Lyon County, Nov. 17, 1973
Four Sioux Falls, S.D. teen-agers, Roger Essem,
Stewart Baade, Dana Baade and Michael Hadrath, were shot to death
at Gitchie Manitou State Preserve, where they were having a party.
Three brothers, David, Allen and James Fryer, were convicted.
Gitchie Manitou 1973
On the evening of November 17, 1973, five
teenagers from Sioux Falls, South Dakota were attacked by a group
of three brothers. Four of the teenagers were killed, and one was
Roger Essem (male, 17), Stewart Baade (male,
18), Dana Baade (male, 14), Michael Hadrath (male, 15)
Sandra Cheskey (female, 13, survived)
Allen Fryer (male, 29), David Fryer (male, 24),
James Fryer (male, 21)
The Fryer brothers were in the park trying to
poach deer and happened upon the victims because they heard them
singing while sitting around a campfire. David Fryer was sent to
spy on the group, and reported back to his brothers that the
teenagers had marijuana. The brothers conferred and decided to
take the victims' marijuana by impersonating narcotics officers.
Testimony at the trial indicated that the Fryers apparently
thought narcotics agents were "allowed" to indiscriminately kill
After getting shotguns from their truck, Allen,
James and David Fryer positioned themselves on a ridge overlooking
the victims and opened fire. Roger Essem was killed immediately
and Stewart Baade fell wounded. At this point, two of the
remaining teenagers took cover in the trees.
The Fryers ordered the teenagers to come out of
the trees, so Michael Hadrath and Sandra Cheskey emerged together
and asked the Fryers who they thought they were. Allen Fryer then
shot Hadrath in the arm and said that they were police officers.
Hadrath and Cheskey fell to the ground, but were forced to get up
by Allen Fryer who said they were "playing dead".
Allen and David Fryer moved Dana Baade, Michael
Hadrath, and Sandra Cheskey along a trail away from the campfire.
Sandra Cheskey was tied up and placed in the victims van. During
this time, Stewart Baade was also brought back to the van from
where he had been wounded initially.
Allen Fryer then drove away in the van with
Sandra Cheskey, leaving Stewart Baade, Dana Baade, and Michael
Hadrath behind, standing near the road with James and David Fryer.
After the van had left, James and David Fryer pulled up their
pickup and got out and killed the three teenagers with their
shotguns. The bodies were discovered the next day by a couple from
Sioux Falls who drove to the park while trying out their new car.
Roger Essems' body wasn't discovered until the next day because it
was left lying by the campfire, the site of the first encounter.
Allen Fryer continued to tell Sandra Cheskey
that he was a police officer while they drove around and that he
was "The Boss" and the other two would do as he instructed them
to. After a short time, James and David Fryer met them on the road
in the pickup. Allen and Sandy got into the truck, and the group
drove to a farm. At this point James Fryer raped Sandra Cheskey.
The next day Allen filled the vehicles' tank with gasoline from a
large red fuel tank then drove Cheskey home, still under the
pretense of being a police officer, saying that Sandra was "too
young to get busted".
On November 29, 1973, Sandra Cheskey was
accompanied by Craig Vincent (The Lyon County, IA Sheriff) as they
drove around the countryside looking for the farm house where
Sandy was held captive and subsequently raped. Near Hartford, SD
she recognized the farmhouse by the large red fuel tank that stood
next to the garage. A farm owned by Allen Fryers' employer, a
local farmer. By some strange twist of fate Allen Fryer then drove
by in the same blue pickup that was used the night of the murders
by the Fryer brothers. Sandy told Sheriff Vincent "That's him.
That's the boss". Law enforcement quickly pulled the truck over
and arrested Allen Fryer. David and James Fryer were also arrested
Prior to trial, James Fryer escaped from the
Lyon County Jail, stole a vehicle, and fled the state. He was
arrested in Wyoming and brought back to face federal charges. He
was found guilty of the manslaughter of Roger Essem, and the
murder of Michael Hadrath and the two Baade brothers. His county
of commitment is listed as Dickinson County by the Iowa Department
The trial of Allen Fryer was held at the Lyon
County Courthouse in Rock Rapids, Iowa. Sandra Cheskey's testimony
was instrumental, as it comprised the bulk of evidence against the
Fryer brothers. There were some issues at the trial involving
confusion by Cheskey, most of which can be attributed to her age
at the time (13).
David Fryer pled guilty to 3 charges of murder
and one charge of manslaughter. All three of the Fryer brothers
were sentenced to life without the possibility of parole. They are
all currently serving their sentences at the Iowa State
Penitentiary in Fort Madison, Iowa.
In 1968, Allen and David Fryer were convicted
of transporting stolen vehicles from Luverne, Minnesota to Valley
Springs, South Dakota. The vehicles in question were a 1968 El
Camino and a 1966 Dodge Polara.
One or more of the shotguns used in the Gitchie
Manitou murders were stolen by David Fryer.
The farm where Sandra Cheskey was raped was
owned by Allen Fryer's employer. Fryer was working as a farmhand
at the time of the murders.
It appears from court documents that the Fryers
had a pickup and a van, which they used at various points
throughout the night. The van was described as in poor working
condition, and was the van driven to the park by the victims.
Supreme Court of Iowa
February 19, 1975
STATE OF IOWA, APPELLEE
DAVID LYLE FRYER, APPELLANT.
APPEAL FROM LYON DISTRICT COURT, EDWARD F.
KENNEDY, J. [226 NW2d Page 37]
Heard before Moore, C.J., and LeGRAND, Rees,
Harris and McCORMICK, JJ.
The opinion of the court was delivered by:
Defendant entered a guilty plea to an open
charge of murder. He appeals the trial court's determination he
was guilty of first degree murder. We affirm.
The case arises from a dreadful tragedy which
occurred November 17, 1973 at Gitchie [226 NW2d Page 38]
Manitou State Park. The facts are as incredible
as they are pathetic. Four boys, Dana Baade, Stewart Baade,
Michael Hadrath and Roger Essem were all shot to death in the park
where they had gone on a social outing which included use of
marijuana. The group also included 13 year old Sandra K. Cheskey.
Miss Cheskey survived.
Three brothers were implicated in the murders:
David Lyle Fryer (defendant), Allen Fryer and James Fryer.
Defendant related the three were deer hunting on the night in
question. When they came to a point where they observed the five
youths, the brothers for some inexplicable reason pretended to be
narcotics officers. They persisted in this pretense in all
communications with their victims. It is unknown how far the
pretense was continued in the communications among the three Fryer
brothers. It is likewise unknown how long the murder victims
continued to believe the Fryer brothers were narcotics officers.
