24CA0588 Peo v Flores 09-04-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0588 Larimer County District Court No. 15CR1412 Honorable Dinsmore Tuttle, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Andres M. Flores,
Defendant-Appellant.
ORDER AFFIRMED
Division I Opinion by JUDGE J. JONES Kuhn and Moultrie, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced September 4, 2025
Philip J. Weiser, Attorney General, Brittany Limes Zehner, Senior Assistant Attorney General and Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee
Dolan + Zimmerman LLP, Sydney Dolan, Jennifer R. Zimmerman, Boulder, Colorado, for Defendant-Appellant ¶1 Defendant, Andres M. Flores, appeals the postconviction
court’s order denying his Crim. P. 35(c) motion after an evidentiary
hearing. We affirm.
I. Background
¶2 The People charged Flores with second degree kidnapping,
menacing, third degree assault, and sexual assault based on a slew
of violent acts he committed against his ex-girlfriend, L.A.
According to the People, Flores had choked L.A., held a knife to her
throat, sexually assaulted her, threatened to kill her with a fork,
and forced her into his car, which L.A. later jumped out of in an
attempt to escape.
¶3 A jury found Flores guilty as charged. The trial court
sentenced him to an indefinite term of forty-two years to life in the
custody of the Department of Corrections.
¶4 A division of this court affirmed Flores’s convictions on direct
appeal in People v. Flores, (Colo. App. No. 17CA1597, June 13,
2019) (not published pursuant to C.A.R. 35(e)).
¶5 Through counsel, Flores filed a Crim. P. 35(c) motion for
postconviction relief, asserting, among other claims, that the
prosecutor violated his right to due process by knowingly
1 presenting false testimony at trial and that his trial counsel
provided ineffective assistance in numerous ways. After holding an
evidentiary hearing on Flores’s claims, the postconviction court
denied the motion.
II. Discussion
¶6 Flores appeals the postconviction court’s denial of his due
process claim and several of his ineffective assistance of trial
counsel claims. We address each claim in turn.
A. Standard of Review
¶7 In reviewing the denial of a Rule 35(c) motion after an
evidentiary hearing, we review the postconviction court’s
conclusions of law de novo but defer to the court’s findings of fact if
the evidence supports them. People v. Villanueva, 2016 COA 70,
¶ 28. We may affirm the postconviction court’s denial of a Rule
35(c) motion on any ground supported by the record, even if the
postconviction court didn’t consider or contemplate that ground.
People v. Hamm, 2019 COA 90, ¶ 23.
B. Due Process Claim
¶8 Flores asserted a claim that the prosecutor knowingly
presented false testimony at trial regarding his and L.A.’s
2 relationship status, thereby violating his right to due process.
Treating it as an ineffective assistance of counsel claim, the
postconviction court rejected it. We conclude that the claim fails
even if treated as a due process claim.
¶9 In his Rule 35(c) motion, Flores asserted that (1) he and L.A.
were married when the charged offenses occurred and that they
remain married; (2) throughout the police investigation and when
L.A. testified at trial, she “consistently falsely described their
relationship as simply a ‘relationship’ or as a ‘dating’ relationship”;
(3) the prosecutor knew that L.A.’s description was false because
documents in discovery showed L.A. as a dependent on Flores’s
health insurance, and only domestic partners and spouses qualify
as dependents as adults, see § 10-16-102(17), C.R.S. 2025; and
(4) the prosecutor’s failure to correct L.A.’s trial testimony about the
status of her and Flores’s relationship violated Flores’s right to due
process.
¶ 10 Whether Flores and L.A. were married was disputed at the
Rule 35(c) hearing. Flores testified that he and L.A. had signed a
declaration of common law marriage, and postconviction counsel
introduced into evidence the declaration, health insurance
3 documents showing that L.A. used Flores’s last name, and several
text messages L.A. had sent to Flores discussing the possibility of
divorce. But Flores also testified that during the police
investigation he had used the words “girlfriend” and “dating” to
describe his and L.A.’s relationship, he and L.A. had signed the
declaration of common law marriage only to secure health
insurance coverage for L.A., and he didn’t tell the police that they
were married because “[i]t just wasn’t a thing that we did.
