Zacek v. Brewer

• Decision Date: 14 April 1976
• Docket Number: No. 58039,58039
• Citation: 241 N.W.2d 41
• Parties: Richard Steven ZACEK, Appellant, v. Lou V. BREWER, Warden, Iowa State Penitentiary, State of Iowa, County of Linn, Appellees.
• Court: Iowa Supreme Court

Page 41

241 N.W.2d 41

Richard Steven ZACEK, Appellant, v. Lou V. BREWER, Warden, Iowa State Penitentiary, State of Iowa, County of Linn, Appellees.

No. 58039.

Supreme Court of Iowa.

April 14, 1976.

Robert D. Bartels and Mark E. Schantz, Iowa City, for appellant.

Richard C. Turner, Atty. Gen., Earl W. Roberts, Asst. Atty. Gen., Eugene J. Kopecky, County Atty., for appellees.

Heard before MOORE, C.J., and MASON, RAWLINGS, UHLENHOPP and HARRIS, JJ.

MASON, Justice.

This is a postconviction proceeding instituted March 12, 1974, under chapter 663A, The Code, in which the appellant, Richard Steven Zacek, challenges his conviction of murder based on his tendered plea of guilty in the Linn district court April 24, 1970. The trial court at the plea stage in that proceeding personally interrogated defendant following the guideline standards set out in State v. Sisco, 169 N.W.2d 542, 547--548 (Iowa 1969), and, after determining defendant's plea was voluntarily and intelligently tendered and that a factual basis existed therefor, accepted the plea.

A hearing to determine the degree of guilt was held later and defendant was found guilty of second degree murder and sentenced to a term of 75 years May 29 1970. Upon defendant's appeal from judgment following his conviction in that matter this court affirmed the conviction. 190 N.W.2d 415 (Iowa 1971).

A rather extensive factual recitation is necessary to achieve adequate discussion of the issues.

The events culminating in this appeal commenced October 20, 1969, with the discovery of the body of 17-year-old Jean Halverson in the Shaver-Mohawk Park area of Cedar Rapids. Miss Halverson had been shot to death the preceding day. An extensive homicide investigation, involving some 4300 man-hours, followed. Assistant Police Chief Kenneth L. Vanous and Captain of Detectives Wallace F. Johnson were in charge of the operation. Among others who worked in the investigation were Detectives Kenneth Millsap, C. R. Jelinek and James Steinbeck.

Police search of the scene of the crime, October 20 and 21, revealed, among other things, empty .22 caliber Federal brand shell casings, 'nearby caches of obscene magazines,' a set of car keys and a tab from a Polaroid camera. These materials as well as autopsy evidence were sent to the Federal Bureau of Investigation. An early lead in the case was occasioned by two telephone calls from the FBI on October 28 and 31, revealing that 'the suspect in all probability was using a Browning .22-caliber semi-automatic rifle.' There was also an 'apparent flaw' in the weapon's firing pin leaving a distinctive mark on the shell casings.

It was then discovered from the records of Cedar Rapids gun dealers some 59 such rifles had been sold in the area since 1959. The test firing of these weapons with Federal brand ammunition indicated none of the shell casings matched those from the murder weapon. Another apparent investigatory dead-end was occasioned by the fruitless questioning of 15 'prime suspects,' each of whom passed polygraph tests.

November 1 two duck hunters in the Swan Lake area near Coralville found part of a camera and turned it over to Cedar Rapids police. A subsequent police search of the scene yielded parts of a Caravel watch and two green 'power pistons' from shotgun shells. The camera and watch, both of which had been shot apart, had belonged to the murder victim.

The discovery of the power pistons led the investigation somewhat in the direction of Zacek. November 4--8 saw the collection of a considerable amount of general evidence pointing to Zacek. The operator of Martin's Shooters Supply told an officer this type of green power piston was unusual in that it was designed for use in paper casings trap loads. At the time, most casings were made of plastic which utilized a specific power piston which was white. More significant, the officer was informed Zacek reloaded shotgun shells and that 'he might be capable of a crime such as the Halverson murder.'

A report was received from the Albuquerque, New Mexico, police department Zacek had been arrested for 'disorderly conduct by prowling and vagrancy' back in 1963. The person complaining was an attractive young woman.

Further investigation entailed the interview of several gun dealers who had attended a gun show at Hawkeye Downs October 19, 1969 (the day of the murder). While none recalled seeing a Browning .22 caliber rifle that fit the description of the suspect's weapon, one dealer volunteered Zacek's name as a suspect. This man had seen Zacek at the gun show and characterized his behavior as 'quite odd.' He also stated Zacek 'lived near the Mohawk Park area, had a great interest in girly magazines, * * * was a gun enthusiast and hunter and would have been familiar with the Coralville area.' Members of the Otter Creek Gun Club, a club to which Zacek had been a member prior to his conviction for breaking and entering, corroborated the fact Zacek entertained these interests.