The motive for the murders is confused and
obscure. The Fryer brothers acted in such a way as to indicate
their twisted notions of a narcotic raid called for them as
pretended officers to indiscriminately shoot marijuana users.
Some time after the five youths gathered at the
park they heard noises in the woods which they initially believed
were made by wild animals. Miss Cheskey testified two shots were
fired by Allen and David Fryer from a rocky ledge which closely
overlooked the campfire. The shots felled Roger Essem and Stewart
Baade. Miss Cheskey and Michael Hadrath hid behind a tree as the
first shot was fired. Miss Cheskey believed David Fryer fired the
first shot because she saw him bring his gun down just after it
was fired. However she conceded it was possible either Allen or
James Fryer could have fired it.
Allen Fryer then ordered the two to come out
from behind the tree. As they emerged Michael Hadrath asked, "Who
the hell do you think you are?" Allen Fryer replied by shooting
him in the arm.
The Fryers identified themselves as narcotics
officers and marched the youths up a trail to their pickup truck.
Roger Essem was not included because he was apparently killed
instantly. Miss Cheskey testified Allen Fryer drove her away in
the pickup. As they were leaving she saw Dana Baade, Stewart
Baade, and Michael Hadrath walking on the side of the road. James
Fryer and the defendant walked behind them with guns.
A statement made by defendant November 30, 1973
to the police department in Sioux Falls, South Dakota was admitted
at the hearing. It describes what happened after Miss Cheskey left
and includes the following:
"Jim (his brother James Fryer) started the van.
I got in the other side and he turned — backed up, turned it to
the west which faced the boys and he stepped out and he shot Dana
Baade first and then Stewart Baade and I shot Stewart Baade in the
back once. I think he was already dead beause Jim was shooting
Double O buck and then he shot this Hadrath. He walked up and just
After leaving the park Miss Cheskey was driven
around by Allen Fryer. They stopped for gas and were later
rejoined by the other two Fryer brothers. They stopped at an
abandoned farmhouse for a few hours. Finally Allen Fryer, still
posing as a narcotics officer, took her home because he told her
she "was too young to get busted."
After pleading guilty to the murder of Stewart
Baade a hearing was held pursuant to § 690.4, The Code, to
determine defendant's degree of guilt
By his plea of guilty, defendant conceded he
killed Stewart Baade with malice aforethought. § 690.1, The Code.
In determining defendant was guilty of first degree murder the
trial court found the killing was "willful, deliberate and
premeditated." See § 690.2, The Code. The finding the killing [226
NW2d Page 39]
was willful, deliberate and premeditated is the
underlying issue in the trial and appeal. It was challenged
following the degree of guilt hearing by way of a motion for a new
trial on four grounds. Only two were preserved for appeal.
I. Miss Cheskey testified at the hearing.
Following her direct examination defendant moved the State be
required to turn over for defendant's examination "the statements
that she had made and given to the prosecution." One such
statement by Miss Cheskey was produced. It now appears the
statement produced was in part developed from earlier statements.
These included one in Miss Cheskey's own handwriting and one by
way of a transcription from original shorthand notes in question
and answer form. Both earlier statements were the subject of
handwritten corrections by Miss Cheskey. After the statement was
produced the trial court inquired as to whether there were any
others. The prosecutor replied: "There are others which are
incorporated in this one, Your Honor."
The trial court may have understood this
response to suggest such other statements were appended to the one
produced. Following submission of this appeal, however, it
appeared the prosecutor intended only to suggest by his response
that such other statements were reiterated in the one produced.
Defendant's first assignment on appeal is the failure of the trial
court to hold upon his request the in camera hearing required by
State v. Mayhew, 170 N.W.2d 608, 614 (Iowa 1969) and State
v. Deanda, 218 N.W.2d 649, 650-652 (Iowa 1974).
Following the submission of this appeal and
pursuant to rule 342(e), Rules of Civil Procedure, applicable in
criminal appeals by reason of § 793.17, The Code, we remanded this
case for the limited purpose of conducting such an in camera
The in camera hearing was held by the trial
court December 30, 1974. At the in camera hearing the statement of
Miss Cheskey was again produced and offered in evidence as exhibit
A. Exhibit A was the same statement which had been produced at the
degree of guilt hearing. Other exhibits were also produced and
offered into evidence, as follows:
(1) Exhibit B consisted of two pages of Miss
Cheskey's own handwritten corrections made following her perusal
of exhibit A.
(2) Exhibit C is a 21 page, unsworn, unsigned,
typewritten statement by Miss Cheskey in question and answer form.
It was taken by a shorthand reporter November 17, 1973 at the
Sioux Falls, South Dakota police department. This was the
statement referred to by the prosecutor at the degree of guilt
hearing as being "incorporated" in exhibit A.
(3) Exhibit D is a video tape taken of an
interview of Miss Cheskey at the scene of the crime. It was taken
within three days following the murders. Words on the tape are
incomprehensible. Exhibit D has no value.
(4) Exhibit E is a two page, handwritten
statement of unknown date. It appears to be in the handwriting of
Miss Cheskey and appears to follow exhibit F in chronological
(5) Exhibit F is another handwritten statement
of Miss Cheskey. Exhibits E and F appear to have been written
before exhibit A.
It is apparent the prosecutor was right in
believing Miss Cheskey's earlier statements were "incorporated"
into exhibit A. Exhibit A appears to have been developed in part
by the preparation of the earlier statements. Apparently Miss
Cheskey was not able at first to recall and relate in
chronological order the events as she finally did in exhibit A.
The other exhibits seem to have been prepared and gathered in the
course of routine investigation so that a complete and orderly
statement might be made. There is nothing unusual or wrong in such
The wrong occurred at trial when the earlier
exhibits were not produced. State v. Mayhew, supra. [226 NW2d Page
It happens in this case the defendant was in no
way affected by the failure of production. All Miss Cheskey's
statements, even one the prosecutor had not seen at the time of
the degree of guilt hearing, were consistent. Exhibit A, the
statement furnished to defendant, did in fact accurately include
all others. Exhibit A, in common with the other earlier ones, was
in some minor respects inconsistent with Miss Cheskey's testimony
at trial. But this does not require a reversal and a rehearing of
defendant's degree of guilt under State v. Mayhew, supra. It does
not because all statements were consistent with one another and
the one furnished was complete.
