Gary Lee DAVIS, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
No. 92SC788.
Supreme Court of Colorado, En Banc.
March 14, 1994.
Rehearing Denied May 2, 1994.
871 P.2d 769
Gale A. Norton, Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., Robert M. Petrusak, Asst. Atty. Gen., Crim. Enforcement Section, Denver, Steven L. Bernard, Sp. Asst. Atty. Gen., Brighton, for respondent.
Justice MULLARKEY delivered the Opinion of the Court.
We granted certiorari to determine whether the court of appeals in People v. Davis, 849 P.2d 857 (Colo.App.1992) (Davis II), correctly upheld the trial court‘s ruling denying the defendant‘s
I
The defendant, Gary Lee Davis (Davis), and his now-divorced wife, Rebecca Fincham (Fincham), were prosecuted for the kidnapping, sexual assault and murder of Virginia May. The jury found Davis guilty of murder in the first degree,1 felony murder,2 conspiracy to commit murder in the first degree,3 second degree kidnapping,4 and conspiracy to commit second degree kidnapping.5 Upon
After this court affirmed the judgments of conviction and death penalty sentence, Davis filed a motion for post-conviction relief under
Truman, an experienced defense attorney who previously had conducted 38 murder trials, including seven capital cases, explained that his strategy at the sentencing phase of the trial was to show that Fincham was equally, if not more, responsible for Virginia May‘s abduction and murder. He had hoped to persuade the jury that as a matter of equity, since Fincham received a life sentence, Davis should also be spared the death penalty. Truman further testified that when Davis opted, against his advice, to take the stand and testify that he was more responsible for the murder of Virginia May than Fincham, he was not adequately prepared to present any alternative theories of mitigation.
The People contended, however, that Truman‘s strategy was justified in light of the overwhelming evidence of Davis’ guilt. More importantly, in choosing to testify and implicate himself as the more culpable party, Davis contradicted his attorney‘s clear advice and forced Truman to pursue the trial strategy which Davis now contends was ineffective. In fact, Truman felt compelled to make a sealed record pursuant to People v. Schultheis, 638 P.2d 8 (Colo.1981), in which he explained how Davis had agreed with the facts and theory set forth in the opening statement yet chose to undercut that strategy by claiming that he, and not Fincham, was responsible for the murder. Truman also expressed his concern that his client‘s latest version of the events was untruthful and contrary to the physical evidence.
Applying the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court denied Davis’
The court of appeals affirmed the trial court‘s ruling, holding that the representation provided by Davis’ counsel did not constitute a violation of his right to effective assistance of counsel. Davis II, 849 P.2d at 863. It rejected Davis’ claims that Truman was ineffective for his failure (1) to adequately investigate potential mitigating evidence; (2) to contact family and friends of Davis as potential character witnesses; (3) to explore
Davis does not now contend that Truman‘s performance at the guilt phase of the trial was constitutionally inadequate.6 Rather, the sole question presented is whether Truman provided effective assistance during the sentencing phase of the trial.
II
A defendant‘s right in a criminal proceeding to receive the reasonably effective assistance of an attorney acting as his diligent and conscientious advocate is guaranteed by the
Under the two-prong test of Strickland, a defendant must show, first, that “in light of all the circumstances, the identified acts or omissions [of counsel] were outside the wide range of professionally competent assistance.” 466 U.S. at 690, 104 S.Ct. at 2066. In determining whether trial counsel‘s performance was deficient, the relevant inquiry is whether counsel‘s representation fell below an objective standard of reasonableness as informed by prevailing professional standards. Id. at 688, 104 S.Ct. at 2064-2065. This assessment requires that conduct be evaluated from counsel‘s perspective at the time the representation occurred, ignoring “the distorting effects of hindsight.” Id. at 689, 104 S.Ct. at 2065. Because of the difficulties of such an evaluation, the Strickland Court has directed courts to “indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.‘” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)).
Mere error by counsel, even if professionally unreasonable, does not justify setting aside the judgment of a criminal proceeding if the error had no adverse impact on the defense. Thus, Strickland requires that the defendant also affirmatively prove that he was prejudiced by the deficient performance of counsel. Id. To establish prejudice, the defendant must show that “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Id. 466 U.S. at 694, 104 S.Ct. at 2068. A reasonable probability is “a probability sufficient to undermine confidence in the outcome.” Id.
