# Appendix — Nix v. Williams

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0752%3A05

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1984
- **Citation:** 467 U.S. 431

## Text

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FIL

NO. 82-1651

Supreme Ceurt, U.

ED

MAY 25 1985

ALEXANDER L. STEVA®S
CLERK

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IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1982

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Des Moines, Iowa 50319
Telephone: (515) 281-5166

COUNSEL FOR PETITIONER

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TABLE OF CONTENTS

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Reciztes for Wete of Habeas

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APPENDIX A (NIX V. WILLIAMS)
NO. 82-1651
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
CENTRAL DIVISION

ROBERT ANTHONY WILLLAMS,

Petitioner, CIVIL NO. 80-450-D
SUPPLEMENTAL PETI-

TION FOR WRIT OF
HABEAS CORPUS

vs.
DAVID SCURR, Warden of the

Iowa State Penitentiary at
Fort Madison, Iowa,

Respondent. - —

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l. This petition is filed as a supplement
to the Questionnaire-Petition that Petitioner is
filing contemporaneously herewith pursuant to
Rule 26 of the Local Rules of this Court. The
Questionnaire-Petition and this Supplemental Peti-
tion are filed pursuant to 28 U.S.C. §§ 2241(c)
and 2254, in that Petitioner is in state custody
in violation of the United States Constitution.

2. Petitioner is an inmate currently in the

custody of the Respondent, who is Warden of the
Iowa State Penitentiary.

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3. On July 15, 1977, in the Iowa District
Court in and for Linn County, Iowa, a jury convicted
Petitioner of first-degree mmrder. On August 19,
1977, Petitioner was sentenced to life imprisonment.

4. Vemue is proper in this Court under 28
U.S.C. § 2241(d), in that Petitioner is confined
within this District.

5. Petitioner has exhausted his state remedies
under 28 U.S.C. § 2254(b) with respect to the issues
presented in this Petition through a direct appeal
fram his conviction to the Lenni Seajieane: Ovid: The
Iowa Supreme Court denied relief on November 14,
1979. State v. Williams, 285 N.W.2d 248 (Iowa 1979).
The same court denied rehearing on December 13, 1979.

II

6. Prior to trial, Petitioner twice requested
that Mr. Sheldon Otis, an attorney from San Francisco,
California, be appointed to represent him.

7. Mr. Otis had tried mmerous serious felony
cases, anc was willing and able to accept appoint-
Ment at no special cost to the county.

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8. Mr. Otis’ competence and willingness to
serve as Petitioner's counsel were undisputed. The
trial court indicated that if Mr. Otis had been re-
tained, he would have been allowed to appear.

9. Even though the facts in Paragraphs 6-8, ~-
supra, were true, the trial court denied Petitioner's
application for Mr. Otis's appointment.

10. No countervailing state interests existed
to justify denying Petitioner's choice of appointed
counsel.

ll. The Iowa trial court's failure to allow
Petitioner to select the a whom he wished
to entrust his defense, when such counsel was avail-
able and no countervailing state interests were .
imvolved, deprived Petitioner of his qualified right
to select the counsel of his choice under the Sixth
and Fourteenth Amendments to the United States Con-
stitution.

12. The Iowa trial court’s denial to Petitioner,
an indigent defendant, of the same right to choose
counsel that is given to defendants of sufficient
means, solely on the basis of wealth and without any re

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substantial reason, irrationally discriminated
against Petitioner in violation of the Fourteenth
Amendment to the United States Constitution.
WHEREFORE, Petitioner prays that his conviction
referred to in Paragraph 3 be reversed.
III
13. In Brewer v. Williams, 430 U.S. 387 (1977),

the United States Supreme Court held that statements
concerning the location of the body of the victim in
this case had been obtained by law enforcement officers
from Petitioner in violation of his Sixth and Four-
teenth Amendment right to counsel.

14. Petitioner's statements concerning the loca-
tion of the victim's body were obtained in violation
of Petitioner's Fifth and Fourteenth Amendment rights
in that a police officer contimed to interrogate
Petitioner after Petitioner indicated his choice to
remain silent, and in that the statements were not
voluntary. Williams v. Brewer, 375 F.Supp. 170 (S.D.
Ia. 1974), aff'd, 509 F.2d 227 (8th Cir. 1975), aff'd,
430 U.S. 387 (1977).

15. These illegally obtained statements in fact |
led police officers directly to the victim's body. 4

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16. Prior to trial, Petitioner filed a Motion
to Suppress evidence of the discovery of the body or
evidence relating to the body.

17. The Iowa trial court overruled this motion to
suppress and permitted the prosecution to introduce
evidence recovered from the body -- including semen,
hair samples, and evidence of the cause or death --
on the ground that the prosecution had shown, by a
preponderance of the evidence, that the body would
have been found "in any event". The Iowa Supreme °
Court affirmed this ruling om appeal.

18. The Iowa trial court's application of the
"inevitable discovery" rule violated Petitioner's
rights under the Fifth, Sixth, and Fourteenth Amend-
ments to the United States Constitution in that:

a. The "inevitable discovery" rule applied °

by the Iowa courts is itself violative of the Fifth,
Sixth, and Fourteenth Amendments;

b. In requiring the prosecution to show only
by a preponderance of the evidence, that the body
would have been discovered "in any event"', the Iowa
courts used an inadequate burden of proof;

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c. The Lowa courts erred in finding that the

prosecution had met even the preponderance-of-the
evidence burden.