Although defendant's counsel argues otherwise
we believe it was shown he was deprived of nothing. The earlier
statements could in no way have aided in the cross-examination of
Miss Cheskey. Anything which could be suggested as inconsistent
with her testimony was identically inconsistent in exhibit A, the
statement furnished. The rule requiring production of statements
was given in the interests of a fair trial, not merely to burden
We hold the in camera hearing has cured any
error which resulted from the State's failure to produce all Miss
Cheskey's statements germane to her testimony. We however do not
wish to be understood as implying any retreat from our rule such
statements must be produced. Our recent holdings on the question
were well summarized as follows:
"Surprise and guile should be removed from a
criminal trial just as they have been from civil trials. The state
cannot suppress requested statements or evidence which are
`materially exculpatory.' The test is what would logically aid the
defense in the investigation and preparation of its case and as
evidence upon trial. The prosecutor's view as to what is material,
or the truth or falsity of such evidence, is not controlling. The
prosecutor is not to prepare the defendant's case, but it is his
duty to see that a fair trial is had and, to this end, he cannot
suppress important evidence. If any question exists concerning
such production, it should be submitted to the court for an `in
camera' decision. All-inclusive demands for statements, reports,
and summaries of witness testimony are not proper. The trial court
does have discretion in this matter. During trial, statements of
witnesses or police officers should be supplied in accordance with
the procedures of the Federal Jencks Act. Prosecutors have been
urged by the court to seriously consider if production of
requested matter will cause any actual harm and, if not, to
produce the same in order to avoid appeals." (Citations omitted).
Gaudineer, Ethics: The Zealous Advocate, 24 Drake L.Rev. 79, 93.
See also ABA Standards for Criminal Justice, Discovery and
Procedure Before Trial, § 2.1.
Defendant's first assignment is without merit.
II. Defendant's other assignment is his claim
the trial court erred in finding he acted with premeditation and
deliberation. Where circumstantial evidence is relied upon to
support a finding of guilty it is not enough for such evidence to
be consistent with defendant's guilt. Circumstantial evidence must
also be wholly inconsistent with any rational hypothesis of
defendant's innocence and so convincing as to exclude reasonable
doubt defendant was guilty of the offense charged. State v.
Sellers, 215 N.W.2d 231, 232 (Iowa 1974).
Defendant's argument on this assignment is
grounded on a claimed shortness in the passage of time. The
argument necessarily (not to say properly) begins at a fixed point
in time. Miss Cheskey left the park with Allen Fryer while Stewart
Baade was still alive. Defendant points out she neither
participated in nor overheard any conversation dealing with the
Fryers' intentions as to their victims. Defendant believes it
follows we must therefore accept defendant's description of his
intentions or absence of them at that time. He bases his relief on
[226 NW2d Page 41]
the fact defendant's statement showing his
participation in the shooting of Stewart Baade was admitted into
evidence and was the only evidence (aside from his guilty plea) of
his murder of Stewart Baade.
Defendant's statement has been previously
quoted. He now argues it discloses, and that we are bound to
believe, he was in the act of leaving the park with Baade still
alive. At this point his brother, James Fryer, stopped the vehicle
and began the shooting which defendant suddenly found himself
joining in. He argues he did not have time to formulate
premeditation and deliberation between the time he was leaving the
park and his participation in the shooting. The argument is
In the first place the trial court, sitting as
trier of facts, was not bound to accept all of defendant's
statement because it accepted part of it. The trial court may well
have accepted the admission of shooting and rejected any claim
defendant had intended to leave the park without more shooting.
To deliberate is to weigh in one's mind or to
consider. To premeditate is to think or ponder upon a matter
before action. Webster's International Dictionary. Premeditation
and deliberation may not be presumed. It may not be inferred from
intent. State v. Christie, 243 Iowa 1199, 53 N.W.2d 887,
54 N.W.2d 927 and citations. However
premeditation and deliberation need not exist for any particular
length of time. State v. Gilroy, 199 N.W.2d 63, 66 (Iowa
1972). In finding premeditation and deliberation the trier of
facts may consider the fact a defendant has selected a deadly
weapon, such as the gun involved here, with an opportunity to
deliberate where he thereafter uses it in a deadly manner. State
v. Christie, supra.
Defendant suggests the false posing as
narcotics officers by the Fryer brothers is evidence they did not
deliberate. He argues, if murder had been intended, there was no
reason for the brothers to tell the victims they were narcotics
officers. He states: "* * * Instead, the obvious for misleading
the victims was to convince them not to tell anyone of these
events and to cast suspicion in the wrong direction if the events
were reported. Also no motive was ever established by the State."
We do not agree "the obvious reason for
misleading the victims" was to keep them silent. Such an argument
presupposes the pretense was conceived after the murders began and
before they were completed. There is no basis in the record for
such a supposition. It is more logical to believe the pretense,
because it arose at least as soon as early in the encounter, is
consistent with defendant's premeditation and deliberation of
Stewart Baade's murder. By posing as narcotics officers the Fryer
brothers rendered their victims more submissive, if any advantage
beyond firearms was needed. The youths were thereby less likely to
resort to their only possible defense. They were less likely to
Finally defendant points out no motive was ever
established by the State. He somehow thinks the senselessness of
the murders should in some way detract from a showing of
premeditation and deliberation. Murder is always senseless. It is
absurd to suggest a motive is required in order to show
premeditation and deliberation.
775 F.2d 979
Allen E. FRYER, Appellant,
Crispus NIX, Warden of the Iowa State Penitentiary, Appellees.
United States Court of Appeals,
Submitted Jan. 28, 1985.
Decided Oct. 21, 1985.
Michael D. Green & John Burns,
Iowa City, Iowa, for appellant.
Brent R. Appell, Des Moines, Iowa, for
Before LAY, Chief Judge, FAGG and BOWMAN,
BOWMAN, Circuit Judge.
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),
filed a petition for a writ of habeas corpus in the Southern
District of Iowa. The District Court
denied Fryer's petition. Fryer now appeals the denial of his
petition for habeas corpus. We affirm the denial of Fryer's
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
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
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,
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.
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: "The man who I identified tonight in the pickup,
was the one they called the 'Boss.' He was the one who shot Mike
and Stu that night. He is the one that took me from the
park...." 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 "[i]f [the
companion's] withheld confession had been before the jury,
nothing in it would have reduced the appellant Brady's offense
below murder in the first degree. We, therefore, see no occasion
to retry that issue." 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
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
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?
Q The fact that you don't have
to say anything if you don't want to?
Q Have you been advised that
anything you say can and will be used against you in a court of
Q Have you been advised that
you have a right to consult with a lawyer?
Q Before you answer any
Q Or before you make any
Q And you understand that you
can have a lawyer present during this questioning?
Q Do you understand that if
you can't afford a lawyer that one could be appointed for you?
Q Do you realize that you have
a right to have a lawyer present during this questioning if you
want one present?
Q Do you realize that if you
answer questions or make any statements without consulting a
lawyer or without having a lawyer present during this
questioning you will still have the right to stop answering the
questions or make any statements until you consult with a
Q You have answered yes to all
of these questions that I have asked you. Do you understand
these questions that I have asked you?