Davis advances several arguments in support of his view that Truman‘s performance was both unreasonable and prejudicial to his defense. We will address each of these arguments in turn.
A
Davis first contends that Truman‘s failure to investigate adequately prior to the sentencing phase potential mitigating evidence and, more specifically, his decision not to contact certain of Davis’ family members, friends, employers, former counselors or
A defendant is entitled to a pretrial investigation sufficient to reveal potential defenses and the facts relevant to guilt or penalty. Norman, 703 P.2d at 1272; People v. White, 182 Colo. 417, 422, 514 P.2d 69, 71 (1973). This is so because proper investigation of the case is essential for adequate representation. Hutchinson v. People, 742 P.2d 875, 881 (Colo.1987); see Cole, 775 P.2d at 555 (finding ineffective assistance where there was “virtually no investigation or preparation before trial“).
Mere disagreement as to trial strategy, however, will not support a claim of ineffectiveness. People v. Bossert, 722 P.2d 998, 1010 (Colo.1986). As the United States Supreme Court stated in Strickland:
[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.
466 U.S. at 690-91, 104 S.Ct. at 2066.
Furthermore, an attorney‘s decision not to interview certain witnesses and to rely on other sources of information, if made in the exercise of reasonable professional judgment, does not amount to ineffective assistance. United States v. Glick, 710 F.2d 639, 644 (10th Cir.1983), cert. denied, 465 U.S. 1005, 104 S.Ct. 995, 79 L.Ed.2d 229 (1984). Whether to call a particular witness is a tactical decision, and, thus, a matter of discretion for trial counsel. Francis v. Dugger, 908 F.2d 696, 703 (11th Cir.1990), cert. denied, 500 U.S. 910, 111 S.Ct. 1696, 114 L.Ed.2d 90 (1991); Mitchell v. Kemp, 762 F.2d 886, 890 (11th Cir.1985), cert. denied, 483 U.S. 1026, 107 S.Ct. 3248, 97 L.Ed.2d 774 (1987); United States v. Miller, 643 F.2d 713, 714 (10th Cir.1981). Consequently, when faced with overwhelming aggravating circumstances, trial counsel reasonably may conclude that the testimony of certain character witnesses would be of little help to the defense. See Strickland, 466 U.S. at 699, 104 S.Ct. at 2070-2071. This is particularly true if such testimony would open the door to presentation of damaging evidence by the prosecution. Burger v. Kemp, 483 U.S. 776, 791-92, 107 S.Ct. 3114, 3124-25, 97 L.Ed.2d 638 (1987); Darden v. Wainwright, 477 U.S. 168, 186, 106 S.Ct. 2464, 2473, 91 L.Ed.2d 144 (1986).
In the instant case, Truman testified at the
Truman further testified that although he did attempt to contact other potential character witnesses, “[m]any of the roads I looked into were not very helpful.” In fact, prior to trial, Truman was aware that as a result of
Truman also relied upon the opinion of an experienced forensic psychiatrist, Dr. Seymour Z. Sundell, in preparing Davis’ defense. Truman asked Dr. Sundell to evaluate Davis and to give his professional opinion with respect to potential mitigating factors which could be presented at the penalty phase of Davis’ trial.7 After a four to five-hour consultation with Davis, Dr. Sundell reported to Truman that in his opinion, there was nothing he learned from the psychological evaluation or from Davis’ history and background that would be helpful to Davis in mitigation.
In light of the above, Truman decided that the “main thrust” of his defense strategy would be the “equitable argument” that Fincham was at least as culpable as Davis and yet received only a life sentence. Truman specifically stated at the
The issue here is thus whether Truman acted reasonably, under prevailing standards, in deciding not to introduce additional character witnesses “out of apprehension that [such testimony] would contribute little to his client‘s chances of obtaining a life sentence while revealing possibly damaging details about his past and allowing foreseeably devastating cross-examination.” Burger, 483 U.S. at 789 n. 7, 107 S.Ct. at 3124 n. 7. We conclude that Truman‘s decision was reasonable and well within the “wide range of professionally competent assistance” required under Strickland.
