21CA1483 Peo v Rhee 07-18-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 21CA1483
City and County of Denver District Court No. 10CR1678
Honorable Christopher J. Munch, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Joong Hee Rhee,
Defendant-Appellant.
ORDER AFFIRMED
Division VI
Opinion by JUSTICE MARTINEZ*
Lipinsky and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 18, 2024
Philip J. Weiser, Attorney General, Alejandro Sorg, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee
Hillary C. Aizenman, Alternate Defense Counsel, Boulder, 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. 2023.
1
¶ 1 Defendant, Jong Hee Rhee, appeals the postconviction court’s
order denying his Crim. P. 35(c) petition. We affirm.
I. Background
¶ 2 On March 27, 2010, Hae Choon Park called Rhee, his friend
and business associate, and insisted that Rhee meet him at Rhee’s
office. Rhee later said that Park was angry with him after Rhee had
recently threatened to record a deed of trust on one of Park’s
properties in Utah. Park, who owed Rhee $300,000, was upset that
Rhee had waited eight years to record the deed of trust.
¶ 3 After a physical altercation, Rhee killed Park in the office and
drove Park’s body to a remote location in Utah. Afterwards, Rhee
attempted to clean the blood from his office and car.
¶ 4 In April 2011, a retired U.S. Forest Service employee
discovered a bone near the side of a frontage road in Utah. He
notified law enforcement authorities, who found human bones and
clothing strewn out over a large area. Dr. Todd Grey, Utah’s Chief
Medical Examiner, and Derinna Kopp, Utah’s Forensic
Anthropologist, examined the bones. Kopp said she believed the
bones were from an Asian male, approximately sixty to seventy
2
years old, that had been exposed to the elements for between one
and five years. The remains were later identified as those of Park.
¶ 5 Rhee was tried twice for first degree murder, first degree
assault, and tampering with evidence.
¶ 6 At the first trial, Rhee was convicted of tampering, but the
court declared a mistrial when the jury could not reach a verdict on
the other two charges.
¶ 7 At the second trial, Rhee was convicted of second degree
murder and first degree assault.
¶ 8 In both trials, the main theory of defense was self-defense.
Rhee had two attorneys at trial.
¶ 9 The Colorado Court of Appeals affirmed Rhee’s convictions.
People v. Rhee, (Colo. App. No. 13CA0569, July 9, 2015) (not
published pursuant to C.A.R. 35(f)).
¶ 10 Rhee filed a pro se Crim. P. 35(c) petition for postconviction
relief, to which his court-appointed postconviction counsel filed a
supplement. Postconviction counsel’s petition alleged ineffective
assistance of trial counsel for failing to (1) investigate Rhee’s mental
condition at the time of the offense and to present expert testimony
regarding post-traumatic stress disorder (PTSD); (2) confront and
3
rebut the opinion testimony of the prosecution’s expert witness on
bloodstain patterns; and (3) confront or rebut the testimony of the
prosecution’s economic crimes investigator. Postconviction counsel
also raised a claim of cumulative error.
¶ 11 The postconviction court held a Crim. P. 35(c) hearing on June
22-23, 2021. After the hearing, the postconviction court denied
Rhee’s petition, ruling that trial counsel was not deficient for failing
to investigate and pursue a mental health or PTSD defense or for
failing to confront and rebut expert testimony on bloodstain
patterns. The postconviction court also found that Rhee did not
establish deficient performance or prejudice regarding trial
counsel’s failure to confront the prosecution’s economic expert.
¶ 12 Rhee contends on appeal that he is entitled to postconviction
relief because trial counsel provided ineffective assistance by failing
to (1) investigate and present mental health evidence;
(2) investigate, confront, and counter the prosecution’s bloodstain
pattern evidence; and (3) confront and counter the prosecution’s
financial and real estate evidence. Rhee also alleges that the
cumulative failures of trial counsel constituted ineffective
assistance of counsel. We affirm.
