State Of Mont. v. Gunderson

• Decision Date: 27 July 2010
• Docket Number: No. DA 08-0499.,DA 08-0499.
• Citation: 357 Mont. 142,2010 MT 166,237 P.3d 74
• Parties: STATE of Montana, Plaintiff and Appellee, v. David W. GUNDERSON, Defendant and Appellant.
• Court: Montana Supreme Court

357 Mont. 142

237 P.3d 74

2010 MT 166

STATE of Montana, Plaintiff and Appellee,

v.David W. GUNDERSON, Defendant and Appellant.

No. DA 08-0499.

Supreme Court of Montana.

Argued and Submitted May 14, 2010.

Decided July 27, 2010.

COPYRIGHT MATERIAL OMITTED.

For Appellant: Joslyn Hunt, Chief Appellate Defender, Sarah Chase Rosario y Naber (argued), Assistant Appellate Defender, Helena, Montana.

For Appellee: Steve Bullock, Montana Attorney General, Tammy K. Plubell (argued), Assistant Attorney General, Helena, Montana, Dennis Paxinos, Yellowstone County Attorney, Ann Marie McKittrick, Deputy County Attorney, Billings, Montana.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 After a jury trial in Yellowstone County, David Gunderson was convicted of burglary and attempted sexual intercourse without consent. The District Court for the Thirteenth Judicial District determined that Gunderson was a persistent felony offender; hence the court sentenced him to 100 years in prison on the burglary charge along with a consecutive term of life in prison on the charge of attempted sexual intercourse without consent. Both sentences are to be served without the possibility of parole. Gunderson appeals his conviction and sentence. We affirm in part, reverse in part, and remand for further proceedings consistent with this Opinion.

¶ 2 Gunderson raises nine issues on appeal which we have restated as follows:

¶ 3 1. Whether the District Court erred in sentencing Gunderson to both life imprisonment on the charge of attempted sexual intercourse without consent and a term of 100 years as a persistent felony offender on the burglary charge.

¶ 4 2. Whether there was sufficient evidence to support Gunderson's conviction on the charge of attempted sexual intercourse without consent.

¶ 5 3. Whether Gunderson's trial counsel provided effective assistance.

¶ 6 4. Whether Gunderson was entitled to a jury instruction on missing evidence.

¶ 7 5. Whether the District Court abused its discretion in denying Gunderson's motion for a mistrial after a prospective juror's comments inadvertently indicated that Gunderson had been in jail.

¶ 8 6. Whether the District Court erred when it failed to remove a prospective juror for cause.

¶ 9 7. Whether the District Court erred when it declined to give a jury instruction specifying that Gunderson's testimony should be treated the same as any other witness.

¶ 10 8. Whether the District Court erred in instructing the jury on the definitions of “purposely” and “knowingly.”

¶ 11 9. Whether the District Court erred in imposing 51 conditions as part of Gunderson's sentence in the event he is ever released to the community.

¶ 12 M.R.App. P. 12(1)(f) requires that parties cite to relevant authorities and statutes in support of their arguments on appeal. In this case, other than citing to the Ninth Circuit Court Model Criminal Jury Instructions from which Gunderson obtained the instruction at issue, Gunderson failed to cite to any statutes or caselaw in support of his argument that the District Court should have given a jury instruction specifying that his testimony should be treated the same as any other witness (Issue 7). We have repeatedly held that it is not this Court's obligation to conduct legal research on behalf of a party or to develop legal analysis that might support a party's position. State v. Cybulski, 2009 MT 70, ¶ 13, 349 Mont. 429, 204 P.3d 7 (citing State v. Torgerson, 2008 MT 303, ¶ 36, 345 Mont. 532, 192 P.3d 695). Consequently, because of Gunderson's inadequate briefing on Issue 7, we decline to consider his arguments on that issue.

Factual and Procedural Background

¶ 13 On July 3, 2007, at around 2:00 a.m., Stephanie Randall walked home to her apartment after an evening of drinking with friends at the nearby Rainbow Bar in Billings. When she arrived home, she went to her kitchen to make herself something to eat. Gunderson, who was hanging out in the area near Randall's apartment drinking with a friend, later testified that he thought he recognized Randall from the bar so he knocked on her door. When Randall answered the door, Gunderson asked to use her telephone. Randall lied and told him she did not have a phone and shut the door. Randall returned to her cooking and after finishing her food, she shut off the lights in her apartment and went to her bedroom to sleep.

