STATE OF IOWA, Plaintiff-Appellee, vs. DONALD ARTHUR PIPER, Defendant-Appellant.

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IN THE COURT OF APPEALS OF IOWA No. 3-510 / 02-1124 Filed October 15, 2003 STATE OF IOWA, Plaintiff-Appellee, vs. DONALD ARTHUR PIPER, Defendant-Appellant. Appeal from the Iowa District Court for Polk County, Linda R. Reade, Judge. Donald Piper appeals his conviction for first-degree murder. AFFIRMED. Alfredo Parrish and Tammy Westhoff of Parrish, Kruidenier, Moss, Dunn, Boles, Gribble & Cook, L.L.P., Des Moines, for appellant. Thomas J. Miller, Attorney General, Sheryl Soich, Assistant Attorney General, John Sarcone, County Attorney, and Nan Horvat and Steve Foritano, Assistant County Attorneys, for appellee. Heard by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ. HUITINK, P.J. I. Background Facts Zurijeta Sakanovic died on September 4, 1997. Her body was discovered by a co-employee, Tanya Fast in a guest room of the Clive Budgetel Inn, where both worked in housekeeping. Fast found Sakanovic lying on the side of a bed. Sakanovic's pants and underwear had been removed, and her shirt and bra were pushed up exposing her breasts. Sakanovic's hands were bound in front of her with white tape. A subsequent medical exam indicated she had been strangled and stabbed multiple times. Piper was implicated in Sakanovic's murder because he matched the description of a man Fast saw exit an elevator and hurriedly leave the hotel shortly before she found Sakanovic's body. Fast subsequently identified Piper in a photo array with eighty-five percent certainty as the man she saw leaving the hotel. Other evidence implicating Piper included a videotape from a neighboring convenience store depicting a white van resembling that which Piper drove for his employer, Accurate Mechanical Contractors, at a stoplight near the hotel. Additionally the tape used to bind Sakanovic's hands was of a type used by mechanical contractors and not generally sold at retail. DNA tests of a blood stain found on the bedspread of the guest room matched a DNA sample taken from Piper. Expert analysis of the DNA test results indicated that there was only one in 100 billion chance that the DNA profile matched someone other than Piper. II. First Trial Piper was charged with murder in the first degree, in violation of Iowa Code sections 707.1 and 707.2 (1999). Prior to trial, the court granted Piper's motion to exclude evidence he had been under investigation for other murders and had been convicted in another case. See State v. Piper, 663 N.W.2d 894, 900 (Iowa 2003). During Piper's first trial in this case, an Illinois police officer, Bryant Seraphin, was called to testify that he had presented a photographic array to Lonny Mitchell, who had been a guest at the hotel on September 4, 1997. During the direct examination of Seraphin, the following exchange took place: Q. Did you make contact with Mr. Mitchell? A. Yes, I did. Q. And before you went to see Mr. Mitchell, did you have any knowledge about the case at all? A. Very limited knowledge. Detective Bjornson explained to me that there was a series of murders that they were investigating in Des Moines and that there were two maids, I believe, and one guest of a particular motel. Piper moved for a mistrial. The prosecutor explained that he had intended to demonstrate that Seraphin did not have enough information about the case to improperly influence Mitchell's review of the photographic array. The prosecutor stated he was surprised by Seraphin's answer. Seraphin admitted he had been warned not to mention the fact that Piper was a suspect in other murders. The district court determined the testimony was so prejudicial a mistrial should be granted. Piper then filed a motion to dismiss the trial information, claiming the State was barred by the principles of double jeopardy from retrying him. The district court noted that when a trial is terminated at the request of a defendant, the double jeopardy clause will not prevent a retrial unless the prosecution intentionally provoked the mistrial. See State v. Hurd, 496 N.W.2d 274, 276-77 (Iowa Ct. App. 1992). The court concluded there was no intent on the part of the prosecutor to force a mistrial. The court denied Piper's motion to dismiss. III. Second Trial The case proceeded to a second trial. The court permitted the State to present evidence that at Piper's former residence Allen Beery received a catalog addressed to "Donald Piper or current resident." As the current resident, Beery opened the catalog, which depicted women in bondage in sexual poses. Robert Ellis testified that Piper loaned him a videotape which depicted sex acts and people in bondage. The court determined the evidence was relevant because the attack on Sakanovic included a sexual component and she was found with her wrists bound. The evidence showed Piper had some knowledge of bondage techniques. The court concluded the relevance of the evidence was not outweighed by the danger of unfair prejudice. The court also permitted the State to present an altered version of the Quik Trip videotape as a demonstrative aid. The State hired a video editor, Chris Heckle, to