Mark v. State

• Decision Date: 30 April 1997
• Docket Number: No. 95-0818,95-0818
• Parties: Jerry Allen MARK, Applicant-Appellant, v. STATE of Iowa, Respondent-Appellee.
• Court: Iowa Court of Appeals

Page 820

568 N.W.2d 820

Jerry Allen MARK, Applicant-Appellant, v. STATE of Iowa, Respondent-Appellee.

No. 95-0818.

Court of Appeals of Iowa.

April 30, 1997.

Philip B. Mears of the Mears Law Office, Iowa City, for applicant-appellant.

Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and D. Raymond Walton, Assistant County Attorney, for respondent-appellee.

Considered by CADY, P.J., and HUITINK, J., and SCHLEGEL, Senior Judge. ^*

HUITINK, Judge.

Defendant Jerry Mark appeals the district court's denial of his application for postconviction relief challenging his conviction for first-degree murder. His petition alleged he was denied a fair trial by the State's suppression of several items of exculpatory evidence. Mark also appeals the district court's refusal to allow time for further testing of the bullets found at the crime scene.

Following a jury trial, Mark was convicted of four counts of first-degree murder in June 1976 for the shooting deaths of his brother Leslie, his brother's wife Jorjean, and their two children, five-year-old Julie and eighteen-month-old Jeffrey. The trial record indicates Leslie Mark and his family died between 1:00 a.m. and 3:00 a.m. on November 1, 1975.

At the time of the murders, Mark's residence was in California where he had moved in 1974. In September 1975, Leslie Mark and his family moved into the home of the brothers' parents and took over operation of their farm. The State's theory was that Mark committed the murders because he resented the arrangements between Leslie and his parents.

Mark's conviction was based largely on circumstantial evidence indicating he carefully planned and made a clandestine trip to Iowa on his motorcycle to murder his brother's family. The trial record indicates that on October 29, 1975, Mark left Berkeley, California, on his Honda 450 motorcycle. There is evidence he made calls to his Berkeley residence from Nevada and Wyoming and was observed at different locations in Nebraska and Iowa.

Following the murders, Mark was seen on November 1 in Williams, Iowa at approximately 5:00 a.m., and then in Stuart, Iowa at approximately 7:30 a.m. He arrived at the home of friends in South Lake Tahoe, California on the evening of November 2. Mark was arrested and charged with the murders on November 10, 1975.

Mark's conviction was affirmed on direct appeal by the supreme court. State v. Mark, 286 N.W.2d 396 (Iowa 1979). The supreme court rejected Mark's claim that his due process rights were violated when he was denied access to the state's investigative files. The court stated:

In reviewing the ruling on defendant's first motion or request to inspect all the police files on the case, we are mindful of what we said in State v. Hall, 249 N.W.2d 843, 846 (Iowa 1977): '[I]t is clear from both federal and Iowa decisions not all information in the prosecution's files must be turned over as a matter of constitutional due process.' We also there said: '[T]he rule against defense access to all information in the prosecutor's file and dragnet requests for information has been steadfastly maintained.' We reaffirm that position here.

Defendant's first motion to produce, which was of the dragnet type, was properly overruled.

Id. at 402. The court also held that Mark waived any error relative to his amended motion to produce by not properly developing the record. Id. at 403.

These proceedings were initiated June 30, 1987, the last day of the three-year period of limitation that became effective July 1, 1984. After many delays granted at Mark's request, this matter was tried in 1994. During the seven-year interval, Mark and his counsel reviewed essentially all of the State's investigative files, deposed investigators and witnesses, and obtained DNA testing of crime scene evidence.

I. Disclosure of Exculpatory Evidence.

On appeal, Mark alleges the State failed to disclose several exculpatory items. We will address each of these separately.

A defendant's due process rights are violated when the prosecution fails to produce upon request evidence favorable to the accused "where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215, 218 (1963); see also State v. Romeo, 542 N.W.2d 543, 551 (Iowa 1996).

