Opinion by
{1 Defendant, Todd William Newmiller, appeals the district court's order denying his Crim. P. 85(c) motion for postconviction relief. We affirm.
I. Background
A. Facts
12 Defendant, his brother, and their friends, Brad Orgill, Jason Melick, and Michael Lee, went to a strip club in Colorado Springs to celebrate defendant's birthday. When the group was leaving the club, they had an altercation with another group, consisting of the victim, Chisum Lopez, and Charles Schwartz, regarding a comment someone in the victim's group had made to a dancer.
3 Both groups eventually left the club in separate vehicles. About a half block away, the victim's group stopped its pickup truck in the middle of the street. Defendant's group stopped its Jeep behind the truck. The two groups confronted each other, and at some point during that confrontation, the victim was stabbed in the heart.
T4 All the participants, including the vie-tim, fled from the seеne. The victim's group headed to the hospital but pulled over when the 911 dispatcher told them to wait for an ambulance. The victim was transported to the hospital by ambulance and pronounced dead on arrival.
1 5 The following day, Melick learned that someone had been killed in the same area where the fight had occurred. He placed an anonymous phone call to the police and named defendant as the killer. Defendant was arrested and a search of his person uncovered a knife. Forensic testing revealed a small amount of blood matching the vie-tim's on the blade of the knife.
B. Trial
T6 Defendant was charged with second degree murder. He did not testify at trial, but everyone else involved did. Although there were substantial inconsistencies in the testimony, the record establishes that no one saw defendant stab the victim, no onе saw defendant confront the victim, and no one saw any of the parties with a weapon that - night before or during the fight. The record also establishes that during the altercation, Orgill exchanged punches with the victim and defendant verbally argued with Lopez. It was uncontested that defendant stabbed one of the truck's tires right before the victim's group drove away.
T7 The prosecution's theory of the case was that defendant stabbed the victim at the very beginning of the confrontation and the victim remained alive for several minutes after he had been stabbed. The prosecution
T8 In support of its theory, the prosecution offered testimony from Joel Newmiller (defendant's brother), Melick, Orgill, and Lee.
T9 Orgill and Lee testified that they did not hear defendant say аnything at that time about stabbing anyone; however, they both testified that when the three of them were at Orgill's house later that night, defendant said something like he hoped he had not stabbed anyone or he thought he might have stabbed someone. Orgill, Lee, and defendant looked at defendant's knife, but no blood was visible.
{110 Orgill's clothes were covered heavily in blood. Defendant also had some blood on his clothing. As a result, both Orgill and defendant burned their clothes.
§11 Defendant was convicted of second degree murder with a deadly weapon and sentenced to thirty-one years imprisonment.
_C. Direct Appeal
{ 12 A division of this court affirmed defendant's conviction and sentence on direct appeal. People v. Newmiller, (Colo.App. No. 06CA1402,
D.Crim. P. 35(c) Motion
113 Defendant moved for postconviction rеlief pursuant to Crim. P. 35(c), claiming that his trial attorneys rendered ineffective assistance of counsel. After holding a hearing, the postconviction court issued a lengthy and comprehensive written order denying the motion.
{14 Defendant appeals. Specifically, he argues that his trial attorneys, Attorney 1 and Attorney 2, were ineffective because (1) they failed to request instructions on lesser included offenses and did not consult with and advise defendant regarding lesser included offenses; (2) they failed to request an instruction on the lesser nonineluded offense of accessory to crime; (8) they failed to offer testimony from a medical expert and failed to consult with and retain an expert in crime scene analysis; and (4) Attorney 1 labored under an actual conflict of interest that affected his advice regarding defendant's right to testify and both attorneys failеd to adequately consult with and advise defendant regarding testifying.
