State v. Mark

Citation286 N.W.2d 396
Decision Date19 December 1979
Docket NumberNo. 59676,59676
PartiesSTATE of Iowa, Appellee, v. Jerry Allen MARK, Appellant.
CourtUnited States State Supreme Court of Iowa

Page 396

286 N.W.2d 396
STATE of Iowa, Appellee,
Jerry Allen MARK, Appellant.
No. 59676.
Supreme Court of Iowa.
Dec. 19, 1979.
Rehearing Denied Feb. 14, 1980.

Page 400

John R. Sandre of Scalise, Scism, Gentry, Brick & Brick, Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., Faison T. Sessoms, Asst. Atty. Gen., David H. Correll, Black Hawk County Atty. and David J. Dutton, Asst. County Atty., for appellee.

Considered by REES, P. J., and HARRIS, McCORMICK, ALLBEE and McGIVERIN, JJ.

McGIVERIN, Justice.

After jury trial, defendant Jerry Allen Mark appeals his conviction on four charges of first degree murder in violation of sections 690.1-.2, The Code 1975. Defendant urges the following five grounds as reversible error:

1. That he was denied materially exculpatory evidence;

2. That evidence of eight State's identification witnesses should not have been admitted because improper out-of-court identification procedures tainted both the in-court and out-of-court identifications of him by those witnesses;

3. That evidence relative to cigarette butts found in the Leslie Mark farmhouse was inadmissible;

4. That evidence concerning shoe prints on the grounds of the Mark homestead was inadmissible; and

5. That testimony relating to neutron activation analysis of certain bullets was inadmissible.

We affirm.

Sometime between 1:00 and 3:00 a. m. on November 1, 1975, four persons were shot to death in their home at the Leslie Mark farm in Black Hawk County. The four victims were related to defendant. They were Leslie Mark, defendant's brother and a farmer, Leslie's wife Jorjean, their five-year-old daughter Julie and 18-month-old-son Jeffery.

On November 10 defendant was charged in four informations with the first degree murder of those persons in violation of sections 690.1-.2, The Code 1975. The cases were consolidated. Prior to trial defendant filed a motion to suppress, a motion in

Page 401

limine and a motion to produce. The motions were overruled by the trial court. The case was tried before a jury and on June 22, 1976, defendant was found guilty on all four charges.

The State's case connecting Jerry Mark with the killings was based on circumstantial evidence.

From the evidence at trial, the jury could have found the following facts. On October 3, 1975, defendant 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.

Defendant 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 defendant 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 defendant 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. Defendant 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, defendant 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.

Defendant 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.

Defendant 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.

Other facts will be stated later as necessary for an understanding of the issues raised for review.

I. Exculpatory material. Defendant initially contends his due process rights were violated when the court denied his

Page 402

pre-trial motions to produce. In his original motion defendant asked the court to require the State to produce all files of the investigating police agencies for inspection by him for exculpatory, impeaching or inconsistent evidence. In a later renewed and amended motion, defendant asked for the investigative reports and notes of Iowa BCI agents Jutte and Swaim relating to their trip starting November 7, 1975, and their lists of individuals and establishments contacted along Highway 20 west, I-35 south and I-80 west from Iowa into Nebraska in their effort to locate individuals who may have seen defendant on either October 31 or November 1, 1975. This was the route allegedly taken by defendant. The State resisted the motions.

Both motions were overruled. Relative to the renewed and amended motion to produce, the court stated as reasons:

(a) If said request is based upon the defendant's contention that said statements may be impeaching or inconsistent with other statements given by said agents, the rule in State v. Mayhew, (170 N.W.2d 608, 614 (Iowa 1969)) provides that such statements shall be made available to the defendant at the conclusion of the direct testimony of such agent; and

(b) The Court's prior in camera review of said statements lead the Court to the conclusion that the information contained therein is not exculpatory.

Defendant had taken the discovery depositions of agents Jutte and Swaim and learned the agents visited every establishment along the route from the Cedar Falls-Waterloo area to Nebraska in their investigative journey. They interviewed approximately 100 persons.

At trial agent Jutte testified they found no one on that trip that recalled seeing defendant.

The officers' trip occurred before defendant was arrested on November 10. The eight identification witnesses discussed in division II were discovered after defendant was arrested.

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.

We next consider defendant's amended motion to produce. When a discovery demand is made, which is resisted by the State, we have indicated it is proper procedure for the trial court to conduct an in camera inspection of the materials sought. State v. Deanda, 218 N.W.2d 649, 651 (Iowa 1974). Defendant made no objection to this procedure at the time of the in camera inspection. The State says that under State v. Gartin, 271 N.W.2d 902, 909 (Iowa 1978), defendant waived any error by failing to object then to such inspection by the court rather than defendant. Because defendant asked in his original motion for personal inspection of all police files, we are unwilling to say defendant waived error relative to the ruling on his amended motion by not again requesting that he be allowed to view the materials at the time the court made its in camera inspection.

However, after agent Jutte testified on direct examination at trial, defendant did not ask to see the notes and statements requested in his amended motion to which defendant then would be entitled under the trial court's ruling. Mark also did not make the agents' notes a part of the record on appeal. Therefore, it is impossible for us to determine whether the information was exculpatory. "It is defendant's obligation to provide this court with a record which affirmatively discloses the error upon which he relies." State v. Bakker, 262 N.W.2d 538, 544 (Iowa 1978).

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Mark says in his brief he "cannot assert as an absolute that the information contained in those writings was exculpatory to this defendant." He further says "it is reasonable to...

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