Q Do you at this time want to
give us a statement about what happened?
A I want to tell you the whole
Appendix at 96-97. Fryer then
made a statement in which he apparently admitted being present
during the shooting, but denied firing any shots himself.
Shortly after making this
statement, Fryer agreed to retrace with three police officers
the route he had traveled on the night of the murders. Following
the ride, the officers and Fryer returned to the station, where
coffee, donuts, and rolls were served. Fryer ate a donut.
Upon returning to the station,
the officers learned that David Fryer, who was also in custody,
had made a statement to the police that contradicted the
statement Allen Fryer had given. A police officer confronted
Allen Fryer with the contradictions and told Fryer what he
thought had happened the night of the murders. Fryer told the
officer that the officer was right. Fryer was again read his
rights and again acknowledged understanding them. He then gave
another statement. At about 5:30 a.m., Fryer went to sleep.
Sometime after noon the next
day, Fryer's statement was transcribed and taken to him. Fryer
spent approximately 30 minutes reviewing the statement, and
pointed out two changes that he felt needed to be made. After a
police officer made the changes, Fryer initialed the changes and
signed the statement.
Fryer contends that the
District Court erred in concluding that his statement to the
police was voluntary, because an examination of the totality of
circumstances indicates that his will was overborne by the
police interrogations. In support of this contention, Fryer
points to his lower-than-average I.Q., and to the fact that he
was not taken promptly before a magistrate, but rather was
interrogated for eight-and-one-half hours prior to the time he
began to make the statement here challenged. Each of these
factors is indeed important to a determination of whether a
challenged confession is voluntary. Yet after examining the
totality of the circumstances, we cannot conclude that Fryer's
confession was involuntary.
Fryer was 29 years old at the
time of his conviction. He was married and employed on a farm,
where he cared for machinery and for livestock. He had gone to
school until he was sixteen years old, at which point he was in
the seventh grade. We note that the post-conviction hearing in
Iowa District Court demonstrated Fryer's ability to understand
spoken English and to read and comprehend documents. That court
found Fryer's full scale I.Q. to be 87.
An eight-and-one-half hour
interrogation, though punctuated by numerous breaks, is a long
period of time for a suspect to be questioned. However, Fryer's
right to counsel and his right to refuse to answer questions
were explained to him in clear and understandable terms several
times as the evening progressed. Moreover, the police had good
reason to disbelieve Fryer's initial statements, and Fryer never
indicated that he wished to stop the interrogation; rather, each
time his rights were explained to him he indicated his
willingness to talk. "An express written or oral statement of
waiver of the right to remain silent or of the right to counsel
is usually strong proof of the validity of that waiver...."
North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755,
1757, 60 L.Ed.2d 286 (1979). The record shows and we conclude
that Fryer's waiver of rights was intelligently and voluntarily
made. See id. at 374 n. 4, 99 S.Ct. at 1757 n. 4. We find
nothing in the record that would lead to the conclusion that
Fryer's decision to make a statement was not a choice freely
made. Thus, we
reject Fryer's contention that his statement was involuntary.
Fryer next contends that the
District Court erred in finding that the procedure used by the
trial court in determining that his statement was voluntary was
constitutionally adequate. Specifically, Fryer complains first
about the failure of the trial court to conduct his
voluntariness hearing outside the presence of the jury, and
complains second about the "truncated" nature of his
A hearing on the voluntariness
of a defendant's confession must "be fully adequate to insure a
reliable and clear-cut determination of the voluntariness of the
confession, including the resolution of disputed facts upon
which the voluntariness issue may depend." Jackson v. Denno, 378
U.S. 368, 391, 84 S.Ct. 1774, 1788, 12 L.Ed.2d 908 (1964)
(footnote omitted). The fact that the hearing was conducted in
the presence of the jury is, of course, a factor to be
considered in evaluating the adequacy of a hearing.
We reject Fryer's initial
contention that the voluntariness hearing was inadequate for the
sole reason that it was held in the presence of the jury without
Fryer's express consent. While "it certainly would have been
prudent for the trial court to have asked whether [defendant's]
counsel consented to the jury's presence," Lufkins v. Solem, 716
F.2d 532, 539 (8th Cir.1983), cert. denied, --- U.S. ----, 104
S.Ct. 2667, 81 L.Ed.2d 372 (1984), the fact that the hearing was
held in the presence of the jury does not by itself violate the
Constitution. See Pinto v. Pierce, 389 U.S. 31, 88 S.Ct. 192, 19
L.Ed.2d 31 (1967).
In Pinto, the Supreme Court held that the challenged
voluntariness hearing did not violate due process, though it was
held in the presence of the jury, because "the respondent in
this case did not object to having the voluntariness of his
admission considered in the presence of the jury." Id. at 33, 88
S.Ct. at 193 (emphasis added).
While we reject the contention
that the presence of the jury in and of itself rendered Fryer's
voluntariness hearing constitutionally inadequate, we are
mindful of the fact that the presence of the jury can be a
factor indicating the inadequacy of such a hearing, especially
where, as here, defendant contends that the hearing was
inadequate because he was unable to testify, present rebuttal
evidence, or examine witnesses on the issue of voluntariness.
The actual hearing on the
issue of voluntariness took place at trial and was rather brief.
The prosecution sought to introduce Fryer's statement in
connection with the testimony of police officer Allen Steinbeck.
After the prosecution had briefly elicited facts from Steinbeck
to lay a foundation for the introduction of Fryer's statement,
defense counsel cross-examined Steinbeck. Steinbeck admitted on
cross-examination that Fryer's statement was not given under
oath, that Steinbeck did not himself type the statement, that
police had interrogated Fryer until 3:30 a.m. prior to obtaining
the statement, that Fryer had not eaten a meal prior to
interrogation, and that Fryer had not been provided with an
attorney prior to making his statement. Defense counsel
thereupon objected to introduction of Fryer's statement.
The prosecution then
reexamined Steinbeck. Steinbeck testified that Fryer had been
advised of his constitutional rights, had not wanted an
attorney, that throughout the interrogation there had been
breaks during which coffee and donuts had been served, and that
Fryer had spent a considerable period of time the next day
reviewing his transcribed statement before signing it. The trial
court thereupon admitted Fryer's statement.