Truman‘s reliance, in part, on the investigation and evaluation performed by Martinez and Dr. Sundell was entirely appropriate under the circumstances, particularly where the information obtained from those sources corroborated what Truman already knew about his client, that is, that Davis’ family, friends and associates often had as much negative as positive to say about him. See Glick, 710 F.2d at 644. As the Strickland Court noted, when there is overwhelming evidence of both guilt and aggravating factors, testimony that the defendant is a “good” person is unlikely to alter the outcome of a sentencing proceeding. 466 U.S. at 700, 104 S.Ct. at 2071; Coleman v. Brown, 802 F.2d 1227, 1235 (10th Cir.Cir.1986), cert. denied, 482 U.S. 909, 107 S.Ct. 2491, 96 L.Ed.2d 383 (1987). Testimony that the defendant‘s immediate family considered him an embarrassment and that the grisly crime was an inevitable ending to Davis’ life story, however, would be extremely prejudicial to the defense. See DeLuna v. Lynaugh, 873 F.2d 757, 758-59 (5th Cir.), cert. denied, 493 U.S. 900, 110 S.Ct. 259, 107 L.Ed.2d 208 (1989) (discussing potential devastating effect of character testimony that “backfires“). Therefore, Truman‘s strategic decision to forego investigation of potential character witnesses was supported by a reasonable professional judgment that such avenues would be more damaging than helpful. See Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2065-67; Burger, 483 U.S. at 791-92, 107 S.Ct. at 3124-25; Darden, 477 U.S. at 186, 106 S.Ct. at 2473; Laws v. Armontrout, 863 F.2d 1377, 1389 (8th Cir.1988), cert. denied, 490 U.S. 1040, 109 S.Ct. 1944, 104 L.Ed.2d 415 (1989); Foster v. Strickland, 707 F.2d 1339, 1345 n. 7 (11th Cir.1983), cert. denied, 466 U.S. 993, 104 S.Ct. 2375, 80 L.Ed.2d 847 (1984). Accordingly, we will not disturb the conclusion of the court of appeals that Truman was not ineffective in this regard.
B
Davis next challenges Truman‘s failure to investigate adequately and to present evidence of Davis’ alcoholism as a mitigating factor at the sentencing phase. Again, we agree with the trial court and the court of appeals that Truman acted reasonably as to this issue.
The crux of Davis’ argument here is that Truman should have attempted to show, by way of expert testimony, that Davis fit the profile of a severe alcoholic and, as a result, could not have planned the kidnapping and murder. According to Davis, had Truman researched this issue among “the leading authorities on alcoholism,” he would have discovered that Davis’ alcohol problem, and particularly his claim to have suffered “blackouts” in his memory of the murder, constituted potentially mitigating evidence.8 The question to be addressed under Strickland, however, is whether Truman‘s decision not to present Davis’ alcoholism to the jury as a mitigating factor was a reasonable professional judgment. We conclude that it was.
At the
The record leads us to conclude that Truman‘s decision not to present Davis’ alcoholism as a mitigating factor was a reasonable tactical decision. Accordingly, there is no basis for a finding of ineffective assistance in this regard.
C
Next, Davis argues that Truman was ineffective for his failure to investigate adequately and to present evidence regarding a closed head injury he suffered during an automobile accident in 1965. The record does not support this contention.
Davis claims that although he failed to inform Truman of this incident, Truman should have investigated his prior hospitalizations and discovered that the 1965 accident “caused his drinking to increase, blackouts to start and his criminal history to begin.” This argument ignores the fact, however, that in 1964, one year prior to the accident, Davis’ United States Navy Records indicate that he was diagnosed as having “homicidal tendencies.” Moreover, Davis can point to no evidence which Truman would have uncovered from a more thorough investigation to support his theory that the slight concussion he received in that accident caused organic brain damage.9 In fact, Dr.
Accordingly, we agree with the trial court‘s conclusion that Truman‘s failure to raise this issue at the sentencing phase did not amount to ineffective representation.
D
Davis also contends that Truman was ineffective because he allegedly abandoned his client during closing argument at the sentencing phase. We disagree.
Truman began his closing argument at the sentencing phase with the following remarks:
Now it‘s my turn to come and ask you for Gary Davis’ life. That‘s what I‘m here to do. . . . I‘m moved by this case. It‘s going to take me a minute to talk to you. I didn‘t know what I was going to say to you. I couldn‘t sleep last night. Hell, I couldn‘t sleep for the last five. I don‘t think I was alone.
He proceeded to convey to the jury how on occasion he had felt hostility towards Davis for the crime he committed:
There are times in this case that I hate Gary Davis, I am going to tell you that, and I think you know it. There are times I hate the things he has done, and I have told him, and I tell you, there‘s no excuse for it. There‘s no excuse for it whatsoever.
