Cunha v. Brewer, 74--1521

• Decision Date: 19 March 1975
• Docket Number: No. 74--1521,74--1521
• Citation: 511 F.2d 894
• Parties: Louis CUNHA, Appellant, v. Lou V. BREWER, Warden at the Iowa State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 894

511 F.2d 894

Louis CUNHA, Appellant, v. Lou V. BREWER, Warden at the Iowa State Penitentiary, Appellee.

No. 74--1521.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 10, 1975.

Decided Feb. 7, 1975.

Rehearing and Rehearing En Banc

Denied March 19, 1975.

Robert N. Clinton, Iowa City, Iowa, for appellant.

Fred M. Haskins, Asst. Atty. Gen., Des Moines, Iowa, for appellee.

Before MATTHES, Senior Circuit Judge, and STEPHENSON and WEBSTER, Circuit Judges.

MATTHES, Senior Circuit Judge.

Petitioner Louis Cunha, an Iowa state prisoner, was found guilty on an information charging him with murder and robbery with aggravation. The robbery took place in a supermarket at Algona, Iowa, at approximately 9:00 p.m. on June 14, 1970. During the robbery, Melvin Bay, the manager of the market, was shot. He died about ten days later from the gunshot wound. The judgment of conviction under which petitioner was sentenced to concurrent terms of life imprisonment for the murder and 25 years for the robbery was affirmed by the Supreme Court of Iowa. State v. Cunha, 193 N.W.2d 106 (Iowa 1971). ¹

On July 9, 1973, petitioner, acting pro se, filed a petition for writ of habeas corpus in the United States District Court for the Southern District of Iowa. Since filing this action, petitioner has been represented by court-appointed attorneys associated with the University of Iowa Law School.

The district court, upon consideration of 'the transcripts of the petitioner's trial, the record on appeal to the Iowa Supreme Court, the decision of the Iowa Supreme Court, and all of the matter submitted to the Court by the petitioner,' denied the petition for habeas corpus relief and dismissed the proceeding. In appealing from the order of dismissal, petitioner presents two basic claims:

(1) There was a total lack of evidentiary support for the convictions so as to deprive petitioner of due process of law in contravention of the fourteenth amendment.

(2) Introduction into evidence of certain other crimes, allegedly committed by petitioner and his companions shortly before and after the Algona robbery, deprived petitioner of a fair trial, in violation of the fifth, sixth, and fourteenth amendments.

Since petitioner attacks the sufficiency of the evidence of guilt and the admission of certain evidence at his trial, it is necessary that we present a summary of the relevant evidence.

On June 11, 1969, four men, Al Gilroy, Thomas Hinsey, Ronald Kelsey, and petitioner, escaped from the county jail in St. Cloud, Minnesota. The men stole a county squad car parked outside the jail, but they abandoned it a short distance away after removing handcuffs, Mace, and some .38 caliber bullets from the car.

On June 12, a 1961 light-colored Chevrolet station wagon was stolen in Sartell, Minnesota, a community just outside St. Cloud. The car was subsequently recovered in Mankato, Minnesota.

In the late afternoon of the next day, June 13, the four men offered two young girls in Mankato a ride in a light-colored 1961 Chevrolet station wagon. The two girls agreed, and the men accompanied them to social gatherings at two homes in Mankato that evening. During the evening various people saw petitioner with handcuffs and Mace. Moreover, one person heard petitioner tell one of the other escapees to go to the Chevrolet to retrieve an item 'under the floormat by the gun.'

On June 13 or 14 a 1963 Chevrolet was stolen in Mankato. It was recovered on June 15 in Garner, Iowa.

In the afternoon of June 14, a Mrs. Beatrice Nelson of West Okoboji, Iowa, discovered that her purse had been rifled in her home and her billfold, with thirty dollars, credit cards, and a driver's license, had been stolen. That same afternoon petitioner entered a clothing store in the nearby town of Milford, Iowa, and cashed a check payable to himself and bearing the apparently forged signature of Mrs. Beatrice Nelson as the payor. In addition, petitioner was seen in Milford that same day in the company of two other men, one of whom was Gilroy.

At 7:00 p.m. on the same day, June 14, several of the escapees committed an armed robbery in a grocery at Spirit Lake, Iowa, a short distance from Milford. A check-out clerk at the store testified to seeing petitioner in front of the store at the time of the robbery, walking back and forth. The robbers stole a car from the immediate vicinity of the store and then abandoned it several blocks away.

Seventy-five minutes later, Gilroy robbed a gas station attendant in Emmetsburg, Iowa, located a short distance from Spirit Lake. The attendant's wallet was found the next day lying along the road leading east to Algona.

