Peo v. Ramadon

23CA0653 Peo v Ramadon 06-05-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0653
El Paso County District Court No. 12CR2692
Honorable Marcus S. Henson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jasim Mohammed Hassi Ramadon,

Defendant-Appellant.

ORDER AFFIRMED

Division IV
Opinion by JUDGE MEIRINK
Freyre and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced June 5, 2025

Philip J. Weiser, Attorney General, Jillian J. Price, Deputy Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Lauretta A. Martin Neff, Alternate Defense Counsel, Palisade, Colorado, for
Defendant-Appellant
¶1 Defendant, Jasim Mohammed Hassi Ramadon, a/k/a Jay

Hendrix,1 appeals the postconviction court’s order denying his

motion for postconviction relief. We affirm.

I. Background

¶2 In 2012, Ramadon and three others were arrested for sexual

assault. Ramadon was charged with multiple counts of sexual

assault, unlawful sexual contact, and attempted sexual assault and

one count of first degree assault. He was also charged with thirteen

crime of violence sentence enhancers. At trial, Ramadon’s

codefendants testified that Ramadon was responsible for the sexual

assault. Ramadon’s defense was that he was innocent and was

used as a scapegoat by the codefendants, who viewed him as an

outcast. While one count of unlawful sexual contact and its

accompanying crime of violence sentence enhancer were dismissed

and Ramadon was acquitted of first degree assault and its

accompanying sentence enhancers, the jury convicted Ramadon of

all remaining charges. Ramadon was sentenced to a controlling

1 Because defendant refers to himself as “Ramadon” in the opening

brief, we do too.

1
term of twenty-eight years to life in the custody of the Department

of Corrections.

¶3 On direct appeal, Ramadon claimed instructional and

evidentiary error. He also argued that some of his convictions were

multiplicitous or otherwise improper. A division of this court

disagreed with his claims of evidentiary and instructional error but

merged his multiplicitous convictions, vacated the improper ones,

and ordered the mittimus be amended to reflect judgments of

conviction on only the sexual assault charge and the two attempted

sexual assault charges. People v. Ramadon, (Colo. App. No.

14CA1047, Dec. 14, 2017) (not published pursuant to C.A.R. 35(e)).

¶4 Ramadon subsequently filed a pro se motion for postconviction

relief, which counsel later supplemented. The court held an

evidentiary hearing to address Ramadon’s claims that (1) his waiver

of his right to testify was invalid; (2) trial counsel was ineffective for

dissuading him from testifying, failing to investigate or call certain

potential witnesses, and failing to call a rebuttal DNA expert

witness at trial; and (3) all errors individually deemed harmless

together amounted to cumulative error. The court made oral

2
findings and denied Ramadon’s postconviction motion. Ramadon

appeals.

II. Standard of Review

¶5 “When resolving a motion pursuant to Crim. P. 35(c), a court

must make findings of fact and conclusions of law sufficient to

explain the basis of its ruling.” People v. Hardin, 2016 COA 175,

¶ 30. The defendant bears the burden of proving his postconviction

claims by a preponderance of the evidence. People v. Naranjo, 840

P.2d 319, 325 (Colo. 1992).

¶6 We defer to the postconviction court’s findings of fact and

review conclusions of law de novo. People v. Stovall, 2012 COA 7M,

¶ 18. We review de novo whether a waiver of a constitutional right

was knowing, voluntary, and intelligent but defer to the

postconviction court’s findings of fact. People v. Davis, 2018 COA

113, ¶ 35; see also Hardin, ¶ 39 (deferring to postconviction court’s

determinations as to the “weight and credibility to give to the

testimony of witnesses at a Crim. P. 35(c) hearing”).

¶7 A postconviction court’s finding of fact is clearly erroneous

only if it has “no support in the record.” Sanchez-Martinez v.

People, 250 P.3d 1248, 1254 (Colo. 2011). So long as the record

3
supports the postconviction court’s findings of fact, we will not find

that the court has committed clear error.

