State v. Burns

• Docket Number: 20-1150
• Decision Date: 31 March 2023
• Citation: 988 N.W.2d 352
• Parties: STATE of Iowa, Appellee, v. Jerry Lynn BURNS, Appellant.
• Court: Iowa Supreme Court

988 N.W.2d 352

STATE of Iowa, Appellee,

v.Jerry Lynn BURNS, Appellant.

No. 20-1150

Supreme Court of Iowa.

Submitted September 30, 2022

Filed March 31, 2023

Nicholas Curran (argued) and Kathleen T. Zellner of Kathleen T. Zellner & Associates, PC, Downers Grove, Illinois, and Elizabeth A. Araguás of Nidey Erdahl Meier & Araguás, PLC, Cedar Rapids, for appellant.

Brenna Bird, Attorney General, and Tyler J. Buller (argued) (until withdrawal) and Bridget Chambers, Assistant Attorneys General, for appellee.

Nathan Freed Wessler (argued), Vera Eidelman, and Patrick Toomey of American Civil Liberties Union Foundation, New York, New York, for amicus curiae American Civil Liberties Union.

Rita Bettis Austen of ACLU of Iowa Foundation Inc., Des Moines, for amicus curiae ACLU of Iowa Foundation, Inc.

Jennifer Lynch of Electronic Frontier Foundation, San Francisco, California, for amicus curiae Electronic Frontier Foundation.

May, J., delivered the opinion of the court, in which Christensen, C.J., and Waterman, Mansfield, and McDonald, JJ., joined. McDonald, J., filed a concurring opinion. Oxley, J., filed a dissenting opinion. McDermott, J., filed a dissenting opinion, in which Oxley, J., joined except as to part I.B.

MAY, Justice.

Someone murdered Michelle Martinko on the night of December 19, 1979. Cedar Rapids police found Martinko's body in her car. Police collected what evidence they could, including her bloodstained dress. But police could not find Martinko's killer.

Decades passed. Technology developed. Police used advances in DNA technology and forensic genealogy to pursue the killer.

By 2018, police determined that DNA found on Martinko's dress would very likely match the DNA of one of three brothers: Donald, Kenneth, or Jerry Burns. All three brothers had grown up in Manchester, about an hour from Cedar Rapids. All three were living in Iowa in 2018.

Police watched the brothers. The plan was to collect discarded items that might carry samples of the men's DNA. Police collected a drinking straw that Kenneth discarded at a golf course clubhouse. And police collected a toothbrush from Donald's garbage. Lab analysis of these items showed that neither man's DNA could match the DNA found on Martinko's dress.

The third brother was Jerry Lynn Burns (Burns), the defendant in this case. Investigators saw Burns eating at a Pizza Ranch in Manchester. Burns was drinking soda through a clear plastic straw. When Burns finished eating, he got up and walked out of the restaurant. Burns left the drinking straw behind. Police retrieved the straw. A lab analyzed DNA on the straw. The lab report said that the "DNA donor could NOT be eliminated as the major contributor to the DNA profile previously developed" from Martinko's dress.

So then police obtained a warrant to swab Burns's mouth directly. Laboratory analysis then confirmed that Burns's DNA profile matched DNA found on Martinko's dress. According to the lab, the probability of finding the same DNA profile in a population of unrelated individuals would be "less than 1 out of 100 billion."

Armed with this and other evidence, the State charged Burns with murder in the first degree. A jury found Burns guilty.

On appeal, Burns argues that police violated his constitutional rights by failing to secure a warrant before analyzing the DNA on the straw that he left at the Pizza Ranch. Burns also argues that the court erred by failing to give a requested jury instruction. Finally, Burns claims that there was insufficient evidence to support the jury's guilty verdict. We affirm.

I. Background Facts and Proceedings.

In December 1979, Martinko was an eighteen-year-old senior at Kennedy High School in Cedar Rapids, Iowa. On December 19, Martinko and classmates attended a choir banquet at the Sheraton Hotel. Martinko was wearing a black dress.

Among her classmates, Martinko was well-known for driving a large 1972 Buick. After the banquet, Martinko drove the Buick to Cedar Rapids's recently-opened Westdale Mall. While there, Martinko spoke to several friends. Sometime between 9 p.m. and 10 p.m., she left the mall alone and headed out to the parking lot. Around 10:30–11:00 p.m., the assistant manager at a Pier 1 Imports saw Martinko's Buick in the parking lot. The assistant manager described the car as "just kind of out there by itself." It seemed "out of place" for that time of night.

