Background
Andrew Kachik was convicted by jury of first degree murder after deliberation, felony murder, attempted first degree murder, and first degree burglary. In 2001, after Kachik’s girlfriend left him to move in with Vincent Thomas, Kachik went to Thomas’s home armed with a shotgun and shot Thomas multiple times, killing him. He also fired shots through a door at his girlfriend, who survived. Kachik’s trial defense was heat of passion based on provocation, not deliberate premeditated murder. Kachik received a life sentence.
In 2009, Kachik timely filed a postconviction motion under Colorado Criminal Procedure Rule 35(c) claiming ineffective assistance of counsel. Due to unexplained delays, counsel was not appointed until 2020. The postconviction court held an evidentiary hearing on twelve claims, focusing primarily on two: trial counsel’s alleged failure to (1) assert a voluntary intoxication defense and (2) move for change of venue from Pitkin County to Rio Blanco County.
The Court’s Holding
The Colorado Court of Appeals affirmed the postconviction court’s denial of Kachik’s ineffective assistance claims, applying the two-prong test from Strickland v. Washington. On the voluntary intoxication defense claim, the court found trial counsel’s strategic decision to pursue a heat-of-passion defense instead was reasonable and well-founded. Although Kachik had consumed approximately ten alcoholic beverages, two trained deputies and a friend testified he did not appear intoxicated around the time of the murder. The court noted that voluntary intoxication is generally ineffective as a defense and that jurors tend to be hostile to it. Strategic choices made after thorough investigation of law and facts receive a strong presumption of correctness and are “virtually unchallengeable.”
On the venue change claim, the court held that counsel’s decision not to seek a change of venue was a reasonable strategic choice based on the defense team’s substantial experience with Pitkin County juries and demographic differences between counties. The postconviction court properly found that a Rio Blanco County jury would not necessarily have been more favorable. Additionally, the jury was thoroughly vetted through two to three days of publicity-sensitive voir dire, and the evidence supporting the first degree murder verdict was overwhelming regardless of jurisdiction. Therefore, Kachik failed to establish either Strickland prong—neither deficient performance nor prejudice.
Key Takeaways
- Strategic defense choices made after thorough investigation are virtually unchallengeable on appeal and receive strong deference from reviewing courts.
- Voluntary intoxication is a partial defense to specific intent crimes like first degree murder after deliberation, but counsel need not assert it when evidence shows the defendant was not intoxicated and alternative defenses are more viable.
- A postconviction court may rely on oral findings (rather than written findings restating all details) when denying a Rule 35(c) motion following an evidentiary hearing.
- Counsel’s decision not to move for venue change is reasonable when based on legitimate strategic considerations about jury composition, even if hindsight suggests a different choice might have been better.
Why It Matters
This decision reinforces the high bar for establishing ineffective assistance of counsel claims post-conviction. Trial counsel enjoy substantial deference in making strategic decisions about which defenses to pursue and procedural motions to file. Courts will not second-guess these choices based on hindsight or alternative strategies that might have been theoretically available. The opinion emphasizes that counsel need not assert every possible defense; rather, focusing resources on the most viable theory—as Kachik’s counsel did by emphasizing heat of passion—constitutes competent representation.
For defense practitioners, the decision illustrates that overwhelming evidence of guilt can defeat prejudice arguments on appeal, even when counsel omits potential defenses or procedural motions. Once a jury is properly seated through thorough voir dire, changing venue may provide no meaningful advantage. The opinion thus sets realistic expectations for postconviction relief in cases with strong evidentiary records against the defendant.