Peo v. Healey

• Court: Colorado Court of Appeals
• Decided: August 14, 2025
• Docket: 23CA1584
• Status: Unpublished

Opinion

23CA1584 Peo v Healey 08-14-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1584 Adams County District Court No. 11CR2756 Honorable Patrick H. Pugh, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Dennis Michael Healey,

Defendant-Appellant.

ORDER AFFIRMED

Division VI Opinion by CHIEF JUDGE ROMÁN Yun and Graham*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced August 14, 2025

Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Ainsley Bochniak, Alternate Defense Counsel, 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. 2024. ¶1 Dennis Michael Healey appeals the postconviction court’s

order denying his Crim. P. 35(c) motion after an evidentiary hearing.

We affirm.

I. Background

¶2 According to the evidence at trial, a number of police officers

were involved in an operation to locate and arrest Healey, who had

several active arrest warrants. Officers observed Healey drive into a

Walmart parking lot, where he parked his car. They then pulled an

unmarked van directly behind Healey’s car, blocking it in.1 Officers

jumped out and surrounded Healey’s car. Although the officers

dressed in tactical gear rather than standard police uniforms, their

clothing identified them as police officers. Evidence presented at

trial also indicated that the officers shouted that they were police,

ordered Healey to show his hands, and told him that he was under

arrest.

¶3 Two officers attempted to remove Healey from his car.

However, while the officers were partially inside the car, Healey

accelerated in reverse and crashed into the police van. A struggle

1 There was also a person in the passenger seat of Healey’s car.

1 ensued. Healey was tased twice before officers were able to subdue

and arrest him.

¶4 Officers proceeded to search Healey and his car and recovered

several stolen items, including a backpack, a driver’s license, a

social security card, and credit cards. They also discovered

methamphetamine and a knuckle duster (an illegal weapon) in the

vehicle.

¶5 In addition, an officer checked the vehicle’s license plates and

discovered that they did not belong to the car Healey was driving.

Further investigation revealed that the car’s owner had reported it

stolen approximately one week earlier and that several parts of the

exterior had been painted a different color.

¶6 Based on the foregoing, the prosecution brought numerous

charges against Healey, and the case proceeded to a jury trial. On

the charges involving his aggressive acts toward the police officers,

Healey conceded that he had used force but contended that he was

unaware that the people surrounding his car were police officers

and that he had acted in self-defense.

¶7 The jury found Healey guilty on four counts of first degree

assault involving threatening a peace officer with a weapon, two

2 counts of theft by receiving, possession of methamphetamine,

criminal possession of a financial device, possession of an illegal

weapon, criminal mischief, resisting arrest, two counts of

obstructing a peace officer, and eight habitual criminal counts. The

court sentenced him to a total of 256 years in the custody of the

Department of Corrections.

¶8 Healey’s conviction was affirmed on direct appeal. People v.

Healey, (Colo. App. No. 13CA0425, Feb. 19, 2015) (not published

pursuant to C.A.R. 35(f)). He filed a timely pro se Crim. P. 35(c)

motion, which was later supplemented by court-appointed counsel.

Following an evidentiary hearing, the postconviction court denied

the motion.

¶9 Healey contends that the postconviction court erred by

denying his ineffective assistance of counsel claim, specifically trial

counsel’s failure to (1) present expert testimony regarding flash-

bang devices and (2) request jury instructions on lesser

nonincluded offenses. We reject these contentions.

II. Standard of Review and Applicable Law

¶ 10 A postconviction court’s ruling on a Rule 35(c) motion after a

hearing presents a mixed question of fact and law. People v. Sharp,

3 2019 COA 133, ¶ 12. “We defer to the court’s findings of fact if they

have record support, but we review any legal conclusions de novo.”

Id. The postconviction court determines the weight and credibility

to be given to the testimony of witnesses in a Crim. P. 35(c) hearing.

People v. Hardin, 2016 COA 175, ¶ 39.

¶ 11 When evaluating claims of ineffective assistance of trial

counsel, we apply the two-prong test set forth in Strickland v.