19. Petitioner did not have a fair opportunity
to litigate the claim of "inevitable discovery" in
state court.

WHEREFORE, Petitioner prays that the conviction
referred to in Paragraph 3 be reversed.

IV

20. Prior to trial, on May 16, 1977, Petitioner
petitioned the trial court for a change of veme, citing
the existence of prejudice and prejudicial publicity
in Polk County. Petitioner asked that the court i
authorize public opinion surveys of a small mmber
of potential trial sites and requested that a new veme
not be set pending the results of such surveys.

21. On May 27, 1977, the trial court granted a
change of venue, to Linn County, but denied the motion
for opinion polls of potential trial sites.

22. Petitioner's case had generated an extra-
ordinary amount of statewide pretrial publicity, in- ,
cluding print and broadcast media reporting on the | 4

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first trial, the United States Supreme Court's 1977
reversal of Petitioner's 1969 conviction and mmerous
"facts'' about the case. Given this massive, unfavor-
able publicity, the choice of trial site was extremely
important to Petitioner's defense and to a fair trial.

23. Without an opinion survey or some substitute,
the selection of an appropriate verme could not be
made on any rational basis. The trial cout itself
acknowledged that it did not have any basis for
selecting an alternative trial site.

24. The Iowa trial c.urt's denial of Petitioner's
Motion for Authorization of Public Opinion Polls for
Purposes of Verue Selection denied Petitioner the
effective assistance of counsel, due process, and
equal protection, as guaranteed to him by the Four-
teenth Amendment to the United States Constitution.

WHEREFORE, Petitioner respectfully prays that
the conviction referred to in Paragraph 3 be reversed.

V

25. During the voire dire examination of pro-

spective juror Victoria Neuzil, it was established
: that Mrs. Neuzil had been exposed to information

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that Petitioner had pointed out to the police the
location of the body of the victim.

26. During voire dire, Mrs. Neuzil made several
statements indicating that she was unable to presime
Petitioner immocent; that she could not put out of
her mind what she already knew; and that it would
be difficult for her to be a fair and impartial juror.
Despite mmerous questions by the prosecution and the
defense, Mrs. Neuzil never stated that she could be a
fair and impartial juror.

27. The trial court denied Petitioner's challenge
for cause of Mrs. Neuzil. This denial constituted a
violation of Petitioner's Seventh and Fourteenth
Amendment rights to a fair and impartial jury and to
due process.

WHEREFORE, Petitioner prays that the conviction
referred to in Paragraph 3 be reversed.

vi

28. At the close of all the evidence, Peti-
tioner moved for a directed verdict of acquittal of
the charge that he had committed first-degree murder
by killing the victim with malice aforethought, pre-

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meditation, and deliberation. The trial court
overruled this motion, and included in its instruc-
tions to the jury an instruction on premeditated and
deliberated first-degree murder.

29. There was no direct evidence of the circm- .
stances of the victim's death. All that was estab-
lished in this regard was that the victim died of
asphyxiation, probably as a result of smothering,
and that she had been sexually molested, but not
penetrated, at or after the time of death.

~0. This evidence legitimately supported an
inference that the victim was killed with malice.
The fact of the killing, however, could not then
properly be used to infer premeditation and delibera-
tion.

31. To convict of first-degree mmrder, there
must be proof that the accused actually premeditated
and deliberated, for the following reasons:

a. The legislature purposely divided murder
into two degrees with different punishments afforded
each;

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b. The accused has the Due Process right to
be corrvicted of a crime only upon proof beyond a
reasonable doubt of all the elements of that crime;

c. Permitting conviction for premeditated
first-degree mirder solely m a showing of oppornmity
to deliberate, rather than actual deliberation and
premeditation, would fail to provide objective
statdards [sic] to the jury.

32. For the reasons stated above, the lower
court's denial of Petitioner's motion for directed
verdict on the charge of premeditated and deliberated
first-degree mirder denied Petitioner the fundamental
fairness guaranteed by the Due Process Clause of the
Fourteenth Amendment to the United States Constitu-
tion.

WHEREFORE, Petitioner prays that the conviction
referred to in Paragraph 3 be reversed.

VII

33. The indictment charged that Petitioner
violated sections 690.1 and 690.2, Code of Iowa (1966),
in that he "did with malice aforethought premedita-
tion, deliberation, and intent to kill, murder Pamela
Powers....""

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34. The trial court's Instruction No. 8 per-
mitted the Petitioner to be found guilty of first-
degree mirder on two theories: (a) on the '‘premedita-
tion’ theory mentioned in the preceding Paragraph, and
(b) om the theory that Petitioner mirdered the victim .
in the perpetration of a felony, viz., attempted rape.

35. When an indictment cites to the code section
violated and defines in specific, narrowing terms the
manner in which the offense was committed, the instruc-
tions to the jury must be in conformity therewith.

36. The variance between the indictment and the
instructions to the jury deprived Petitioenr [sic] of
his right to be tried solely on the charges contained
in the indictment, as guaranteed by the Due Process ~
Clause of the Fourteenth Amendment to the United
States Constitution.

WHEREFORE, Petitioner prays that the conviction
referred to in Paragraph 3 be reversed.

