                                                                                         January 29 2008


                                          DA 06-0130

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2008 MT 20



TONY R. NOTTI,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.


APPEAL FROM:          District Court of the Fourth Judicial District,
                      In and For the County of Missoula, Cause No. DV-05-89
                      Honorable Douglas G. Harkin, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Mary Gallagher, Mary Gallagher Law Office, Missoula, Montana

               For Appellee:

                      Honorable Mike McGrath, Attorney General; Tammy K. Plubell,
                      Assistant Attorney General, Helena, Montana

                      Fred R. Van Valkenburg, County Attorney; Kristen LaCroix,
                      Deputy County Attorney, Missoula, Montana



                                                  Submitted on Briefs: May 2, 2007

                                                             Decided: January 29, 2008


Filed:

                      __________________________________________
                                        Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Appellant Tony R. Notti appeals from the decision of the District Court for the

Fourth Judicial District, Missoula County, denying his petition for postconviction relief.

We affirm.

¶2     We restate the issues on appeal as follows:

       1. Did defense counsel render ineffective assistance of counsel by failing to object

to testimony of a crime lab technician regarding DNA evidence?

       2. Did defense counsel render ineffective assistance of counsel by failing to object

to the prior consistent hearsay testimony of four state witnesses?

       3. Did defense counsel render ineffective assistance of counsel by his conduct in

voir dire?

       4. Did the District Court err in failing to hold an evidentiary hearing on the prior

consistent hearsay statements of four state witnesses?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3     On September 5, 2000, the State charged Notti by information with one felony

count of sexual intercourse without consent, in violation of § 45-5-503, MCA, and one

misdemeanor count of theft, in violation of § 45-6-301, MCA. These two charges arose

from events of the night of May 15-16, 2000, in which Notti engaged in sexual

intercourse without consent with his disabled older brother, Michael Notti.

¶4     Notti pleaded not guilty to both counts on September 11, 2000, and a two-day jury

trial was conducted, beginning February 7, 2001. The jury found Notti guilty on the

count of sexual intercourse without consent and not guilty on the count of theft. Nik


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Geranios, an attorney with the public defenders’ office, represented Notti at trial. On

March 27, 2001, Notti requested a change of counsel on the ground of inadequate

assistance. The District Court allowed Geranios to withdraw from representation on the

basis of a breakdown in the attorney-client relationship and a second public defender was

appointed to represent Notti. The District Court subsequently denied Notti’s motion for a

new trial on January 17, 2002, and thereafter sentenced Notti to fifty years in the

Montana State Prison, with twenty years suspended.

¶5     Notti filed an appeal with this Court on the ground of ineffective assistance of

counsel due to Geranios’ alleged failure to file pretrial motions to prevent witnesses from

repeating prior consistent statements by Notti’s brother Michael and failure to object to

what Notti claimed was hearsay testimony by these witnesses at trial.           This Court

declined to rule on Notti’s ineffective assistance of counsel claim, concluding that Notti’s

claims could not be reviewed on appeal and were better-suited for postconviction

proceedings. State v. Notti, 2003 MT 296, ¶ 9, 318 Mont. 146, ¶ 9, 79 P.3d 289, ¶ 9

(Notti I).

¶6     Notti then filed a petition for postconviction relief, raising several claims of

ineffective assistance of counsel.      These included failure to object to allegedly

inadmissible prior consistent hearsay statements at trial, failure to object to alleged

hearsay testimony of a Montana Crime Lab technician regarding DNA evidence, and

ineffective assistance during voir dire. A third public defender represented Notti in this

proceeding. On September 6, 2005, the District Court issued an order denying Notti’s

petition in part, and reserving two issues for an evidentiary hearing: (1) the crime lab


                                             3
technician’s alleged hearsay testimony regarding DNA evidence, and (2) defense

counsel’s actions during voir dire. The District Court declined to reserve the issue of

alleged prior consistent hearsay testimony of four witnesses for the evidentiary hearing,

and instead, found that the statements were admissible under M. R. Evid. 803(2) (excited

utterances); harmless error; M. R. Evid. 803(4) (statements for purposes of medical

treatment or diagnosis); and in regard to one witness, that the witness did not actually

repeat any prior consistent statements. The District Court held an evidentiary hearing on

the remaining two issues, and thereafter entered its Findings of Fact, Conclusions of Law,

and Order denying Notti’s remaining ineffective assistance claims and dismissing his

petition. This appeal followed.

                               STANDARD OF REVIEW

¶7     This Court reviews a district court’s denial of a postconviction relief petition to

determine whether the district court’s findings of fact are clearly erroneous and whether

its conclusions of law are correct. Hartinger v. State, 2007 MT 141, ¶ 19, 337 Mont.

432, ¶ 19, 162 P.3d 95, ¶ 19. Claims of ineffective assistance of counsel are mixed

questions of law and fact for which our review is de novo. State v. Morgan, 2003 MT

193, ¶ 7, 316 Mont. 509, ¶ 7, 74 P.3d 1047, ¶ 7. Discretionary rulings in postconviction

relief proceedings, including rulings related to whether to hold an evidentiary hearing, are

reviewed for an abuse of discretion. Morgan, ¶ 7.

                                      DISCUSSION

¶8     On appeal, Notti contends that Geranios failed to render effective assistance of

counsel in three ways. Notti claims Geranios: (1) failed to object to alleged hearsay


                                             4
testimony of a crime lab technician regarding DNA evidence; (2) failed to object to prior

consistent hearsay testimony of four state witnesses; and (3) failed to challenge or further

question jurors who presented a strong possibility of bias against Notti during voir dire.

