Peo v. Scott

24CA1433 Peo v Scott 10-22-2026 COLORADO COURT OF APPEALS Court of Appeals No. 24CA1433 El Paso County District Court No. 16CR4129 Honorable Samuel Evig, Judge The People of the State of Colorado, Plaintiff-Appellee, v. Leroy Demille Scott, Defendant-Appellant. ORDER AFFIRMED Division V Opinion by JUDGE GROVE Lum and Navarro*, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 22, 2026 Philip J. Weiser, Attorney General, Jaycey DeHoyos, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Megan A. Ring, Colorado State Public Defender, Rachel Z. Geiman, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant *Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2026. ¶1 Defendant, Leroy Demille Scott, appeals the district court’s denial of his Crim. P. 35(c) motion after a hearing. We affirm. I. Background ¶2 We recount the following relevant facts from the opinion resolving Scott’s direct appeal. People v. Scott, (Colo. App. No. 17CA1024, Mar. 12, 2020) (not published pursuant to C.A.R. 35(e)). ¶3 At the time the victim encountered Scott, she was a fourteen- year-old runaway staying with a friend at the El Vecino apartments in Colorado Springs, where Scott also lived. She and her friend regularly used methamphetamine together, and on at least two occasions, they were joined by Scott, who was introduced to the victim as “Spook.” ¶4 One night, the victim was brought to Scott’s apartment by her friend. She had been using methamphetamine and was hungry and tired. She eventually fell asleep on Scott’s couch. During the night, Scott sexually assaulted her, using force and threats to make her submit. After the assault, the victim left the apartment; her friend found her crying in a stairwell. ¶5 The victim did not disclose the assault until a year later. By then, she was serving a sentence in a juvenile facility. Six months 1  after her arrival there, she told her therapist, and then the police, that Scott had forcibly sexually assaulted her. ¶6 She identified her assailant as a Black man in his forties named “Spook” who lived in the El Vecino apartments. That information led the police to Scott. An officer then presented the victim with a photo lineup containing Scott’s photograph. Initially, the victim did not pick anyone out of the lineup, but after the officer falsely told her that her assailant had a prior conviction for sexual assault on a child, she agreed to view the lineup again and identified Scott as “Spook.” ¶7 The People charged Scott with three counts of sexual assault on a child (two counts included sentence enhancing aggravators) and three counts of sexual assault (two of those counts also included aggravators), all relating to the single incident in Scott’s apartment. ¶8 At trial, the defense did not dispute that Scott was known as “Spook,” that he had lived in the El Vecino apartments, or that he had met the victim around the time she was sexually assaulted. Instead, the defense’s theory was that the victim had been assaulted by someone other than Scott. The defense argued that 2  the victim’s memory had been compromised by her heavy drug use at the time of the assault and the police’s suggestive identification procedure a year later and that, as a result, she had misidentified Scott as her assailant. ¶9 The jury returned guilty verdicts on all counts. The trial court merged two of the counts into the others and then imposed concurrent sentences for four counts of conviction. After a division of this court affirmed his convictions,1 Scott filed a timely Crim. P. 35(c) motion in which he argued that his convictions were unconstitutionally obtained due to the prosecution’s failure to turn over exculpatory material to the defense and ineffective assistance of his trial counsel. Following a hearing, the postconviction court denied Scott’s motion in a detailed written order. Scott now appeals. 1 The division remanded the case to the trial court with instructions to merge Scott’s two convictions for aggravated sexual assault on a child and his two convictions for aggravated sexual assault. People v. Scott, (Colo. App. No. 17CA1024, Mar. 12, 2020) (not published pursuant to C.A.R. 35(e)). 3  II. Brady Claim ¶ 10 Scott contends that his convictions must be reversed because the prosecution withheld material, exculpatory evidence in violation of its obligations under Brady v. Maryland, 373 U.S. 83, 87 (1963). We disagree. A. Applicable Law and Standard of Review ¶ 11 A defendant’s constitutional right to due process is violated if the prosecution suppresses “evidence favorable to an accused . . . where the evidence is material either to guilt or to punishment.” Id. Under Crim. P. 16(I)(a)(2), which effectuates Brady’s holding, “[t]he prosecuting attorney shall disclose to the defense any material or information within his or her possession or control which tends to negate the guilt of the accused as to the offense charged or would tend to reduce the punishment therefor.” Crim. P. 16(I)(a)(2); see also People v. Bradley, 25 P.3d 1271, 1276 (Colo. App. 2001) (Crim. P. 16(I)(a)(2) incorporates Brady’s holding). ¶ 12 There are three components to a Brady violation: (1) the prosecution suppressed evidence (2) that is exculpatory or favorable to the defendant and (3) that is material to the case. People v. Bueno, 2013 COA 151, ¶ 28, aff’d, 2018 CO 4. Evidence is material 4  when there is a “reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Bradley, 