23CA2108 Peo v Snider 08-07-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA2108 Rio Blanco County District Court No. 09CR56 Honorable Denise K. Lynch, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Jerry D. Snider,
Defendant-Appellant.
ORDER AFFIRMED
Division V Opinion by JUDGE GROVE Welling and Johnson, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced August 7, 2025
Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Erin Wigglesworth, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant ¶1 Jerry D. Snider appeals the postconviction court’s order
denying his petition for postconviction relief without a hearing. We
affirm.
I. Background
¶2 A jury found Snider guilty of one count each of first degree
murder and aggravated robbery. The convictions were based on
evidence that, sometime between the evening of July 2 and the
morning of July 3, 2009, Snider struck his sleeping father in the
head with a hatchet, dragged him to the floor, struck him several
more times, and took his wallet. People v. Snider, slip op. at 1
(Colo. App. No. 11CA2579, Apr. 21, 2016) (not published pursuant
to C.A.R. 35(e)) (Snider I). Snider fled the scene in Rio Blanco
County but turned himself in at the Clear Creek County Sherriff’s
Office later in the day. Id. Thereafter, he was transferred to Denver
Health Medical Center for mental health care, and later, to the
Colorado Mental Health Institute at Pueblo (CMHIP) for evaluation
of his competency, sanity, and mental condition.
¶3 Snider entered a plea of not guilty by reason of insanity
(NGRI). At trial, his attorneys advanced the theory that, at the time
he killed his father, Snider “was experiencing the psychotic
1 symptoms of paranoid schizophrenia to the degree that he could not
distinguish moral right from wrong.” Rather, his “paranoid
schizophrenic delusions and hallucinations made him believe that
his father was part of a plot to kill” him such that it seemed he was
in imminent danger of being killed by another and had to use
deadly force to defend himself.
¶4 After the jury’s verdict, the trial court adjudicated Snider an
habitual criminal. For the first degree murder count, the court
sentenced him to life in prison without the possibility of parole.
And for the aggravated robbery count, the court imposed a
consecutive forty-eight-year prison sentence. Snider appealed his
convictions and sentence, and a division of this court affirmed. Id.
The appellate mandate was issued on June 7, 2017.
¶5 Five years later, Snider filed a pro se postconviction motion
asserting claims under both Crim. P. 35(a) and (c). Appointed
counsel then filed a supplement asserting that (1) Snider’s
aggravated robbery sentence was not authorized by law and raised
an inference of gross disproportionality; and (2) Snider’s trial
attorneys provided ineffective assistance. In particular, the
supplement alleged that counsel performed deficiently by:
2 1. conceding that Snider’s mental condition did not prevent
him from forming the requisite culpable mental states
because counsel called Dr. Karen Fukutaki, who, in
Snider’s view, was the only expert who testified that he
could form such a mental state;
2. failing to properly endorse Dr. Lennart Abel as an expert,
thus precluding the defense from asking Dr. Abel
whether Snider was able to form the culpable mental
state for first degree murder;
3. failing to ask any expert for their opinion regarding
Snider’s ability to form the culpable mental state for
aggravated robbery and generally “disregard[ing]” the
aggravated robbery charge;
4. failing to investigate and present evidence in support of
an involuntary toxication defense based on medications
Snider was prescribed and took as directed just before
the crimes occurred;
5. failing to call Dr. Ethan Swift, the Denver Health doctor
who evaluated Snider’s mental health in the days
immediately following his arrest; and
3 6. failing to effectively argue the issue of “settled insanity” in
support of an instruction on how the presence of prior
drug use may not in all circumstances deprive a
defendant of an insanity defense.
¶6 After receiving the prosecution’s response, the postconviction
court denied the motion in a written order. The court rejected
Snider’s Crim. P. 35(a) claim, concluding that the aggravated
robbery sentence was lawful. As to Snider’s Crim. P. 35(c) claims
related to aggravated robbery, the court found that (1) the claims
were untimely, and he had failed to demonstrate justifiable excuse
or excusable neglect for his late filing; and (2) the proportionality
claim was raised and resolved in his direct appeal.1
¶7 The court then rejected Snider’s claims of ineffective
assistance of counsel related to his first degree murder conviction.
