State v. Burnett

Decision Date18 January 2022
Docket NumberDA 19-0738
Citation2022 MT 10
CourtMontana Supreme Court
PartiesSTATE OF MONTANA, Plaintiff and Appellee, v. AMBER MARIE BURNETT, Defendant and Appellant.

Submitted on Briefs: January 12, 2022

APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. DDC 18-241 Honorable Robert G. Olson, Presiding Judge

For Appellant:

Chad Wright, Appellate Defender, Kathryn Hutchison, Assistant Appellate Defender, Helena, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana

Joshua Racki, Cascade County Attorney, Jennifer Quick, Deputy County Attorney, Great Falls, Montana


Laurie McKinnon Justice

¶1 Following a two-day bench trial in the Eighth Judicial District Court, Cascade County, Amber Marie Burnett was convicted of nine counts of assault on a minor, in violation of §§ 45-5-212 and 45-5-201, MCA, and one count of perjury, in violation of § 45-7-201(1), MCA. We affirm and restate the issues on appeal as follows:

1. Whether the delay in bringing Burnett to trial violated her constitutional right to a speedy trial. 2. Whether sufficient evidence existed to support Burnett's conviction for perjury.

¶2 In the fall of 2017, Nicholas Conlan, a high school friend of Burnett's, moved in with Burnett, her boyfriend, and her children, A.G. and N.G. With Burnett's permission, Conlan installed a video surveillance system in the home. The cameras were set to run constantly before Conlan adjusted them to activate when motion was detected. During the four months Conlan lived with Burnett, he witnessed Burnett verbally and physically abuse the children on several occasions. On one notable instance, Conlan testified that Burnett asked him for his taser. Conlan believed Burnett intended to scare N.G. Conlan further testified to witnessing Burnett use the taser on N.G. for three seconds in his bedroom.[1]This incident was not recorded. Burnett evicted Conlan in early 2018 after he confronted her about the abuse. Conlan did not report his concerns to law enforcement.

¶3 A few weeks after Conlan moved out, Child and Family Services (CFS) received a report of suspicious bruising on A.G. and N.G. CFS contacted the Great Falls Police Department (GFPD) to investigate further after observing bruises on the children. Burnett told GFPD Officer Jon Marshall the children's bruises resulted from getting struck by a snowball and from playing with the family's dog. Officer Marshall did not believe the bruises came from the dog, and he observed the kids' demeanor change when he asked them about the bruises, raising his suspicions.

¶4 As a result of these suspicions, CFS removed the children. GFPD Detective Katie Cunningham was assigned to investigate. Detective Cunningham interviewed Burnett and collected her cell phone. Detective Cunningham also spoke to Conlan in early April. Conlan provided the taser and surveillance system hard drive. Detective Cunningham later testified to the voluminous nature of the footage, which spanned several months of continuous recording. Based on Detective Cunningham's initial review, the State charged Burnett by Information with two felony counts of assault on a minor, in violation of § 45-5-212, MCA, and two misdemeanor counts of endangering the welfare of a child, in violation of § 45-5-622(1), MCA, on April 26, 2018. Citing the severity and nature of the charges, the State arrested Burnett the same day. During a jailhouse phone call, Burnett and her father discussed the charges against her. Burnett admitted she held the taser to N.G. but stated she did not activate it. Burnett did not specify which part of the taser she held to N.G.

¶5 Burnett bonded out of jail on May 5, 2018, and first asserted her right to a speedy trial on May 7. Burnett was arraigned on May 18, 2018, and filed a motion to continue the omnibus deadline on May 30, stating that additional law enforcement reports and surveillance footage would soon be disclosed and require substantial time to review. Burnett filed two additional motions to continue, ultimately pushing the omnibus deadline to September 28, 2018. Burnett's first trial was subsequently scheduled for March 18, 2019. In October 2018, the State offered Burnett a plea agreement, agreeing not to charge additional counts if Burnett pled guilty. Burnett filed a notice of substitution of counsel on December 10, 2018, and her new defense counsel met with the State to review the surveillance footage. During this period, Detective Cunningham ceased review of the footage, reflecting the State's belief the case would settle. The State modified its offer in February 2019 agreeing to accept a nolo contendre plea from Burnett.