III. Ramadon’s Claims

¶8 Ramadon contends that his trial counsel threatened to

abandon representation if he testified at trial, and, therefore, he did

not voluntarily, intelligently, and knowingly waive his constitutional

right to testify. Ramadon argues that trial counsel’s threat

constituted ineffective assistance of counsel, which violated his

fundamental constitutional right to testify. We disagree. We

address Ramadon’s assertion that he did not validly waive his right

to testify before addressing his ineffective assistance of counsel

claims.

A. Curtis Advisement and Waiver of the Right to Testify

¶9 A criminal defendant has a right to testify in his or her own

defense under the Due Process Clauses of the United States and

Colorado Constitutions. U.S. Const. amend. XIV; Colo. Const. art.

II, § 25. A defendant’s waiver of the right to testify must be

“knowing, voluntary, and intelligent, and the trial court must make

an on-the-record advisement explaining the nature of this right.”

4
Moore v. People, 2014 CO 8, ¶ 11 (citing People v. Blehm, 983 P.2d

779, 782 (Colo. 1999)).

¶ 10 The trial court should advise the defendant outside the

presence of the jury (1) that he has a right to testify; (2) that nobody

can prevent him from testifying if he so chooses; (3) that if he

testifies, the prosecution will be allowed to cross-examine him;

(4) that if he testifies, the prosecution will be entitled to ask him

about and disclose to the jury any previous felonies he has been

convicted of; and (5) that if his prior felony convictions are disclosed

to the jury, the jury will be instructed to consider the conviction

only as it relates to his credibility. People v. Curtis, 681 P.2d 504,

514 (Colo. 1984). Additionally, the court should inform the

defendant that he has the right to not testify, and if he chooses to

not testify, the jury will be instructed about that right. Id. The

purpose of the advisement is to “safeguard the knowing, voluntary,

and intelligent nature of defendant’s understanding of the right to

testify in deciding whether or not to testify.” Moore, ¶ 19.

¶ 11 When reviewing a defendant’s claim against the waiver of his

right to testify, the postconviction court focuses “not only on the

sufficiency of the advisement itself, but also on the actual knowing,

5
voluntary, and intelligent nature of a defendant’s waiver.” Id. at

¶ 17. The “content of a trial court’s advisement, standing alone,

does not conclusively establish whether a defendant’s waiver of the

right to testify was or was not knowing, voluntary, and intelligent.”

Id. at ¶ 24. Rather, the inquiry is “whether the defendant waived

this right knowingly, voluntarily, and intelligently.” Id. When

determining whether a defendant’s waiver was valid, the court

should consider the circumstances surrounding the waiver,

including what the defendant’s attorney did or did not say; the

defendant’s impairment or intoxication; any potential language

barrier; or coercion to a degree that renders the waiver not knowing,

voluntary, and intelligent. Id. at ¶ 26.

¶ 12 Finally, trial counsel may advise a defendant against

testifying, but, absent an ethical concern, counsel cannot threaten

to withdraw as the defendant’s attorney or to completely contradict

or wholly undermine the defendant’s testimony should he choose to

testify. People v. Bergerud, 223 P.3d 686, 703 (Colo. 2010).

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1. Additional Facts

¶ 13 At trial, the court gave Ramadon two Curtis advisements. The

first advisement began with the following dialogue between the

court and Ramadon:

The Court: What I’m going to do is give you an
advisement of your rights in relation to your
choice to testify or not. I want you to think
about this overnight. This advisement is kind
of giving you information about your rights
regarding testifying or not. It’s to help you
understand not only your right to take the
stand, but also the consequences, thereof.
And that you may testify even if your counsel
advises against that. Do you understand that?

[Ramadon]: Yes, ma’am.

The Court: The right to testify exists. Do you
understand that?

[Ramadon]: Yes, ma’am.