As mentioned previously, Fryer
contends that the hearing he was afforded was inadequate because
he was unable to testify, to present rebuttal evidence, or to
examine other witnesses. We note, however, that neither Fryer
nor his counsel indicated at trial that Fryer had anything to
add to, or that he wished to dispute, the facts that had been
elicited from Steinbeck. There was no indication that Fryer had
any desire whatsoever to testify on the issue of the
voluntariness of his confession, nor was there any suggestion
that the defense felt that examination of any other person might
indicate that the confession was involuntary. In short, defense
counsel argued that Fryer's confession was involuntary on the
basis of the undisputed facts presented by Steinbeck. While it
is certainly clear that a defendant is entitled to testify on
the issue of voluntariness if he so desires, and that it is
error for a trial court to refuse to hear a defendant's offered
testimony on the limited issue of voluntariness out of the
presence of a jury, see United States v. Carignan, 342 U.S. 36,
38, 72 S.Ct. 97, 98, 96 L.Ed. 48 (1951), there is no showing in
the present case that defendant actually wanted to testify on
the issue of voluntariness, or was chilled in his desire to do
so by the presence of the jury.
Thus, we conclude that the hearing was not inadequate when
judged by constitutional standards.
We note additionally, however,
that even if the voluntariness hearing provided Fryer at trial
had been constitutionally inadequate, Fryer's remedy would be
not a new trial, but a remand to the District Court to allow the
State a reasonable time in which to provide Fryer with an
adequate hearing on the issue of voluntariness. See Jackson v.
Denno, 378 U.S. at 395-96, 84 S.Ct. at 1790-91. If after such a
hearing Fryer's statement were to be found voluntary, "the
Constitution [would not] require[ ] a new trial." Id. at 395, 84
S.Ct. at 1790.
Fryer already has had an
additional hearing on the voluntariness of his statement. In
1980, the Iowa District Court for Lyon County, after a lengthy
post-conviction hearing during which Fryer had full opportunity
to present evidence and to dispute facts, found Fryer's
statement to have been voluntary. We are satisfied that the
post-conviction hearing was fully adequate to determine the
voluntariness of Fryer's statement. Thus, we cannot conclude
that Fryer was deprived of a constitutionally adequate hearing
to determine the voluntariness of his statement.
Fryer next asserts that any of
seven errors in the jury instructions require that he be granted
a new trial. The Supreme Court of Iowa held that Fryer has
waived these claims because no contemporaneous objection was
made. Fryer v. State, 325 N.W.2d 400, 412 (Iowa 1982). In order
to obtain habeas relief, Fryer therefore "must show both (1)
'cause' excusing his ... procedural default, and (2) 'actual
prejudice' resulting from the errors of which he complains."
United States v. Frady, 456 U.S. 152, 168, 102 S.Ct. 1584, 1594,
71 L.Ed.2d 816 (1982). To show actual prejudice, Fryer must show
that " 'the ailing instruction by itself so infected the entire
trial that the resulting conviction violates due process,' not
merely whether 'the instruction is undesirable, erroneous, or
even universally condemned.' " Id. at 169, 102 S.Ct. at 1595
(quoting Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730,
1736, 52 L.Ed.2d 203 (1977)). We consider each asserted
instructional error in turn.
Fryer initially contends that
jury instruction 9 and jury instruction 11 each impermissibly
established a mandatory presumption as to the element of intent
necessary to convict him of first-degree murder. See Sandstrom
v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).
We reject Fryer's contention. When read as a whole, the
instructions clearly indicate that the jury was permitted, but
not required, to draw inferences as to Fryer's intent.
The challenged instructions
read as follows:
INSTRUCTION NO. 9
Among the essential elements
of murder in the first degree are deliberation, premeditation,
and a specific intent to kill.
If a person with opportunity
to deliberate makes a wrongful assault with a deadly weapon upon
another and death ensues, the inference is warranted that he did
so with malice, deliberation, premeditation and a specific
intent to kill.
This inference is not
conclusive, but may be considered by you with all of the
evidence in the case, or lack of evidence, in determining
whether or not the killing charged, if done by the defendant,
was done with deliberation, premeditation and a specific intent
INSTRUCTION NO. 11
Malice aforethought is an
essential element of the crime of murder. If a person makes a
wrongful assault upon another with a deadly weapon and death
ensues, the inference is warranted that such killing was with
This inference is not
conclusive, but may be considered by you with all the evidence
in the case, or lack of evidence, in determining whether or not
the killing charged, if done by the defendant, was done with
Fryer's argument is the same
with respect to both instruction 9 and 11. First, Fryer contends
that by reading the word "warranted" in the first paragraph of
each instruction to mean "required," a juror could read the
first paragraph of each instruction to require, with respect to
instruction 9, an inference of deliberation, premeditation, and
a specific intent to kill, and, with respect to instruction 11,
an inference of malice aforethought with respect to instruction
11. Second, Fryer contends that the phrase "lack of evidence" in
the second paragraph of each instruction could be taken by a
juror to indicate that the mandatory presumption prescribed by
the first paragraph could be overcome only if the defendant were
to come forward with evidence and bear the burden of refuting
We do not share Fryer's
construction of the instructions. While it may have been
preferable for the trial court to have used the word "permitted"
instead of the word "warranted," it is also apparent that the
word "warranted" when used in the context here at issue is a
synonym for the word "permitted" or for the word "justified" and
not for the word "required." See generally Webster's Third
International Dictionary 2577-78 (1981). By reading the word
"warranted" to mean "permitted," the resulting instructions are
appropriate statements of the inferences permitted by law.
Two other jury instructions
support our reading of the word "warranted." Instruction 6
informed the jury, in relevant part, that:
Circumstantial evidence is
that which tends to establish a fact or facts, from which it may
be reasonably and logically deduced that the main or ultimate
fact exists which is thus sought to be proved.... In order,
however, to warrant a conviction on circumstantial evidence
alone, the facts proved must not only be consistent with the
guilt of the accused, but they must also be inconsistent with
any rational theory of his innocence, and all the facts and
circumstances necessary to prove guilt must be connected with
each other and with the main facts sought to be proved, that
taken together they lead to a satisfactory conclusion that the
crime charged was committed and that the accused committed it.
It is not sufficient that they render probable the guilt of the
accused, but they must exclude every reasonable hypothesis of
Instruction 8 informed the jury
The intent with which an act
is done, being a mental state or condition of the mind, is
seldom if ever capable of direct and positive proof, but is to
be arrived at by such just and reasonable deductions or
inferences from the acts and facts proved as the guarded
judgment of a candid and cautious person would ordinarily draw
In determining the intent of
any person you have a right to infer that he intended to do that
which he voluntarily did, and that he intended the probable and
natural consequences to follow his acts, voluntarily done, which
ordinarily follow such acts.
Thus, the jury was told, in
effect, that in determining intent, it had the right to draw
such just and reasonable inferences from the facts proved at
trial as a candid and cautious person exercising guarded
judgment would draw. The jury was further instructed that while
it may draw such inferences, it was not allowed to base a
conviction on such inferences if it could draw from the facts
proved any reasonable hypothesis of innocence.