VIII

37. Instruction No. 8 informed the jury that
they could convict Petitioner of first-degree murder
if they found beyond a reasonable doubt that Peti-

ofS «
tioner killed the victim (1) willfully and wnlaw-
fully, (2) with malice aforethought, and (3) with
premeditation, deliberation and specific intent or
in the perpetration of the crime of attempted rape.

38. The third element of the instruction
described the two alternative factual means by which
first-degree murder may be committed, but the instruc-
tion failed to require the jury to agree on which of
these two alternatives was applicable to Petitioner's
actions’.

39. Consequently, the verdict could have been a
non-unanimous one, for example, with six jurors
believing that Petitioner was guilty of premeditated
murder but not felony mirder and six jurors believing
Petitioner was guilty of felony mmder but not pre-
meditated murder.

40. Instruciton [sic] No. 8 therefore deprived
Petitioner of his fundamental rights to trial by jury
and to proof beyond a reasonable doubt before con-
viction, as guaranteed by the Fourteenth Amendment
to the United States Constitution. !

» 19 «
WHEREFORE, Petitioner prays that the Court
reverse the conviction referred to in Paragraph 3
above.
Respectfully submitted,

/s/
Robert Anthony Williams

APPENDIX B (NIX V. WILLIAMS)
NO. 82-1651

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
CENTRAL DIVISION

ROBERT ANTHONY WILLIAMS,

Petitioner,
CIVIL NO. 80-450-D
v.

DAVID SCURR, Warden of
the Iowa State Penitentiary,
Fort Madison, Lowa,

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ege
University of Iowa
Iowa City, Iowa 52242

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T.. TREE. ww te et wt

OWERY" TEST APPLIED BY THE IOWA

TIQM@R..... ome Picts +
V. TOWNSEND V. SAIN AND 28 U.S.C.
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VI. STONE V. POWELL DOES NOT PRECLUDE
THIS COURT OF
THE SUPPRESSION ISSUE ...... 12

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
CENTRAL DIVISION

ROBERT ANTHONY WILLIAMS, )
)
eatin’ ) CIVIL NO. 80-450-D
7 } PETITIONER'S POST-HEARING
) MEMORANDUM
DAVID SCURR, Warden of )
the Iowa State Penitentiary, ) |
Fort Madison, Iowa, — ) 4
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Defendant . )
OR ey ee ‘ ooo An eee

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I. INTRODUCTION
Because Petitioner anticipated that he would
present additional evidence relating to the
motion-to-suppress ("inevitable discovery’’) issue
in this case at the August 3 hearing, he did not
address this issue in his Reply Memorandim (filed
July 13, 1981). Consequently, this Memorandum will
first respond to the legal arguments regarding
"inevitable discovery" that were made in Respondent's
Brief of April 1, 1981. The Memorandm will then
discuss the impact of the evidence presented at the
August 3 hearing on the issue of whether the victim's
body would have been discovered in the absence of the
Fifth and Sixth Amendment violations that led law
enforcement officers to the victim's body on
December 26, 1968. Finally, the Memorandm will
address the Stone v. Powell issue raised by Respondent.
II. THE HYPOTHETICAL ‘INEVITABLE DISOOVERY''
TEST APPLIED BY THE IOWA SUPREME COURT
WAS CONSTITUTIONALLY IMPROPER.
A. Respondent relies heavily on the Iowa Supreme
Court's analysis of the split in the United States a
Court of Appeals regarding the "inevitable discovery" __

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doctrine, and updates that analysis with mre
recent circuit decisions. (Brief at 7-9). Given
the split in the circuits, and the absence of any
definitive inevitable discovery decision in the
Eighth Circuit, this "counting of courts" is not
terribly useful in the instant case. However,
Petitioner would note that the Iowa Supreme Court's
and Respondent's analysis of the circuit court pre-

cedents is quite misleading, for several reasons.

1. In at least four of the decisions counted
by the Iowa Supreme Court -- United States v.
Soehmlein, 423 F.2d 1051 (4th Cir.), cert. denied,
399 U.S. 913 (1970); United States ex rel. Owens v.
Twomey, 508 F.2d 858 (7th Cir. 1974); Wayne v.
United States, 318 F.2d 205 (D.C. Cir.), cert. denied,

375 U.S. 860 (1963); and United States v. Schmidt,
573 F.2d 1057 (9th Cir.), cert. denied, 439 U.S. 881
(1978) -- the court’s references to the inevitable
discovery doctrine were pure dictum. See United

States v. Alvarez-Porras, 643 F.2d 54, 64 (2d Cir.

1981); United States v. Hoffman, 607 F.2d 280 (9th
Cir. 1979).

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2. The Second Circuit decision counted on by
the Iowa Supreme Court -- United States v. Ceccolini,

542 F.2d 136 (2d Cir. 1976), rev'd on other grounds,
435 U.S. 268 (1978) -- involved discovery of a live
witness, rather than physical evidence. +/ Moreover, _
it is not clear that the court of appeals in Ceccolini
actually applied the inevitable discovery doctrine in ©
reaching its result. Finally, other Second Circuit

decisions have rejected the inevitable discovery
doctrine. United States v. Patoutian, 249 F.2d 486, 489

(2d Cir. 1962); United States v. Alvarez-Potras, supra. _
3. As Respondent concedes, the Ninth Circuit --
which the Iowa Supreme Court counted as supporting
the inevitable discovery doctrine, 285 N.W.2d at 256 --
has indicated that it has not adopted that doctrine.
United States v. Hoffman, 607 F.2d 280, 285 (9th Cir.
1979).
4, Thus, only one citeuit -- the Third, see

Virgin Islands v. Gereau, 502 F.2d 914, 927-28 (3d

y The Supreme Court emphasized this distinction
in its opinion in Ceccolini. See 435 U.S. at 276-77.