The Court: And this right is personal and no
one can prevent the defendant, which is you,
from testifying. Sir, do you understand that?

[Ramadon]: Yes, ma’am.

¶ 14 The court advised Ramadon on the remaining elements, asked

Ramadon if he understood each element, and continued to clarify

that the decision to testify was only his. The court then reiterated

that Ramadon should think about his decision overnight: “What I’m

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going to do is have you think about that tonight; confer with

counsel. I’ll ask you about your decision not today. Not today. But

after the prosecution is done with their case, correct?”

¶ 15 The next day, the court gave Ramadon a second Curtis

advisement:

The Court: The Court talked to you yesterday
about your right to testify.

[Ramadon]: Yes, ma’am.

The Court: That right is personal to you, which
means it’s your decision to testify or not. I’m
going to read the proffered instruction; that
you, the defendant, is never compelled to
testify and the fact that you do not testify[]
cannot be used as an inference of guilt, which
shall not prejudice you in any []way. Do you
understand that?

[Ramadon]: Yes, ma’am.

The Court: No one can prevent you from
testifying if you want to testify. Do you
understand that?

[Ramadon]: Yes, ma’am.

¶ 16 Again, the court walked Ramadon through each remaining

element of the advisement, asked if he understood, and asked if he

was under the influence of drugs or alcohol. Ramadon confirmed

that he was not under the influence but indicated that he suffered

8
from “brain injuries” that might impair his memory. Nevertheless,

he acknowledged the court’s advisement, stated that he understood

that the right to testify was his decision alone, and waived it as part

of the following exchange:

The Court: Do you think those [injuries] would
affect your ability to understand my
advisement to you about your right to testify
today?

[Ramadon]: I’m not good with the law, but I
trust my lawyer.

The Court: All right. But you understand
that?

[Ramadon]: Yes.

The Court: Even if you trust your lawyers, th[e]
decision to testify or not is solely yours.

[Ramadon]: Yes, I understand.

The Court: Do you need more time to talk to
your attorney about that?

[Ramadon]: No, I do not, ma’am.

The Court: What is your decision?

[Ramadon]: At this time, I wish not to testify.

The Court: And nobody’s —

[Ramadon]: I talked to my counsel, my lawyers
and I don’t testify. That is a voluntary decision
by me.

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The Court: And nobody’s forcing you to do
that, right?

[Ramadon]: No, ma’am.

The Court: Is that sufficient to the People?

[The People]: That’s fine with us, Your Honor.

The Court: Okay. The Court is going to find
that [Ramadon] was given the Curtis
advisement. I find that he has elected not to
testify. I find that decision is knowingly,
intelligently and voluntarily made. Is there
anything further?

[The People]: No, Your Honor.

2. Analysis

¶ 17 Ramadon’s postconviction claim that his waiver was invalid

rests on interactions that occurred with counsel before trial.

According to Ramadon, his trial counsel threatened to withdraw if

he chose to take the stand. During the postconviction hearing,

Ramadon testified that he felt afraid and threatened by his

attorneys, but he “kept saying yeah, I understand to everything”

during the two Curtis advisements.

¶ 18 At the postconviction hearing, both Ramadon’s attorneys,

Chalmers and Hostetler, were asked if they threatened to abandon

representation. Chalmers acknowledged that she strongly

10
encouraged Ramadon not to testify but did not remember

threatening him:

Q. When you had the conversations with Mr.
Ramadon about whether to testify or not
testify, was that pretrial?

A. We had conversation[s] pretrial for sure. He
was adamant all along he wanted to testify,
and we were doing everything we could to
prevent him from testifying. Apart from
actually threatening or something like that, we
were strongly encouraging him not to testify.

Q. And as these issues came up and the
evidence that you suspected that the District
Attorney would present that was not
presented, did you ever have additional
conversations with Mr. Ramadon about his
right to testify?

