specially concurring:
The majority rejects the claim asserted by the defendant, Gary Lee Davis, in a Crim.P. 35(c) motion that he was deprived of his constitutional right to effective assistance of counsel at the sentencing phase of his trial for first degree murder, which resulted in a sentence of death. See maj. op. at 779. It does so based on the conclusion that his representation by defense counsel, Craig Truman, “fell within the range of professionally competent assistance required by [Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ].” Maj. op. at 778. I would reach the same result but would predicate it upon the failure of Davis to show that the alleged ineffectiveness of his counsel prejudiced his defense.
I.
The right to effective assistance of counsel is guaranteed by both the United States and Colorado Constitutions. U.S. Const, amends. VI, XIV; Colo. Const, art. II, § 16. “Thus, a defendant in a criminal proceeding is entitled to receive the reasonably effective assistance of an attorney acting as his diligent and conscientious advocate.” People v. Norman, 703 P.2d 1261, 1272 (Colo.1985) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). In Strickland, the United States Supreme Court articulated a two pronged test to be applied when reviewing an ineffective assistance claim. See Norman, 703 P.2d at 1272 n. 11 (adopting Strickland). In order to establish that he has been denied this constitutional right, the defendant first must show that counsel’s performance was deficient — that is, that it was “outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. See People v. Naranjo, 840 P.2d 319, 324 (Colo.1992) (counsel’s performance deficient if below the objective standard of reasonableness demanded of attorneys in criminal cases). Second, the defendant must show that the deficient performance prejudiced the defense by depriving the defendant of a fair trial, “a trial whose result is reliable.” Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; see People v. Oliver, 745 P.2d 222, 228 (Colo.1987); Norman, 703 P.2d at 1272.1
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 at U.S. at 697, 104 S.Ct. at 2069; see People v. Garcia, 815 P.2d 937, 941 (Colo.1991).
II.
Davis moved under Crim.P. 35(c) to vacate his death sentence and impose a sentence of *780life imprisonment on the basis that he received ineffective assistance of counsel at the penalty phase of his trial.2 A hearing on the issue was held, and in addition to his own testimony, the defendant presented the testimony of two expert witnesses: his own trial counsel, Craig Truman, and Terri Brake, the Chief Trial Deputy in the Public Defender’s Office. Both Truman and Brake have extensive experience in defending death penalty eases.
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 eases, she testified that the representation provided by defense counsel fell below the applicable standard of competence. In her opinion, gathering a complete social history and thoroughly investigating possible mitigating evidence is necessary immediately upon learning that one is defending a case in which the prosecution is seeking the death penalty. According to Brake, an attorney cannot make informed strategic or tactical decisions without such information. She testified that it is “critical” to gather mitigation evidence prior to trial in order to be adequately prepared for jury selection.
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 *781effective. 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 ease 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 Crim.P. 35(c) motion to set aside the death penalty imposed in this ease.
. Each prong of the Strickland test presents a mixed question of fact and law. Strickland, 466 U.S. at 698, 104 S.Ct. at 2070; see also People v. Garcia, 815 P.2d 937, 943 (Colo.1991). Therefore, a trial court’s conclusion that counsel rendered effective assistance is not a finding of fact binding upon the appellate court. See Kimmelman v. Morrison, 477 U.S. 365, 388, 106 S.Ct. 2574, 2590, 91 L.Ed.2d 305 (1986) (both components are mixed questions of fact and law and therefore a state court's ultimate conclusions regarding competence and prejudice are not findings of fact binding on the federal court).
. As the majority notes, the issue before us does not include effectiveness of assistance at the guilt phase of trial. See maj. op. at 772 n. 6.
. As further evidence of trial counsel’s inadequate representation, Brake cited trial counsel's failure to investigate the validity of the defendant's prior convictions, his inaccurate advice regarding whether attorney/client privilege was waived when the defendant made inconsistent statements during testimony at trial, his personal problems with the defendant, and what she termed his "abandonment” of the defendant at closing argument.
. The record demonstrates that the testimony of family, neighbors and friends of the defendant would have been of limited persuasive value. Truman testified that after the defendant’s first incarceration, the defendant’s mother had indicated that he was no longer welcome at her home. One of the defendant’s ex-wives, who still had positive feelings for the defendant, acknowledged that she had been physically abused during her relationship with him.
Investigator James Martinez from the Public Defender’s Office, who was counsel for the defendant prior to Truman, had gathered some background information. Far from being helpful for mitigation purposes, the statements gathered were damaging to the defendant. Former tenants in the apartment building where the defendant lived and worked told an investigator from the Public Defender’s Office that the defendant was a liar, and a "little strange and kinky." People’s exhibit 6. The defendant's brother was also interviewed. He expressed the opinion that the murder was the inevitable conclusion to the defendant’s life story.
. As detailed in our original Davis decision, the crime itself was exceptionally brutal. See People v. Davis, 794 P.2d 159, 167-170 (Colo.1990), cert. denied, 498 U.S. 1018, 111 S.Ct. 662, 112 L.Ed.2d 656 (1991). The jury found these aggra-vators:
(1) The murder was committed while the defendant was under sentence of imprisonment for a class-one, two, or three felony as defined by Colorado law.
(2) The murder was committed by intentionally killing a person kidnapped or being held hostage by the defendant or anyone associated with him.
(3) The murder was committed when the defendant was a party to an agreement to kill another person and in furtherance of which a person has been intentionally killed.
(4) In the course of or in furtherance of second degree kidnapping or immediate flight therefrom, the defendant intentionally caused the death of a person other than one of the participants.
(5) The murder was committed in an especially heinous, cruel or depraved manner.
(6) The murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution or effecting an escape from custody.
It found that no mitigating circumstances existed.