¶9     When reviewing ineffective assistance of counsel claims, this Court applies the

two-part test set out by the Supreme Court in Strickland v. Washington, 466 U.S. 668,

104 S. Ct. 2052 (1984). Morgan, ¶ 9. Under Strickland, to prevail on an ineffective

assistance of counsel claim, the defendant must show: (1) that counsel’s performance

was deficient, and (2) that counsel’s performance was prejudicial to the defendant.

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Morgan, ¶ 9.

¶10     The primary question under the first prong of Strickland is “whether counsel

acted within the range of competence demanded of attorneys in criminal cases.” State v.

Niederklopfer, 2000 MT 187, ¶ 19, 300 Mont. 397, ¶ 19, 6 P.3d 448, ¶ 19. Counsel’s

performance is strongly presumed to be within the wide range of reasonable professional

assistance.   Morgan, ¶ 10.     Generally, defense counsel’s “trial tactics and strategic

decisions cannot be the basis upon which to find ineffective assistance of counsel.”

Niederklopfer, ¶ 19.

¶11    To prevail under the second prong of Strickland, a defendant must demonstrate

that “there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.         A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at

694, 104 S. Ct. at 2068; see also Dawson v. State, 2000 MT 219, ¶ 20, 301 Mont. 135,

¶ 20, 10 P.3d 49, ¶ 20.


                                             5
¶12    A petitioner seeking to reverse a district court’s denial of a petition for

postconviction relief for ineffective assistance of counsel bears a heavy burden. Morgan,

¶ 9. Furthermore, a petitioner must satisfy both prongs of the Strickland test. Adams v.

State, 2007 MT 35, ¶ 22, 336 Mont. 63, ¶ 22, 153 P.3d 601, ¶ 22. If a petitioner makes

an insufficient showing as to one prong of the test, then there is no need for the Court to

address the other prong. Adams, ¶ 22.

¶13    Issue One. Did defense counsel render ineffective assistance of counsel by
       failing to object to testimony of a crime lab technician regarding DNA evidence?

¶14    Notti argues that the District Court erred by failing to conclude that defense

counsel’s actions, with respect to DNA evidence, fell below objective standards of

reasonableness and constituted ineffective assistance of counsel.       The District Court

determined that Geranios’ failure to object to the testimony of state crime lab technician

Michelle Griffin was a strategic decision and not outside the range of competence

demanded of attorneys in criminal cases.

¶15    Montana Crime Lab technician Lori Hutchinson authored a report detailing DNA

testing she had performed on several items taken from Michael’s apartment, including a

washcloth that Hutchinson determined had seminal fluid matching Notti’s DNA profile.

Due to her attendance at a training session, Hutchinson did not testify at trial. Instead,

the State called Michelle Griffin, Hutchinson’s co-worker at the crime lab, to testify

regarding Hutchinson’s DNA report and analysis. Griffin did not perform any of the tests

herself. Griffin testified as to the findings contained in Hutchinson’s report, including the

presence of DNA matching that of Notti’s on items seized at the crime scene. At no point



                                             6
did Geranios object to Griffin’s testimony. Geranios then proceeded to cross-examine

Griffin on the results of the DNA evidence tests.

¶16    Notti cites four grounds on which the District Court should have found the

testimony inadmissible: (1) the DNA evidence admitted at trial was hearsay; (2) the

DNA report was testimonial and Sixth Amendment protections applied; (3) Griffin was

improperly declared to be an expert and should not have relied on Hutchinson’s report;

and (4) the State laid an inadequate foundation for the introduction of Hutchinson’s file.

Notti claims that counsel’s failure to object to these deficiencies constituted ineffective

assistance. The State argues that all of Notti’s four grounds fail because Geranios made a

reasonable strategic decision not to object and that Notti cannot prove prejudice.

¶17    We shall first consider whether Geranios’ conduct constituted a reasonable

strategic decision.   As a general rule, a defendant seeking review for ineffective

assistance of counsel must “overcome the presumption that under the circumstances the

action which he challenges might be considered sound trial strategy.” Niederklopfer,

¶ 19. Generally, “Counsel’s trial tactics and strategic decisions cannot be the basis upon

which to find ineffective assistance of counsel.” Niederklopfer, ¶ 19.

¶18    At the evidentiary hearing of November 14, 2005, Geranios discussed in detail his

reasons for not filing any pretrial motions with respect to the DNA evidence or objecting

to Griffin’s testimony at trial. He testified that he had spoken with both Hutchinson and

Griffin prior to trial and discussed the DNA report and results with them. When asked

whether he had any concern that Griffin and not Hutchinson would testify, Geranios

replied:


                                             7
               Well, we weren’t -- we could have objected to her testimony, which
       would have resulted either in a continuance of the trial, which was not what
       Mr. Notti was wanting. He wanted to get this thing moving and have his
       trial. He was not wanting any extensive delays. So that was one issue. But
       the other issue was that the testimony from the crime lab dove-tailed with
       the Defendant’s version of events.

Geranios reiterated multiple times that he believed that the evidence comported with the

defense’s theory of the case and buttressed Notti’s explanation of the events which

occurred. Geranios stated: “Bottom line was that the evidence from the crime lab . . . fit

in with the theory of defense in this case and that testimony and evidence . . . was

explained and actually . . . didn’t hurt us, from our perspective.”

