Fryer v. State

• Decision Date: 27 October 1982
• Docket Number: No. 66755,66755
• Parties: Allen E. FRYER, Appellant, v. STATE of Iowa, Appellee.
• Court: Iowa Supreme Court

Page 400

325 N.W.2d 400

Allen E. FRYER, Appellant, v. STATE of Iowa, Appellee.

No. 66755.

Supreme Court of Iowa.

Oct. 27, 1982.

Michael Green, Iowa City, Mary Schlicher, Waterloo, Kathryn Delafield and Helen Lucier, Student Legal Interns, Iowa City, for appellant.

Thomas J. Miller, Atty. Gen., Gary L. Hayward, Asst. Atty. Gen., and Randy L. Waagmeester, County Atty., for appellee.

Considered by REYNOLDSON, C.J., and HARRIS, McGIVERIN, LARSON and CARTER, JJ.

McGIVERIN, Justice.

Applicant Allen Fryer appeals the district court's denial of his application seeking postconviction relief from his 1974 conviction of first degree murder under Iowa Code sections 690.1 and .2 (1973). Fryer asserts the following issues on appeal:

1) the evidence was insufficient to convict him of first-degree murder;

2) the prosecution suppressed evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963);

3) admission of his November 30, 1973, statement to peace officers violated his constitutional rights;

4) the trial court erred in considering the admissibility of the November 30 statement in the presence of the jury 5) his statements made on December 1, 1973, after arraignment and waiver of extradition, were inadmissible because there was no valid waiver of his right to counsel;

6) the trial court's failure to instruct the jury properly deprived him of a fair trial;

7) the prosecutor improperly drew attention to his failure to testify;

8) he received ineffective assistance of counsel; and

9) the postconviction court erred in taxing costs to him pursuant to Iowa Code section 625.1 (1981).

After review of the trial transcripts and accompanying exhibits, and the record in the postconviction court, our resolution of the issues requires affirmance of the postconviction court's denial of Fryer's application seeking postconviction relief.

Applicant, Allen Fryer, and his brothers, James and David Fryer, were charged with the murders of four teenagers at Gitchie Manitou State Park in November, 1973. The victims of the shotgun slayings were Dana Baade, age 14, Stewart Baade, age 18, Michael Hadrath, age 15, and Roger Essem, age 17. A fifth teenager, Sandra Cheskey, age 13, was abducted from the scene, raped, and subsequently released in the driveway of her home. Applicant was tried and found guilty by a jury of four counts of first degree murder. ¹ His subsequent court proceedings are discussed in Fryer v. Hamilton, 278 N.W.2d 5 (Iowa 1979).

I. Iowa Code § 663A.8 (1981). As a preliminary matter, we address the State's contention that section 663A.8 bars applicant from postconviction relief because he failed to raise the contested issues on direct appeal from his conviction. Fryer filed a timely direct appeal from his conviction and counsel was appointed. Counsel requested to withdraw under Supreme Court Rule 16 (now Iowa R.App.P. 104) because he considered the appeal frivolous; we dismissed the appeal as frivolous on March 19, 1975. See Fryer, 278 N.W.2d at 6.

A postconviction applicant must establish "sufficient reason" for failing to raise and cause adjudication of his claims on direct appeal. Washington v. Scurr, 304 N.W.2d 231, 235 (Iowa 1981); Bledsoe v. State, 257 N.W.2d 32, 33-34 (Iowa 1977); State v. Boge, 252 N.W.2d 411, 415 (Iowa 1977).

The postconviction court found that section 663A.8 did not bar the action in toto, and considered all grounds alleged in Fryer's amended application. We conclude that applicant did not deliberately bypass an opportunity to press his claim for relief. See id. at 414-15 (sufficient reasons for previous failure to assert grounds for relief apparent from record); cf., Redding v. State, 274 N.W.2d 315 (Iowa 1979) (deliberate and inexcusable failure to pursue claims for relief and appeal bars postconviction action). We have declined to construe section 663A.8 so as to erect a procedural obstacle to a meaningful hearing of applicant's claims for relief. Boge, 252 N.W.2d at 415. The State, in the present case, cannot argue that procedural obstacles bar Iowa's courts from hearing this applicant's claims for postconviction relief; it already has been found that the Iowa Postconviction Relief Statute was available to Fryer. See Fryer, 278 N.W.2d at 6. We, therefore, proceed to review applicant's claims for postconviction relief.

