MOUNT VERNON – Former Madison County chief judge Ann Callis improperly excluded four defense witnesses from the sexual abuse trial of Michael Burgund, Fifth District appellate judges ruled on Nov. 22.
“These erroneous evidentiary rulings denied the defendant his constitutional right to a fair trial,” Justice Bruce Stewart wrote.
Burgund faced life in prison.
His witnesses would have backed his theory that former wife Melissa Burgund and her mother, Mary Buttry, extracted a false confession like a pair of rogue cops.
On April 4, 2011, Michael walked into the Alton police station and said he molested his two very young daughters.
Police recorded a statement, and grand jurors indicted Burgund on five counts of predatory criminal sexual assault of a child.
Prior to trial, Burgund disclosed psychologist Daniel Cuneo as an expert witness and submitted a letter from Cuneo outlining the testimony he would give.
Cuneo wrote that psychological difficulties would make Michael highly suggestible and easily led, especially in matters with religious or sexual overtones.
“His thinking is very obsessive and rigid,” Cuneo wrote.
The state moved to bar Cuneo, and Callis granted the motion without explanation.
Michael’s older daughter, five years old, testified at his trial.
Her testimony was vague and inconclusive, according to Stewart, but her mother and her grandmother provided abundant details.
Mary Buttry testified that the child told her, “I will never see my family again.”
Buttry said she asked the child if somebody said that to her.
“She put her head down and said daddy,” Buttry said.
She said she asked the child to show where she had been touched.
The child touched numerous areas, and her head and her shoulders, “and then she touched her genital area,” Buttry said.
She said she didn’t tell Melissa because she didn’t want to jump to conclusions.
Weeks later, Buttry said, the child said nobody could ever touch her.
Buttry said she asked if something happened, and the child said, “Daddy is very sorry and he’ll never do it again.”
She said the child made the statement again a few weeks later, and she again asked if something happened.
“She said don’t tell mommy,” Buttry said. “Mommy is going to be so mad.”
Buttry said she was present when Melissa confronted Michael.
According to Buttry, he kept saying, “If she said I did I must have, but I just don’t remember or something. Maybe if she said I did I must have but I don’t remember.”
Buttry said Melissa and Michael went upstairs, and she left him alone.
She said he came down, confessed to her, and said, “I would have just said the whole thing but I knew I’d go to jail.”
Melissa Burgund took the stand and testified that she and Michael often fought.
She said she blackened his eyes two or three times, and head butted him twice. She said she had an affair and he became aware of it.
In counseling, Michael said that while feeding the older daughter as an infant, he “often had images of putting the bottle or her binky in her private areas,” Melissa said.
Melissa said she didn’t call police because Michael assured her that, “they were simply thoughts and that he would never act on them.”
She said Michael stayed at Buttry’s house after telling Buttry what he had done. She said he called her and said he had been touching the girls at every chance.
She said he called again and said that after thinking about an episode of 48 Hours Mystery, he no longer believed he abused his daughters.
The state rested, and prosecutors moved to preclude Michael from presenting Ed Huebner and David Van Heusen as witnesses.
They argued it was improper impeachment and it involved collateral matters.
Callis excused the jury, and Huebner testified that Melissa told him she had supernatural power of discernment.
Huebner said she told him she felt a hand on her shoulder at a religious service and immediately felt sexual immorality within that person.
He said she turned and saw Van Heusen, her fiance.
Van Heusen testified that she accused him of having problems with lust.
He said she didn’t want him looking at billboards because she believed that if he saw another woman, his sexual thoughts would hinder their relationship.
He said the relationship ended after she punched him in the chest, neck and mouth.
Callis excluded the testimony of both men as impermissible hearsay.
She also excluded Buttry’s former husband, Dana McKee, who would have testified that Melissa falsely told people he sexually abused her and went to jail for it.
Michael claimed she made the statement to gain sympathy and acceptance in her church community, which frowned on divorce except in cases of adultery.
Callis said evidence on that would require a mini trial.
Michael Burgund took the stand and swore he didn’t abuse his children.
He said that Melissa once told him he made a bad decision on his brother’s advice when she was the one who heard from God.
“There was parts of me that says maybe she’s legit and maybe she’s not,” Michael said.
He said she resented him going on a mission trip and set a rule that the relationship would end if he left on trips.
He said she accused him of running around with other women and accused him of lusting when lotion commercials were on television.
He testified that she popped him when he couldn’t say he never had an impure thought about another woman. She wouldn’t allow him around her friends because she was convinced he lusted after them.
He said he sustained black eyes, bloody lips and noses, a concussion, and a gash on the forehead from a head butt. Further, she slashed across him with a knife, cutting his shirt and pants.
He said he didn’t call police because he loved her.
“She said I was so sexually perverted that I was doing things or had done things in the past that I had literally blacked out, meaning I didn’t remember any more because they were so graphic or disgusting,” he said.
When he told Buttry he couldn’t remember anything, she said his denial was killing his children and his wife, he said.
“I really believed that what they were saying to me was truer than what I thought I knew,” he said.
“You get to the point where you just can’t doubt it any more and that you might not know how to explain everything, but you just come to the place where okay, this is true and what I believed all along is really the lie.”
He said that after his arrest, it took three weeks to a month to realize that everything he confessed was wrong.
Jurors found Michael guilty, and Callis sentenced him for his natural life.
The sentence didn’t stick, for Fifth District judges ruled that jurors needed to hear from all the witnesses Callis excluded, starting with Cuneo.
“A person confessing to a crime based on a false memory is behavior that is contrary to the average person’s common sense assumptions and is not a matter of common knowledge,” Stewart wrote.
“We believe that a rational juror would not readily understand why an innocent defendant might falsely believe he had committed a crime.
“Expert testimony related to the defendant’s psychological makeup as it relates to the environment leading up to his confession might aid the trier of fact in understanding the defense and in evaluating the credibility of his confession.”
Stewart wrote that the testimony of Huebner and Van Heusen was not hearsay, and that Melissa’s relationship with Van Heusen gave credibility to her otherwise bizarre relationship with Michael.
He wrote that Michael was entitled to present McKee’s evidence of the potential interest, bias, or motive of Melissa and her mother.
He wrote that Melissa and her mother described the abuse that the child allegedly reported in much greater detail than what the child testified to at trial.
Further, he wrote that evidence of false accusations of sexual abuse in the past was relevant in establishing that Melissa may have believed she had something to personally gain from her testimony against Michael.
“A criminal defendant is given wide latitude to establish a witness’s bias, prejudice, or motive to testify falsely, particularly in the context of a criminal trial where the state’s evidence depends on the witness’s testimony,” Stewart wrote.
There were no third party witnesses, he wrote, and no physical evidence linking Michael to the alleged abuse.
“Melissa’s credibility, or lack thereof, lies at the heart of both the prosecution and the defense,” he wrote.
Justices Melissa Chapman and Judy Cates concurred.
Curtis Dawson, of Lucco Brown in Edwardsville, represented Michael Burgund.
Madison County state’s attorney Tom Gibbons represented the state, in association with the appellate prosecutor’s office in Mount Vernon.