Truman then explained that Davis had little choice, from the outset of the case, but to seek the mercy of the jury:
I can‘t recall a case where I have never made a closing argument, and I can‘t recall a case where we have spoken as little to you as we have this one, and there‘s a reason for it. That reason is that in December, when I first saw Gary Davis, I knew that sometime or other I was going to be standing here asking for 12 people‘s mercy. That‘s all he has got. That‘s all we can seek.
Truman also questioned the morality of the death penalty in general, arguing that to impose the death penalty on Davis for what he has done would not provide any consolation to the victim‘s family:
Like [the prosecutor] says, like Chaplain Sunderland, I couldn‘t be on this jury, because I, too, think killing is wrong, and it‘s killing, whether it‘s the state, and it‘s killing whether it‘s Gary Davis. . . . [I]f I thought that Brandon and Kristan May [the victim‘s children] would have five seconds of peace by Gary Davis’ death, I would choke the life out of him right now, and he knows it, but it won‘t help. He‘s got a life sentence. . . . He‘s never, ever getting out, and he deserves never, ever to get out.
Truman then argued that despite his own anger at Davis for having lied to him, he strongly believed that Davis was no more culpable, and likely less culpable, than Fincham, who already received a life sentence:
Some of the times I hate Gary Davis because of what he has done to me. I have been on this case since December, when the public defender got off. The public defender got off because of Gary Davis’ lies, and Gary Davis has lied to me. Gary Davis set up the public defender for failure. In a lot respects he has set me up for failure. I guess I‘m too prideful, worried about my reputation. Maybe that‘s why I hated him the other day.
. . . .
As bad as Gary Davis is—and you won‘t hear me say otherwise—there‘s someone equally as bad, maybe worse. That someone continues to lie. That‘s the someone who is so battered, when Gary Davis finally summons up a spark of conscience, and wants to tell the police, it‘s the battered, abused Rebecca Davis [Fincham] that says, “Don‘t tell ‘em shit, we‘ll get a lawyer.” . . . And you saw [Davis] on the stand. . . . Anything to save Becky Davis [Fincham]. That demonstration alone, of watching him testify, I submit to you shows who‘s wearing the pants in this family. I‘m not saying that forgives Gary Davis. Nothing forgives Gary Davis. He deserves to get what she [Fincham] got. . . . They‘re in the same position, I submit to you, and I submit to you that both ought either to look at the gas chamber, or both spend the rest of their lives in the penitentiary.10
Truman concluded his statement with the following remarks:
You can‘t change what‘s happened and I am not going to twist or fudge anything for you. Now‘s the time for me to be heard. . . . [E]ach one of you has it in your hand to spare Gary Davis or to kill him, for if one of you says no, stop the killing, there‘s been too much, that‘s the way it will be.
Is there a man so bad that he‘s irredeemable? That‘s the question here. There‘s no question about what happened. It‘s a question about what‘s going to happen. I have never begged a jury before for anything, but I‘m begging you now, and I am asking you please not to kill Gary Davis.
Although Truman‘s choice of words was flamboyant and perhaps overdramatic at times, his closing statement, taken as a whole, conveyed several important messages to the jury about his client. First, Truman made it clear from the outset that he was asking for the mercy of the jury in the face of overwhelming aggravating evidence against his client. Rather than attempting to “argue the absurd,” Truman reasonably conceded the obvious strength of the prosecution‘s case and focused instead on the fact that Davis’ life was in the hands of those twelve jurors. See, e.g., Romero v. Lynaugh, 884 F.2d 871, 877 (5th Cir.1989), cert. denied, 494 U.S. 1012, 110 S.Ct. 1311, 108 L.Ed.2d 487 (1990) (counsel‘s decision not to burden jury with the obvious nor to argue the absurd held reasonable); Coleman, 802 F.2d at 1236 (not violative of Strickland to limit closing argument to an appeal to jury‘s merciful instincts).
Second, Truman made a strong plea to the jury to consider the moral justification for imposing the death penalty in this case. Such an appeal to the jurors’ moral and religious beliefs is a common defense tactic and one that highlights the “awesome responsibility” of determining whether death is the appropriate sentence. See Caldwell v. Mississippi, 472 U.S. 320, 337, 105 S.Ct. 2633, 2643-44, 86 L.Ed.2d 231 (1985); Coleman, 802 F.2d at 1236.