Whenever I introduced her, I never introduced her as my wife, and
when she introduced me, she never introduced me as [her]
husband.” L.A. testified that she didn’t remember using Flores’s
last name on health insurance documents or in everyday life and
that she didn’t hold herself out to be Flores’s wife.
¶ 11 In its order denying Flores’s Rule 35(c) motion, the
postconviction court — characterizing Flores’s due process claim as
an ineffective assistance of trial counsel claim — concluded that
counsel didn’t provide ineffective assistance by choosing not to
confront L.A. about the nature of her relationship with Flores
because there was little, if any, evidence that Flores and L.A. held
4 themselves out to be married or referred to themselves as husband
and wife.
¶ 12 Flores contends that the postconviction court failed to rule on
his due process claim because the court mischaracterized it as an
ineffective assistance claim. But the claim fails as a due process
claim for two reasons.
¶ 13 First, Rule 35(c)(3)(VII) provides that “[t]he court shall deny
any claim that could have been presented in an appeal previously
brought.” While there are exceptions to this rule for certain claims,
including claims “based on events that occurred after initiation of
the defendant’s prior appeal” and claims “based on evidence that
could not have been discovered previously through the exercise of
due diligence,” Crim. P. 35(c)(3)(VII)(a)-(b), none apply in this case.
Indeed, the essence of Flores’s due process claim is that the
prosecutor knew at the time of trial that L.A.’s description of her and
Flores’s relationship as a “dating” relationship was false because
documents in discovery indicated that they were married. And all
the evidence relevant to this claim was presented at trial. Thus,
Flores could have raised this argument on direct appeal, and
because he didn’t, Rule 35(c)(3)(VII) bars this claim.
5 ¶ 14 In any event, the claim also fails as a due process claim
because the record doesn’t support Flores’s assertion that the
prosecutor knowingly presented false testimony — let alone that the
testimony was material, see People v. Medina, 260 P.3d 42, 48
(Colo. App. 2010). Whether Flores and L.A. were married was
disputed at trial and at the postconviction hearing, and, as the
postconviction court found, little, if any, evidence supports the
notion that Flores and L.A. held themselves out to be married or
referred to themselves as husband and wife. Indeed, as noted
above, there was evidence that they weren’t married. Consequently,
on this record, it can’t be said that the prosecutor knew or should
have known that L.A.’s trial testimony was false. It follows that
there was no due process violation.
¶ 15 People v. Terry, 720 P.2d 125 (Colo. 1986), DeLuzio v. People,
494 P.2d 589 (Colo. 1972), and Napue v. Illinois, 360 U.S. 264
(1959), on which Flores relies, don’t warrant a contrary conclusion.
In each of those three cases, the prosecutor had offered perjured
testimony at trial, and the record plainly demonstrated that the
testimony was false and that the prosecutor had known as much
and failed to disclose it to defense counsel or the court. See Terry,
6 720 P.2d at 130-31; DeLuzio, 494 P.2d at 592; Napue, 360 U.S. at
269. In this case, however, the record doesn’t plainly demonstrate
that the prosecutor knowingly presented false testimony. To the
contrary, based on the evidence admitted, the prosecutor had wide
latitude to reasonably infer that L.A. and Flores weren’t married.
See People v. Herald, 2024 COA 53, ¶¶ 82-85 (prosecutor did not
intentionally misstate the evidence by arguing a reasonable
inference from a witness’s vague testimony).
C. Ineffective Assistance of Trial Counsel Claims
¶ 16 Flores claims that his trial counsel provided ineffective
assistance by (1) failing to investigate Flores’s neighbors; (2) failing
to challenge L.A.’s trial testimony that Flores had previously
attempted suicide; (3) mishandling CRE 404(b) evidence of Flores’s
previous assault on his ex-wife; and (4) failing to interview certain
witnesses counsel had endorsed before trial. He also claims that
his counsel’s errors cumulatively deprived him of his right to
effective assistance of counsel. We reject each of Flores’s claims.
