116 3rd St SE
Cedar Rapids, Iowa 52401
CEDAR RAPIDS - The DNA evidence that authorities say links Jerry Burns of Manchester to the 1979 cold case slaying of Michelle Martinko will be allowed at trial, a judge ruled Thursday.
6th Judicial District Judge Fae Hoover, in the ruling, said Burns, 66, acknowledged during last month's evidence suppression hearing that on Oct. 29, 2018, he left his drinking straw on the table at a Pizza Ranch restaurant to be disposed of by employees.
Authorities, who had been watching covertly, retrieved the straw and got the DNA on it tested.
Hoover said the law is 'well-settled” that a person gives up a 'reasonable expectation of privacy in property that has been abandoned.”
Therefore, she ruled, authorities did not need a warrant to obtain the straw and DNA left on it.
Prosecutors say DNA from the straw matches DNA from blood evidence at the crime scene. Burns is charged with first-degree murder in the four-decade-old case.
A criminal complaint showed that a partial male DNA profile was developed from blood found on Martinko's dress; fewer than 1 in 100 billion unrelated individuals could have the same profile. And another profile was developed from blood found on the gear shift of Martinko's car, where her body was found Dec. 20, 1979 in a parking lot of the Westdale Mall.
This was a crucial ruling for the prosecution. The case had remained unsolved for 38 years because authorities have said didn't have enough evidence to make an arrest until they got a DNA match in 2018.
Last month, Hoover heard testimony during three hearings on the defense's motions to forbid at trial computer evidence found during a police search, and to suppress the DNA evidence, arguing police didn't have a warrant and violated Burns' rights.
Hoover, in a ruling Wednesday, hindered prosecutors somewhat, ruling they cannot try to persuade a jury that Burns was motivated to kill Martinko because he had a 'fetish” for viewing internet pornography featuring blonde women being sexually assaulted and killed. The computer evidence was found 38 years after the crime, which lessens its relevance and is 'unduly prejudicial” to Burns, the judge ruled.
In Thursday's ruling more favorable to prosecutors, Hoover denied Burns' assertion that the comparison of the male DNA profile developed from Martinko's black dress with DNA from Brandy Jennings, a distant cousin, found in the GEDmatch database, which is public, was an illegal search of his 'familial genetic material.”
In authorizing a company to compare the DNA profile from the dress, Cedar Rapids police didn't violate Burns' rights, she ruled.
A defense challenge to police obtaining DNA from Burns' brothers to exclude them as suspects was also denied. Burns doesn't have a privacy right to his brothers' DNA, Hoover said.
Most of Burns' statements to police during a December 2018 interview in his office can also be admitted at trial.
Leon Spies, Burns' lawyer, argued Burns didn't know he wasn't in custody and police didn't inform him of Miranda rights at the time, so his statements should be tossed out.
Burns talked with two investigators in his office - on the anniversary of Martinko's death. Although investigators closed the door, Burns was free to move around his office; his son was allowed to enter at one point; and Burns was allowed to use his phone, Hoover noted.
Cedar Rapids police Investigator Matthew Denlinger confronted Burns with evidence of his guilt and made it clear police were there to obtain Burns' DNA for testing and would return after receiving results.
But during the interview, Burns asked if police had been watching him. Denlinger confirmed they had been. Burns, at this point, 'reasonably believed that he was not free to leave,” the judge determined.
Because a 'custodial atmosphere” existed, according to the ruling, Hoover said any statements made by Burns after Denlinger confirmed police were watching his property will not be allowed at trial.
The rest of the interview - including Burns' statements made during a car ride to the Cedar Rapids Police Department after he was read his Miranda rights - will also be allowed.
Denlinger, at one of last month's hearings, testified Burns repeatedly said he didn't know how his DNA was found at the crime scene. He said he didn't know Martinko and he had no memory of being at the crime scene.
Burns was read his rights on the way to the police department, Denlinger said, but Burns continued to talk and made a reference to 'blacking out,” the investigator said. Burns did ask for a lawyer once at the department.
Hoover, in her ruling, also said because Burns sent text messages and made phone calls during the interview, a warrant to search his cellphone was supported by probable cause and also will be allowed at trial.
Denlinger, also during the previous hearing, said there was little internet history on Burns cellphone, but he had downloaded a book about a cold case homicide involving DNA.
A pretrial hearing is set for Friday in Linn County District Court.
Burns' trial starts Monday in Scott County District Court. It was moved there because of pretrial publicity.
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