¶19    In sum, Geranios offered two primary grounds for not objecting to the testimony

or evidence offered at trial on the DNA results. The first was that neither he nor Notti

wanted to delay the trial any further. Secondly, the fact that Griffin testified in place of

Hutchinson was not a concern for Geranios as he believed the evidence and testimony

supported rather than harmed his client because it comported with the defense’s theory of

the case.

¶20    Notti disputes the claim that he did not desire a trial continuance.           At the

evidentiary hearing, when asked if it mattered to him whether the trial was delayed or

not, Notti replied “no.” He later stated that “he would have wanted the right person in

there.” Even assuming that Notti and Geranios disagreed on whether the trial should be

delayed so that Hutchinson could testify instead of Griffin, counsel nevertheless made a

decision that the DNA evidence and testimony offered by Griffin comported with Notti’s

version of the events and would help the defense. Geranios explained that he did not



                                              8
believe his cross-examination of Hutchinson would be significantly different from his

cross-examination of Griffin, and that if he had any concerns about Hutchinson’s

background or DNA analysis, he would have objected to the DNA evidence. Geranios

ultimately concluded that he could not have obtained any additional favorable

information from Hutchinson that he did not get from Griffin.

¶21    We agree with the District Court’s conclusion that Geranios’ failure to object to

Griffin’s testimony at trial was a strategic decision and did not constitute conduct outside

the range of competence demanded of attorneys in criminal cases. Geranios provided

clear, rational grounds as to why he chose not to object to the DNA evidence or

testimony at trial. As such, we need not address any of Notti’s arguments about the

underlying inadmissibility of the evidence. In addition, because Notti has failed to satisfy

the first prong of the Strickland test, we need not address whether the alleged deficiency

prejudiced Notti.   Adams, ¶ 22.     We hold that Notti’s trial counsel did not render

ineffective assistance of counsel.

¶22    Issue Two. Did defense counsel render ineffective assistance of counsel by
       failing to object to the prior consistent hearsay testimony of four state witnesses?

¶23    Notti argues that defense counsel rendered ineffective assistance by failing to

object to inadmissible prior consistent hearsay statements of four state witnesses. The

witnesses were: (1) Deb Bruce—the 911 dispatcher who took Michael Notti’s call on the

morning of May 16, 2000; (2) Kenneth Guy—the Missoula Police Department officer

who responded to Michael’s initial call; (3) Dr. Joseph Weydt—the emergency room

physician at Saint Patrick’s Hospital who examined and treated Michael on May 16; and



                                             9
(4) Detective Rich Ochsner—the Missoula Police Department detective who conducted

the investigation and interviewed Michael.         Notti alleges that these four witnesses

repeated prior consistent statements of Notti’s brother Michael and that these statements

constituted inadmissible hearsay.

¶24    Under the Montana Rules of Evidence, hearsay is defined as “a statement, other

than one made by the declarant while testifying at the trial or hearing, offered in evidence

to prove the truth of the matter asserted.” M. R. Evid. 801(c). Under M. R. Evid. 802,

“Hearsay is not admissible except as otherwise provided by statute, these rules, or other

rules applicable in the courts of this state.”    Rule 801 provides that a statement is not

hearsay if:

       The declarant testifies at the trial or hearing and is subject to cross-
       examination concerning the statement, and the statement is (A) inconsistent
       with the declarant’s testimony, or (B) consistent with the declarant’s
       testimony and is offered to rebut an express or implied charge against the
       declarant of subsequent fabrication, improper influence or motive . . . .

M. R. Evid. 801(d)(1)(A)-(B).

¶25    Notti contends that the statements offered by the witnesses were consistent with

the declarant’s testimony and that the statements were not offered to rebut an express or

implied charge of subsequent fabrication. As such, Notti argues that the statements were

not admissible as prior consistent statements of a witness and thus, constituted

inadmissible hearsay. Regarding prejudice, Notti argues that if defense counsel had

objected to the introduction of the four witnesses’ statements, a significant portion of the

State’s case would have been eliminated, that the prior consistent statements bolstered




                                             10
Michael’s testimony, and that the statements were at the heart of the State’s case. Notti

also argues that there was no conceivable tactical reason for failing to object.

¶26       The District Court determined that the prior consistent statements of two of the

four witnesses were admissible under other exceptions to the hearsay rule, the admission

of another witness’s statements was harmless error, and, in the case of one witness, there

was no repetition of any prior consistent statement. Notti’s arguments and the District

Court’s reasons for admitting the statements can be analyzed with respect to each

witness.

          A. Statements Admitted Through Dispatcher Bruce

¶27       Notti notes that dispatcher Bruce’s testimony consisted entirely of recollecting and

playing a tape of the statement made to her by Michael. Dispatcher Bruce testified she

was working the morning of May 16, 2000, and received a phone call from Michael.

Bruce testified that Michael stated that he wanted to report a “molestation.” Bruce

played the 911 tape recording of Michael’s call during her testimony. Though Notti

claims this testimony was inadmissible hearsay because M. R. Evid. 801(d)(1)(B) did not

apply, the District Court concluded that the statements were otherwise admissible under

the Rule 803(2) excited utterances exception. The State argues that, given the testimony

was admissible, defense counsel’s performance cannot be deemed deficient for failing to

object.

