Williams v. Nix, 82-1140

• Citation: 751 F.2d 956
• Decision Date: 07 January 1985
• Docket Number: No. 82-1140,82-1140
• Parties: Robert Anthony WILLIAMS, Appellant, v. Crispus NIX, Warden of the Iowa State Penitentiary, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 956

751 F.2d 956

Robert Anthony WILLIAMS, Appellant, v. Crispus NIX, Warden of the Iowa State Penitentiary, Appellee.

No. 82-1140.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 11, 1984.

Decided Jan. 7, 1985.

Robert Bartels, Tempe, Ariz., for appellant.

Brent R. Appel and Thomas D. McGrane, Asst. Atty. Gen., Des Moines, Iowa, for appellee.

Before HEANEY, Circuit Judge, HENLEY, Senior Circuit Judge, and ARNOLD, Circuit Judge.

ARNOLD, Circuit Judge.

When this case was last before us, we directed that a writ of habeas corpus be granted unless the state commenced proceedings to re-try Robert Anthony Williams, the petitioner, for murder. We held that the State of Iowa had not proved that the police acted in good faith when they obtained statements from Williams that led them to the body of the murder victim. Therefore, in our view, the fact that the body had been discovered could not be admitted into evidence on the theory that the police would inevitably have found it even absent Williams's incriminating statements. Williams v. Nix, 700 F.2d 1164 (8th Cir.1983). The Supreme Court reversed, Nix v. Williams, --- U.S. ----, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), holding that the inevitable-discovery doctrine is a proper exception to the rule excluding evidence obtained through violations of the Sixth Amendment, and that the good or bad faith of the officers was irrelevant. Id. at 2510.

The Court remanded the case to us to consider petitioner's remaining arguments: (1) that his Sixth Amendment right to the effective assistance of counsel was violated when the state trial court refused to appoint out-of-state counsel of his choice; (2) that his right to an impartial jury was violated when the state trial court rejected his challenge for cause to a certain potential juror; (3) that the evidence of guilt was so clearly insufficient that no rational jury could have found beyond a reasonable doubt that he had committed deliberate and premeditated first-degree murder; (4) that jury instruction no. 8 deprived him of his right to be tried solely for the offense charged; and (5) that under the same jury instruction a verdict of guilty could be returned either if the petitioner had committed deliberate, premeditated murder, or if he had committed murder in the course of a felony, but no particular number of jurors were required to agree on one or the other species of murder. ¹ The District Court ² rejected each of these contentions, and, after carefully considering them, so do we.

We shall restate enough of the factual and procedural background to make the remaining issues clear. The victim, a ten-year-old girl, disappeared on Christmas Eve from a YMCA where she and her family were watching a wrestling match. Two days later, the petitioner was arrested, and, while being transported back to Des Moines from Davenport, Iowa, was urged by an officer to reveal where he had hidden the girl's body, so that she might be given a Christian burial. ³ As a result of the speech, Williams directed the police to the body, which was in a ditch near Des Moines. The victim had been sexually assaulted and had died from suffocation. Williams was tried on a charge of first-degree murder and convicted. The conviction was affirmed by the State Supreme Court, State v. Williams, 182 N.W.2d 396 (Iowa 1971). The conviction was vacated in a federal habeas proceeding, Williams v. Brewer, 375 F.Supp. 170 (S.D.Iowa 1974), aff'd, 509 F.2d 227 (8th Cir.1974), aff'd, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), which held that the Christian Burial Speech violated Williams's right to counsel. Williams was again tried and convicted. This time his statements were not used in evidence against him, but the fact that the body had been discovered, and the condition in which it was found, were introduced. The state court found that the police would have discovered the body even if Williams's damaging statements had not been made. ⁴ This second conviction was also affirmed by the State Supreme Court. State v. Williams, 285 N.W.2d 248 (Iowa 1979). The District Court denied habeas relief, Williams v. Nix, 528 F.Supp. 664 (S.D.Iowa 1981). This Court reversed the District Court, Williams v. Nix, 700 F.2d 1164 (8th Cir.1983), and, for the reasons stated above, the Supreme Court reversed us, Nix v. Williams, --- U.S. ----, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984).

We shall discuss each of Williams's remaining arguments in turn.

I.