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Cir. 1974), cert. denied, 420 U.S. 909 (1975) --
has actually adopted the inevitable discovery doctrine.
And in Gereau, the court required that inevitable
discovery be demmstrated by clear and convincing
evidence, a far more stringent test than the "pre-
ponderance"’ standard used by the Iowa Supreme Court.

5. Respondent attempts to add the Fifth Circuit
to the inevitable discovery column by reference to
United’ States v. Brookins, 614 F.2d 1037 (1980).

But the Brookins decision is clearly distinguishable,

and adopts -- in dictum -- only a very narrow version
of the inevitable discovery doctrine that is in-
applicable to the instant case. The defendant in
Brookins sought to exclude the testimony of a witness
because his identity had been obtained through an
illegal interrogation. The court of appeals first
held that the discovery of the witness was too
attenuated fran the interrogation to be tainted ,*
thereby, relying on Ceccolini v. United States, 435
U.S. 268 (1978). 614 F.2d at 1042-44. In the alter-
native, the court found that the witness would have

+

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In doing so, however, the court emphasized two
factors that were critical to its use of what
it characterized as a ‘narrow’ version of the
"inevitable discovery exception": (a) that the
prosecution demonostrated that the police possessed
the leads that made discovery inevitable prior to
the illegal interrogation; and (b) that "'the evidence ~
in question was the voluntary testimony of a witness."
614 F.2d at 1042, n.2. Of course, neither of these

factors was present in the instant case..- 2/

6. In sum, oaly oe Circuit -- the Third -- has
actually adopted an inevitable discovery doctrine
like that used by the Iowa Supreme Court in the instant
case; and that Circuit has required the prosecution to
meet a more stringent burden of proof than a mere
"preponderance of the evidence.'’ At the same time,
at least one Circuit has clearly rejected the doctrine.

2/ the ' “prior leads" factor serves to mitigate the
emasculating effect on constitutional protections

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United States v. Griffin, 502 F.2d 959 (6th Cir.,

3/
cert. denied), 419 U.S. 1050 (1974). This is

hardly overwhelming precedential support. 4/

B. Respondent simply ignores the Supreme Court
precedents, including Wong Sun v. United States, 371
U.S. 471 (1964), Brown v. Illinois, 422 U.S. 590 (1975),
and United States v. Wade, 388 U.S. 218 (1967, that
demonstrate that the scopes test for deciding the motion
to suppress was whether the victim's body in fact was

opinion that could be read
"either way.'” However, a reading of Griffin demon-
strates that it rejects the inevitable discovery

doctrine as emasculating the warrant requirenent of
the Fourth Amendment. 502 F.2d at 961.

United States v. Alvarez-Porras, supra, oar. 2d at
64-65.

4/ States, 396 F.2d 929 (D.C. Cir “TOR United
States, 336 F.2d 929 (D.C. Cir at 6-7).
However, in Kil , the court emphasized that the
discovery o "s body went solely to the fact
that the victim was deceased, and did not serve to
connect the defendant with the crime; in the instant

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discovered by means "sufficiently distinguishable"
from the unconstitutional interrogation of Petitioner
-- not whether the body hypothetically would have been
discovered even if that interrogation had not taken
place. Under the former test, of course, there is
no legitimate question about the result in this case,
since the discovery of the body in fact was the direct ©
and inmediate result of Petitioner's statements to the
police.
III. EVEN IF THE HYPOTHETICAL INEVITABLE

DISCOVERY DOCTRINE WERE PROPER, THE

BURDEN OF PROOF APPLIED BY THE IOWA

SUPREME COURT WAS INSUFFICIENTLY

STRINGENT.

Since Respondent does virtually nothing to address

the argument that the preponderance-of-the-evidence
burden of proof utilized by the Lowa Supreme Court
was not sufficiently strict, Petitioner need add little”
to his’ Memorandum in Support of Petition on this question.»
Petitioner would only note that Respondent’ s attempt to
equate the '‘preponderance’’ test with the "actualities, <¥ |
not possibilities’ language he attributes to Hoffman,
supra (Brief at 11) is fatally flawed, since that Language
actually comes from United States v. Paroutian, 299 eect
486, 489 (2d Cir. 1962) => Wah enpenee Oe

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discovery doctrine. United States v. Hoffman, supra,
607 F.2d at 285, n.3.

IV. THE RECORD DOES NOT SHOW THAT THE VICTIM'S

OF THE TLLBCAL INTERROGATION OF PETITIONER.

The legal errors discussed in Division II and
III, supra, by themselves tequire reversal of Peti-
tioner's conviction. However, Respondent's defense of
the hypothetical "inevitable discovery'’ doctrine nec-
essitates an analysis in this Memorandum of the question
of whether the victim's body would have been discovered
"in any event’ (i.e., even in the absence of the illegal
interrogation of Petitioner).

