Fryer v. Nix, 84-1785
| Decision Date | 21 October 1985 |
| Docket Number | No. 84-1785,84-1785 |
| Citation | 775 F.2d 979 |
| Parties | Allen E. FRYER, Appellant, v. Crispus NIX, Warden of the Iowa State Penitentiary, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Michael D. Green & John Burns, Iowa City, Iowa, for appellant.
Brent R. Appell, Des Moines, Iowa, for appellees.
Before LAY, Chief Judge, FAGG and BOWMAN, Circuit Judges.
On the evening of November 17, 1973 a group of five teenagers went to Gitchie Manitou State Park in Lyon County, Iowa. During that evening in the park, four of the teenagers--Roger Essem, Michael Hadrath, Stewart Baade, and Dana Baade--were shot to death. On August 13, 1974 Allen Fryer was convicted of four counts of first degree murder, largely on the testimony of the fifth teenager and sole survivor, Sandra Cheskey. On May 11, 1983, Fryer, having exhausted his remedies in the state courts as required by 28 U.S.C. Sec. 2254(b), 1 filed a petition for a writ of habeas corpus in the Southern District of Iowa. The District Court 2 denied Fryer's petition. Fryer now appeals the denial of his petition for habeas corpus. We affirm the denial of Fryer's petition.
Fryer's first claim is that the District Court erred in holding that sufficient evidence was introduced at trial to convict him of four counts of first-degree murder. A habeas corpus petitioner is entitled to relief on the ground of insufficient evidence only if, viewing the evidence in the light most favorable to the prosecution, no rational trier of fact could have found proof of guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).
The record reveals that on the evening of November 17, 1973 Allen Fryer and his brothers David and James Fryer were in Gitchie Manitou State Park, when they saw the five teenagers gathered around a campfire. The Fryers believed that the teenagers had marijuana, and, after brief discussion, decided to go back to their truck for their shotguns so that they could take the marijuana.
After getting their shotguns, Allen and David Fryer returned to where they had seen the teenagers, positioned themselves on a ledge overlooking the campfire, and opened fire. Two of the teenagers fell--Roger Essem with a fatal wound and Stewart Baade with a non-fatal wound. The Fryers then yelled at the remaining teenagers, who had taken cover, to come out from behind the trees. Michael Hadrath emerged from the trees with Sandra Cheskey, and asked their assailants who they were. Allen Fryer shot Hadrath, wounding him in the arm, and then told him that they were police officers.
Sandra Cheskey, though not wounded, fell to the ground with Hadrath. Allen Fryer walked over to her, kicked her, and said that he thought she was playing dead. He then ordered Cheskey, Hadrath, and Dana Baade to walk along a trail that led away from the campfire. After a short time, Allen Fryer stopped them, briefly conferred with his brother David, and left the teenagers with him. When he returned, Allen Fryer again ordered the three teenagers to proceed along the trail, and shortly thereafter again ordered them to stop. He again left the teenagers with David Fryer for a short time. After returning and herding the teenagers yet further along the trail, Allen Fryer stopped them and shouted "over here," at which point a truck driven by James Fryer pulled up.
Allen Fryer conferred briefly with James Fryer, then tied Sandra Cheskey's hands behind her back and put her in the truck. He later untied her hands and left again. When he returned, he started the truck and drove off with Sandra Cheskey. As they were leaving, Sandra Cheskey saw Michael Hadrath, Dana Baade, and Stewart Baade (who had in the meantime apparently also been brought to the truck by the Fryers), alive for the last time, with James and David Fryer.
Allen Fryer drove Sandra Cheskey around for a short time. He continued to pretend to be a police officer and told Cheskey that he was trying to keep her out of trouble. He told her that he was the boss and that anything he said, his two brothers would do. He then met David and James on the road and talked to them briefly. James got into the truck and they went to an abandoned farm where James Fryer raped Cheskey. Allen Fryer then took Cheskey home.
At Fryer's trial, the trial court instructed the jury that it could find Allen Fryer guilty of first-degree murder, with respect to each count charged, if it found that Fryer inflicted the wound that caused death with malice aforethought, deliberation, premeditation, and a specific intent to kill, or aided and abetted in the same, 3 or if it found that Fryer killed any of the teenagers during the commission of or during the attempt to commit a robbery, or aided and abetted in the same.
