeal, the Majority addresses those eighteen issues. See Maj. op. *323 at 248-49. However, Rodriguez asserts in his very first issue on appeal that the district court erred in dismissing and therefore not addressing all of the 110 issues raised by his Crim.P. 35(c) motion. 3 Rodriguez thus expressly requests this court to review the merits of the district court’s ruling that it need not consider those 110 issues.
In his brief filed in this court Rodriguez illustrates the district court’s alleged error by way of example and asserts that, contrary to the district court’s conclusions, most of those 110 issues had not been previously litigated. Rodriguez then states that there are “many other obvious examples” of issues which had not been previously litigated, that “the merits of the claims presented under the approximately one hundred and nine headings should be considered,” and that the district court’s “failure to allow hearings and to make findings and conclusions as to all of the claims covered by the ruling at issue here violated Rule 35(c) and Mr. Rodriguez’ right to due process under the federal and Colorado Constitutions.”
Despite Rodriguez’ statement that he seeks this court’s review of all of the issues asserted in his Crim.P. 35(c) motion and dismissed by the district court as previously litigated, the majority states that “Rodriguez’ failure to specifically reassert on this appeal all of the claims which the district court disposed of as previously litigated on direct appeal constitutes a conscious relinquishment of those claims which he does not reassert.” Maj.op. at 249. The majority cites no authority for the apparent rule that specific issues raised in post-conviction proceedings by a defendant’s Crim.P. 35(c) motion will be deemed abandoned on appeal if the defendant’s appellate brief refers to all such issues instead of restating each such issue. Such a rule would of course require more lengthy briefs.
The language of Rodriguez’ brief refutes the majority’s conclusion. While silence may in some circumstances constitute a relinquishment of a right, the assertion of a general proposition does not indicate relinquishment of the specific components necessarily included within the general proposition. Rodriguez asserts in Issue 1 that the trial court erroneously dismissed 110 of the issues Rodriguez presented in his Crim.P. 35(c) motion. Resolution of the issue as stated by Rodriguez requires determination of the propriety of the trial court’s ruling and hence review of all of the issues affected by that ruling. Rodriguez is entitled to the appellate review he has requested of all aspects of the trial court’s ruling dismissing 110 of the issues he raised in his Crim.P. 35(c) motion.
For the foregoing reasons, I respectfully dissent from the majority’s conclusion in section IIA of its opinion that Rodriguez has consciously relinquished his right to appellate review of all of the claims contained in his Crim.P. 35(c) motion that the trial court dismissed on the ground that such claims had previously been litigated. I concur in the remainder of the majority opinion.'
. Issues 61 and 89 state as follows:
61. MR. RODRIGUEZ ASSERTS ALL OF THE CLAIMS PRESENTED IN HIS MOTION TO QUASH INFORMATION, MOTION TO QUASH JURY PANEL, MOTION TO STAY PROCEEDINGS, MOTION FOR HEARING, FILED NOVEMBER 25, 1986. THE DEATH SENTENCE AND CONVICTIONS SHOULD ALSO BE VACATED DUE TO THE TRIAL COURT'S INEXCUSABLE FAILURES TO ALLOW HEARINGS ON THE ISSUES RAISED THEREIN AND TO GRANT RELIEF AT THE TIME. THE COURT’S REFUSAL TO ALLOW THE ACCUSED AN OPPORTUNITY TO MAKE AN ADEQUATE RECORD OR SHOWING CONCERNING THE MANNER IN WHICH THE JURY PANEL WAS SELECTED AND CHOSEN, INCLUDING THE DECISIONS OF THE JURY COMMISSIONER EXCUSING PROSPECTIVE JURORS, DENIED MR.
Mr. Rodriguez was not adequately advised of and did not make adequate waivers of his constitutional right to testify at any of the three parts of the trial in this case. RODRIGUEZ DUE PROCESS OF LAW AND HIS RIGHT TO A FAIR TRIAL BY IMPARTIAL JURY. THE JURY SUMMONING AND SELECTION PROCESS IN THIS CASE VIOLATED THE DUE PROCESS AND TRIAL BY JURY CLAUSES OF THE FEDERAL AND STATE CONSTITUTIONS, AND THE CONTROLLING STATUTES.
89. MR. RODRIGUEZ WAS NOT ADEQUATELY ADVISED OF AND DID NOT MAKE ADEQUATE WAIVERS OF HIS CONSTITUTIONAL RIGHT TO TESTIFY AT ANY OF THE THREE PARTS OF THE TRIAL IN THIS CASE.
. Rodriguez also asserts that the trial court's advisements concerning Rodriguez' right to testify were inadequate. However, the record contains transcripts of those advisements and Rodriguez does not assert that evidence in addition to the transcripts is necessary for determination of the adequacy of the advisements.
. Issue 1, as framed by Rodriguez, contains the following language: "THE DISTRICT COURT’S RULING THAT MR. RODRIGUEZ HAD ALREADY HAD APPELLATE REVIEW OF MANY CLAIMS IN HIS POSTCONVICTION MOTIONS WAS ERRONEOUS.”