The court concluded that counsel did not perform deficiently by
failing to make a more effective argument for an instruction on
“settled insanity” because settled insanity has been rejected as a
1 In his reply brief, Snider concedes that his request for a second
review of the proportionality of his aggravated robbery sentence has been foreclosed by the Colorado Supreme Court’s recent opinion in McDonald v. People, 2024 CO 75.
4 defense in Colorado. As to the remaining ineffective assistance
claims, the court determined that all of the alleged deficiencies were
strategic decisions on the part of counsel. In the alternative, the
court concluded that Snider was not prejudiced by any of counsel’s
alleged deficiencies because the evidence of his guilt was
overwhelming.
II. Crim. P. 35(a)
¶8 We first reject Snider’s claim that his aggravated robbery
sentence is illegal.
¶9 A sentence is illegal if it is inconsistent with the statutory
sentencing scheme outlined by the legislature. People v. Wenzinger,
155 P.3d 415, 418 (Colo. App. 2006). Such a sentence may be
corrected at any time. Crim. P. 35(a). The legality of a sentence is a
question of law that we review de novo. People v. Bassford, 2014
COA 15, ¶ 20.
¶ 10 Snider asserts that his forty-eight-year aggravated robbery
sentence does not comply with statutory requirements because the
sentencing court erroneously found that “the habitual sentencing
requirements preempted the requirement to sentence [him] as
mandated by [section] 18-4-302(4),” C.R.S. 2024.
5 ¶ 11 Section 18-4-302(4) states that a defendant convicted of
aggravated robbery pursuant to section 18-4-302(1)(b), “shall” be
sentenced “in accordance with the provisions of section 18-1.3-
406,” C.R.S. 2024 (the crime of violence statute). The crime of
violence statute requires any person convicted of a crime of violence
to be sentenced to a term of incarceration of at least the midpoint
in, but not more than twice the maximum of, the presumptive
range, as modified for an extraordinary risk crime. § 18-1.3-
406(1)(a). Thus, a conviction under subsection (1)(b) of the
aggravated robbery statute normally requires a sentence of ten to
thirty-two years because aggravated robbery is a class 3 felony
extraordinary risk crime with a modified presumptive range of four
to sixteen years. See §§ 18-4-302(3), 18-1.3-401(10)(a), (b)(IX),
C.R.S. 2024; see also § 18-1.3-401(1)(a)(V)(A), C.R.S. 2024.
¶ 12 However, when, as here, “[a] defendant is also charged and
adjudged an habitual criminal, the enhanced sentencing portion of
[the crime of violence] statute is preempted by the enhanced
sentencing provisions of the habitual criminal statute.” People v.
Pena, 794 P.2d 1070, 1071 (Colo. App. 1990), overruled on other
grounds by Robles v. People, 811 P.2d 804 (Colo. 1991); accord
6 People v. Chavez, 2020 COA 80M, ¶¶ 11-12. Thus, in Snider’s case,
the trial court was required to impose a sentence of three times the
maximum in the modified presumptive range — namely, forty-eight
years. See § 18-1.3-801(1.5), C.R.S. 2009; see also People v. Hoefer,
961 P.2d 563, 568 (Colo. App. 1998) (a presumptive sentencing
range must be modified for enumerated extraordinary risk crimes,
for purposes of subsequently applying a habitual criminal sentence
multiplier).
¶ 13 Accordingly, Snider’s aggravated robbery sentence is
authorized by law, and the postconviction court did not err in so
concluding.2
III. Crim. P. 35(c)
¶ 14 A trial court may deny a Crim. P. 35(c) motion without
conducting an evidentiary hearing where the motion, the files, and
the record clearly establish that the defendant is not entitled to
relief. Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003). Thus, a
2 Snider’s postconviction motion also challenged the consecutive
nature of his sentences. He abandoned this claim on appeal and, therefore, we do not address it. People v. Rodriguez, 914 P.2d 230, 249 (Colo. 1996) (concluding that a defendant’s failure to reassert on appeal all of the claims on which the postconviction court ruled constitutes a conscious relinquishment of those claims).
