Peo v. Dyer

23CA1081 Peo v Dyer 02-20-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1081
Larimer County District Court No. 14CR1119
Honorable Gregory M. Lammons, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Douglas James Dyer,

Defendant-Appellant.

ORDER AFFIRMED

Division V
Opinion by JUDGE SCHOCK
Freyre and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 20, 2025

Philip J. Weiser, Attorney General, Frank R. Lawson, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Alan Lijewski, Alternate Defense Counsel, Salida, Colorado, for Defendant-
Appellant
¶1 Defendant, Douglas James Dyer, appeals the order denying

his Crim. P. 35(c) motion without a hearing. We affirm.

I. Background

¶2 In 2009, Dyer’s almost three-year-old daughter (the victim)

was diagnosed with a seizure disorder and was prescribed an anti-

seizure medication. At that time, the victim could walk and talk

normally and control the movements of her arms and legs.

¶3 Dyer and his wife did not take the victim to the specialist to

whom she was referred and, at some point, stopped giving her the

anti-seizure medication. Over the next four years, the victim’s

health deteriorated and she lost the ability to walk, talk, feed

herself, or use the bathroom on her own. Despite this deterioration

of the victim’s condition, her parents never took her to the doctor.

¶4 In October 2013, the Larimer County Department of Human

Services received a report that Dyer and his wife were not providing

medical care to the victim. Officers and other public safety officials

went to the home, where they saw the victim having a seizure and

took her to the hospital. At that time, the victim was nonverbal,

nonambulatory, malnourished, and incontinent. A comparison of

MRIs from 2009 and 2013 showed that her brain had atrophied.

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¶5 After her discharge from the hospital, the victim was placed in

foster care, where she received medical care, including treatment to

control her seizures, and started to regain normal functioning.

¶6 Dyer and his wife were charged with child abuse resulting in

serious bodily injury. The prosecution’s theory was that the Dyers

medically neglected the victim, causing her to sustain serious bodily

injury. Dyer argued that his mental condition prevented him from

forming the requisite knowing or reckless mental state.

¶7 Dyer was found guilty and sentenced to fifteen years in prison.

A division of this court affirmed the judgment. See People v. Dyer,

(Colo. App. No. 17CA0541, Mar. 12, 2020) (not published pursuant

to C.A.R. 35(e)). The district court later granted Dyer’s Crim. P.

35(b) motion and reduced his sentence to ten years in prison.

¶8 Dyer then filed a pro se Crim. P. 35(c) motion for

postconviction relief, arguing, as relevant here, that defense counsel

provided ineffective assistance by placing his mental condition at

issue and by failing to call Dr. Gerald McIntosh as a witness.

Dyer’s counsel filed a supplemental petition. In that supplement,

Dyer argued that trial counsel was ineffective by endorsing an

impaired mental condition defense without sufficient investigation

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into its viability. He also argued that counsel was ineffective by not

calling Dr. McIntosh as a witness because Dr. McIntosh would have

testified about (1) the complexities of the victim’s medical condition;

(2) other possible causes of her condition, including “a new

condition that likely started sometime in 2013”; and (3) the Dyers’

concern for the victim and confusion about her medical needs.

¶9 The district court denied Dyer’s motion without a hearing. It

concluded that Dyer’s allegations concerning the mental condition

defense were insufficient to overcome the presumption of

reasonableness afforded to counsel’s strategic decision to pursue

the defense. The court concluded that the decision not to call Dr.

McIntosh as a witness was not unreasonable because the proffered

testimony would have been cumulative and defense counsel

thoroughly cross-examined the prosecution’s expert witnesses

concerning the cause of the victim’s condition. The court also

concluded that Dyer could not show prejudice on either claim.

II. Analysis

¶ 10 Dyer contends that the district court erred by denying his

claim for ineffective assistance of counsel without holding an

evidentiary hearing. He argues that his counsel was ineffective by

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(1) pursuing a mental condition defense and (2) failing to call Dr.