enlarge the image of the white van and sharpen the contrast to improve the clarity of the image. Heckle also superimposed an intermittent image of an Accurate Mechanical van over the white van for comparison purposes. Heckle added arrows and the graphics, "van," "roof rack," "logo," and "logo text." The jurors were clearly informed the videotape had been altered and was presented for demonstrative purposes only. During cross-examination of an investigator, John Quinn, the defense pointed out that Quinn had asked Piper whether he had ever stayed at the hotel or worked at the hotel, but not specifically whether he had ever visited the hotel for any purpose. On rebuttal, the prosecutor questioned Quinn as follows: Q. Thank you. Did Mr. Piper have the opportunity to explain to you if he had been at the Budgetel? A. Yes, he did. Q. Did he ever tell you that he had been there? At this point, Piper sought a mistrial, claiming the question had improperly shifted the burden of proof to Piper to prove his innocence. The district court denied the motion. The court denied Piper's motion for judgment of acquittal. Piper sought a jury instruction on spoliation of evidence because the State did not produce two electronic hotel keys that were found on Sakanovic at the time of her death. He also sought an alibi instruction. Furthermore, he asked to have "not guilty" placed first on the verdict form. The court denied these requests. The jury returned a verdict finding Piper guilty of first-degree murder. The court denied his motion for a new trial. Piper was sentenced to life imprisonment. IV. Issues on Appeal Piper appeals his conviction for first-degree murder. He claims: (1) his second trial should have been barred on the basis of double jeopardy; (2) the district court abused its discretion by admitting evidence linking Piper to pornographic materials; (3) the court abused its discretion by allowing an altered videotape to be used as a demonstrative aid; (4) he should have been granted a mistrial at his second trial; (5) the court should have given his proposed jury instructions; (6) there was insufficient evidence of his guilt; and (7) the court should have granted his motion for new trial. We affirm. V. Double Jeopardy Piper asserts the Double Jeopardy Clause prohibits the State from trying him again after a mistrial was declared in the first trial. On this constitutional issue, we must make our own evaluation of the totality of the circumstances under which the ruling was made. State v. Rademacher, 433 N.W.2d 754, 759 (Iowa 1988). Generally, the Double Jeopardy Clause does not bar retrial of a defendant if a mistrial is declared at the defendant's request. See Arizona v. Washington, 434 U.S. 497, 515-16, 98 S. Ct. 824, 835, 54 L. Ed. 2d 717, 734-35 (1978). A retrial is barred, however, if the mistrial was caused by prosecutorial misconduct "intended to goad" the defendant into moving for a mistrial. Oregon v. Kennedy, 456 U.S. 667, 676, 102 S. Ct. 2083, 2089, 72 L. Ed. 2d 265, 425 (1982). The question of whether the prosecutor intentionally provoked a mistrial must be made in the first instance by the trial court. Rademacher, 433 N.W.2d at 757. Our supreme court has stated, "the dispositive factual determination required to be made in the present case is one which the district court was in a far better position to resolve than this court." Id. at 759; Hurd, 496 N.W.2d at 277. In the present case, the district court found there was no intent by the prosecutor to provoke a mistrial. The court noted the inappropriate response, which triggered the mistrial, occurred when the police officer's testimony exceeded the scope of the question asked. The court also noted that there was no advantage to the State in provoking a mistrial because the State would have to retry the case before the same judge and be subject to the same pretrial evidentiary rulings. Additionally, the State argued forcefully against granting a mistrial. We agree that the district court was in a far better position to determine the prosecutor's intent. We concur in the district court's conclusions and determine the Double Jeopardy Clause did not bar the State from retrying Piper after a mistrial was declared in his first trial. VI. Testimony about Pornographic Materials Piper contends the district court abused its discretion by allowing Beery and Ellis to testify about pornographic materials linked to him. He claims the testimony was unduly prejudicial and should not have been admitted. We generally review evidentiary rulings for an abuse of discretion. State v. Rodriquez, 636 N.W.2d 234, 239 (Iowa 2001). We will reverse only when we find a clear abuse of discretion. State v. Castaneda, 621 N.W.2d 435, 440 (Iowa 2001). In determining whether the challenged evidence is admissible, the district court uses a two-step analysis. Id. First, the court must determine whether the evidence is relevant because only relevant evidence is admissible. Id. (citing Iowa R. Evid. 5.402). If the evidence is relevant, then the court must decide whether its probative value is substantially outweighed by the danger of unfair prejudice. Id. (citing Iowa R. Evid. 5.403). "If the challenged