¶ 14 About a half an hour after Randall turned off her lights, Gunderson again went to her door to talk to her. Gunderson testified that he found Randall's door slightly ajar, so he stepped inside. However, Randall testified that she had shut the door but she could not remember whether she had locked it. After entering Randall's apartment, Gunderson called out asking whether anyone was home. He claimed he heard what sounded like a voice coming from the back of the apartment so he followed the voice.

¶ 15 Randall was asleep on the bed, partially covered by a sheet with her back to the doorway. Because of the heat, Randall was wearing only her bottom underwear. Gunderson testified that he sat down on the edge of the bed to talk with her. Randall testified that she “woke up to somebody getting in my bed and touching me and kissing me.” She said that the person, whom she later identified as Gunderson, kissed her on her neck and that he was rubbing her thigh. She also said that Gunderson tried to pull her underwear off, but she was able to grab his hand to stop him. Randall further testified that Gunderson pinned her arms down on the bed, but after several minutes of struggling with him, she was able to get up and turn on the bedroom light. Once the lights were on, she recognized Gunderson as the man who had asked to use her telephone earlier that night. She also noticed that Gunderson was not wearing his shirt or his shoes.

¶ 16 Randall grabbed Gunderson's shoes, threw them out her front door, and ordered Gunderson to get out. She testified that when she went to open the door, it was locked, so she surmised that if Gunderson had come in through the front door, he had locked it behind him. On his way out the door, Gunderson dropped his shirt. When he went back to pick it up, Randall grabbed him by the hair and tried to drag him out of the apartment. In the process, she scratched his neck.

¶ 17 Once she was able to get Gunderson out of her apartment, Randall called 911 to report the incident. Officer Shawn Wichman responded to her call. He testified that when he arrived to interview Randall, she was very distraught and visibly shaking, but she did not appear to have any injuries. Although Officer Wichman examined Randall's bed, he did not collect her bedding or underwear as evidence. Officer Wichman transported Randall to the Billings Police Department where a detective took samples of the dried blood on her hand and under her fingernails. This blood evidence was sent to the Montana Crime Lab where it was tested and eventually identified as belonging to Gunderson.

¶ 18 Officer Brad Ross, responding to a dispatch that a burglary suspect had fled the scene, encountered Gunderson walking a few blocks from Randall's apartment with another man. Based on the physical description given by Randall and the fact that Gunderson had scratch marks on his neck with fresh, wet blood, Officer Ross stopped Gunderson. Gunderson consented to a portable breath test which indicated a blood alcohol content of 0.086. Officer Ross arrested Gunderson for violating his parole. After Officer Ross advised him of his Miranda rights, Gunderson agreed to be interviewed. Gunderson initially stated that he received the scratch marks during a fight at the Crystal Lounge and that he had been asked to leave the Crystal Lounge by one of the staff. He also stated that he had arrived at the Crystal Lounge that night by taxi and that he had jumped out of the taxi without paying. Gunderson denied entering any residences without authorization and stated that his DNA would not be present at the crime scene.

¶ 19 On July 19, 2007, the State charged Gunderson by Information with burglary and attempted sexual intercourse without consent. The burglary charge alleged that Gunderson unlawfully entered Randall's apartment with the purpose to commit sexual assault. The attempted sexual intercourse without consent charge alleged that Gunderson “climbed into [Randall's] bed, tried to pull her underwear down, and kissed her neck while she slept” with the purpose to commit sexual intercourse without consent.

¶ 20 The Office of the Public Defender eventually assigned Robert Kelleher to represent Gunderson. On October 19, 2007, the State filed a notice of intent to seek Gunderson's designation as a persistent felony offender. The State also filed a Just notice seeking to use Gunderson's 1994 conviction for sexual intercourse without consent. Although the District Court granted the State's request, the State did not introduce any evidence at trial regarding Gunderson's prior convictions.

¶ 21 On February 15, 2008, Gunderson filed a Motion to Dismiss for Loss of Evidence arguing that because the police failed to collect Randall's bedding and failed to perform a rape examination of Randall, the case should be dismissed. Gunderson contended that the bedding would have shown an absence of fighting or resistance and the rape examination would have shown that Randall did not have any bruises. The District Court denied the motion.

¶ 22 The trial in this case began on February 19, 2008. During voir dire, one of the potential jurors, David Thorson, indicated that he worked at the Yellowstone County Detention Facility. When asked by the prosecutor if he knew Gunderson, Thorson responded that he did. Based on this exchange, Gunderson moved for a mistrial on the grounds that Thorson's comments had tainted the jury pool by indicating that Gunderson had been in jail or was currently in jail. The District Court denied the motion and the State subsequently used one of its...