Peo v. Rhee

• Court: Colorado Court of Appeals
• Decided: July 18, 2024
• Docket: 21CA1483
• Status: Unknown

Opinion

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

competent assistance. See People v. Bradley, 25 P.3d 1271, 1276

(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

discretion of trial counsel. See Bradley, 25 P.3d at 1276. Trial

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.