APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. BDV 2009-445 Honorable Jeffrey M. Sherlock, Presiding Judge
The opinion of the court was delivered by: Brian Morris
Submitted on Briefs: June 27, 2012
Justice Brian Morris delivered the Opinion of the Court.
¶1 Jared Rosling (Rosling) appeals from an order of the First Judicial District Court, Lewis and Clark County, denying his petition for post-conviction relief. We affirm.
¶2 We review the following issues on appeal:
¶3 1. Whether Rosling received ineffective assistance of counsel during his trial.
¶4 2. Whether Rosling received ineffective assistance of counsel during his appeal.
FACTUAL AND PROCEDURAL BACKGROUND
¶5 A jury found Rosling guilty of deliberate homicide, aggravated kidnapping, aggravated burglary, tampering with or fabricating physical evidence, and criminal possession of dangerous drugs on October 18, 2004. Attorney Randi Hood (Hood) represented Rosling throughout his criminal proceedings. The district court sentenced Rosling to life in prison without parole for the homicide conviction. The court imposed concurrent sentences for the other convictions.
¶6 Rosling filed a notice of appeal. The court appointed attorney William Hooks (Hooks) as Rosling's appellate counsel. Rosling appealed the district court's denial of his motion to dismiss charges for insufficient evidence. We affirmed Rosling's convictions and sentences in State v. Rosling, 2008 MT 62, ¶ 1, 342 Mont. 1, 180 P.3d 1102.
¶7 Rosling petitioned the District Court for post-conviction relief. Rosling argued that Hood had rendered ineffective assistance of counsel by failing to pursue testing of a latent palm print and failing to object to portions of the State's closing argument. Rosling argued that Hooks had rendered ineffective assistance of counsel on appeal by failing to raise the district court's denial of Rosling's motion for a mistrial and Rosling's alleged absence from a stage of proceedings. The District Court denied Rosling's petition following an evidentiary hearing in an order issued on August 23, 2011. Rosling appeals.
¶8 We outlined the general facts regarding Rosling's conviction in his direct appeal. Rosling, ¶¶ 3-30. The following facts pertain to Rosling's petition for post-conviction relief.
Palm Print and Rosling's Access to Evidence
¶9 Police officers took a latent palm print from a bathroom mirror at the victim's apartment while investigating the murder. The officers sent the latent palm print to the Montana Division of Forensic Science Crime Laboratory for testing. A forensic scientist at the lab, Debra Hewitt (Hewitt), investigated the palm print. Hewitt did not receive Rosling's palm print for testing, and so could not compare the two. Hewitt ruled out the possibility of the palm print belonging to the victim. Rosling had insisted that Hood test the palm print to establish the source. Hewitt determined that the palm print did not belong to Rosling three months after Rosling's conviction.
¶10 Hood testified at the PCR hearing that she could not recall whether the State had tried to take Rosling's palm prints for testing. Rosling informed Hood before his trial that he had not entered the victim's bathroom on the day of the murder. Hood testified that she discussed the evidence with Rosling and that he knew her trial strategy. Hood hesitated to pursue the testing of the palm print in light of her concern that the testing could link Rosling to the print and the murder. Hood acknowledged, however, that conclusive evidence that the palm print did not belong to Rosling would have been favorable to his defense.
¶11 Rosling further testified that he believed Hood withheld information from him while he was in jail before trial. Rosling claimed that he had requested various documents and videos related to his trial and that Hood failed to provide them. Hood testified that she had expressed concerns to Rosling about "snitches" in jail, and did not allow Rosling to have evidence in his possession while in jail. Hood visited Rosling often while he was in jail. Rosling spoke with another inmate about his case ...