evidence is relevant to a legitimate issue in dispute, then it is prima facie admissible, regardless of any tendency to also establish a defendant's bad character or propensity for committing bad acts." State v. Mitchell, 633 N.W.2d 295, 298 (Iowa 2001). On this issue the district court ruled: This evidence is relevant to the issues in this case. The crime scene evidence suggests that the attack on the victim included a sexual component. The body of the victim was found bound. Her underwear had been removed and her body was nude from the waist down. The fact that scientific testing of the body did not reveal the presence of any seminal fluid does not rule out a sexual motive for the attack. The pornography allegedly possessed and ordered by Defendant is some evidence of his knowledge of bondage techniques and potentially his motive. The relevance of the evidence is not outweighed by the danger of unfair prejudice. We find no abuse of discretion in the court's determination that the evidence was relevant to a legitimate issue in dispute, which was whether Piper was the person who had bound Sakanovic's wrists and then killed her. The testimony that Piper had possession of materials depicting people in bondage showed that he had knowledge of bondage techniques. Additionally, insofar as the crime was sexual in nature, the evidence was relevant to show Piper had possession of materials showing people in bondage in sexual poses. We also find no abuse of discretion in the court's conclusion that the relevance of the evidence was not outweighed by the danger of unfair prejudice. We first note that the pornographic materials themselves were not admitted into evidence. We also determine the fact that Piper was linked to pornographic materials, which he had a legal right to possess, was not unduly prejudicial. We find it unlikely the jury was "roused by the evidence to overmastering hostility." See Rodriquez, 636 N.W.2d at 240 (citations omitted). We conclude there was no abuse of discretion in the admission of this evidence. VII. Quik Trip Videotape A. Piper claims the district court abused its discretion by permitting the altered Quik Trip videotape to be used as a demonstrative aid. He points out that the district court ruled the videotape was not admissible at his first trial due to late disclosure of the evidence by the State. By the time of the second trial, however, the defendant had the altered videotape for several months, and the court ruled the videotape could be shown to the jury. Piper claims the State should not benefit from the mistrial in his first case and that the videotape should remain inadmissible. New evidence may be introduced at a retrial where the conduct causing the mistrial was not intentional on the part of the prosecutor. See State v. Love, 300 N.W.2d 137, 138 (Iowa 1981) (noting new evidence may be admitted at a second trial where there is no showing "that the prosecutor deliberately sought the mistrial in order to strengthen the State's case."). We conclude the district court did not err in finding the earlier ruling concerning the videotape did not preclude its presentation at the second trial. B. Piper also asserts the videotape should not have been presented to the jury because the State wanted the jury to believe the tape accurately showed defendant's Accurate Mechanical van as he drove away from the crime scene. He claims the tape was not a fair and accurate representation of the original videotape and its admission was prejudicial to him. The admission or exclusion of demonstrative evidence rests largely within the trial court's discretion. State v. Thornton, 498 N.W.2d 670, 674 (Iowa 1993). Demonstrative evidence is usually received if it affords a reasonable inference on a point in issue. Id. Piper filed a motion in limine objecting to the admission of the altered videotape. On this matter the district court ruled: As to the argument that the altered tape is not an authentic copy of the Quik Trip tape and thus not admissible under Iowa Rule of Evidence 5.901, the Court agrees in part. The State will not seek admission of the altered tape as the original and authentic Quik Trip tape seized by law enforcement. Rather, the altered tape is expected to be used in the courtroom as a demonstrative aid to describe to the jury what work Mr. Heckle did and the outcome of his work. The court concluded that although the videotape was obviously prejudicial to Piper, its probative value was not outweighed by its prejudicial effect. During the trial, evidence was entered to show that police officers obtained a surveillance videotape from a Quik Trip that was near the hotel where Sakanovic was killed. The videotape showed traffic on 118th Street near the intersection with University Avenue at about the same time as the murder. The videotape was provided to Chris Heckle, a video editor. Heckle looked at several vans in about a forty-five minute time period to compare the signage and markings on the vans to an Accurate Mechanical van. Heckle testified, "I scanned [the videotape] and digitized it in the same way that the tape was digitized and superimposed it on the picture, laying it over the top of