In the present case, viewing the evidence and all reasonable inferences that can be drawn therefrom in the light most favorable to the prosecution, we conclude that a jury reasonably could have reached the conclusion that Allen Fryer aided and abetted the deliberate and premeditated executions of the four teenagers. 4 Accordingly, we reject Fryer's claim regarding the sufficiency of the evidence.
Fryer's second claim is that he is entitled to a new trial under the standards laid out in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), because the prosecution suppressed material evidence favorable to him. The particular evidence in question is a statement given by Sandra Cheskey to the police on the evening of November 29, 1973 shortly after she had observed Allen Fryer and recognized him as her assailant. The statement, in relevant part, reads: Appendix at 89.
Consistent with the standard laid out in Brady, a prosecutor must disclose to defense counsel "evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial...." United States v. Bagley, --- U.S. ----, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985). A defendant is deprived of a fair trial "only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial." Id. at 3381.
Fryer contends that Cheskey's statement, used properly at trial, would have impeached Cheskey's testimony that Fryer shot Roger Essem, because the statement indicates only that Fryer shot Hadrath and Stewart Baade, and does not indicate that Fryer shot Essem. We are not convinced that Cheskey's statement is material within the meaning of Brady merely because it does not contain the inculpatory language Fryer thought it might. See United States v. Ben M. Hogan Company, 769 F.2d 1293, 1299 n. 8 (8th Cir.1985). But even if we accept Fryer's contention that Cheskey's statement to the police would have impeached in any way her testimony that Fryer actually fired the shot that killed Roger Essem, Cheskey's statement casts no doubt whatsoever on evidence that Fryer aided and abetted the murder of Essem, and thus in no way materially affects a determination that Fryer is guilty of the first-degree murder of Essem.
This case bears some resemblance to Brady v. Maryland. In Brady, the defendant and a companion had been convicted of first-degree murder, and sentenced to death. The prosecution had withheld a statement made by the companion that he had done the actual killing. The Maryland Court of Appeals concluded that even Brady v. State, 226 Md. 422, 174 A.2d 167, 171 (Md.1961), quoted in Brady v. Maryland, 373 U.S. at 88, 83 S.Ct. at 1197 (emphasis deleted). The Supreme Court affirmed this holding by the Maryland Court of Appeals. Similarly, in the instant case, nothing in Cheskey's statement would reduce Fryer's offense below murder in the first degree. Thus, we reject Fryer's claim that under Brady he is entitled to a new trial. 5
Fryer's third contention on appeal is that the District Court erred in determining that his November 30, 1973 statement was voluntary. Fryer contends that a number of factors indicate that his will was overborne.
Fryer was arrested in the late afternoon or early evening of November 29, 1973 after Sandra Cheskey had identified him in Sioux Falls, South Dakota. He was read his rights and taken to the Sioux Falls Police Station. Upon arrival at the station at about 7:00 p.m., Fryer was given a form with his rights written on it. His rights also were explained to him. Fryer said he understood his rights. Fryer signed an acknowledgment and waiver of his rights, and was interrogated for three-and-one-half hours, with coffee breaks every 30-45 minutes, by two police officers. Fryer was permitted to smoke and go to the restroom. During this first interrogation, Fryer denied all knowledge of the Gitchie Manitou killings.
At 10:30 p.m., Fryer was again advised of his rights; he again acknowledged that he understood his rights and signed a form indicating that he wished to waive them. In addition to the signed waiver, Fryer had the following colloquy with one of the police officers:
Q Have you been advised of your right to remain silent?
A Yes.
Q The fact that you don't have to say anything if you don't want to?
A Yes.
Q Have you been advised that anything you say can and will be used against you in a court of law?
A Yes.
Q Have you been advised that you have a right to consult with a lawyer?
A Yes.
Q Before you answer any questions?
A Yes.
Q Or before you make any statements?
A Yes.
Q And you understand that you can have a lawyer present during this questioning?
A Yes.
Q Do you understand...
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