Dawson v. State

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No. 96-259

IN THE SUPREME COURT OF THE STATE OF MONTANA

2000 MT 219

DAVID T. DAWSON,

Petitioner,

v..

STATE OF MONTANA,

Respondent.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Honorable Maurice R. Colberg, Jr., Judge presiding.

COUNSEL OF RECORD:

For Appellant:

William F. Hooks, Montana Appellate Defender's Office, Helena, Montana

Kathryn Lund Ross, Attorney at Law, Seattle, Washington

For Respondent:

Hon. Joseph P. Mazurek, Attorney General; Pamela P. Collins,

Assistant Attorney General; Helena, Montana

Dennis Paxinos, Yellowstone County Attorney, Billings, Montana

Argued: September 4, 1997

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Submitted: August 18, 1999

Decided: August 15, 2000

Filed:

__________________________________________

Clerk

Justice Terry N. Trieweiler delivered the opinion of the Court.

¶1 The Petitioner, David Dawson, was convicted of one count of robbery, four counts of

aggravated kidnaping, and three counts of deliberate homicide following trial by jury in

the District Court for the Thirteenth Judicial District in Yellowstone County on February

28, 1987. On April 15, 1987, he was sentenced to death for each of the three counts of

aggravated kidnaping which resulted in the death of the victim. His conviction was

appealed to this Court and affirmed in State v. Dawson (1988), 233 Mont. 345, 761 P.2d

352, cert. denied, Dawson v. Montana (1989), 491 U.S. 910, 109 S. Ct. 3200.

¶2 On January 16, 1991, Dawson filed a petition for postconviction relief pursuant to § 46-

21-101, MCA, in the District Court in which he was convicted. On March 25, 1991,

Dawson filed an amended petition for postconviction relief. In that petition, he claimed 30

separate grounds for relief. All but one claim, ineffective assistance of counsel, were

dismissed by the District Court by summary judgment. On August 5, 1993, following

withdrawal of his appellate counsel, Jeff Renz, Dawson filed a second amended petition

for postconviction relief which added a 31st ground for relief: ineffective assistance of

appellate counsel. Following an evidentiary hearing, the District Court denied Dawson's

second amended petition for postconviction relief on February 7, 1996.

¶3 Dawson appeals from the District Court's orders which granted partial summary

judgment of his amended petition for postconviction relief and denied his second amended

petition for postconviction relief. We affirm the District Court.

¶4 The following issues are presented on appeal:

¶5 1. Did the District Court err when it held that Dawson did not receive ineffective

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assistance of counsel during the pretrial phase?

¶6 2. Did the District Court err when it held that Dawson did not receive ineffective

assistance of counsel during the trial phase?

¶7 3. Did the District Court err when it held that Dawson did not receive ineffective

assistance of counsel during the sentencing phase?

¶8 4. Did the District Court err when it held that Dawson did not receive ineffective

assistance of counsel during the direct appeal phase?

¶9 5. Did the District Court err when it denied Dawson's claims 1-29 by summary

judgment?

¶10 6. Should this Court reconsider issues in a postconviction proceeding which were

previously decided on direct appeal?

PROCEDURAL BACKGROUND

¶11 The Petitioner, David Dawson, raised the following claims as violations of his

constitutional and statutory rights in his amended petition for postconviction relief:

1. The District Court failed to appoint a psychiatrist to assist the defense.

2. The District Court ordered that the mental health experts appointed in response to

the defense request for a mental examination, report to the court and prosecutor as

well as the defense.

3. The District Court limited the mental examination to competency and mental

issues related to guilt.

4. The state employed psychiatrist and psychologist failed to warn Dawson that he

could remain silent and that his statements and test results could be used against him.

5. The state employed psychiatrist and psychologist failed to warn Dawson that the

interview would exceed the scope of the court's order.

6. The state employed psychiatrist and psychologist failed to warn Dawson that he

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had the right to have counsel present during the history taking and testing phases of

the mental evaluation.

7. The prosecutor used the testimony of the court-appointed psychologist at the guilt

phase of the trial to establish the petitioner's mental state and lack of remorse.

8. The District Court relied on the mental health report and testimony of the state

employed psychologist, Dr. Van Hassel, in finding the non-statutory aggravating

factor of lack of remorse.

9. Section 46-14-401, MCA (1985), as applied to Dawson, is unconstitutional.

10. The State failed to preserve mitigating or exculpatory evidence by waiting to

draw Dawson's bodily fluids until 12 hours following his arrest.

11. The state probation officer failed to advise Dawson that he did not have to

submit to the pre-sentence interview, and that anything he said could be used against

him during sentencing.

12. The pre-sentence report failed to comply with the requirements of §§ 46-18-111,

and -112 (1985), MCA.

13. The District Court failed to give weight to non-statutory mitigating

circumstances.

14. The District Court failed to consider the mitigating circumstances as a whole.

15. The District Court failed to consider the mitigating circumstances as a whole

when comparing the mitigating circumstances with the aggravating factors.

16. Section 46-18-305, MCA (1985), as applied to Dawson, is unconstitutional.

17. The District Court failed to consider other mitigating circumstances of which

there was substantial evidence in the record of their existence.

18. The District Court and the Supreme Court interpreted § 46-18-303, MCA

(1985), the statute which enumerates the aggravating factors, too broadly.

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19. The District Court imposed the sentence of death as a result of passion and

prejudice.

20. The District Court failed to make independent findings of fact and conclusions

of law.

21. The District Court's findings establish that the District Court believed the crime

to be so serious that it could never find that any evidence of mitigating

circumstances would be sufficient to warrant leniency.

22. The District Court reacted emotionally to the testimony of Amy Rodstein in the

presence of the jury.

23. The sentence of death by hanging is unconstitutional.

24. The District Court failed to provide Dawson with a jury trial on the issue of

whether there were aggravating circumstances.

25. The District Court erred when it concluded that Dawson was not subject to

rehabilitation.

26. The District Court erred when it concluded that Dawson would be a danger to

others in the future.

27. The State failed to disclose evidence and used inaccurate testimony at the trial

and sentencing hearing.

28. The District Court erred when it precluded the testimony of relevant defense

witnesses.

29. The prosecutor made improper comments during closing argument.

30. Dawson was denied effective assistance of counsel by his trial counsel.

¶12 On May 20, 1991, the State filed a motion for partial summary judgment based on its

contention that Dawson's claims 1-29 were procedurally barred, either by res judicata or

by § 46-21-105(2), MCA. The District Court granted the State's motion for partial

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summary judgment on September 16, 1992. On March 15, 1993, Dawson's appellate

counsel, Jeff Renz, requested and was granted permission to withdraw as Dawson's

appellate counsel. Following Renz's withdrawal, Dawson requested and was granted leave

to file a second amended petition for postconviction relief. Dawson filed his second

amended petition on August 5, 1993, which added the following claim to his previous 30

claims for relief:

31. Dawson was denied effective assistance of counsel by his appellate counsel for failing

to raise petitioner's claims 1 - 29, inclusive, as issues on petitioner's direct appeal.

¶13 On October 5, 1992, Dawson filed a motion for reconsideration of the District Court's

order granting partial summary judgment based on his contention that 9 of the 29 claims

dismissed by partial summary judgment, required the presentation of evidence which was

not part of the record of the first trial in this case and could not reasonably have been

raised on direct appeal and, therefore, were not subject to the procedural bar of § 46-21-

105(2), MCA. On January 26, 1993, the District Court denied Dawson's motion for

reconsideration.

¶14 On February 14 and 15, 1994, the District Court conducted an evidentiary hearing

pursuant to § 46-21-201, MCA, to consider the claims set forth in Dawson's second

amended petition for postconviction relief. Several witnesses testified at the hearing,

however, the District Court refused to consider four affidavits submitted by Dawson in

support of his position.

¶15 On February 8, 1996, the District Court entered its findings of fact, conclusions of

law, and order denying Dawson's second amended petition for postconviction relief.

Dawson filed a notice of appeal with this Court on April 5, 1996. On appeal, one of

Dawson's contentions was that the District Court erred when it refused to consider the four

affidavits he submitted in support of his petition for postconviction relief. On December

12, 1997, without deciding the merits of Dawson's appeal, we entered an order which

required the District Court to accept and consider Dawson's four affidavits and any

affidavits the State might file in response. Following consideration of the affidavits, we

ordered the District Court to issue any additional findings it deemed necessary along with

a memorandum stating the effect the additional evidence had on its prior decision.

¶16 On March 8, 1999, the District Court entered its additional findings of fact,

conclusions of law, and order in response to our order. Following its consideration of the

new evidence, the District Court again denied Dawson's petition for postconviction relief.

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¶17 Specific facts which served as the basis for the Petitioner's conviction and his sentence

to death will be discussed where appropriate to the issues we now consider.

DISCUSSION

STANDARD OF REVIEW

¶18 We review a district court's denial of a petition for postconviction relief to determine

whether the district court's findings are clearly erroneous and whether its conclusions of

law are correct. Bone v. State (1997), 284 Mont. 293, 302, 944 P.2d 734, 739-40. When

reviewing the district court's findings of fact to determine if they are clearly erroneous, we

apply the following criteria:

(1) the Court will determine whether the findings are supported by substantial

evidence; (2) if the findings are supported by substantial evidence, the Court will

determine if the trial court has misapprehended the evidence; and (3) if the findings

are supported by substantial evidence and that evidence has not been

misapprehended, this Court may still find a finding is clearly erroneous when,

although there is evidence to support it, a review of the record leaves the court with

the definite and firm conviction that a mistake has been committed.

Bone, 284 Mont. at 302-03, 944 P.2d at 740 (citations omitted).

¶19 With respect to his claims of ineffective assistance of counsel, Dawson argues that the

proper standard of review is a de novo review of the District Court's decision. Dawson

asserts that because a claim for ineffective assistance of counsel presents a mixed question

of law and fact, this Court must conduct a de novo review. However, there is no authority

in Montana which supports Dawson's position. To the contrary, in Bone, we applied the

standard of review previously set forth, to Bone's claims of ineffective assistance of

counsel. Bone, 284 Mont. at 302-03, 944 P.2d at 740. Accordingly, we will apply the

standard of review set forth in Bone to Dawson's claims of ineffective assistance of

counsel.