7 postconviction court may deny a Crim. P. 35(c) motion without a
hearing if (1) the allegations are bare, conclusory, vague, or lacking
in detail; (2) the allegations, even if true, do not warrant relief; or
(3) the record refutes the claims. See Crim. P. 35(c)(3)(IV), (V);
People v. Duran, 2015 COA 141, ¶ 9.3
¶ 15 Snider contends that the postconviction court erred by
denying his Crim. P. 35(c) claims without a hearing. Reviewing that
decision de novo, we disagree. See People v. Cali, 2020 CO 20,
¶ 14.
A. Justifiable Excuse/Excusable Neglect
¶ 16 In his motion, Snider conceded that, as to his class 3 felony
aggravated robbery conviction, his Crim. P. 35(c) claims were filed
outside of the relevant three-year time limitation set forth in section
16-5-402(1), C.R.S. 2024. Pursuant to section 16-5-402(2)(d),
3 Snider appears to argue that the postconviction court could not
consider anything except “the pleadings” in denying relief under Crim. P. 35(c)(3)(V). Because, in our view, this argument was not raised until his reply brief, we need not consider it. In any event, even under Crim. P. 35(c)(3)(V), a court may deny a Rule 35(c) motion without a hearing based on its review of the motion, files, record, and pleadings. See People v. Chipman, 2015 COA 142, ¶¶ 21, 25 (stating this standard for summary denial of counsel’s supplemental Crim. P. 35(c) motion).
8 however, he argued that he should be excused from the time bar
because his mental health issues impacted his ability to timely file.
Applying the factors set forth by our supreme court for determining
justifiable excuse or excusable neglect, People v. Wiedemer, 852
P.2d 424, 440-42 (Colo. 1993), the postconviction court disagreed.
¶ 17 On appeal, Snider argues that the postconviction court erred
by failing to hold a hearing on his allegations of justifiable excuse or
excusable neglect. In his view, the court applied an erroneous legal
standard by noting that he did not file anything in support of the
allegations.
¶ 18 True, to qualify for a hearing, a defendant need not provide
evidentiary support for a claim of justifiable excuse or excusable
neglect. People v. Chavez-Torres, 2019 CO 59, ¶ 17. Rather, he
need only allege facts that, if true, would constitute justifiable
excuse or excusable neglect under section 16-5-402(2)(d). Chavez-
Torres, ¶ 16. Whether a defendant did so is a question of law that
we review de novo. Id. at ¶ 11. We conclude that Snider did not.
¶ 19 Snider claimed that:
(1) circumstances or outside influences prevented a timely
challenge to his aggravated robbery conviction because
9 he had only “recently” begun taking additional
medication, which helped him to comprehend his
condition and understand his legal needs;
(2) until his mental health was addressed, he had no reason
to believe there were means (other than his direct appeal)
to question the constitutionality of his conviction, or that
his aggravated robbery conviction needed different
treatment than his first degree murder conviction;
(3) while suffering from an untreated mental illness, he was
not able to comprehend that his convictions might be
constitutionally infirm;
(4) there were no other means of challenging his convictions;
and
(5) although a significant amount of time had passed since
his conviction, “the records are complete and the amount
of time should have little impact on the People’s ability to
defend the challenge.”