McIntosh as a witness at trial. He also asserts that the cumulative

effect of these errors by counsel warrants relief. We disagree.

A. Standard of Review and Applicable Law

¶ 11 We review de novo the district court’s denial of a Crim. P. 35(c)

motion without a hearing. People v. Cali, 2020 CO 20, ¶ 14.

¶ 12 To prevail on a claim for ineffective assistance of counsel, a

defendant must show that (1) counsel’s performance was deficient,

and (2) the deficient performance prejudiced the defense. Dunlap v.

People, 173 P.3d 1054, 1062 (Colo. 2007). To satisfy the first prong

of this test, the defendant must show that counsel’s representation

“fell below an objective standard of reasonableness.” Strickland v.

Washington, 466 U.S. 668, 687-88 (1984). To satisfy the second

prong of the test, the 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.” Id. at 694.

¶ 13 Defense counsel is not simply “the alter-ego or mouthpiece of

the accused, but is a trained advocate charged with representing an

accused.” People v. Schultheis, 638 P.2d 8, 12 (Colo. 1981). Thus,

defense counsel has final authority to make decisions that are

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strategic or tactical in nature and may make tactical decisions with

which the client disagrees. Arko v. People, 183 P.3d 555, 558 (Colo.

2008). Such decisions include what evidence should be offered and

what witnesses to call, see id.; People v. Aguilar, 2012 COA 181,

¶ 12, and what strategy should be employed in the defense of the

case, see Steward v. People, 498 P.2d 933, 934 (Colo. 1972).

¶ 14 Our review of those decisions is “highly deferential.” Ardolino

v. People, 69 P.3d 73, 76 (Colo. 2003). We must “evaluate

particular acts and omissions from counsel’s perspective at the

time, and indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.” Id.

¶ 15 A defendant need not set forth evidentiary support for their

allegations in a Crim. P. 35(c) motion, but instead need only assert

facts that if true would provide a basis for relief. White v. Denver

Dist. Ct., 766 P.2d 632, 635 (Colo. 1988). A district court may deny

a Crim. P. 35(c) motion without a hearing “only where the motion,

files, and record in the case clearly establish that the allegations

presented in the defendant’s motion are without merit and do

not warrant postconviction relief.” Ardolino, 69 P.3d at 77; see

also Crim. P. 35(c)(3)(IV). A court may therefore deny a claim of

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ineffective assistance of counsel without a hearing “if, but only if,

the existing record establishes that the defendant’s allegations, even

if proven true, would fail to establish either constitutionally

deficient performance or prejudice.” People v. Chavez-Torres, 2016

COA 169M, ¶ 31, aff’d, 2019 CO 59.

B. Mental Condition Defense

¶ 16 Dyer first asserts that his counsel was ineffective by pursuing

a mental condition defense that was not viable under the facts of

the case. But even accepting Dyer’s allegations as true, we

conclude that they were insufficient to demonstrate that his

counsel’s strategic decision to pursue such a defense was

objectively unreasonable. See Ardolino, 69 P.3d at 78 (“To establish

ineffective assistance, the defendant was required to overcome the

presumption that, under the circumstances, the challenged conduct

of his counsel might be considered sound trial strategy.”).

¶ 17 As an initial matter, Dyer’s stated disagreement with his

counsel’s decision to pursue this defense cannot support his claim.

See People v. Bossert, 722 P.2d 998, 1010 (Colo. 1986) (“Mere

disagreement as to trial strategy does not support a claim of

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ineffective assistance of counsel.”). Counsel can make strategic

decisions with which their client disagrees. Arko, 183 P.3d at 558.

¶ 18 And viewed from counsel’s perspective at the time, the record

reflects a reasonable basis for counsel’s pursuit of the defense. In

particular, counsel presented testimony from experts who opined

that Dyer had a schizotypal personality disorder and that this

condition substantially impacted his ability to recognize the victim’s

medical issues and the risks of not getting her medical treatment.