The Iowa Supreme Court held that the victim's
body would have been discovered even if Petitioner had
not shown the police where the body was. In arriving
at this conclusion, that court found (1) that the
organized search for the victim would have extended
into Polk County, to the area where the body was found,
and (2) that the searchers would have seen the body
because it was highly visible. State v. Williams,
285 N.W.2d 248, 262 (Iowa 1979).

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The record in this case, and especially the
additional evidence presented at the August 3,

1981, hearing, demonstrates that the Iowa Supreme
Court's above-described findings were clearly
erroneous, and that in fact it is highly wnlikely
that the search that was instituted on December 26,
1968, would have discovered the body. A fortiori,
of course, the prosecution failed to meet its burden
to show that the body would have been discovered "in
any everit,'’ even under a erepondarence-cf-chatavadidian
standard.

Because of the nature of the additional evidence
that was presented on August 3, it will be most con-
venient to address these matters in a more or less
reverse chronological order, from the body backwards
to the initiation of the search. '

A. Bias ie eae

1. Visibility of the body |
The Iowa Supreme Court relied on two photographs
admitted into evidence at the 1977 motion to suppress |
hearing (Petitioner's Exhibits 3 and 5 in this pro-

»
ceeding) to find that the body would have been visible
to searchers. It was critical to this finding that
the Supreme Court believed that Exhibits 3 and 5
showed the body as it appeared when the police first
found it:

The State also introduced photographs show-

ing the body as it was actually found.
These photographs show that Pamela Powers's
body would not have been hidden by the inch
of snow which accumulated in the area in
the of December 26. . .. In addi-
tion, the t heg of the body was poised
midair, where it would not have been readily
covered by a subsequent snowfall.

State v. Williams, 285 N.W.2d 248, 262 (Iowa 1979).2/

(Emphasis added). The court apparently based this
belief on testimony at the motion to suppress hearing

by Mr. Thomas Ruxlow, an agent with the Bureau of
Criminal Investigation (BCI), that Exhibit 5, showed

o 4
$/
the body exactly as it was found.

The additional evidence presented on August 3
in the instant proceeding establishes beyond any
question that the Iowa Supreme Court's belief that
Exhibits 3 and 5 showed the body as it was found was
incorrect (albeit through no fault of that court's).
Thus, at his July 16, 1981, deposition, Mr. Ruxlow
conceded that Exhibit 5 was taken after the scene had
been altered and snow had been removed. (Ruxlow Dep.
Tr. at 17). Even without Mr. Ruxlow's deposition
testimony, Petitioner's Exhibit 1 demonstrates clearly

6/

~ Mr. Ruxlow's testimony with respect to Petitioner's
Exhibit 5 (Exhibit D at the motion to suppress hearing)
is at p. 42 of the transcript of the motion to suppress

hearing:
Q. I hand you what has been marked State's Exhibit

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Q. Has

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that Exhibit 5 could not possibly show the body as
it was found. While Exhibit 5 shows the body almost
completely exposed to view, Exhibit 1 shows the body
covered with a blanket of snow and obscured by brush.

The record also shows that Exhibit 3 (Exhibit C
at the 1977 suprression hearing) was not of the body
as it was found. Mr. Carroll Dawson, who was called
to the scene with the Identification Section of the
Des Moines Police Department, testified at the 1969
trial, and again at the 1977 motion to suppress hear-
ing, that another officer took a single initial photo-
graph of the body as it appeared when it was found.
After this first photograph was taken, the body was
moved, and the scene altered. y Exhibit 1, in which

L/ Petitioner's Exhibit 13 is the portion of Mr. Dawson's
testimony at the 1969 trial that pertains to the :
graphs taken at the scene. At p. 189, Mr. Dawson. states:
‘(a)fter the first initial photograph was taken, showing
the body partially covered with snow, we did brush the

snow away and take additional -" (T. 189;

photographs
emphasis added). At the motion to suppress , Mr.
Hal photogeast wa
-- part snow

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the body is virtually indiscernable, must be the
initial photograph to which Mr. Dawson referred.
Thus, all the other photographs presented at the
hearing on August 3 were taken after the scene had
UENO

In short, the only photograph that shows the
body as it was found is Exhibit 1, which shows that

9/
the body was covered with snow and obscured by brush.

Even though that photograph was taken at close range
fram above, the body is barely visible. Exhibit 1 is
vivid proof that even if searchers had been walking
along the road beside the culvert, they probably would
not have seen the body.

8/
Even Petitioner's Exhibit 2, in which the body is

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2. Visibility of the culvert
The preceding paragraphs show that it is wlikely
that the body would have been discovered even assuming
that searchers woula have gotten out of their vehicles

in the area where the body was located. However, the
record shows that even this assumption is not
warranted. Mr. Ruxlow testified at the 1977 motion
to suppress hearing the searchers generally looked
for the body from their vehicles. (Motion to Suppress
Tr. at 47-48). If they saw a "culvert or any out -
building of an abandoned farm," they were supposed
to get out of their cars to search the area thoroughly.
(Motion to Suppress Tr. at 48). Obviously, if they
could not see a culvert, they would not stop to
search it.

