Burke v. State

• Decision Date: 16 August 2012
• Docket Number: No. 20110286.,20110286.
• Citation: 2012 ND 169,820 N.W.2d 349
• Parties: Dale J. BURKE, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
• Court: North Dakota Supreme Court

820 N.W.2d 349

2012 ND 169

Dale J. BURKE, Petitioner and Appellant

v.STATE of North Dakota, Respondent and Appellee.

No. 20110286.

Supreme Court of North Dakota.

Aug. 16, 2012.

Nicholas Dwight Thornton, Fargo Public Defender Office, Fargo, N.D., for petitioner and appellant.

Reid Alan Brady (appeared) and Mark Rainer Boening (on brief), Assistant State's Attorneys, and Katherine Naumann (argued), third-year law student, under the Rule on Limited Practice of Law by Law Students, Fargo, N.D., for respondent and appellee.

MARING, Justice.

[¶ 1] Dale Burke appeals from a judgment dismissing his application for post-conviction relief after the district court denied his motion for DNA testing. We hold the district court did not err in denying Burke's request for DNA testing under N.D.C.C. § 29–32.1–15 and the court did not err in summarily denying his post-conviction relief application. We affirm.

I

[¶ 2] In 1998, Burke was convicted of murdering Edmund Huotari and Larry Nelson and committing arson to conceal the bodies. Burke appealed from the criminal judgment entered upon a jury verdict finding him guilty of two counts of murder and one count of arson.

[¶ 3] In State v. Burke, 2000 ND 25, ¶¶ 1, 40, 606 N.W.2d 108, this Court affirmed the criminal convictions, holding there was sufficient evidence to support the convictions, the admission of DNA evidence was not obvious error, Burke was not denied a fair trial because of prosecutorial misconduct, and Burke had failed to establish ineffective assistance of counsel. In Burke, we discussed relevant facts supporting the jury's convictions:

At approximately 9:45 p.m. on April 27, 1997, Fargo firefighters responded to a report of a fire at the home of Larry Nelson and Edmund Huotari. The firefighters found the home in flames and, later, the bodies of Nelson and Huotari inside. A medical examiner concluded they both died from being repeatedly struck in the head with a blunt object.

Fargo police suspected Burke killed Nelson and Huotari and set the home on fire to conceal the killings. On April 29, 1997, an Information was filed charging Burke with two counts of murder and one count of arson. The next day, Burke was arrested in Seward, Nebraska at the residence of Jan Thomas, Burke's former girlfriend. Thomas gave some of Burke's clothing, including a pair of blood-stained blue jeans, to Officer Hoag, one of the arresting officers.

....

A jury trial began on July 7, 1998. The State presented the pair of blue jeans and an expert who performed polymerase chain reaction [PCR] DNA testing on them. The expert testified that statistically 1 in 17,000 white persons would have DNA that matched the DNA in the blood on the jeans and Huotari's DNA matched the DNA in the blood on the jeans.

Gary Bockness testified he and Burke had a conversation a few days before the killings. Bockness asserted Burke said he planned to kill Huotari and blame Bockness. Bockness also testified he himself had an ongoing feud with Huotari. Bockness conceded that during his deposition he had stated Burke said he planned to kill not only Huotari but Nelson as well.

Jeneen Dahl, a gas station attendant, testified regarding two gas purchases by Burke on the night of the crimes. She indicated Burke purchased $1.85 in gas at about 7:30 or 7:45 p.m. and $10.00 in gas about one hour later.

Other witnesses testified Burke was at Huotari and Nelson's home shortly before the fire. David Myles said he saw Burke leave the residence at about 8:30 p.m. and return ten to fifteen minutes later. Myles also stated he later saw Burke near Burke's car. Darrin Peterson testified that at 9:08 p.m., Burke called the Peterson residence from Huotari and Nelson's home.

Burke testified on his own behalf. He said he had moved in with Nelson and Huotari about three weeks before the crimes. Burke asserted Huotari had cut himself when the two were installing carpet and Huotari's blood got on Burke's jeans at that time. Burke testified he had left town on the night of the killings and the fire because he panicked, thinking he had accidentally started the fire by putting a penny behind a fuse. During cross-examination, the prosecutor questioned Burke about his drug use, and Burke admitted he had used drugs in the past. The prosecutor also questioned Burke about his statements to a police detective shortly after his arrest.

Burke, 2000 ND 25, ¶¶ 2–10, 606 N.W.2d 108.