¶20 A petitioner seeking to reverse a district court's denial of a petition for postconviction

relief based on a claim of ineffective assistance of counsel bears a heavy burden. See

Brown v. State (1996), 277 Mont. 430, 434, 922 P.2d 1146, 1148. In considering

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ineffective assistance of counsel claims on direct appeal and in postconviction

proceedings, we apply the two-pronged test set forth by the United States Supreme Court

in Strickland v. Washington (1984), 466 U.S. 668, 104 S. Ct. 2052. See Hagen v. State,

1999 MT 8, ¶ 10, 293 Mont. 60, ¶ 10, 973 P.2d 233, ¶ 10. Strickland's two-part test

requires that the defendant must show that his counsel's performance was deficient and

that the deficient performance prejudiced the defense and deprived the defendant of a fair

trial. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. Pursuant to Strickland, a defendant

alleging ineffective assistance of counsel must demonstrate that "there is a reasonable

probability that, but for counsel's unprofessional errors, the result of the proceeding would

have been different." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. "A reasonable

probability is a probability sufficient to undermine confidence in the outcome." Strickland,

466 U.S. at 694, 104 S. Ct. at 2068.

¶21 In Strickland, the Supreme Court also stated:

Although we have discussed the performance component of an ineffectiveness claim

prior to the prejudice component, there is no reason for a court deciding an

ineffective assistance claim to approach the inquiry in the same order or even to

address both components of the inquiry if the defendant makes an insufficient

showing on one. . . . The object of an ineffectiveness claim is not to grade counsel's

performance. If it is easier to dispose of an ineffectiveness claim on the ground of

lack of sufficient prejudice, which we expect will often be so, that course should be

followed.

Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.

ISSUE 1

¶22 Did the District Court err when it held that Dawson did not receive ineffective

assistance of counsel during the pretrial phase?

¶23 Dawson asserts that his defense counsel, John Adams, Allen Beck, and Gary Wilcox,

rendered ineffective assistance during the pretrial phase. First, Dawson asserts that his

counsel were ineffective because they failed to object to the procedure and subsequent use

of Dawson's psychiatric evaluation at Montana State Hospital. Second, Dawson contends

that his counsel were ineffective for their failure to advise him of his rights during the

psychiatric evaluation process or to otherwise protect those rights. Third, Dawson asserts

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that his counsel were ineffective for their failure to conduct an adequate pretrial

investigation.

a. Failure to object to the preparation and use of the Montana State Hospital

psychiatric evaluation.

¶24 Dawson asserts that the District Court erred when it concluded that his counsel did not

render ineffective assistance when they failed to object to the methods used to prepare and

subsequently disseminate the Montana State Hospital psychiatric evaluation to the District

Court and the State, as well as the defense. Dawson contends that his counsel failed to

secure the confidential psychiatric evaluation and assistance to which he was entitled

pursuant to Ake v. Oklahoma (1985), 470 U.S. 68, 105 S. Ct. 1087.

¶25 In response, the State contends that Dawson's counsel's actions were in accord with §§

46-14-201 to -213, MCA (1985), the relevant Montana statutory scheme in effect at the

time of Dawson's counsel's request for the mental health evaluation, and at the time of

Dawson's trial. Additionally, the State asserts that Dawson's counsel's actions were in

accord with the Montana Supreme Court's recent decision at that time in State v. Smith

(1985), 217 Mont. 453, 705 P.2d 1110, which was based on the Ake decision, and upheld

Montana's statutory scheme. The State argues that the 1990 interpretation of Ake by the

Ninth Circuit Court of Appeals in Smith v. McCormick (9th Cir. 1990), 914 F.2d 1153, is

not a valid basis for an ineffective assistance claim, because it would require this Court to

judge the actions of Dawson's counsel on the basis of hindsight.

¶26 In concluding that Dawson's counsel did not render ineffective assistance of counsel

for failing to object to the psychiatric evaluation procedure, the District Court found that

Dawson's counsel acted appropriately according to the status of the law at that time.

¶27 The relevant statutory scheme in April 1986, at the time Dawson's psychiatric

evaluation was ordered, included the following relevant provisions:

46-14-202. Psychiatric examination of defendant. (1) If the defendant or his counsel

files a written notice of his intent to rely on a mental disease or defect under 46-14-201 or

raises the issue of his fitness to proceed, the court shall appoint at least one qualified

psychiatrist or shall request the superintendent of the Montana state hospital to designate

at least one qualified psychiatrist, which designation may be or include himself, to examine

and report upon the mental condition of the defendant.

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....

46-14-203. Report of the examination. (1) The report of the examination shall

include the following:

(a) a description of the nature of the examination;

(b) a diagnosis of the mental condition of the defendant;

(c) if the defendant suffers from a mental disease or defect, an opinion as to his

capacity to understand the proceedings against him and to assist in his own defense;

and

(d) when directed by the court, an opinion as to the capacity of the defendant to have

a particular state of mind which is an element of the offense charged.

....

(3) The report of the examination shall be filed in triplicate with the clerk of court,

who shall deliver copies to the county attorney and to counsel for the defendant.

....

46-14-213. Psychiatric testimony upon trial. (1) Upon the trial, any psychiatrist

who reported under 46-14-202 and 46-14-203 may be called as a witness by the

prosecution or by the defense . . . .

(2) When a psychiatrist or other expert who has examined the defendant testifies

concerning the defendant's mental condition, he may make a statement as to the

nature of his examination, his diagnosis of the mental condition of the defendant at

the time of the commission of the offense charged, and his opinion as to the ability

of the defendant to have a particular state of mind which is an element of the offense

charged.

The procedure followed and the use of Dawson's psychiatric evaluation were

consistent with the statutory procedure in effect at that time.

¶28 Nevertheless, Dawson argues that, regardless of Montana's statutory scheme, pursuant

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to the United States Supreme Court's decision in Ake, he was entitled to an evaluation by

an independent psychiatrist who would "assist in evaluation, preparation, and presentation

of the defense." Ake, 470 U.S. at 83, 105 S. Ct. at 1096. Moreover, Dawson asserts that,

pursuant to Ake, his counsel were ineffective for not objecting to the procedure because

the evaluation he received was available for use by both the prosecution and the defense,

and because it was done by a neutral psychiatrist, rather than one assigned to assist solely

in his defense.

¶29 In Ake, the United States Supreme Court held as follows:

[W]hen a defendant demonstrates to the trial judge that his sanity at the time of the

offense is to be a significant factor at trial, the State must, at a minimum, assure the

defendant access to a competent psychiatrist who will conduct an appropriate

examination and assist in evaluation, preparation, and presentation of the defense.

This is not to say, of course, that the indigent defendant has a constitutional right to

choose a psychiatrist of his personal liking or to receive funds to hire his own. Our

concern is that the indigent defendant have access to a competent psychiatrist for the

purpose we have discussed, and as in the case of the provision of counsel we leave

to the State the decision on how to implement this right.

Ake, 470 U.S. at 83, 105 S. Ct. at 1096. Additionally, the Supreme Court, in Ake, referred to the

Montana statutory scheme in a footnote to the following sentence:

Many States, as well as the Federal Government, currently make psychiatric

assistance available to indigent defendants, and they have not found the financial

burden so great as to preclude this assistance.

Ake, 470 U.S. at 79, 105 S. Ct. at 1094.

¶30 Finally, this Court's decision in State v. Smith (1985), 217 Mont. 453, 705 P.2d 1110,

while distinguishing Ake on several grounds, concluded that Smith was afforded the rights

set forth in Ake, through the appointment of a neutral psychiatrist. Although the Ninth

Circuit Court subsequently concluded, in Smith v. McCormick (9th Cir. 1990), 914 F.2d

1153, that our holding in State v. Smith did not satisfy due process as contemplated in Ake,

that opinion was not issued until 1990, four years after Dawson's evaluation and three

years after his trial.

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¶31 In Strickland, the United States Supreme Court stated:

A fair assessment of attorney performance requires that every effort be made to

eliminate the distorting effects of hindsight, to reconstruct the circumstances of

counsel's challenged conduct, and to evaluate the conduct from counsel's

perspective at the time.

Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.

¶32 We conclude that at the time of Dawson's evaluation it was reasonable for Dawson's

counsel to believe that Montana's statutory scheme was consistent with the Ake decision.

Additionally, because there was no language in Ake which addressed the dissemination or

utilization of the psychiatric evaluation, Dawson's counsel had no reason to question

Montana's statutory scheme in that regard. Accordingly, we conclude that the District

Court did not err when it found that Dawson's counsel did not render ineffective assistance

of counsel because they failed to object to the procedures for and use of Dawson's

psychiatric evaluation.

¶33 It is also important to note that Dawson did have access to a second mental health

expert, Dr. John Watkins, who was chosen by Dawson. Dr. Watkins was an independent

psychiatrist, who was appointed prior to trial solely to assist the defense and none of the

information developed through or by Dr. Watkins was furnished to the State or the District

Court.

b. Failure to advise Dawson of his rights during the Montana State Hospital evaluation and

to ensure that Dawson's rights were protected.

¶34 Dawson argues that the District Court erred when it concluded that his counsel did not

render ineffective assistance when they failed to advise him of his rights during the

Montana State Hospital evaluation and to ensure that his rights were protected. First,

Dawson asserts that his counsel should have informed him of his Miranda rights. Second,

Dawson argues that his counsel should not have advised him to cooperate during his

psychiatric evaluation. Third, Dawson argues that his counsel should have informed him

of his right to counsel during his psychiatric evaluation. Fourth, Dawson asserts that his

counsel should have objected to the testimony of Dr.Van Hassel in the State's case-in-chief.

¶35 The District Court concluded that these issues "were handled appropriately from the

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perspective of counsel at the time with the status of the law at the time." The District

Court based its conclusion on the following:

[D]efense counsel appropriately recognized that there might be mental health issues

in the case and that an evaluation of their client should be completed to determine

whether there was an existing mental disease or defect which would preclude the

defendant from appropriately participating in his defense or having a sufficient state

of mind to be determined guilty of the offense. The evaluation could have benefitted

Dawson. The fact that the evaluation ultimately did not benefit him could not

necessarily have been anticipated at the time of the examinations.

