Burchill v. State

415 Mont. 129

DUANE BURCHILL, Petitioner and Appellant,

v.STATE OF MONTANA, Respondent and Appellee.

No. DA 22-0429.

Submitted on Briefs November 29, 2023.

Decided February 6, 2024.

2024 MT 20.

415 Mont. 129.

__P.3d__.

Appeal from the District Court of Gallatin County.

Eighteenth Judicial District Court, Cause No. DV-20-302(A).

Honorable Peter B. Ohman, Judge.

Trial counsel’s performance was not deficient for failing to make objections to the prosecutor’s "were they lying" line of questions because the prosecutor’s questions were within the scope of permissible questions allowed on cross-examination. As such, trial counsel’s representation did not fall below an objective standard of reasonableness under Strickland; the prosecutor did not express his personal opinion whether petitioner was telling the truth, but rather queried petitioner on why he would need advanced information in order to give a truthful statement; because the prosecutor did not voice his personal opinion on petitioner’s credibility, the district court correctly concluded that trial counsel was not deficient for failing to object to the question.

Affirmed.

For Appellant: Joseph P. Howard, Joseph P. Howard, P.C., Helena.

For Appellee: Austin Knudsen, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena; Audrey Cromwell, Gallatin County Attorney, Bozeman.

JUSTICE BAKER delivered the Opinion of the Court.

¶1 Duane Burchill appeals the order of the Montana Eighteenth Judicial District Court, Gallatin County, denying his amended petition for postconviction relief. Burchill asserts that his counsel provided ineffective assistance when he failed to object to the prosecutor’s misconduct. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Burchill was convicted in 2017 of two counts of robbery, one count of conspiracy to commit deceptive practices, and one count of possession of dangerous drugs. Burchill’s retained trial counsel, Jack Sands, represented him on appeal. Burchill raised four issues on appeal: (1) that cell phone evidence was improperly admitted; (2) that the search of his home was illegal; (3) that the search of his truck was illegal; and (4) that evidence of the handgun should not have been admitted due to foundational issues. We affirmed Burchill’s conviction. State v. Burchill, 2019 MT 285, ¶ 39, 398 Mont. 52, 454 P.3d 633. Burchill subsequently filed a pro se petition for postconviction relief. The District Court appointed counsel, and Burchill filed an amended petition alleging ineffective assistance of trial counsel for Sands’s failure to object to prosecutorial misconduct during Burchill’s cross-examination. We restate the facts below only as necessary to resolve the denial of Burchill’s postconviction petition.

¶3 The Magic Diamond II Casino in Bozeman was robbed on the night of September 18, 2016, and again the night of September 24, 2016. The individual who committed the two robberies wore a Jack Skellington¹ mask and brandished a .380 caliber semi-automatic handgun. Witnesses to both robberies described the suspect as difficult to understand and speculated that he either had an accent or had taken steps to modify his voice. The suspect stole $585 during the first robbery and $899 during the second robbery. After the first robbery, law enforcement used a canine to track the suspect. The canine tracked the suspect to an area northwest of the casino in the Babcock Vista trailer court.

¶4 After the second robbery, law enforcement learned of informant Joshua Martz, who was arrested on unrelated charges in the days between the two robberies. Martz identified Burchill as the suspect of the robberies and said that he unknowingly became the getaway driver after the first robbery when he picked up Burchill in the trailer court where the canine lost the trail. Martz reported that Burchill had nearly $600 in cash and a Jack Skellington mask. Martz told law enforcement that Burchill likely would store the mask at Burchill’s residence or in a storage tote in the bed of his truck. The information regarding the canine track and amount of money stolen from the casino had not been publicly released, indicating that Martz could not have known the information unless he was involved.

¶5 Law enforcement later located the mask in a locked tote in the bed of Burchill’s truck. A .380 caliber semi-automatic handgun hidden inside a rubber glove also was found within the middle paneling of Burchill’s truck. DNA recovered from swabs taken from the mask and the glove matched Burchill’s DNA. Drug paraphernalia seized from Burchill’s truck tested positive for methamphetamine.

¶6 At trial, Lindsey Lang testified that she met Burchill a few weeks prior to the first robbery. Lang said that Burchill was in a "desperate place" in the weeks before the first robbery and that he had posed to her a "hypothetical-type" question about committing a robbery with him. Lang stated that Burchill asked her how she would feel about "being the driver."

