A Durango man convicted in 1995 and initially sentenced to life in prison without parole for the killing of a Southern Ute Indian woman is seeking to have his conviction overturned – again.
Cain was 17 when he and two juvenile co-defendants shot and robbed two young women in Durango, one of whom died. All three young men were tried as adults. Cain was convicted of felony murder, among other charges.
At the time, felony murder carried the penalty of murder in the first degree – an automatic life sentence without parole (it now carries the 16 to 48 year penalty of second-degree murder).
The two other juveniles, Gabriel Rivera and Forest Porter, also were convicted in the double shooting but won appeals, pleaded guilty to second-degree murder and have both since been released from prison.
Cain’s petition to have his conviction overturned, filed late last year, marks the sixth time he has asked a court to reconsider his conviction or sentence.
Only once before has he been successful, in 2016, when his life without parole sentence was reduced to life with the possibility of parole after 40 years. The resentencing was in accordance with a U.S. Supreme Court ruling that year, which prohibited life without parole sentences for offenses committed by juveniles.
Cain will be eligible for parole in 2041.
In the latest attempt to have his conviction overturned, Cain’s attorney argues that the jury instructions failed to properly define the predicate felony offense that turns a murder charge into felony murder. Rivera and Porter won appeals on the same basis in 1998 and 2000 respectively.
Past attorneys did not appeal on that basis, the petition says, arguing that Cain’s previous representation rendered ineffective assistance of council. Past ineffective assistance of council means that Cain’s claims are not time-barred, the petition argues.
In a response filed June 25, District Attorney for the 6th Judicial District Sean Murray argued that not only were the jury instructions proper, but that the petition for a hearing should be denied on the basis that the claim could have been brought up on direct appeal – but are now stale, over 25 years later.
The basic facts of the case are not being disputed by either party.
Late in the night on Jan. 31 or in the early hours of Feb. 1, 1995, one of the three young men shot Sadie Frost, 18, and Shawnda Baker, who was 19, in the back of the head with a .22 caliber handgun. Frost died, but Baker survived. It was Cain who pulled the trigger, prosecutors argued, although the weapon was never recovered.
The shootings occurred as the trio robbed Baker of about $2,500 cash, which was part of a per capita payment from the Southern Ute Indian Tribe, distributed to Baker on her birthday.
The three young men were tried separately. Cain’s trial was moved to Grand Junction because of the amount of attention it received.
He was convicted of felony murder in the first degree, conspiracy to commit murder in the first degree, attempted murder in the first degree and conspiracy to commit aggravated robbery.
Porter and Rivera, who were also found guilty of felony murder, were not convicted of attempted first-degree murder in the shooting of Baker.
Felony murder consists of a murder that occurred in an act of committing another felony; murder in the first degree is an intentional homicide committed after deliberation. In 1995, both carried the same penalty.
Cain’s latest attempt to have the conviction thrown out is based on the argument that the jury was given erroneous instructions for the felony element of the murder charge and the deliberative element of the attempted first-degree murder charge.
“The Court failed to define attempt to commit robbery, and robbery was not defined in a way that was adequately connected to the felony murder charge,” his counsel now argues.
Porter’s and Rivera’s juries were instructed with a near-identical set of instructions, and had their convictions overturned on the basis that those instructions were faulty.
Cain was the only one of the three to be convicted of attempted first-degree murder, although all three were charged.
He argues that outdated jury instructions did not properly describe the mental state that must be proved to obtain such a conviction.
Porter’s and Rivera’s juries used a slightly different set of instructions that were, in essence, more thorough in describing the requisite mental state. Cain’s jury was instructed using language from a 1983 guideline, while Porter’s and Rivera’s juries were given 1993 instructions.
“It is unclear why the Court used the 1993 COLJI instruction version in Porter’s and Rivera’s trials, but used the 1983 COLJI version in Cain’s trial, but it certainly explains the disparate results: Porter and Rivera were acquitted of attempted first degree murder, while Cain was convicted of attempted first degree murder on nearly identical evidence,” the petition argues.
These arguments may be made now, some 29 years after Cain’s conviction, because previous counsel was ineffective by not raising the issues on appeal, the petition says.
“But for the ineffective assistance of prior postconviction and appellate counsel, Mr. Cain’s claims would have been timely raised,” it reads.
Not only were the jury instructions used in Cain’s trial unproblematic, any questions around their appropriateness should have been raised years ago, Murray wrote in a response to Cain’s latest petition.
“The instructions separately defined both ‘robbery’ and ‘attempt’ as those terms were referenced in the felony murder instruction,” Murray wrote. “Consequently, the instructions were not erroneous in the first instance and they certainly cannot support reversal at such a far-removed stage in the proceedings. It is time to accept the jury’s judgment and bring this case to an end.”
Even if the jury instructions were erroneous, Murray argued, there’s no reason for Cain not to have petitioned for a new hearing on that basis in 2016, when he requested a sentence reduction.
“A claim that prior postconviction counsel was not effective does not remain viable in perpetuity,” he wrote. “Nor does it remain viable for seven years.”
If the counsel of Cain’s attorney was ineffective, that issue should have been raised shortly after the trial or petition, Murray argued.
“It puts us in a really difficult position to try to respond to what he’s claiming,” he said in an interview. “How well are these attorneys going to remember what happened in the ’90s? And so this delay – waiting this long – creates a prejudice for us.”
The law firm representing Cain did not return a call with a request for comment.
A judge in Mesa County will decide whether to grant an evidentiary hearing, which would be the first step toward airing these claims.
The case generated significant attention during the boys’ initial trials in the 1990s, and throughout the subsequent appeals.
Cain is now 46 and has been incarcerated his entire adult life. During his time in prison, he became a “general” in an organization known as the “211 Crew.” The white supremacist prison gang was thought to be responsible for the 2013 slaying of state corrections director Tom Clements. Several leaders, including Cain, were transferred to out-of-state facilities after that event.
He is currently being held at the Fremont Correctional Center near Cañon City.
rschafir@durangoherald.com
