E. Bullman v. State

12/05/2017
DA 16-0582
Case Number: DA 16-0582
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 301N
ERIN CLYDE BULLMAN,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DV-10-730(C)
Honorable Heidi J. Ulbricht, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Erin Clyde Bullman, Self-Represented, Shelby, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant
Attorney General, Helena, Montana
Edward J. Corrigan, Flathead County Attorney, David W. Randall, Deputy
County Attorney, Kalispell, Montana
Submitted on Briefs: September 27, 2017
Decided: December 5, 2017
Filed:
__________________________________________
Clerk
Justice Michael E Wheat delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Erin Clyde Bullman (Bullman) appeals from a September 6, 2016 District Court
order denying his petition for postconviction relief in which Bullman asserted ineffective
assistance of trial counsel (IAC), prosecutorial misconduct, failure of the prosecutor to
disclose material evidence, inadmissibility of other acts evidence, and improper exclusion
of his expert. We affirm.
¶3 In December 2006, the Honorable Katherine Curtis presided over Bullman’s jury
trial on the charges of incest and sexual assault against his stepdaughter, J.T. After the
prosecution rested, Bullman moved for a directed verdict on the incest charge asserting
the State failed to prove Bullman had been married to J.T.’s mother. The District Court
denied the motion. Bullman then argued Judge Curtis should not have decided the
directed verdict issue, because Judge Curtis had previously issued the default judgment
dissolving Bullman’s marriage to J.T.’s mother. Judge Curtis rejected the argument,
finding that the defense had not previously objected to her ruling on the directed verdict
and that substantial evidence had been admitted proving the marriage existed.
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¶4 Upon his conviction, Bullman appealed. He asserted insufficiency of the evidence
establishing common law marriage; improper jury instructions; failure of the court to
instruct the jury to disregard portions of testimony; and errors in sentencing, including
parole eligibility, conditions for parole, whether Bullman was sentenced more harshly
because he did not admit guilt, and restitution. The appeal did not raise any issue
concerning Judge Curtis’ alleged conflict of interest. In State v. Bullman, 2009 MT 37,
¶¶ 17-23, 349 Mont. 228, 203 P.3d 768 (Bullman I), we affirmed Bullman’s conviction,
but reversed to correct improper sentencing conditions on parole. Bullman I, ¶ 39.
¶5 On May 19, 2010, Bullman filed a petition for postconviction relief (PCR)
alleging (IAC), prosecutorial misconduct, failure of the prosecutor to disclose material
evidence, inadmissibility of other acts evidence, and improper exclusion of his expert.
After the State responded, the District Court granted Bullman several extensions to file
his reply. On March 30, 2011, the day before his reply was due, Bullman sought leave to
amend his petition. The District Court granted the motion to amend, but specifically
prohibited Bullman from asserting new claims. Bullman petitioned this Court for
supervisory control, alleging the District Court erred when it improperly barred him from
raising new claims in his amended PCR petition. We denied that petition in Bullman v.
Curtis, No. OP 11-0268, 362 Mont. 543, 272 P.3d 124 (table) (August 9, 2011) (Bullman
II).
¶6 Bullman then filed his amended petition on October 22, 2012. In direct violation
of the District Court order, Bullman included new arguments in his amended petition.
Unbeknownst to Bullman, Judge Robert Allison had assumed the bench replacing Judge
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Curtis. Judge Allison had previously represented J.T.’s mother in the divorce from
Bullman. On April 4, 2013, the District Court denied his amended petition. Bullman
appealed.
¶7 On appeal, Bullman asserted the District Court erred by denying Bullman the right
to raise additional claims in his amended PCR petition, Judge Curtis had an
impermissible conflict of interest, Judge Allison had an impermissible conflict of interest,
IAC of trial counsel, and prosecutorial misconduct. In Bullman v. State, 2014 MT 78,
374 Mont. 323, 321 P.3d 121 (Bullman III), we determined that the District Court did not
abuse its discretion when it precluded Bullman from asserting new claims in his amended
PCR petition and that Bullman was prohibited from raising argument regarding Judge
Curtis’s conflict of interest because he failed to raise the issue on direct appeal; yet we
agreed that Judge Allison was disqualified and we remanded Bullman’s amended PCR
petition for reconsideration by a different judge. We declined to reach the merits of
Bullman’s IAC and prosecutorial misconduct claims in his PCR petition.