4
II. Analysis
A. Standard of Review and Controlling Law
¶ 13 “A criminal defendant is constitutionally entitled to the
effective assistance of counsel.” People v. Houser, 2020 COA 128,
¶ 27; see U.S. Const. amends. VI, XIV; Colo. Const. art. II, § 16;
Strickland v. Washington, 466 U.S. 668, 686 (1984). “The purpose
of this constitutional guarantee is to ensure the accused a level of
assistance calculated to produce a fair and just result in a criminal
prosecution.” People v. Garcia, 815 P.2d 937, 940 (Colo. 1991).
¶ 14 Ineffective assistance of counsel claims present a mixed
question of fact and law. Strickland, 466 U.S. at 687. We review
factual findings for an abuse of discretion. Carmichael v. People,
206 P.3d 800, 808 (Colo. 2009). But we review de novo whether
counsel’s performance was deficient and resulted in prejudice. Id.
¶ 15 We also defer to the postconviction court’s determinations
regarding the weight and credibility to give witness testimony at the
hearing. Dunlap v. People, 173 P.3d 1054, 1061-62 (Colo. 2007).
¶ 16 To prevail on a claim of ineffective assistance of counsel, a
defendant must show that counsel’s performance was
constitutionally deficient and that the deficient performance
5
prejudiced the defense. Strickland, 466 U.S. at 687. For the
performance prong, the defendant must show by a preponderance
of the evidence that counsel’s representation fell below an objective
standard of reasonableness. Id. at 688; Dunlap, 173 P.3d at 1061.
Generally, there is a strong presumption that counsel’s decisions
fell within a wide range of reasonable possibilities. Dunlap, 173
P.3d at 1063. For the prejudice prong, the defendant must show a
reasonable probability that, but for counsel’s errors, the result of
the proceeding would have been different. Strickland, 466 U.S. at
694.
¶ 17 Trial counsel “has a duty to make reasonable investigations or
to make a reasonable decision that makes particular investigations
unnecessary. In any ineffectiveness case, a particular decision not
to investigate must be directly assessed for reasonableness in all
the circumstances, applying a heavy measure of deference to
counsel’s judgments.” Id. at 691.
¶ 18 To show that counsel’s failure to investigate caused prejudice,
the defendant must allege that the investigation would have
uncovered evidence that would have affected the outcome of the
proceeding. See People v. Pendleton, 2015 COA 154, ¶ 34; see also
6
People v. Chambers, 900 P.2d 1249, 1252 (Colo. App. 1994)
(“Unless [additional] investigation would have discovered
substantial evidence which . . . might reasonably have led to a
different result,” the failure to conduct such an investigation is not
prejudicial.).
B. Mental Condition and PTSD Evidence
¶ 19 Rhee contends that trial counsel was ineffective for failing to
investigate and present evidence of Rhee’s mental condition and
PTSD diagnosis. We disagree.
1. Additional Facts
¶ 20 Trial counsel raised the issue of Rhee’s competency before the
first trial. Dr. Jane Cleveland conducted a court-ordered
competency examination. After Dr. Cleveland spoke with Rhee for
three hours during one visit and one and a half hours during a
second visit, she concluded that Rhee was competent to stand trial.
Dr. Cleveland also diagnosed Rhee with PTSD. Trial counsel then
hired Dr. Karen Fukutaki to conduct a second evaluation.
Dr. Fukutaki determined that Rhee was not competent to stand
trial and also opined that he might suffer from PTSD.
7
¶ 21 On March 9 and 16, 2012, the trial court held a competency
hearing and found Rhee competent to proceed.
¶ 22 After trial at the Crim. P. 35(c) hearing, Dr. Cleveland testified
that, after meeting with Rhee again three times in 2021, she
diagnosed him with PTSD based on his then-current presentation
and his “historical representation of his experiences and
symptoms.” Dr. Cleveland also said it was highly likely that PTSD
or a trauma response affected Rhee during the murder.