¶ 17 To prevail on an ineffective assistance of counsel claim, a
defendant must prove by a preponderance of the evidence that
(1) his counsel’s performance was deficient and (2) the deficient
7 performance prejudiced him. Strickland v. Washington, 466 U.S.
668, 687-94 (1984); Dunlap v. People, 173 P.3d 1054, 1061-62
(Colo. 2007). As for the performance prong, a defendant must show
that his counsel’s representation fell below an objective standard of
reasonableness. Strickland, 466 U.S. at 688. As for the prejudice
prong, a defendant must show a reasonable probability that, but for
the deficient performance, “the result of the proceeding would have
been different.” Id. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id.
¶ 18 A court may deny an ineffective assistance claim on either
prong of the Strickland test without addressing the other. People v.
Gandiaga, 70 P.3d 523, 526 (Colo. App. 2002).
1. Flores’s Neighbors
¶ 19 Flores contends that his counsel provided ineffective
assistance by failing to investigate Flores’s neighbors, Mr. and Mrs.
Bayless. We disagree.
¶ 20 The Baylesses lived in the apartment directly above Flores’s
when the incident giving rise to the charged offenses occurred. The
prosecution filed a pretrial notice endorsing them as witnesses, but
they were never called to testify during trial.
8 ¶ 21 Flores’s Rule 35(c) motion alleged as follows: when the police
had interviewed the Baylesses, they said they hadn’t heard
screaming on the night in question and that, if they had, they
would have called the police; when a post-trial investigator
interviewed Mr. Bayless, he said he recalled seeing Flores and L.A.
during the night when he awoke and looked outside his window,
and they didn’t appear to be fighting; and if trial counsel had
interviewed Mr. Bayless and called him to testify during Flores’s
trial, his testimony would have created reasonable doubt regarding
L.A.’s account of what occurred inside Flores’s apartment, which
would have significantly undermined L.A.’s credibility and resulted
in an acquittal on some or all of the charges.
¶ 22 During the Rule 35(c) hearing, trial counsel testified that he
vaguely remembered reviewing the police report of the Baylesses’
interviews in discovery, he didn’t recall whether he or his pretrial
investigator had interviewed the Baylesses, and he vaguely
remembered that they didn’t want to be involved in the case.
¶ 23 The post-trial investigator also testified during the hearing.
When postconviction counsel asked the investigator to testify about
9 what Mr. Bayless had said in his post-trial interview, however, the
postconviction court sustained the prosecutor’s hearsay objection.
¶ 24 In its order denying Flores’s Rule 35(c) motion, the
postconviction court rejected Flores’s claim that trial counsel
provided ineffective assistance by failing to investigate the
Baylesses. It reasoned that “evidence from other sources
corroborate [L.A.]’s claims about a physical altercation, whereby the
value of any supportive evidence from the Baylesses is only
speculative,” and that “Flores did not present evidence from the
Baylesses at the [Rule] 35(c) hearing from which this court might
conclude that failure to interview them rises to the level of
ineffective assistance of counsel.”
¶ 25 Flores asks us to reverse and remand for a new hearing “due
to the arbitrary and inequitable way that the postconviction court
conducted the [Rule] 35(c) hearing.” He specifically takes issue with
the court’s exclusion of the post-trial investigator’s testimony about
what Mr. Bayless said in his interview. Flores asserts that the
testimony wasn’t hearsay because postconviction counsel sought to
admit Mr. Bayless’s statements not to prove the truth of the matter
10 asserted, but to establish what Mr. Bayless likely would have said if
trial counsel had called him to testify. See CRE 801(c).
¶ 26 In Rule 35(c) hearings, however, “courts have broad discretion
to control the ‘mode and extent of the presentation of evidence.’”
People v. Finney, 2012 COA 38, ¶ 64 (quoting People v. Cole, 654
P.2d 830, 832 (Colo. 1982)), aff’d, 2014 CO 38. We conclude that
the postconviction court acted within that broad discretion by
precluding the investigator’s testimony, as it was reasonable for the
court to conclude that Mr. Bayless’s statements would not have
been relevant at Flores’s trial unless they were offered for their
truth. See CRE 802.
