Court rules on killer’s appeal, teacher lewdness, UNLV police cases

By Cy Ryan (contact)

Thursday, Sept. 24, 2009 | 6:18 p.m.

CARSON CITY – The Nevada Supreme Court has rejected the appeal of Las Vegas killer Demarlo A. Berry and upheld the conviction of Henderson School Teacher Mark Zana for gross lewdness with students.

The court also turned down the appeal of two UNLV police officers fired on charges of presenting false claims in 2002 and who sought reinstatement.

Berry, now 34, was sentenced to life in prison with the possibility of parole for the April 1994 shooting of Charles Burke, a manager of a Carl’s Jr. restaurant, during a robbery.

Berry, held at the Southern Desert Correctional Center, claims there was a flawed jury instruction on the elements of first-degree murder.

The court said Berry’s petition was “untimely filed” because it comes 11 years after the court turned down his first appeal. It said briefing and oral arguments “are unwarranted” as sought by Berry.

In the case of elementary school teacher Zana, he was accused of touching the breasts of students and inviting them to place their hand in his pocket to get candy.

He was convicted in 2007 of one count of open or gross lewdness, three counts of lewdness with a child under 14 and six counts of possession of visual representation depicting sexual conduct of a person under the age of 16.

Among his arguments, Zana contends that evidence of prior bad acts should not have been admitted at his trial.

He was convicted in 1992 of fondling the breast of a 13-year-old girl in Pennsylvania. Under the plea agreement, the records of the case were expunged.

He was accused in 1998 while working as a teacher in Henderson of enticing a second-grader to touch his penis by telling her she could retrieve candy from his pocket. Charges were filed but dismissed when the victim’s parents did not want her to have to testify. The records were sealed.

The prosecution in raising the prior acts sought to disprove Zana’s claims that the touching was accidental, misinterpreted or an isolated mistake.

The Supreme Court upheld the ruling of District Judge Jackie Glass, who permitted the testimony of Zana’s prior victims. It also rejected the claim that there was jury misconduct.

One juror, while at home, engaged in an Internet search for a particular pornographic Web site that was mentioned during the trial. But he said he never found it.

Zana, now 41 and in prison at the Lovelock Correctional Center, was sentenced to three life terms with parole plus other terms.

In another decision, the court rejected the appeals of former UNLV police officers William Mason Sr. and Brian Dias, fired in 2002 for presenting false claims. They were charged with a criminal complaint but a jury acquitted them.

They then filed suit to regain their jobs and their back pay.

The Supreme Court upheld District Judge Jackie Glass, who ruled Sgt. Dias and Officer Mason waited too long to file their suit. The legal action was brought past the four-year deadline.

The two were accused of falsifying their time reports. They denied the allegation and said the discrepancies were due to informal flex time policies at UNLV.