We do not believe that any
reasonable juror, after being twice instructed that he was
permitted to draw inculpatory inferences, but could not convict
if there was any reasonable exculpatory inference, would
understand the word "warranted" in instructions 9 and 11 to
require him to draw inculpatory inferences to the exclusion of
exculpatory ones. Rather, we believe that any reasonable juror
would have understood the instructions as a whole to complement,
not contradict, each other,
would therefore have attributed to the word "warranted" its most
common meaning, and would have understood that certain
inferences as to intent were permitted, but not required.
Fryer also objects to
instructions 9 and 11 on the ground that nothing in the evidence
allowed the jury to find that Fryer had an opportunity to
deliberate before the shootings. This assertion borders on the
ridiculous. Fryer's statement indicates that Fryer and his
brothers came across the teenagers in the park and believed them
to have marijuana. The Fryers returned to their truck, got their
weapons, returned to the teenagers' campfire, and, as Sandra
Cheskey testified, jointly opened fire. The rest of the gruesome
events of the evening soon followed. This is ample evidence to
support an inference by the jury that Fryer had the opportunity
to deliberate before the shootings.
Fryer's third contention is
that the aiding and abetting instruction given by the trial
court omitted the essential element of knowledge, which is
required as an element of aiding and abetting under Iowa law.
The trial court instructed the jury (instruction 7) that:
To "aid" is to help, assist,
support, promote the course of accomplishment of; help in
advancing or bring about. To "abet" is to encourage, counsel,
incite and instigate the commission of a crime.
The District Court held that
these instructions made it necessary for the jury to find that
Fryer acted knowingly with his brothers in order to find that he
aided and abetted the murders. We agree. It would have been
impossible for the jury to have found that Fryer acted
unknowingly, yet helped, encouraged, counselled, and instigated
the murders. Moreover, we note that given the evidence showing
Fryer's leadership role in the gruesome events that occurred, we
would find it impossible to say that omission of the word
"knowledge" so infected the entire trial that the resulting
convictions violate due process. See United States v. Frady, 456
U.S. at 169, 102 S.Ct. at 1595.
Fryer objects to instruction
25 on the ground that it improperly omitted the essential
element of malice aforethought for felony murder. Instruction 25
reads as follows:
You will first determine
whether the defendant is guilty of murder in the first degree,
bearing in mind the definition of murder in the first degree and
the definition of aiding and abetting heretofore given you in
Before the defendant can be
found guilty of the crime of murder in the first degree of any
or all of the named decedents in the Information, the State must
establish by the evidence beyond a reasonable doubt each of the
1. That on or about November
17, 1983, in Lyon County, Iowa, the defendant did unlawfully
shoot or aid and abet in the shooting of any or all of the named
decedents in the Information.
2. That any or all of the
named decedents died as a result of being shot by the defendant,
or as a result of the defendant aiding and abetting in the
3. That such action of the
defendant was done by him with malice aforethought and
willfully, deliberately and premeditatedly and with a specific
intent on the part of the defendant to kill any or all of the
named decedents, or the aiding and abetting thereof by the
defendant or that any of them were killed during the defendant's
commission of or attempt to commit a robbery, or the aiding and
abetting thereof by said defendant.
If the State has proved beyond
a reasonable doubt all of the foregoing propositions then you
will be warranted in finding the defendant guilty of murder in
the first degree of the said named decedent or decedents
above-named as the State has so proved beyond a reasonable
doubt; but if the State has failed to prove any one or more of
the said propositions beyond a reasonable doubt as they pertain
to any of the above-named decedents, then you will find the
defendant not guilty of murder in the first degree of the said
decedent or decedents aforenamed as the State has so failed to
prove; and you will then determine whether the defendant is
guilty of the lesser and lower included offense of murder in the
second degree of any and all of the abovenamed (sic) decedents
of which said defendant has not been proved guilty of murder in
the first degree. (Emphasis added).
At the time Fryer was tried,
Iowa law required, to sustain a conviction of felony murder,
that the death that occurs in the course of a felony be not
merely an unlawful killing, but a murder; that is, the killing
had to have been a killing with malice aforethought. See State
v. Galloway, 275 N.W.2d 736, 738 (Iowa 1979). Fryer would have
been entitled, had he objected, to have had the word "killed" in
the felony murder portion of instruction 25 changed to
"murdered" or to have had the words "with malice aforethought"
inserted after the word "killed." See id.
We note initially, however,
that instruction 11 clearly states (in relevant part) that
"[m]alice aforethought is an essential element of the crime of
murder," while instruction 13 states in defining first-degree
murder, that, "[a]ll murder perpetrated or committed by willful,
deliberate and premeditated killing of a human being [and] [a]ll
murder committed in the perpetration or attempt to perpetrate or
commit the crime of robbery is murder in the first degree."
Thus, the instructions as a whole clearly indicate that
conviction on any murder count, including felony murder,
requires a finding of malice aforethought.
Second, even were we to find
the instructions as a whole to be improper, we do not believe,
when we examine "the degree of prejudice resulting from
instruction[al] error ... evaluated in the total context of the
events at trial," United States v. Frady, 456 U.S. at 169, 102
S.Ct. at 1595, that Fryer's convictions would violate due
process. We note that there was more than sufficient evidence
that on the evening in question, Fryer acted not only with
malice aforethought, but in a willful, deliberate, and
premeditated manner. See United States v. Frady, 456 U.S. at
171-72, 102 S.Ct. at 1596 (evidence of "malice aplenty"
indicates no risk of a miscarriage of justice). Thus, we see no
likelihood that Fryer suffered any actual prejudice because
instruction 25 used the word "killed" instead of the word
Fryer also contends that
instruction 25 is flawed because the third section of the
instruction permitted the jury to find him guilty of
first-degree murder without requiring that the jury agree which
criminal act he had committed.
He supports this argument by citing to United States v. Gipson,
553 F.2d 453 (5th Cir.1977). Gipson involved the direct appeal
of a conviction under 18 U.S.C. Sec. 2313, which provides
criminal penalties for receiving, concealing, storing,
bartering, selling or disposing of a stolen vehicle. At trial in
Gipson, the district court had instructed the jury that the jury
could convict the defendant, though the jurors did not agree on
which of the acts covered by the statute the defendant had
performed, as long as each juror found that defendant had
committed one of the acts. The Fifth Circuit found the acts
mentioned in the statute to be so dissimilar that the
instruction given by the District Court violated the defendant's
right to a unanimous verdict in his federal trial.
