Conner v. State

• Decision Date: 13 February 1985
• Docket Number: No. 83-1193,83-1193
• Citation: 362 N.W.2d 449
• Parties: Atwell Junior CONNER, Appellant, v. STATE of Iowa, Appellee.
• Court: Iowa Supreme Court

Page 449

362 N.W.2d 449

Atwell Junior CONNER, Appellant, v. STATE of Iowa, Appellee.

No. 83-1193.

Supreme Court of Iowa.

Feb. 13, 1985.

Jon M. Kinnamon of Kinnamon, Kinnamon, Russo & Meyer, Cedar Rapids, for appellant.

Thomas J. Miller, Atty. Gen., Mary Jane Blink, Asst. Atty. Gen., and John J. Hines, County Atty., for appellee.

Considered by HARRIS, P.J., and McGIVERIN, LARSON, SCHULTZ and WOLLE, JJ.

SCHULTZ, Justice.

This postconviction proceeding has been instituted by the petitioner, Atwell Junior Conner, following his conviction for murder in the first degree in violation of Iowa Code section 690.2 (1973). At trial both parties offered a stipulated record, and petitioner additionally offered exhibits and undisputed affidavits. The trial court determined there were no material facts at issue. It found no legal basis for postconviction relief and denied the application. We affirm.

The facts surrounding the crime were detailed in State v. Conner, 241 N.W.2d 447 (Iowa 1976), and we shall only briefly address them. During the evening of March 9, 1974, Conner was in the company of George Nowlin when the two planned to commit a robbery. Armed with weapons, they drove through the streets of Cedar Rapids and near midnight saw a girl and boy walking on the roadway. They stopped to rob the boy, Michael Servey, and forced both into their auto. Sometime later Nowlin raped and killed the girl, Maureen Ann Connolly.

Conner's conviction was affirmed by this court on direct appeal. Id. Conner filed a habeas corpus petition in the United States District Court alleging that his state conviction was in violation of the United States Constitution. After the federal district court dismissed the petition, Conner appealed to the United States Court of Appeals for the Eighth Circuit. Out of the six issues litigated, the court of appeals affirmed the federal district court on four issues and vacated its ruling on two issues on the basis that Conner had failed to exhaust his state remedies. Conner v. Auger, 595 F.2d 407, 413 (8th Cir.), cert. denied, 444 U.S. 851, 100 S.Ct. 104, 62 L.Ed.2d 67 (1979).

The present application for postconviction relief was then filed, raising the two issues that the court of appeals' decision declared had not been exhausted and raising other and new grounds. On this appeal, Conner asserts: (1) that the jury instructions denied him due process, equal protection, a fair trial and trial by jury by failing to adequately present his theory that both the killing and the malice aforethought attributable to the principal who perpetrated the murder could have arisen from an underlying felony other than the underlying felony of robbery which formed the basis of petitioner's culpability, absolving petitioner of guilt under the State's felony-murder theory; (2) that the jury instructions conclusively imputed the perpetrator's malice aforethought to the petitioner without requiring a finding that his participation in an underlying robbery established the mens rea required for a murder conviction, thereby denying him due process; (3) that the attached instructions erroneously omitted two elements of the crime; (4) that an underlying felony of kidnapping supplied a basis for an instruction on second degree murder and that the failure to so instruct the jury denied petitioner due process and equal protection when he was charged under an open charge of murder; (5) that the State's failure to disclose exculpatory evidence, consisting of a statement of his cellmate relating a conversation concerning the crime, denied him due process; (6) that he was denied due process and equal protection when the lesser included offense of second-degree murder was not submitted to the jury, yet the lesser included offense was submitted in other cases involving a defendant charged under an open charge of murder; and (7) that under the standard set out in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the evidence was insufficient to support a verdict of guilty on a charge of first-degree murder. The State asserts inter alia that some of the issues stated above were either resolved on direct appeal, waived when not raised on direct appeal, or not preserved at trial for purposes of appeal. Petitioner asserts that just cause exists for failure to raise any issues not properly preserved for appeal and that the State is estopped from asserting that his first two stated issues were waived when, with regard to those issues, the State argued to a federal court that he had not exhausted state remedies.