¶ 20 The postconviction court found that Snider’s assertion that his
mental health prevented him from timely filing a postconviction
motion related to his aggravated robbery conviction was “bald and
10 conclusionary.” It further found that the court files showed that
Snider was of sufficiently sound mind to file a “well written pro se
motion for reconsideration of sentence” in 2018 and a pro se motion
for transcripts in 2019. In the latter motion, Snider asserted his
belief that “grievous errors occurred during the penalty phase of
[his] trial,” and said, “Needless to say, these transcripts are
essential for accuracy in filing post-conviction remedies.” Both of
these pleadings were filed within three years of the date that
Snider’s aggravated robbery conviction became final and contradict
his claim that his mental health prevented him from timely
investigating and pursuing postconviction relief. In any event, even
if there were periods where Snider’s mental health suffered, he fails
to account for why he was unable to file his Crim. P. 35(c) claims
during the periods he had a grasp on postconviction remedies and
the need to do so. Wiedemer, 852 P.2d at 441 (a defendant claiming
justifiable excuse or excusable neglect must account for the entire
period of his delay).
¶ 21 Accordingly, we perceive no error in the postconviction court’s
conclusion that Snider failed to adequately allege justifiable excuse
11 or excusable neglect for his failure to timely file Rule 35(c) claims
related to his aggravated robbery conviction.
B. First Degree Murder Claims
¶ 22 There is no time limit for a defendant to collaterally attack a
class 1 felony conviction under Crim. P. 35(c). § 16-5-402(1).
Accordingly, after setting forth the applicable law and addressing
one preliminary matter related to the strategic decisions of counsel,
we address Snider’s Rule 35(c) claims insofar as they relate to his
first degree murder conviction.
1. The Strickland Standard
¶ 23 Defendants have a Sixth Amendment right to the reasonably
effective assistance of trial counsel. Strickland v. Washington, 466
U.S. 668, 687 (1984). “[T]he benchmark for judging any claim of
ineffectiveness must be whether counsel’s conduct so undermined
the proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result.” Ardolino, 69
P.3d at 76. Thus, a defendant must show that (1) trial counsel’s
performance was deficient; and (2) counsel’s deficient performance
prejudiced the defense. Strickland, 466 U.S. at 687.
12 ¶ 24 To establish deficient performance, a defendant must show
that, “in light of all the circumstances, the identified acts or
omissions [of counsel] were outside the wide range of professionally
competent assistance.” Id. at 690. To establish prejudice, a
defendant must demonstrate a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would
have been different. Id. at 694. Because a defendant must show
both deficient performance and prejudice, a court may deny
requests for postconviction relief on the basis of either Strickland
prong. People v. Chipman, 2015 COA 142, ¶ 32.
2. The Postconviction Court’s Strategy Determination
¶ 25 With the exception of Snider’s “settled insanity” claim, the
postconviction court relied solely on Strickland’s performance prong
to reject Snider’s claims of deficient performance, concluding that
each of the acts and omissions that Snider challenged was the
result of a reasonable strategic decision by the defense. We
recognize that a challenged action of counsel “might be considered
sound trial strategy under the circumstances of a particular case,”
Ardolino, 69 P.3d at 76, and that a court considering a claim of
ineffective assistance “must indulge a strong presumption that
13 counsel’s conduct falls within the wide range of reasonable
professional assistance,” People v. Newmiller, 2014 COA 84, ¶ 16.
Here, however, the motion, files, and record shed virtually no light
on the extent to which the identified acts and omissions of counsel
were strategic choices made after reasonable investigation. Id. at
¶ 45. Nor did the postconviction court analyze or explain why it
concluded that the alleged errors and omissions of counsel were the
result of defense counsel’s strategic plan for the case.
¶ 26 When it comes to determining issues of strategy, the extent of
counsel’s understanding of relevant issues is “peculiarly within
[counsel’s] personal knowledge.” Ardolino, 69 P.3d at 78-79.
Therefore, “[w]ith regard to strategic choices,” trial counsel’s
credibility “can be particularly important and is a matter to be
resolved by the postconviction court.” Id. at 79. And “a reviewing
court must examine counsel’s reasons supporting” alleged strategy
decisions. Dunlap v. People, 173 P.3d 1054, 1075 (Colo. 2007).
Except for the rare situation in which the trial record reveals such
information, a postconviction hearing is the most effective way to
accomplish this task. Here, however, the record reveals nothing
about trial counsel’s subjective choices or decision making. Thus,
14 it was error for the court to reject Snider’s deficient performance
claims on the basis of strategy without examining the reasons
underlying counsel’s actions.