IL Law
A criminal defendant is constitutionally entitled to the effective assistance of counsel. Strickland v. Washington,
{16 Counsel's performance is deficient if the defendant shows that counsel's representation "fell below an objective standard of reasonableness." Ardolino,
17 To establish prejudice, the defendant must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Ardolino,
118 A claim of ineffective assistance of counsel presents a mixed question of law and fact. Dunlap,
III. Defendant's Ineffective Assistance Allegations
A. Failure to Request Lesser Included Offense Instructions
€ 19 Defendant argues that trial counsel's failure to request lesser included offense instructions and consult with and advise him on lesser included offenses constituted ineffective assistance of counsel. He asserts that strong evidence supported such instructions; that the evidence showed at least a reasоnable probability of conviction on a lesser offense; and that there was no downside to having the jury so instructed.
{20 Defendant testified at the Crim. P. 35(c) hearing that neither of his attorneys discussed with him the possibility of requesting instructions on lesser included offenses, including reckless manslaughter and negligent homicide. Attorney 1 testified that he did not recall discussing lesser included offenses with defendant, but that jury instructions were Attorney 2's responsibility. At- ° torney 2 testified that she did not remember specifics regarding jury instructions or lesser included offenses, but that she assumed she had considered and discussed with Attorney 1 whether any lesser included offenses would have been helpful to the defense. She testified that she was sure that if she had thought it was appropriate, she would have asked for a lesser included offense instruction.
121 However, she testified that the defense was, from the beginning, an "all-or-nothing" case:
[Mly feeling coming into the case is I was thinking that the best course of action would be a self-defense case.... [But] when I met [defendant], it was I did not do this; it wasn't a self-defense case.... [So] I was in a bit of a disagreement with the road we were going down, but [defendant] was absolutely adamant that he did not do this, and the course was going to be the way it was.
She therefore explained that if a lesser included offense instruction had been given, "lilt would have been one of those kind of awkward situations where a defense attorney is arguing he did not do this, but if you think he did, then find him guilty of something less than second-degree murder, which is not always a great way to go."
122 The postconviction court found that both of defendant's trial attorneys were "highly experienced criminal defense attorneys," a finding which is supported by the
123 The court concluded that counsel's failure to request a lesser included offense instruction or consult with defendant on the matter did not constitute ineffective assistance. It explained:
At all times, [defendant] was insistent upon his innocence and considered the case to be an all-or-nothing case. Thus it was understandable that [Attorney 2] did not consult with [defendant] and highly probable that consultation would not have resulted in a request for a lesser offense instruction. [Attorney 2] was a highly experienced criminal defense lawyer, she and [Attorney 1] had thoroughly prepared the case, and after the presentation of the People's case, [Attorney 2] was confident that there was at least a reasonable likelihood of acquittal. Instructing the jury on a lesser included offense would have risked conviction of the lesser offense instead of an outright acquittal.
We agree with the court that defendant has not established that his trial attorneys were constitutionally ineffective in this area.
124 Colorado law provides that "Itlhe decision whether to request jury instructions on lesser offenses is a tactical decision that rests with defense counsel after consultation with the defendant." Arko v. People,
125 Therefore, to determine whether counsel's decision not to request lesser included offense instructions was objectively reasonable, we must examine counsel's entire performance as it relates to this matter, especially because counsel retains the ultimate decisionmaking authority on this issue. See Van Alstine v. State,
126 The Tenth Cireuit has explained that "the general presumption of objective reasonableness requires [a defendant] to 'overcome the presumption that under all the cireumstances, the challenged action might be considered sound trial strategy'" Bullock v. Carver,
[ 27 "[Where it is shown that a particular decision was, in fact, an adequately informed strategic choice, the presumption that the attorney's decision was objectively reasonable becomes 'virtually unchallengeable.'" Id. at 1046 (quoting Strickland,
128 Except in situations where counsel was plainly incompetent, most courts that havе considered this issue have concluded that the decision not to request lesser included offense instructions was a reasonable trial strategy. See, eg., State v. Grier,
129 We agree with these courts and conclude that counsel made an adequately informed strategie decision to not request lesser included offense instructions, and defendant has not rebutted the "virtually unchallengeable" presumption that the decision was objectively reasonable. Bullock,
130 Accordingly, counsel's failure to request lesser included offense instructions and to consult with defendant on the matter did not constitute deficient performance under prong one of Strickland. Because defendant has not established that counsel's failure in this respect met the first prong of Strick- * land, we do not address the second prong, prejudice. See Strickland,
B. Failure to Request an Accessory Instruction
31 Defendant argues that his trial counsel were ineffective because they failed to request an instruction on the lesser nonin-cluded offense of accessory to crime. The postconviction court concluded that the failure to request this instruction did not constitute ineffective assistance because there did "not appear to have been any factual basis for an instruction on the lesser offense of [ajecessory" given that "the evidence was that the defendant burned his own clothes, not Orgill's." The court also explained:
[A] finding of guilty of accessory would have required a jury finding beyond a reasonable doubt that another person, presumably Orgill, had committed the homicide. Such a finding, which the jury could have made with or without an accessory instruction, would have assured the defеndant's acquittal of the charge of murder. The jury in fact rejected the finding (that Orgill committed the crime) necessary to have convicted the defendant of accessory.
