State v. Burkhart, No. 03-108.

• Docket Nº: No. 03-108.
• Citation: 2004 MT 372, 325 Mont. 27, 103 P.3d 1037
• Case Date: December 23, 2004
• Court: United States State Supreme Court of Montana

103 P.3d 1037
2004 MT 372
325 Mont. 27

STATE of Montana, Plaintiff and Respondent,
v.
Richard Earl BURKHART, Defendant and Appellant

No. 03-108.

Supreme Court of Montana.

Argued July 7, 2004.

Submitted July 13, 2004.

Decided December 23, 2004.

103 P.3d 1039

Kristina Guest (argued), Assistant Appellant Defender, Helena, Montana, for Appellant

Hon. Mike McGrath, Attorney General; Jim Wheelis (argued), Assistant Attorney General, Helena, Montana Brant Light, Cascade County Attorney; John Parker, Deputy County Attorney, Great Falls, Montana, for Respondent.

Justice JIM REGNIER delivered the Opinion of the Court.

¶ 1 Defendant Richard Earl Burkhart (Burkhart) was convicted by a jury in the Eighth Judicial District Court, Cascade County, on one count of deliberate homicide, felony-murder. Burkhart appeals his conviction. We affirm.

¶ 2 The following issues are presented on appeal:

¶ 3 1. Whether the District Court correctly denied Burkhart's motion to dismiss on the grounds the State's accomplice testimony was uncorroborated?

¶ 4 2. Whether the District Court correctly denied Burkhart's motion to dismiss and deprived him of due process on the grounds the predicate offense for felony-murder was an assault with a weapon?

¶ 5 3. Whether the District Court abused its discretion when it removed a prospective juror for cause?

¶ 6 4. Whether the District Court improperly considered Burkhart's refusal to admit guilt or express remorse at his sentencing hearing?

PROCEDURAL AND FACTUAL BACKGROUND

¶ 7 On November 13, 2001, the body of William Ledeau (Ledeau) was found at 12th Street and 1 Alley North in Great Falls, Cascade County. He had been struck in the head four times with a blunt object. The State initially charged Burkhart on December 10, 2001, with deliberate homicide by accountability. The State later amended the information on September 4, 2002, to include deliberate homicide, felony-murder, pursuant to § 45-5-102(1)(b), MCA. Burkhart was found guilty as charged by a jury on September 19, 2002, and sentenced to life imprisonment on October 24, 2002.

¶ 8 Prior to trial, the State moved to dismiss one juror for cause during voir dire because of the opinion he expressed concerning a reluctance to follow laws he found disagreeable. The prosecuting attorney brought up the example of seat belt laws and asked the following question of the prospective juror:

MR. PARKER: [A]s you know, we have a law in Montana that requires people to wear seat belts. Let's pretend that you're here today as a juror in a seat belt trial. And let's also pretend that you personally

103 P.3d 1040

don't like to wear a seat belt and that you personally don't agree with that law that requires people to wear seat belts.

If a judge were to instruct you that that is the law and if the evidence showed beyond a reasonable doubt that the offense were committed, would you be able to follow the law in that situation?

....

MR. O'LEARY: I would have a hard time agreeing with that. Because all laws are supposed to be based on the Constitution, and I do not see where you can force people to wear a seat belt.

MR. PARKER: Okay. Well, that's an important point. Not everyone will always agree with a different law. But you do understand, Mr. O'Leary, if you were chosen as a juror, that you're actually not allowed to decide whether or not you agree with the law, that your own role would be to evaluate the facts and decide whether the offense happened.

MR. O'LEARY: I might have a problem with that. If like, say, it was a blatant violation of the Bill of Rights or something, like some of the gun laws we have, you know, it says-in the Constitution it says that the right shall not be infringed upon. Yet there is (sic) all kinds of laws about guns right now that I think are unconstitutional and should be disregarded.

MR. PARKER: So you're saying, in other words, that it might be difficult for you in a certain kind of a case to follow the law as the judge gives it to you if you didn't agree with it?

MR. O'LEARY: Yeah, it would.

After the prosecutor challenged O'Leary for cause, the District Court allowed Burkhart's attorney, Vincent van der Hagen, to question him. Their exchange proceeded as follows:

MR. van der HAGEN: [I]s it any law that you would have a problem with or is it just specific laws that you would have a problem with?

MR. O'LEARY: Just laws that would be, you know-no, just a few laws.

MR. van der HAGEN: Just a few laws. What are those laws?

MR. O'LEARY: Like I was saying, gun laws, I think a lot of them are unconstitutional.

MR. van der HAGEN: Gun laws. What about the gun laws do you have a problem (sic)?