¶28       M. R. Evid. 803(2) states:

          The following are not excluded by the hearsay rule, even though the
          declarant is available as a witness . . . (2) Excited Utterance. A statement
          relating to a startling event or condition made while the declarant was under


                                               11
       the stress of excitement caused by the event or condition. [Paragraph breaks
       omitted.]

¶29    The District Court cited State v. Cameron, 2005 MT 32, 326 Mont. 51, 106 P.3d

1189, in support of its conclusion that Michael’s statement constituted an excited

utterance. In Cameron, the district court allowed the victim’s sister to testify about a

statement made to her by the victim, “Grandpa tried raping me,” which the defendant

argued was inadmissible as a prior consistent statement. Cameron, ¶ 30. The victim’s

statement came approximately two hours after the assault occurred, during which time

the victim had walked home approximately eight miles from the scene of the assault, was

weeping, and showed no sign of diminished excitement from the time of the assault to the

time of her statement to her sister. Cameron, ¶¶ 33-34. This Court concluded that the

victim’s statement constituted an excited utterance as it was related to a startling event

while she was still under the stress caused by the event. Cameron, ¶ 35.

¶30    The District Court reasoned that our decision in Cameron “implies that evaluation

of whether a statement is an excited utterance is factually driven depending upon the

particular circumstances of the victim.” Notti contends that the facts in Cameron do not

lend themselves to application of that holding here.

¶31    Michael testified that he was molested by his brother Tony at 10:00 p.m. on

Mother’s Day (May 15, 2000). Michael stated that he was scared because Notti held a

knife to Michael’s ribcage. Michael testified that, after the sexual assault, he was unable

to sleep because he stayed awake to watch Notti, and repeated that he was scared.

Michael said that he considered calling the police earlier than he did, but did not do so



                                            12
because Notti told Michael to stay in bed. Michael testified that around 7:00 a.m., as

Notti was getting ready to leave the apartment, he again instructed Michael to stay in bed.

Michael stated he was still afraid in the morning. Finally, Michael testified that after

Notti left the apartment, Michael hooked up the telephone, which Notti had disconnected,

and called 911.

¶32    As in Cameron, the evidence supports a conclusion that Michael made his

statement to Bruce while still under the stress of a startling event—sexual assault by his

brother at knifepoint. Michael had stayed awake all night in fear of Notti, and had been

confined to his bed by Notti’s order. He testified repeatedly that he was scared, not only

during the incident itself, but also afterwards into the night and morning. As soon as

Notti left Michael’s apartment, Michael reconnected the telephone and called 911 to

report the incident. As such, we reject Notti’s contention that the facts in Cameron

require a different application of the rule here.

¶33    Because the statement made by Michael to dispatcher Bruce constituted an excited

utterance under M. R. Evid. 803(2), we hold that Geranios did not perform deficiently by

not objecting, and we affirm the District Court’s conclusion that Geranios’ failure to

object did not constitute ineffective assistance of counsel.

       B. Statements Admitted Through Officer Guy

¶34    Notti argues that the substantive portion of Officer Kenneth Guy’s testimony

consisted of reciting, from Guy’s report, Michael’s statements to Guy about the incident.

Notti claims that this testimony was inadmissible hearsay. Officer Guy testified that

when he interviewed Michael on May 16, 2000, Michael had initially told Guy that Notti


                                              13
had stolen a number of personal items and money. Officer Guy testified that he then

asked Michael if anything else had happened and it was then that Michael told him that

Notti had approached Michael and asked him to have sex, that he and Notti had never had

sexual relations in the past, and that he had told Notti he did not want to have sex.

Officer Guy also testified that Michael said he was very afraid of Notti.

¶35    The State argues that the District Court correctly concluded that even if Geranios

should have objected to Officer Guy’s statements as inadmissible hearsay, Notti cannot

establish prejudice under the second prong of the Strickland test. The State also notes

that in his closing arguments, Geranios focused on those hearsay statements repeated by

Officer Guy that worked in Notti’s favor, namely, that Michael initially told Officer Guy

that Notti stole Michael’s tools, rather than reporting the sexual assault, and that Michael

had a loaded gun he could have used to protect himself. The District Court, applying

State v. Veis, 1998 MT 162, 289 Mont. 450, 962 P.2d 1153, concluded that because

defense counsel had and took the opportunity to cross-examine Michael in regard to the

substance of Officer Guy’s hearsay statements, any admission of Guy’s statements was

harmless error.   Notwithstanding the District Court’s harmless error conclusion, we

conclude that Notti has failed to satisfy the second prong of the Strickland test and show

that Officer Guy’s testimony was prejudicial.

¶36    The two prongs of the Strickland test need not be analyzed in order if the

defendant has made an insufficient showing as to one of the prongs. State v. Kearney,

2005 MT 171, ¶ 20, 327 Mont. 485, ¶ 20, 115 P.3d 214, ¶ 20. Furthermore, if it is

possible to dispose of an ineffective assistance of counsel claim on the ground of lack of


                                            14
prejudice, then that course should be followed, to “avoid unnecessarily grading counsel’s

performance.” State v. Diaz, 2006 MT 303, ¶ 25, 334 Mont. 479, ¶ 25, 148 P.3d 628,

¶ 25.

