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Dale J. Burke, Petitioner and Appellant v. State of North Dakota

August 16, 2012

DALE J. BURKE, PETITIONER AND APPELLANT
v.
STATE OF NORTH DAKOTA, RESPONDENT AND APPELLEE



Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven L. Marquart, Judge.

The opinion of the court was delivered by: Maring, Justice.

N.D. Supreme Court

Burke v. State,

2012 ND 169

This opinion is subject to petition for rehearing. [Go to Documents]

[Download as WordPerfect] Concurrence filed.

AFFIRMED.

Opinion of the Court by Maring, Justice.

[¶1] Dale Burke appeals from a judgment dismissing his application for post-conviction relief after the district court denied his motion for DNA testing. We hold the district court did not err in denying Burke's request for DNA testing under N.D.C.C. § 29-32.1-15 and the court did not err in summarily denying his post-conviction relief application. We affirm.

I

[¶2] In 1998, Burke was convicted of murdering Edmund Huotari and Larry Nelson and committing arson to conceal the bodies. Burke appealed from the criminal judgment entered upon a jury verdict finding him guilty of two counts of murder and one count of arson.

[¶3] In State v. Burke, 2000 ND 25, ¶¶ 1, 40, 606 N.W.2d 108, this Court affirmed the criminal convictions, holding there was sufficient evidence to support the convictions, the admission of DNA evidence was not obvious error, Burke was not denied a fair trial because of prosecutorial misconduct, and Burke had failed to establish ineffective assistance of counsel. In Burke, we discussed relevant facts supporting the jury's convictions:

At approximately 9:45 p.m. on April 27, 1997, Fargo firefighters responded to a report of a fire at the home of Larry Nelson and Edmund Huotari. The firefighters found the home in flames and, later, the bodies of Nelson and Huotari inside. A medical examiner concluded they both died from being repeatedly struck in the head with a blunt object.

Fargo police suspected Burke killed Nelson and Huotari and set the home on fire to conceal the killings. On April 29, 1997, an Information was filed charging Burke with two counts of murder and one count of arson. The next day, Burke was arrested in Seward, Nebraska at the residence of Jan Thomas, Burke's former girlfriend. Thomas gave some of Burke's clothing, including a pair of blood-stained blue jeans, to Officer Hoag, one of the arresting officers. . . . . A jury trial began on July 7, 1998. The State presented the pair of blue jeans and an expert who performed polymerase chain reaction [PCR] DNA testing on them. The expert testified that statistically 1 in 17,000 white persons would have DNA that matched the DNA in the blood on the jeans and Huotari's DNA matched the DNA in the blood on the jeans.

Gary Bockness testified he and Burke had a conversation a few days before the killings. Bockness asserted Burke said he planned to kill Huotari and blame Bockness. Bockness also testified he himself had an ongoing feud with Huotari. Bockness conceded that during his deposition he had stated Burke said he planned to kill not only Huotari but Nelson as well.

Jeneen Dahl, a gas station attendant, testified regarding two gas purchases by Burke on the night of the crimes. She indicated Burke purchased $1.85 in gas at about 7:30 or ...


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