Conner v. Auger

• Decision Date: 17 April 1979
• Docket Number: No. 78-1350,78-1350
• Citation: 595 F.2d 407
• Parties: Atwell Junior CONNER, Appellant, v. Calvin AUGER, Warden, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 407

595 F.2d 407

Atwell Junior CONNER, Appellant, v. Calvin AUGER, Warden, Appellee.

No. 78-1350.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 12, 1978.

Decided March 23, 1979.

Rehearing and Rehearing En Banc Denied April 17, 1979.

Jon M. Kinnamon of Kinnamon, Kinnamon, Heintz & Russo, Cedar Rapids, Iowa, for appellant; Jerald W. Kinnamon, Cedar Rapids, Iowa, on the brief.

Thomas D. McGrane, Asst. Atty. Gen., Des Moines, Iowa, for appellee; Richard C. Turner, Atty. Gen., Des Moines, Iowa, on the brief.

Before VAN OOSTERHOUT, Senior Circuit Judge; ^* LAY and BRIGHT, Circuit Judges.

PER CURIAM.

Atwell Junior Conner appeals from the district court's denial of his petition for a writ of habeas corpus. Conner seeks relief from a life sentence imposed by an Iowa state court upon his conviction after a jury trial for the first-degree murder of Maureen Ann Connolly in Jones County, Iowa.

Conner took no part in the killing of Ms. Connolly, but, earlier that evening he had accompanied George Nowlin in the abduction and robbery of Ms. Connolly and her companion, Michael Servey. Nowlin killed Ms. Connolly about one hour after the robbery. Conner's conviction rests upon the former Iowa felony-murder statute, which provided in pertinent part:

All murder * * * which is committed in the perpetration or attempt to perpetrate any arson, rape, robbery, mayhem, or burglary, is murder in the first degree * * *. ¹

The Iowa Supreme Court affirmed Conner's conviction on direct appeal. State v. Conner, 241 N.W.2d 447 (Iowa 1976). The United States District Court, in an unpublished decision, denied Conner any relief on his habeas petition, and Conner brings this appeal. We affirm four rulings of the district court, but, under the exhaustion of remedies doctrine, we vacate certain rulings relating to issues which Conner did not fully present to the Iowa state courts.

I. Factual Background.

On the evening of March 8, 1974, Conner discussed the possibility of committing a robbery with two friends, George Nowlin and Steve Martin. The next morning, March 9, at Nowlin's insistence, the trio obtained a single-shot shotgun from Conner's home. They took the gun to the apartment of Mabel Beltz, Nowlin's girlfriend, and Nowlin sawed off the gun barrel. The trio spent most of that day together.

At about 9:30 the evening of March 9, Nowlin and Conner dropped Martin off at the Beltz apartment. Nowlin told Beltz he was going to commit a robbery. Martin testified at trial that Conner had nodded his head affirmatively in response to Nowlin's statement that Conner might have to use one of the guns if he stayed with Nowlin. Conner left for a time, but at about 10:30 he rejoined Nowlin in Nowlin's car. Nowlin possessed two loaded shotguns in the car, a five-shot pump shotgun under his seat and the sawed off single-shot in the glove compartment.

At approximately midnight, Nowlin and Conner saw two teenage persons, Maureen Ann Connolly and Michael Servey, walking by the roadway. Nowlin drove past them, stopped the car, and ordered Conner into the backseat. He then turned the car around and approached the couple. Nowlin ordered the two teenagers into the car and demanded money. Servey handed some money to Conner, who deposited it in Nowlin's shirt-pocket. According to the prosecution's evidence, Conner possessed one of the shotguns during this robbery and, at least at one point, directed it towards Connolly and Servey. ²

Nowlin drove the car containing Conner and the two teenagers north for approximately one hour. Then, at about 1:00 a. m., March 10, Nowlin stopped the car near a bridge on a gravel road in rural Jones County, got out of the car, and ordered Maureen Connolly to accompany him. Nowlin took both guns with him and threatened to kill Servey and Conner if they left the car. Nowlin then raped the girl at a location near the vehicle. When Ms. Connolly attempted to escape, Nowlin killed her with two blasts from a shotgun.

Sometime later, after forcing Conner to drive the car into another county, Nowlin also killed Michael Servey.

Nowlin and Conner returned to the Beltz apartment in Cedar Rapids. Nowlin told Beltz he had killed the two teenagers, and he thereafter threatened to kill Beltz, Martin, and Conner if they informed on him to the police.