¶37     Under the second prong of Strickland, a defendant must show “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.         A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104

S. Ct. at 2068. “However, it is entirely possible within the framework of Strickland to

find attorney error which possibly prejudiced the defendant, yet conclude that such error

did not rise to a level serious enough to result in a verdict unworthy of confidence.” State

v. Hagen, 2002 MT 190, ¶ 23, 311 Mont. 117, ¶ 23, 53 P.3d 885, ¶ 23. The defendant

bears a heavy burden and must show trial counsel’s performance was so deficient as to

deprive the defendant of a fair trial. Hagen, ¶ 23. Notti has failed to meet this burden.

¶38     Even assuming that defense counsel had objected to Guy’s testimony and the

objection had been sustained, the result of the proceeding would not have been different.

All the prior consistent hearsay statements repeated by Guy that Notti objects to were

also testified to by Michael at trial.     “[A] defendant is not prejudiced by hearsay

testimony when the statements that form the subject of the inadmissible hearsay are

admitted elsewhere through the direct testimony of the ‘out-of-court’ declarant or by

some other direct evidence.”      Veis, ¶ 26 (citations omitted).      Guy’s repetition of

Michael’s prior consistent statements added no substantive content to Michael’s

testimony. Accordingly, we cannot conclude that Notti was prejudiced by Geranios’


                                             15
failure to object to Guy’s testimony in a manner which would have changed the outcome

of the proceeding. We hold that Geranios’ failure to object to Officer Guy’s repetition of

Michael’s prior consistent statements did not constitute ineffective assistance of counsel.

       C. Statements Admitted Through Emergency Room Physician Weydt

¶39    Notti argues that emergency-room physician Joseph Weydt’s testimony consisted

virtually entirely of reciting, from his notes, Michael’s statements to him about the

incident, which Notti claims were inadmissible hearsay. The State counters by arguing

that the District Court correctly determined that Dr. Weydt’s testimony was admissible

under M. R. Evid. 803(4)’s exception for statements for purposes of medical treatment or

diagnosis.

¶40    M. R. Evid. 803(4) provides an exception to the hearsay rule for:

       Statements made for purposes of medical diagnosis or treatment and
       describing medical history, or past or present symptoms, pain, or
       sensations, or the inception or general character of the cause or external
       source thereof insofar as reasonably pertinent to diagnosis or treatment.

¶41    This Court has ruled that for statements to be admissible under the Rule 803(4)

exception, the statements (1) “must be made with an intention that is consistent with

seeking medical treatment,” and (2) “must be statements that would be relied upon by a

doctor when making decisions regarding diagnosis or treatment.” State v. Whipple, 2001

MT 16, ¶ 22, 304 Mont. 118, ¶ 22, 19 P.3d 228, ¶ 22. The rationale under the first factor

is that a declarant seeking medical treatment will tell the truth because the declarant

understands that “the effectiveness of the treatment [the declarant] receives may depend

largely upon the accuracy of the information [the declarant] provides.” Whipple, ¶ 22



                                            16
(brackets in original). “Whether or not this two-part test has been met is an evidentiary

issue which again involves the district court’s discretion.” State v. Huerta, 285 Mont.

245, 258, 947 P.3d 483, 491 (1997).

¶42   As to the first part of the Rule 803(4) test, the District Court found that the record

revealed that Michael’s motives in making the statements to Dr. Weydt were consistent

with his seeking medical treatment. Michael called 911 at 6:42 a.m. on May 16, 2000,

shortly after Notti left Michael’s apartment, to report that he had been molested. Officer

Guy responded to the call and Michael repeated his allegations to Guy.              Shortly

thereafter, Michael was transported to St. Patrick’s Hospital for treatment. Dr. Weydt

testified that he treated Michael at approximately 8:30 a.m., only a short time after

Michael became free to seek assistance. When asked if Michael told him what had

happened, Dr. Weydt testified:

              Um, he came to the emergency department at around eight, eight-
      thirty, the morning of May 15 [sic]. Initially said -- told the nurse that he
      was molested. He told me that his brother, whom he was with, had
      apparently been drinking, and that under, um, some threats with a knife,
      um, that he, in his words, made me suck his dick and then he sucked mine.
      Those were his words. He said again that he was threatened, told that he
      would be killed if he told anybody. He said that his brother also put a
      finger into his anus but that he wasn’t injured in any way. He said that he --
      there was ejaculation that was on or near his face.

Dr. Weydt further testified that Michael’s demeanor was consistent with the statements

he made. Dr. Weydt took Michael’s history and the nurse attending Michael took a

number of swabs and fluid samples from Michael. It is clear from the record that the

statements Michael made to Dr. Weydt were for the purpose of seeking medical treatment

and providing Dr. Weydt with the factual details required to render treatment.


                                            17
Accordingly, the District Court did not err in determining that the first prong of the test

for admissibility under Rule 803(4) was satisfied.

¶43    In regard to the second part of the test, Michael’s statements to Dr. Weydt must be

of a type that are reasonably relied on by a physician when making diagnosis and

treatment decisions. Dr. Weydt testified:

       Q.     And in the course of your examination do you take a verbal history
              from the patient?
       A.     Yes. Always.
       Q.     And is that history important in making your ultimate diagnosis?
       A.     Yes. We gather as much information as we have to -- or we can.
       Q.     And you rely on that information in making your ultimate opinion?
       A.     Sure. Yes.