Petitioner's Exhibits 7, 8 and 9 are photographs
taken from the road approaching the culvert where
the body was located. Although all of these photo-
graphs show the location of the culvert, it is not

x
visible in any of then. = Even in Exhibit 7,
which was taken within close proximity to the
culvert, the culvert is indiscernible. The searchers,
therefore, would not have gotten out of their cars
to search the area thoroughly, and thus could not
have found the bodv even if it had been more
visible than Exhibit 1 shows it was.

B. The Search Would Not Have Continued Into
Polk County, Where The Body Was Located.

The preceding paragraphs show that even if
searchers had searched for the victim's body along
the Polk County road beside which it was found, it
is unlikely that they would have foundit. The
record also shows that the search would not have

extended into Polk County in the first place.

10/

At the July 16, 1981, deposition of Mr. Ruxlow,
counsel for Respondent elicited testimony,
leading questions, that a tree line depicted in
suppression Exhibits A and B would indicate to a
"person who has grown up in Iowa that there's
liable to be a culvert in that area." ype eRe: or
Tr. at 39). However, this testimony is effectively
contradicted by Petitioner’ s Exhibit 21 (Aff. of
William Ponder).

|
q
|

. _ ‘ ‘
ex —

a Wo.
At 8:00 a.m. on December 26, 1968, Mr. Ruxlow
reported to his superior, BCI Agent Mayer, in
Grinnell with the assignment of organizing a
search for the victim. Mr. Ruxlow testified at the
1977 suppression hearing and at his 1981 deposi-
tion that even as of 8:00 a.m., the plan was to
include Polk County in the search if necessary.
(Motion to Suppress Tr. at 36; Depo. Tr. at 22).
However, this testimony is belied by the other
evidence in the record. Both Mr. Ruxlow's BCI
Report (Exhibit 11) and Agent Mayer's BCI Report
(Exhibit 12) specify that the search was to be
conducted in Jasper and Poweshiek counties; neither
report makes any mention of Polk County. Moreover,
Mr. Ruxlow made preparations to search only in
Jasper and Poweshiek counties. These preparations
included obtaining maps of those counties; marking
off the areas to be searched into grids; and assign-
ing groups of volumteer searchers to specific grids
(Motion to Suppress Tr. at 34). However, none of
these steps was taken with regard to Polk County.
(Motion to Suppress Tr. at 39).

ome

Nor does the record support a conclusion that Mr.
Ruxlow formed an intent to search in Polk County
later in the day on December 26, 1968. At 3:00
o'clock that afternoon, the searchers were approach-
ing the western boundary of Jasper County, having
completed the planned search of Poweshiek County.
(Motion to Suppress Tr. at 59). At that time, Agents
Ruxlow and Mayer received a radio message to meet BCI
Agent John Jutte at the Grinnell Interchange at
Interstate 80. (Motion to Suppress Tra. at 51: Depo.
Tr. at 20). They did so, leaving no in charge
of the search, and not knowing how long they would
be gone. (Motion to Suppress Tra. at 51-52, 59).

At the Grinnell Interchange, Agents Mayer and 2
Kuxlow talked with Agent Jutte and with Detective
Leaming of the Des Moines Police Department.
Detective Leaming requested that Agents Mayer and
Ruxlow follow him as he proceeded west on I-80.
(Ruxlow Depo. Tr. at 25-26). At this time, Agent
Ruxlow had no information that Petitioner would lead
the officers to the victim, and he did not know why

he was following Detective Leaming or how long he

= 39s
would be doing so. (Ruxlow Depo. Tr. at 25-28).
Agent Ruxlow also did not know whether the victim
was dead or alive. (Ruxlow Depo. Tr. at 24).
Nevertheless, Mr. Ruxlow (and Mr. Mayer) did follow
Detective Leaming.

Given these facts, Mr. Ruxlow's testimony
that he intended to contimue the search into Polk
County defies belief. If Mr. Ruxlow had intended
to contimue the search into Polk County, it simply
would not have made sense for him to abandon the
search to follow Detective Leaming, for no known
purpose and for an unknown length of time, when
there were still two hours of daylight left, a
group of searchers was already organized and avail-
able, and there still was a possibility that the
victim was alive. Especially in light of all the
other circumstances, the fact that Mr. Ruxlow and
Mr. Mayer left Grimmell precisely at the time that
the search of Jasper County was being concluded is
too "neat’' a coincidence to be credible. A far
more logical explanation is that the intent was to
search only Poweshiek and Jasper Counties, and that

ee
Mr. Ruxlow and Mr. Mayer decided to leave Grinnell
to follow Detective Leaming at 3:00 p.m. because
they knew at that time that the searchers were about
to complete the plammed search of Powshiek [sic] and
Jasper Counties. al

C. Conclusion. <

Even under the Iowa Supreme Court's constitu-
tionally improper "inevitable discovery" test, the
prosecution in the instant case was required to
demonstrate that it was more probable than not that
Agent Ruxlow's searchers would have continued into
Polk County and would have seen the culvert under
which the body was hidden and would have seen the
body despite the snow and brush that covered it. On ~
the record in the instant case, however, it cammot
reasonably be concluded that the State met even a

"preponderance’’ burden with regard to any of these

u/ In judging the credibility of Mr. Ruxlow's

explanation, it should be kept in mind that he was
informed prior to the 1977 suppression hearing that
the issue at that hearing would be whether his search
would have discovered the victim's body in Polk County
(dep. Tr. at 30), amd that he testified incorrectly at

ae of
propositions, let alone all of them. To accept
Respondent's "hypothetical probable inevitable dis-
covery” argument on the facts of this case would be
effectively to declare that virtually any showing
would permit the State to escape the consequences
of constitutional violations committed by its law

enforcement agents.
V. TOWNSEND V. SAIN AND 28 U.S.C. § 2254(d)

At the hearing of August 3, 1981, this Court
raised the question of whether it should consider
the evidence introduced at that hearing that was
not introduced in the state trial court in State
v. Williams, rather than requiring Petitioner to
first present that evidence to the state courts. As

the succeeding paragraphs will show, the answer to
that question is clearly "Yes."