A. I don’t think so.

Q. Do you believe you should have had
additional conversations with Mr. Ramadon
about testifying?

A. We absolutely should have and, you know,
hindsight is obviously 20-20. [Ramadon] does
have — I mean, obviously the judge doesn’t
know him. We got to know him over the
course of our representation. I think the jury
might have seen some of what we were talking
about why the guys like, kind of didn’t like
[Ramadon] if we had put him on the stand. He
kind of says some things that ha[ve] like an air
of cockiness and some other things.

11
Chalmers was also asked about her conversation with Ramadon

after the court had given the Curtis advisements:

Q. Now to be clear, you said you never
threatened him?

A. No, I don’t think that I threatened him. I
don’t believe I threatened him. That’s not
generally my practice. I would have said
things that he might have interpreted as a
threat. You’re going to die in prison if you
testify, I have said that to clients before.

....

Q. You said that you don’t believe you ever
said, “I will not represent you, I will leave right
now” if he gets on the stand?

A. I don’t remember that happening.

Q. Would it be fair to say there are times that
you disagree with a client’s decision when it
comes to whether to testify or not?

A. All the time.

Q. It’s their decision?

A. It’s their decision.

Q. Do you believe it would be either morally or
ethically wrong to abandon a client if they
make a decision you disagree with?

A. Yeah.

Q. You wouldn’t threaten something that is
morally or ethically wrong?

12
A. I would hope not, no. I don’t remember
saying that to him. I do remember saying I
think you’re going to die in prison if you’re
going to testify.

¶ 19 Similarly, Hostetler testified that while she could see how

Ramadon may have interpreted her strong advice not to testify as a

threat to abandon representation, that was not her position:

Q. And what was your position?

A. That he was not going to testify.

Q. Did you ever threaten Mr. Ramadon in any
way that if he chose to testify that you would
terminate your representation of him?

A. I’m sure we never said it like that, but I can
remember saying we will not represent you if
you testify, we will not. We cannot do this if
you testify.

Q. Fair to say that it came out essentially that
if he testified, you were saying you would no
longer be his attorney; is that correct?

A. I can understand 100% how he would
interpret it that way.

....

Q. And what was your purpose of hounding
and being adamant that Mr. Ramadon couldn’t
take the stand?

A. I couldn’t see a way to defend the case with
him taking the stand. I just thought that it
would — I didn’t think that the jury was going

13
to have the faith in him and believe in him the
way we did.

¶ 20 The postconviction court found that “trial counsel strongly

discouraged Mr. Ramadon from testifying” and that, in advance of

trial, there was a “not even so veiled suggestion that counsel may

actually end their representation of Mr. Ramadon should he make

the decision to testify.” It also acknowledged Ramadon’s testimony

that “he feared losing his counsel if he were to make the decision

potentially to testify.” Ultimately, however, the postconviction court

determined that Ramadon validly waived his right to testify after

reviewing the trial court record, which was “different from what was

otherwise presented in the evidence in [the postconviction] hearing”:

The evidence from trial indicates that Mr.
Ramadon was advised — on more than one
occasion by the Court, was advised on many
different levels regarding the various factors
under Curtis. He was reminded that it was his
decision and his decision alone as to whether
or not he wished to testify. And further, the
Court finds that in response to these
advisements that Mr. Ramadon had expressed
an understanding of those rights. And
furthermore, had indicated on the record that
he trusted his lawyers and that he did not
need any additional time to speak further with
them before deciding to waive his right to
testify.

14
And what’s really striking to the Court is that
under these circumstances the Court has to
give effect, obviously, to the full record that’s
available to me. I do have to give effect to the
Curtis advisement and, again, the responses to
that inquiry.

....

Under these circumstances, the Court finds
that this was — considering both the
testimony in our hearing and the responses to
the court at the time of trial, that this was a
valid waiver of the right to testify. The Court is
also taking this approach and really kind of
couching this assessment in the context of
additional case law, that suggests that even
what I would describe as overtly aggressive
conduct that’s engaged in by counsel at the
time of a discussion about the right to testify,
is not enough to necessarily change the
assessment about whether or not there was
still a valid waiver of the right consistent with
a Curtis advisement being given and all of the
factors of Curtis being outlined by the Court.