Based on the statements Michael made, Dr. Weydt determined that an STD test or any

treatment for possible infection was not necessary due to the nature of Michael’s

complaint. In regards to Michael’s statement regarding digital penetration, Dr. Weydt

testified that because Michael stated that he was not injured by the penetration, and given

the unlikelihood of injury from such a complaint, Dr. Weydt did not conduct an

examination. The District Court found that the record reveals that Dr. Weydt relied upon

Michael’s statements in treating Michael. Based on what Michael told Dr. Weydt, the

doctor made an informed determination as to what treatment would or would not be

necessary. Without the statements made by Michael pertaining to the events of the

previous night, Dr. Weydt could not have made this determination. Accordingly, the

District Court did not err in determining that the second part of the Rule 803(4) test for

admissibility was satisfied.




                                            18
¶44    Because the hearsay statements testified to by Dr. Weydt satisfied both parts of the

Rule 803(4) test, they were admissible under the exception for statements for purposes of

medical treatment or diagnosis. As such, Geranios’ performance was not deficient for

failure to object to the statements.

       D. Statements of Detective Ochsner

¶45    Notti contends that defense counsel should have objected to Detective Ochsner’s

repetition of prior consistent hearsay statements as well as Ochsner’s testimony regarding

the consistency of Michael’s statements. Notti argues that Detective Ochsner added no

substantive or probative information not otherwise available through Michael and that

Ochsner used the opportunity to testify in order to bolster Michael’s testimony by

testifying repeatedly about the consistency of Michael’s story.

¶46    As to Notti’s first contention, the District Court found that Detective Ochsner did

not testify as to any prior consistent statements made by Michael on May 16, 2000.

While Notti generally asserts that Detective Ochsner “recited parts of the prior

statements,” he fails to specifically identify any of these statements. Due to that failure,

Notti has not carried his burden to illustrate error on the part of the District Court’s

conclusion to the contrary, and we will not disturb the District Court’s determination that

Ochsner did not attempt to testify as to any prior consistent statements of Michael.

¶47    Next, Notti offers no primary legal argument or authority as to why Geranios’

failure to object to Detective Ochsner’s testimony constituted ineffective assistance of

counsel other than to say that the testimony bolstered Michael’s statement and that M. R.

Evid. 403 applies to the detective’s testimony.       Pursuant to the Montana Rules of


                                            19
Appellate Procedure, an argument advanced by the petitioner “shall contain the

contentions of the appellant with respect to the issues presented, and the reasons therefor,

with citations to the authorities, statutes, and pages of the record relied on . . . .” M. R.

App. P. 12(1)(f). “It is not this Court’s job to conduct legal research on his behalf, to

guess as to his precise position, or to develop legal analysis that may lend support to that

position.” Johansen v. State, Dept. of Natural Resources, 1998 MT 51, ¶ 24, 288 Mont.

39, ¶ 24, 955 P.2d 653, ¶ 24. Given Notti’s failure to meet this burden, we affirm the

District Court’s determination that Geranios’ failure to object to Detective Ochsner’s

statements did not constitute ineffective assistance of counsel.

¶48    Issue Three. Did defense counsel render ineffective assistance of counsel by his
       conduct in voir dire?

¶49    Notti argues that defense counsel’s failure to elicit information from, or to

challenge for cause, jurors Blake Mier and Gregory Kuehn, constituted ineffective

assistance of counsel. The District Court found that Geranios did not challenge Jurors

Mier and Kuehn because counsel did not believe he had a basis for a challenge for cause

and that counsel believed they would be fair jurors.

¶50    “Defense counsel has the duty to ensure a defendant’s right to a fair trial by a

panel of impartial jurors.” State v. Lamere, 2005 MT 118, ¶ 15, 327 Mont. 115, ¶ 15, 112

P.3d 1005, ¶ 15. “The purpose of voir dire in a criminal proceeding is to determine the

existence of a prospective juror’s partiality.”    Lamere, ¶ 15.     Pursuant to § 46-16-

115(2)(j), MCA, an attorney may challenge a juror for “having a state of mind in

reference to the case or to either of the parties that would prevent the juror from acting



                                             20
with entire impartiality and without prejudice to the substantial rights of either party.”

Voir dire allows counsel to intelligently exercise their peremptory challenges. State v.

Herrman, 2003 MT 149, ¶ 23, 316 Mont. 198, ¶ 23, 70 P.3d 738, ¶ 23. As a general rule,

“A lawyer’s rationale for not challenging a juror for cause is strictly a matter of internal

thought processes or, perhaps, the subject of an off-the-record discussion between the

lawyer and his client.” Herrman, ¶ 28. However, when the record adequately details the

reasons for counsel’s actions in voir dire, will we consider an ineffective assistance of

counsel claim without the benefit of a postconviction relief proceeding. State v. Racz,

2007 MT 244, ¶ 28, 339 Mont. 218, ¶ 28, 168 P.3d 685, ¶ 28. With these principles in

mind, Notti’s arguments as to Jurors Mier and Kuehn and Geranios’ explanations can be

analyzed individually.

       A. Juror Blake Mier

¶51    Notti argues that Juror Mier was biased against Notti because Mier knew Notti’s

prosecutor from a previous case that the prosecutor handled in which Mier was the

victim. Mier reported he was satisfied with the prosecution in that case. Mier ultimately

served as the foreperson in Notti’s trial. Notti claims that Geranios failed to inquire about

Mier’s expressions of bias or whether he could be a fair and impartial juror. Notti argues

that minimum professional competence required further inquiry into Mier’s potential bias

and Geranios’ failure to act fell below even the minimum profession competence required

of defense counsel. Finally, Notti argues that Mier’s absence from the jury panel could

have changed the outcome for Notti, especially in light of Mier’s prominence as

foreperson.