12

a should be noted that even if the prosecution

had shown that each of the propositions, taken

individually, was more likely than not, it would

not follow that it was more likely than not that

all three were true. (For example, if

lity of each sition was as high as 3/4, the
ility that all three propositions were true

proms 3/hx3 flix /l = 27/64, or considerably less

than Ds

a OS
At the August 3 hearing, the arguments of

counsel on the question stated above centered om
28 U.S.C. § 2254(d). However, since § 2254(d) is
essentially a codification of Townsend v. Sain, 372
U.S. 293 (1963), see Procunier v. Atchley, 400 U.S. .
446, 451 n.6 (1971), Hawkins v. Bermett, 423 F.2d
948, 950 (8th Cir. 1970), it will be useful to begin
with a discussion of that case. In Townsend, a
federal habeas corpus petitioner claimed that a con-
fession that had been introduced at his state-court

murder trial was the product of coercion. The district
court and court of appeals denied relief, holding
that the state court’s finding that the confession

was voluntary was correct. Both courts specifically .
held that a federal habeas corpus court's inquiry was

limited to the undisputed portions of the state-court
record. The Supreme Court reversed, holding that

the district court was required to hold a hearing

to consider evidence which had not been presented

to the state courts, but which bore o the constitu-

tionality of the petitioner's detention. In Townsend,

= a
the court referred specifically to evidence that
a drug administered to the petitioner prior to
his confession (hyoscene) was characterized as a
"truth serum,'’ and concluded that this was "crucially
informative" evidence that ‘would have enabled the
judge and jury . . . intelligently to grasp the
nature of the eubetence under inquiry "--even though
the petitioner had elicited testimony in the state
trial court as to the nature and effects of hyoscene.
372 U.S. at 322.

In Townsend, the Supreme Court set out six
circumstances in which a federal court must hear
evidence on factual issues raised by state prisoners
in habeas corpus proceedings. A federal court must

hold an evidentiary hearing if:

(1) the merits of the factual dispute were
mot resolved in the state hearing;

(2) the state factual determination is not
fully supported by the record as a
whole;

2

(3) the fact-finding procedure employed by the
state court was not adequate to afford a
full and fair hearing;

(4) there is a substantial allegation of
newly discovered evidence;

— oe
(5) the material facts were not adequately
developed at the state-court hearing;
or
(6) for any reason it appears that the state
trier of fact did not afford the habeas
applicant a full and fair fact hearing.
372 U.S. at 313.
The evidence Petitioner presented at the August 3 .
hearing falls within several of these categories,
and within the Townsend holding. Petitimer's
Exhibits 1 and 2, photographs that demonstrate that
Pamela Powers’ body was covered with snow and brush
when the police found it, are "newly discovered’
pieces of evidence that were not available at the
time of the 1977 Motion to Suppress Hearing.
(Testimony of Gerald W. Crawford, Aug. 3, 1981; 13/

Stipulation of Testimony of Roger Owens, Aug. 3, 1981).,

13/

Pg ovens Fadeen Ms Mr. Crawford testi-
although he had carefully xeviewed the pro-
ceattgn & file, oe Se eee

prior to the suppression hearing (pursuant to

order of the trial camt), be Gat met bens malate
or Exhibit 2. Respondent stipulated that if he had

:

~~
Moreover, the state courts were not presented with
Exhibits 7-9 (photographs of the scene taken fram the
road); Exhibits 11 and 12 (reports by BCI Agents and
Ruxlow); or Exhibit 16 (the 1981 deposition testi-
mony of Mr. Ruxlow). Because these items of evidence
were not presented, "the material facts were not
developed at the state court hearing" and Petitioner
was not afforded a '’full and fair fact hearing."
_ This is especially so in light of the fact that
Exhibits 1 and 2 demonstrate that the Iowa Supreme
Coumt relied on false evidence regarding the visi-
bility of the body (see pp. 5-6, supra). Conse-
quently, under parts (4) - (6) of the Townsend guide-
lines, this Court must consider the evidence pre-
sented at the August 3 hearing. Certainly the addi-
tional evidence presented in this case is entitled
to no less consideration than the additional "truth
13/ cont'd.
mamber of photographs in the Polk County Courthouse. _
Counsel have not been able to discover any explana-

tion for the absence of the photographs fram the
prosecution's file in 1977.

a 9
serum'' evidence in Townsend.