Martin went to the police on March 18, 1974, and reported what he knew of the killings. At about 4:00 a. m. the next day, officers awakened Conner at his home and asked him to voluntarily accompany them to the police station for questioning.

Three officers interviewed Conner, who had not yet been arrested, for about one and one-half hours at the police station. The officers admitted at trial that, because of a severe speech impediment possessed by Conner, they found it difficult to understand many of Conner's statements. Yet, the officers did not record the interview. During this interview, Conner admitted his participation in the events prior to Nowlin's killing of Connolly and Servey, but he refused to sign a written summary of his statements as prepared by the officers after the interview.

Conner was tried upon an indictment for murder without specification of degree. At trial, the prosecutor never alleged that Conner participated in the rape or murder of Ms. Connolly. However, the prosecutor argued that Conner committed first-degree felony-murder, on the theory that Conner participated in the robbery of Michael Servey and that Nowlin killed Maureen Connolly in the perpetration of that robbery. Conner sought to defend by showing that he took no active part in the robbery and that, in any event, Nowlin killed Ms. Connolly for independent reasons after the completion of the robbery. The trial judge instructed the jury solely on first-degree felony-murder, in accordance with the prosecution theory.

II. Conner's Claims for Relief.

In his habeas petition and on this appeal, Conner raises six claims for relief. We discuss those claims seriatim, in the order presented by Conner.

1) The indictment charging Conner with "murder" of Maureen Connolly failed to provide adequate notice of the charge of first-degree murder eventually submitted to the jury.

The indictment charged Conner with "murder" without any specification of degree. Conner filed a pretrial motion for a bill of particulars, asking under which section of the Iowa murder statute he was charged and whether the prosecution would invoke the felony-murder rule. The state trial court denied that motion, in effect allowing the prosecution to proceed on alternative theories of murder.

The trial court ultimately instructed the jury solely on first-degree felony-murder, and it overruled Conner's objection that the indictment was insufficient to charge other than second-degree murder.

In its order denying habeas relief, the federal district court denied Conner's claim that the indictment was insufficient for essentially the same reasons given by the Iowa Supreme Court in upholding the trial judge's rulings on appeal: the indictment, together with the minutes of grand jury testimony attached to it, amply informed Conner of the specific act for which he was charged. The Iowa Supreme Court fully discussed this issue in State v. Conner, supra, 241 N.W.2d at 451-52, 460.

After reviewing the record, we agree with the federal district court's conclusion that the ruling of the Iowa courts holding the indictment sufficient does not present an issue of constitutional dimension. ³ ] Accordingly, we reject Conner's contention on this issue.

2) Conner's statements to the police should have been suppressed because Conner did not knowingly and voluntarily waive his rights to counsel and to remain silent.

The record reveals that police officers informed Conner of his Miranda rights both when they contacted him at his home and when he arrived at the police station on March 19. Before discussing the killings with the police, Conner signed a waiver of rights form, which the officers had explained in detail.

We agree with the district court that the record supports the state courts' findings that Conner's low intelligence did not, in these circumstances, preclude his understanding the nature and significance of his constitutional rights and that Conner's uncounselled statements to the police were the product of an essentially free and unconstrained choice.

3) Prosecutorial misconduct deprived Conner of a fair trial.

The district court, after reviewing the final arguments and the record in this case, found no error of constitutional significance. We agree with that determination.

4) The state trial court's refusal to permit Conner to introduce polygraph evidence in his defense served to deny Conner due process.

Conner underwent two polygraph examinations which tended to support the truthfulness of his version of the abduction and robbery of Michael Servey and Maureen Connolly, I. e., that Conner never possessed either of the guns during those events. The trial court, however, granted the prosecutor's motion to exclude the polygraph results as evidence, on the ground that established Iowa law precludes the use of unstipulated polygraph evidence at trial over the objection of a party.

Conner contends that the polygraph examination results were critical to his defense, and he asserts a constitutional right, based either on due process or on the right to compulsory process, to introduction of such evidence despite the contrary state evidentiary rule. Conner relies upon Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973).

The Iowa Supreme Court discussed this issue thoroughly and thoughtfully in its opinion on Conner's direct appeal. State v. Conner, supra, 241 N.W.2d at 456-60. That court concluded that its rule excluding unstipulated polygraph evidence rests upon considerations of fairness and reliability and that Conner's right to present evidence in his defense cannot override such an evidentiary rule....