¶ 23 Trial counsel testified that, shortly before the first trial setting,
Rhee was unable to retain any information from court hearings.
Concerned, trial counsel raised competency. But trial counsel
testified that they did not “see anything that raised red flags for me
about him suffering from a mental condition at the time of the
incident.” Further, trial counsel noted that Dr. Fukutaki’s report
indicated that there was no way to distinguish whether Rhee’s
PTSD developed from the incident and being in jail or from previous
trauma. Trial counsel also testified that, due to some tension
between Dr. Cleveland and Dr. Fukutaki’s reports, combined with
the amount of time that trial counsel had spent with Rhee and
Rhee’s insistence that he acted in self-defense, trial counsel did not
8
consider Rhee’s mental condition or PTSD to be a compelling
defense. Trial counsel further expressed concern about Rhee being
interviewed at the state hospital and providing inconsistent
statements that could be used against him at trial. Finally, trial
counsel testified that they did not believe that a mental condition or
PTSD defense would support the objective prong of the self-defense
analysis.
1
¶ 24 The postconviction court found that Rhee did not meet the
first Strickland prong. Specifically, the postconviction court found
that, while it is probable that Rhee suffered from PTSD and that
trial counsel could have identified, endorsed, and presented an
expert to prove it, trial counsel reasonably concluded that
presenting evidence of his disorder would have not been helpful to
the defense for three reasons. First, while PTSD evidence might
have been useful in defeating the culpable mental state necessary
1
Under the self-defense statute, a person may use “[d]eadly
physical force” if he “reasonably believes a lesser degree of force is
inadequate” and if he “has reasonable ground to believe, and does
believe, that he . . . is in imminent danger of being killed or
receiving great bodily injury.” § 18-1-704(2)(a), C.R.S. 2023.
Therefore, self-defense by use of deadly physical force considers
both the reasonable belief and the actual belief of the defendant.
People v. Darbe, 62 P.3d 1006, 1010 (Colo. App. 2002).
9
to establish first degree murder, trial counsel never believed that
the evidence supported a first degree murder conviction. Second,
trial counsel determined that Rhee’s testimony would be crucial to
any self-defense argument regarding the second degree murder
charge. Endorsing a theory of mental condition and PTSD would
necessitate a pretrial commitment with detailed questioning about
the murder. The statements Rhee made during a commitment
would therefore be available for the prosecution to use in
cross-examination, creating a risk of exposing inconsistent
statements. Third, trial counsel concluded that the potential harm
to the objective prong of self-defense outweighed the advantage of
using mental condition and PTSD evidence for the subjective prong.
¶ 25 The record supports the postconviction court’s findings.
2. Analysis
¶ 26 We conclude that Rhee has not overcome the strong
presumption that trial counsel had a valid trial strategy by not
investigating or presenting evidence of Rhee’s mental condition or
diagnosis of PTSD. See Ardolino v. People, 69 P.3d 73, 79 (Colo.
2003) (defense counsel must overcome the presumption that trial
counsel’s conduct might be considered a sound trial strategy under
10
the circumstances). Trial counsel offered credible reasons for their
decision not to investigate or pursue a mental condition or PTSD
defense, including, but not limited to, the differences between the
reports of Dr. Clevland and Dr. Fukutaki, the concern for
inconsistent statements, and the belief that a mental condition or
PTSD defense would not support the objective prong of the
self-defense theory.
¶ 27 The postconviction court credited trial counsel’s testimony.
