IN THE COURT OF APPEALS OF IOWA
No. 1-542 / 00-1543
Filed December 28, 2001
KIMMI LYNN HARDY,
STATE OF IOWA,
Appeal from the Iowa District Court for Lee (South) County, R. David
Defendant appeals from the district court ruling dismissing her
application for postconviction relief. AFFIRMED.
Alfredo Parrish and Ivy Ross Rivello of Parrish, Kruidenier, Moss,
Dunn, Montgomery, Boles & Gribble, L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant
Attorney General, Michael Short, County Attorney, and Bruce McDonald,
Assistant County Attorney, for appellee.
Heard by Sackett, C.J., and Eisenhauer, J., and C. Peterson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code § 602.9206
Petitioner-appellant Kimmi Lynn Hardy was tried and convicted
following a jury trial of first-degree murder in violation of Iowa Code
section 702.2 (1997); kidnapping, in violation of section 710.3; and child
stealing, in violation of section 701.5. Hardy's convictions were affirmed
by this court on appeal in an unpublished decision. State v. Hardy, No. 8-
197/97-0636 (Iowa Ct. App. June 24, 1998). Hardy subsequently filed this
application for postconviction relief contending her trial attorney was not
effective in failing to object to certain testimony given by her husband
Robert and in failing to raise defenses of insanity and diminished
responsibility. We affirm.
The State's theory was that Hardy faked a pregnancy, befriended the
pregnant victim, Teresa Lund, murdered her several months after Lund's baby
was born and took the baby, Paul, to raise, representing to others that
Paul was born to her.
Hardy claimed she was not guilty of the charges leveled contending
that she purchased Paul from Anthony Matrona for $1,500 and two guns. She
said Matrona sent two Mexican men to her home with the child and she left
them alone there for an hour. She said Lund's body was then put in a crawl
space under the Hardy home, but she did not learn of this until the next
day. She further said that she and her husband Robert Hardy later disposed
of Lund's body to avoid being implicated in her death. Lund's body was
found in a Missouri field. Lund had been shot twice in the head. At least
one of the bullets was identified as coming from a Lorcin .380 semi-
automatic handgun. There was testimony Hardy bought such a gun and
ammunition on July 31, 1996, and that a witness saw the gun at Hardy's home
and Hardy explained she was filing off the serial numbers. Based on
information provided by Robert Hardy, Lund's body and the handgun that
killed her were located.
Hardy contends that her trial attorney was not effective in (1)
failing to object to certain testimony given by her husband Robert as being
inadmissible under the marital privilege, and (2) in failing to pursue an
insanity or diminished responsibility defense.
We may review postconviction relief proceedings for errors at law or
de novo. If the petitioner makes constitutional claims our consideration
is in the nature of a de novo review. Key v. State, 577 N.W.2d 637, 639
(Iowa 1998). When no constitutional safeguards are at issue, our review is
for errors at law. Fenske v. State, 592 N.W.2d 333, 338 (Iowa 1999). Any
claim not properly raised on direct appeal may not be litigated in a
postconviction relief action unless sufficient reason or cause is shown for
not previously raising the claim, and actual prejudice resulted from the
claim of error. Osborn v. State, 573 N.W.2d 917, 921 (Iowa 1998); Jones v.
State, 479 N.W.2d 265, 271 (Iowa 1991). The rule requiring claims to be
raised at trial or on appeal is not absolute. It is not applied if
sufficient reason can be shown for not raising the claim at trial or on
appeal. Yet, the circumstances which will permit an ineffective assistance
of trial counsel claim to be raised for the first time in a postconviction
relief petition are circumscribed. Ineffective assistance of appellate
counsel may provide sufficient reason. Jones, 479 N.W.2d at 271.
Furthermore, factual or legal matters, which were excusably unknown at the
time of the trial and appeal, may be properly asserted on postconviction
relief. See Stanford v. Iowa State Reformatory, 279 N.W.2d 28, 33-34 (Iowa
1979); Edwards v. State, 249 N.W.2d 851, 852 (Iowa 1977).