                                             21
¶52    The State argues that Geranios’ conduct with respect to Juror Mier did not

constitute ineffective assistance of counsel because the record reflects that Geranios

prepared for voir dire and made thoughtful decisions throughout the jury selection

process. At the hearing, Geranios testified that he asked Mier a number of questions

about Mier’s relationship with the prosecutor and also observed his demeanor. Geranios

explained how a number of factors come into play in the voir dire process including body

language, eye contact, and tone of voice. Geranios noted that Mier was looking at Notti,

which Geranios perceived as positive.

¶53    Geranios testified that “it struck me that it did not appear that [Mier] held the State

in any particular level of high regard.” Geranios testified that he believed Mier would be

a good and fair juror, and that Mier’s demeanor gave Geranios confidence that Mier

would “be a fair juror, weigh the evidence, apply the law as directed. He didn’t strike me

at all as having any kind of a leaning toward the prosecution.” In fact, when questioned

by Prosecutor LaCroix at the evidentiary hearing, Geranios testified, “there was

something there with his interaction with you [Prosecutor LaCroix] -- I guess I sort of

had the feeling he didn’t like you, which from my perspective would probably . . . be

favorable.” Geranios also testified that he did not believe that a person will be biased in

favor of the State just because the person is a victim of a crime that the State prosecutes.

Furthermore, when asked whether there was anything that would affect his deliberations

or ability to listen to the witness in the case, Mier himself replied “No” and Geranios

believed Mier’s statement to be sincere. Finally, Geranios testified that he did not believe




                                             22
that he would have been successful in challenging Mier for cause and that there were

other jurors Geranios was more concerned about.

¶54     The District Court concluded that Geranios made a sound strategic decision in not

challenging Juror Mier because counsel believed that Mier’s prior dealings with the

prosecutor were a positive and not a negative. We agree with the District Court’s

conclusion. Defense counsel offered detailed and thoughtful reasons as to why he chose

not to challenge Mier or question him further.        It cannot be said that Geranios’

performance fell below that level of competence required of counsel under the

circumstances. Geranios’ decision was strategic in nature, and Notti has failed to satisfy

the first prong of the Strickland test with respect to counsel’s conduct in dealing with

Mier.

        B. Juror Gregory Kuehn

¶55     Notti contends that Juror Kuehn presented a propensity for bias in favor of the

State due to his acquaintance with a number of incest victims in Kuehn’s capacity as a

schoolteacher. Notti argues that, “Unless Kuehn was to be eliminated with a peremptory,

proper professional practice would have required that this set of circumstances exposing a

propensity for bias in favor of the State in a family-rape case be further explored.”

Kuehn ultimately served on the jury. Notti contends that Geranios failed to explore this

bias, and, as a consequence, Kuehn’s presence on the jury prejudiced Notti.

¶56     The State argues that there was nothing about Kuehn that troubled Geranios and

that his employment as a teacher and his knowledge of students who were incest victims

did not demonstrate that Kuehn had a built-in bias against Notti. The District Court noted


                                            23
that defense counsel was convinced that Kuehn would be fair to Notti. Geranios testified,

“I don’t believe that [Kuehn] said anything on any questioning by the State that

concerned me in any significant way as far as putting me in a position where I needed to

challenge him for cause.” Later Geranios testified, “I guess we’re kind of discussing

some intangibles, but [Kuehn] did not seem like he would be biased; I think he would

weigh the evidence fairly.”     When asked whether he believed he would have been

successful in a motion to excuse Kuehn because he was a schoolteacher who taught

children who were the victims of molestation, Geranios replied:

       Based on the answers that he gave and my sense of him, um, no. But,
       again, I don’t know that I was even looking at -- at that prospect very
       seriously because I was satisfied with his answers, I was satisfied that he
       was probably going to be a fair juror.

Geranios also testified that there were other jurors that concerned him more than Kuehn

and he ultimately felt that Kuehn would be a fair juror.

¶57    The testimony of Geranios at the hearing supports the conclusion that he made an

informed strategic decision not to challenge Kuehn or question him further. As such,

Notti has failed to satisfy the first prong of the Strickland test with respect to counsel’s

conduct in dealing with Kuehn.       The District Court did not err in concluding that

Geranios did not render ineffective assistance of counsel during voir dire.

       C. Cumulative Error

¶58    Finally, Notti argues that prejudice accrued through the individual and cumulative

effects of defense counsel’s actions and omissions.        Notti cites State v. Jefferson,

2003 MT 90, 315 Mont. 146, 69 P.3d 641, for the proposition that it is appropriate to



                                            24
consider the circumstances of the entire proceeding to determine whether Notti was

prejudiced. Notti contends that the cumulative effect of Geranios’ failure to object to

DNA evidence, his failure to object to the prior consistent statement testimony of the four

state witnesses, and his actions and omissions in voir dire was prejudicial to Notti.

However, after reviewing these contentions individually, we concluded above that either

no error or no prejudice arose from any of them. Therefore, there can be no “cumulative

error” here, and we need not consider the argument further.

¶59    Issue Four. Did the District Court err in failing to hold an evidentiary hearing
       on the prior consistent hearsay statements of four state witnesses?