We defer to the court’s determinations regarding the weight and
credibility of witness testimony at the hearing. See Dunlap, 173
P.3d at 1061-62. It was trial counsel’s strategic decision to focus
on the theory of self-defense instead of Rhee’s mental condition or
PTSD diagnosis. While Rhee might not agree with trial counsel’s
strategy, and in hindsight it may not have been the best defense,
Rhee has nonetheless failed to overcome the presumption that this
was “sound trial strategy.” Strickland, 466 U.S. at 689 (quoting
Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
¶ 28 Accordingly, Rhee’s claim regarding the mental capacity and
PTSD evidence fails the first prong of the Strickland analysis, and
the postconviction court did not err by denying such claim.
11
C. Bloodstain Pattern Analysis
¶ 29 Rhee next contends that trial counsel provided ineffective
assistance by failing to investigate, confront, and counter the
prosecution’s bloodstain pattern evidence. We are unpersuaded.
1. Additional Facts
¶ 30 Before trial, counsel met with John Koziol from Koziol
Forensics, who had a background in blood spatter analysis and
expertise in crime scene reconstruction. Koziol reviewed the
conclusions of the prosecution’s blood pattern analysis expert,
Jonathyn Priest, and advised trial counsel how to handle Priest’s
testimony. Koziol also advised trial counsel to read a book on
bloodstain pattern analysis written by one of Koziol’s mentors.
¶ 31 At the first trial, the court qualified Priest as an expert in blood
pattern analysis and crime scene reconstruction. Priest testified,
from the bloodstain pattern analysis alone, that there was a
minimum of three blows to Park’s head. Trial counsel objected to
this testimony, asserting that it was outside Priest’s expertise. The
next day, after viewing photographs of Park’s skull, Priest testified
that Park suffered seven blows to the head.
¶ 32 The following colloquy occurred on cross–examination:
12
TRIAL COUNSEL: I want to talk about and
review some of what we discussed yesterday.
Bloodstain pattern analysis is not considered a
science, per se; is that right?
PRIEST: Technical discipline based on science.
TRIAL COUNSEL: Very good. And there are
inherent limitations on blood stain pattern
analysis; would you agree with that?
PRIEST: Yes.
TRIAL COUNSEL: And one of the problems in
this discipline is that there is never — they will
never have a true standard to be able to
compare your findings with, correct?
PRIEST: Correct.
. . . .
TRIAL COUNSEL: Okay. And, again, speaking
of limitations, when you’re doing
reconstruction, you’re seeking to define and
speak about physical events that you were not
obviously present to observe happen, correct?
PRIEST: Correct. And a big limitation for an
analyst is — we’re really like an archeologist
coming in way after the fact and trying to
uncover the evidence that’s going to support
what happened.
TRIAL COUNSEL: Very good. Because you
were not there when the events actually
happened, it’s important to remember that
events at a scene like this are very dynamic;
would you agree with that?
13
PRIEST: Can be.
TRIAL COUNSEL: Okay. And any number of
similar events may produce the results you
find?
PRIEST: Yes.
TRIAL COUNSEL: And would you agree also
that even in the best circumstances, the
nature of the evidence will probably provide
only a glimpse into the past, a glimpse into
what actually — everything that transpired
that day in that office?
PRIEST: If we’re talking about this scene here,
there was certainly limited evidence for
analysis. But that is certainly not necessarily
typical of a given crime scene.
¶ 33 At the second trial, Priest testified that Park’s head would have
been near the office floor and the blows inflicted while he was lying
face down. Before Priest testified, trial counsel objected to Priest’s
opinion as to the number of blows to Park’s skull. The court denied
the objection but said that defense counsel could object
contemporaneously if Priest gave that testimony. Priest then
testified that, from the bloodstain pattern analysis alone, the
minimum number of blows to Park’s skull was three. However,
after examining the damage to the skull, Priest testified, as he had
14
at the first trial, that the minimum number of blows to the skull
was seven.
¶ 34 On cross-examination, trial counsel engaged Priest as follows:
TRIAL COUNSEL: And you’d agree that — well,
you’ve been able to extrapolate certain
information from the crime scene. It’s more
often the case that there’s more that you don’t
know at the end of the day; is that right?