25 P.3d at 1276 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). “A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” Id. (quoting Bagley, 473 U.S. at 682). ¶ 13 A Brady claim presents a mixed question of law and fact; we review the court’s findings of fact for clear error and its conclusions of law de novo. Bueno, ¶ 20. A trial court clearly errs if its finding is without support in the record. Id. B. Analysis ¶ 14 Scott contends that the prosecution possessed and failed to disclose the following evidence that allegedly undermined the victim’s credibility: • information relating to a juvenile case in which the victim was charged with identity theft;2 • police reports relating to an uncharged case involving a claim that the victim stole a car and a cell phone; 2 This case was dismissed as part of a plea agreement related to the victim’s adjudication for aggravated robbery. 5  • information related to a juvenile case in which, the month following the assault, the victim and several others were charged with committing a series of burglaries, an attempted carjacking, and aggravated robbery;3 and • interviews and reports related to the victim’s aggravated robbery adjudication in which the victim denied being victimized during the time period in which she later said Scott sexually assaulted her. ¶ 15 The postconviction court denied Scott’s Brady claim because it concluded that the evidence described above was not material to 3 The victim pleaded guilty to one count of aggravated robbery in exchange for dismissal of the other counts. 6  the case.4 (The court also made findings on Brady’s first two elements, but we need not consider whether the evidence was suppressed by the prosecution or whether it was exculpatory because we agree with the postconviction court’s finding regarding materiality.) For the following reasons, we agree with the postconviction court’s conclusion. ¶ 16 First, even without the contested evidence, the jury was presented with a large amount of evidence that reflected negatively on the victim’s credibility, including the following. 4 The postconviction court addressed materiality under Brady v. Maryland, 373 U.S. 83, 87 (1963), and prejudice under Strickland v. Washington, 466 U.S. 668, 687-88 (1984), in the same analysis. (The two standards are functionally equivalent. See Strickland, 466 U.S. at 694 (the test for prejudice on an ineffective assistance claim is rooted in the test for materiality of exculpatory information not disclosed to the defense).) Scott argues that the court incorrectly applied the materiality and prejudice standards, placing too high of a burden on the defense. This argument is belied by the court’s order, which repeatedly quoted relevant case law explaining the appropriate legal standards. Cf. People v. Dist. Ct., 808 P.2d 831, 834 (Colo. 1991) (affirming a court’s materiality finding despite that court’s failure to expressly state and apply the materiality standard). And the court’s finding that the maximum amount of impeachment would not have affected the result of the trial shows that the court applied these standards correctly in concluding that there was not a reasonable probability the result of the trial would have been different. 7 • The victim repeatedly ran away from home and used drugs, including methamphetamine. • The victim used methamphetamine the night of the assault and the next day, and she told police that she had been “so high” that she could not remember if she had used other drugs too. • The victim first disclosed the assault to her therapist over a year after it happened, despite having the opportunity to disclose it to her friend who found her crying immediately afterward. • The victim did not want to talk to police about the assault and initially refused to share the identity of her friend or Scott. • The victim misidentified or misremembered where Scott lived and where the assault happened. • The victim did not identify Scott in the first lineup and only did so on a second attempt after being pressured by her mother and a police officer. • After identifying Scott in the lineup, the victim told police that she was only “seven or eight out of ten sure” that it 8  was Scott who assaulted her, and she could not explain why she had given that answer. • The victim pleaded guilty to aggravated robbery and was sentenced to two years in the Department of Youth Corrections. ¶ 17 Thus, jurors heard ample evidence negatively implicating the victim’s credibility — including her drug use, her delayed disclosure of the assault, gaps in her memory, her lack of cooperation with the police, and her criminal history. See Douglas v. Workman, 560 F.3d 1156, 1174 (10th Cir. 2009) (cumulative evidence impacting impeachment may not be sufficient to meet materiality standard); see also People v. Gutierrez, 622 P.2d 547, 559-60 (Colo. 1981) (to warrant a new trial, the defendant must show that the evidence is material and not merely cumulative). ¶ 18 We acknowledge that some of the contested evidence may have contradicted the victim’s testimony at trial. Specifically, the reports related to the identity theft charge may have allowed defense counsel to impeach the victim’s testimony that the police found her with only “needles and stuff” because the reports showed the police also found copies of debit cards and an ID card. And the disclosure 9  of the victim’s aggravated robbery adjudication did not fully