¶ 27 But even if the postconviction court should have allowed the
investigator to testify about what Mr. Bayless said in his interview,
Flores’s claim doesn’t satisfy either prong of the Strickland test. For
one, his assertion that trial counsel failed to interview the Baylesses
misrepresents the record: at the hearing, trial counsel testified that
he didn’t recall whether he or his pretrial investigator had
interviewed the Baylesses and that he vaguely remembered them
not wanting to be involved. Likewise, the record doesn’t support
Flores’s assertion that Mr. Bayless’s testimony would have been
11 “wholly inconsistent” with L.A.’s account of what occurred inside
Flores’s apartment: Mr. Bayless merely said that he didn’t hear
screaming and that when he looked outside his window and saw
Flores and L.A., they didn’t appear to be fighting. And to the extent
the jury could have found Mr. Bayless’s statements at odds with
L.A.’s, there isn’t a reasonable probability that his testimony would
have affected the outcome of the case. As the postconviction court
found, the prosecution presented substantial other evidence at trial
corroborating L.A.’s testimony that she and Flores fought inside his
apartment. That evidence included pictures of broken blinds in the
bedroom, knives and forks strewn about the kitchen floor, and
L.A.’s blood smears on the apartment door and carport post. See
Strickland, 466 U.S. at 695-96.
2. Flores’s Suicide Attempt
¶ 28 Flores next contends that his counsel provided ineffective
assistance by failing to challenge L.A.’s trial testimony that Flores
had previously attempted suicide. Again, we disagree.
¶ 29 At trial, L.A. testified that she had jumped out of Flores’s car
on the night of the charged offenses not because she was suicidal
but because she “believed that he was going to kill me in a field. He
12 had been telling me for a few weeks prior about a field he liked to go
to to think, and it kind of clicked in my memory that he . . . maybe
had already planned to take me there.” She continued,
Several nights in a row he called and said he was going to commit suicide and — from the field and FaceTimed me. And once I called the police, and they found him in the field. And he told them that he wasn’t doing anything and that I was crazy.
And then he went home, and he would FaceTime me with a red handkerchief wrapped around his throat and told me that’s how he was going to kill himself. And I didn’t really know what to do because I already called the police, and they didn’t — they didn’t believe me, I guess. They believed him more than me.
Trial counsel didn’t object to this testimony.
¶ 30 In his Rule 35(c) motion, Flores asserted that a post-trial
investigator determined that the local police departments didn’t
have any record of L.A. calling 911 about Flores. Had trial counsel
requested such records, Flores asserted, counsel would have
realized that L.A. never called the police and thus would have been
able to impeach her trial testimony on this subject, which, in turn,
would have undermined her credibility.
13 ¶ 31 At the Rule 35(c) hearing, a criminal defense expert witness
testified that the absence of these records “is some of the strongest
impeachment I think I have ever seen, . . . in the sense of
somebody’s credibility relating to the central theme that this is why
she jumped from the car.” But the records custodian for one of the
local police departments testified that, although she didn’t find a
record of L.A. calling to report Flores missing or in need of a welfare
check, she couldn’t confirm that such a call never took place
because the 911 call dispatch system generally retains call records
for only two years. Only calls connected to a resulting case would
have records after that two-year period.
¶ 32 In its order denying Flores’s Rule 35(c) motion, the court ruled
that trial counsel’s failure to challenge L.A.’s testimony about
Flores’s suicide attempt was deficient but that Flores didn’t
demonstrate a reasonable probability that, but for trial counsel’s
deficient performance, the jury would have acquitted Flores. See
Strickland, 466 U.S. at 694.
¶ 33 We agree with the postconviction court that Flores’s claim fails
under Strickland’s prejudice prong.
14 ¶ 34 Contrary to Flores’s assertion, the record doesn’t establish a
reasonable probability that the result at trial would have been
different had trial counsel challenged L.A.’s testimony. Indeed,
Flores’s Rule 35(c) motion made only a conclusory assertion that
trial counsel’s failure to challenge L.A.’s testimony prejudiced him;
the motion didn’t include any explanation as to why that was so.