¶36 First, Dawson argues that his counsel rendered ineffective assistance because they

failed to advise him of his Miranda rights during the psychiatric evaluation, including his

privilege against self-incrimination, his right to remain silent during the evaluation, and

that anything he said could be used against him during the sentencing phase.

¶37 Recently, in Hans v. State (1997), 283 Mont. 379, 942 P.2d 674, we addressed this

same issue. In Hans, we concluded that, although pursuant to State v. Smith (1993), 261

Mont. 419, 427-28, 863 P.2d 1000, 1004-05, a defendant has no constitutional right to be

informed of his Miranda rights when, through his attorney he has requested a psychiatric

exam, defense counsel has a duty to inform his client of the consequences of his

participation in the evaluation. Hans, 283 Mont. at 402-03, 942 P.2d at 688. In Hans, we

concluded that our determination that Miranda warnings were not necessary in Smith, was

based on our assumption that, before requesting an evaluation, counsel will provide advice

regarding the potential consequences of participating in an evaluation. Hans, 283 Mont. at

403, 942 P.2d at 688.

¶28 Because our review of the record reveals no evidence that Dawson's defense counsel

informed him of the potential consequences of participating in the psychiatric evaluation,

we must conclude that Dawson has satisfied the deficiency prong of the Strickland test for

ineffective assistance counsel.

¶29 We must next address the second prong of the Strickland test which requires that

counsel's deficiency prejudiced Dawson. Because all of the statements made by Dawson

during his psychiatric evaluation concerning how the incident occurred were the subject of

a successful motion in limine, and protected by § 46-14-401, MCA (1985), and were

therefore not inquired into at trial, we conclude that Dawson can show no prejudice during

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the trial phase.

¶30 However, because Dawson's statements were admissible and available to be

considered by the District Court during the sentencing phase, we must also inquire as to

any possible prejudice at this phase. Our review of the record reveals that no additional

testimony was offered by the State regarding Dawson's psychiatric evaluation. Thus, the

court-ordered psychiatric report prepared by Dr. Van Hassel was the only additional

evidence regarding Dawson's psychiatric evaluation which the District Court may have

considered during sentencing. However, there was no indication that the District Court

relied on the report during sentencing to determine any of its findings or conclusions.

¶31 Additionally, our review of the report itself reveals no information which may have

prejudiced Dawson at the sentencing proceeding. To the contrary, Dawson's version of the

crimes was consistent with his defense theory that he was under the control of another

person, and at no time did Dawson admit to causing the deaths of any of the Rodsteins.

Accordingly, we conclude that Dawson's counsel's failure to advise him of his Miranda

rights did not prejudice him at the sentencing phase.

¶32 Second, Dawson asserts that his counsel were ineffective because they advised him to

cooperate during his psychiatric evaluation.

¶33 At the time of Dawson's psychiatric evaluation, Dawson had the benefit of the

following statute:

46-14-401. Admissibility of statements made during examination or treatment.

A statement made for the purposes of psychiatric examination or treatment provided for in

this chapter by a person subjected to such examination or treatment is not admissible in

evidence against him in any criminal proceeding, except a sentencing hearing conducted

under 46-14-311, on any issue other than that of his mental condition. It is admissible on the

issue of his mental condition, whether or not it would otherwise be considered a privileged

communication, unless it constitutes an admission of guilt of the crime charged. In a

hearing held under 46-14-311, the court may hear and consider any such statement even if

it constitutes an admission of guilt.

Section 46-14-401, MCA (1985). Additionally, Dawson's counsel made a successful

motion in limine to assure that none of Dawson's statements were admitted at trial.

¶44 Based on the statutory and procedural protections available to Dawson, with regard to

any statements made during his psychiatric examination, we conclude that Dawson's

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counsel's action of advising Dawson to cooperate during the psychiatric evaluation, does

not fall below an objective standard of reasonableness. Dawson's counsel believed, at the

time, that the psychiatric evaluation would benefit him, and thus Dawson's cooperation in

that process would be an advantage to him, and so advised him.

¶45 Third, Dawson contends that his counsel were ineffective because they failed to

advise him that he could have counsel present during the psychiatric evaluation.

¶46 In Smith v. Estelle (5th Cir. 1979), 602 F.2d 694, 708, the court stated that "a

defendant has no constitutional right to have an attorney present during a psychiatric

evaluation of his dangerousness," following United States v. Cohen (5th Cir. 1976), 530

F.2d 43, 48, in which the court held that there was no right to have an attorney present

when the examination was to decide if the defendant was sane.

¶47 In State v. Armfield (1984), 214 Mont. 229, 233, 693 P.2d 1226, 1229, we held that a

defendant is:

[E]ntitled to (1) the pretrial presence of counsel where the incident or encounter is a

"critical stage" in the prosecutorial proceedings, and (2) the assistance of counsel at

any stage in the pretrial proceedings where the advice of counsel is essential to the

protection of his Fifth Amendment privilege against self-incrimination.

(Citations omitted.)

¶48 Notwithstanding the fact that there is no authority for Dawson's contention that he had

a constitutional right to have counsel present during the evaluation, with the statutory

protection afforded by § 46-14-401, MCA (1985), it was reasonable for Dawson's counsel

to believe that it was not necessary that he have counsel present during the evaluation

itself.

¶49 Finally, Dawson argues that his counsel should have objected to the testimony of

Dr. Van Hassel, the person who examined him, when he was called as a witness by the

State. Dawson contends that he did not waive his Fifth Amendment right against self-

incrimination and, therefore, the State could only offer psychiatric evidence in rebuttal,

not as a part of its direct evidence. Additionally, Dawson asserts that he had effectively

withdrawn the defense of mental disease or defect and, therefore, Dr. Van Hassel could

not be called to testify by the State.

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¶50 The State points to the relevant statute at the time of Dawson's trial:

46-14-213. Psychiatric testimony upon trial. (1) Upon the trial, any psychiatrist

who reported under 46-14-202 and 46-14-203 may be called as a witness by the

prosecution or by the defense . . . .

Section 46-14-213, MCA (1985) (emphasis added). Clearly, the statute in effect at

that time provided that the psychiatrist who performed the evaluation may be called

as a witness for the State, and did not limit that provision to the State's rebuttal.

¶51 As for Dawson's argument that he had effectively withdrawn the defense of mental

disease or defect, we note the following testimony from defense counsel Allen Beck at the

evidentiary hearing to consider Dawson's petition for postconviction relief:

Q. [By the Court] But in a legal sense, if the facts were to change during the course

of a trial, you still could have made use of that defense; is that correct:

A. Yes, I intentionally preserved it.

¶52 The District Court found that: "[u]nder the law at the time as appropriately understood

by all parties the testimony of the mental health examiner was admissible to establish

Dawson's state of mind."

¶53 Accordingly, we conclude that the District Court did not err when it found that

Dawson's counsel, based on the law at that time, acted reasonably when they did not

object to the testimony of Dr. Van Hassel.

¶54 Additionally, Dawson argues that his counsel should have provided his psychiatric

evaluator with information regarding Dawson's use of drugs and alcohol, and any other

information which would have assisted the staff.

¶55 However, our review of the Montana State Hospital report reveals that Dawson

provided the hospital staff with information regarding his use of alcohol and drugs and

other pertinent information. Therefore, Dawson is unable to establish any prejudice based

on his counsel's failure to provide information to the hospital staff. Accordingly, we

conclude that the District Court did not err when it found that Dawson's counsel did not

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render ineffective assistance because they failed to provide the hospital staff with

information concerning Dawson.

c. Failure to properly investigate.

¶56 Dawson contends that the District Court erred when it found that his counsel did not

conduct an ineffective pretrial investigation.

¶57 First, Dawson asserts that his counsel should have obtained the complete records of

his evaluation at Montana State Hospital, including the staff notes. Dawson argues that the

District Court relied on his lack of remorse as a factor in imposing the death penalty and,

therefore, he was prejudiced by his counsel's failure to obtain staff notes which reflected

his emotional state during his 48-day evaluation at Montana State Hospital.

¶58 In response, the State contends that counsel's failure to obtain the staff notes did not

prejudice Dawson because they indicate that Dawson showed some display of emotion

only four times during the 48 days he was at Montana State Hospital. Moreover, the staff

notes indicate that Dawson ate and slept well and that on one particular day he appeared to

be in a good mood and was seen laughing with a visitor. Additionally, the State asserts

that the District Court's finding at the sentencing phase regarding Dawson's apparent lack

of remorse was based on the court's own evaluation of Dawson throughout the extensive

court proceedings, and not a result, as Dawson contends, of Dr. Van Hassel's testimony.

¶59 At trial, Dr. Van Hassel testified on direct examination by the State to the following:

A. [By Dr. Van Hassel] The only thing that appeared out of the ordinary whatsoever

was his apparent lack of observable distress about his situation. Given the fact that

he had been accused of some very serious crimes and was facing some very serious

consequences. He did not appear to show any anxiety about that. He did not show

any outward signs of depression about that. Nor did he show outward signs of anger

about that.

Dawson argues that had his counsel obtained the staff notes reflecting his emotional

displays, his counsel could have contradicted Dr. Van Hassel's testimony that Dawson

showed no emotional response, and as a result the District Court would not have found

that he lacked remorse.

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¶60 The District Court concluded that Dawson could show no prejudice as a result of his

counsel's failure to obtain the notes and records, stating:

Although it may have been helpful to have those records they would have had no

effect on the issues of guilt. Judge Barz in her findings relied on her observations

during the trial and other appropriate evidence in reaching her conclusions

concerning the death sentence.

¶61 The sentencing court's findings of fact regarding Dawson's lack of remorse were as

follows:

The Court has had the opportunity to observe the Defendant during the entire trial

and throughout all proceedings. His conduct in all proceedings has been appropriate.

Scarcely a word had been spoken in the Court's presence. The complete lack of

emotion and cool detachment in his demeanor has been noted throughout. As Dr.