II. Sufficiency of the evidence. The State's theory at applicant's criminal trial was divided into three parts: (1) applicant shot and killed Roger Essem; (2) applicant aided and abetted the murders of Stewart and Dana Baade, and Michael Hadrath; and (3) applicant participated in, or aided and abetted a robbery or attempted robbery in the course of which the murders were committed. In determining whether applicant's conviction was supported by substantial evidence on these theories, we must "view the evidence in the light most favorable to the State, without regard to contradiction or inconsistencies and assisted by all reasonable inferences." State v. Robinson, 288 N.W.2d 337, 338 (Iowa 1980). "Substantial evidence means such evidence as could convince a rational trier of fact that the defendant is guilty of the crime charged beyond a reasonable doubt." State v. Aldape, 307 N.W.2d 32, 39 (Iowa 1981); Robinson, 288 N.W.2d at 339. We consider all of the evidence in determining evidential sufficiency. ² See State v. Schrier, 300 N.W.2d 305, 306 n. 1 (Iowa 1980); State v. York, 293 N.W.2d 13, 15 (Iowa 1980).

A. Applicant's first contention is that there was insufficient evidence to support the giving of an instruction of premeditated murder of Michael Hadrath and Stewart and Dana Baade. No objection was made at trial to the jury instructions. Having failed to object at trial, Fryer cannot use postconviction relief as a substitute for such objection. Horn v. Haugh, 209 N.W.2d 119, 120-21 (Iowa 1973) (attempt to use postconviction relief as substitute for statutory remedy of lodging objections violates Iowa Code § 663A.2). Even issues of constitutional magnitude will not be addressed if not presented in the trial court. ³ See State v. Williams, 285 N.W.2d 248, 269 (Iowa 1979), cert. den., 446 U.S. 921, 100 S.Ct. 1859, 64 L.Ed.2d 277 (1980).

B. Ballistics evidence failed to link conclusively applicant's gun with the number-4 buck removed from Roger Essem's body. ⁴ Therefore, Fryer claims the State failed to prove part one of its theory--that applicant killed Roger Essem. Upon consideration of all the evidence, however, we find that a rational trier of fact could find beyond a reasonable doubt that applicant shot and killed Roger Essem. First, Fryer and his brothers spotted the youths around a campfire. After concluding that the teenagers had marijuana, the Fryer brothers retrieved shotguns from their vehicles in order to take the marijuana by force. The men then returned to the area of the campfire; Sandra testified that applicant's gun was raised to his shoulder at the time shots were fired and Roger Essem fell to the ground mortally wounded. Finally, Fryer does not deny that he was present before, during and after the shooting of Roger Essem.

C. Since the murders of Michael Hadrath and Dana and Stewart Baade took place after applicant left the park with Sandra, he argues that the facts are inconsistent with the State's theory of aiding and abetting. While the mere presence of applicant at the scene of the crime does not prove that he aided and abetted its commission, State v. Daves, 259 Iowa 584, 586, 144 N.W.2d 879, 881 (1966), aiding and abetting need not be shown by direct proof. It may be inferred from circumstantial evidence including presence, companionship and conduct before and after the offense is committed. State v. Myers, 158 N.W.2d 717, 721 (Iowa 1968). A person found guilty as an aider and abettor is guilty as a principal. Iowa Code § 688.1 (1973).

There is sufficient evidence for the jury to have found that applicant either knowingly assented to the act or lent countenance or approval by active participation in it or by some manner encouraging it prior to its commission. See State v. Barnes, 204 N.W.2d 827, 828 (Iowa 1973). While retrieving their shotguns, the brothers discussed their plans to take the marijuana by force. Upon returning to the youths' campfire the brothers began shooting; applicant's shots hit two of the youths. The survivors were marched down the trail to the parking area. Twice Fryer stopped the procession to confer with his brother, David Fryer. Applicant put Sandra in his pickup and returned to where his brothers were waiting with the other teenagers. While driving Sandra around the countryside, he referred to himself as the "boss" and claimed that his brothers did whatever he told them to do.

D. As to the State's theory of felony-murder, ⁵ applicant contends that proof of a felony, robbery or attempted robbery, does not exist. A taking is necessary for the commission of a robbery. Iowa Code § 711.1 (1973); ⁶ State v. Fonza, 254 Iowa 630, 634, 118 N.W.2d 548, 551 (1962). The postconviction court found that "[n]othing was taken from the possession of the victims ... no robbery was committed .... But the record is replete with evidence of an attempt to perpetrate a robbery." Findings of the postconviction court which are supported by substantial evidence are binding upon appeal. Iowa R.App.P. 14(f)(1).

The common law principles of attempt require the State to prove (1) intent to commit the crime and (2) slight acts in furtherance of the crime that render voluntary termination improbable. See State v. Roby, 194 Iowa 1032, 1042-43, 188 N.W. 709, 714 (1922) (attempted rape); State v. Cook, 188 Iowa 655, 176 N.W. 674 (1920) (attempted larceny); see also, Hamiel v. State, 92 Wis.2d 656, 666, 285 N.W.2d 639, 646 (1979). We agree with the postconviction court's findings of the necessary elements of attempted robbery:

It is clear from Fryer's statement that he was possessed of the requisite...