PRIEST: That’s accurate, yes.
TRIAL COUNSEL: And there’s — and with your
work in terms of blood spatter analysis there’s
inherent limitations in terms of the work you
can do with that; correct?
PRIEST: Yes.
TRIAL COUNSEL: And bloodstain pattern
analysis, while it’s based in science, is not
scientific in itself; is that correct?
PRIEST: Well, it depends on who you talk to on
the stand. But my response to the question is
it is a technical discipline based in science.
¶ 35 Dr. Grey, whom the court qualified as an expert in forensic
pathology, testified that, due to the absence of bone and “inability
to really piece together how many different fracture lines there are,”
he could not opine as to the number of repeated impacts to Park’s
skull. Dr. Grey testified that all he could tell is that there were
multiple impacts — “more than two.”
15
¶ 36 Kopp also testified that she could not opine as to how many
times Park was struck. Kopp stated, “I cannot. I can say it’s
multiple, which is more than two, but I cannot say how many.”
When asked if she could give an exact answer, Kopp responded,
“No.”
¶ 37 In closing argument, trial counsel stated the following:
We heard from Ms. Kopp and Dr. Grey that
there were at least two blows to Mr. Park’s
head. One of them is the medical expert for
Utah. He’s been practicing in this field for
years, decades. He has a tremendous amount
of experience.
She has a Ph.D. or close to a Ph.D., and, as
you heard her testify, has done an extensive
amount of work with skeletonized remains
determining cause of death, time of death.
And what they can tell you is at least two
blows.
You heard from Lieutenant Priest — who’s not
trained in skeletal remains, he’s not trained in
looking at bones — that that figure was much
higher. Seven blows. You heard the district
attorneys rely on that, and they’re going to
continue to rely on that. But Lieutenant Priest
does not have the formal training or experience
to opine on that kind of fact. Dr. Grey and Ms.
Kopp, who can tell you with certainty based on
their medical training and experience, that it
was at least two.
16
¶ 38 At the Crim. P. 35(c) hearing, Richard Eikelenboom testified as
an expert on bloodstain pattern analysis. Eikelenboom testified
that he did not agree with Priest’s bloodstain pattern analysis.
Specifically, Eikelenboom stated that the cleaning of the office
carpet and use of water made it impossible to estimate the amount
of blood on the carpet or the mechanism used to cause the
bleeding. Eikelenboom further testified that the bloodstain pattern
evidence did not support Priest’s conclusion about the location of
Park’s head when it was struck. Finally, Eikelenboom testified that
Priest’s testimony as to the number of blows to the head was
outside Priest’s range of expertise.
¶ 39 Christopher McKee was qualified as an expert in the practice
of criminal defense and the intersection of law and forensic
sciences. McKee testified that trial counsel’s performance was
deficient and that it prejudiced Rhee. McKee opined that, at the
time of the murder and the two trials, there were discussions in the
legal community concerning the validity and accuracy of forensic
sciences. These discussions led to a 2009 National Academy of
Sciences report called “Strengthening Forensic Science in the
United States: A Path Forward” (the NAS report). The NAS report
17
included a section on bloodstain pattern analysis that concluded
the uncertainties associated with bloodstain pattern analysis are
“enormous.” McKee opined that, by the time of Rhee’s trials, all
competent defense counsel would have been aware of the NAS
report because there were many trainings and discussions around
it across the country, including in Colorado.
¶ 40 At the Crim. P. 35(c) hearing, postconviction counsel asked
trial counsel if Priest’s testimony attacked the defense’s self-defense
theory. Trial counsel answered in the negative. The questioning
and testimony continued:
POSTCONVICTION COUNSEL: So you do not
agree that testimony that the victim was
crawling under the desk and was in a
defensive stance lying on the ground while
being beaten from 2 feet away seven times in
the head, you don’t think that is inconsistent
with self defense?
