No. DA 06-0083
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 39N
CITY OF KALISPELL
Plaintiff and Respondent,
v.
DAVID EARL BURGERT, JR.,
Defendant and Appellant
APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DC-02-253A
Honorable Ted O. Lympus, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Mark R. Sullivan, Attorney at Law, Kalispell, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; C. Mark Fowler,
Assistant Attorney General, Helena, Montana
Charles Harball, Kalispell City Attorney, Kalispell, Montana
Submitted on Briefs: January 10, 2007
Decided: February 13, 2007
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent. It shall be filed as a
public document with the Clerk of the Supreme Court and its case title, Supreme Court 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 A jury seated in the Kalispell Municipal Court found David Earl Burgert, Jr., guilty of
the misdemeanor offenses of resisting arrest and obstructing a police officer. Burgert
appealed to the Eleventh Judicial District Court, Flathead County, which affirmed his
conviction in June of 2004. Following a series of procedural missteps and diversions, blame
for which there is plenty to go around, Burgert now appeals from the District Court’s order
entered in January of 2006 denying his request for reconsideration of its order entered in June
of 2004. We affirm.
¶3 Burgert first argues that the District Court erred in declining to overturn the Municipal
Court’s denial of his pretrial motion to dismiss based on lack of evidence to establish
probable cause that he acted knowingly or purposely to impede a police officer. We review
the denial of a motion to dismiss for lack of probable cause for abuse of discretion. State v.
Elliott, 2002 MT 26, ¶ 27,
308 Mont. 227, ¶ 27,
43 P.3d 279, ¶ 27 (citation omitted). Here,
the City of Kalispell presented considerable evidence to the Municipal Court, in the form of
several police officers’ testimony, to show that Burgert “knowingly” obstructed a police
officer and resisted arrest. We hold that the Municipal Court did not abuse its discretion in
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denying Burgert’s pretrial motion to dismiss and the District Court did not err in affirming
that determination.
¶4 Burgert next argues the District Court erred in declining to overturn the Municipal
Court’s denial of his motion for a directed verdict. We review a trial court's decision to deny
a criminal defendant's motion for a directed verdict for abuse of discretion. State v. Brady,
2000 MT 282, ¶ 20,
302 Mont. 174, ¶ 20,
13 P.3d 941, ¶ 20 (citations omitted). Again, the
City of Kalispell presented considerable evidence at trial to support the charges that Burgert
resisted arrest and obstructed a police officer. We hold that the Municipal Court did not
abuse its discretion in denying Burgert’s motion for a directed verdict, and the District Court
did not err in declining to overturn the Municipal Court’s determination.
¶5 As his third issue, Burgert claims the District Court erred “in its failure to inform
Burgert of the potential pitfalls of proceeding pro se.” In the case upon which Burgert relies,
State v. Insua,
2004 MT 14,
319 Mont. 254,
84 P.3d 11, the defendant waived his right to
counsel and conducted his own self-representation, with available standby counsel. In this
case, in contrast, Burgert simply began filing documents pro se in addition to being
represented by counsel, and the District Court allowed him to do so. Burgert never waived
his right to counsel as did the defendant in Insua, and his counsel never withdrew or
proceeded on standby status. Burgert has failed to establish error in this regard.
¶6 Finally, Burgert argues that Montana’s statutes defining the crimes of resisting arrest
and obstructing a peace officer are unconstitutional. He claims both statutes “encourage[]
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police misconduct.” Burgert cites only his counsel’s personal anecdotes as authority to
support this contention.
¶7 Burgert did not raise these claims before the Municipal Court or the District Court.
As a general rule, an appellant is limited to issues that were properly preserved in the trial
court. See State v. Lafley, 1998 MT 21, ¶ 26,
287 Mont. 276, ¶ 26,
954 P.2d 1112, ¶ 26
(citations omitted). We decline to address this matter raised for the first time on appeal to
this Court.
¶8 Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
/S/ JIM RICE
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