¶8 On remand, the Honorable Heidi J. Ulbricht considered Bullman’s petition for
postconviction relief. On September 6, 2016, the District Court denied his petition,
finding it consisted largely of opinion and conclusory allegations. Specifically, the
District Court found that Bullman’s trial counsel: reasonably investigated legitimate
avenues for a meritorious defense that were available to him at the time; that the defense
was prohibited from cross-examining the victim concerning her prior sexual conduct
unless a statutory exception applied, § 45-5-511(2), MCA, which the court determined
did not exist in this case; that M. R. Evid. 608 prevented the defense from providing
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character evidence or offering extrinsic evidence of the victim’s conduct to attack her
credibility; that an expert witness may offer opinions based on hypothetical questions and
that expert testimony explaining the complexities of child sexual abuse for jurors to
understand and evaluate a child victim’s testimony is admissible; that sufficient evidence
existed for the jury to find Bullman and J.T.’s mother were married and that no prejudice
had been established; and that evidence of Bullman’s grooming and sexual misconduct
was not prohibited by M. R. Evid. 403, and a full evidentiary hearing was not necessary
to determine that the evidence was not so prejudicial in comparison with its probative
value. Bullman appeals.
¶9 We review a district court’s denial of a petition for postconviction relief to
determine whether the court’s findings of fact are clearly erroneous and whether its
conclusions of law are correct. Lacey v. State, 2017 MT 18, ¶ 13, 386 Mont. 204, 389
P.3d 233. We review discretionary rulings in postconviction relief proceedings,
including rulings related to whether to hold an evidentiary hearing, for an abuse of
discretion. Lacey, ¶ 13. Claims of ineffective assistance of counsel present mixed issues
of law and fact which we review de novo. State v. Clary, 2012 MT 26, ¶ 12, 364 Mont.
53, 270 P.3d 88.
¶10 A petitioner seeking to reverse a district court’s denial of a petition for
postconviction relief bears a heavy burden. Whitlow v. State, 2008 MT 140, ¶ 21, 343
Mont. 90, 183 P.3d 861. A petition for postconviction relief must:
(a) identify the proceeding in which the petitioner was convicted,
give the date of the rendition of the final judgment complained of, and
clearly set forth the alleged violation or violations;
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(b) identify any previous proceedings that the petitioner may have
taken to secure relief from the conviction; and
(c) identify all facts supporting the grounds for relief set forth in the
petition and have attached affidavits, records, or other evidence establishing
the existence of those facts.
Section 46-21-104(1), MCA. We have explained that “unlike civil complaints, the
postconviction statutes are demanding in their pleading requirements.” Kelly v. State,
2013 MT 21, ¶ 9, 368 Mont. 309, 300 P.3d 120.
¶11 On appeal of the denial of his petition for postconviction relief, Bullman claims
the court violated his confrontation clause and due process rights, the prosecution
committed misconduct, the District Court erred in admitting evidence of prior acts, and
his trial counsel was ineffective.
¶12 Grounds for relief in a petition for postconviction relief must be raised in the
original or amended original petition, unless leave is granted by the court. Section
46-21-105(1)(a), MCA. While a petition may be amended, in this case the District Court
precluded Bullman from raising new or additional grounds for relief in his amended
petition, which we affirmed in Bullman III. Moreover, this Court will not consider new
issues raised for the first time on appeal. Ellenburg v. Chase, 2004 MT 66, ¶ 14, 320
Mont. 315, 87 P.3d 473. Bullman failed to assert claims regarding his confrontation
clause or due process rights in his original petition. In violation of the District Court
order, Bullman included these claims in his amended petition. Therefore, we decline to
address these claims.
¶13 On appeal, Bullman asserts misconduct by the prosecution. Bullman asserts the
prosecution interfered with his cross-examination of the State witnesses and that the
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prosecutor colluded with the defense to educate the State’s expert. Claims that were or
could have been reasonably raised on direct appeal may not be raised, considered, or
decided in a petition for postconviction relief. Section 46-21-105(2), MCA. Claims of
prosecutorial misconduct not raised on direct appeal are procedurally barred in
postconviction. In re Martin, 240 Mont. 419, 421, 787 P.2d 746, 748 (1989). Bullman
raised his collusion argument for the first time in his amended petition. As Bullman was
precluded from raising new arguments in his amended petition, we decline to address his
argument. Bullman’s claims of prosecutorial misconduct are barred.
¶14 Bullman asserts the District Court erred in admitting evidence of prior acts.
