Mark v. Ault

• Decision Date: 16 August 2007
• Docket Number: No. 06-3513.,No. 06-3476.,06-3476.,06-3513.
• Citation: 498 F.3d 775
• Parties: Jerry MARK, Appellee/Cross-Appellant, v. John AULT, Appellant/Cross-Appellee, Warden Herb Maschner; Warden Ken Burger, Defendants.
• Court: U.S. Court of Appeals — Eighth Circuit

498 F.3d 775

Jerry MARK, Appellee/Cross-Appellant, v. John AULT, Appellant/Cross-Appellee, Warden Herb Maschner; Warden Ken Burger, Defendants.

No. 06-3476.

No. 06-3513.

United States Court of Appeals, Eighth Circuit.

Submitted June 11, 2007.

Filed August 16, 2007.

Rehearing and Rehearing En Banc Denied October 4, 2007.

Counsel who presented argument on behalf of the appellant/cross-appellee was AAG Robert P. Ewald, Des Moines, Iowa.

Counsel who presented argument on behalf of the appellee/cross-appellant was Paul Herschel Rosenberg, Des Moines, Iowa.

Before MELLOY, SMITH and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

An Iowa jury convicted Jerry Mark ("Mark") on four counts of first-degree murder in 1976. Following unsuccessful state appeals and postconviction proceedings, Mark filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. After denying Mark's motion to expand the record, the district court granted his petition for writ of habeas corpus. Warden John Ault appeals the district court's grant of Mark's petition, and Mark cross-appeals its denial of his motion to expand the record. For the reasons that follow, we affirm the district court's denial of Mark's motion to expand the record and reverse its grant of his petition for writ of habeas corpus.

I. BACKGROUND

On November 1, 1975, between 1:00 a.m. and 3:00 a.m., four persons were shot to death in their home at the Leslie Mark farm in Black Hawk County, Iowa. The four victims, all of whom were related to Mark, were Leslie Mark, Mark's brother, Leslie's wife Jorjean, their five-year-old daughter Julie and eighteen-month-old son Jeffery. Mark was charged with four counts of first-degree murder and tried in Iowa District Court for Woodbury County. After a jury trial in which Mark did not testify, he was convicted on all four counts and subsequently received a sentence of life imprisonment.

On direct appeal, the Iowa Supreme Court concluded that the jury could have determined that the following events occurred:

On October 3, 1975, [Mark] purchased a white helmet and a used 450cc Honda motorcycle somewhere near his residence in Berkeley, California. The motorcycle was dark brown in color, had a windshield and leg protectors and a luggage box on the back.

[Mark] also owned an Iowa registered 100cc Honda motorcycle. At sometime prior to November 1, 1975, he removed the Iowa license plate from his 100cc Honda and put the plate on the 450cc Honda.

On October 20 [Mark] purchased one box of fifty .38 caliber Winchester Western Long Colt bullets manufactured in 1975, using his Iowa driver's license for identification, from Ken's Sport Shop in Paso Robles, California. He had access to a pistol capable of firing these bullets.

On October 28 [Mark] bought a black Belstaff riding suit and a pair of motorcycle gloves from a Honda dealership in Berkeley, California.

Jerry Mark left his apartment in Berkeley on the morning of October 29 on his 450cc motorcycle. He traveled through Lovelock, Nevada, on Interstate 80. He proceeded on Interstate 80 through Cheyenne, Wyoming, to Chappell, Nebraska, arriving there on the morning of October 31. [Mark] continued east toward Iowa stopping at a Stuckeys Pecan Shoppe in Brady, Nebraska. He left Brady and traveled to Atlantic, Iowa, stopping at the Shamrock Cafe. Mark then proceeded to Newton, where he was observed at another Stuckeys Pecan Shoppe. After leaving Newton, [Mark] traveled north to Ackley, stopping at a Holiday gas station at approximately 8:00 p.m. on October 31. Ackley is only 36 miles from the Leslie Mark farm, which is located just west of Cedar Falls, Iowa, on Union Road.

Jerry Mark left Ackley after getting gas and later was at the Leslie Mark farm in the early morning hours of November 1. He cut the wires in the telephone terminal box located across the road from the Leslie Mark farmhouse. In the process he dropped two .38 caliber Long Colt bullets on the ground. He then walked up the driveway to the Mark residence. He walked past the house to a camper, in which Leslie occasionally slept after unloading corn into his storage bin. He returned to the house and using the key that normally hung by the back door, entered the house. At sometime he went to the basement, turned off the power and while there smoked two Marlboro cigarettes.

Jerry Mark proceeded to Leslie's and Jorjean's bedroom, located on the main floor of the house. He shot each of them, Leslie five times, four times in the head and once in the stomach, and Jorjean four times, twice in the head and once in the back, with another shot simply grazing her skin. The wounds were fatal to each.