We agree with the court that counsel's failure to request an instruction on accessory did not constitute ineffective assistance.
132 "A lesser non[ lincluded offense is an offense less serious than the charged offense, arising from the same facts but containing at least one element different from those in the original charge." People v. Garcia,
133 "A person is an accessory to crime if, with intent to hinder, delay, or prevent the discovery, detection, apprehension, prosecution, conviction, or punishment of another for the commission of a crime, he renders assistance to such person"; "[rlen-der assistance" means, among other things, "[elonceal, destroy, or alter any physical or testimonial evidence that might aid in the discovery, detection, apprehension, prosecution, conviction, or punishment of such person." §§ 18-8-105(1), (2)(e), C.R.S.2018. To be convicted under the accessory statute, a defendant must know that the principal committed the crime, which. requires a showing that the defendant had "knowledge of the general character of the underlying offense." Barreras v. People,
934 We conclude defendant has not shown that counsel's performаnce was deficient in failing to request an accessory instruction because defendant has not overcome "'the presumption that under all the circumstances, the challenged action might be considered sound trial strategy'" Bulock,
4 35 Defendant did not introduce any evidence that the failure to request an instruction on accessory could not have been considered a sound trial strategy from the perspective of counsel at the time, nor has he shown that a misunderstanding of law or lack of investigation into the facts of the case contributed to counsel's failure in this respect. We therefore conclude that defendant has not rebutted the presumption that counsel's failure to request an instruction on accessory was objectively reasonable.
€36 Accordingly, defendant has not demonstrated that counsel's failure to request a lesser nonineluded instruction on accessory to crime constituted deficient performance. Because defendant hаs not established that counsel's failure in this respect met the first prong of Strickland, we do not address the prejudice prong. See Strickland,
C. Failure to Call Expert Witnesses
T37 Defendant argues that his trial attorneys were ineffective because they failed to present testimony from an expert witness in medicine and failed to consult with and hire a crime scene analysis expert. We disagree.
1, Medical Expert
188 At trial, the prosecution called Dr. George Hertner, an emergency room physician who saw the victim when he arrived at the hospital. Dr. Hertner, qualified as an expert in emergency medicine, testified that death is not always instantaneous with the type of wound that the victim suffered.
T39 The prosecution also presented testimony from Dr. Donald Ritchey, who had performed the autopsy on the victim, as an expert in forensic pathology. Dr. Ritchey testified that it was extremely likely that after thе victim was stabbed, blood pooled in his pericardium (the sac enclosing the heart) and slowed the flow of blood from the wound, an occurrence known as pericardial or cardiac tamponade. In his opinion, the cardiac tamponade prevented the victim from immediately bleeding out, and thus the victim could have lived for some period of time after he was stabbed, supporting the prosecution's theory that defendant could have stabbed the
[40 At the Crim. P. 35(c) hearing, defendant offered testimony from Dr. David Glaser as an expert in emergency medicine. Dr. Glaser testified that "in general," it is possible for a treating emergency room physician to estimate how long а deceased patient would have lived following a stab wound to the heart. He also testified that the type of wound the victim suffered would be unlikely to cause cardiac tamponade and that he would be surprised if the vietim had survived more than a minute or two after the wound was inflicted, with two minutes being the upper limit, On cross-examination, Dr. Glaser admitted that he agreed with Dr. Ritchey and Dr. Hertner that it is not possible to know for sure how long someone with the type of wound the victim suffered would have survived and that it would depend on various factors. He also answered affirmatively when asked whether the victim could have engaged in a fight for a short period of time after having been stabbed.