reflect the circumstances of the underlying string of alleged offenses that led to her guilty plea. However, these omissions would have been unlikely to make a meaningful difference for the jury considering that the victim claimed to not remember other things at trial and was extensively cross-examined on the inconsistencies in her testimony. See United States v. Cooper, 654 F.3d 1104, 1120 (10th Cir. 2011) (additional impeachment of an already compromised witness is not material unless the evidence provides an entirely new basis for impeachment). ¶ 19 Additionally, in his appellate briefing, Scott points to the victim’s statement that she had not been “victimized” during her time as a runaway as contradicting her trial testimony. While we recognize that, had this statement been disclosed, defense could have presented another angle of attack on the victim’s credibility, we are unpersuaded that it would have meaningfully altered the jury’s view of the victim’s credibility. (Nor does Scott develop any argument on appeal that the disclosure of the victim’s statement would have been sufficient to alter the theory of defense from mistaken identity to some other approach — such as an argument 10  that the victim’s claim of sexual assault was entirely fabricated — that might have proved more successful.) ¶ 20 Second, as the postconviction court pointed out in its order, at least some of the contested evidence would not have been admissible at trial — or perhaps not even discoverable. See People v. Wilson, 2014 COA 114, ¶¶ 34-35 (impeachment under CRE 608 is subject to the CRE 403 balancing test); see also People v. Corson, 2016 CO 33, ¶ 47 (juvenile adjudications are not automatically discoverable). Indeed, “[u]nproven accusations, by themselves, do not raise an inference of improper actions.” People v. Pratt, 759 P.2d 676, 682 (Colo. 1988); see also People v. Ciari, 540 P.2d 1094, 1097 (Colo. 1975) (witnesses may not be impeached with questions concerning arrests). And to the extent the contested evidence would have been admissible — notwithstanding the CRE 403 balancing test — specific instances of prior conduct may not be proved by extrinsic evidence to impeach the credibility of the witness. People v. Cole, 654 P.2d 830 (Colo. 1982); see also CRE 608(b) (witnesses may be examined about specific instances of conduct that are probative of truthfulness, but extrinsic evidence may not be used to prove that conduct). Thus, any value added by 11  the defense’s ability to question the victim about the contested evidence would have been negligible in light of the evidence already admitted. ¶ 21 Third, although the victim’s delay in reporting may have foreclosed the possibility of physical evidence collection, the jury heard testimony that corroborated the victim’s account of events before and after the assault. And the jury also heard testimony from Scott’s ex-girlfriend, pursuant to section 16-10-301, C.R.S. 2026, as proof of identity, that Scott had sexually assaulted her several years earlier. Accordingly, we agree with the postconviction court’s conclusion that “none of the [contested] evidence . . . refuted the sexual assault allegations, changed testimony about what happened immediately before the assault, or changed testimony [about] what happened immediately after it,” all of which supported Scott’s conviction. ¶ 22 Considering the contested evidence as a whole, we agree with the postconviction court that there is no “reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Bagley, 473 U.S. at 682. Therefore, the evidence that the prosecution failed to disclose 12  was not material to the case, and the postconviction court correctly declined to grant Scott a new trial. III. Ineffective Assistance of Counsel ¶ 23 Scott contends that the court erroneously denied his ineffective assistance of counsel claims. Specifically, he argues that his trial counsel performed deficiently (1) by failing to request additional discovery related to the evidence upon which Scott raised his Brady claim and (2) by not consulting and calling an expert on methamphetamine as a witness at trial, and that he was prejudiced by those errors, both individually and cumulatively. We are not persuaded. A. Applicable Law and Standard of Review ¶ 24 A criminal defendant is constitutionally entitled to effective assistance of counsel. Ardolino v. People, 69 P.3d 73, 76 (Colo. 2003). To prevail on an ineffective assistance of counsel claim, a defendant must show that (1) his attorney’s performance was deficient and (2) the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Dunlap v. People, 173 P.3d 1054, 1062 (Colo. 2007). An attorney’s performance is deficient if it falls “below an objective standard of 13  reasonableness.” Strickland, 466 U.S. at 688. To prove prejudice, the defendant must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. ¶ 25 When reviewing a district court’s denial of an ineffective assistance of counsel claim after an evidentiary hearing, we defer to the court’s factual findings if they are supported by the record and we review its legal conclusions de novo. Dunlap, 173 P.3d at 1063; see also Kailey v. Colo. State Dep’t of Corr., 807 P.2d 563, 567 (Colo. 1991) (“In a Crim. P. 35 proceeding, the court is the trier of fact. It is thus the province of the court, as the trier of fact, to determine the credibility of the witnesses and the weight to be given their testimony.”). B. Failure