¶ 27 Nevertheless, examining each of Snider’s ineffective assistance
claims independent of a strategy determination, we conclude that
they all fail. See People v. Gutierrez-Vite, 2014 COA 159, ¶ 11 (“We
may affirm a trial court’s ruling on grounds different than those
employed by the court, so long as the record supports them.”).
3. Settled Insanity Jury Instruction
¶ 28 At trial, some evidence suggested that Snider may have
suffered from “settled insanity,” which refers to insanity “arising
from the long-term use of intoxicants but separate from immediate
intoxication.” Bieber v. People, 856 P.2d 811, 815 (Colo. 1993).
However, in Bieber, the supreme court rejected the doctrine of
settled insanity as an affirmative defense. Id. at 818 (“[W]e
determine that the ‘settled insanity’ doctrine conflicts with our
present statutory scheme regarding insanity and self-induced
intoxication.”).
¶ 29 Trial counsel attempted to persuade the trial court that the
supreme court had not decided whether, in evaluating an NGRI
15 defense, a jury may consider evidence of settled insanity in
combination with evidence of insanity not attributable to a
defendant’s long-term use of drugs and alcohol. Counsel tendered
an instruction (the combined insanity instruction) in support of this
argument:
In evaluating the affirmative defense of legal insanity, you are allowed to consider evidence of insanity attributable to the defendant’s prolonged, voluntary use of drugs and alcohol in combination with evidence of insanity attributable to a mental disease or defect not attributable to the defendant’s prolonged, voluntary use of drugs and alcohol.
¶ 30 The trial court denied the instruction, and the Snider I division
concluded that the court did not err in doing so because it “was not
an accurate statement of the law in Colorado.” Snider I, slip op. at
13-14.
¶ 31 In the supplement to Snider’s pro se motion, postconviction
counsel argued that trial counsel failed to “effectively argue” why
“the jury should have been given further instruction on how the
presence of prior drug use may not in all circumstances deprive a
defendant of a finding of insanity.” In support of this argument,
postconviction counsel pointed out that “[m]ost jurisdictions
16 disagree with Colorado and find that settled insanity is a defense,”
and argued that the jury was not permitted to have “the full law” on
the issue.
¶ 32 Even if counsel had offered a more robust argument in favor of
the settled insanity instruction, the holding in Bieber, which flatly
rejected settled insanity as an affirmative defense, was — and
remains — dispositive. Thus, we cannot say either that counsel
performed deficiently by failing to more “effectively argue” the
settled insanity issue, People v. Houser, 2020 COA 128, ¶ 37 (“[A]n
attorney may perform effectively by choosing ‘to maneuver within
the existing law, declining to present untested or rejected legal
theories.’”) (citation omitted), or, given that the trial court was
bound by Bieber, that a different or more developed argument
would have resulted in the court providing the requested
instruction to the jury.
4. Failure to Call Dr. Swift
¶ 33 After Snider was transferred to Denver Health Medical Center,
Dr. Swift, a resident in psychiatry, examined him and could not
rule out diagnoses of schizophrenia, schizoaffective disorder,
depression, and several other primary psychiatric disorders.
17 ¶ 34 According to Snider’s supplement, at his first trial (which
ended in a mistrial), Dr. Kelly O’Brien, Snider’s admitting physician,
was permitted to testify about the information obtained by
Dr. Swift, including observations that Snider was in a fetal position,
mumbled, appeared suspicious and guarded, had difficulty staying
on track, trailed off in thoughts, was illogical, exhibited poor
judgment, and had symptoms consistent with acute psychosis.
Dr. Swift further found that the symptoms and medication that had
been prescribed to Snider were consistent with thought disorders,
particularly schizophrenia. Consequently, Dr. Swift made a
provisional diagnosis of psychosis not otherwise specified.