Both claims of ineffective assistance of trial counsel raised by
Hardy were preserved by this court on direct appeal for postconviction
proceedings. State v. Hardy, No. 8-197/97-0636 (Iowa Ct. App. June 24,
To prevail on a claim of ineffective assistance of counsel Hardy must
demonstrate both ineffective assistance and prejudice. Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693
(1984); State v. Oetken, 613 N.W.2d 679, 683 (Iowa 2000); State v. Artzer,
609 N.W.2d 526, 531 (Iowa 2000). Both elements must be proven by a
preponderance of the evidence. State v. Ramirez, 616 N.W.2d 587, 593 (Iowa
2000); Oetken, 613 N.W.2d at 683. Yet both elements do not always need to
be addressed. If Hardy's claims lack prejudice, they can be decided on
that ground alone without deciding whether the attorney performed
deficiently. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069, 80 L. Ed. 2d
at 699; State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995); State v. Bumpus,
459 N.W.2d 619, 627 (Iowa 1990); Taylor v. State, 352 N.W.2d 683, 685 (Iowa
To establish the first prong, Hardy must demonstrate her trial
attorney performed below the standard demanded of a reasonably competent
attorney. Strickland, 466 U.S. at 688, 104 S. Ct. at 2064-65, 80 L. Ed. 2d
at 693-94; Artzer, 609 N.W.2d at 531. We measure the attorney's
performance against "prevailing professional norms". Strickland, 466 U.S.
at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694; State v. Risdal, 404
N.W.2d 130, 132 (Iowa 1987). There is a presumption the attorney performed
competently. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d
at 694-95; Oetken, 613 N.W.2d at 683. The claim is reviewed in light of
the totality of the circumstances. Strickland, 466 U.S. at 688, 104 S. Ct.
at 2064-65, 80 L. Ed. 2d at 693-94. The inquiry is an individualized fact-
based analysis. Williams v. Taylor, 529 U.S. 362, 391, 120 S. Ct. 1495,
1512, 146 L. Ed. 2d 389, 416 (2000). Miscalculated trial strategies and
mere mistakes in judgment normally do not rise to the level of ineffective
assistance of counsel. Wissing, 528 N.W.2d at 564 Caldwell v. State, 494
N.W.2d 213, 214 (Iowa 1992).
Once Hardy proves ineffective assistance, she must also show that the
error caused prejudice. Strickland, 466 U.S. at 693, 104 S. Ct. at 2067,
80 L. Ed. 2d at 697; State v. Westeen, 591 N.W.2d 203, 211 (Iowa 1999). To
sustain this burden, Hardy must demonstrate "that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of
the proceeding would have been different". Strickland, 466 U.S. at 694,
104 S. Ct. at 2068, 80 L. Ed. 2d at 698; see Artzer, 609 N.W.2d at 531;
State v. Tracy, 482 N.W.2d 675, 680 (Iowa 1992). "A reasonable probability
is a probability sufficient to undermine confidence in the outcome."
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. In
making the decision whether there is a reasonable probability that the
result of the trial would have been different, the burden of proof is on
the defendant to establish this standard by a preponderance of the
evidence. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001).
We first address Hardy's contention that her trial attorney should
have objected to certain testimony from Robert Hardy, Kimmi's husband, as
being in violation of the marital privilege found in Iowa Code section
622.9 (1997). The primary question is whether a properly lodged objection
to Robert's testimony would have been sustained.
Our standard of review of the statutory privilege is for correction of
errors at law. Iowa R. App. P. 4; State v. Anderson, ____N.W.2d ___, ___
(2001); State v. Richmond, 590 N.W.2d 33, 34 (Iowa 1999). Yet the standard
of review for the admissibility of evidence alleged to be privileged is for
an abuse of discretion. Richmond, 590 N.W.2d at 34; State v. Alspach, 524
N.W.2d 665, 668 (Iowa 1994).
