State v. Conner, 57552

CourtUnited States State Supreme Court of Iowa
Citation241 N.W.2d 447
Docket NumberNo. 57552,57552
PartiesSTATE of Iowa, Appellee, v. Atwell Junior CONNER, Appellant.
Decision Date14 April 1976

Jon M. Kinnamon and Jerald W. Kinnamon, Cedar Rapids, and Michael W. Fay, Springville, for appellant.

Richard C. Turner, Atty. Gen., Thomas Mann, Jr., Asst. Atty. Gen., and David M. Remley, County Atty., for appellee.


McCORMICK, Justice.

Defendant appeals his conviction and sentence for first-degree murder. He was tried and found guilty by a jury upon an indictment charging him with murdering Maureen Ann Connolly in Jones County on March 10, 1974. We affirm the trial court because we find no merit in defendant's eighteen assignments of error.

The issues in this appeal can best be understood against the background of a summary of the State's evidence. That evidence tended to show that in the evening of March 8, 1974, defendant Atwell Junior Conner discussed the possibility of committing a robbery with two friends, George Nowlin and Steve Martin. The trio spent that night in the Cedar Rapids apartment of Mabel Beltz, Nowlin's girlfriend. The next morning they went to defendant's home in a rural area near Cedar Rapids where they picked up a single-shot 20 gauge shotgun. They took the gun back to the Beltz apartment, and Nowlin sawed off the gun barrel. They later test-fired the gun, which they called 'short-shortie'.

After an afternoon and evening of drinking and playing pool, defendant ended up with Nowlin at about 10:30 p.m. in Nowlin's car. Martin was not with them. Nowlin had told Beltz he was going to commit a robbery. He had two loaded shotguns in the car, a five-shot pump 20 gauge shotgun and 'short-shortie'. Defendant had agreed he would use one of the guns if necessary. Near midnight they were proceeding south on highway 218 in Cedar Rapids.

As they neared the intersection of the highway with Thirty-third Avenue, they saw a boy and girl walking north on the east side of the highway. The youths were Michael Servey and Maureen Ann Connolly, teenagers whose car had run out of gas nearby. Nowlin decided to rob the young couple.

Nowlin turned his vehicle around at the intersection and headed north. He told defendant to get in the back seat and handed 'short-shortie' to him. They pulled alongside the couple. Nowlin ordered Maureen into the passenger side of the front seat and Michael into the left side of the back seat at the point of the pump shotgun. Defendant held the other shotgun on Michael after he entered the car. Nowlin demanded Michael's money. Michael gave his money to defendant who reached forward and put it in Nowlin's shirt pocket.

Nowlin continued driving north on highway 218 and later turned onto highway 30 and headed east toward Mount Vernon. In Mount Vernon, he turned north on highway 1. At about 1:00 a.m. on March 10 they arrived at a point in rural Jones County on a gravel road near Old Morley Bridge. There Nowlin stopped the car and ordered Maureen to get out with him. Defendant remained in the car with Michael. Nowlin raped Maureen near the car. She attempted He ordered defendant to drive the car. At Nowlin's direction defendant drove the vehicle to Palisades Park in Linn County where Nowlin, after locking 'short-shortie' in the glove compartment, got out of the car with Michael. He struck Michael with the pump shotgun and then shot and killed him. He left Michael's body there.

to run away, but Nowlin fired his pump shotgun at her, fatally wounding her with two shotgun blasts. He left her body in the ditch by the bridge and got back in the car.

Nowlin and defendant returned to the Beltz apartment in Cedar Rapids, arriving there at some time between 2:00 a.m. and 3:00 a.m. Nowlin had blood on his clothing. He told Beltz he had killed the two teenagers. He later threatened Beltz, Martin and defendant with a similar fate if they should tell the police.

At about 9:00 a.m. Nowlin, Martin and defendant went back to the place Michael had been killed. Defendant drove the car. At the scene of the killing, Nowlin retrieved a piece of the pump shotgun which had fallen off when he struck Michael with it. Defendant remained in the car while Nowlin and Martin removed Michael's billfold from his body. Later Nowlin took 15 cents from the billfold and then threw it in the river. They returned to the Beltz residence and defendant went home.