MR. O'LEARY: Just the restriction that are placed on them. When it says that shall not be infringed upon, and yet there is —

MR. van der HAGEN: Are you talking about a person's right to possess a gun; is that what you're talking about?

MR. O'LEARY: Right.

MR. van der HAGEN: Would you have a problem if an individual had used a gun to shoot someone, would you have a problem with — under the law, if you believed that the law says if this person did this, and he did it using a gun and he is guilty, guilty of the crime, would you let that person off the —

MR. O'LEARY: No.

MR. van der HAGEN: Find him not guilty because of the gun laws?

MR. O'LEARY: No.

MR. van der HAGEN: What other laws do you have a problem with, sir?

MR. O'LEARY: Just some of the search and seizure laws like that — you know, people involved in drugs, you know, like I've heard of cases where people have marijuana on them or something, and they seize their whole car.

MR. van der HAGEN: Drug forfeiture laws. Do I understand you correctly?

MR. O'LEARY: Right. Some of those. Unless, you know, I mean —

MR. van der HAGEN: Why do you have a problem with those kind of laws?

MR. O'LEARY: Because it goes against what I believe.

Following further exchanges, the District Court stated: "Well, he has said he wouldn't follow the law if he didn't agree with it. And I think that's grounds for disqualification." The District Court then excused O'Leary and a jury was eventually impaneled.

¶ 9 The trial began on September 9, 2002. The State's evidence at trial showed the following:

103 P.3d 1041

In search of the individuals behind an attempted break-in of his car, Burkhart and his friend, Michael Staley (Staley), encountered Ledeau in the alley between 1 Alley North and 12th Street. Ledeau had been walking home from his aunt's house. Burkhart and Staley confronted Ledeau, accusing him of breaking into Burkhart's car earlier that evening. When Ledeau denied his involvement in the break-in and took offense at being accused, Burkhart hit Ledeau in the head once with a ball-peen hammer. After the initial blow, Ledeau attempted to flee but was eventually caught and hit three more times in the back and top of the head by Burkhart. Burkhart and Staley then returned to Staley's house and called police to report the break-in

¶ 10 Officer Jamie Pinski of the Great Falls Police Department initially arrived at the crime scene and stated she was approached by Burkhart and Staley. According to Pinski, Burkhart and Staley told her Burkhart's vehicle had been broken into and they had seen a male run northbound across Central Avenue down 12th Street North. They also saw a second male run after the first male and, intending to confront the suspected thieves, gave chase after the two men. In pursuit, Burkhart and Staley said they ran through the parking lot to the east-side of "All Seasons Spas" and cut off one of the males in 1 Alley North. Burkhart and Staley told Pinski they caught and confronted one of the males.

¶ 11 Staley indicated the male flipped his hat off and stated, "Come on mother-fuckers, let's go" and began challenging them to a fight. Pinski reported she pointed out a baseball cap lying near Ledeau and asked them if it appeared to be the same cap the male suspect was wearing. Pinski indicated both Burkhart and Staley agreed that it was the suspect's hat. Ledeau's aunt, Joanne Dubois, testified at trial Ledeau was wearing the baseball hat when he left her home that evening.

¶ 12 Burkhart and Staley were further interviewed that evening by police. Detectives learned from Burkhart he had broken parole that day, traveling from Bigfork to Great Falls to visit Staley, another parolee, and buy some methamphetamine. Burkhart stated he was getting ready to drive back to Bigfork when they both walked out to his car and discovered someone had stolen some change, cigarettes, and a jacket from inside the automobile. Additionally, someone had attempted to pry open the trunk of his car in order to gain access to the speakers in the back.

¶ 13 Both men told officers they had confronted an Indian man in the alley but had walked away when the individual became angry and confrontational. They described the male as Native American, in his twenties, about 5' 10" with a stocky build, skinny mustache, some hair on his chin and a "skater hair cut." Burkhart indicated the male was wearing a dark shirt, dark pants and a blue baseball cap. This description matched Ledeau when officers found him that evening. Burkhart and Staley also claimed to have seen other suspicious individuals in the area that evening. Although Burkhart maintained he and Staley had left the confrontation when the male became angry, he later told detectives he chased the male to within 50 feet of where Ledeau's body was found.

¶ 14 As part of their investigation, detectives also interviewed Staley's roommate, Rochelle Smith-Sterner. Smith-Sterner recalled on November 12, 2001, observing Burkhart and Staley leave her residence to execute a methamphetamine purchase. A short time later, she remembered hearing Burkhart yelling that someone had broken into his car, specifically "I am going to kill the fucker that broke into [my] car." Shortly thereafter, Smith-Sterner observed Burkhart and Staley running after two individuals in the area of...