Third, Truman continued to present his “equitable” theory that Fincham was more culpable, even after Davis had contradicted its premise in his trial testimony and in his statement to the jury at the sentencing phase.11 Truman explained that Davis’ attempt to shoulder the blame for the murder was just another example of how Fincham manipulated and controlled Davis. Truman‘s portrayal of his client as untruthful was an integral part of this strategy, showing the extent to which Davis would say and do whatever Fincham requested.
Fourth, Truman stated that he was not going to “twist or fudge anything,” thereby attempting to maintain his credibility and candor with the jury. We cannot fault Truman‘s efforts in this regard. See, e.g., People v. Wade, 44 Cal.3d 975, 244 Cal.Rptr. 905, 912, 750 P.2d 794, 801 (Cal.), cert. denied, 488 U.S. 900, 109 S.Ct. 248, 102 L.Ed.2d 237 (1988).
Furthermore, we decline to accept Davis’ invitation to second-guess Truman‘s strategy at closing argument where such strategy was largely compelled by Davis’ own decision, contrary to Truman‘s sound advice, to take the stand and testify that he (Davis), and not Fincham, was solely responsible for the murder. See Romero, 884 F.2d at 877 (refusing to fault defense counsel for use of dramatic ploy at closing argument where client confessed to participation in brutal rape and murder); Foster, 707 P.2d at 1343-44 (“Petitioner, who preempted his attorney‘s strategy choice, cannot now claim as erroneous the very defense he demanded [his counsel] present.“). When a defendant chooses to take the stand, his testimony “gives the jury an immediate and visible impression of him as a person, which may color their view of the entire case against him.” People v. Curtis, 681 P.2d 504, 513 (Colo.1984). The potential adverse consequences of testifying, which the defendant must accept as part of his Curtis decision, id. at 513-14, include any restrictions which such testimony may place upon the strategies available to his or her counsel in presenting the defense.
Truman‘s remarks to the jury about his exasperation with how Davis had “set [him] up for failure” reflect the difficult situation in which he and his client found themselves upon completion of the prosecution‘s closing remarks. The prosecutor had presented evidence of six aggravating factors, including Davis’ prior felony conviction for sexual assault, each of which could serve as the basis for a sentence of death. As Davis freely admitted at the
Thus, Truman presented several reasonable arguments to the jury as to why Davis’ life should be spared, and we refuse to fault him, in hindsight, for not presenting even more. See Coleman, 802 F.2d at 1235-36 (rejecting argument that counsel should also have attempted to “humanize” his client at closing argument). In view of the limited options available to Truman after Davis testified, we are convinced that Truman‘s summation was the product of sound trial strategy. Accordingly, Truman‘s representation at this stage of the proceedings fell within the range of professionally competent assistance required by Strickland.13
E
Finally, Davis contends that Truman was ineffective in his failure properly to raise certain arguments about the death penalty procedure or to object to certain alleged errors committed during the penalty phase. We find no merit in this contention.
As the court of appeals correctly noted, this court has already addressed and rejected Davis’ claims as to the proportionality of the sentence and the doubling of aggravating factors. See Davis I, 794 P.2d at 173-74, 188-89. Davis now argues, however, that those claims failed on direct appeal because Truman did not investigate them adequately. Our opinion makes it clear, however, that even if Truman had spent considerably more energy pursuing those claims, such efforts would have been wasted. Neither claim raises a legally significant challenge to the Colorado death penalty procedure at issue. Id.
Davis also contends that Truman should have objected to several counts submitted to the jury at the sentencing phase and to an instruction that felony murder and murder after deliberation were two separate crimes, rather than alternative methods of committing a single crime. We need not decide, however, whether Truman‘s failure to object to these specific issues amounted to constitutionally deficient assistance, because Davis has not met his burden of showing that he was prejudiced thereby. The mere assertion of error is insufficient under Strickland, and Davis has failed to provide any basis for concluding that had Truman objected to those alleged errors, Davis would not have been sentenced to death.
III
In summary, we reject Davis’ several claims that he was deprived of his constitutional right to effective assistance of counsel at the sentencing phase of his trial. Testimony adduced at Davis’
LOHR, J., specially concurs.
Justice LOHR specially concurring:
The majority rejects the claim asserted by the defendant, Gary Lee Davis, in a
I.
