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Mark v. State

Court of Appeal of Iowa

October 2, 2013

JERRY MARK, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

Appeal from the Iowa District Court for Black Hawk County, Jon C. Fister, Judge.

A postconviction relief applicant appeals the denial of his second application for postconviction relief.

Eric D. Tindal of Nidey, Wenzel, Erdahl, Tindal & Fisher, Williamsburg, for appellant.

Thomas J. Miller, Attorney General, Tyler J. Buller and Thomas S. Tauber, Assistant Attorneys General, Thomas J. Ferguson, County Attorney, and Kim Griffith, Assistant County Attorney, for appellee State.

Considered by Vaitheswaran, P.J., and Doyle, J., and Goodhue, S.J. [*]

VAITHESWARAN, P.J.

Jerry Mark, convicted of first-degree murder in 1976, appeals (1) the denial of his motion for DNA testing of certain cigarette butts found at the crime scene and (2) the denial of his second application for postconviction relief without an evidentiary hearing on his challenge to ballistics evidence introduced at trial.

I. Background Proceedings

More than thirty-seven years ago, a jury found Jerry Mark guilty of four counts of first-degree murder in connection with the shooting of his brother, his brother's wife, and the couple's two children. The Iowa Supreme Court affirmed Mark's convictions. State v. Mark, 286 N.W.2d 396, 414 (Iowa 1979) ("Mark I").

Mark filed an application for postconviction relief, challenging the State's failure to disclose exculpatory evidence and requesting additional testing of the bullets used in the crimes. This court affirmed the district court's denial of the application and the request for further testing of the bullets. Mark v. State, 568 N.W.2d 820, 827 (Iowa Ct. App. 1997) ("Mark II").

Mark petitioned for habeas corpus relief. The district court granted the petition, finding that suppressed evidence deprived Mark of a fair trial. Mark v. Burger, No. 97CV4059, 2006 WL 2556577, at *76 (N.D. Iowa Aug. 31, 2006). The court denied Mark's motion to expand the record with DNA profile results from the cigarette butts at the scene. See Mark v. Ault, 498 F.3d 775, 787 (8th Cir. 2007) (describing procedural history in district court).

On appeal of that decision, the federal Eighth Circuit Court of Appeals reversed the grant of the habeas corpus petition and concluded the district court did not abuse its discretion in denying the motion to expand the record with DNA evidence. Id. at 789.

Mark returned to state court. He filed a motion for DNA testing of two cigarette butts found at the scene of the crime, [1] and a second application for postconviction relief, challenging the reliability of the bullet evidence introduced at trial. The district court denied Mark's motion for DNA testing and granted the State's ...


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