KENNY CHRIS HEMM, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 0-031 / 09-0616
Filed March 10, 2010
KENNY CHRIS HEMM,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Wapello County, Joel D. Yates,
Judge.
Kenny Hemm appeals the district court decision denying his application for
postconviction relief. AFFIRMED.
Michael O. Carpenter of Gaumer, Emanuel, Carpenter & Goldsmith P.C.,
Ottumwa, for appellant.
Thomas J. Miller, Attorney General, Thomas S. Tauber and Douglas
Hammerand, Assistant Attorneys General, and Allen Cook, County Attorney, for
appellee State.
Considered by Sackett, C.J., and Doyle and Danilson, JJ.
2
DANILSON, J.
Kenny Hemm appeals the district court decision denying his application for
postconviction relief.
He alleges he received ineffective assistance of trial
counsel. We affirm.
I. Background Facts and Proceedings.
Hemm was arrested for a chain of incidents that occurred on April 16
and 17, 2000, involving fires at his residence and two motor vehicles.
Our
May 24, 2006 ruling on Hemm‟s direct appeal in State v. Hemm, No. 04-1419
(Iowa Ct. App. May 24, 2006) contains a factual background regarding the
incident, which we reiterate in part:
The victim of this gruesome homicide was Larry Pippenger,
a wheel chair bound paraplegic. Although he didn‟t live with
Hemm, Pippenger was to have spent the night of April 16-17, 2000
in Hemm‟s house in Eldon, Iowa.
Authorities responded to a 911 call at 2:09 a.m. on April 17,
2000. They found Hemm‟s house engulfed in fire. No one was
found in the home. A second 911 call at 3:11 a.m. reported a car
fire at the home of Hemm‟s mother and stepfather in Eldon.
Arriving, the officers found Hemm‟s car on fire and Hemm in the
house.
Hemm related a rather bizarre chain of events. He said he
awoke in his home and discovered the fire. He ran out of the
house, noting that Pippenger, who had been sleeping on the couch
in the living room, was not there, but his wheel chair was outside on
the ground. Hemm saw a van driving away and he pursued it until
he realized his own car was on fire. He turned around, drove past
his own burning house to his mother‟s and stepfather‟s house. He
apparently didn‟t tell them about the fires, but one of them
discovered Hemm‟s car was burning and reported it. At various
times Hemm related somewhat inconsistent versions of this
scenario to different investigators.
Later that morning another car fire was reported at an
abandoned house outside Eldon [on River Road]. Pippenger‟s
body was found in that burning vehicle. He had been decapitated,
dismembered, and his genitals had been placed in his mouth. His
hands and feet were never located.
3
Hemm was charged with murder in the first degree, in violation of Iowa
Code section 707.2(1) (1999), and arson in the second degree, in violation of
section 712.3. The State alleged Hemm killed Pippenger in his home, set fire to
the house to cover up the killing, then moved the body to a vehicle outside Eldon
and later set it on fire. In April 2001, the jury convicted Hemm of both crimes.
On direct appeal, this court found error on several evidentiary issues,
reversed Hemm‟s conviction, and remanded to the district court for a new trial.
See State v. Hemm, No. 01-0805 (Iowa Ct. App. Feb. 12, 2003). At Hemm‟s
second trial, the jury again returned guilty verdicts on both charges: murder in
the first degree and arson in the second degree. The trial court subsequently
entered a judgment of conviction on both counts and sentenced him accordingly.
Hemm‟s conviction was affirmed on direct appeal. See State v. Hemm,
No. 04-1419 (Iowa Ct. App. May 24, 2006). On October 2, 2006, Hemm filed a
pro se application for postconviction relief. On December 12, 2006, Hemm‟s
counsel filed an amended petition, alleging ineffective assistance of counsel.
Following a hearing on February 4, 2007, the district court denied Hemm‟s
application. Hemm now appeals.
II. Scope and Standard of Review.
We review postconviction relief proceedings for errors at law. Iowa R.