Bullman respectfully requests we refer to his argument in his petition for postconviction
relief. Bullman makes no argument on appeal why or how the District Court erred. The
appellate rules unquestionably preclude parties from incorporating any argument into
appellate briefs by mere reference; appellate arguments must be contained within the
appellate brief. State v. Ferguson, 2005 MT 343, ¶ 41, 330 Mont. 103, 126 P.3d 463.
Bullman has failed to argue substantively that the District Court erred in allowing
evidence of prior acts; therefore, we decline to address the claim.
¶15 Finally, Bullman argues his trial counsel was ineffective. This Court evaluates
claims of ineffective assistance of counsel under the test established in Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984); Whitlow, ¶ 10. First, the defendant
must show that his attorney’s performance was deficient by demonstrating that it fell
below an objective standard of reasonableness. Whitlow, ¶ 14. There is a strong
presumption that the attorney’s performance fell within the wide range of reasonable
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professional assistance, because there are “countless ways to provide reasonable
assistance in any given case.” Whitlow, ¶ 15; Strickland, 466 U.S. at 689, 104 S. Ct. at
2065.
¶16 Second, the defendant must show that his attorney’s deficient performance
prejudiced the defense. Whitlow, ¶ 10. The petition must show a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Because a defendant must
prove both prongs, an insufficient showing under one prong eliminates the need to
address the other. Sartain v. State, 2012 MT 164, ¶ 11, 365 Mont. 483, 285 P.3d 407.
¶17 Bullman asserts his trial counsel was ineffective because counsel: failed to obtain
school, counseling, and medical records; colluded with the prosecution; failed to be
familiar with the evidence to sufficiently present an alibi defense; failed to adequately
investigate the case by failing to contact, interview, and subpoena witnesses; failed to
effectively cross-examine, impeach, and discredit the State’s expert witness Wendy
Dutton, J.T.’s school counselor Joanna Lyon, and J.T.; and allowed Dutton’s testimony to
interrupt J.T.’s cross-examination.
¶18 A party alleging IAC on postconviction must come forward with specific factual
allegations that establish by a preponderance of the evidence that the party is entitled to
relief. Section 46-21-104, MCA; Ellenburg, ¶ 12. A petitioner seeking to reverse a
district court’s denial of a petition for postconviction relief based on a claim of
ineffective assistance of counsel bears a heavy burden. Whitlow, ¶ 21. Bullman has not
established the first prong of the Strickland test, that trial counsel’s performance was
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deficient or below an objective standard of reasonableness. Trial counsel’s affidavit
states he and his team investigated the witnesses whose names Bullman provided.
However, trial counsel determined that, even if true, the information from these witnesses
was likely inadmissible, was irrelevant, or would have been strategically unwise to
introduce at trial. Trial counsel cannot be deemed to be ineffective for failing to attempt
to introduce evidence he knew was inadmissible. M. R. Evid. 608; Deschon v. State,
2008 MT 380, ¶¶ 23-26, 347 Mont. 30, 197 P.3d 476. Trial counsel challenged the State
expert’s research and presented another expert witness to refute her conclusions. Trial
counsel successfully challenged some of J.T.’s school counselor’s assertions on cross.
Bullman has failed to overcome the strong presumption that counsel rendered adequate
assistance and made all significant decisions in the exercise of reasonable professional
judgment. Lacey, ¶ 24. On de novo review, we conclude trial counsel’s actions were
reasonable; therefore, consideration of the second Strickland prong is unnecessary.
¶19 We decline to address Bullman’s other IAC arguments. Grounds for relief in a
petition for postconviction relief must be raised in the original or amended original
petition, unless leave is granted by the court. Section 46-21-105(1)(a), MCA. This Court
will not consider an issue raised for the first time on appeal. Ellenburg, ¶ 15. Bullman
did not allege in his original petition that counsel failed to obtain school, counseling, and
medical records or that counsel colluded with the prosecution. For the first time on
appeal, Bullman claims counsel failed to present an alibi defense. We decline to address
these IAC claims.
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¶20 Bullman is procedurally barred from raising arguments related to the alleged
violations of his confrontation clause and due process rights. Bullman failed to raise
prosecutorial misconduct claims in his direct appeal and is now barred from raising them
on appeal. Bullman failed to argue the alleged prior acts evidentiary issue on appeal and
therefore we decline to address it. Bullman has failed to overcome the strong
presumption that trial counsel’s performance fell within the wide range of reasonable
professional assistance.
¶21 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. In the opinion
of the Court, the case presents a question controlled by settled law or by the clear
application of applicable standards of review.
¶22 Affirmed.
/S/ MICHAEL E WHEAT
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ JIM RICE
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