Van Hassel testified, lack of an emotional response can be a coping mechanism of

denial, or a personality that shows no overt emotion normally or, finally, that the

person truly is not concerned. Whatever the reason, the Defendant has demonstrated

no remorse or genuine concern or respect for human life to the time of sentencing.

It is clear from the District Court's findings that it relied on its own observations of

Dawson throughout the proceedings to conclude that he displayed an apparent lack of

remorse.

¶62 Moreover, at the evidentiary hearing to consider Dawson's ineffective assistance

claims, Dr. Van Hassel testified, regarding the staff notes, that: "it was the consensus of

the professionals involved in the evaluation that overall his displays of emotion were

substantially less than what you might have expected for someone in his situation."

¶63 Accordingly, we conclude that the District Court did not err when it found that

Dawson could not establish prejudice as a result of his counsel's failure to obtain the

complete records and staff notes of his evaluation at Montana State Hospital.

¶64 Second, Dawson contends that his counsel should have pursued the possibility that he

suffered from epilepsy. Dawson asserts that his mental health evaluation recommended

further EEG testing because of the possibility of epilepsy and, therefore, his counsel

should have explored this possibility.

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¶65 In response, the State asserts that Dawson's counsel's decision not to further pursue an

investigation that Dawson may have suffered from epilepsy was reasonable considering

that Dawson had no history of serious head injuries, gave his attorneys no reason to

believe he might be suffering from epilepsy or neurological problems of any kind, and the

CT scan and second EEG performed on Dawson were normal.

¶66 At the evidentiary hearing to consider Dawson's petition for postconviction relief,

Allen Beck, Dawson's trial counsel, testified that nothing in the defense's pretrial

preparation, including medical information and information from Dawson himself,

indicated that he suffered from epilepsy. Beck testified further, that he did not believe

there was any basis to pursue the possibility that Dawson suffered from epilepsy as a

defense at trial.

¶67 Dr. Gary Cooney, a neurologist who interpreted the two EEG tests performed on

Dawson, also testified at the evidentiary hearing. Dr. Cooney testified that the

abnormalities found in the initial EEG were not strongly suggestive of epilepsy, and that

there were alternative explanations for the intermittent spike discharges, which did not

necessarily indicate an abnormality. Dr. Cooney testified that following the initial EEG, a

CT scan and a second EEG were ordered. The results of the CT scan and the second EEG

were normal.

¶68 Accordingly, we conclude that the District Court did not err when it found that there

was no evidence presented that Dawson was epileptic and, therefore, Dawson's counsel's

decision not to further pursue this factor was reasonable.

¶69 Third, Dawson asserts that his counsel failed to investigate the consequences of

Dawson's drug ingestion. Dawson contends that the affidavit testimony of Dr. Watkins

submitted at the evidentiary hearing to consider Dawson's petition for postconviction relief

established that Dawson's mental capacity was impaired by his drug use.

¶70 In response, the State asserts that Dawson's counsel did pursue an investigation into

the consequences of Dawson's drug use, and thereafter determined that it would not be an

adequate defense under the circumstances of this case. The State contends that Dawson's

counsel made a reasonable decision not to present evidence of Dawson's drug use and its

consequences at trial and sentencing, after consulting with Dr. Watkins. The State points

out that after receiving information regarding Dawson's reported drug use during the

incident, and then conducting an extensive interview with Dawson, Dr. Watkins concluded

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that Dawson was merely in a "mild dissociated state" at the time of the incident as a result

of his use of methamphetamines. Additionally, the State contends that the affidavit

testimony of Dr. William Stratford, submitted by the State at the evidentiary hearing,

sufficiently rebuts Dawson's claim that his mental capacity was diminished at the time of

the offense as a result of his drug use.

¶71 The District Court concluded that:

It is certainly doubtful that any of this kind of evidence would have had any effect

on the determination of guilt made in the jury verdict. Defendant's attorneys thought

that evidence of claimed drug or alcohol use on the part of Dawson would be an

aggravating factor in sentencing before the sentencing judge.

¶72 At the hearing to consider Dawson's petition for postconviction relief, Allen Beck

testified as follows:

Q. Did you make a decision not to call Dr. Watkins at trial?

A. Yes, I did.

Q. And what was the basis for your decision not to call Dr. Watkins at trial?

A. His diagnosis.

Q. And what was that?

A. That he had a mild disassociated state which was, in Dr. Watkins' opinion,

related to the use of methamphetamines.

Q. And did you reach a decision that that would not be an adequate defense in the

case?

A. Yes, I did. I think the combination-if I were to have used Dr. Watkins, it would

have then been incumbent upon us, Your Honor, to turn over the tape-recorded-or

the video interview. That's in my view a statement under Montana law, and there

were enough inculpatory admissions that I think the combined effect of the weak

nature of Dr. Watkins' testimony and the video far outweighed-the prejudice far

outweighed the benefit from trying than the benefit from trying to use them in trial.

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¶73 The affidavit of Dr. Watkins, submitted by the defense, stated the following:

The testing and interviewing done at Warm Springs supports my opinion that, if Mr.

Dawson committed the murders, he was in a drug induced dissociative state and his

normal personality was not in control.

....

. . . In the days before the crime, Mr. Dawson was injecting substantial amounts of

methamphetamine and drinking alcohol. He had apparently had little sleep for days.

The stress factors combined with the drugs and alcohol created conditions

conducive to dissociation.

¶74 The rebuttal affidavit of Dr. Stratford, submitted by the State, stated the following:

Dr. Watkins, in his affidavit, concluded that Mr. Dawson is neither psychotic nor a

sociopath, and that he does not suffer from a multiple personality disorder. He did

diagnose an atypical dissociative disorder. He also noted that amphetamines are a

drug which can cause dissociative states.

In my opinion, after watching the videotape [of Dr. Watkins' interview with

Dawson], the evidence for a dissociative disorder is extremely slim. In my opinion,

after watching the videotape, Dawson was led to the dissociative description by Dr.

Watkins and thus the evidence for this diagnosis is so very slight as to be almost

insignificant.

....

Dr. Watkins states in his affidavit that Dawson's behavior was irrational and

confused at the time of the crimes. In fact, one of the striking elements is the

deliberate, focused, conduct of Dawson during the 44-hour period between the time

of the abductions to the time of Dawson's arrest. During that period of time, Dawson

consistently demonstrated conduct which evidenced knowledge, purpose, and

planning. Examples of this conduct are that Dawson brought tape and a gun to the

motel; he wiped a towel through Room 149, taking fingerprints off of anything he

might have touched; he moved the Rodsteins' cars, taking a different route to the

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Husky Station each time he moved the cars, etc. In fact, at page 130 of the transcript

of the interview, Dawson admits to Watkins that the crimes were "definitely

planned."

....

. . . In my opinion, the evidence in this case for atypical dissociative disorder is so

slight as to be almost insignificant. Even if it was present, atypical dissociative

disorder is not a mental disease or defect, but a neurosis which would not affect

Dawson's capacity to act with knowledge or purpose.

¶75 In Strickland, the Supreme Court stated the following with regard to a counsel's duty

to investigate:

[S]trategic choices made after thorough investigation of law and facts relevant to

plausible options are virtually unchallengeable; and strategic choices made after less

than complete investigation are reasonable precisely to the extent that reasonable

professional judgments support the limitations on investigation. In other words,

counsel has a duty to make reasonable investigations or to make a reasonable

decision that makes particular investigations unnecessary. In any ineffectiveness

case, a particular decision not to investigate must be directly assessed for

reasonableness in all the circumstances, applying a heavy measure of deference to

counsel's judgments.

Strickland, 466 U.S at 690-91, 104 S. Ct. at 2066.

¶76 Our review of the record reveals that Dawson's counsel's decision to not further

investigate or pursue Dawson's drug use was a reasonable one under the circumstances.

Dawson's counsel realized that at trial Dr. Watkins' testimony that Dawson suffered from a

mild dissociative state as a result of methamphetamine use would not have any real effect

on the verdict arrived at by the jury, because it was not evidence of a mental disease or

defect, it did not affect his ability to act with knowledge or purpose and there was

evidence that Dawson acted with the required mental state. Additionally, Dawson's

counsel was aware that in order to call Dr. Watkins as an expert witness, they would be

required to provide the State with a potentially damaging four-hour interview of Dawson

by Dr. Watkins in which Dawson made several inculpatory statements.

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¶77 With regard to Dr. Watkins' possible testimony at sentencing to establish Dawson's

drug use as a mitigating factor, we conclude that it was reasonable for Dawson's counsel to

conclude that the potential harm from that testimony outweighed the possible benefit.

¶78 Our review of the trial transcript reveals a considerable amount of testimony which

established Dawson's planning and purposeful behavior before and during the crimes: he

checked in using a false name and address; parked his car behind the motel, away from his

room; he had material to gag and bind the Rodsteins already laid out on his bed when he

brought them into his room; he wiped everything he might have touched in the Rodsteins'

room with a towel to eliminate his fingerprints; he hung the "Do Not Disturb" sign on his

door; he called the motel maid service and requested that they not clean his room; he

moved the Rodsteins' cars from the motel parking lot to a nearby gas station, using a

different route each time; when he noticed the police looking at the Rodsteins' cars,

knowing that his fingerprints were on the cars, he came out of his motel room and told the

officers that someone had been fooling around with the cars and he had tried to fix them;

he also told the officers that his real name was not the name he was registered under,

knowing that his motel registration and car registration were under different names.

¶79 Dawson's counsel reasonably believed that arguing to the sentencing judge that

Dawson's drug use affected his mental capacity, in the face of the overwhelming evidence

that Dawson's capacity was not impaired, would not be beneficial to Dawson.

¶80 Therefore, we conclude that Dawson's counsel's decision not to further pursue or

investigate Dawson's drug use, was a reasonable decision under the circumstances.

Dawson's counsel made a reasonable investigation into the consequences of Dawson's

drug use and as a result of that investigation, made a reasonable strategic decision to not

focus on Dawson's drug use at trial, or as a mitigating factor at sentencing. We conclude

that the District Court did not err when it found that Dawson's counsel did not render

ineffective assistance because they failed to further investigate the consequences of

Dawson's drug use.