§41 The prosecution called Dr. Robert Bux at the Crim. P. 85(c) hearing as a rebuttal witness to Dr. Glaser. Dr. Bux testified that it is not possible to determine specifically how long somebody will live after receiving a stab wound to the heart. He testified that the victim had some degree of cardiac tampo-nade while he was still alive and that the tamponade reasonably could have extended the victim's life. He explained that there is no way to know how long the victim lived after the wound was inflicted but he disagreed with Dr. Glaser that the victim would have been dead within a minute. Rather, he thought it was possible the victim could have survived and functioned for a couple of minutes or even longer.
42 Also introduced at the Crim. P 85(c) hearing was evidence regarding a report prepared by the prosecution discussing a pretrial interview with Dr. Andrew Berson, an emergency room trauma surgeon. Dr. Ber-son's report, which had been provided to the defense during discovery, described the type of wound the victim suffered and opined that someone with that type of wound would bleed out between thirty seconds and a minute, versus someone with a smaller wound where - cardiac tamponade could occur.
143 The postconviction court concluded that defendant did not establish that the failure to call a medical expert like Dr. Glaser or Dr. Berson constituted ineffective assistance of counsel. It found that Attorney 2 had researched the issue of survivability after a stab wound to the heart, interviewed Dr. Ritchey in person, and consulted two independent forensic pathologists in connection with Dr. Ritchey's anticipated testimony. The court concluded that this level of investigation and the subsequent decision not to retain a medical expert clearly met the standard of reasonably competent assistance. The court further found that it was probable that had the defense called Dr. Glaser or Dr. Berson at trial, the prosecution would have been permitted to call Dr. Bux in rebuttal. It concluded:
Given the limitations on medically or scientifically putting specific time estimates [on] survivability, the consensus on the factors affecting survivability, the closeness of the medical experts' time estimates [regarding how long the victim could have lived after the stab wound], and evidence of the probable length of the fight, it is unlikely that testimony by Dr. Berson or Dr. Glaser would have had any impact on the result of the trial,
44 Defendant now argues that the post-conviction court's conclusion that trial counsel's performance was not deficient in failing to call Dr. Berson at trial is erroneous. He claims the court failed to acknowledge the significance of Dr. Berson's potential testimony, which he asserts would have been exculpatory because Dr. Berson's survival time frame-between thirty seconds and one minute-rebutted and contradieted the prosecution's theory of guilt. He similarly argues that the court erred in not concluding that trial counsel was deficient for failing to hire an expert like Dr. Glaser.
145 Counsel has a duty to make reasonable investigations. Strickland, 466
146 The United States Supreme Court explained in Strickland that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable."
T47 The postconviction court's inference that counsel did not call a medical expert because they did not believe they could find a credible medical expert to rebut Dr. Ritchey is supported by the record: Attorney 2 testified at the Crim. P. 35(c) hearing that had the experts she consulted disagreed with Dr. Ritchey regarding how long defendant could have lived, they would have testified. Also, the record shows that counsel had the requisite knowledge, or had consulted with experts to the degree necessary to acquire such knowledge, to understand the significance of the medical evidence and to competently cross-examine the prosecution's exрerts regarding the evidence. CJ. Pavel v. Hollins,
48 We therefore conclude that counsel's decision was strategic and adequately informed, and defendant has not overcome the "virtually unchallengeable" presumption that cоunsel's decision was objectively reasonable. Bullock,
T49 Nevertheless, defendant argues that counsel's performance was deficient in this regard because failure to present exculpatory evidence is ordinarily deficient unless some cogent tactical or other consideration justified it, and counsel offered no such explanation here. See Griffin v. Warden,
50 All the medical experts agreed that it is not possible to say for sure how long the victim lived after he had been stabbed. Had Dr. Berson been called and testified that the victim would have died within thirty seconds to a minute, the jury would have had to weigh that testimony against testimony by Dr. Ritchey and Dr. Hertner that it is not possible to definitively determine how long the victim could have survived. Consequently, what weight the jury would have given such testimony is unclear.