¶ 21 On appeal, Ramadon disagrees with the postconviction court’s

conclusion that his waiver was valid. He argues that his trial

counsel’s conduct was so egregious that it violated his right to

testify. We are not persuaded.

¶ 22 First, although the postconviction court found that counsel

strongly discouraged Ramadon from testifying and perhaps made a

“veiled suggestion” that they might end their representation if he

15
chose to testify at trial, the court did not find that they expressly

threatened such action. The court also found that counsel made

those statements “in advance of” and “not during the course of

trial.” Counsel’s behavior did not amount to the situation the

supreme court was concerned about in Bergerud, when the

defendant was expressly forced to choose between proceeding to

trial pro se — which he ultimately chose to do after repeatedly

telling the court he had “no other choice” — and proceeding with

attorneys whose theory of defense would contradict and undermine

his testimony. Bergerud, 223 P.3d at 701. Likewise, the

postconviction court found that despite any veiled suggestion,

Ramadon had not been “coerced to a degree that render[ed] the

waiver [of his right to testify] not knowing, voluntary, [or]

intelligent.” Moore, ¶ 26.

¶ 23 Ramadon’s counsel did not usurp his ability to make a valid

waiver by expressly threatening to withdraw representation.

Rather, his trial counsel’s behavior is more analogous to defense

counsel’s behavior in Davis, when the court determined that the

defendant validly waived his right to testify. Davis, ¶ 44. In Davis,

trial counsel testified at a postconviction evidentiary hearing that he

16
“screamed at clients to try to persuade them not to testify when

they’ve wanted to testify” and that it was “often a question that a

defense attorney fe[lt] very strongly about.” Id. at ¶ 33. Counsel

admitted that if he disagreed with clients who wanted to take the

stand, he would do his very best to dissuade them but would not

“explicitly prohibit” a client from testifying in his or her defense. Id.

Like counsel in Davis, Chalmers and Hostetler were simply doing

everything they could within the boundaries of Bergerud to prevent

Ramadon from testifying because the jury would learn about his

criminal history, and they feared that the jury may have found him

“cocky,” “annoying,” or “unlikeable.”

¶ 24 Second, Ramadon received two adequate Curtis advisements.

We recognize that standing alone, the trial court’s advisements do

not conclusively establish whether Ramadon’s right to testify was

knowing, voluntary, or intelligent, see Moore, ¶ 24, but the

advisements, if not contested by evidence showing otherwise, stand

in support of the validity of the waiver, see id. at ¶ 26. The trial

testimony shows that Ramadon repeatedly confirmed that he

understood every element of the Curtis advisements he was given

and that the decision to testify was solely his to waive. Ramadon

17
testified that waiving his right to testify was a “voluntary decision

by me,” that no one forced him to waive it, and that he “trusted his

lawyers.”

¶ 25 The record supports the postconviction court’s findings of fact

on the weight of Ramadon’s testimony at the postconviction

hearing, his waiver at trial, and his trial attorneys’ accounts of their

conversations with Ramadon. Accordingly, we cannot find that the

court committed clear error.

¶ 26 Additionally, reviewing these findings de novo, we conclude

that Ramadon knowingly, voluntarily, and intelligently waived his

right to testify at trial.

B. Ineffective Assistance of Counsel Claims

¶ 27 Next, Ramadon contends that the postconviction court erred

by denying his postconviction motion as it relates to his ineffective

assistance of counsel claims. Specifically, he argues that trial

counsel was ineffective by (1) threatening to withdraw if he chose to

testify; (2) failing to investigate and call potential witnesses; and

(3) failing to consult with or call a rebuttal DNA expert. We disagree

with these assertions in turn and conclude that the postconviction

18
court properly denied Ramadon’s motion as it relates to these

claims.