The right to effective assistance of counsel is guaranteed by both the
A court may address the two components in either order, and if it is found that the defendant has not established one prong it is unnecessary to address the other. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069; see People v. Garcia, 815 P.2d 937, 941 (Colo.1991).
II.
Davis moved under
Truman stated that he realized before trial that this case was a “life or death case,” which at some point would likely proceed to a penalty phase. He testified that, in spite of this knowledge, he did not adequately investigate possible mitigating factors in the defendant‘s background. Instead, his strategy, based on information supplied by his client, and as reflected by his opening statement to the jury, was to portray Rebecca Fincham, the defendant‘s wife and co-offender, as equally or more culpable than the defendant. Truman wished to persuade the jury that because Rebecca Fincham received a life sentence, the defendant‘s sentence should be no more severe. Once the defendant, contrary to the advice of counsel, testified during the guilt phase of the trial, changed his story, and accepted full responsibility for the death of the victim, minimizing the involvement of his wife in the killing, Truman was “unprepared to go forward with regular mitigation.” Record, v. VIII at 25. Truman stated it was his belief that this failure to anticipate and prepare for the defendant‘s decision to testify and assume the role of principally culpable actor fell below the standard of competence for attorneys in Colorado.
Brake also testified that the representation was deficient. Based upon her more than fourteen years experience as a trial attorney and her current position as Chief Trial Deputy in the Public Defender‘s Office with litigation duties limited to death penalty cases, she testified that the representation provided by
And this is not just standard practice but it‘s really required if you‘re going to determine if this person is qualified to sit or unqualified to sit, because you get people who cannot consider categorically, for example, certain types of mitigation evidence or certain types of aggravation evidence. Record, v. VIII at 124.
In Brake‘s opinion, this essential investigation was never done. Some pretrial investigation for possible mitigating evidence was conducted, but the search was essentially unsuccessful. According to Brake, the investigation was incomplete and lacked the thoroughness required by local standards governing attorney performance in cases of this kind.3
As a result, Brake testified, jury selection was not the only portion of trial adversely affected. When the defendant insisted on testifying at the guilt phase and changed his story, defense counsel‘s line of defense was suddenly severely impaired. Because of the deficiency in preliminary investigation, not only did counsel have no alternative strategy available, but he did not have any mitigation evidence with which to “humanize” the defendant during the penalty phase.
The prosecution vigorously cross-examined these experts but presented no witnesses. Notwithstanding the absence of evidence contradicting the standard asserted by Brake, the trial court found representation effective. Strickland suggests it is proper for a court to use its own legal knowledge to evaluate effectiveness, and the majority opinion in this case appears to do the same. See also Naranjo, 840 P.2d 319; People v. Cole, 775 P.2d 551 (Colo.1989); Norman 703 P.2d 1261. However, in light of the unrebutted expert testimony concerning the inadequacy of defense counsel‘s performance in this case, I find the issue of ineffectiveness of counsel close and difficult and would elect not to resolve the case on this basis.
III.
“In resolving an ineffective-assistance claim, a court is not required to first determine whether counsel‘s performance was constitutionally deficient, for if the defendant fails to make an affirmative demonstration of prejudice, then the court may resolve the claim on that basis alone.” Garcia, 815 P.2d at 941. The limited investigation conducted showed that most potential defense witnesses would likely offer damaging testimony in addition to anything positive, or would at least be subject to damaging cross-examination. As the trial court found, “No showing has been made as to anything Mr. Davis’ family could have said which would have influenced the decision of the jury.”4 Record, v. I at 238. Considering this and the devastating effect of the defendant‘s decision to testify at trial, the trial court found that the defendant was not prejudiced by any alleged ineffectiveness of counsel.
Because prejudice presents a mixed question of fact and law, we are not wholly bound by the trial court‘s finding. See supra note 1. Nevertheless, “the trial court is in the best position to evaluate the evidence and the credibility of witnesses with regard to this portion of the Strickland test.” People v. Pozo, 746 P.2d 523, 529 (Colo.1987). For this reason, we should give its findings on prejudice especially attentive consideration. Considering the trial court‘s findings and all of the evidence presented against the defendant,5 along with the weakness of the potential character witnesses’ testimony, I agree that the defendant did not meet his burden of demonstrating prejudice.
Accordingly, I concur in the judgment of the majority that the trial court properly denied the defendant‘s