[Mark] also made his way upstairs to Julie Mark's bedroom. He fatally shot Julie twice, once through the heart and once through her right eye. While in her room, he smoked another Marlboro cigarette.

[Mark] also went to Jeffery Mark's bedroom and shot the infant two times, once in the left chest and once above the right eye, killing him.

Jerry Mark left the farm and was next observed in Williams, Iowa, sixty-six miles west of the Mark farmhouse, at approximately 5:00 a.m. on November 1. At 7:30 a.m. he was seen in Stuart, Iowa, and between 3:00 and 4:00 p.m. he called his residence in California from Alda, Nebraska.

State v. Mark, 286 N.W.2d 396, 401 (Iowa 1979).¹ On direct appeal, Mark claimed that the State suppressed numerous pieces of material exculpatory evidence in violation of his due process rights. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The Iowa Supreme Court affirmed Mark's conviction and sentence. Mark, 286 N.W.2d at 414.

Receiving no relief on direct appeal, Mark filed a petition for postconviction relief ("PCR") in the Iowa District Court for Black Hawk County based on his claim that the State suppressed material exculpatory evidence in violation of his due process rights. The district court denied Mark's PCR petition, holding that "[a]fter considering the many claims that exculpatory evidence was wrongly withheld, both individually and collectively, this court is satisfied that there is no reasonable probability that the results of the trial would have been different had the material been disclosed." Mark v. State, No. PCCV069121, slip op. at 50 (Iowa D. Ct. Black Hawk County, Feb. 3, 1995).

On appeal of the denial of Mark's PCR petition, the Iowa Court of Appeals addressed in detail each of Mark's Brady claims, which it arranged into six categories. The first category of evidence related to witness Jean Doyle. Doyle, who did not testify at Mark's trial, had made a tentative identification placing Mark at a truck stop in North Platte, Nebraska, at noon on Saturday, November 1. Mark claimed that this statement was not disclosed and was material because it is inconsistent with his guilt. Specifically, since it had been established at trial that it would take a person approximately eleven-and-a-half hours to drive from the Leslie Mark farm to North Platte and because the murders occurred between 1:00 a.m. and 3:00 a.m., the murderer could not have been at the truck stop in North Platte until between 12:30 p.m. and 2:30 p.m. According to Mark, since Doyle saw him at noon, the evidence tended to show that he was not the murderer. The Iowa Court of Appeals held that this evidence was not suppressed because investigators had informed Mark during his interrogation that there was a "lady in North Platte" who could identify him and one of the investigating agents testified in his deposition about the details of Doyle's statements. Thus, Mark "knew or should have known" of this evidence. Mark v. State, 568 N.W.2d 820, 823 (Iowa Ct.App.1997).

The second category of evidence analyzed by the Iowa Court of Appeals concerned four cigarette butts that were found at the crime scene. Mark claimed the State suppressed results of blood testing conducted on saliva from the cigarette butts and the possibility that the cigarette butt in Julie Mark's room was not a Marlboro brand cigarette. The Iowa Court of Appeals summarized the blood-test evidence as follows:

Criminalist Robert Harvey testified [at trial] that tests indicated all four cigarettes [found at the crime scene] were smoked by a person with type-O blood. Mark's blood was type-O and he also smoked Marlboro cigarettes. However, before trial it was discovered that the cigarette in the upstairs room was smoked by Deputy James Weiser whose blood type was type-A. In a March 1976 memorandum, prosecutor Harry W. Zanville acknowledged that Harvey informed him it was "not uncommon for a small saliva sample taken from a type-A secretor to have a type-O test result." Harvey's postconviction testimony confirms this assertion. This document and other reports concerning the cigarette butts were not produced by the State.

Id. The Iowa Court of Appeals held that this evidence was not material and would not have affected the outcome of the trial because it was "cumulative of other testimony informing the jury that the cigarette butt evidence had questionable probative value." Id. at 823-24. As for the cigarette butt found in Julie Mark's room, the Iowa Court of Appeals held that because it "was available for inspection by the defense" prior to trial, "Mark was aware that it had been smoked down to the filter and may not have been a Marlboro." Id. at 824. The court also held that "Mark has not shown a reasonable probability that the outcome of the trial would have been different had any of these reports been disclosed." Id.

The third category of evidence concerned witness Leslie Warren. The Iowa Court of Appeals explained the significance of the Warren evidence as follows:

Both the defense and the State agreed at trial that Leslie Warren, a maintenance employee at an eastbound rest area in Chappell, Nebraska, saw Mark at the rest area. However, the parties dispute whether Warren saw Mark on October 31 or on November 1. The murders took place...