Washington, 466 U.S. 668 (1984). Ardolino v. People, 69 P.3d 73,

76 (Colo. 2003); People v. Long, 126 P.3d 284, 286 (Colo. App.

2005). To prevail on such a claim, a defendant must show that

(1) counsel’s performance was deficient, and (2) the deficient

performance prejudiced him. Strickland, 466 U.S. at 686.

¶ 12 To establish deficient performance, a defendant must prove

that counsel’s representation “fell below an objective standard of

reasonableness.” Id. at 688. “[A] court must indulge a strong

presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance; that is, the defendant must

overcome the presumption that, under the circumstances, the

challenged action ‘might be considered sound trial strategy.’” Id. at

689 (citation omitted).

4 ¶ 13 To establish prejudice, a defendant must show that there is a

reasonable probability that, absent the errors, “the result of the

proceeding would have been different.” Id. at 694. A postconviction

court may reject an ineffective assistance of counsel claim if the

defendant fails to demonstrate either deficient performance or

prejudice. People v. Aguilar, 2012 COA 181, ¶ 9.2

III. Failure to Call Flash-Bang Device Expert Witness

¶ 14 Healey contends that the postconviction court erred by

denying his ineffective assistance of trial counsel claim concerning

2 Healey contends that the postconviction court erred by requiring

him to show that trial counsel was ineffective by a preponderance of the evidence. Though the postconviction court initially stated that both prongs in Strickland v. Washington, 455 U.S. 668 (1984), had to be proved by a preponderance of the evidence, the court thereafter articulated and applied the correct burden of proof. Specifically, the court stated that to prove prejudice a defendant must show that there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. The court then found that Healey failed to demonstrate “a reasonable probability that the testimony of a flash- bang expert would undermine the evidence in this case sufficient[ly] to change the outcome.” Thus, the court applied the correct burden of proof when analyzing the prejudice prong of Healey’s ineffective assistance claim regarding counsel’s failure to call a flash-bang expert. See People v. Washington, 2014 COA 41, ¶ 29. Moreover, as noted, we review de novo the court’s legal conclusions regarding prejudice.

5 counsel’s failure to present expert testimony regarding flash-bang

devices. We discern no error.

¶ 15 Healey presented an expert in “less lethal devices,” Rick

Wyant, who Healey argued could have testified at trial about the

effects of flash-bang devices. Wyant testified that a flash-bang

device activates rapidly and creates a distraction by emitting light,

heat, pressure, and sound. He stated that “[t]he intent is to

overwhelm the senses [of a target] for a brief period of time” so that

people panic and make bad decisions or are in a state of shock,

either of which makes an arrest easier. He also testified that flash-

bang devices emit a “really loud noise” and gave specific decibel

levels, which are under the threshold for causing permanent

hearing damage. He testified that the amount of light a flash-bang

device emits is equivalent to a million candles, which is bright

enough to force someone’s eyes to adjust to the sudden change in

light. And he discussed the pressure caused by a flash-bang device

explosion. He testified that flash-bang devices affect individuals

differently and that he could not say how the flash-bang device

affected the occupants of the car in this case. Finally, he testified

that there are very few experts in nonlethal devices and that this

6 was the first time he had been recognized as an expert in flash-bang

devices in a courtroom.

¶ 16 The postconviction court found that Healey’s trial counsel had

previously represented him in other felony cases, including a trial in

which the jury acquitted Healey. The court found that counsel did

not consult with or present an expert in flash-bang devices and had

not encountered anyone with such expertise. The court noted that

Wyant similarly stated that there were few experts in nonlethal

devices.

¶ 17 The postconviction court found that trial counsel’s

representation was not deficient because he was able to present

substantially similar evidence through cross-examination of the

police officers. The court also found that Healey was not prejudiced

for this same reason, particularly since no expert could have

testified about the effect of the flash-bang device on Healey.