¶6 Plea negotiations fell through in March 2019, and the State filed a motion to continue Burnett's trial on March 8, 2019, citing the need to finalize the investigation and prepare for trial. Burnett did not object to the State's request. Based on the availability of the State and defense counsel and the court's docket, the District Court reset Burnett's trial for August 5, 2019. Detective Cunningham resumed her review of the surveillance footage. On April 3, 2019, Burnett filed a motion to dismiss due to a violation of her speedy trial rights, which the State opposed. The District Court held a hearing on the motion on June 10, 2019. Detective Cunningham's review prompted the State to file an Amended Information the same day, charging Burnett with fourteen counts of felony assault on a minor, two counts of misdemeanor endangering the welfare of a child, and one count of felony perjury.

¶7 The District Court issued its findings of fact, conclusions of law, and order denying Burnett's motion to dismiss on July 24, 2019. The District Court concluded the 466-day delay between Burnett's arrest and trial on August 5, 2019, surpassed the 200-day threshold set forth in State v. Ariegwe, 2007 MT 204, 338 Mont. 442, 167 P.3d 815, and thus triggered further analysis. The District Court concluded the reasons for the delay were attributable to the State but were institutional in nature and thus weighed least heavily. The District Court further concluded Burnett's response to the delay weighed against her and that Burnett had not been prejudiced by the delay. Based on this analysis, the District Court denied Burnett's motion and the case proceeded to a bench trial on August 5.

¶8 At trial, the State presented testimony from Officer Marshall, A.G.'s teacher, the counselor at A.G. and N.G.'s school, Conlan, Detective Cunningham, the nurse who examined the bruises on A.G., and an employee at a daycare center near Burnett's home. Burnett testified on her own behalf. Regarding the other incidents, Burnett did not dispute the video footage or her actions but testified she believed the incidents constituted appropriate parental discipline within her parental rights. On cross-examination, she categorized the videos as a misunderstanding caused by Conlan. The taser incident, which also served as the basis for the perjury charge, is discussed below.

Perjury Conviction

9 The State's Amended Information included one count of felony perjury, in violation of § 45-7-201(1), MCA. The State alleged Burnett perjured herself during the corresponding dependency and neglect (DN) proceeding by testifying she never used a taser on her children and by denying making a statement to her father about the taser during a jailhouse call.

¶10 During the DN proceeding, Burnett denied abusing her children and provided the following relevant testimony:

[Defense counsel]: All right. Let's start with the taser. Did you use a taser on the children?
[Burnett]: No, sir.
[Defense counsel]: Did you make a statement that you had used a taser on the children?
[Burnett]: No, sir.
[Defense counsel]: Did you ever press a taser against one of your children?
[Burnett]: No, sir.
[Defense counsel]: Okay. Didn't do anything like that?
[Burnett]: No. The - my question is, no one asked and described the taser in court, what it looks like, or how it was described. I can describe that taser. It has a red button and a black button. On one end of the taser is a taser. The other end is a flashlight. No one thought to bring that up so I would like to bring that up on the record. [Defense counsel]: Okay. Did you ever threaten any of the children with a taser? [Burnett]: No.
[Defense counsel]: Did you make any statement on the jail phones that you had threatened the children with a taser?
[Burnett]: No, sir.
[Defense counsel]: Okay. So, all that is not true-
[Burnett] Correct.
[State]: Okay. Isn't it true you told somebody that you put the taser up to your child, but you didn't pull the trigger?
[Burnett]: In jail, when you're being slandered all over the news, and you're - - [State]: I asked you the question. The question is: Did you say that?
[Burnett]: Talked to my father about it, yes, I did. But I was requesting about the news media, because nothing was informed to me, what was being said.

¶11 At trial, the State introduced the recording of Burnett's phone call with her father through Detective Cunningham. On the recording, Burnett admitted to holding the taser on N.G. briefly without activating it. The District Court also admitted Burnett's testimony from the DN proceeding over defense counsel's objection. At trial, Burnett testified on her, own behalf and provided the following relevant testimony concerning the taser:

[Counsel]: Okay. Did you ever press the taser against one of your children?
[Burnett]: No.
[Counsel]: Did you ever press part of the taser device against one of your children?
[Burnett]: Yes.
[Counsel]: Okay. Which part?

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