¶60    Notti asserts that the District Court erred by failing to follow the law of the case

when it did not hold an evidentiary hearing on all of Notti’s postconviction claims—

specifically, his claims regarding Geranios’ failure to object to the prior consistent

hearsay statements of the four state witnesses. As mentioned above, in Notti I we

determined that a postconviction relief proceeding was necessary to address Notti’s

ineffective assistance of counsel claims because the record did not reveal the reasons for

the challenged actions of defense counsel. Notti, ¶¶ 9-10.

¶61    Notti argues that the District Court should be reversed for disregarding the law of

the case as established in Notti I. The law of the case doctrine holds that:

       “[W]here, upon an appeal, the Supreme Court, in deciding a case presented
       states in its opinion a principle or rule of law necessary to the decision,
       such pronouncement becomes the law of the case, and must be adhered to
       throughout its subsequent progress, both in the trial court and upon
       subsequent appeal . . . .”




                                             25
Zavarelli v. Might, 239 Mont. 120, 124, 779 P.2d 489, 492 (1989) (quoting Carlson v.

Northern Pacific Railway Co., 86 Mont. 78, 281 P. 913, 914 (1929)). Notti claims that in

Notti I, “this Court reviewed the trial transcript and ruled that an evidentiary hearing was

necessary to address issues raised by Appellant because the record did not establish on-

record the reasons for any of the challenged actions of trail [sic] counsel.” While we

agree with Notti’s contention that courts are mandated to follow the law of the case, we

first note that Notti has overstated our actual holding in Notti I.

¶62     In Notti I, we concluded that defense counsel’s alleged deficiencies could not be

reviewed on direct appeal and held that “the ineffective assistance of counsel claim is

dismissed without prejudice to its being raised in a post-conviction relief proceeding.”

Notti, ¶¶ 9-10. Notably, we did not expressly mandate that a hearing must be conducted,

but only that Notti’s claims could be pursued.

¶63    The law does not require district courts to conduct a hearing in every post-

conviction proceeding. “If a district court finds that the allegations in a petition are

without merit or would not otherwise entitle a petitioner to relief, a district court may

deny an application for postconviction relief without holding an evidentiary hearing.”

State v. Cobell, 2004 MT 46, ¶ 12, 320 Mont. 122, ¶ 12, 86 P.3d 20, ¶ 12. “The decision

to hold an evidentiary hearing in a postconviction relief proceeding is discretionary and is

reviewed for abuse of discretion.” Ford v. State, 2005 MT 151, ¶ 6, 327 Mont. 378, ¶ 6,

114 P.3d 244, ¶ 6.

¶64    Here, the filing of Notti’s postconviction relief petition in the District Court was

followed by the filing of briefing by both parties which presented detailed and


                                              26
comprehensive arguments in respective support of, and opposition to, the merits of

Notti’s claims. This extensive flushing out of the claims with arguments for and against

was appropriate and as it should be. However, the District Court was provided with a

substantially different presentation of the case than what was presented to this Court in

Notti I. In that appeal, the State primarily offered a procedural defense, arguing that “the

record does not reveal the basis upon which the State offered the testimony, nor the

reason why Geranios did not object to it.” Notti could not refute this contention which,

under our case law, prevents claim review on direct appeal. Then, in the District Court,

the State offered positions against the merits of Notti’s postconviction claims: that

Geranios was not required to object because the statements were admissible under several

hearsay exceptions, and that because Geranios had relied on a number of the witnesses’

statements for use in Notti’s defense, his decisions were strategic in nature. These

arguments were briefly mentioned in the State’s appellate briefing in Notti I, but only as

alternatives to its primary procedural argument.

¶65    After reviewing the extensive postconviction filings, the District Court ordered a

hearing on two of Notti’s claims.      First, regarding the trial testimony of crime lab

technician Griffin, the District Court determined from Geranios’ hearing testimony that

he had made a strategic decision not to object because the testimony supported his theory

of the case (See Issue One, supra). Second, in regard to Geranios’ actions and omissions

during voir dire questioning, the District Court again concluded from Geranios’ hearing

testimony that he had made reasonable strategic decisions (See Issue Three, supra).




                                            27
Concluding that a basis for decision on Notti’s other four claims existed without a

hearing, the District Court decided those without taking further evidence.

¶66    A decision by this Court to the effect that a claim may be pursued in a

postconviction relief proceeding does not necessarily create the right to a hearing as a

matter of law of the case. The need for a hearing remains a discretionary call by the

district court after review of the claims. Further, even if we were to conclude that the law

of the case doctrine was implicated in a particular case, we review a district court’s

actions regarding law of the case issues under an abuse of discretion standard. State v.

Gilder, 2001 MT 121, ¶ 8, 305 Mont. 362, ¶ 8, 28 P.3d 488, ¶ 8. “Law of the case should

not be applied woodenly in a way inconsistent with substantial justice.” U.S. v. Miller,

822 F.2d 828, 832 (9th Cir. 1987).

¶67    Given our decisions herein on the merits of Notti’s claims, wherein we conclude

that the District Court correctly analyzed and denied those claims, the outcome would not

have been any different had a hearing been conducted. Further, Notti does not identify

any additional evidence he would have presented had a hearing been conducted on those

claims. Consequently, we conclude that the District Court did not abuse its discretion in

conducting a hearing for only two of Notti’s claims.

¶68    Affirmed.

                                                        /S/ JIM RICE




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We concur:

/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ JOHN WARNER




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