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Bullman v. State

Supreme Court of Montana

December 5, 2017

ERIN CLYDE BULLMAN, Petitioner and Appellant,
v.
STATE OF MONTANA, Respondent and Appellee.

          Submitted on Briefs: September 27, 2017

         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

          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

          OPINION

          Michael E Justice

         ¶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.

         ¶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 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 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 ...


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