To establish a Brady violation, Mark must prove (1) the prosecution suppressed evidence, (2) the evidence was favorable to his defense, and (3) the evidence was material to the issue of guilt. See Cornell v. State, 430 N.W.2d 384, 385 (Iowa 1988). Because Mark's contentions implicate his constitutional rights, we review the record de novo examining the totality of the circumstances. Conner v. State, 362 N.W.2d 449, 458 (Iowa 1985).

Mark has the burden to establish the materiality of the suppressed evidence. State v. Anderson, 410 N.W.2d 231, 234 (Iowa 1987). "[T]he evidence is material only if there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481, 494 (1985). "A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Id. Upon review of the postconviction court's ruling, we must consider any adverse effects that the failure to disclose might have had on the preparation or presentation of the defendant's case. Anderson at 234-35.

The Brady rule applies when the evidence is discovered after trial "which had been known to the prosecution but unknown to the defense." United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342, 349 (1976). Exculpatory evidence is not "suppressed" if the defendant knew or should have known of the essential facts permitting him to take advantage of the evidence. Cornell, 430 N.W.2d at 385 (citing United States v. LeRoy, 687 F.2d 610, 618 (2d Cir.1982)).

A. Alibi Witness Jean Doyle.

Mark contends the State suppressed reports of interviews with a witness, Jean Doyle, who made a tentative identification placing Mark at a truck stop in North Platte, Nebraska, on Saturday, November 1. The record indicates Special Agent Earnest Baty, Jr., did a time and distance study in connection with the case in March 1976. Leaving the Leslie Mark farm at 3:48 a.m., he arrived in North Platte at 3:14 p.m. Doyle testified at the postconviction trial that she now believes she saw Mark between 9:00 and 10:00 a.m. rather than at noon as she originally testified. Mark contends that both Doyle's initial statements and her recent testimony are inconsistent with guilt because the murders occurred between 1:00 and 3:00 a.m.

Mark's contention regarding this witness fails because he has not met his burden to show the State suppressed this evidence. The record indicates Mark was told by investigators that they located a waitress in North Platte who claimed she saw him there at noon on November 1. Additionally, agent Ron Forest told Mark's attorney about Doyle's stated observations during an April 1976 deposition. Accordingly, Mark and his attorney knew or should have known essential facts permitting them to take advantage of potential alibi evidence.

B. Cigarette Butt Evidence.

At trial the State offered several Marlboro cigarette butts found at the Leslie Mark residence after the murders. One butt was found in Julie Mark's bedroom, one in another upstairs room, and two more in the basement where the electricity had been disconnected by the family's assailant. Mark claims the State suppressed results of blood testing of saliva found on the cigarette butts, the fact that the integrity of the crime scene was compromised, and the possibility that the cigarette butt in Julie Mark's room was not a Marlboro.

Criminalist Robert Harvey testified that tests indicated all four cigarettes 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.

Mark argues the reports could have changed the outcome of his trial because the cigarette butts represent the only evidence placing him inside the Leslie Mark home. We reject this argument because Mark knew prior to trial that Deputy Weiser had smoked in the upstairs room and the integrity of the crime scene was compromised. Additionally, Mark was alerted to potential blood test errors during Harvey's pretrial deposition. The record also reveals Harvey was vigorously cross-examined by the defense on the blood-typing issue. Therefore, the information in the Zanville memorandum was cumulative of other testimony informing the jury that the cigarette butt evidence had questionable probative value. ¹ Finally, we note that the cigarette butt found in Julie Mark's bedroom was available for inspection by the defense, thus Mark was aware that it had been smoked down to the filter and may not have been a Marlboro. Mark has not shown a reasonable probability that the outcome of the trial would have been different had any of these reports been disclosed.

C. Alibi Witness Leslie Warren.

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 on November 1...