1. Applicable Law and Standard of Review

¶ 28 To prevail on an ineffective assistance of counsel claim, the

defendant must establish that (1) trial counsel’s performance was

so deficient that it fell below the level of reasonably competent

assistance, and (2) the deficient performance prejudiced the

defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984).

Because a defendant must prove both deficient performance and

prejudice, the postconviction court may deny a claim of ineffective

assistance of counsel if the record establishes that the defendant

has failed to establish either prong. Id.

¶ 29 To prove the deficient performance prong, the defendant must

“show that counsel’s representation fell below an objective standard

of reasonableness.” Id. at 688. The performance inquiry “must be

whether counsel’s assistance was reasonable considering all the

circumstances,” and “[j]udicial scrutiny of counsel’s performance

must be highly deferential.” Id. at 688-89.

¶ 30 Counsel’s actions are usually based, quite properly, on

informed strategic choices made by the defendant and on

19
information supplied by the defendant. Id. at 691. Trial counsel is

the “captain of the ship” on tactical issues, including what trial

strategy should be used in the defense of the case. Arko v. People,

183 P.3d 555, 558 (Colo. 2008) (quoting Steward v. People, 498

P.2d 933, 934 (Colo. 1972)). Trial strategy includes decisions like

“what witnesses to call (excepting the defendant), whether and how

to conduct cross-examination, what jurors to accept or strike, and

what trial motions to make.” Curtis, 681 P.2d at 511. A mere

disagreement over trial strategy does not establish, or even support,

a claim of ineffective assistance of counsel. People v. Bossert, 722

P.2d 998, 1010 (Colo. 1986).

¶ 31 An error by counsel, even if professionally unreasonable, does

not warrant setting aside the judgment of conviction if the error had

no effect on the judgment. Strickland, 466 U.S. at 692. To meet the

second Strickland prong, it is not enough for the defendant to show

that the errors had some conceivable effect on the outcome of the

proceeding. Id. at 693. Rather, “[t]he 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. at 694.

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¶ 32 Finally, “[a] conclusion on either Strickland prong presents a

mixed question of law and fact.” People v. Sifuentes, 2017 COA

48M, ¶ 16. While we review a postconviction court’s factual

findings with deference, we review the application of law to those

findings de novo. Id.

2. Ineffective Assistance of Counsel – Waiver of the Right to
Testify

¶ 33 As discussed, Ramadon’s counsel conceded at the

postconviction hearing that they vehemently opposed his desire to

testify. Ramadon argued that this conduct amounted to ineffective

assistance of counsel. The postconviction court disagreed.

¶ 34 While acknowledging that counsel’s pretrial behavior was

aggressive, the postconviction court found that counsel were not

deficient in their performance because they had strategic reasons

for urging Ramadon not to testify based on his prior criminal

history and how the jury would negatively perceive his “arguably

unpleasant” personality. The court concluded that the first

Strickland prong was not met because counsel’s advice was not

something that fell outside the range of professionally competent

assistance or that was otherwise unreasonable.

21
¶ 35 Additionally, though it did not have to address the second

Strickland prong, the court nevertheless concluded that Ramadon

failed to prove that, even if counsel had advised Ramadon

differently and he had testified, the outcome of the trial would have

been different.

¶ 36 On appeal, Ramadon contends that trial counsel’s threats to

withdraw representation constituted ineffective assistance of

counsel because counsel’s behavior impeded his ability to exercise

his constitutional right, and the postconviction court applied the

wrong legal standard. We disagree.

¶ 37 With respect to the first Strickland prong, the record supports

the postconviction court’s findings that counsel had several

strategic reasons for advising Ramadon not to testify, including

Ramadon’s criminal history and counsel’s worry that the jury would

perceive him in an unfavorable manner. We cannot say the

postconviction court erred by concluding that Ramadon failed to

prove the first Strickland prong.