And we don’t see how it could have been, especially given that the
absence of a police department’s record of L.A.’s phone call doesn’t
necessarily mean that L.A. didn’t call the police regarding Flores’s
suicide attempt. As the records custodian explained at the hearing,
the 911 call dispatch system generally retains records for only two
years, so she couldn’t confirm that a call never took place. And L.A.
could have contacted a different police department.
¶ 35 Accordingly, Flores can’t demonstrate that trial counsel would
have been able to directly impeach L.A. based on the absence of a
record. While Flores points to the criminal defense expert witness’s
opinion to the contrary, the postconviction court wasn’t required to
accept the expert’s opinion. See Scott v. People, 444 P.2d 388, 393
(Colo. 1968) (a fact finder isn’t required to accept an expert
witness’s testimony); Gandiaga, 70 P.3d at 526 (“The
15 [postconviction] court determines the weight and credibility to be
given the testimony of witnesses in a Crim. P. 35(c) hearing.”); see
also Rocky Mountain Gun Owners v. Polis, 2020 CO 66, ¶ 75 n.14 (a
court does not have to accept even unrebutted expert testimony).
Because Flores’s claim doesn’t satisfy Strickland’s prejudice prong,
the postconviction court properly denied this claim. See Gandiaga,
70 P.3d at 526.
3. Flores’s Previous Assault
¶ 36 We also reject Flores’s contention that his counsel provided
ineffective assistance by mishandling CRE 404(b) evidence of
Flores’s previous assault on his ex-wife.
¶ 37 Before trial, the prosecution notified defense counsel and the
court of its intent to introduce evidence that Flores had previously
assaulted his ex-wife, N.M., in view of N.M.’s neighbor, S.M. At a
pretrial hearing addressing this evidence, S.M. testified that Flores
had choked N.M. and held a knife to her throat, while N.M. testified
that she didn’t remember being choked or threatened with a knife.
The trial court ruled that the evidence was admissible to prove
motive and to refute the defenses of fabrication and consent. See
CRE 404(b); § 18-6-801.5(2)-(3), C.R.S. 2025.
16 ¶ 38 About a week before trial, the prosecution notified the court
that N.M. would be out of town during Flores’s trial and asked for
permission to read to the jury a transcript of her testimony from the
pretrial evidentiary hearing instead. Trial counsel expressed
concerns that allowing S.M. to testify at trial without having N.M.
available to testify “puts Mr. Flores at an extreme disadvantage” and
told the court that “if [N.M.] is unavailable, [S.M.] shouldn’t be
permitted to testify” either.
¶ 39 The court ruled that if N.M. was unavailable, the prosecution
could read the transcript of N.M.’s pretrial hearing testimony to the
jury, and S.M. could testify in person at trial. The following
exchange ensued:
THE COURT: [Trial counsel], the People have suggested that they would be willing to not bring in [S.M.] to testify and have her testimony by transcript as well.
[TRIAL COUNSEL]: If the Court’s decision is to allow the testimony of [S.M.], then we would ask for both to be presented by transcripts rather than one by live testimony and the other by transcript.
THE COURT: Okay. All right. [Prosecutor], that was your offer?
[PROSECUTOR]: I did say that. I mean —
17 THE COURT: I mean, technically she is not unavailable under [CRE] 804.
[PROSECUTOR]: Right.
THE COURT: But in — I think there are some extenuating circumstances in this case where the Court could make a determination that that stipulation that you offered would be an appropriate way to address the differences in the testimony.
[PROSECUTOR]: And I think this Court could. My request to the Court would be to allow for the live testimony. There is not bad faith on behalf of the People that we want a favorable witness here and we will just disregard what the unfavorable witness says. We have tried diligently to get both witnesses here. . . . I would ask for the live testimony, but understand the Court’s ruling, even under a [CRE] 403 analysis [I] could see how the Court could get there.