¶ 35 “The jury that convicted Snider [at his second trial],” the
supplement asserted, “did not hear any of this information” because
“the court deemed [Dr. O’Brien’s] testimony to be hearsay” and
“advised defense counsel that if they wanted the information in
evidence, they could call Dr. Swift.” The supplement further
claimed that defense counsel performed deficiently by failing to call
Dr. Swift, and that deficiency prejudiced Snider because “[t]he jury
was not able to hear relevant information concerning his mental
18 health from a qualified psychiatrist at an important time,” namely,
in the days just after the homicide.
¶ 36 We agree with the People that the record refutes this claim. At
Snider’s second trial, Dr. O’Brien testified that Dr. Swift conducted
a psychiatric consult on Snider. Dr. O’Brien testified that Dr. Swift
noted that, when he encountered Snider, he was under a blanket in
a fetal position; “appear[ed] psychotic”; mumbled and often trailed
off at the end of sentences; was “guarded, paranoid, and having
hallucinations”; heard voices, including voices saying that they were
trying to kill him; and heard people laughing at him. Further,
Dr. Fukutaki, the defense-retained expert psychiatrist, testified that
Dr. Swift had diagnosed Snider with “psychotic disorder, not
otherwise specified.” Accordingly, because the jury indeed heard
the sum and substance of the evidence Snider claims they did not,
and because Snider does not specify any other testimony that Dr.
Swift would have offered had he been called, the record refutes his
claim of ineffective assistance.
5. Culpable Mental State
¶ 37 A defendant is insane for purposes of the affirmative defense of
NGRI if he (1) was “so diseased or defective in mind at the time of
19 the commission of the act as to be incapable of distinguishing right
from wrong with respect to that act” or (2) suffered from a condition
of mind caused by mental disease or defect that prevented him from
forming a culpable mental state that is an essential element of a
crime charged. § 16-8-101.5(1)(a)-(b), C.R.S. 2024.
¶ 38 Snider’s supplement faulted defense counsel for conceding
that he was able to form the requisite culpable mental state for
murder. Counsel did this, Snider argues, by presenting the
testimony of Dr. Fukutaki, who gave “the only expert evidence at
trial that Snider could form the required culpable mental state of
intent.”
¶ 39 As the People point out, it was the prosecution, on cross-
examination, who elicited Dr. Fukutaki’s opinion that Snider was
able to form the requisite culpable mental state. So we can hardly
say that defense counsel conceded the issue merely by offering
Dr. Fukutaki as an expert, especially when she was the only expert
to contradict the prosecution’s evidence that Snider was capable of
distinguishing right from wrong at the time of the crime. In any
event, we reject Snider’s assertion that Dr. Fukutaki was the only
expert to testify that he was capable of forming the requisite mental
20 state for murder. Notwithstanding Snider’s assertions to the
contrary, Dr. Hal Wortzel, the forensic neuropsychiatrist tasked
with evaluating Snider’s sanity at CMHIP, testified that, in his
opinion, Snider possessed the ability to form the culpable mental
state to commit the crime of first degree murder.
¶ 40 Further, we conclude that Snider’s prejudice allegations are
insufficient. Snider asserted that he was prejudiced because his
ability to present an NGRI defense based on an inability to form
specific intent and to deliberate “was impaired” by defense counsel’s
decision to focus on Snider’s ability to distinguish right from wrong.
He asserted that this was so because significant evidence of
hallucinations, paranoia, lack of sleep, and prior hospitalizations
“raise[d] questions” about whether he had the mental capacity to
form a conscious objective after reflection.
¶ 41 To the extent these prejudice allegations are not merely
conclusory, the prosecution presented significant contrary evidence
that Snider could and did form the culpable mental state of after
deliberation and with intent. In addition to Dr. Wortzel’s opinion,
Snider’s brother testified to conversations with Snider in the two
months leading up to the murder. Snider told him that (1) he “had
21 a hatchet in the shed, and the next person that fucked with him
was going to get hacked up”; (2) “sometimes I wake up and I want
to . . . kill dad”; and (3) he “was going to do something that [the
brother] was going to hate him for, but [the brother] wouldn’t have
to worry about [his] money” problems. (The brother testified that he
(the brother) inherited money after his father’s death.) Further,
when Snider turned himself in to the Clear Creek County Sheriff, he
said, “I’m wanted for murder in Rio Blanco.” Upon being asked by
law enforcement whether he had been “contemplating” killing his
father, he said he didn’t want to but had to because “people” were
coming “to get” him.