1151 Also, unlike the cases cited by defendant in which the evidence at issue could have determined the outcome of the case, other evidence that incriminated defendant existed that would not have been rebutted by favorable testimony on the medical evidence, such as defendant's statements about stabbing someone and the victim's blood on defendant's knife. CJ Duncan,
1 52 We therefore agree with the postcon-viction court that defendant has not shown that counsel's failure to call a medical expert constituted deficient performance under the first prong оf Strickland. Because defendant has not established deficient performance, we do not address prejudice. See Strickland,
2. Crime Scene Analysis Expert
153 At trial, the prosecution presented testimony from Kimberly Bjorndahl, a crime scene technician who had conducted the bloodstain analysis and crime seene reconstruction in this case. At the Crim. P. 85(c) hearing, the defense called John Koziol, an expert in crime scene investigation analysis and reconstruction. Koziol testified that, based on the bloodstains found at the seene of the stabbing, the victim most likely sustained the stab wound at the location where the witnesses had seen Orgill and the victim fall to the ground during their fight. As to the bloodstains that were probably made before that point, he disagreed with Bjorndahl that they could not have come from other minor injuries the victim had suffered. Rather, he believed the source of those bloodstains was most likely blood from the victim's minor wounds. He did agree with Bjorndahl, however, that it was not possible to establish definitively, based on the bloodstains, from what wound or area of the body the blood came.
1] 54 Oziol also testified that the absence of any of the victim's blood on defendant's jacket and the fact that Orgill was covered in ~- blood made it more likely Orgill had stabbed the victim. In contrast, Bjorndahl testified at trial that it was possible the assailant did not have any blood on his clothing. As to whether a knife found on the seat of the truck where the victim had been sitting after he was stabbed could have been the murder weapon, Bjorndahl testified that it was "not logical" because the knife was found in a closed position with no blood on the blade. Koziol testified the knife could have inflicted the wound during the victim's fight with Or-gill. Koziol further expressed concern over how dеfendant's knife was handled when it was in police custody and stated that there was a large opportunity for contamination, in that the victim's blood could have been transferred to the blade of defendant's knife at that time.
[ 55 The prosecution called Jeff Saviano, a forensic consultant who had worked with Bjorndahl on the case, to rebut Kogiol's Crim. P. 85(c) hearing testimony. Saviano, qualified as an expert in crime scene reconstruction and bloodstain pattern, testified that he disagreed with Koziol on several points. Salviano testified that
enone of the victim's wounds other than the stab wound were capable of causing the bloodstains at the scene;
* the spot where Orgill and the victim fell to the ground was not necessarily where the victim was stabbed;
ejust because defendant did not have blood on his jacket did not mean he had not stabbed the viсtim; and
@the police had not mishandled defendant's knife during processing and contamination was unlikely.
Saviano testified that his ultimate opinion was that it was equally likely that defendant or Orgill had stabbed the victim.
T56 Attorney 2 testified that she did not think about hiring an expert in crime scene analysis because in her pretrial interview with Bjorndahl and in Bjorndahl's report, Bjorndahl stated she did not know exactly what happened and it was possible Orgill had stabbed the vietim. Attorney 2 thus believed that parts of Bjorndahl's testimony would be very favorable to the defense and could independently establish reasonable doubt. More
T57 The postconviction court concluded that, considering Attorney 2's extensive experience in retaining experts in homicide cases and her thorough knowledge of the facts of the case, her failure to call a crime scene expert regarding bloodstain pattern analysis did not constitute deficient performance. The court further found that, as to prejudice, if both Koziol and Saviano had been called as witnesses at trial, it is likely that Saviano's testimony would have been far more persuasive because Saviano had far more training and expertise in the area of bloodstain pattern analysis than Koziol and Saviano's testimony was supported by other evidence. The court thus concluded that it was highly unlikely that, had the defense called a bloodstain pattern analysis expert such as Koziol at trial, the results of the trial would have been any different.