[¶ 4] In 2000, Burke filed an application for post-conviction relief, which the district court denied. On appeal, this Court summarily affirmed the district court's denial in Burke v. State, 2002 ND 18, 642 N.W.2d 532. In 2005, Burke filed a second post-conviction relief application, which the district court also denied. Burke also appealed from that denial of post-conviction relief, but this Court subsequently dismissed his appeal for failure to file a brief.

[¶ 5] In April 2011, Burke filed this application for present post-conviction relief, seeking additional DNA testing and reversal of his conviction and asserting his actual innocence. Burke asserted that in testifying at trial, he got confused and misspoke in saying the blood on the jeans was Huotari's blood. Burke contended he meant to testify “it was possible that the blood could have been Huotari's.” Burke also stated, “that he does not believe the blood on the blue jean[s] is that of Edmund Huotari[.]” Burke also sought further discovery and DNA testing, in essence seeking short tandem repeat (“STR”) DNA testing on the blood-stained jeans. He contended the testing was not available as evidence at the time of trial, the evidence to be tested had been in the custody of the clerk of court, and the requested testing would “produce new and noncumulative evidence materially relevant to [Burke's] assertion of actual innocence.” The State answered and moved to dismiss Burke's application and motions.

[¶ 6] Before a September 2011 hearing, Burke submitted supporting affidavits from Dr. William Massello III, the North Dakota State Forensic Examiner; Kathy Ouren, the Cass County Clerk of District Court; and Thomas Wahl, a forensic DNA expert. In his affidavit, Dr. Massello stated that his office had conducted the autopsy on Huotari and had obtained and securely stored samples of Huotari's blood, which is available for comparison DNA testing. Ouren stated in her affidavit that her office had securely stored Burke's blood-stained blue jeans after the trial.

[¶ 7] Further, expert forensic DNA consultant Wahl, in his affidavit, discussed modern standards for DNA testing, including short tandem repeat (“STR”) DNA testing. Wahl indicated the testing Burke requested was not available at the time of trial “because the forensic application of this technology had not yet been fully developed, validated or implemented.” Wahl stated in his report that the “extreme discriminating power of the STR genetic profiling systems offers a better chance of excluding an individual as the source of the evidence relative to the PM & DQA1 genetic profiling system.” Wahl also stated in his affidavit, “[t]here have been cases in which individuals have matched questioned DNA profiles with older DNA profiling systems who were subsequently excluded using the newer, more powerful STR profiling systems....” Wahl opined that there was scientific potential to produce new, noncumulative evidence if the blood-stained pants were subjected to the new STR DNA testing, and he also described STR DNA profiling as being the generally-accepted DNA testing method in the scientific community worldwide.

[¶ 8] After the hearing, the district court denied Burke's motions for DNA testing and summarily dismissed his post-conviction relief application. The court held the items Burke sought to have tested had already been subjected to forensic DNA testing. The court held “the evidence was subject to testing because the technology for the testing was available at the time of the trial and the testing was available as evidence at the time of the trial.” The court further held “it does not matter that the new DNA testing might be more accurate than the 1 in 17,000 accuracy of the test that was done. The accuracy of the test that was done, together with Burke's admission that the blood on his jeans was Huotari's, makes the testing done reliable.” The court further concluded Burke's motion failed because there was no showing the new testing would be “materially relevant” to Burke's “actual innocence” assertion.

II

[¶ 9] Burke argues that, before the district court could rule on his post-conviction relief application, he was entitled to DNA retesting of the blood on his blue jeans used in his criminal prosecution. He argues the court erred in denying his motion for DNA testing and in summarily dismissing his application. He contends the district court should have granted his DNA testing motion under N.D.C.C. § 29–32.1–15 and should have held an evidentiary hearing on his application for post-conviction relief upon return of the DNA results.

[¶ 10] Post-conviction relief proceedings are civil in nature and are governed by the North Dakota Rules of Civil Procedure. Olson v. State, 2008 ND 113, ¶ 9, 750 N.W.2d 459;Wheeler v. State, 2008 ND 109, ¶ 5, 750 N.W.2d 446. A petitioner for post-conviction relief has the burden of establishing the grounds for relief. Olson, at ¶ 9;Wheeler, at ¶ 5. This Court has explained:

“A district court may summarily dismiss an application for post-conviction relief if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. N.D.C.C. § 29–32.1–09(1); Johnson v. State, 2006 ND 122, ¶ 19, 714 N.W.2d 832;Heyen v. State, 2001 ND 126, ¶ 6, 630 N.W.2d 56. We review an appeal from summary denial of post-conviction relief as we would review an appeal from a summary judgment. Johnson, at ¶ 19;Heyen, at ¶ 6. The party opposing the motion for summary dismissal is entitled to all reasonable inferences...