¶ 38 With respect to prejudice, Ramadon claims the postconviction

court applied the wrong legal standard. According to Ramadon,

when ineffective assistance of counsel is at issue and a

22
constitutional right — like the right to testify — is foregone, the

prejudice prong of the Strickland test is modified. In these

instances, the defendant only has to show that but for counsel’s

erroneous performance, the defendant would have exercised his

right. People v. Robles, 74 P.3d 437, 439 (Colo. App. 2003) (“[T]he

prejudice prong of the Strickland test is modified in cases where

counsel’s erroneous performance leads to a defendant’s deprivation

of legal proceedings.”).

¶ 39 Ramadon’s argument is misplaced. In Robles, a division of

this court noted that the prejudice prong is modified in cases where

the defendant has been deprived of a legal proceeding. Id.

Ramadon was not deprived of a legal proceeding, so Robles’s

modified prejudice standard is inapplicable. See, e.g., Roe v. Flores-

Ortega, 528 U.S. 470 (2000) (defendant claiming ineffective

assistance because counsel failed to consult with him about appeal

must prove prejudice by showing only that he would have appealed

but for counsel’s failure to consult with him).

¶ 40 As mentioned, having determined that Ramadon failed to meet

the first Strickland prong, the postconviction court was not required

to consider the prejudice prong. Nevertheless, we agree that the

23
postconviction court’s application of the second Strickland prong

was correct and that Ramadon failed to prove the outcome of trial

would have been different had he testified.

¶ 41 Because Ramadon failed to show that his counsel’s

performance was deficient and that he was prejudiced by this

performance, we agree with the postconviction court’s conclusion

that Ramadon failed establish ineffective assistance of counsel

regarding his waiver of his right to testify.

3. Ineffective Assistance of Counsel – Failure to Investigate and
Call Witnesses

¶ 42 Ramadon next contends that the postconviction court erred in

finding his trial counsel was not ineffective for failing to investigate

or call to the stand two witnesses, Mario Raxon and Anthony

Swindle. We disagree and address the claim as to each potential

witness.

a. Mario Raxon

¶ 43 Before trial, Ramadon’s counsel sent an investigator to

interview the first potential witness, Raxon. Raxon attended the

same church as Ramadon and was in jail with Ramadon and his

codefendants. Raxon claimed that some of the codefendants

24
admitted that Ramadon was not the main offender, but they had

conspired to lie and blame Ramadon for the assault to escape

consequences. During trial, Ramadon’s counsel told the court they

discussed the possibility of calling Raxon to testify but ultimately

decided against it.

¶ 44 Ramadon’s trial counsel sent their investigator to interview

Raxon about the purported confession by one of Ramadon’s

codefendants. At trial, Chalmers told the court, “Ms. Hostetler and

I talked about Mr. Raxen [sic] this weekend. At this point we don’t

anticipate calling him. However, defense strategy is variable and

certainly things could change in the next two-and-a-half days.”

This record suggests that Ramadon’s trial counsel took steps to

investigate Raxon and considered the benefit of his testimony before

deciding whether they should call him at trial.

¶ 45 In its oral findings on the postconviction motion, the court

concluded that trial counsel’s decision to investigate Raxon, as well

as the ultimate decision to not call him at trial, was a strategic

choice that did not amount to deficient performance.

¶ 46 Because the record shows that Ramadon’s counsel took active

steps to investigate and consider Raxon as a potential witness, the

25
court did not err in concluding that Ramadon failed to prove

counsel’s performance was deficient.

b. Anthony Swindle

¶ 47 Before trial, Ramadon informed his attorneys of a second

potential witness who claimed to have been cellmates with one of

Ramadon’s codefendants. This second potential witness, Swindle,

told Ramadon that his cellmate confessed that everyone was going

to blame Ramadon for the assault. When Ramadon first mentioned

Swindle to his counsel, Ramadon did not know Swindle’s name.

