State v. Burkett, 83-668

• Decision Date: 14 November 1984
• Docket Number: No. 83-668,83-668
• Citation: 357 N.W.2d 632
• Parties: STATE of Iowa, Appellee, v. Bertrum Rene BURKETT, Appellant.
• Court: Iowa Supreme Court

Page 632

357 N.W.2d 632

STATE of Iowa, Appellee, v. Bertrum Rene BURKETT, Appellant.

No. 83-668.

Supreme Court of Iowa.

Nov. 14, 1984.

Alfredo G. Parrish, Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., Marcia Mason, Asst. Atty. Gen., and Kevin VanderSchel and James Smith, Asst. County Attys., for appellee.

Considered by UHLENHOPP, P.J., and HARRIS, McGIVERIN, CARTER, and WOLLE, JJ.

McGIVERIN, Justice.

Defendant Bertrum Rene Burkett appeals from his conviction and sentence on a charge of first-degree murder in violation of Iowa Code sections 707.1 and 707.2 (1981). We affirm.

Defendant was charged by grand jury indictment with first-degree murder in the death of Derrica Moss, the three-year old daughter of Shirley Moss, with whom defendant had been living. Derrica died on the morning of October 22, 1982, soon after being brought to a Des Moines hospital emergency room by defendant. Defendant had been alone with Derrica at their residence for about an hour before he brought her to the hospital.

The State offered expert medical testimony that the cause of Derrica's death was internal hemorraging caused by multiple blunt force injuries inflicted within four hours of her death. Defendant testified that Derrica had choked on a glass of milk and that the blunt force injuries were caused by resuscitation efforts made first by him and later by the medical personnel at the emergency room. The State's experts testified that there was no indication that Derrica had choked on anything and that her injuries were not attributable to resuscitation efforts. The State also produced evidence from which the jury could have found previous instances of physical abuse of Derrica by defendant. Finally, a State witness, Terry Martizna, who had been a cellmate of defendant in the Polk County jail while defendant was awaiting trial, testified that in the course of a conversation he had in jail with defendant, defendant had confessed to killing Derrica.

On appeal, defendant advances six contentions in support of his request for reversal and a new trial: 1) the jury should have been instructed on various forms of assault as lesser included offenses in the first-degree murder charge; 2) the prosecution failed to disclose an alleged agreement between the State and Terry Martizna made to induce his testimony; 3) the prosecutor failed to withdraw from the case after being called as a defense witness to answer questions about the alleged agreement; 4) the chaplain of the Polk County jail should have been required to testify regarding any conversation he had with Martizna about the alleged agreement; 5) the gesture of one of the State's witnesses in striking his hand with his fist during his testimony was so prejudicial as to deny defendant a fair trial; and 6) the cumulative effect of these alleged errors was to deny defendant a fair trial. We find no merit in any of these contentions.

I. Failure to instruct the jury on lesser included offenses. Defendant first contends that the trial court erred in not instructing the jury on assault in its various forms under Iowa Code ch. 708 as lesser included offenses of the offense charged (first-degree murder). Although the court instructed the jury on first-degree murder (sections 707.1 and 707.2), second-degree murder (sections 707.1 and 707.3), voluntary manslaughter (section 707.4), and involuntary manslaughter (section 707.5), defendant maintains that the failure to instruct on assault violated Iowa R.Crim.P. 6(3), which provides:

In cases where the public offense charged may include some lesser offense it is the duty of the trial court to instruct the jury, not only as to the public offense charged but as to all lesser offenses of which the accused might be found guilty under the indictment and upon the evidence adduced, even though such instructions have not been requested.

We find that any error based on failure to instruct on assault was not preserved by defendant.

The record shows that defendant did not submit instructions on assault and did not object to the court's failure to give such instructions. Therefore, notwithstanding Iowa R.Crim.P. 6(3), defendant failed to preserve any error in regard to the court's not instructing on assault as a lesser included offense. State v. Rouse, 290 N.W.2d 911, 914 (Iowa 1980). See also Iowa R.Crim.P. 18(5)(f) (incorporating by reference the requirements of Iowa R.Civ.P. 196, which states that only objections to jury instructions that are made to the trial court shall be considered on appeal).