Conner's conviction for murder in the first degree arose from Iowa's felony-murder rule, section 690.2 (1973), which provided in pertinent part: "All murder ... which is committed in the perpetration or attempt to perpetrate any ... robbery is murder in the first degree." The theory of the State's case presented to the jury by the trial court's instructions was that Conner aided and abetted Nowlin in the felony-murder of Connolly. The jury was instructed that the underlying felony was the robbery of Servey.

I. Theory of defense instruction. Conner claims he was denied due process, equal protection, a fair trial and trial by jury by the trial court's refusal to give instructions that presented his theory of defense. This alleged available defense was the theory that the State had not proved Nowlin's killing of Connolly did not arise from intent unrelated to the crime of robbery. He urges that Nowlin could have killed Connolly in the perpetration of rape; if the jury so found, no malice could be implied to Conner for the killings through his participation in the robbery. The State urges that we have litigated this issue in the original appeal when we held that Conner did not request a theory of defense instruction, but simply excepted to the marshalling of the elements instruction and the instruction that the State had to prove the murder was committed "in the perpetration of robbery." Conner, 241 N.W.2d at 463.

In instruction 11, the trial court set out the elements of the offense, instructing the jury the State had to prove beyond a reasonable doubt that (1) Nowlin did unlawfully shoot Connolly; (2) Connolly died as a result; (3) such action of Nowlin was done with malice aforethought; and (4) such action of Nowlin was committed in perpetration of the robbery of Servey by Conner and Nowlin, in which Conner actively participated or knowingly aided and abetted Nowlin. Instruction 12 defined the fourth element as follows: "That such action of George Nowlin was committed in the perpetration of a robbery of Michael Servey only if the robbery of Michael Servey and the killing of Maureen Ann Connolly were parts of one continuous series of acts connected with each other."

After we indicated in our earlier ruling that defendant's objections to instructions 11 and 12 were not truly requested instructions but were exceptions to the proposed instructions, we explained that the felony-murder rule in Iowa, found in section 690.2 "does not make all killings in perpetration of the designated felonies murder. It makes murder in perpetration of such felonies first-degree murder." Conner, 241 N.W.2d at 447 (emphasis in original).

We reviewed the objection as follows:

In excepting to this instruction, defense counsel contended the explanation was inadequate and requested the jury be told:

"You are instructed that such action of George Nowlin was committed in the perpetration of a robbery of Michael Servey only if the death of Maureen Ann Connolly occurred in the immediate perpetration, actual commission and immediate escape from the robbery of Michael Servey."

In the alternative, if this change were refused, defense counsel requested the jury be told defendant could be convicted only if Maureen's death occurred incident to the robbery of Michael "rather than arising from the formation of a separate and specific intent unrelated to the crime of robbery."

Id. We then held that a murder is in perpetration of a felony if it is an incident to the felony and is associated with the felony as part of an unbroken chain of events or as part of one continuous series of acts connected with each other. Id. at 463-64.

We addressed defendant's second or alternative exception as follows:

Defendant's second or alternative exception presents a closer question. Defendant alleges his alternative request would inform the jury of the State's obligation to prove the robbery and murder were causally and not merely sequentially related. That purpose is not entirely clear from defendant's exception and the language requested. In any event, we believe the court's instruction substantially and adequately embodied the concept urged by defendant. At least it did so as well as the language suggested by defendant.

Although the court's instruction might well have been more detailed, we do not believe it was deficient in the respects claimed by defendant. The trial court did not err in overruling his exceptions.

Id. at 464.

In his argument before the U.S. Court of Appeals, Conner attacked instruction 12, contending "that this instruction failed to present to the jury his theory of defense, in that it allowed an implication of Conner's guilt for felony-murder on the basis of a temporal connection between the robbery and Nowlin's killing of Ms. Connolly, without any jury finding of a causal relation between those two crimes." Auger, 595 F.2d at 412 (emphasis in original).

We feel that the issues presented by Conner are somewhat clouded and confusing. This is in part due to the fact that the objections that Conner claims preserved error were in the form of exceptions to the marshalling of the elements instruction and the definition of a term rather than a request for a theory of defense instruction. A proper theory of defense instruction is one which sets forth a set of facts which would preclude a finding of guilt. State v. Kase, 344 N.W.2d 223,...