Although Gipson does
superficially resemble the instant case, it really does not bear
much resemblance in any significant sense. We note initially
that in United States v. Bolts, 558 F.2d 316 (5th Cir.1977),
cert. denied, 434 U.S. 930, 98 S.Ct. 417, 54 L.Ed.2d 290 (1978),
the Fifth Circuit limited Gipson to those instances where a
district court has specifically sanctioned a non-unanimous
verdict. The mere fact, however, that an instruction could
conceivably permit a jury to reach a non-unanimous verdict is
not sufficient to require reversal when the jury has been
instructed that it must reach a unanimous verdict. Cf. id. at
326 n. 4. In the present case, it has not been alleged that the
trial judge at any time told the jury that it was permitted to
reach a non-unanimous verdict, nor does a reading of the
instructions reveal that the judge so instructed the jury.
Moreover, instruction 42 specifically required a unanimous jury.
"[A]bsent competent evidence to the contrary, a court has no
reason to assume that [even] an inconsistent or compromise
verdict is not unanimous, and therefore has no justification for
inquiring into the logic behind the jury's verdict." United
States v. Gipson, 553 F.2d at 457.
Second, we observe that Gipson
was the direct appeal of a conviction from a United States
District Court, where the defendant had objected in a timely
manner to a charge to the jury that expressly sanctioned a
non-unanimous verdict. The present case is a collateral appeal
of the defendant's state court conviction. Thus, we do not
review the record for simple error (or even for plain error),
but only for actual prejudice.
The section of instruction 25
here objected to by Fryer essentially states that, to find Fryer
guilty of first-degree murder, the jury had to find either that
Fryer acted with malice aforethought, in a willful, deliberate,
and premeditated manner, or that he acted during the commission
or attempted commission of a robbery.
It has been noted that persons found guilty of felony murder
could, as a general matter, usually have been convicted of
murder without resort to the doctrine of felony murder. See
Jeffries & Stephan, Defenses, Presumptions, and Burden of Proof
in Criminal Cases, 88 Yale L.J. 1325, 1383 (1979). So it is in
Fryer's case. There is certainly sufficient evidence that his
crimes were premeditated and deliberate so that we may
confidently conclude that Fryer has not demonstrated that the
instruction here at issue "worked to his actual and substantial
disadvantage." United States v. Frady, 456 U.S. at 170, 102
S.Ct. at 1596.
Fryer next contends that he
was denied due process of law because, though the jury
instructions provided that he could be convicted of first-degree
murder if he killed, or aided and abetted the killing of any
decedent during the commission of a robbery or during an
attempted robbery, and though the jury instruction contained a
definition of robbery, the jury was never instructed as to what
actions on the part of a defendant would constitute an attempted
Iowa law recognizes no
independent crime of attempted robbery; the issue of what
conduct on the part of a defendant constitutes an attempt arises
in this case solely as a result of the Iowa felony-murder
statute, which incorporates the concept of attempted robbery. In
dealing with attempted crimes, Iowa recognizes the common law
formulation of attempt that requires proof of (1) intent to
commit the crime and (2) some act that goes beyond mere
preparation for the crime and constitutes actual commencement of
the crime. The latter requirement has been defined alternatively
as "some act moving directly toward the commission of the
offense after the preparations are made," State v. Roby, 194
Iowa 1032, 188 N.W. 709, 714 (1922), or as "slight acts in
furtherance of the crime that render voluntary termination
improbable," Fryer v. State, 325 N.W.2d at 406.
The Iowa Supreme Court
concluded that no actual robbery had been committed by the
Fryers since nothing had been taken from the possession of the
victims. Fryer v. State, 325 N.W.2d at 406. The Court also
concluded, however, that there was sufficient evidence in the
record to indicate both that Fryer had the requisite intent to
commit robbery, and that Fryer had completed acts in furtherance
of the robbery sufficient to render voluntary termination
Fryer complains to this Court
that, based on the finding that nothing was taken from the
victim and based on the apparent lack of any intervening force
to prevent consummation of the robbery, no reasonable conclusion
can be drawn except that the robbery was voluntarily terminated.
Fryer's position, then, is that the voluntary abandonment of an
intended crime after the commission of acts in furtherance
thereof, but before the crime is consummated, is an absolute bar
to a finding that the actor engaged in an attempt. We believe
that Fryer misconstrues the common law of attempts. The chief
purpose of the requirement that there be a significant act in
furtherance of the crime in order to impose liability for an
attempt (aside from the general requirement that there be an act
because criminal liability may not be premised on intent alone)
is to corroborate the actor's specific intent to commit the
crime. Thus, the act must be of such an unequivocal nature, in
order to be a valid corroboration, that it would seem, at the
time the act is committed, that voluntary termination is
unlikely--that is, that the intent to commit the crime has
generated an act (beyond mere preparation) calculated to bring
the desired result to fruition. Once such an act is committed,
the attempt is under way, and any subsequent termination, though
voluntary, is not a defense.
We find support for this
analysis in People v. Dillon, 34 Cal.3d 441, 194 Cal.Rptr. 390,
668 P.2d 697 (1983). The defendant in that case had articulated
a position identical to that here advanced by Fryer. That
defendant relied on People v. Buffum, 40 Cal.2d 709, 256 P.2d
317, 321 (1953), which noted that to show an attempt,
"[p]reparation alone is not enough, there must be some
appreciable fragment of the crime committed, it must be in such
progress that it will be consummated unless interrupted by
circumstances independent of the will of the attempter...."
The California Supreme Court
held in Dillon that the reference to interruption by independent
circumstances in Buffum did not mean that voluntary termination
was a defense to the crime of attempt, but rather was merely a
clarification of the requirement that the act in furtherance of
the intent to commit the crime be unequivocal:
If it is not clear from a suspect's acts what
he intends to do, an observer cannot reasonably conclude that a
crime will be committed; but when the acts are such that any
rational person would believe a crime is about to be consummated
absent an intervening force, the attempt is under way, and a
last-minute change of heart by the perpetrator should not be
permitted to exonerate him.
People v. Dillon, 194
Cal.Rptr. at 396, 668 P.2d at 703.
So it is, we believe, in Iowa
common law. Cf. Fryer v. State, 325 N.W.2d at 406. The
requirement that the act committed in furtherance of the crime
be such that it render voluntary termination improbable does not
enshrine a last-minute change of heart as a bar to a finding
that an attempt was committed. Rather, such a requirement exists
so that it is evident that the act committed be of an
unequivocal nature: the act must be of such a nature that it is
probable that the defendant intended to complete the crime. Once
such an act is committed, the crime of attempt is complete, and
later termination, though voluntary, is irrelevant. See Sayre,
Criminal Attempts, 41 Harvard L.Rev. 821, 847 (1928).