Moreover, the record discloses that defendant's attorney, with the knowledge and consent of defendant, objected to the court's instructing the jury on any lesser included offenses whatsoever and stated that he wished to go to the jury on the charge of first-degree murder and nothing else. It seems clear that the failure to instruct on assault was in fact part of defense counsel's strategy for the case, a strategy which defendant knew and acquiesced in. Defendant cannot now complain of an error that he purposely did not preserve for review. State v. Veverka, 271 N.W.2d 744, 749 (Iowa 1978).

II. Failure to disclose an alleged agreement between the State and a witness. Terry Martizna was a State witness who testified that he and defendant had a conversation in jail prior to defendant's trial during which defendant confessed to having killed Derrica Moss after an argument with her mother. At the time of this conversation in January 1983 Martizna was awaiting trial on an unrelated charge of sexual abuse.

On February 10, 1983, Martizna pleaded guilty to third-degree sexual abuse pursuant to a plea bargaining agreement. In return for Martizna's guilty plea, the prosecutor, Kevin VanderSchel, agreed to recommend, among other things, that his sentence be served at either the Iowa Men's Reformatory at Anamosa or the Iowa Security Medical Facility at Oakdale.

On March 24 VanderSchel, who was also prosecuting defendant's case, learned that Martizna had talked extensively with defendant in the Polk County jail and might have information useful to the State. On March 27, VanderSchel and Martizna talked briefly about the possibility of Martizna's testifying against defendant. The next day they talked again at greater length. Don Nickerson, Martizna's attorney for the sexual abuse charge, was present at the discussion, as was an agent of the Iowa department of criminal investigation. After the discussion, Martizna conferred briefly with his attorney, and then indicated he would testify.

During defendant's trial, the State disclosed the details of the February plea bargaining agreement relating to the charge of sexual abuse against Martizna. The State also disclosed that Martizna, after deciding to testify, had expressed concern for his safety and received assurances that steps would be taken for his protection after the trial. Both Martizna on cross-examination and VanderSchel, on direct examination when called as a witness by defendant, denied that any understanding or deal existed between Martizna and the State regarding Martizna's testimony other than an agreement that the State would protect Martizna's safety if he testified.

Defendant contends that in fact there was a deal beyond what was disclosed by the State, and that the failure to disclose it to defendant and the jury requires reversal for a new trial. Trial court overruled defendant's motions for mistrial and new trial based on this assertion.

Certainly failure by the State to disclose any promise or inducement made to Martizna in order to secure his testimony would mandate a new trial. State v. King, 256 N.W.2d 1, 15 (Iowa 1977). However, we find defendant's case for the existence of an undisclosed deal is not supported by the record. Defendant's argument on this point rests solely on the fact that shortly after the trial VanderSchel requested the Iowa department of social services to transfer Martizna to Florida or Missouri to serve his sentence for sexual abuse. Because transfer to Florida or Missouri was not a part of the February plea bargaining agreement, defendant maintains that it can only be a term of secret agreement made between Martizna and the State to induce Martizna to testify against defendant.

Defendant's conclusion is contradicted by the testimony of both VanderSchel and Martizna's attorney for the sexual abuse charge. VanderSchel, who was called as a defense witness to answer questions about the alleged deal, denied that he had reached any understanding with Martizna regarding his testimony other than giving him assurances that measures would be taken to protect him after he testified. VanderSchel testified that even those assurances were not given as an inducement for Martizna to testify, but were given only after Martizna had reached an independent decision to testify.

Don Nickerson, Martizna's attorney for the sexual abuse charge, corroborated this testimony. At the hearing on defendant's motion for new trial Nickerson testified that at the time of the March 28 interview between VanderSchel and Martizna, he attempted to have the charge against Martizna reduced in exchange for his testimony. VanderSchel, Nickerson testified, refused to enter into any bargain whatsoever with Martizna in exchange for his testimony. Nickerson said that he and Martizna conferred briefly thereafter, and Martizna nonetheless decided to testify. It was only then, Nickerson testified, that the matter of...