¶81 Accordingly, we conclude that the District Court did not err when it found and

concluded that Dawson did not receive ineffective assistance at the pretrial phase.

ISSUE 2

¶82 Did the District Court err when it found that Dawson did not receive ineffective

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assistance of counsel during the trial phase?

¶83 Dawson asserts that his trial counsel, Allen Beck and Gary Wilcox, rendered

ineffective assistance during the trial phase. First, Dawson contends that his counsel were

ineffective because they agreed to the procedure used to present Amy Rodstein's

testimony. Second, Dawson asserts that his counsel were ineffective because they failed to

corroborate the defense theory by examination of Amy. Third, Dawson contends that his

counsel were ineffective because they failed to give an opening statement. Fourth, Dawson

asserts that his counsel were ineffective because they failed to object to guilt phase errors,

including improper questions and comments by the State. Fifth, Dawson contends that his

counsel were ineffective because they failed to obtain experts to testify at trial. Sixth,

Dawson asserts that his counsel were ineffective because they failed to give a closing

argument.

a. The procedure used to present Amy Rodstein's testimony.

¶84 Dawson argues that his trial counsel rendered ineffective assistance when they agreed

to have Amy Rodstein's guardian ad litem, Damon Gannett, question Amy at trial. Both

sides reserved the right to submit additional questions to Amy through her guardian ad

litem following her initial testimony. Dawson asserts that this procedure conceded Amy's

credibility and the impact of her testimony. Dawson also contends that the procedure

permitted leading questions concerning Dawson's involvement, and deprived Dawson of

his opportunity to challenge or confront Amy's testimony in any meaningful way.

¶85 In response, the State contends that the procedure was the result of sound strategy

adopted by Dawson's defense counsel and was not unreasonable under the circumstances.

Moreover, Dawson agreed to the procedure.

¶86 The District Court found as follows:

The procedure was a part of the strategy adopted by trial counsel and was not

unreasonable under the circumstances. Ms. Rodstein was 16 years old at the time of

trial and 15 years old at the time of the incident. She was the sole survivor. Much of

her testimony was favorable to the defense. She did not hear or observe any

strangling of her other family members while with Dawson. She was understandably

a fragile witness. Beck apparently felt it was important to have her testimony. An

agreement to handle her testimony as it was handled was something within his

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permissible strategy at time of trial.

¶87 At the evidentiary hearing to consider Dawson's petition for postconviction relief,

Allen Beck explained why the defense agreed to the procedure for Amy's trial testimony:

I had formed the opinion early on in the case from having Amy Rodstein's

statements evaluated by a child psychologist that she was very definitely

traumatized by the incident and may not be able to withstand the rigors of going

through a normal examination-cross-examination in our adversarial system.

....

It was clear to me through the course of interviewing her in Damon's office-Damon

did the entire interview-that she would be able to perhaps get through a direct

examination, but I doubted seriously that she would be able to get through a cross-

examination, which would thus effectively not enable us to cross-examine her.

Therefore, I suggested the procedure whereby Damon Gannett be the person who

questioned her.

¶88 Defense counsel's decision to use a special procedure to present the testimony of Amy

Rodstein was a reasonable strategy under the circumstances. Accordingly, we conclude

that the District Court did not err when it found that Dawson's counsel's decision to allow

Amy's guardian ad litem to question her at trial did not constitute ineffective assistance of

counsel.

b. Failure to present the defense theory through Amy Rodstein's testimony.

¶89 Dawson argues that his counsel rendered ineffective assistance because they did not

ask about Amy's statement to the police that she saw a man who acted as a look out, and

that Dawson signaled to this man. Dawson asserts that this was a failure to present critical

evidence by which he was prejudiced.

¶90 In response, the State contends that Dawson overstates the nature and significance of

Amy's observations. The State points out that in her police statement, Amy merely stated

that she saw a man standing in the parking lot, looking at the main office, that she did not

think that she could identify him because it was too dark, he was too far away, and he did

not look directly at them; that, later on, Dawson said that "there was a guy outside that was

his watch-out for him"; and that Amy said she did not know for sure if Dawson was

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referring to the man she saw in the parking lot as being the watch-out.

¶91 At the evidentiary hearing to consider Dawson's petition for postconviction relief,

defense counsel Allen Beck testified to the following as his reason for not questioning

Amy regarding the alleged watch-out:

Q. Do you recall whether you had a reason for not asking Damon Gannett to

question her regarding those-regarding that observation?

A. Well . . . it was my observation of Amy Rodstein at that time that she had

reached her limit. I didn't think that she was capable of proceeding, and I just simply

wanted her off the stand, rather than prolonging anything further.

¶92 The District Court found that:

A failure to cross examine her about other particular issues when her testimony

ended abruptly at the emotional moment referred to in the findings was also

appropriate. She had already testified to certain conduct and observations of

Dawson related to other individuals in telephone calls and travelling [sic] to homes

supportive of the defense theory.

¶93 The record reveals that at the conclusion of Amy's testimony, she was asked what she

was thinking prior to a police detective opening the door, and she answered: "I was

thinking: Why is this happening to me and my family: Am I going to live to see

tomorrow? Is my Mom and Dad and my Brother going to be with me?" At that point, Mr.

Gannett asked for a break, which the court granted. Both the State and Dawson's counsel

then proceeded to chambers where they made a record which reflected the various

emotional responses to the end of Amy's testimony. Apparently, Amy, several members of

the jury, and other persons in the court room were either crying, or having some emotional

reaction to her testimony. It was at this point that Dawson's counsel decided not to subject

Amy to further examination.

¶94 We conclude that under the circumstances, Dawson's counsel's decision to not subject

Amy to further questioning, was reasonable. Amy had previously testified regarding

certain conduct and observations of Dawson related to other individuals which supported

the defense theory that Dawson acted under the duress or control of another. While Amy's

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further testimony may or may not have added to that theory, it was reasonable for

Dawson's counsel to believe that having Amy on the stand, in the emotional state she was

in, and further working the jurors' emotions, would have been more damaging to the

defense than helpful. Therefore, we conclude that the District Court did not err when it

found that Dawson's counsel were not ineffective when they chose not to examine Amy

further.

c. Failure to make an opening statement.

¶95 Dawson contends that his counsel were ineffective because they failed to give an

opening statement at trial. Dawson asserts that his counsel could have given an opening

statement, without Dawson's assistance in his defense, based on the defense theory that

Dawson acted under duress.

¶96 The State responds that the defense properly reserved its opening statement, and

hoped that after watching the State present its case-in-chief, that Dawson would see the

wisdom of assisting in his defense and provide his counsel with full information regarding

what happened, which would have allowed Dawson's counsel to give an effective opening

statement.

¶97 The District Court found that:

The failure to make an opening statement was within appropriate trial strategy on

the part of Beck. Beck thought connective evidence would be provided by Dawson.

That evidence was never provided to allow a statement of what Beck intended to

prove as a substantive defense. There was little Beck could say in the way of

opening statement. Beck had little evidence available to rebut the State's evidence.

Such failure is not prejudicial to Dawson because of the overwhelming evidence of

his guilt.

¶98 At the evidentiary hearing to consider Dawson's petition for postconviction relief,

Allen Beck testified to the following:

A. When I asked David [Dawson] repeatedly prior to trial to describe to me in more

detail what happened, he refused to do so, and he would either directly or obliquely

refer to the fear of his own safety, that of his daughter's and that of his family.

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In that context we then went into a trial, and I have had numerous experiences

where people in Mr. Dawson's position, having seen the State's case as it goes in,

would often be affected by that and be willing to assist in their defense more clearly

and even be willing to testify. Therefore, we weren't in a position to give an opening

statement because I was still in the hopes that David Dawson would see the wisdom

in assisting in his defense by providing us the full information of what happened.

....

Q. [By the court] And would that be true then for a reserved opening statement, as

well as an opening statement at the beginning of trial before prosecution evidence?

A. Yes, Your Honor.

¶99 The decision whether to make an opening statement and when to make it is ordinarily

a matter of trial tactics and strategy which will not form the basis for a claim of ineffective

assistance of counsel. See United States v. Rodrigues-Ramirez (9th Cir. 1985), 777 F. 2d

454, 458. In United States v. Nersesian (2d Cir. 1987), 824 F.2d 1294, 1321, the court

stated:

Counsel's choice of strategy was certainly reasonable under the circumstances. By

waiving opening argument the defense did not commit itself to a particular position

and was thus free to develop any defense that might materialize as the prosecution

presented its case.

¶100 Therefore, we conclude that Dawson's counsel's decision to waive an opening

statement was reasonable trial strategy under the circumstances. Accordingly, we conclude

that the District Court did not err when it found that Dawson's counsel did not render

ineffective assistance because they failed to give an opening statement.

d. Failure to object at trial.

¶101 Dawson contends that his counsel rendered ineffective assistance because, at trial,

they did not object to improper direct examination questions by the State, improper

comments during the State's closing argument, and improper testimony by Dr. Van Hassel

regarding Dawson's mental state. First, Dawson asserts that his counsel failed to object

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when during the State's examination of a detective, the questions amounted to

prosecutorial comment on Dawson's post-arrest silence.

¶102 As the State correctly points out, Dawson's counsel did in fact object when the

detective was directly asked about post-arrest silence, and that objection was sustained by

the District Court. Further, we addressed this issue in Dawson's direct appeal, stating: "[s]

ince no answer was given, we conclude that this question about the defendant's silence

was harmless." Dawson, 233 Mont. at 357, 761 P.2d at 359. Accordingly, Dawson's

assertion is without merit. Other questions and answers to which Dawson now refers were

related to actual statements made by Dawson following his arrest. We conclude that it was

not ineffective when counsel did not object to that line of questioning.

¶103 Second, Dawson contends that his counsel were ineffective because they failed to

object to the State's use of the phrase "killing pen" four times during its closing argument.

Dawson asserts that his counsel's failure to object precluded him from raising this issue on

direct appeal.