¶7 Martz testified that Burchill arranged for the two to meet in the trailer court behind the mall the night of the first robbery. According to Martz, Burchill came up to Martz’s vehicle with "a mask rolled up in one hand and money in his left hand." Martz stated that Burchill provided him with approximately $500 to go buy methamphetamine for the two of them. Martz also testified that he had waited in the truck while Burchill went into Bob Wards and purchased "3800" ammunition not long before the first robbery, and that Burchill sometimes would talk in a bizarre accent when he was high.

¶8 Burchill denied at trial that he committed the robberies. He testified that he was at the Bozeman Ponds until approximately 6:00 p.m. on the night of the first robbery. He then went to a different casino in the mall for about an hour and a half, after which he drove to Livingston to meet up with a man named David. Burchill said that he also was looking for Martz in Livingston because Martz owed him $800, but he was unable to find him. Burchill claimed he spent the evening before the second robbery in Livingston at the house of a man named Donovan and that he loaned Martz his truck that evening because Martz said that he would go get the money he owed Burchill. Burchill stated his truck was returned the next morning and that he was at home on the night of the second robbery.

¶9 Burchill stated on cross-examination, "I was set up, with a mask that I had, by Josh Martz." Burchill elaborated that he did not believe that Martz, or anyone he knew, took his mask and used it in the commission of the robbery. Rather, he asserted that Martz saw the robbery on the news, noticed that Burchill had the same mask, placed the mask inside the tote in Burchill’s truck, and then placed locks on Burchill’s tote to prevent Burchill from opening the tote. When the prosecutor inquired further about Martz’s motive to frame Burchill, Burchill stated, "[Martz] not only wanted to get rid of me, he wanted to steal everything I had, apparently. I don’t know."

¶10 The prosecutor asked Burchill about the ammunition found in his tote. Burchill denied going to Bob Wards and purchasing the ammunition. The prosecutor asked if Martz was "being untruthful" about the ammunition purchase, to which Burchill replied, "Yes." The prosecutor further inquired about the differences between Martz’s and Burchill’s testimony:

Prosecutor: Did you get in [Martz’s] vehicle with a mask?

Burchill: No, sir.

Prosecutor: Did he purchase any drugs for you that night?

Burchill: No, sir.

Prosecutor: Did you go with him to Donovan’s, in Livingston, that night?

Burchill: No, sir.

Prosecutor: Did he rip you off for drugs?

Burchill: No, sir.

Prosecutor: So all of that that Mr. Martz testified to was a complete fabrication?

Burchill: Yes, sir.

...

Prosecutor: Would you ever talk in weird accents?

Burchill: No.

Prosecutor: So that was also a lie from Mr. Martz?

Burchill: I would say 98 percent of what Josh Martz said was a lie, yes.

¶11 Burchill also denied speaking with Lang about committing a robbery. The following exchange occurred:

Prosecutor: But it is true that you talked to [Lang] about committing a robbery, correct?

Burchill: No.

Prosecutor: And it’s also—so it’s not correct then either that you asked her to be the getaway driver?

Burchill: No.

Prosecutor: So that was a complete fabrication from Lindsey Lang?

Burchill’s counsel objected to the last question on the grounds that it misstated Lang’s testimony. The Court sustained the objection. The prosecutor asked Burchill if he heard Lang’s testimony regarding Burchill posing a hypothetical to her about committing the robberies.

Burchill responded that he believed that Lang was referencing something else. The prosecutor then asked Burchill to verify if he had "ever talked to Ms. Lang about anything regarding a robbery or being a getaway driver?" Burchill responded, "I’ve never talked to anybody about robbery …." The prosecutor finished his questioning regarding Lang by asking Burchill if there was "any motive that you can think of that would make [Lang] come in here and lie about those things." Burchill responded, "I don’t think that she necessarily lied."

¶12 The prosecutor also questioned Burchill about his testimony that he gave Martz permission to tell his probation officer that he worked for Burchill. The prosecutor asked, "So you told Martz that he could use you, basically as a lie to his probation officer because he was not working for you at the time, correct?" Burchill replied, "Well, technically, it’s [a] little bit of a gray area. I wouldn’t say it’s, necessarily, a straight up lie because he was transitioning to potentially work with me …." When the prosecutor asked whether it was a "combination of a lie and a half truth," the court sustained defense counsel’s objection on the ground that it was argumentative.

¶13 The prosecutor asked Burchill about his claim that someone had planted items in one of the totes that was...