dissenting.
I respectfully dissent. In my view, the state trial court’s instructions were totally improper and resulted in the defendant being denied a fair trial. Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973); Williams v. Lockhart, 736 F.2d 1264 (8th Cir.1984). Atwell Junior Connor requested that the court instruct the jury that he “could be convicted only if Maureen’s [Connolly] death occurred incident to the robbery of Michael ‘rather than arising from the formation of a separate and specific intent unrelated to the crime of robbery.’” State v. Conner, 241 N.W. 2d 447, 463 (Iowa 1976) (emphasis added). Instead of giving the requested instruction, the trial court instructed the jury that the killing of Ms. Connolly “was committed in the perpetration of a robbery * * * only if the robbery * * * and the killing of Maureen Ann Connolly were parts of one continuous series of acts connected with each other.” Conner v. Auger, 595 F.2d 407, 412 (8th Cir.1979) (per curiam) (emphasis added). The failure to give the requested instruction deprived Conner of his only realistic defense, i.e. that he participated in the robbery of Michael Servey but he had no role whatsoever in the rape and murder of Maureen Ann Connolly, and that those events arose from Nowlin’s unrelated specific intent to rape and murder Ms. Connolly and then kill her so that she could not identify him as the rapist.
A brief review of the facts demonstrates how important the requested instruction was to Conner’s defense. Conner possessed an IQ of 72, bordering on retardation. He had a sixth grade education but could not read or write. He suffered from a severe speech impairment. The psychological tests showed he had more difficulty understanding abstract concepts than 97 percent of the population. State v. Conner, 241 N.W.2d at 453. Nowlin was the dominant partner in the Nowlin-Conner relationship. Indeed, it can be fairly said that Conner was the unwitting lackey of Nowlin.
On the evening in question, Nowlin convinced Conner to go with him to commit a robbery. They took Nowlin’s car and two guns, and they went for a drive. They saw two youths on the highway. Nowlin made the decision to rob the young couple. Conner participated in the robbery by holding a gun on Michael Servey and taking money from him. He then gave the money to Nowlin. Our earlier opinion tells what happened thereafter:
Nowlin [then] drove the car containing Conner and the two teenagers north for approximately one hour. Then, at about 1:00 a.m., March 10, Nowlin stopped the car near a bridge on a gravel road in rural Jones County, got out of the car, *1390and ordered Maureen Connolly to accompany him. Nowlin took both guns with him and threatened to kill Servey and Conner if they left the car. Nowlin then raped the girl at a location near the vehicle. When Ms. Connolly attempted to escape, Nowlin killed her with two blasts from the shotgun.
Conner v. Auger, 595 F.2d at 409, 410.
Conner’s defense at trial was that he played no part whatsoever in the rape or murder. He emphasized the fact that Nowlin threatened to kill him if he left the car and that Nowlin’s action and threats constituted a clear break in the planned robbery. Under the instructions given, however, the jury could well have believed that, because the robbery, the rape and the murder all took place within a 2or 3-hour time frame, and because the rape and murder by Nowlin followed the robbery, it was required to find Conner guilty of first degree murder — even though there was no causal connection between the robbery in which Conner participated and the rape and murder which Nowlin alone committed. The flaw in the court’s instruction was that it permitted a transferring of Conner’s culpability for the robbery to Nowlin’s rape and homicide if the robbery and homicide were merely “continuous” or “connected.”
For the felony murder rule to apply to a person who aids the commission of a robbery, after which a rape and homicide occurs, it is necessary that the homicide be the natural and probable consequence of the commission of the robbery. Something more than a coincidence of time and place between the wrongful act and the death is necessary. It must appear that there was an actual legal relation between the killing and the crime committed such that the killing can be said to have occurred as a part of the perpetration of the crime. 1 Wharton’s Criminal Law and Procedure § 252 (1957; reprinted 1966). When the killing is committed by a fellow conspirator rather than the defendant, the homicide must be in furtherance of a common design of the felony conspirators and must have been the ordinary and probable or foreseeable and probable result or effect of the execution of the conspiracy. Id.
Conner was at best a fellow conspirator with respect to only the robbery. He was entitled to an instruction that would have made it clear that Conner could not be held for felony murder unless a causal relationship was shown between his participation in the robbery and Nowlin’s acts of rape and murder. Here the jury could easily have found, if properly instructed, that insofar as Conner was concerned, there was no causal relationship between the robbery in which he participated and the rape and murder in which Nowlin alone participated. Moreover, the conspiratorial relationship was broken when Nowlin threatened to kill Conner if he left the car.
The rule is well stated in State v. Furney, 41 Kan. 115, 21 P. 213, 216 (1889):
Where parties combine to commit a crime and while engaged in such unlawful act murder is committed by one of such conspirators, without the knowledge or consent of the others, and the act is not the natural and probable outcome of the common design but the independent act of one conspirator alone, and outside the common purpose, those not participating in it are not guilty of murder. See Lusk v. State, 2 S. 256; Kirby v. State, 5 S.W. 179; The Anarchists Cos., 1214 E.Rep. 865. While, on the other hand, if they conspire together, or with others, to assault, beat, and stab, then all who participate in the conspiracy would be guilty of murder. The court ought to have made this matter clear to the jury * * *.