TRIAL COUNSEL: Well, I think that there’s
some conflation there, first of all. So, one,
once you are able to use force against another
person because you are being threatened, you
do not have to stop using that force until the
threat is mitigated. So you can use deadly
force. Did I like the fact that that testimony
came out. No, not necessarily . . . . Do we
really want to hire an expert that on
cross-exam may end up giving the same sort of
testimony and answers that Priest did?
18
. . . .
But you’re saying that it’s junk science, but we
should get another junk scientist to come
possibly be crossed and give the same
information.
¶ 41 Further, trial counsel testified that their strategy was to show
the jury that, “while there may be certain things that you might be
able to decipher from the bloodstain pattern analysis evidence,
there’s much more that you can’t find . . . and at the end of the
day . . . you know less than you do know about what exactly
occurred at this crime scene.”
¶ 42 Moreover, trial counsel testified they decided to go with a
consultant rather than a testifying expert to avoid a “battle of the
experts.”
¶ 43 The postconviction court found that Rhee failed to meet the
first Strickland prong. The postconviction court also found that
trial counsel’s decision to challenge Priest on cross-examination
and not to pursue a “battle of the experts” was within the range of
constitutionally adequate representation.
19
2. Analysis
¶ 44 Again, the record supports the postconviction court’s findings.
Contrary to Rhee’s assertion, trial counsel conducted a pretrial
investigation by consulting with Koziol, a crime scene
reconstructionist familiar with bloodstain pattern analysis. Koziol
gave trial counsel advice about Priest and aided in formulating
counsel’s cross-examination strategy. Trial counsel’s decision to
consult with Koziol and then not call an expert witness to avoid a
“battle of the experts” was not outside the range of professionally
(Colo. App. 2001) (whether to call an expert witness is a tactical
decision within the discretion of trial counsel).
¶ 45 Moreover, while trial counsel had no knowledge of the NAS
report, trial counsel conducted a thorough cross-examination that
elicited concessions from Priest concerning the invalidity of
bloodstain pattern analysis. Specifically, Priest acknowledged that
often there is much more to a crime scene than what bloodstain
pattern analysis can determine. Further, Priest conceded that a
wide range of events, including those different than what Priest
concluded, could have resulted in the bloodstain patterns in Rhee’s
20
office. Finally, in closing, trial counsel challenged Priest’s expertise
in opining on the number of blows to Park’s head.
¶ 46 Accordingly, the postconviction court did not err by denying
Rhee’s claim regarding the bloodstain pattern analysis.
D. Financial and Real Estate Testimony
¶ 47 Next, Rhee argues that trial counsel provided ineffective
assistance by failing to consult with or present an expert to
confront and counter the prosecution’s financial and real estate
evidence. Again, we disagree.
1. Additional Facts
¶ 48 Before trial, trial counsel discussed the case with a property
law professor at the University of Denver.
¶ 49 At the first trial, Teresa Wertsch, a senior criminal investigator
with the Economic Crimes Unit in the Denver District Attorney’s
Office, testified for the prosecution regarding Rhee’s financial
dealings. Wertsch testified that, on March 29, 2002, to secure a
$300,000 debt that Park owed Rhee, Rhee obtained from Park a
deed of trust purportedly encumbering vacant land in Utah. But
Rhee did not record the deed of trust until March 25, 2010 — two
days before Park’s murder. Wertsch also testified that the deed of
21
trust was invalid because Park did not own the encumbered
property at the time he signed the deed of trust.
¶ 50 Wertsch also testified at the second trial. Again, Wertsch
testified that the deed of trust was invalid.
¶ 51 At the Crim. P. 35(c) hearing, Ronald Merrill, whom the court
qualified as an expert in real estate law, testified for the defense.
He had written two memorandums concerning Wertsch’s testimony.