While Townsend itself requires consideration of
the additional evidentiary materials presented at
the hearing of August 3, it should be noted that
§ 2254(d) also requires the same. Section 2254(d)

provides a presumption of correctmess to state-court
factual findings wmless it appears:

(3) that the material facts were not

adequately developed at the State
court hearing; (or)

xx

(6) that the applicant did not receive .

a full, fair, pce age Ss ga
in the State court proceeding .

Given the additional evidence discussed in the pre-
ceding paragraph, it is plain that both of these .
above-quoted exceptions apply to the instant case.
Consequently, § 2254(d), like Townsend, required an

14)
evidentiary hearing in this Court.

Although Townsend's "newly discovered evidence"
ca is not mentioned ts sey in § 2254(3),
it is subsumed under the " te development of ;
the facts" test of § 2254(3) (3). “i!

pag aN
This result is illustrated by Stumes v. Solem, 511

F.Supp. 1312 (D.S. Dak. 1981). In Stumes, the court
held that police reports which had been in a federal
habeas corpus petitioner's possession, but which had
not been introduced at a state court evidentiary
hearing, nonetheless should be considered at a federal
evidentiary hearing to insure adequate development of
the facts forming the basis of the petitioner's
claims. See also Suggs v. LaVallee, 570 F.2d 1092
(2d Cir. 1978), cert. denied, 439 U.S. 915 (1978).
Since Townsend and § 2254(d) requires this Court

to consider additional evidence, requiring Peti-
tioner to "exhaust state remedies" by first attempt-
ing to present the additional evidence in state
court would be improper. In Austin v. Swenson, 522
F.2d 168 (8th Cir. 1975), a federal habeas petitioner
claimed that the State had withheld material evidence
at his trial, and sought to have the evidence intro-
duced at a federal hearing. The district court dis-
missed the petition without prejudice for failure to
exhause [sic] state remedies. On appeal, the Eighth
Circuit vacated the dismissal and remanded the matter

~ ia

to the district court with instructions to resolve
the constitutional claims:

Absent a willful withholding of evidence

by the defendant in the state proceed-

ing, the requirement of exhaustion does

not preclude the District Court fran

entertaining the issue previously raised

in the state court and deciding the

habeas claim upon the basis of new

evidence.
522 F.2d at 170. The Court of Appeals explained
that Townsend specifically contemplates a federal
evidentiary hearing when significant new evidence
is alleged. 522 F.2d at 170, n.6. Since Peti-
tioner'’s claim that the body would have been found
in the absence of his statements to law enforcement
officers was concidered by the Lowa Supreme Court,
Petitioner need not seek further state post-convic-
tion review of this issue simply because he has
presented additional evidence in this Court.

VI. STONE V. POWELL DOES NOT PRECLUDE
CONSIDERATION BY

THIS COURT OF THE
SUPPRESSION ISSUE.

A. While Respondent suggests that Stone v.
Powell, 428 U.S. 465 (1976), should apply to the

the instant case even though it does not involve a

a
Fourth Amendment violation, Respondent cites no
authority in support of this suggestion. As Peti-
tioner's Memorandum in Support of Petition (pp. 18-
19) demonstrates, both Supreme Court decisions and
lower federal court decisions have assiduously re-
fused to expand Stone beyond its own Fourth Amend-
ment confines. Given the fimdamental differences
between the Fourth Amendment, on the ome hand, and
the Fifth and Sixth Amendments, on the other, this
is the oly pede vende. ‘

B. Even if Stone were applied to Fifth and
Sixth Amendment violations, it would not preclude
review by this Court in the instant case because
Petitioner did not have a full and fair opportunity
to litigate the suppression in the state courts.
(See Memorandum in Support of Petition at 19-20).
This is made especially clear by the additional
evidence presented at the August 3 hearing. In
reaching its decision on the suppression issue, the
Iowa Supreme Court relied heavily on the two photo-
graphs of the body that were introduced at the
state-court suppression hearing (Exhibits 3 and 5

4

« 43.<
in this proceeding), and on its belief (apparently
based on the testimony of Agent Ruxlow) that they
showed the body "'as it was found." 285 N.W.2d at
262. Petitioner's Exhibits 1 and 2 -- and the
deposition testimony of Agent Ruxlow -- make it
clear that Exhibit 5 does not show the body as it
was found. Similarly, Exhibit 1, taken together
with the testimony of Officer Dawson at the state-
court suppression hearing, makes it clear that
Exhibit 3 also does not show the body as it was
found. Consequently, the decisions of the state
courts were based on a totally incorrect view of
the evidence, albeit through no fault of theirs.
Plainly, under these circumstances Petitioner did
not have a fair and adequate opportunity to liti-
gate the suppression issue in the state courts, and
this Court therefore would not be precluded fran
considering the suppression issue on the merits

« bh

even if it involved the Fourth Amendment. Stcme

v. Powell, supra.

Respectfully submitted,
ROBERT BARTELS

SARAH MEGAN
Student Legal Intern
COUNSEL FOR PETITIONER
Prisoner Assistance Clinic
College of Law
University of Iowa
Iowa City, Iowa 52242

DATED September 3, 1981

45 <

COST CERTIFICATE

We hereby certify that the actual cost

of printing the foregoing Appendix was the sum
of $48.00.

THOMAS J. MILLER
Attorney General

BRENT R. APPEL
Deputy Attorney General

COUNSEL FOR PETITIONER

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0752%3A05. Public record. Not legal advice.