The state trial court cited to the Missouri case of State v. Adams, 339 Mo. 926, 98 S.W.2d 632 (1936), and a federal case, United States v. Naples, 192 F.Supp. 23 (D.D.C.1961), rev’d on other grounds, 307 F.2d 618 (D.C.Cir.1962) (en banc), in support of the instruction given. 241 N.W.2d at 463. With all due respect to the trial court, I cannot find support for the instruction in either case. In Adams, the appellant and his two accomplices were in flight from a burglary when one of the accomplices shot and killed a law enforcement officer in hot pursuit of the defendant and his accom*1391plices. There, the appellant admitted that he, too, fired at the officers. The court held that the jury could have convicted the appellant, even though he did not fire the fatal shot, because the evidence showed that there existed a common design to shoot and kill anyone appearing to be a menace to their escape. The court held that the felony murder statute applied where the “initial crime and the homicide were parts of one continuous transaction, and were closely connected in time, place, and causal relation as where the killing was done in flight from the scene of the crime to prevent detection or to promote escape.” State v. Adams, 339 Mo. 926, 98 S.W.2d at 637. Here, the instruction given the jury encompassed only a part of Adams; the crucial language requiring that a causal relationship be found was omitted.
In Naples, the defendant broke into a home and ransacked it in search of money. As he was leaving, he was surprised by the return of the occupant. He killed her. Obviously, the murder was in perpetration of the burglary. The case does not detail the jury instruction.
I find no support for the state’s position in the other cases cited. In People v. Mason, 54 Cal.2d 164, 4 Cal.Rptr. 841, 351 P.2d 1025 (1960), the defendant lay in wait for 20 hours to kill a woman (Rona) with whom he had had prior sexual relations. When Rona entered the home with her mother and husband, shots were exchanged and Rona’s mother was killed. The court held that the jury could find that the attack was premeditated. The court alternatively considered whether the defendant could be found guilty on the theory that he entered the home to commit a burglary and remained there for 20 hours and then killed Rona’s mother in an exchange of shots. It held that he could. Again, there was a clear causal relationship between the burglary and the murder, and the defendant committed both the burglary and the murder.
In People v. Chavez, 37 Cal.2d 656, 234 P.2d 632 (1951), the defendant, Felix Chavez, admitted that he killed his girlfriend but denied that he was guilty of murder in the first degree. His story was that she was his girlfriend, that he entered the home to be with her, that she made a remark that made him angry and that he killed her in the heat of anger. Thus, he could not be found guilty of murder in the first degree. The state’s version was that he entered the home to rape her and he killed her after he had accomplished his purpose; thus, the felony murder statute was applicable. The court held that it was not necessary to prove that the killing occurred during the act of rape; it was sufficient if it resulted as a natural and probable consequence thereof. Again, the defendant committed both the rape and the murder, and one followed the other by only minutes.
The common thread in all cases relied upon by the state is that in each the defendant committed the felony and the murder, and there was a clear causal connection between the two. Here, the defendant did not rape or murder Ms. Connolly; Nowlin did and did so as an independent venture. At the very least, Conner submitted sufficient evidence that the jury should be permitted to determine under a proper instruction whether the necessary causal connection has been shown.
The majority cites to State v. Phams, 342 N.W.2d 792, 795 (Iowa 1983), for the proposition that, under Iowa law, it is only necessary that the state prove that the defendant was participating in the underlying felony to justify his conviction under a felony murder rule. In my view, this case does not stand for that proposition. In that case, Phams was charged with murder in the first degree under two theories: first, that he was an aider and abetter, and, second, that the murder was committed in the course of an assault in which Phams participated. The record shows that Phams was beating the law enforcement officer over the head with a chair while another participant in the assault took the officer’s gun out of the holster and shot and killed the officer. In discussing the necessity for a causal relationship between the felony acts causing death, the Iowa Supreme Court stated:
*1392A murder is committed during the perpetration of a felony under section 690.2 “if it results as an incident to the felony and is associated with the felony as one of its hazards. It is not necessary for application of the doctrine that the murder be contemporaneous with the felony.... A lapse of time and distance are factors to be considered but are not determinative.” State v. Aldape, 307 N.W.2d 32, 40 (Iowa 1981) (quoting State v. Conner, 241 N.W.2d 447, 464 (Iowa 1976)). See also State v. Taylor, 287 N.W.2d 576, 577 (Iowa 1980) (felony murder must be based on causally related felony and acts causing death).
State v. Phams, 342 N.W.2d at 796-97 (emphasis added).
Unfortunately, the jury instruction in Phams is not available in the record. On the basis of the Supreme Court's opinion in Phams, however, it is clear that the court in that case recognized the necessity for a causal relationship, and here we have none. To the extent that the Iowa Supreme Court held in the instant case that such a relationship is unnecessary and that the jury need not be instructed that a causal relationship is required, it erred. The Iowa Supreme Court indicated that felony-murder is not a strict liability crime. Conner v. State, 362 N.W.2d 449, 456; State v. Conner, 241 N.W.2d at 447. The interpretation given the statute in this case, however, belies that claim. The challenged instruction deprives a defendant of due process by presuming transferred intent from the commission of the robbery to the homicide, without establishing that the homicide was perpetrated as a foreseeable consequence of the robbery. Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); see also, Roth and Sundby, The Felony-Murder Rule: A Doctrine at Constitutional Crossroads, 70 Cornell L.Rev. 446 (1985).
I would direct that Conner be released from prison unless the State of Iowa consents to giving him a new trial within 60 days.