Merrill testified that, even though Wertsch provided expert opinions
about real estate documents and transactions, she had not been
qualified as an expert. Merrill disagreed with several aspects of
Wertsch’s testimony, stated that her testimony was inaccurate and
misleading, and said he believed that trial counsel was ineffective
by failing to adequately counter her testimony. Merrill pointed to
numerous inaccuracies in Wertsch’s testimony, including her
conclusion that the deed of trust was invalid.
¶ 52 In addition, McKee agreed with Merrill that trial counsel was
deficient by failing to effectively challenge Wertsch’s assertions at
trial.
¶ 53 Trial counsel testified that he did not need to counter
Wertsch’s testimony by establishing that the deed of trust was valid
22
because “Mr. Rhee and Mr. Park believed it was valid and believed it
had importance and that was all that mattered.”
¶ 54 When asked whether trial counsel considered retaining a
professor or some other expert to comment on the validity of the
deed of trust, trial counsel responded:
No. It seemed to me that would just muddy
the waters. If all the sudden we have a battle
of the experts over an issue that has nothing
to do with ultimately the self-defense
argument, I don’t know why I would put an
expert on to say that the document that
caused the death of Mr. Park was invalid. I
don’t see how that strengthens my case.
¶ 55 Trial counsel went on to say,
If I had brought somebody in and they said —
confirmed that filing a Colorado form in Utah,
where there are different laws and different
procedures and it was filled out ambiguously,
again, I don’t see how heightening that aspect
improves my case when what I needed was the
jury to understand that Mr. Park and Mr. Rhee
believed this was an important document, that
it had some legal significance, and there were
$300,000 at stake for a man who was
drowning in debt.
¶ 56 The postconviction court found that Wertsch’s testimony
evidenced a misunderstanding of basic property law and would
have been easy to rebut with expert testimony. However, the court
23
found that the prosecution’s evidence was equally as useful to the
defense as it was to the prosecution and did not achieve the effect
the prosecution sought. The postconviction court determined that
trial counsel did not believe that Wertsch’s testimony hurt the case.
Further, the postconviction court found that the decision to
impeach a readily impeachable witness, who has done no material
harm to the defense — rather than calling a competing expert
witness — is inherently within the discretion of trial counsel and
that deference is to be given to that decision unless it is
unreasonable.
2. Analysis
¶ 57 The decision to call an expert is a tactical decision within the
counsel consulted with a law professor from the University of
Denver and then decided not to call an expert witness. This falls
within the realm of professionally competent assistance. See id.
¶ 58 Moreover, as stated above, to establish ineffective assistance of
counsel, the defendant must overcome the strong presumption that
counsel’s challenged conduct may be considered sound trial
strategy under the circumstances. Ardolino, 69 P.3d at 78. At the
24
Crim. P. 35(c) hearing, trial counsel testified that they did not
introduce an expert in real estate law because they did not want to
detract from the defense’s theory of self-defense. Trial counsel
believed that the issue of whether the deed of trust was valid was
insignificant to the defense’s overall trial strategy — the key issue
was that Park believed it was valid and that Rhee would foreclose
on the property. The postconviction court credited counsel’s
testimony regarding trial strategy. We defer to the postconviction
court’s determinations regarding the weight and credibility to give
witness testimony at the hearing. Dunlap, 173 P.3d at 1061-62.
¶ 59 Accordingly, Rhee’s claim regarding not calling an expert to
testify concerning the legality of the deed of trust fails the first
prong of the Strickland analysis, and the court did not err by
denying the claim.
III. Cumulative Error
¶ 60 Finally, Rhee contends that the cumulative effect of counsel’s
errors deprived Rhee of effective assistance of counsel. We reject
this contention because we discern no ineffective assistance of trial
counsel. See People v. Walton, 167 P.3d 163, 169 (Colo. App. 2007).
25
IV. Disposition
¶ 61 The order is affirmed.
JUDGE LIPINSKY and JUDGE SCHUTZ concur.