At 9:00 p.m., forty-five minutes after the Emmetsburg robbery, at least two of the escapees entered the Fareway supermarket in Algona. There was evidence that approximately 27 dollars was taken from one cash register till. One of the men, apparently Kelsey, shot Melvin Bay in the abdomen. As stated, Mr. Bay died from the gunshot wound. As at St. Cloud and Spirit Lake, the robbers fled in a car stolen in the immediate vicinity of the crime, abandoned the vehicle a few blocks away, and apparently transferred to another car.

None of the witnesses of the Algona robbery placed petitioner at the scene of the robbery or testified seeing him anywhere in Algona. The only witness for petitioner testified that shortly after 9:00 p.m. the car in which he was riding was passed by a 1965 or 1966 General Motors auto travelling east at high speed. The witness could see two men in the front seat of the speeding car, but could not tell if anyone was in the back seat. No other car was reported stolen in Algona that night.

The next day, June 15, a green 1960 Chrysler was reported stolen in Garner, Iowa, which is east of Algona. The 1963 Chevrolet stolen in Mankato was recovered in Garner the same day. Among the items law enforcement authorities found in or near the recovered Chevrolet were the can of Mace stolen in St. Cloud, handcuffs, and the billfold of Mrs. Beatrice Nelson.

That same day, June 15, the four escapees met four young girls, Christine Henninger, Paula Campbell, Mary Meighan, and Gwen Green, at a beach in Waterloo, Iowa. The men spent several hours with the girls, swimming and picnicking. Later, in the evening, the four escapees and three of the girls drove to a restaurant in Waterloo called the Grill. At the time the men were driving the 1960 green Chrysler stolen in Garner.

Outside the restaurant the girls became involved in an argument with two 'go-go' girls from a local club, Sheila Garoutte and Barbara Hardesty. The men and the three girls got into the Chrysler, but the two go-go girls followed them to the car and continued the dispute. Gilroy and petitioner got out of the car and persuaded the two go-go girls to calm down. One of the girls, Garoutte, testified that, 'He (petitioner) told me that they had broken out of jail in Minnesota and they robbed three different places and they shot a man.' Apparently these statements were made to explain to the two go-go dancers why the men did not wish to attract attention in front of the restaurant, since a police officer was sitting in his patrol car across the street. Two of the girls in the car, Henninger and Campbell, testified that such a statement about escape and robberies had been made, although they were unsure whether it was Gilroy or petitioner who had spoken it. Moreover, according to Garoutte, petitioner recounted in detail the circumstances of the shooting. Hardesty, on the other hand, testified that petitioner had told her at the Grill that he had split up from the other three men shortly after the escape and had just met up with them again. During the conversation with the go-go girls the men admitted that the Chrysler had been stolen. Later in the evening petitioner and Hinsey confided to Meighan and Campbell that after their escape they had traveled south through Minnesota in a stolen car.

A few days after the Algona robbery and after the theft of another car, the four men separated, and petitioner eventually surrendered to police in New Bedford, Massachusetts. While in custody of authorities in New Bedford, petitioner voluntarily related to police officials that he had been with the other three escapees for four days after the flight from the St. Cloud jail.

Before analyzing the critical facts, we take note that, since this is an action pursuant to 28 U.S.C. § 2254, the scope of our review of the two issues relied upon by petitioner is very limited.

It is settled law that the sufficiency of the evidence to support a state conviction raises no federal constitutional question and cannot be considered in a federal habeas corpus proceeding by a state prisoner. Hendricks v. Swenson, 456 F.2d 503 (8th Cir. 1972); Sinclair v. Turner,447 F.2d 1158 (10th Cir. 1971), cert. denied, 405 U.S. 1048, 92 S.Ct. 1329, 31 L.Ed.2d 590 (1972); United States ex rel. Cunningham v. Maroney,397 F.2d 724 (3d Cir. 1968), cert. denied, 393 U.S. 1045, 89 S.Ct. 663, 21 L.Ed.2d 594 (1969). Only where the charge against a defendant is totally devoid of evidentiary support is his conviction unconstitutional under the due process clause of the fourteenth amendment. Thompson v. City of Louisville,362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960); Garner v. Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207 (1961). Consequently, federal habeas relief under § 2254 is available to the state prisoner on the ground of insufficiency of the evidence only if there is no evidence whatever supporting conviction.

It is also fundamental that federal courts possess only limited authority to consider state court evidentiary rulings in a habeas proceeding by a state prisoner. As Judge Webster, now a member of this court, observed in Parker v. Swenson, 332 F.Supp. 1225, 1229 (E.D.Mo.1971), aff'd, 459 F.2d 164 (8th Cir. 1972), cert. denied, 409 U.S. 1126, 93 S.Ct. 943, 35 L.Ed.2d 258 (1973):

This...