¶104 In response, the State contends that Dawson's counsel's decision not to object was a

reasonable one considering that the facts clearly supported the State's description of the

area. The State asserts that there was ample evidence that Dawson killed the Rodsteins and

then stored their three bodies in the small sink area outside the bathroom. The State further

contends that it would not have been a wise defense tactic to object and thereby allow the

State to defend the term "killing pen" and focus the jury's attention on the term.

¶105 "Because many lawyers refrain from objecting during opening statement and closing

argument, absent egregious misstatements, the failure to object during closing argument

and opening statement is within the 'wide range' of permissible professional legal

conduct." United States v. Necochea (9th Cir. 1993), 986 F.2d 1273, 1281 (citing

Strickland, 466 U.S. at 689, 104 S. Ct. at 2065).

¶106 Because we conclude that the term "killing pen" was not an egregious misstatement,

we further conclude that Dawson's counsel's decision not to object to the use of the phrase

during closing argument was reasonable. Therefore, we conclude that the District Court

did not err when it found that Dawson's counsel did not render ineffective assistance when

they failed to object during closing argument.

¶107 Finally, Dawson argues that his counsel were ineffective because they did not object

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to Dr. Van Hassel's testimony that Dawson was capable of acting with purpose and

knowledge, the required mental state. Dawson contends that his counsel should have

objected on the basis that the testimony was a product of a psychiatric evaluation

conducted in violation of Dawson's constitutional rights.

¶108 As we previously discussed, an objection to Dr. Van Hassel's testimony on the basis

that the testimony was a product of a psychiatric evaluation conducted in violation of

Dawson's constitutional rights, would not have been successful because the evaluation

complied with the Montana statutory scheme at the time of the evaluation and at trial.

Accordingly, we conclude that Dawson's counsel were not ineffective because they did not

object to the testimony.

e. Failure to obtain experts.

¶109 Dawson argues that his counsel were ineffective because they did not offer expert

testimony on the issues of Dawson's drug ingestion and Dawson's head injuries and EEG

tests.

¶110 As previously discussed, Dawson's counsel's decision not to call Dr. Watkins on the

issue of Dawson's drug ingestion did not amount to ineffective assistance of counsel.

Likewise, Dawson's counsel's decision to not further explore or present expert testimony

on the issue of Dawson's two minor head injuries and Dawson's EEG tests, as discussed

previously, did not amount to ineffective assistance of counsel. Accordingly, we conclude

that the District Court did not err when it found that Dawson's counsel's decision to not

present expert testimony on these issues did not amount to ineffective assistance of

counsel.

f. Failure to give a closing argument.

¶111 Dawson contends that his counsel were ineffective because they did not give a

closing argument at trial.

¶112 At the evidentiary hearing to consider Dawson's petition for postconviction relief,

Allen Beck testified as follows:

Q. Why was no closing argument presented by the defense at the trial?

....

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A. Those are the opinions that I recall. The opening argument by Mr. Paxinos was

basically an outline of the evidence. It wasn't inflammatory. There really wasn't

much to rebut. Secondly, as I indicated before, I noticed Harold Hanser's position,

attitude. Having tried cases with him before, I was pretty sure that he was going to

come in and tie everything together in a relatively emotive fashion. And part of that

related to sexual paraphernalia.

David, through the course of our investigation, seemed to me to be sensitive about

the sexual paraphernalia and the intimations that the State was obviously going to

make about it. So during the course of Mr. Paxinos' closing, I passed a note to-by

David, who was sitting next to me-to Gary and said that I'd never failed to make a

closing argument before, but perhaps this was a case we should consider it. The

notes went back and forth.

At the close of the opening part of the State's argument and before my argument, I

asked for a recess. It was granted. We went into a caucus. The defense team and

David Dawson discussed the pros and cons of making a closing argument. David

was in favor of not making a closing argument and we did not.

....

Q. Did you have a strong closing argument to give at the time that you made this

decision?

A. At that stage of the trial, no. There were a few fragmentary facts that we would

collect . . . but basically it would have been an argument which would have

discussed what was in the instructions. There's the presumption of innocence,

burden of proof and beyond a reasonable doubt.

¶113 The District Court concluded that:

The strategy reasons outlined by Beck for not making a closing argument were

reasonable trial strategy. Such strategy was successful in that the more experienced

county attorney was precluded from making an argument which would tie all

elements together and possibly include references to sexual paraphernalia that were

not made in the opening argument by the less experienced deputy county attorney.

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¶114 "Though closing argument is often an invaluable tool as it serves to sharpen and

clarify the issues for resolution by the trier of fact in a criminal case, an attorney's decision

to waive closing argument does not per se constitute ineffective assistance." State v. Lee

(Ariz. 1984), 689 P.2d 153, 160 (internal citation omitted). We agree with the Supreme

Court of Arizona's reasoning as set forth in Lee:

We will not inquire into the advisability of waiver of closing argument as a ground

for ineffective assistance where waiver was a reasoned election of a trial strategy.

However, where trial counsel's decision to waive closing argument is unreasonable

in that it is below the threshold of what minimally competent defense counsel would

do under a given set of circumstances, counsel's conduct will not escape judicial

scrutiny.

State v. Lee, 689 P.2d at 161.

¶115 We conclude that under the circumstances, Dawson's counsel's decision to not give a

closing argument was a reasonable trial strategy and did not fall below the standard of

what a minimally competent defense attorney would have done in the same circumstances.

Therefore, we conclude that the District Court did not err when it concluded that Dawson's

counsel were not ineffective when they decided not to give a closing argument.

¶116 Accordingly, we conclude that the District Court did not err when it found that

Dawson did not receive ineffective assistance of counsel at the trial phase.

ISSUE 3

¶117 Did the District Court err when it found that Dawson did not receive ineffective

assistance of counsel during the sentencing phase?

¶118 Dawson asserts that the District Court erred when it found that his counsel did not

render ineffective assistance at the sentencing phase. First, Dawson contends that his

counsel were ineffective because they failed to present crucial mitigating evidence to the

sentencing court. Second, Dawson asserts that his counsel were ineffective because they

failed to conduct an adequate investigation at the sentencing phase. Finally, Dawson

contends that his counsel were ineffective because they failed to move the sentencing

court for reconsideration of its conclusion that Dawson posed a substantial and continuing

threat and had no chance for rehabilitation.

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¶119 "The right to effective assistance of counsel applies with equal force at the penalty

phase of a bifurcated capital trial. . . . In this context, prejudice means a reasonable

probability that but for counsel's errors, a different sentence would have been imposed."

Clabourne v. Lewis (9th Cir. 1995), 64 F.3d 1373, 1378.

a. Failure to offer mitigating evidence to the sentencing court.

¶120 Dawson argues that his counsel rendered ineffective assistance because they failed to

offer crucial mitigating evidence to the sentencing court.

¶121 First, Dawson asserts that his counsel failed to offer Amy's statement to the police

regarding the man she saw in the parking lot. Dawson contends that his counsel should

have offered Amy's statements because it would have bolstered the defense theory that

Dawson acted under the duress or coercion of another.

¶122 As previously discussed, Amy's statement to the police was vague. Further, defense

counsel had no information that the man in the parking lot was connected in any way with

this incident. Additionally, prior to the sentencing hearing, Dawson's counsel specifically

asked Dawson to provide them with information regarding the involvement of others and

Dawson replied that he had nothing to tell them. Moreover, apparently, neither the jury,

nor the sentencing court accepted the defense theory that Dawson was acting under the

control of another. Therefore, Dawson has not shown that the failure to offer this evidence

prejudiced him.

¶123 Second, Dawson contends that his counsel failed to present evidence regarding

Dawson's use of drugs at the time of the incident. Dawson asserts that evidence of his drug

use was already before the court and thus a decision by his counsel not to discuss the issue

at sentencing could not reasonably have been based on a wish to keep information away

from the judge.

¶124 In response, the State agrees that evidence of Dawson's drug use was before the court

and asserts that the sentencing judge did consider the evidence of Dawson's drug use as a

possible mitigator, but ultimately determined that it was not. The State points to the

sentencing court's finding in which Judge Barz stated:

The defendant reported to the pre-sentence investigator that at the time of the

current offenses he used crystal methamphetamine. He couldn't remember the exact

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amount, but that it was more than just a little bit, but not an abnormal amount. There

is absolutely no evidence showing that the Defendant's mental capacity was

impaired.

(Emphasis added.)

¶125 At the evidentiary hearing to consider Dawson's petition for postconviction relief,

Allen Beck testified to his reasoning for not arguing drug use as a mitigating factor:

Q. Did you consider calling Dr. Watkins as a witness at the mitigation hearing?

A. Yes.

Q. And did you make a decision not to do that?

A. I did.

Q. And what was your reason for that decision?

A. To put it simply, in looking at any judge, and I think particularly Judge Barz,

Your Honor, to say that I engaged in this conduct because I took drugs is not a

matter in mitigation. It's a matter in aggravation. It's that these deaths occurred

because I was high on drugs seems to me and under the facts in this case to be

highly inflammatory and prejudicial.

Beck felt that, based on the facts in this case, including a record replete with actions by

Dawson which evidenced that his mental capacity was not impaired at the time of the

incident, to argue outright that Dawson engaged in this conduct because he used drugs was

inflammatory and would not benefit Dawson. Beck's decision was a reasonable defense

strategy under the circumstances.

¶126 Therefore, we conclude that Dawson's counsel's decision not to present or argue

evidence of Dawson's drug use as a mitigating factor did not constitute ineffective

assistance of counsel.

¶127 Finally, Dawson asserts that his counsel failed to present evidence of Dawson's good

conduct in jail while awaiting trial. Dawson contends that his counsel failed to recognize

this as a mitigating factor and that this evidence would have contradicted the sentencing

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court's conclusion that Dawson posed a risk to society and could not be rehabilitated.

¶128 In response, the State asserts that evidence of Dawson's good behavior in jail was

presented at the guilt phase and, therefore, considered at the sentencing phase. The State

also points out the following testimony of Denise Hust, a correctional officer in the

Yellowstone County Detention Facility, elicited at trial by Dawson's counsel on cross-

examination:

Q. [By Gary Wilcox] Now, you have had an opportunity to observe him quite a bit

in the months that he was in the jail; is that right?