T58 The postconviction court reached the same conclusion regarding dеfense counsel's failure to present expert testimony to rebut Bjorndahl's testimony that it was not logical the victim's knife caused the fatal wound.
The court explained:
Bjorndahl's opinion was ... based more upon logic than expertise. Koziol's opinion challenged that logic based upon a statement attributed to the victim [Schwartz testified that right before the fight the victim said something like, "I've got a knife, let's go"], not upon erime scene analysis expertise. The jury had all of the above facts and could draw its own conclusions.... Failure to call an expert on a matter more properly the subject of lay testimony is not ineffective assistance of counsel, and it is difficult to imagine how expert testimony on this matter would have affected the result of the trial.
T 59 Lastly, the postconviction court found that Koziol's testimony regarding potential contamination of defendаnt's knife was speculative and unpersuasive. Accordingly, the court concluded that the failure to call an expert on this issue did not constitute deficient performance nor would it have changed the result of the trial.
160 We agree with the postconviction court that defendant has not shown that, in light of all the cireumstances, counsel's failure to call a crime seene reconstruction expert was "outside the wide range of professionally competent assistance." Strickland,
T 61 Because defendant has not established that counsel's performance was deficient for failing to call a crime seene analysis expert, we do not address whether defendant was prejudiced by this failure. See Strickland,
{ 62 We therefore conclude that defendant has not established that counsel's failure to call medical and crime seene analysis experts constituted ineffective assistance.
D. Failure to Advise Defendant Regarding His Right to Testify
[63 Defendant argues that his trial attorneys were ineffective because Attorney 1 labored under an actual conflict of interest affecting his ability to advise defendant on his right to testify and counsel failed to consult with and erroneously advised defendant regarding testifying. We reject defendant's arguments.
164 At the time of trial, defendant was subject to a deferred sentence in a felony vehicular eluding case in which he was represented by Attorney 1. Under Colorado law, evidence of a guilty plea entered in a deferred sentencing stipulation may be used to impeach a defendant who has elected to testify. People v. Vollentine,
165 A defendant may prevail on an ineffective assistance of counsel claim without establishing prejudice if he or she can show that an actual conflict of interest adversely affected the adequacy of trial counsel's representation. Dunlop,
166 The postconviction court found that no evidence was presented that the prospect of impeachment by the use оf the guilty plea affected defendant's decision not to testify and that no evidence was presented that there was any defect in the guilty plea. underlying the deferred judgment. These findings are supported by the record. Defendant thus cannot show that any conflict of interest on Attorney I's part affected the adequacy of his representation because there is no evidence in the record that there was any legal basis to collaterally attack the deferred judgment or withdraw the plea, and thus nothing to suggest that doing so was a plausible defense strategy. See United States v. Stantini,
2. Failure to Consult and Erroneous Advice
T67 Defendant argues that counsel failed to adequately consult with him and erroneously advised him regarding his right to testify, and their failure in this regard constituted deficient performance and prejudiced his defense. This is the extent of defendant's argument on appeal as to this issue.
168 The postconviction court found that Attorney 1 discussed the case with defendant on multiple occasions and Attorney 1's advice to defendant on this matter was within the range of competence demanded of attorneys in criminal cases. For these reasons and others, the court concluded defendant did not establish ineffective assistance of counsel. Because the court's findings are supported by the record, we decline to disturb the court's findings or conclusion. See also People v. Venzor, 121 P.8d 260, 264 (Colo.App. 2005) (declining to review issues presented in a perfunctory or conclusory matter).
IV. Conclusion
'I 69 The order is affirmed.
Notes
. All of these persons except Melick testified in accordance with plea agreements.
. The only Colorado case that addresses whether defense counsel's failure to request a lesser offense instruction constituted ineffective assistance of counsel is People v. Aguilar,