A member of the Peter Kohl family informed the police Zacek had, on October 19, returned to the Kohl residence 'covered with mud and carrying an unidentified type of camera. Zacek and Peter Kohl reportedly left the Kohl residence and went to the Gun Show, where Zacek sold an unidentified type of .22 rifle.'

The foregoing facts resulting from investigation were discovered, as stated, by November 8. And, until at least the following November 17, the investigation was apparently focused on another suspect.

November 19, 1969, saw the events leading to Zacek's arrest and eventual confession in the early morning hours of the next day. According to the 'Agreed Statement of Facts,' Detectives Millsap and Jelinek were, between 10:00 and 11:00 a.m., told to report to Assistant Chief Vanous, who ordered these two and Lieutenant William J. Byrne to enter the Zacek residence in search of helpful evidence in the Halverson case, even though Millsap and Jelinek protested that such an entry would be illegal. At approximately 1:00 p.m. Millsap and Jelinek entered the house while Byrne waited in the squad car. Millsap found and seized a plastic power piston. No one contends this entry into the Zacek home was legal.

At 8:55 p.m., police interviewed Peter A. Kohl, Zacek's brother-in-law. Kohl stated he saw Zacek the afternoon of October 19 'with the lower part of * * * (Zacek's) pantlegs soiled and carrying a camera.' Zacek informed his wife he had been 'over to the park' photographing friends riding motorcycles. Kohl also stated he and Zacek went to the Hawkeye Downs gun show, 'where Zacek decided to sell a .22 Browning automatic.'

Millsap and Jelinek interviewed Jon Phillip Kohl at 9:30 p.m., who stated Zacek and Peter Kohl had come to his gun booth at Hawkeye Downs October 19 and asked him to attempt selling a .22 Browning automatic rifle. Zacek left the gun at the booth but it was not sold. Two days later, Zacek picked up the rifle, claiming to have a buyer. Finally, several days after this, Zacek came to Kohl's house and sold the stock and forearm for $10.00. Zacek explained the purchaser had other wood he wished to install on the rifle.

At approximately 11:00 p.m. Detectives Millsap, Jelinek and James Steinbeck and Parole Officer Jack Harker went to the Zacek residence and asked Zacek to accompany them to the police station for questioning about a 'violation of his parole and another incident that had happened.' Zacek agreed, riding to the station house with Steinbeck and Jelinek. About this same time, Millsap informed Zacek's wife, Mary, the police had been to their residence earlier and had evidence leading them to 'strongly suspect' her husband of murdering Jean Halverson. Upon asking her if she knew anything, Mrs. Zacek stated that several weeks earlier, she had pulled their Mustang from mud in the Coralville lake area.

Meanwhile, Zacek, Steinbeck and Jelinek arrived at the police station. Assistant Chief Vanous ordered Steinbeck to question Zacek. After signing of the 'Waiver of Rights Form' and some discussion concerning the parole violation, inquiry commenced regarding Zacek's general activities the afternoon of the murder and his knowledge of the murder itself. After one hour, 20 minutes, Zacek said he would tell everything if he could see his wife. At 12:58 a.m., November 20, upon his wife's entry into the interrogation room, Zacek emotionally blurted out, 'I don't know why I killed that girl.' Following Mrs. Zacek's exit, Steinbeck reduced the confession to writing. It was signed by Zacek and by Steinbeck and Millsap as witnesses. Finally Zacek was booked for murder at 4:47 a.m., November 20.

It was between 11:30 p.m. and 12:00 midnight, November 19, that Vanous and Captain Johnson presented an application to Judge Harold Vietor for a search warrant to which they had sworn. It is not disputed this application contained false information to the effect police knowledge of the power pistons in Zacek's home came from a reliable informant. The information for the search warrant contains this statement:

'It is known also by information obtained from a confidential, reliable informant who is an upstanding, reputable, and creditable citizen of Cedar Rapids, that Richard Zacek has at his residence green power pistons * * *. The confidential, reliable informant who gave the information of seeing the green power pistons at the Zecek residence is a reliable informant who in the past has given officers information at least ten times in the past and this information has led to the arrest and conviction in the past on these cases. The informant does not have any record as far as is known by us and he is an upstanding, reputable, creditable citizen of Cedar Rapids, Iowa, Linn County.'

Clearly, either Millsap or Jelinek was the 'confidential informant.' Assistant Chief Vanous admitted this at the hearing July 29, 1974.

In any event, based upon this and other information, Judge Vietor issued the search warrant at 1:08...