IN THE COURT OF APPEALS OF IOWA
No. 3-510 / 02-1124
Filed October 15, 2003
STATE OF IOWA,
DONALD ARTHUR PIPER,
Appeal from the Iowa District Court for Polk County, Linda R. Reade,
Donald Piper appeals his conviction for first-degree murder.
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.
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
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
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
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
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
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
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
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
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
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.