The following Sunday, March 17, Nowlin, accompanied by defendant and defendant's wife and six children, took the pump shotgun and threw it in the river.

Maureen's body was found in the afternoon of March 16. Medical examination confirmed that she had been raped and died of shotgun wounds. Michael's body was found on March 17.

Martin went to the police on March 18 and reported what he knew of the events surrounding the killings. At about 4:00 a.m. on March 19 officers went to defendant's home and asked defendant to come to the Cedar Rapids police station with them for questioning. Defendant accompanied the officers to the station where he was interrogated about the killings for about one and one-half hours. During that time he orally admitted his participation in the events leading to the deaths of Michael and Maureen, although after receiving advice of counsel he refused to sign a written statement. He was charged with the murder and rape of Maureen in Jones County and the murder and robbery of Michael in Linn County.

He was tried for the murder of Maureen, and this appeal follows his conviction of that offense.

Five of defendant's assignments of error in this appeal challenge pretrial rulings of the court, twelve of them challenge rulings during trial, and one challenges the court's ruling on defendant's motion for new trial.


I. Defendant's motion for bill of particulars. Before entry of a plea to the indictment, defendant filed a motion for bill of particulars pursuant to § 773.6, The Code. The indictment charged defendant with the murder of Maureen Ann Connolly on or about March 10, 1974, 'in violation of Iowa Code Chapter 690.' It was accompanied by fourteen pages of detailed minutes of evidence summarizing the substance of the testimony of State witnesses.

Defendant complained in his motion that the indictment lacked sufficient specificity because it did not charge him under a specific section of chapter 690. This left him in doubt, he alleged, whether he was being charged as an aider and abettor or principal and whether the felony-murder provisions of § 690.2 would be invoked against him. In resisting the motion, the State contended the indictment constituted an open charge of murder which the State could prove under any provision of chapter 690 which its evidence might support, including the felony-murder provisions of § 690.2, based on the alleged robbery and rape which preceded the homicides. The State argued it should not be required to elect in what manner the charge would be proved and insisted the indictment and minutes of testimony adequately informed defendant of the particulars of the offense.

The trial court overruled defendant's motion, and defendant assigns this ruling as error.

Insofar as relevant here, § 773.6 provides:

'1. When an indictment charges an offense in accordance with the provisions of section 773.4, but such indictment together with the minutes of the evidence filed therewith fails to inform the defendant of the particulars of the offense sufficiently to enable him to prepare his defense, or to give him such information as he is entitled to under the constitution of this state, the court may, of its own motion, and shall, at the request of the defendant, order the county attorney to furnish a bill of particulars containing such information as may be necessary for these purposes, or the county attorney may of his own motion furnish such bill of particulars.

'2. When the court deems it to be in the interest of justice that facts not set out in the indictment or in the minutes of the evidence or in any previous bill of particulars, should be furnished to the defendant, it may order the county attorney to furnish a bill of particulars containing such facts. In determining whether such facts and, if so, what facts, should be so furnished the court shall consider the whole record of the case and the entire course of the proceedings against the defendant.'

We discussed principles applicable to motions for bill of particulars in State v. Lass, 228 N.W.2d 758, 764--765 (Iowa 1975). Summarized they include:

(1) A bill of particulars is in legal effect a more specific statement of the details of the offense charged.

(2) Its purpose is to give the defendant information which the indictment (or information) and minutes of testimony by reason of their generality do not give.

(3) It should be allowed when the court, in its discretion, finds the charge and minutes do not inform the defendant of the specific acts of which he is accused.

(4) A motion for bill of particulars cannot be used merely as a device to obtain the State's evidence or theory of the case or unessential allegations.

In the present case the minutes of testimony were unusually detailed. They included much of the previously summarized State's evidence. Although defendant maintains the indictment and minutes did not inform him what charge he had to defend against, we believe they clearly did so. The indictment accused him of murdering Maureen Ann Connolly on March 10, 1974, in Jones County. The minutes showed the State would rely on evidence that defendant was involved in a robbery of Michael Servey and rape of Maureen prior to Nowlin's killing of the youths. The minutes indicated these events occurred during a continuous transaction. They tended to support the charge on alternative grounds, including the felony-murder provisions of § 690.2 and an aiding and abetting theory. They revealed the State did not claim defendant actually...

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