More important, however, for
the purposes of our present review, is that Fryer has not shown
that the failure of the trial court to explain to the jury the
elements of attempt worked to his actual and substantial
prejudice. As previously noted, there is more than sufficient
evidence to indicate that Fryer acted not only with malice
aforethought, but in a willful, deliberate, and premeditated
manner. See United States v. Frady, 456 U.S. at 171-72, 102
S.Ct. at 1596. Fryer easily could have been convicted of
first-degree murder without resort to the doctrine of felony
murder. Thus, we see no substantial likelihood that the trial
court's failure to define attempt prejudiced Fryer's chances
with the jury.
Fryer also objects to
instructions 21, 22, and 23, which stated that the prosecution
must prove beyond a reasonable doubt either that Fryer inflicted
a wound of a type likely to cause death on Michael Hadrath,
Stewart Baade, and Dana Baade, respectively, or alternatively,
must prove that Fryer aided and abetted in the infliction of
such wounds. Fryer correctly points out that because
uncontradicted testimony showed that Hadrath and the two Baades
had not yet been fatally injured when Fryer left the park with
Sandra Cheskey, there was no basis in fact for instructing the
jury that it could find that Fryer inflicted a fatal wound on
any of the three.
It does not appear to us that
Fryer could possibly have been prejudiced by these instructions
since, as we already have noted, there was sufficient evidence
for the jury to have found, beyond a reasonable doubt, that
Fryer aided and abetted the murders. Thus, we would reject this
claim if it were properly before us. Because Fryer did not
present this claim to the District Court, however, it may not be
considered here for the first time. See Van Meter v. Iowa, 578
F.2d 218, 219 (8th Cir.1978).
Fryer claims that the
prosecutor's questioning of the State's ballistics expert
improperly drew attention to Fryer's failure to testify.
Fryer quite correctly notes that it is error under Griffin v.
California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965),
for a prosecutor to tell the jury that it may draw an adverse
inference from the defendant's failure to testify. In United
States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96
(1983), however, the Supreme Court declined to uphold the
reversal of a conviction by the Court of Appeals in a case where
the prosecutor had drawn attention to the fact that the
defendants had not testified; the Court held that the error was
harmless on account of the substantial evidence of guilt.
We note again that we are not
engaged in a direct review of Fryer's convictions, but rather
are reviewing the District Court's dismissal of Fryer's
collateral attack. Fryer's counsel did not object to the
statements here contested and the Iowa Supreme Court held that
the objection was waived. Thus, Fryer must show cause and
prejudice in order to obtain collateral relief. He cannot
demonstrate either. First, the District Court found that Fryer's
counsel made a tactical decision not to object to the statement
so as to avoid bringing further attention to Fryer's failure to
testify. Thus, we do not believe that cause exists excusing
Fryer's procedural default. Second, in light of the substantial
evidence of guilt, and in light of the fact that the colloquy
regarding the shells went to the issue of whether Fryer had
actually fired the shot that killed Roger Essem,
we conclude that Fryer could not have suffered actual prejudice
on account of the expert's testimony that Fryer would have known
whether he had picked up any spent shotgun shells.
Lastly, Fryer contends that
the assistance provided by his trial counsel was ineffective (1)
because counsel failed adequately to seek suppression of his
statement to the police, (2) because counsel failed to object to
the statement made by the State's ballistics expert, (3) because
counsel failed to object to erroneous jury instructions, and (4)
because counsel failed to request that closing arguments be
transcribed. In Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court held that
in order to show ineffective assistance of counsel, a convicted
defendant must show both: (1) that counsel's performance was
seriously deficient, and (2) that the defendant was prejudiced
by counsel's performance. Id. at 2064. In order to show
prejudice under the Strickland test, a "defendant must show that
there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Id. at 2068.
As to the first claim of
ineffective assistance raised above, we have already held that
Fryer's statement was voluntary. For this reason alone, it
cannot be said that Fryer was prejudiced by any alleged lack of
effort on the part of his counsel to exclude it.
As to the second and third
claims, we already have held that Fryer was not prejudiced by
any alleged errors within the meaning of the cause and prejudice
standard of United States v. Frady: there has been no showing
that the testimony or instructions worked to Fryer's actual and
substantial disadvantage. 456 U.S. at 170, 102 S.Ct. at 1595.
Similarly, we reject Fryer's second and third abovelisted
ineffective assistance claims on the ground that he has not
shown sufficient prejudice under Strickland. He has shown
nothing with regard to these claims that undermines our
confidence in the outcome of his trial.
Fryer's fourth claim of
deficient performance by his trial counsel is that counsel
provided ineffective assistance by failing to request a
transcript of closing arguments.
Fryer now asserts that the prosecutor told the jury during
closing arguments that if it found Fryer not guilty, the
prosecutor wanted a two-day headstart to get out of town.
In a deposition submitted to
the Iowa District Court for Lyon County in connection with
Fryer's post-conviction hearing, Joseph Beck, who was an
Assistant Attorney General for the State of Iowa, and was the
prosecutor who Fryer alleges made the improper statement here at
issue, denied making any such statement.
Furthermore, a newspaper article written about the closing
arguments made no note of any such statement by Beck, though it
did mention a number of other statements that had been made. See
Deposition of Joseph Beck at 89-91. David Casjens, who was the
second prosecutor at Fryer's trial, testified at Fryer's
post-conviction hearing that he did not recall Beck making any
such statement. Post-conviction Transcript at 393. Donald
DeWaay, Fryer's trial counsel, was not asked at the
post-conviction hearing about the alleged statement, but DeWaay
did note that he would have objected to any argument made that
would have prejudiced Fryer. Id. at 353. The record shows that
no objections were made during closing argument. The
post-conviction court found that no improper statement had been
made by Beck during closing arguments. Appendix at 141.
A factual finding by a state
court is generally presumed to be correct in a federal habeas
proceeding absent specified procedural or substantive
irregularities, and the burden is on the petitioner to show by
convincing evidence that the state court factual determination
is in error. See 28 U.S.C. Sec. 2254(d). We have examined the
record of Fryer's post-conviction hearing, and with respect to
the factual determination here in question, we do not find any
procedural or substantive irregularities within the meaning of
Sec. 2254(d). Fryer has not presented any convincing evidence
that the post-conviction court erred in finding that Beck made
no improper statement during closing arguments. As noted by the
post-conviction court, Fryer's allegation that Beck did make
such a statement is completely unsupported.
Accepting the finding of the
post-conviction court that no improper statement was made during
closing arguments, we cannot say that Fryer was prejudiced by
the failure of his trial counsel to have closing arguments
transcribed. See Strickland v. Washington, 104 S.Ct. at 2068.
Thus, we reject Fryer's fourth claim of ineffective assistance
The order of the District
Court denying Fryer's petition for a writ of habeas corpus is