Petitioner argues first that the trial court erred in refusing to appoint Sheldon Otis, a California lawyer, as counsel in this case. Williams requested the appointment of both Otis and Gerald Crawford, an Iowa attorney. The Court did not appoint Otis, but it did appoint Crawford, along with two other Iowa attorneys, Roger Owens and John Wellman. The Court gave as its reason for not appointing Otis that "the defendant's interests will be better served and ... the pretrial matters and the orderly processing of this case will be better served if the defendant is represented by counsel located in Des Moines." Appendix, State v. Williams, Supreme Court of Iowa, 285 N.W.2d 248. Defendant then moved for substitution of counsel, arguing that his interests would be better served by out-of-state counsel, who would not be subject to community pressure. He also argued that the Court had informed his then counsel that if Williams had retained Mr. Otis at his own expense, then Mr. Otis would have been permitted to appear as counsel. The Court treated the Motion for Substitution of Counsel as a motion for reconsideration of its decision not to appoint Mr. Otis. The Court denied the motion and held that defendant had no constitutional or statutory right to select appointed counsel.

Williams concedes that there is no absolute right to choose his own appointed counsel. ⁵ He contends, however, that an indigent has a qualified right to choose his own lawyer, drawn from the right to self-representation, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and the right to appointed counsel, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). He says that in the absence of countervailing state interests the trial judge is obliged to grant counsel of defendant's choice.

A trial judge has discretion to decide whether to appoint a particular lawyer to the case. That the presence of out-of-state counsel might hinder the orderly processing of the case is a sufficient countervailing state interest to justify the court's decision not to grant counsel of defendant's choice. In Morris v. Slappy, 461 U.S. 1, 103 S.Ct. 1610, 1616, 75 L.Ed.2d 610 (1983), the Supreme Court stated that "[t]rial judges necessarily require a great deal of latitude in scheduling trials." In Slappy, the Court held that defendant's right to counsel was not violated when the trial court denied his motion to continue the trial until the attorney of his choice recovered from surgery. There was another attorney representing Slappy, but Slappy would not talk to or cooperate with him. The Court held that the right to counsel does not include the right to a " 'meaningful relationship' between an accused and his counsel." Id. at 1617 (footnote omitted). See also United States v. Solina, 733 F.2d 1208, 1211-12 (7th Cir.1984), cert. denied --- U.S. ----, 105 S.Ct. 519, 83 L.Ed.2d 408 (1984).

In reply, Williams points to the trial court's statement, apparently made during an informal conversation with counsel, that it would have permitted Otis to appear if he had been retained. This statement, the argument runs, proves that there was in fact no genuine concern that Otis's presence as appointed counsel would impede the orderly processing of the case. In addition, Williams argues, the statement appears to concede that he would have been allowed to use Otis as one of his lawyers if he had had the money to pay him. A state policy allowing criminal defendants with financial means to employ out-of-state counsel, while denying such a right to indigents, raises a serious equal-protection claim, petitioner asserts. This argument has force in the abstract, but we still do not believe that a sufficient infringement has been shown to justify setting aside this conviction. The absence of Otis as one of his lawyers occasioned absolutely no prejudice to Williams. We have read the entire record of the trial, and the lawyers who handled the case for Williams, including one whom he had requested by name, did everything that Otis could have done if he had been present, so far as we can tell. When counsel is denied outright, or when counsel has a conflict of interest, no showing of prejudice need be made, but we decline to extend this rule to the present situation. Here, counsel were appointed, including one of Williams's choice, and the absence of a particular named out-of-state lawyer had no practical impact on the trial. Although petitioner claims that out-of-state counsel would have been less vulnerable to "community pressure," he does not state that the lawyers who actually handled the case succumbed to or were affected by any such pressure.

II.

Williams claims that his challenge for cause to a member of the jury panel, a Mrs. Neuzil, should have been granted. He says that her voir dire showed that she could not be impartial. The defendant did not preserve this challenge in accordance with Iowa law, which requires that he specify the grounds upon which his challenge was based. State v. Williams, 285 N.W.2d 248, 267 (Iowa 1979), cert. denied, 446 U.S. 921 (1980). Therefore, review is precluded in this Court, absent a showing of cause and prejudice. Graham v. Mabry, 645 F.2d 603, 605 (8th Cir.1981).

No "cause" has been shown. Williams's attorneys have filed affidavits stating that they thought they had made the reason for their challenge to Mrs. Neuzil clear, and that they did...