¶ 42 This evidence of Snider’s ability to form the culpable mental
state convinces us that the result of the proceeding would not have
been different but for counsel’s decision to call Dr. Fukutaki.
6. Failure to “Properly” Endorse Dr. Abel
¶ 43 Snider’s supplement asserted that Crim. P. 16(b)(1) “requires
disclosure of expert opinions by the defense to the prosecution,”
and that defense counsel performed deficiently by failing to disclose
Dr. Abel’s opinion “of whether Snider was able to form the culpable
mental state of intent.” In Snider’s view, he was prejudiced by this
22 failure “because the jury was not permitted to hear evidence from
an expert that the trial court found was relevant and the witness
was qualified to give.”
¶ 44 The motion did not, however, allege that Dr. Abel had formed
such an opinion. Rather, it speculated only that “if there was such
an opinion, one could not have been offered due to a lack of
endorsement.” Nor does the record reflect that Dr. Abel was
qualified to opine on Snider’s ability to form a particular culpable
mental state. Rather, Dr. Abel testified that he was Snider’s
treating physician when Snider was admitted to CMHIP but that he
was not tasked with “conduct[ing] a formal insanity evaluation on
Mr. Snider.”
¶ 45 Contrary to Snider’s assertion, the mere fact that Dr. Abel
testified about Snider’s mental health and determined he “was not
malingering while in the state hospital” months after the crimes
does not speak to Snider’s ability to act with intent or after
deliberation at the time the homicide occurred. Thus, because we
cannot conclude that Snider adequately alleged that counsel could
have elicited such an opinion from Dr. Abel had the expert
disclosure been broad enough to cover the proposed line of
23 questioning, it follows that counsel was not deficient for failing to do
so.
¶ 46 We note that Snider’s motion also asserted that deficiencies in
counsel’s endorsement of Dr. Abel prevented counsel from asking
the more general question whether he had ever “seen patients
present with delusions where they were able to understand that an
action was generally wrong but not be able to grasp that it was
morally wrong?” We recognize that the trial court did not permit
this question, which Dr. Abel was likely qualified to give. But
Snider’s supplement did not tether counsel’s inability to ask it to a
reasonable probability of a different outcome. That is, he did not
assert that, but for counsel’s inability to ask this question, the
result of a trial would have been different.
7. Failure to Assert Involuntary Intoxication Defense
¶ 47 In his supplement, Snider claimed that counsel failed to
(1) properly investigate the impact of prescribed medication he took
just before the crimes occurred — namely, Ativan, Antabuse, and
Cymbalta; and (2) assert an involuntary intoxication defense.
Attached to the supplement was a list of both common and rare
24 side effects of Ativan and Cymbalta, which, Snider asserted, “trial
counsel could have found through investigation.”
¶ 48 We are not persuaded that Snider’s allegations of deficient
performance are sufficient. A list of common and rare side effects
says nothing of whether Snider actually suffered any of those side
effects resulting in a lack of capacity to conform his conduct to the
requirements of law. People v. Voth, 2013 CO 61, ¶ 19. But even if
we assume, for the sake of argument, that Snider’s counsel was
deficient in failing to investigate and present an involuntary
intoxication defense, the motion and supplement failed to allege a
reasonable probability that, but for this deficiency, the result of the
proceeding would have been different. Instead, the supplement
asserted, Snider was prejudiced “because he was deprived of the
opportunity to present a legally valid affirmative defense.” Be that
as it may, untethered from an outcome-determinative allegation
that the result of the proceeding would have been different, this
assertion fails to adequately allege Strickland prejudice.
IV. Disposition
¶ 49 The order is affirmed.
JUDGE WELLING and JUDGE JOHNSON concur.