the van that had the common marks that I thought this one had." Heckle also added some titles to help identify common points between the two vans. The defense presented the expert testimony of Stephen Kwartek, a production manager from New York. On cross-examination, Kwartek admitted there was a dark area on the rear passenger part of the van in the videotape that was in the location of the Accurate Mechanical logo on its vans. He also stated there was nothing wrong with the process that Heckle used to alter the videotape. At the time the videotape was played for the jury, the court stated it was being shown for demonstrative purposes only, to illustrate Heckle's testimony. The jury instructions also provided: During the trial, items were used in the courtroom only to demonstrate the witnesses' testimony. These items are not evidence and shall not be considered by you as evidence. These items will not be available to you in the jury room. During closing arguments, the prosecutor stated: What do we see on that Quik Trip surveillance tape? At 10:12 a.m. you see a van in that Quik Trip surveillance tape turning left from 118th Street onto University. And they have brought in an expert from New York. What did he tell us? He said he didn't see any problem with the way that Chris Heckle enlarged that tape. He said he agreed that there was that dark spot on the back panel of the van that's consistent with the Accurate Mechanical, either one, Chevy or Ford. In Hutchison v. American Family Mut. Ins. Co., 514 N.W.2d 882, 890 (Iowa 1994), in ruling certain demonstrative evidence was not admissible, the court relied on "the possibility that the jury may confuse one party's reconstruction with objective fact . . . ." More recently, our supreme court has noted, "[c]omputer generated evidence is an increasingly common form of demonstrative evidence." State v. Sayles, 662 N.W.2d 1, 9 (Iowa 2003) (citing State v. Farmer, 66 S.W.2d 188, 208 (Tenn. 2001)). In Sayles, computer generated demonstrative evidence was presented to the jury, because "there was no risk in the case before us that the jury would be misled into believing the injury occurred in a manner that was not factually supported by the record." Id. at 11. Also, in Sayles, as in this case, the jurors were instructed that the demonstrative evidence did not purport to present objective fact. See id. We find no abuse of discretion in the district court's decision to allow the jury to see the altered videotape. Heckle testified the van in the videotape had common marks to an Accurate Mechanical van, and he used computer graphics to point out these common marks. The defense's expert as well testified there was a dark area on the rear passenger part of the van in the videotape that was in the location of the Accurate Mechanical logo on its vans. The videotape was properly introduced to allow the jury to compare the van in the Quik Trip videotape to the picture of an Accurate Mechanical van. VIII. Mistrial Piper contends the district court abused its discretion by failing to grant a mistrial after the prosecutor asked Quinn a question which shifted the burden of proof to him. Quinn was asked whether Piper had ever stated he had been at the hotel where the murder took place. We will not reverse a district court's ruling on a motion for mistrial absent a finding of abuse of discretion. State v. Greene, 592 N.W.2d 24, 30 (Iowa 1999); State v. Voll, 655 N.W.2d 548, 550 (Iowa Ct. App. 2002). A prosecutor may properly comment on a defendant's failure to present exculpatory evidence, if it does not call attention to the defendant's failure to testify. State v. Bishop, 387 N.W.2d 554, 563 (Iowa 1986). A prosecutor may remark that a defendant has a right to put on evidence, but not that he has the burden to put on evidence. Id. at 564; see also Brewer v. State, 444 N.W.2d 77, 84 (Iowa 1989) (noting a prosecutor's remarks may not shift the burden of proof). Here, at most, the prosecutor's question pointed out that Piper had an opportunity to present evidence, not that he had the burden to do so. The prosecutor's question did not shift the burden of proof. We find no abuse of discretion in the district court's denial of Piper's request for a mistrial due to the prosecutor's question. IX. Jury Instructions A. Piper claims the district court erred by not giving his proposed jury instruction on spoliation of evidence. Piper asked for this instruction because the State did not introduce at trial two electronic hotel keys found on Sakanovic. He asserts a spoliation instruction may be given when the State fails to produce important evidence. We review the district court's refusal to give a spoliation instruction for an abuse of discretion. State v. Piper, 663 N.W.2d 894, 914 (Iowa 2003) (citing State v. Langlet, 283 N.W.2d 330, 336 (Iowa 1979)). The district court ruled: On the spoliation of evidence . . . the Court makes the finding that the instruction is not appropriate under the facts of this case. There's no-the State chose not to bring the keys into court which is their choice. If the defense had wanted to have them in the courtroom, they certainly could have subpoenaed or asked that they