A. Yes.

Q. It is safe to testify that he has been, in the words in your statement, a model

prisoner; is that right?

A. Yes.

Q. You have had no problems with as far as violent outbursts; is that correct?

A. No.

Q. And he has not gotten into any violent disputes with any other individuals in the

jail facility; is that correct?

A. Correct.

....

Q. And he is one of the better behaved prisoners that you have up there; is that also

not correct?

A. That is correct.

¶129 Section 46-18-302, MCA (1985), provides that in the sentencing hearing in a case

where the death penalty may be imposed, "[e]vidence admitted at the trial relating to such

aggravating or mitigating circumstances shall be considered without reintroducing it at the

sentencing proceeding."

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¶130 Accordingly, we conclude that Dawson's argument that his counsel rendered

ineffective assistance because they failed to present evidence of his good behavior in jail,

is without merit.

b. Failure to conduct an adequate investigation.

¶131 Dawson argues that he received ineffective assistance because his counsel failed to

conduct an adequate investigation during the sentencing phase. First, Dawson contends

that his counsel overlooked demonstrations of remorse found in the Montana State

Hospital staff's notes. Dawson asserts that this information would have served to rebut the

finding by the sentencing court that Dawson felt no remorse.

¶132 As previously discussed, the sentencing court's finding regarding Dawson's lack of

remorse was based on the court's own observations throughout the lengthy proceedings

against Dawson. Therefore, we conclude that substantial evidence supports the District

Court's finding that Dawson was not prejudiced by his counsel's failure to discover the

Montana State Hospital staff notes regarding Dawson's behavior.

¶133 Second, Dawson asserts that his counsel failed to investigate Dawson's medical and

school records. Dawson contends that the medical records would have established that he

suffered a number of injuries, including head injuries. Dawson further asserts that these

injuries were discussed in the Montana State Hospital evaluation report, and thus his

counsel had notice of where the injuries and the hospitalizations occurred. With regard to

his school records, Dawson contends that they would have established that he was seen by

a psychiatrist while he was in school in California. Dawson asserts that his medical and

school records would have reflected mitigating circumstances.

¶134 The State responds that, with regard to Dawson's medical records, he has failed to

indicate how any additional information would be a mitigating factor in this case. Both the

presentence report and the Montana State Hospital evaluation report contained information

regarding Dawson's previous medical history. The presentence report contained

information regarding an apartment fire in which Dawson was burned, and a knee injury

and subsequent surgery on his knee. The Montana State Hospital report contained

information regarding two minor head injuries, neither of which resulted in

unconsciousness, and Dawson reported no lasting effects and no history of any seizures.

Additionally, as previously discussed, Dawson's CT scan and second EEG were normal.

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¶135 With regard to Dawson's school records, the State asserts that the Montana State

Hospital report states that Dawson had seen a psychiatrist twice while in school. Dawson

reported that the reason was frequent absence from classes. Dawson additionally denied

any history of psychiatric hospitalizations or services.

¶136 In Strickland, the Supreme Court stated that "when a defendant has given counsel

reason to believe that pursuing certain investigations would be fruitless or even harmful,

counsel's failure to pursue those investigations may not later be challenged as

unreasonable." Strickland, 466 U.S. at 691, 104 S. Ct. at 2066.

¶137 We conclude that it was reasonable for Dawson's counsel not to pursue further

investigation into Dawson's medical and school records. Dawson did not give his counsel

any reason to believe that such an investigation would be beneficial. Nor is there any

evidence that such an investigation would be beneficial. Accordingly, we conclude that

Dawson did not receive ineffective assistance because his counsel failed to investigate his

medical or school records.

¶138 Finally, Dawson asserts that his counsel should have investigated and interviewed

his family and boyhood friends, to develop, or at a minimum, determine the existence of

mitigating evidence.

¶139 In response, the State contends that Dawson has failed to allege the names of family

and boyhood friends whom he thinks his counsel should have interviewed, what

information would have been provided, and the significance of that information to this

case.

¶140 The District Court found that:

No showing is made concerning what would have been learned in such interviews.

It is unreasonable to expect counsel to interview everyone involved in the life of a

convicted defendant even when the conviction is of deliberate homicide in a

potential death case. No prejudice has been shown. The presentence investigation

showed no previous criminal record on the part of Dawson.

¶141 Our review of the record reveals that Dawson's counsel did contact and interview

Dawson's mother and sister, and presented letters from each of them to the court at

sentencing. Additionally, the presentence report included letters from Dawson's former

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spouses. Accordingly, we conclude that Dawson's counsel did not render ineffective

assistance by failing to further investigate Dawson's family and boyhood friends.

c. Failure to move for a reconsideration.

¶142 Dawson argues that he received ineffective assistance because his counsel failed to

move the sentencing court for a reconsideration of its conclusion that Dawson posed a

substantial and continuing threat and that his chances for rehabilitation were nonexistent.

Dawson contends that the sentencing court's conclusions were based on erroneous

information and lack any factual basis.

¶143 In State v. Dawson, 233 Mont. at 363, 761 P.2d at 363, this Court upheld Dawson's

death sentence pursuant to § 46-18-310, MCA, which provides for automatic review of a

death sentence. In that case, we determined that the evidence supported the sentencing

court's finding of those aggravating factors, and concluded that the court's sentence of

death was appropriate under the circumstances. Dawson, 233 Mont. at 363, 761 P.2d at

363.

¶144 Therefore, Dawson can show no prejudice from his counsel's failure to move for

reconsideration of the sentencing court's conclusions. Accordingly, we conclude that the

District Court did not err when it found that Dawson did not receive ineffective assistance

as a result of his counsel's failure to move for a rehearing.

¶145 Accordingly, we conclude that the District Court did not err when it found that

Dawson did not receive ineffective assistance of counsel at the sentencing phase.

ISSUE 4

¶146 Did the District Court err when it found that Dawson did not receive ineffective

assistance of counsel during the direct appeal phase?

¶147 We review claims of ineffective assistance of appellate counsel according to the

standard set forth in Strickland. See Hagen v. State, 1999 MT 8, ¶ 10, 293 Mont. 60, ¶ 10,

973 P.2d 233, ¶10. The petitioner must show that counsel's advice fell below an objective

standard of reasonableness and that there is a reasonable probability that, but for counsel's

unprofessional errors, the petitioner would have prevailed on appeal. See Miller v. Keeney

(9th Cir. 1989), 882 F.2d 1428, 1434.

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¶148 Dawson argues that his appellate counsel, Jeff Renz, rendered ineffective assistance

of counsel because he failed to raise all possible issues on direct appeal. Dawson contends

that, because he was facing a sentence of death, Renz had a duty to raise every possible

issue, not just those that Renz deemed to have merit. Dawson asserts that Renz had no

tactical or strategic reason for failing to raise many of the issues and that those claims not

raised by Renz on direct appeal were subsequently dismissed by partial summary

judgment during postconviction proceedings.

¶149 The State responds that appellate counsel does not have a duty to raise every possible

issue. The State asserts that, historically, effective advocates have winnowed out weaker

arguments and have focused on a few central issues. The State points out that Renz

reviewed the entire record, discussed the case with trial counsel and Dawson, did legal

research, and then narrowed the issues to those he felt were most important and

meritorious.

¶150 The District Court found that:

Any appellate counsel worth his salt realizes that to make an effective argument one

must argue his strongest points and not get bogged down into minutia as current

counsel would apparently contend Renz should have done on the appeal of this case.

Renz was highly qualified to handle the appeal. Renz did a thorough preparation for

the appeal process by his review of the record, interviews with trial counsel,

discussions with qualified attorneys in the field and the solicitation of reviews of his

briefs prior to filing. Many of the current claims of ineffective assistance of

appellate counsel can only be classified as second guessing.

¶151 First, Dawson contends that his appellate counsel should have raised several claims

based upon the Ake decision and its subsequent extension in Smith v. McCormick.

However, as previously discussed, there was no case law at the time of Dawson's

psychiatric evaluation, at the time of Dawson's trial, or at the time of the direct appeal in

1988, which would have led Dawson's appellate counsel to believe that the psychiatric

evaluation issues were mishandled in any way by the trial court. The extension of Ake by

Smith v. McCormick was not decided until September 1990, and at the time of the direct

appeal State v. Smith, which upheld Montana's psychiatric evaluation process in light of

Ake, was controlling authority.

¶152 Second, Dawson asserts that the limitations in the psychiatric examination, including

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the fact that the evaluation precluded the mental health professionals from considering

evidence of a mitigating character, denied him his constitutional rights and, therefore, his

appellate counsel should have raised this issue on appeal. However, as previously

discussed, Dawson was appointed his own psychiatric expert, Dr. Watkins, who did

consider evidence of mitigating factors. For this reason, Dawson is unable to show any

prejudice as a result of his appellate counsel's failure to raise this issue on appeal.

¶153 Third, Dawson contends that his appellate counsel should have raised the issue that

the sentencing court failed to consider all mitigating evidence. However, Dawson has not

shown what mitigating evidence the sentencing court failed to consider. Our review of the

record reveals that the sentencing court, as set forth in its sentencing order, considered all

of the mitigating evidence offered, and then weighed the mitigating factors against the

aggravating factors. Moreover, we addressed a similar issue in our independent review of

Dawson's death sentence on direct appeal pursuant to § 46-18-310, MCA, and determined

that the evidence supported the sentencing court's findings on mitigating and aggravating

circumstances. See State v. Dawson, 233 Mont. at 362, 761 P.2d at 362. Therefore,

Dawson's appellate counsel's decision not to raise this issue on direct appeal was

reasonable and Dawson can show no prejudice as a result of counsel's failure to raise this

issue.

¶154 Fourth, Dawson asserts that his appellate counsel should have raised the issue on

direct appeal that Dawson's due process rights were infringed upon by the trial court's

emotional response to Amy Rodstein's testimony. Dawson's appellate counsel did raise

this issue on direct appeal as a violation of Dawson's Sixth Amendment right to an

impartial jury. On direct appeal we concluded that "the transcript does not convey any

potential prejudice by the court." State v. Dawson, 233 Mont. at 355, 761 P.2d at 358.