Shortly after 4 a.m., Cedar Rapids police were dispatched to look for the Buick. Police found it in the mall parking lot. Inside the Buick, police found Martinko's body. She was fully clothed and covered with blood. There were visible stab wounds to her chest. Her autopsy would reveal that she had suffered a total of twenty-nine sharp-edge wounds, including defensive wounds on her hands. The doctor concluded that "there was a struggle" that led to her death. "Her heart was still pumping" when the murderer inflicted the fatal stab "deep into [her] aorta," a "major ... blood-carrying organ of the body." The doctor also thought that the killer could have cut themself during the assault.

Police collected Martinko's bloodstained dress. Otherwise, though, the crime scene was basically limited to the Buick and surrounding area. Police did not find any of the murderer's fingerprints. Instead, inside the car, police found "chevron-type" glove prints of the kind made by commonly available rubber gloves. Police found these prints on "the operating parts of the car -- the shift lever, the steering wheel, the door handles, ... the keys, [and the] light switch." From this, police inferred that the rubber-glove-clad murderer had driven the Buick after the assault. Police collected blood from the Buick's steering wheel and gearshift lever.

Time passed, but no viable suspect emerged. Beginning in the late 1990s, though, law enforcement began conducting DNA analysis on the evidence that they had collected. Initial testing could only detect (1) Martinko's DNA on the dress and (2) the DNA of more than one indeterminate persons on the gearshift lever.

Over time, DNA technology improved. In 2002 and 2003, testing of the dress allowed the development of a full DNA profile for Martinko. And testing of the gearshift lever sample yielded a mixed profile that included "[a]t least one male and one female" contributor.

In 2005, the Iowa Division of Criminal Investigations (DCI) lab tested additional bloodstain locations on Martinko's dress. One of those locations—referred to as "stain #5" or "#F5"—yielded a partial male profile. The lab noted that "[f]ewer than one in one hundred billion unrelated individuals would" match the profile discovered at stain #F5. The lab also determined that the male contributor to stain #F5 "could also be the donor of the minor male contribution" found in the gearshift lever sample.

So police focused their efforts on finding the male contributor to stain #F5. Police submitted the #F5 profile to the FBI's CODIS¹ database, which consists of millions of known DNA profiles. No matches were found.

Police also compiled a list of potential suspects from police reports and other sources. More than 100 individuals were cleared from suspicion by collecting their DNA through buccal swabs and then comparing their DNA profiles against the #F5 profile. Other possible suspects were cleared on other grounds, such as being in custody at the time of the murder.

In 2018, police used the services of a private lab called Parabon to perform kinship analysis and genetic genealogy. This work included running the #F5 profile through a public database called GEDmatch. Based on this analysis, Parabon directed police to investigate the descendants of four sets of great-great-grandparents. Police did so.

As part of this work, police contacted Janice Burns of Linn County, Iowa. Janice agreed to provide her DNA through a buccal swab. Parabon was then able to report that the contributor of the #F5 profile was probably a first cousin of Janice Burns. Janice has three first cousins: defendant Burns and his two brothers Donald and Kenneth.

Police then began surveilling the three brothers. The plan was to collect discarded items that could contain the men's DNA. Police collected a straw from Kenneth and a toothbrush from Donald's trash. Lab analysis of these items eliminated Donald and Kenneth as possible contributors to stain #F5.

Police followed Jerry Burns and his son to a Pizza Ranch in Manchester. Investigators sat down in the booth next to Burns. They saw Burns drink several sodas using a clear drinking straw. When Burns and his son finished eating, they got up and walked out of the restaurant.² Police then grabbed Burns's soda cup, packaged up the straw, and sent it to the DCI lab for analysis. The lab extracted DNA from the straw, analyzed it, and created a report. The report said:

The weak DNA profile developed from the ends of the straw indicated a male source. The DNA donor could NOT be eliminated as the major contributor to the DNA profile previously developed from stain #F5 ... from the black dress ....

Further interpretation may be attempted if a KNOWN DNA sample from a potential source is submitted.

In light of this report, police sought and obtained a search warrant to swab Burns's mouth directly. The DCI lab then confirmed that Burns's DNA profile matched the stain #F5 profile. The report went on to say: "The probability of finding this profile in a population of unrelated individuals, chosen at random, would be less than 1 out of 100 billion." And a private lab—Bode Technology—found that Burns's DNA was consistent with DNA extracted from the gearshift lever in Martinko's Buick. One in 1,700 males would match the DNA profile from the gearshift lever sample. This match was close enough to eliminate about 99.94% of all males in the United States.

Police interviewed Burns at his office in Manchester. Burns denied any firsthand knowledge of the murder. When police confronted Burns, he repeatedly told police to "test the DNA."

On January 24, 2019, police charged...