The marital exception is one of several privileged communications that
exist to promote defined confidential relationships and encourage candid
communications between the parties to those relationships on the premise
that society is better protected by the privilege than by the value of the
testimony. See Anderson, ____N.W.2d at ___.
The privilege for marital communications is recognized in Iowa by
statute. Iowa Code section 622.9 provides:
Neither husband nor wife can be examined in any case as to any
communication made by the one to the other while married, nor shall
they, after the marriage relation ceases, be permitted to reveal in
testimony any such communication made while the marriage subsisted.
This privilege is not absolute. Id. There are both common law and
legislative exceptions. Id. See also State v. Klindt, 389 N.W.2d 670, 675-
76 (Iowa 1986). Yet statutes creating privileges are to be liberally
construed. State v. Bedell, 193 N.W.2d 121, 124 (Iowa 1971).
Hardy contends her trial attorney should have objected to testimony
from Robert that he learned from her, his wife, a smell from their basement
came from other than the sewer backing up, and when he went to investigate
the smell he had an understanding from her as to the source of the smell.
Hardy contends this testimony was prejudicial because it implied she knew
about the body concealed in their basement.
Robert further testified that Hardy, his wife, gave him an
explanation that caused him to believe the body in the basement was Lund's
and the child living with them was Lund's son. Hardy contends this
evidence branded her as one who did not tell the truth and who was a bad
Robert also testified that he made statements to the police that he
had helped deliver a baby from his wife and that he was told by Hardy to
say those things. Hardy contends that this testimony indicated she
directed Robert to lie, undercutting her defense. Hardy also contends that
because of Robert's testimony she was required to testify.
The State contends the marital privilege does not apply in this case.
The State first argues without authority the testimony of Robert at trial
did not refer to private communications between the Hardys made in the
context of their marriage. We find no reason to accept this part of the
The State next argues the decision not to object to the testimony was
strategic and the testimony was not prejudicial to Hardy's defense because
it corroborated aspects of the case Hardy did not deny. The State further
contends that even if the statements were not admissible, they did not
aversely affect Hardy's defense because they were corroborative and
cumulative in nature. The State further contends Hardy was not prejudiced
because of the strength of the State's case.
Hardy has failed to show the required prejudice to succeed on this
claim. Hardy has failed to show the decision to allow Robert to testify
was not based on reasonable professional judgment. Successful objection to
Robert's testimony in open court could, as Hardy's trial attorney reasoned,
suggest to the jury that his testimony would implicate Hardy in the murder.
Hardy's attorney correctly concluded Robert's testimony basically
corroborated and did not contradict Hardy's version of events that she
bought the baby, Lund was murdered by Matrona, and she learned the day
after she got the baby that Lund's body was in her basement.
The statement that the smell in the basement may not have been sewer
gas was not prejudicial and was consistent with Hardy's statements
indicating she knew the body was there the day after she got the baby. And
while the statement Hardy told Robert to say, that he helped deliver the
baby, impacted on Hardy's truthfulness, it supports her representation that
she was pregnant and delivered the child. Hardy has failed to prove her
trial counsel was ineffective or that she was prejudiced by the errors she
alleges. We affirm on this issue.
Hardy also contends that her trial attorneys were ineffective in not
seeking to raise a defense of insanity or diminished capacity.
Hardy was examined by psychiatric experts for both the defense and the
State. Hardy's trial attorney contacted the State Public Defender's office
for suggestions for psychiatrists who might make an evaluation favorable to
her. Defense counsel discussed the cases with three or four of the people
whose names were provided him before choosing Dr. Loren Olson. Olson, who
evaluated Hardy for the defense, told her trial attorney that while Hardy
was a "little bit different" she did not meet the standards for the
insanity or diminished responsibility defense. Hardy has failed to show
her trial counsel was ineffective on this issue. There is no basis to
Hardy's claim that the cumulative effect of alleged errors were so
prejudicial that she was denied effective assistance of counsel.