The man convicted of raping and murdering University of Colorado Boulder student Susannah Chase in 1997 has filed yet another appeal in his case.
Diego Alcalde, 50, was found guilty by a Boulder County jury in 2009 of first-degree murder, first-degree sexual assault and second-degree kidnapping and was sentenced to life in prison without the possibility of parole.
In December 1997, Chase was found raped and badly beaten in an alley near her home in Boulder and died later that day from her injuries. Her murder went unsolved for 12 years until DNA from semen found on her body matched a sample from Alcalde that had been entered into a national database.
Alcalde, who is serving his sentence at Sterling Correctional Facility, had previously appealed his case on the grounds that his Miranda rights were violated and that statements made during the trial by prosecutors and the judge should have resulted in a mistrial.
He also argued the judge was wrong in admitting statements Alcalde made shortly after being taken into custody by Boulder police while not admitting testimony Alcalde’s attorneys said would help show Alcalde had consensual sex with the victim.
The Colorado Court of Appeals denied that appeal in 2013.
But now Alcalde has filed another appeal, this time saying his trial attorney violated his rights by conceding during trial that Alcalde had consensual sex with Chase before she was assaulted.
In his appeal, Alcalde said that went against his assertion that he was not in Boulder at the time and did not know the victim, therefore taking away his ability to testify in his own defense to his account of events.
“Defense counsel did not, in the literal sense, deny Mr. Alcalde his right to take the stand and testify on his own behalf, rather defense counsel’s strategy severely limited his testimony by directly contradicting his account,” the appeal read. “Because of the consensual sex theory, Mr. Alcalde did not menaingfully retain his constitutional right to testify in accord with his account of events.”
However, in a response, Boulder Deputy District Attorney Adam Kendall wrote that Alcalde did not specify in the appeal that he actually disagreed with his defense attorney’s strategy at the time or that he was advised not to testify. He also noted it was possible a jury would have reached the same verdict regardless.
“The Sixth Amednment guarantees reasonable competence of counsel, not perfect advocacy judged with the benefit of hindsight,” Kendall wrote.
Boulder District Judge Judith LaBuda scheduled the matter for a hearing on Oct. 28 to delve into that particular issue.
“The court grants an evidentiary hearing in this case as it cannot determine from the record the extent to which (Alcalde) stated his desires to trial counsel, if at all,” LaBuda wrote. “The court requires an evidentiary hearing to determine if defendant asserted his position to trial counsel, if so at what phases of the proceeding and how vociferously, whether trial counsel failed to raise the issue to the court, whether trial counsel failed to yield to defendant if he had indeed informed them that he wished to testify contrary to trial counsel’s strategy, whether defendant concurred with trial counsel’s strategy, and any other evidence that would assist the court in determining whether defendant’s claim is meritorious.”
Boulder County District Attorney Michael Dougherty issued a statement on the appeal.
“In serious cases, such as this murder case, the filing of this type of motion is fairly common,” he said in the statement. “Our office will work hard to ensure that the conviction is upheld.”