Swindle’s name would not be discovered until Swindle sent a letter

to the public defender’s office three years after Ramadon’s trial.

¶ 48 At the postconviction hearing, Chalmers recalled that

Ramadon told her about another inmate who said one of Ramadon’s

codefendants confessed that the assault played out exactly how

Ramadon claimed it did. But Chalmers also testified that Ramadon

did not give her the inmate’s name.

¶ 49 Likewise, Hostetler did not remember Swindle’s name, nor did

she remember Ramadon telling her about an inmate who heard that

one of his codefendants had confessed.

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¶ 50 Given that trial counsel had little to no information on

Swindle’s identity, the postconviction court found counsel’s decision

not to spend time and resources looking for and possibly

investigating Swindle was a reasonable one.

¶ 51 As with the decision to not call Raxon, the record supports the

postconviction court’s conclusion that Ramadon failed to establish

the first prong of Strickland regarding counsel’s alleged failure to

investigate Swindle.

4. Ineffective Assistance of Counsel – Failure to Effectively Cross
Examine DNA Expert

¶ 52 Next, Ramadon contends that his trial counsel was ineffective

for failing to call a rebuttal DNA expert and that the postconviction

court erred in finding otherwise. Again, we disagree.

¶ 53 Before trial, Ramadon’s counsel moved to limit the

prosecution’s DNA expert’s testimony and preclude the expert from

testifying that the analysis excluded the other suspects. Counsel

also took steps to familiarize herself with DNA terminology,

interviewed the prosecution’s DNA expert witness, and consulted

with more experienced colleagues on DNA testimony.

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¶ 54 The postconviction court’s findings acknowledged trial

counsel’s efforts to limit the admissibility of DNA evidence,

familiarize themselves with the subject by interviewing the

prosecution’s expert, and cross-examine the expert at trial “as it

relate[d] to the limitations of the DNA evidence and the appropriate

conclusions that might be drawn therefrom.” Applying these

findings, the court concluded that trial counsel’s approach was

reasonable and did not amount to deficient performance under the

first prong of Strickland.

¶ 55 To the extent that Ramadon disagreed with how much time

and effort trial counsel spent on DNA evidence, this is insufficient to

conclude counsel acted unreasonably or performed deficiently. See

Bossert, 722 P.2d at 1010. Here, the DNA evidence was not the

crux of his defense; rather, Ramadon’s theory of the case was that

his codefendants conspired to blame him for the sex assault.

¶ 56 Because the record supports a finding that Ramadon’s counsel

did not perform deficiently by not calling a DNA expert, we conclude

that the postconviction court did not err in concluding that

Ramadon’s claim failed.

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C. Cumulative Error Claim

¶ 57 Because Ramadon is unable prove any error, let alone multiple

errors, in the court’s denial of his postconviction claim, his

cumulative error claim also fails.

¶ 58 Like claims of constitutional violations such as ineffective

assistance of counsel and invalid waivers of rights, we review

cumulative error claims de novo. Howard-Walker v. People, 2019

CO 69, ¶ 22. When one error may alone not prejudice a defendant,

“the cumulative effect of [multiple] errors and defects” may affect

the integrity of the defendant’s trial. Id. at ¶ 24 (quoting People v.

Lucero, 615 P.2d 660, 666 (Colo. 1980)). To succeed on a

cumulative error claim, the court must conclude that multiple

errors have been committed; mere allegations of error are

insufficient. People v. Thomas, 2014 COA 64, ¶ 61.

¶ 59 As the postconviction court correctly found, Ramadon was

unable to prove that his waiver of the right to testify was invalid or

that his counsel was ineffective by advising him not to testify,

deciding to not call two potential witnesses, or deciding to not retain

a rebuttal DNA expert to testify. Accordingly, his cumulative error

claim also fails.

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IV. Disposition

¶ 60 The postconviction court’s order is affirmed.

JUDGE FREYRE and JUDGE GOMEZ concur.

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