Background
Billy Joe Page was convicted of attempted first-degree murder and first-degree assault after two runners were shot near Grand Junction in 1992. The prosecution relied on eyewitness identifications, testimony that Page confessed, and evidence that cartridge casings from a place where Page had practiced shooting were fired by the same gun as casings found at the crime scene. Page denied confessing and maintained that he was home during the shooting. The victims had initially been uncertain about identifying him, and their description of the shooter’s red motorcycle differed from Page’s blue motorcycle.
After Colorado substantially broadened its postconviction DNA-testing statute in 2023, Page petitioned to test crime-scene cartridge casings, a drink can, a food wrapper, and latent-fingerprint lifts. He alleged that favorable testing would exclude him and identify the same third party across the items, potentially revealing a viable alternate suspect. The district court presumed favorable results but denied the petition without a hearing, reasoning that neither Page’s exclusion nor another person’s DNA would create a reasonable probability that Page did not commit the shooting.
The Court’s Holding
The Court of Appeals held that a postconviction court may deny a DNA-testing petition without a hearing only when the allegations are bare and conclusory, the allegations would not establish entitlement to testing even if true, or the existing record directly refutes the claims. At this preliminary stage, the court must assume the requested testing will produce the result most favorable to the petitioner among the possible results. If the prosecution objects and the petition makes a prima facie showing, the court must hold a hearing.
Applying that standard, the division held that Page adequately alleged a reasonable probability that he would not have been convicted if his posited favorable DNA results had been available during the original prosecution. The district court improperly focused on whether those results would show that Page did not fire the weapon—an actual-innocence inquiry that the amended statute no longer requires. The division also held that a summary denial is reviewed de novo because the postconviction court holds no evidentiary hearing and therefore makes no factual findings. It reversed and remanded for a hearing, while rejecting the prosecution’s alternative arguments that the requested items were not biological evidence and that laches barred the petition.
Key Takeaways
- A counseled postconviction DNA-testing petition opposed by the prosecution must receive a hearing if its factual allegations, taken as true, make a prima facie showing under the statute.
- At the pleading stage, courts must assume results favorable to the petitioner, including reasonably posited results identifying the same alternate contributor on multiple items, unless the record forecloses those possibilities.
- The amended statute asks whether favorable DNA results create a reasonable probability that the petitioner would not have been convicted, not whether they prove actual innocence or would necessarily secure a new trial or acquittal.
Why It Matters
This first published Colorado appellate decision addressing hearing entitlement under the amended statute establishes a defendant-favorable framework modeled on hearings under Crim. P. 35(c). It limits courts’ ability to resolve disputed factual questions or discount reasonably alleged favorable testing scenarios through summary denial.
The decision also clarifies that evidence containing a testable quantity of DNA may qualify as biological evidence, including items potentially bearing touch DNA, and that a petition filed shortly after the more favorable 2023 amendments took effect was not barred by decades of delay following conviction.