to Request Discovery ¶ 26 Scott argues his trial counsel should have requested additional discovery related to the evidence contested in his Brady claim. The postconviction court agreed that defense counsel’s failure to make such a request amounted to deficient performance but nonetheless concluded that Scott had failed to establish that he was prejudiced. Applying essentially the same standard as the 14  materiality prong of a Brady claim — whether there is a “reasonable probability” that the result of the proceeding would have been different had counsel requested additional discovery related to the victim’s other cases — we agree with the postconviction court that Scott did not establish that he was prejudiced. As we have already discussed in detail in relation to Scott’s Brady claim, the jury already had many reasons to question the victim’s credibility, and in any event it is not clear that all of the evidence in question would have been admissible at trial. Thus, like the postconviction court, we conclude that there is not a reasonable probability that, had Scott’s defense counsel requested the evidence in question, the result of trial would have been different. See Strickland, 466 U.S. at 694; see also People v. Chambers, 900 P.2d 1249, 1252 (Colo. App. 1994) (unless additional investigation would have revealed “substantial evidence which, if introduced, might reasonably have led to a different result,” the failure to conduct such investigation is not prejudicial). C. Failing to Consult Experts ¶ 27 Scott next argues that his trial counsel provided ineffective assistance by failing to consult and call an expert who could have 15  testified as to the likely effects of the victim’s methamphetamine use on her ability to perceive and recall the details of the sexual assault. In his Crim. P. 35(c) petition, Scott maintained that “[a]n expert would have informed jurors about how meth affects short and long- term memory, how it has a much greater effect on adolescent brains than on adult brains, and how it impacts a witness’s ability to perceive, recall, and relate information.” ¶ 28 The postconviction court found that Scott’s argument failed to satisfy either prong of Strickland; we address only the prejudice prong because we conclude that it is dispositive. See People v. Washington, 2014 COA 41, ¶ 20 (“If a court determines that a defendant has failed to prove either prong of the Strickland analysis, it may deny an ineffective assistance claim without addressing the other prong.”). ¶ 29 At the postconviction hearing, Scott presented expert testimony from a psychologist on the effects of methamphetamine. He explained that methamphetamine use by adolescents can lead to “dramatic” adverse effects, including on the “part of the brain that is actually responsible for verbal memory.” He also testified that methamphetamine can impair a user’s memory more than some 16  other substances, particularly when combined with alcohol and marijuana. ¶ 30 On cross-examination, however, the expert agreed that “most laypeople know meth is bad,” that laypeople generally understand that “it alters how you think, how you behave, [and] how you perceive things,” and that it is “likely to affect your memory.” This was consistent with testimony elicited from the prosecution’s expert at trial, who agreed that “[c]onfusion [and] inaccurate traumatic memory would also be affected if the victim were using drugs.” And it was also consistent with the victim’s own testimony, which showed that she was “in a daze” at the time of the assault and that her memory was impaired by her drug use. See People v. Newmiller, 2014 COA 84, ¶ 60 (“[T]rial counsel need not introduce expert testimony on his [or her] client’s behalf if he [or she] is able effectively to cross-examine prosecution witnesses and elicit helpful testimony.” (alterations in original) (citation omitted)). ¶ 31 Thus, even if a defense expert could have provided additional scientific details about the extent of methamphetamine’s effects on adolescents, an ordinary juror would understand, without the help of an expert, that the victim’s methamphetamine use likely affected 17  her memory — and thus her credibility. Because additional testimony about the effects of methamphetamine would have been of minimal benefit, we cannot conclude that Scott was prejudiced by his attorney’s failure to engage an expert and offer evidence on that topic at trial. See Strickland, 466 U.S. at 694. IV. Cumulative Error ¶ 32 Scott contends that even if the alleged errors he has identified on appeal do not warrant relief on their own, their cumulative effect warrants reversal. Even if we assume that the cumulative error doctrine applies to ineffective assistance of counsel claims, we nonetheless reject Scott’s claim of cumulative prejudice. Regardless of any shortcomings in their performance, defense counsel attacked the victim’s credibility and recall at trial — largely on the same general grounds as those described above. And while additional evidence might have allowed for a more thorough examination of the victim’s credibility, we cannot conclude that the failure to present this evidence (even considered cumulatively) deprived Scott of the right to effective assistance of counsel. Thus, we reject this contention. 18  V. Disposition ¶ 33 The district court’s order denying Crim. P. 35(c) relief is affirmed. JUDGE LUM and JUDGE NAVARRO concur. 19