State v. Bromgard
| Decision Date | 08 September 1995 |
| Docket Number | No. 94-630,94-630 |
| Citation | 273 Mont. 20,901 P.2d 611 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Jimmy Ray BROMGARD, Defendant and Appellant. |
| Court | Montana Supreme Court |
William F. Hooks, State Appellate Defender, Helena, for appellant.
Joseph P. Mazurek, Attorney General, Barbara Harris, Assistant Attorney General, Helena, and Dennis Paxinos, Yellowstone County Attorney, Billings, for respondent.
The defendant, Jimmy Ray Bromgard, was charged by information in the District Court for the Thirteenth Judicial District in Yellowstone County, with three counts of sexual intercourse without consent, in violation of § 45-5-503, MCA. After a trial by jury, Bromgard was convicted of all three charges, was sentenced to the Montana State Prison, and was designated a dangerous offender. Following a petition for post-conviction relief and appeal to this Court, he filed his second petition for post-conviction relief in the District Court. The District Court denied his petition. We reverse the order of the District Court and remand for further proceedings.
The issue on appeal is:
Did the District Court err when it denied Bromgard's second petition for post-conviction relief?
During the early morning hours of March 20, 1987, L.T. was asleep in her bedroom located on the second floor of her family's home in Billings. L.T. was eight years old at the time. At approximately 4:30 a.m., a man broke into the family residence by opening and climbing through a bathroom window located on the main floor of the house. The man walked to the second floor of the house and entered the hallway which led to L.T.'s room.
L.T. testified that in this hallway, a "strong light" was turned on. L.T. also testified that she awakened and could "not very clearly" see the man, but knew that he was a stranger. The man approached L.T.'s bed, stuffed a cloth belt in her mouth and told her that if she did not shut up, he would kill her. The man then subjected L.T. to oral, vaginal, and anal intercourse. Afterward, he placed a pillow over L.T.'s head and left the home.
L.T. went to her father immediately after the attack and told him what had happened. L.T.'s parents took her to the Billings Clinic and Dr. Linda Johnson confirmed that L.T. had been sexually penetrated vaginally and anally.
With L.T.'s assistance, a composite sketch of her attacker was drawn. During the ensuing investigation, the sketch was shown to one of Bromgard's neighbors, who stated that the sketch resembled Bromgard. Thereafter, L.T. identified Bromgard in a police line-up. In addition, it was established that head and pubic hair samples taken from Bromgard matched head and pubic hairs taken from L.T.'s bed.
Bromgard was charged by information in the District Court of the Thirteenth Judicial District in Yellowstone County with three counts of sexual intercourse without consent, in violation of § 45-5-503, MCA. After trial by jury, he was found guilty on all three counts.
The day after the trial, a newspaper article published in the Billings Gazette disclosed that during deliberations the jury performed an experiment designed to test the lighting conditions that existed at the time of the attack. Apparently, the jurors performed the experiment to determine whether the lighting was sufficient for L.T. to have seen her assailant and the color of his clothing. It does not appear that Bromgard's trial counsel in any way challenged the propriety of the experiment on the basis that it may have interjected evidence which was not admitted at trial.
The District Court sentenced Bromgard to three concurrent 40-year terms of imprisonment in the Montana State Prison, and designated him a dangerous offender.
Bromgard appealed his conviction, but his trial counsel failed to file an appellate brief or an Anders memorandum, pursuant to Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. We, therefore, dismissed his appeal.
Bromgard, acting pro se, filed a petition for post-conviction relief in which he presented seven grounds for relief. We denied six of Bromgard's grounds for relief. However, we remanded the case and directed the District Court to appoint counsel to evaluate the merits of Bromgard's ineffective assistance of counsel claim. We then appointed the State Appellate Defender to represent Bromgard in the presentation of his appeal and granted Bromgard's motion to file an "out-of-time" appeal.
Following Bromgard's subsequent appeal to this Court, we affirmed his conviction. State v. Bromgard (1993), 261 Mont. 291, 862 P.2d 1140. While his appeal was pending, Bromgard filed this second petition for post-conviction relief. In this petition, he alleged that the jury engaged in misconduct by conducting its own experiment and that he was, thereby, denied his right to a fair trial. Additionally, Bromgard alleged that his counsel's failure to challenge the propriety of the experiment denied him effective assistance of counsel which is guaranteed pursuant to the Sixth Amendment to the United States Constitution and Article II, Section 24, of the Montana Constitution. The District Court denied Bromgard's petition on the basis that Bromgard learned of the jury misconduct immediately following trial and failed to raise the issue on direct appeal.
Did the District Court err when it denied Bromgard's second petition for post-conviction relief?
There were no factual issues resolved by the District Court. Based on its conclusion that Bromgard's second petition for post-conviction relief was procedurally barred, the District Court denied his petition without ordering a response from the State. We review a district court's legal conclusions to determine whether the district court's application of the law was correct. State v. Christensen (1994), 265 Mont. 374, 375-76, 877 P.2d 468, 469.
Bromgard contends that the District Court erred when it concluded that the jury's misconduct and the related issue of ineffective assistance of counsel could have been raised on appeal. He correctly...
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...held that "issues of this nature are best resolved after an evidentiary proceeding in the district court." State v. Bromgard (1995), 273 Mont. 20, 24, 901 P.2d 611, 614. See also State v. Lawrence, 2001 MT 299, 307 Mont. 487, 38 P.3d 809 (holding that evidentiary hearing was required on pet......
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