Rosling v. State, 285 P.3d 486

Rosling was convicted in 2004 of deliberate homicide, aggravated kidnapping, aggravated burglary, tampering with or fabricating physical evidence, and criminal possession of dangerous drugs; Hood represented him at trial and on appeal, with a life sentence for homicide and concurrent terms for other convictions.
Hooks was appointed as Rosling’s appellate counsel after direct appeal; the direct appeal affirmed Rosling’s convictions and sentences in State v. Rosling, 2008 MT 62.
Rosling petitioned for postconviction relief alleging Hood rendered ineffective assistance by not testing a latent palm print and by failing to object to certain closing arguments; Hooks allegedly failed to raise a mistrial ruling and Rosling’s absence from a stage of proceedings on appeal.
A latent palm print from the victim’s bathroom was sent for testing but Rosling’s print was not tested; Hood testified the testing might have implicated Rosling, but, if conclusively excluded, would have favored Rosling.
Hood did not object to the State’s “red-handed” closing remark, Diehl’s credibility remarks, or the DNA hair-matching statement, arguing such objections were strategic decisions within reasonable professional norms.
Police photos of Rosling’s tattoos were shown to jurors; Hood moved to suppress them, the court granted the motion, but mistrial was denied; Rosling’s absence from an in-chambers meeting was not clearly shown on record; Hooks and Hood could not determine his presence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ineffective assistance at trial	Hood failed to test the palm print and to object to closing misstatements.	Hood’s testing decision and objections were reasonable strategic choices.	No deficient performance; decisions within reasonable strategy.
Ineffective assistance on appeal	Hooks failed to appeal the mistrial ruling and Rosling’s absence from a proceeding.	Appeal strategy focused on stronger issues; absence/mistrial issues were weaker.	No ineffective assistance; reasonable appellate strategy.

State v. Henderson, 322 Mont. 69, 93 P.3d 1231 (2004 MT 173) (duty to advocate and test prosecution; overarching defense obligation)
Strickland v. Washington, 466 U.S. 668 (1984) (establishes deficient performance and prejudice standard)
Whitlow v. State, 343 Mont. 90, 183 P.3d 861 (2008 MT 140) (rejection of ignorance/neglect test; focus on reasonable standard under norms)
Dawson v. State, 301 Mont. 135, 10 P.3d 49 (2000 MT 219) (objective reasonableness of objections as permissible conduct)
DuBray v. State, 342 Mont. 520, 182 P.3d 753 (2008 MT 121) (limits on raising non-frivolous issues on appeal)
State v. Price, 350 Mont. 272, 207 P.3d 298 (2009 MT 129) (right to presence at all stages of trial; appeal considerations)
State v. Kougl, 323 Mont. 6, 97 P.3d 1095 (2004 MT 243) (necessity of showing conventional standards or obligatory actions)