be brought. There's no evidence that there has been any destruction of the room keys or the evidence. And in order to get a spoliation instruction, you have to have intentional destruction of evidence and that forms a basis for the inference. The bad faith destruction of exculpatory evidence is commonly referred to as spoliation. State v. Atley, 564 N.W.2d 817, 821 (Iowa 1997). It refers to the intentional destruction of relevant evidence. Lynch v. Saddler, 656 N.W.2d 104, 111 (Iowa 2003). Here, there was no evidence the electronic keys were destroyed. The State simply chose not to present them during the trial. Under these facts, we find no abuse of discretion in the district court's refusal to give a spoliation instruction to the jury. B. Piper next claims he was entitled to an alibi instruction because it supported his theory of defense that he was not at the hotel at the time of the murder. Piper failed to file notice of an alibi defense, as required by Iowa Rule of Criminal Procedure 2.10(11)(a). Furthermore, he did not attempt to produce any evidence in furtherance of an alibi at trial. We determine the district court did not abuse its discretion in failing to give an alibi instruction in this case. See State v. Garrett, 516 N.W.2d 892, 894 (Iowa 1994) (noting the district court has discretion to refuse alibi defense evidence when a defendant fails to file a notice of an alibi defense). C. Piper requested that "not guilty" be read first in the verdict forms before the option of "guilty." We review the district court's ruling on this issue for an abuse of discretion. Piper, 663 N.W.2d at 915. The jury was instructed that Piper was presumed innocent. We presume the jurors follow the instructions. Id. "We do not think the order of the verdict form deprived the defendant of the benefit of the presumption of innocence." Id. We find no abuse of discretion in the district court's refusal to change the order of the verdict forms. X. Sufficiency of the Evidence Piper contends the State did not present substantial evidence establishing that he murdered Sakanovic. We review sufficiency of the evidence claims for errors at law. Iowa R. App. P. 6.4. A jury's verdict is binding if it is supported by substantial evidence. State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998). Substantial evidence is such evidence as could convince a rational fact finder that the defendant is guilty beyond a reasonable doubt. State v. Kirchner, 600 N.W.2d 330, 334 (Iowa Ct. App. 1999). Direct and circumstantial evidence are equally probative. Iowa R. App. P. 6.14(6)(p). We find there is substantial evidence in the record to support the jury's verdict. Piper's DNA was found in a blood stain at the scene of the murder. The statistical evidence showed there was virtually no chance of anyone else on the planet having identical DNA. Other evidence also connected Piper to the murder. Fast testified she was eight-five percent certain Piper was the person she saw leaving the hotel shortly before Sakanovic's body was found. Sakanovic's wrists were bound with a type of tape used only in the heating and cooling industry, the same industry that employed Piper. Piper drove a white van for his work, and the Quik Trip videotape showed a white van leaving the area of the hotel at about the time of the murder. We affirm the jury's verdict. XI. Motion for New Trial Finally, Piper claims the district court abused its discretion by denying his motion for a new trial. A motion for new trial is addressed to the discretion of the court. State v. Adney, 639 N.W.2d 246, 253 (Iowa Ct. App. 2001). A district court ruling on a motion for new trial will be reversed only for a demonstrated abuse of discretion. State v. O'Shea, 634 N.W.2d 150, 154 (Iowa Ct. App. 2001). A new trial should be granted if the district court determines the verdict is contrary to the weight of the evidence. State v. Ellis, 578 N.W.2d 655, 658-59 (Iowa 1998). A verdict is contrary to the weight of the evidence where a greater amount of credible evidence supports one side of an issue or cause than the other. Id. at 659. In ruling on the issue, the district court found: This Court finds the weight of the evidence preponderates in support of the verdict and that no miscarriage of justice resulted when the jury found Defendant guilty of First Degree Murder beyond a reasonable doubt. The bloodstain identified as the Defendant's found on the bedspread at the crime scene was located in proximity to the bloodstains of the victim. Defendant denied ever working at or staying at the Budgetel Inn when interviewed by investigators. Other circumstantial evidence corroborates the scientific evidence including but not limited to the following: Tanya Fast identified Defendant with 85% certainty as the person she saw in the Budgetel moments before the victim's body was discovered. The tape used to bind the victim is the kind of tape used by workers in the industry in which Defendant worked. We find no abuse of discretion in the district court's conclusions on this issue. The weight of the evidence supports the jury's verdict. We affirm Piper's conviction and sentence for first-degree murder. AFFIRMED.