Dawson can show no prejudice as a result of his counsel's failure to raise this version of

the issue on direct appeal, because arguing a due process violation instead of an impartial

jury violation would have made no difference. The outcome was based on the conclusion

that the trial court's reaction did not prejudice Dawson.

¶155 Finally, Dawson contends that his appellate counsel should have argued on direct

appeal that the "inflammatory comments of the prosecutor during closing argument" were

improper and prejudicial. As previously discussed, Dawson's trial counsel made a

reasonable strategic choice not to object to the prosecutor's reference to the "killing pen."

As a result, Dawson's appellate counsel was precluded from raising this issue because trial

counsel did not object at trial. Moreover, as concluded by the District Court "such

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references would not have been grounds for a mistrial," and thus, Dawson can show no

prejudice from failure to raise this issue on direct appeal.

¶156 Accordingly, we conclude that the District Court did not err when it found that

Dawson did not receive ineffective assistance of counsel at the direct appeal phase.

¶157 In conclusion, we agree with the sentiments of the District Court regarding Dawson's

ineffective assistance claims at the pretrial, trial, sentencing, and direct appeal phases of

the proceedings against him:

[T]he Court finds that Dawson was afforded a trial with reliable results. There was

no breakdown in the adversary process in this case. Evidence of Dawson's guilt was

overwhelming. If minor errors were made in the trial process they did not prejudice

the finding of guilt or the imposition of the death penalty . . . . Claimed criticism

today of the conduct of counsel at trial and appeal is certainly utilizing the

"distorting effects of hindsight, to reconstruct the circumstances of counsel's

challenged conduct" and does not "evaluate the conduct from counsel's perspective

at the time" as prohibited by Strickland, 466 U.S. at 689.

¶158 Moreover, in response to the attorney affidavits submitted by Dawson, we point out

the following passage from Strickland: "[t]here are countless ways to provide effective

assistance in any case. Even the best criminal defense attorneys would not defend a

particular client in the same way." Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.

ISSUE 5

¶159 Did the District Court err when it denied Dawson's claims 1-29 by summary

judgment?

¶160 We review district court orders granting summary judgment, as we do district court

conclusions of law, to determine if they are correct. See Vernon Kills on Top v. State

(1996), 279 Mont. 384, 390, 928 P.2d 182, 186.

¶161 Section 46-21-105, MCA, provides the following, in relevant part:

(2) When a petitioner has been afforded the opportunity for a direct appeal of the

petitioner's conviction, grounds for relief that were or could reasonably have been

raised on direct appeal may not be raised, considered, or decided in a proceeding

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brought under this chapter.

(3) For purposes of this section, "grounds for relief" includes all legal and factual

issues that were or could have been raised in support of the petitioner's claim for

relief.

¶162 In Hagen v. State, 1999 MT 8, ¶ 13, 293 Mont. 60, ¶ 13, 973 P.2d 233, ¶ 13, we

stated:

The doctrine of res judicata also may pose a procedural bar to postconviction relief.

Under that doctrine, claims which were raised on direct appeal are barred from

being raised again in a petition for postconviction relief. Furthermore, the doctrine

of res judicata is similar in effect to § 46-21-105(2), MCA (1995), in that it bars

postconviction claims which "could have been raised on direct appeal."

(Citations omitted.)

¶163 Dawson argues that three of his claims for relief in his second amended petition for

postconviction relief could not have been raised on direct appeal because they required

evidence not found in the record and, therefore, they should not have been dismissed by

summary judgment. Dawson cites to State v. Bromgard (1995), 273 Mont. 20, 23, 901

P.2d 611, 613, where we stated that we will not consider, on appeal, facts that are not

found in the record.

¶164 In its response to Dawson's motion for reconsideration of nine claims, which

Dawson argued required facts on appeal that were not in the record, the District Court

concluded that:

[T]he issues raised in these claims could have been raised on direct appeal. Also, if a

defendant fails to preserve an issue for direct appeal by making an appropriate

objection at the trial stage it will be barred by Section 46-21-105(2) M.C.A. State v.

Gorder, 243 Mont. 333, 334-35, 792 P.2d 370, 371 (1990).

¶165 First, Dawson asserts that the following claim, his 10th Claim for Relief, should not

have been dismissed because it would have required evidence not found in the record:

The State denied Petitioner the ability to obtain evidence in mitigation of guilt or

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punishment by failing to draw Petitioner's bodily fluids until 12 hours after his

arrest, sufficient time for evidence of his ingestion of drugs and/or alcohol during

the time of the offense to be lost . . . .

¶166 On appeal, Dawson fails to set forth any reason why this claim would have required

eveidence not found in the record. However, in his brief in opposition to the State's motion

for summary judgment, Dawson argued that: "claim 10 requires examination of the extent

and reasons for delay in taking Petitioner's blood sample following arrest."

¶167 Our review of the trial transcript reveals that this claim would not have required

evidence other than that found in the record on appeal. Officer Gary Hatfield testified

regarding his receipt of a search warrant to obtain blood and urine samples from Dawson

on Sunday, April 20. Officer Hatfield testified that he was required to wait approximately

two hours at the hospital, while the hospital's legal staff checked on the search warrant,

before the hospital was able to obtain the blood and urine samples. Moreover, there was

no objection at the trial level and thus, Dawson failed to preserve this issue for direct

appeal.

¶168 Second, Dawson asserts that the following claim, his 20th Claim for Relief, should

not have been dismissed because it would have required additional evidence:

The trial court's findings and conclusions were drawn, whether directly or indirectly,

from the findings in State v. Ronald Smith, and were not based upon the precise

facts in the case before the court. The matters of aggravation and mitigation were

merely enumerated, and not considered, by the trial court.

¶169 In response, the State points out that Dawson failed to argue to the District Court that

this claim could not be raised on appeal because it required additional evidence. Dawson's

brief in opposition to the State's motion for summary judgment states that: "Claims 4, 5, 7,

10, 11, 19, 22, 23, 27 all require evidence outside the record or trial proceedings."

Additionally, in Dawson's motion for reconsideration of the District Court's award of

partial summary judgment, Dawson did not argue that his 20th claim for relief required

evidence outside the record.

¶170 "It is axiomatic that a party may not change the theory on appeal from that advanced

in the district court." State v. Henderson (1994), 265 Mont. 454, 458, 877 P.2d 1013,

1016. Accordingly, because Dawson did not argue this theory to the District Court, we

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will not address this issue on appeal.

¶171 Finally, Dawson asserts that the following claim, his 27th Claim for Relief, should

not have been dismissed because it would have required evidence outside the record:

The state failed to disclose to the defense the results of the testing done on

Petitioner's blood, drawn the day of his arrest, showing that Petitioner had ingested

marijuana and methamphetamine.

The state failed to disclose to the defense the complete records from Petitioner's pre-

trial mental evaluation at Warm Springs hospital which records contained the two

EEG reports, both of which were abnormal, contradicted the testimony heavily

relied upon by the state that Petitioner failed to exhibit concern for the charges

against him . . . .

¶172 As we noted previously, defense counsel either had this information or the lack of

information was not prejudicial to Dawson.

¶173 Accordingly, we conclude that the District Court properly applied the procedural bar

of § 46-21-105(2), MCA, to Dawson's claims for relief, 10 and 20, and that there was no

prejudice from applying the procedural bar to claim 27. Therefore, we further conclude

that the District Court properly dismissed Dawson's claims 1-29 in his petition for

postconviction relief by summary judgment.

ISSUE 6

¶174 Should this Court, in a postconviction proceeding, reconsider issues it has already

decided on direct appeal?

¶175 Dawson asserts that this Court's decision in Vernon Kills on Top v. State (1996), 279

Mont. 384, 928 P.2d 182, directly supports the reconsideration of claim 18, consideration

of aggravating circumstances; claim 22, trial court's reaction denied due process; and

claim 24, denial of a jury trial on aggravating circumstances, all of which the District

Court dismissed by partial summary judgment after it concluded that these issues had been

raised on direct appeal and were barred by res judicata. Dawson contends that our decision

in Vernon Kills on Top, requires that the District Court consider whether the "ends of

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justice" would be served by reconsideration of these claims in a petition for postconviction

relief.

¶176 In Vernon Kills on Top, we set forth the criteria for the application of the doctrine of

res judicata to the relitigation of issues already determined on direct appeal, stating that we

will apply the procedural bar if:

(1) the same ground presented in the subsequent application was determined

adversely to the applicant on the prior application, (2) the prior determination was

on the merits, and (3) the ends of justice would not be served by reaching the merits

of the subsequent application.

Vernon Kills on Top, 279 Mont. at 399, 928 P.2d at 192.

¶177 In Vernon Kills on Top, we held that:

In this case, we conclude that, with the exception of those claims which challenge

the imposition of the death sentence based on disproportionality pursuant to the

Eighth and Fourteenth Amendments of the United States Constitution, and Article

II, Section 22, of the Montana Constitution, the ends of justice are not served by

reaching the merits of the petitioner's claims a second time. . . . To the contrary, the

"ends of justice" do compel reconsideration of the petitioner's death sentence in light

of this State's constitutional prohibition against the infliction of cruel or unusual

punishments.

Vernon Kills on Top, 279 Mont. at 399-400, 928 P.2d at 192.

¶178 Additionally, Dawson contends that because we applied the "substantial evidence"

standard of review to uphold the trial court's findings on Dawson's direct appeal, a

standard of review which Dawson argues we subsequently repudiated in Vernon Kills on

Top, we should reconsider his claims regarding evidence to support torture and lying in

wait under the clearly erroneous standard.

¶179 In this case, Dawson has presented no evidence that the "ends of justice" would be

served by reconsidering these claims, nor do we conclude that the "ends of justice" compel

us to reconsider any of Dawson's claims. Accordingly, we conclude they are barred by

principles of res judicata.

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¶180 In conclusion, we affirm the decision of the District Court denying Dawson's second

Amended Petition for Postconviction Relief.

/S/ TERRY N. TRIEWEILER

We Concur:

/S/ J. A. TURNAGE

/S/ KARLA M. GRAY

/S/ JAMES C. NELSON

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER

/S/ W. WILLIAM LEAPHART

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