THE COURT: Okay. I think under all of the circumstances here and given, interestingly enough, we do have the benefit of prior testimony, which we often don’t have in [CRE] 404(b) cases anyway, I do think that it would be appropriate to proceed as a way of minimizing any risk of unfair prejudice to allow testimony to be presented to the jury by transcript for both of those witnesses.
¶ 40 In his postconviction motion, Flores asserted that trial
counsel’s “failure to have N.M. served with a subpoena, like his
failure to object to the transcript-reading procedure, was
18 constitutionally ineffective” because “the outlandish and prejudicial
way in which [the CRE 404(b) evidence] was admitted had the effect
of lowering the prosecution’s burden of proof and denying Mr.
Flores’s right to confront and cross-examine witnesses against
him.” At the Rule 35(c) hearing, the criminal defense expert witness
opined that trial counsel’s performance in this regard was
unreasonable.
¶ 41 In its order denying Flores’s Rule 35(c) motion, the
postconviction court said that trial counsel testified that his
handling of the CRE 404(b) evidence was strategic. And it noted
that the issue whether the trial court plainly erred by admitting
evidence of Flores’s previous assault by means of N.M.’s and S.M.’s
transcript testimony rather than their live testimony had been
raised and rejected on direct appeal in Flores, No. 17CA1597, slip
op. at ¶¶ 59, 68. The postconviction court therefore concluded that
trial counsel made a legitimate strategic decision to forgo these
witnesses’ live testimony.
¶ 42 Flores contends that the postconviction court
mischaracterized the record because trial counsel didn’t testify at
the Rule 35(c) hearing that his handling of the CRE 404(b) evidence
19 was strategic. But even if trial counsel didn’t so testify, the record
supports the postconviction court’s conclusion that his decision
was strategic. When the prosecutor asked the court for permission
to admit transcripts of N.M.’s pretrial hearing testimony based on
her unavailability, trial counsel expressed concerns that allowing
S.M. to testify at trial without having N.M. available to testify would
put him “at an extreme disadvantage,” presumably because S.M.’s
testimony was more favorable to the prosecution than N.M.’s
testimony. The trial court and prosecutor also acknowledged the
prejudicial effect of allowing S.M. to testify at trial if N.M. couldn’t.
To minimize that effect, the prosecutor offered, trial counsel agreed,
and the court ruled, that neither witness would testify live. As the
division acknowledged in Flores’s direct appeal, this shows a
strategic decision. See Flores, No. 17CA1597, slip op. at ¶ 67
(“[Trial counsel] strategically agreed to admit [S.M.’s] testimony by
transcript to avoid any extra emphasis that might result from her
live testimony.”). Accordingly, Flores can’t demonstrate that trial
counsel’s handling of the CRE 404(b) evidence was deficient. See
Ardolino v. People, 69 P.3d 73, 76 (Colo. 2003) (“Strategic choices
20 made after thorough investigation of the law and facts relevant to
plausible options are virtually unchallengeable . . . .”).
¶ 43 Nor can Flores demonstrate prejudice. The division on direct
appeal concluded that the evidence of Flores’s previous assault was
admissible, the trial court didn’t plainly err by admitting transcripts
of N.M.’s and S.M.’s pretrial hearing testimony, and trial counsel
had an adequate opportunity to cross-examine N.M. and S.M. at the
pretrial hearing. Flores, No. 17CA1597, slip op. at ¶¶ 59, 66-68;
see People v. Washington, 2014 COA 41, ¶¶ 40-41 (no prejudice
from counsel’s failure to object to the admission of CRE 404(b)
evidence where the appellate court held on direct appeal that the
evidence was admissible). And Flores doesn’t assert that N.M.’s and
S.M.’s live testimony would have differed from their pretrial
testimony, or that, by being able to cross-examine them at trial,
trial counsel would have caused the jury to doubt whether he
assaulted L.A. Accordingly, Flores can’t show a reasonable
possibility that, but for trial counsel’s decision to forgo N.M.’s and
S.M.’s live testimony, the result at trial would have been different.
See Strickland, 466 U.S. at 694.
21 4. Endorsed Witnesses
¶ 44 Flores next contends that his counsel provided ineffective
assistance by failing to interview five witnesses endorsed by the
defense before trial.