¶ 18 At trial, defense counsel elicited testimony from a police officer

that deploying a flash-bang device will distract, confuse, and

disorient people inside of a car. He also elicited testimony from

another police officer that flash-bang devices are designed to

disorient a target “so they don’t see the police are coming from a

7 different side,” and, in this case, there was a “very loud boom and

bang” that disoriented the people inside the car. Finally, an officer

testified that the device made a “very loud boom noise, very loud

bang, [a]nd it also emit[ted] a very bright light.”

¶ 19 Based on this evidence and testimony, we agree with the

postconviction court that Healey failed to demonstrate deficient

performance because counsel effectively cross-examined the officers

about flash-bang devices and elicited similar evidence to what a

flash-bang expert would have provided. 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).

¶ 20 Moreover, based on this record, we agree with the

postconviction court that Healey failed to demonstrate a reasonable

probability that the result of the proceeding would have been

different if a flash-bang expert testified because counsel thoroughly

cross-examined the officers about flash-bang devices, and no expert

could have testified about how the flash-bang device affected Healey

8 or the passenger. Therefore, the postconviction court did not err by

denying this claim.

IV. Failure to Request Instruction on Lesser Nonincluded Offenses

¶ 21 Healey contends that the postconviction court erred by

denying his ineffective assistance of trial counsel claim concerning

counsel’s failure to request jury instructions on the lesser

nonincluded offenses of reckless endangerment, misdemeanor

menacing, third degree assault, and resisting arrest.3 Again, we

discern no error.

¶ 22 At the postconviction hearing, trial counsel testified that he

did not recall whether he had requested lesser offense jury

instructions. He testified that while he generally believed that

requesting such instructions could be a good strategy depending on

3 We assume, without deciding, that at the time of Healey’s trial,

these were lesser nonincluded offenses for which Healey’s counsel could have requested jury instructions. Healey contended that trial counsel was deficient for failing to request instructions for additional lesser offenses in his postconviction motion and at the evidentiary hearing but does not reassert his argument with respect to those other offenses on appeal; thus, he has abandoned that part of his claim. See People v. Osorio, 170 P.3d 796, 801 (Colo. App. 2007).

9 the circumstances of the case, he probably would not have

submitted them in this case due to the habitual counts.

¶ 23 With respect to the lesser nonincluded offense of resisting

arrest, he testified that he did not know why he did not make that

request because securing six misdemeanor convictions (one per

officer) would have been an excellent outcome.

¶ 24 The postconviction court found that though trial counsel

testified that this case might have been suitable for considering

lesser offenses, he was not deficient in his performance because he

strategically aimed for a full acquittal of the charges. The court

found that trial counsel’s notes provided the most compelling

evidence of this strategy, noting that Healey rejected a plea offer,

insisted that he would not accept more than a ten-year sentence,

and later stated that he would not plead guilty because he wanted

to bring the matter to public attention. The court also found that

trial counsel did not concede at trial that Healey had committed any

offense but rather argued that Healey had no intent to commit any

offense against the officers and instead acted in self-defense. The

court found that it was a strategic decision not to request

instructions on lesser offenses, as doing so risked a compromise

10 verdict, with the jury convicting Healey of a lesser offense rather

than acquitting him outright.

¶ 25 The record supports the postconviction court’s findings

regarding trial counsel’s notes and Healey’s trial strategy. Based on

this evidence, we agree with the postconviction court that Healey

failed to demonstrate deficient performance because counsel

pursued an all-or-nothing strategy at trial and declined to request

lesser nonincluded offenses that could have increased the likelihood

of conviction on those offenses rather than achieving an outright

acquittal. See Newmiller, ¶ 34 (concluding that counsel’s failure to

request an instruction on a lesser nonincluded offense could have

been a sound trial strategy because submitting a lesser offense to

the jury risked conviction on that offense rather than outright

acquittal and additionally risked conviction on both the charged

offense and lesser nonincluded offenses). Moreover, the habitual

charges Healey faced further weighed against pleading lesser

offenses. Thus, the postconviction court did not err by denying this

claim.

V. Disposition

¶ 26 The order is affirmed.

11 JUDGE YUN and JUDGE GRAHAM concur.