Dyer contends that his counsel’s reliance on his mental condition

resulted in the presentation of unfavorable testimony. But he does

not explain why such evidence would not have been presented

anyway, given that his mental state — and specifically, whether he

acted knowingly or recklessly — was the central issue in dispute.

¶ 19 Moreover, although Dyer argued in his supplemental petition

that his counsel failed to conduct an “independent, confidential

investigation” into Dyer’s mental condition before the arraignment,

he did not address the nature of counsel’s subsequent investigation

and how it bore on the reasonableness of the decision to proceed

with the defense. Cf. People v. Zuniga, 80 P.3d 965, 973 (Colo. App.

2003) (rejecting the defendant’s claim that counsel was ineffective

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for conducting an inadequate investigation because, among other

things, he did not explain how the results of an additional

investigation would have affected the outcome of the case). Indeed,

counsel’s pretrial endorsements of defense witnesses reflect that

counsel contacted multiple expert witnesses and secured opinions

favorable to the defense. See Strickland, 466 U.S. at 690

(“[S]trategic choices made after thorough investigation of law and

facts relevant to plausible options are virtually unchallengeable.”).

¶ 20 On appeal, Dyer contends that his counsel’s assertion of a

mental condition defense operated as a concession of guilt that

undermined his rights to plead not guilty and testify in his own

defense. But even broadly construing Dyer’s allegations in his pro

se motion, see People v. Bergerud, 223 P.3d 686, 696-97 (Colo.

2010), Dyer did not make this argument in his motion. We

therefore will not address it for the first time on appeal. See People

v. Goldman, 923 P.2d 374, 375 (Colo. App. 1996) (“Allegations not

raised in a Crim. P. 35(c) motion . . . and thus not ruled on by the

trial court are not properly before this court for review.”). In any

event, Dyer’s counsel did not concede guilt but consistently

maintained that Dyer did not act with the requisite mens rea.

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¶ 21 Thus, we conclude that the allegations in Dyer’s pro se Crim.

P. 35(c) motion and counsel’s supplement to that motion, even if

true, do not overcome the strong presumption that counsel’s

strategic decision regarding the theory of defense was reasonable.

See Strickland, 466 U.S. at 690 (“[C]ounsel is strongly presumed to

have rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.”).

¶ 22 We also agree with the district court that Dyer’s allegations do

not establish a reasonable probability that, but for counsel’s

assertion of the mental condition defense, the result of the trial

would have been different. Dyer alleged in his supplement that he

was prejudiced because the assertion of the defense resulted in

hours of testimony regarding his mental condition that distracted

from his primary defense that he did not form the mental states of

knowingly or recklessly. But he does not allege how this additional

testimony prejudiced his defense — particularly when the jury was

expressly instructed that it could consider such “mental health

evidence” in determining whether the prosecution had proven the

element of “knowingly” or “recklessly” beyond a reasonable doubt.

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C. Failure to Call Expert Witness

¶ 23 Dyer next contends that the district court erred by denying his

claim that defense counsel was ineffective for failing to call Dr.

McIntosh as a witness at trial. He argues that Dr. McIntosh would

have testified, contrary to other witnesses, that the victim’s brain

showed no signs of atrophy between 2009 and 2013, and that her

condition was likely caused by a new condition that arose in 2013.

¶ 24 But again, even accepting Dyer’s allegations as true, they do

not overcome the strong presumption of reasonableness that

attaches to counsel’s strategic decisions about which witnesses to

call. See Strickland, 466 U.S. at 689-90; Ardolino, 69 P.3d at 78.

¶ 25 First, as to Dyer’s assertion in his supplemental motion that

McIntosh would have testified about the complexities of the victim’s

medical condition and Dyer’s apparent confusion about the

required treatment, there was ample testimony at trial concerning

these issues. Multiple witnesses testified regarding the complexity

of the victim’s medical condition and the various tests that were

done to explore its possible causes. Defense counsel also elicited

testimony regarding Dyer’s schizotypal personality disorder and the

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substantial impact it had on his ability to recognize the victim’s

medical issues and the risks of not getting her medical treatment.