¶ 45 We conclude that Flores abandoned this claim.
¶ 46 In his Rule 35(c) motion, Flores alleged that trial counsel had
filed a pretrial notice endorsing five witnesses but didn’t interview
these witnesses or call them to testify during trial. “Had trial
counsel contacted the witnesses that he himself endorsed,” Flores
alleged, “he would have discovered that they had exculpatory
evidence to contribute to Mr. Flores’s defense.” In particular, a
post-trial investigator contacted Ms. Woodson, one of the five
endorsed witnesses, who said Flores is a peaceful person unlikely to
commit a violent crime and recalled several instances in which L.A.
was hospitalized for self-harm and suicidality.
¶ 47 At the Rule 35(c) hearing, however, postconviction counsel told
the court that she needed to “essentially retract” this allegation
because she “subsequently interviewed Ms. Woodson in preparation
for this hearing. That is not what she said during that interview. I
am not calling her as a witness at this hearing, and so I want the
22 Court to disregard that.” See People v. Smith, 2024 CO 3, ¶ 17 (a
party’s decision not to pursue claims previously raised constitutes
an abandonment of those claims).
¶ 48 Flores didn’t allege in his Rule 35(c) motion that the post-trial
investigator had contacted the other four witnesses trial counsel
had endorsed, nor did he allege what any of them would have said
had they testified. Postconviction counsel didn’t present any
evidence regarding the four witnesses at the hearing, and she
omitted this claim from the proposed order she submitted after the
hearing. See People v. Geisick, 2016 COA 113, ¶ 16 (“When a party
specifically removes issues from a trial court’s consideration, the
party has waived those issues and we may not review them on
appeal.”); cf. Smith, ¶¶ 7, 18-20 (postconviction counsel abandoned
claims asserted in pro se Rule 35(c) motion by, in part, failing to
include them in the supplemental motion).
¶ 49 In any event, Flores’s claim fails on its merits. We don’t know
what Ms. Woodson’s trial testimony would have been because, as
postconviction counsel explained at the hearing, Ms. Woodson
didn’t say what Flores had alleged she said. We don’t know what
the other four witnesses’ testimony would have been either. Absent
23 evidence of what these five witnesses would have said, Flores can’t
demonstrate a reasonable probability that trial counsel’s failure to
interview them prejudiced him. See People v. Chambers, 900 P.2d
1249, 1252 (Colo. App. 1994) (The court rejected the defendant’s
claim that trial counsel provided ineffective assistance by failing to
investigate witnesses because the defendant “failed to produce any
evidence as to who these potential witnesses might be, their
willingness to testify (or their amenability to process), and the
substance, credibility, or admissibility of their testimony. Without
some such showing, [the] defendant cannot demonstrate that
counsel’s failure to investigate resulted in any prejudice to him.”);
Gandiaga, 70 P.3d at 526 (same).
5. Cumulative Ineffective Assistance of Counsel
¶ 50 Lastly, Flores contends that his trial counsel’s errors
cumulatively deprived him of his right to effective assistance of
counsel. Because there was only one potential instance of deficient
performance — counsel’s failure to challenge L.A.’s testimony about
Flores’s suicide attempt (as to which Flores didn’t show prejudice)
— we reject his claim of cumulative ineffective assistance of
counsel. See People v. Walton, 167 P.3d 163, 169 (Colo. App. 2007)
24 (rejecting the defendant’s claim of cumulative ineffective assistance
because there weren’t multiple incidents of deficient performance to
compound); see also Howard-Walker v. People, 2019 CO 69, ¶ 26
([R]eversal is warranted when numerous errors in the aggregate
show the absence of a fair trial . . . .”).
III. Abandoned Claims
¶ 51 We deem abandoned the remaining Rule 35(c) claims Flores
raised in his postconviction motion but has not reasserted on
appeal. See People v. Osorio, 170 P.3d 796, 801 (Colo. App. 2007).
IV. Disposition
¶ 52 The order is affirmed.
JUDGE KUHN and JUDGE MOULTRIE concur.