State v. Burke

• Decision Date: 22 February 2000
• Docket Number: No. 980312.,980312.
• Citation: 2000 ND 25,606 N.W.2d 108
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Dale Joseph BURKE, Defendant and Appellant.
• Court: North Dakota Supreme Court

606 N.W.2d 108

2000 ND 25

STATE of North Dakota, Plaintiff and Appellee, v. Dale Joseph BURKE, Defendant and Appellant.

No. 980312.

Supreme Court of North Dakota.

February 22, 2000.

Mark R. Boening, Assistant State's Attorney, Fargo, for plaintiff and appellee.

Joe A. Johnson, Fargo, for defendant and appellant.

KAPSNER, Justice.

[¶ 1] Dale Joseph Burke appeals from a criminal judgment entered upon a jury verdict finding him guilty of two counts of murder and one count of arson. We hold there was sufficient evidence to support Burke's convictions, the admission of DNA evidence was not obvious error, Burke was not denied a fair trial because of prosecutorial misconduct, and Burke failed to establish ineffective assistance of counsel. We therefore affirm.

I

[¶ 2] 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.

[¶ 3] 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.

[¶ 4] On May 2, 1997, Burke appeared before the district court. Burke asserted he had several mental disorders. Burke's attorney later successfully moved for Burke's commitment to the state hospital for a psychological evaluation. Burke's attorney also successfully moved for public funds to hire an investigator. During the June proceeding at which Burke waived his right to a preliminary hearing, Burke's attorney indicated he had not yet hired an investigator. In September 1997, Burke's attorney indicated the case was not ready for trial and requested the case be put on the December trial calendar. In December 1997, Burke's attorney successfully moved for an order allowing him to depose Kathy Lorsung, Burke's girlfriend at time of the crimes.

[¶ 5] In January 1998, Burke's attorney successfully moved for a continuance and for public funds to acquire independent DNA testing. At dispositional conferences in February and March of 1998, Burke's attorney indicated he was waiting for the results of the independent testing. The next month, Burke's attorney indicated he was still waiting for the testing results and would be ready for trial in June.

[¶ 6] A jury trial began on July 7, 1998. The State presented the pair of blue jeans and an expert who performed polymerase chain reaction 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.

[¶ 7] 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.

[¶ 8] 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.

[¶ 9] 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.

[¶ 10] 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.

[¶ 11] The jury convicted Burke for both counts of murder and for arson. Judgment was entered on September 17, 1998. Burke appealed.

II

[¶ 12] Burke argues there was insufficient evidence to support his convictions. A challenge to the sufficiency of the evidence is reviewed by drawing all inferences in favor of the verdict. State v. Lusby, 1998 ND 19, ¶ 5, 574 N.W.2d 805. This Court will reverse a conviction only if, after viewing the evidence and all reasonable evidentiary inferences in the light most favorable to the verdict, no rational factfinder could have found the defendant guilty beyond a reasonable doubt. Id.

[¶ 13] Under N.D.C.C. § 12.1-16-01:

1. A person is guilty of murder, a class AA felony, if the person:

a. Intentionally or knowingly causes the death of another human being; [or]

b. Causes the death of another human being under circumstances manifesting extreme indifference to the value of human life[.]

[¶ 14] Under N.D.C.C. § 12.1-21-01:

A person is guilty of arson, a class B felony, if he starts or maintains a fire or causes an explosion with intent to destroy an entire or any part of a building or inhabited structure of another or a vital public facility, or if he starts or maintains a fire or causes an explosion with intent to destroy or damage his own real or personal property for the purpose of collecting insurance for the loss.

[¶ 15] The State submitted significant evidence establishing Burke violated N.D.C.C. § 12.1-16-01 and N.D.C.C. § 12.1-21-01. Witnesses indicated Burke had made two gasoline purchases on the night of the crimes, Burke was present at the Nelson and Huotari residence shortly before the crimes, and Burke had said he planned to kill Huotari. DNA evidence indicated Huotari's blood likely was on Burke's jeans. Burke testified Huotari's blood was on his jeans. Finally, Burke had gone to Nebraska shortly after the crimes. From this evidence, a rational jury could have inferred Burke planned and actually killed Huotari and Nelson and then set their home on fire to destroy evidence and thus could have found Burke guilty beyond a reasonable doubt of two counts of murder under N.D.C.C. § 12.1-16-01 and one count of arson under N.D.C.C. § 12.1-21-01.

III

[¶ 16] Burke asserts the DNA evidence should not have been admitted because it was not shown to be sufficiently reliable. Because Burke failed to object to the admission of the DNA evidence at trial, our inquiry is limited to determining if admission constitutes obvious error affecting substantial rights. State v. McDonell, 550 N.W.2d 62, 64 (N.D.1996). "We exercise our power to notice obvious error cautiously and only in exceptional circumstances where the accused has suffered serious injustice." State v. Olander, 1998 ND 50, ¶ 12, 575 N.W.2d 658. Under the test for recognizing obvious error, a defendant has the burden to show (1) an error, (2) that is plain, and (3) affects substantial rights. Id. at ¶¶ 14, 16. In applying the test, we inspect the entire record and the probable effect of the alleged error in light of all the evidence. Id. at ¶ 12.

[¶ 17] Generally, polymerase chain reaction ("PCR") DNA testing is well established and accepted as a reliable tool for procuring evidence.¹ Several courts have upheld admission of DNA evidence² under the Frye test,³ concluding DNA evidence is generally accepted in the relevant scientific community. See People v. Pope, 284 Ill.App.3d 695, 220 Ill.Dec. 309, 672 N.E.2d 1321 (1996)

; State v. Hill, 257 Kan. 774, 895 P.2d 1238, 1247 (1995); People v. Lee, 212 Mich.App. 228, 537 N.W.2d 233, 257-58 (1995); People v. Wesley, 83 N.Y.2d 417, 611 N.Y.S.2d 97, 633 N.E.2d 451, 455 (1994); State v. Russell, 125 Wash.2d 24, 882 P.2d 747, 768 (1994). Other courts have determined DNA evidence is sufficiently reliable and upheld admission under evidentiary rules. See United States v. Martinez, 3 F.3d 1191, 1196-98 (8th Cir.1993) (applying the test established by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)); State v. Brown, 470 N.W.2d 30, 32 (Iowa 1991); Commonwealth v. Rosier, 425 Mass. 807, 685 N.E.2d 739 (1997); State v. Moore, 268 Mont. 20, 885 P.2d 457, 474-75 (1994); State v. Moeller, 1996 SD 60, ¶¶ 53-69, 548 N.W.2d 465; Clarke v. State, 813 S.W.2d 654, 655 (Tex.Ct.App.1991); Spencer v. Commonwealth, 240 Va. 78, 393 S.E.2d 609, 621 (1990).

[¶ 18] Further, Burke offered no evidence to suggest the particular means of DNA testing employed here were unreliable. DNA test results may be inadmissible if the means used in the particular case were not sufficiently reliable. See State v. Zimmerman, 516 N.W.2d 638, 642 (N.D.1994)

(citing N.D.R.Ev. 104(a) and explaining "[w]hether a blood test was fairly administered is a preliminary question of admissibility left to the discretion of the trial judge"). Here, Paula Yates, the State's expert, gave considerable testimony regarding the reliability of the specific DNA testing and methodology employed. Yates explained she received the DNA samples when the samples initially came to the lab, compiled a list of the received samples, and secured the samples in an evidence room. Yates herself performed all of the tests on the samples. She performed...