¶ 26 One doctor testified that, based on conversations with Dyer,

she noticed a “gap” or “disconnect” in Dyer’s understanding of, or

appreciation for, the severity of the victim’s medical condition. And

another doctor testified that Dyer likely “did not understand [the

victim’s] medical condition in the way that someone with a more

traditional health literacy would.” Additionally, both prosecution

and defense witnesses testified positively regarding the Dyers’ care

and concern for the victim. Dyer was described as being attentive

and loving with the victim and concerned for her well-being.

¶ 27 Second, even assuming Dr. McIntosh could have given some

favorable testimony as to the nature and extent of the victim’s brain

atrophy in 2013 or its underlying cause, such testimony would not

have been without risk. For example, the record undermines some

of Dr. McIntosh’s proffered testimony. Dyer’s pretrial expert

witness endorsement indicated that Dr. McIntosh’s diagnostic

opinion was that “[t]he brain MRI conducted on [the victim] in 2013

showed diffuse volume loss.” And the prosecution’s pretrial

endorsement similarly indicated that, although Dr. McIntosh

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initially stated the victim’s condition “most likely represent[ed] a

severe neurodegenerative process,” he ultimately concluded that the

findings were “consistent with intermittent primary generalized

seizures that are not reminiscent of a more specific primary

generalized epilepsy.” Dr. McIntosh also characterized the victim as

“failure to thrive which could be secondary to frequent seizures.”

¶ 28 More to the point, any suggestion by Dr. McIntosh that there

was not a substantial decline in the victim’s condition from 2009 to

2013 would have been contrary to all the other evidence in the case

showing otherwise. Faced with such evidence, defense counsel

could reasonably have made the strategic decision that the potential

benefits of calling Dr. McIntosh as yet another expert witness to

opine on the victim’s condition did not outweigh the risks.

¶ 29 Accordingly, Dyer’s allegations, even if true, do not establish

that counsel’s decision not to call Dr. McIntosh and to instead rely

on the testimony and cross-examination of the other witnesses fell

below an objective standard of reasonableness. See People v.

Newmiller, 2014 COA 84, ¶ 60 (“[T]rial counsel need not introduce

expert testimony on [their] client’s behalf if [they are] able effectively

to cross-examine prosecution witnesses and elicit helpful

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testimony.”) (citation omitted); People v. Washington, 2014 COA 41,

¶ 35 (holding that counsel was not ineffective for failing to request a

continuance to procure a witness where the proffered testimony

“would have been cumulative of the testimony of other witnesses”).

¶ 30 Moreover, even if Dyer could show that defense counsel’s

decision not to call Dr. McIntosh was objectively unreasonable, his

conclusory assertion in his motion supplement that Dr. McIntosh’s

purportedly differing opinion would have been the “reasonable

doubt [that] may have very well been the deciding factor for the

jury” is insufficient to demonstrate a reasonable probability that the

result of the proceeding would have been different if he had been

called. See Carmichael v. People, 206 P.3d 800, 807 (Colo. 2009)

(requiring “some objective corroborating evidence” of prejudice),

overruled on other grounds as recognized by People v. Delgado, 2019

COA 55, ¶ 1; People v. Villanueva, 2016 COA 70, ¶ 68 (holding that

conclusory allegation that witness’s testimony would have

established reasonable doubt is insufficient to establish prejudice).

D. Cumulative Error

¶ 31 Dyer also asserts that the cumulative impact of counsel’s

errors requires reversal. But even assuming that cumulative error

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applies to ineffective assistance of counsel claims — an issue we do

not decide — it would not apply here because Dyer did not allege

facts showing that his counsel’s performance was constitutionally

deficient in either of the two ways alleged. See People v. Allgier,

2018 COA 122, ¶ 70 (“[T]he doctrine of cumulative error requires

that numerous errors be committed, not merely alleged.”).

III. Disposition

¶ 32 The order is affirmed.

JUDGE FREYRE and JUDGE SULLIVAN concur.

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