By Samantha Pidde
Herald Staff Writer
Clinton County District Court Judge Marlita Greve has denied a motion of dismissal filed by a Clinton man charged with felony murder.
Andy Cole, 47, of Clinton, is charged with first-degree murder in connection with the 2008 death of Alysia Marburger, 27, of Sabula. Cole and his attorney, Bruce Ingham, had filed a motion to dismiss the charge Dec. 13. The state alleges Cole murdered Marburger while committing sexual abuse, which constitutes a felony murder. However, Cole and his attorney have argued that the bill of particulars and witness testimony do not support that sexual abuse was committed or that the defendant committed the murder during the abuse.
Greve considered both the defendant and the state’s arguments. The state argued that according to Iowa R. Crim. P. 2.11(6)(a), there are only three grounds for dismissal of trial information. The first is if it appears that the particulars do not constitute the offense charged in the trial information. The second would be if the bill of particulars does not state the defendant committed the offense. The third is related to a statute of limitations.
A ruling denying the defendant’s motion was filed Wednesday morning. In the ruling, Greve agrees with the state’s argument. “The State correctly sets forth the standards this court must follow in deciding a motion to dismiss. When ruling on a motion to dismiss, the court must accept the facts alleged by the state in the trial information and minutes of testimony as true,” Greve wrote in her ruling. “It is improper for the court to conduct an evidentiary hearing on a motion to dismiss.”
Greve explained that there is no statute of limitations for a charge of murder. In addition, Cole has been put on notice that he is charged with murder while engaged in an act of sexual abuse. Greve states that the only remaining question would be whether the facts alleged support the charge against Cole.
“The State has again laid out a myriad of facts it alleges support its charge against the Defendant,” Greve wrote.
Greve adds the state argues that circumstantial evidence will show that Cole was the last person to see the victim alive and clearly had sex with her based on his own admission and DNA found on her body. The state also maintains that there were phone calls attempted from her telephone in the early morning hours of Oct. 7, 2008, the date she was last seen alive.
“The State also points to many other alleged facts which it webs circumstantially into its murder theory,” Greve wrote. “At this point, the court cannot make any credibility determinations.
Accepting the facts alleged by the State as true and giving it all reasonable inferences, the court finds Defendant’s motion to dismiss must be denied.”