App. P. 6.907 (2009); Millam v. State, 745 N.W.2d 719, 721 (Iowa 2008). Under
this standard, we affirm if the court‟s fact findings “are supported by substantial
evidence and if the law was correctly applied.” Harrington v. State, 659 N.W.2d
509, 520 (Iowa 2003).
Claims concerning alleged constitutional violations,
including ineffective-assistance-of-counsel claims, are reviewed de novo.
Id.;
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see also State v. Decker, 744 N.W.2d 346 (Iowa 2008). We give weight to the
lower court‟s determination of witness credibility. Millam, 745 N.W.2d at 721.
III. Merits.
To establish a claim of ineffective assistance of counsel, a defendant must
prove (1) counsel failed to perform an essential duty and (2) prejudice resulted to
the extent it denied the defendant a fair trial. State v. Maxwell, 743 N.W.2d 185,
195 (Iowa 2008).
A defendant‟s failure to prove either element by a
preponderance of the evidence is fatal to a claim of ineffective assistance. State
v. Polly, 657 N.W.2d 462, 465 (Iowa 2003).
To prove counsel breached an essential duty, a defendant must overcome
a presumption that counsel was competent and show that counsel‟s performance
was not within the range of normal competency. State v. Buck, 510 N.W.2d 850,
853 (Iowa 1994). Although counsel is not required to predict changes in the law,
counsel must exercise reasonable diligence in deciding whether an issue is worth
being raised. State v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009). In accord with
these principles, we have held that counsel has no duty to raise an issue that has
no merit. Id. To prove prejudice resulted, a defendant must show there is a
reasonable probability that but for counsel‟s unprofessional errors, the result of
the proceeding would have been different. Ledezma v. State, 626 N.W.2d 134,
143 (Iowa 2001).
Because counsel has no duty to raise a meritless issue, the validity of
Hemm‟s constitutional claim must be determined. See Dudley, 766 N.W.2d at
620.
“If his constitutional challenges are meritorious, we will then consider
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whether reasonably competent counsel would have raised these issues and, if
so, whether [Hemm] was prejudiced by his counsel‟s failure to do so.” See id.
In this case, Hemm contends his trial counsel was ineffective in failing to
file a motion to suppress the evidence seized during the execution of the two
search warrants issued for Hemm‟s house and garage on April 17 and 21, 2000.
He contends the warrants were “obviously and facially defective” and his counsel
therefore breached an essential duty by failing to challenge them. Hemm alleges
he was prejudiced by this omission because there was a “reasonable probability
that the suppression of the evidence seized during the execution of the search
warrants would have changed the outcome of the trial.”
The Fourth Amendment to the Constitution of the United States provides
that no warrants shall be issued unless “supported by Oath or affirmation, and
particularly describing the place to be searched and the persons or things to be
seized.”
U.S. Const. Amend IV; see also Iowa Const. art. I, § 8 (Iowa‟s
counterpart to the Fourth Amendment of the United States Constitution).
“A
major objective of this amendment is to prohibit the use of a „general‟ warrant
and avoid „a general, exploratory rummaging in a person‟s belongings.‟” State v.
Malloy, 409 N.W.2d 707, 709 (Iowa Ct. App. 1987) (quoting Coolidge v. New
Hampshire, 403 U.S. 443, 467, 91 S. Ct. 2022, 2038-39, 20 L. Ed. 2d 564, 583
(1971)). “[E]vidence obtained in violation of the fourth amendment may not be
used in criminal proceedings against the victim of an illegal search and seizure.”
State v. Mehner, 480 N.W.2d 872, 875 (Iowa 1992).
Hemm argues the warrants that authorized the searches were not
“sufficiently particular” in describing the evidence that police were to search for
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and seize. Hemm analyzes several cases in support of his argument that the
warrants in the instant case were unconstitutional. He contends the warrants at
issue allowed officers to conduct merely a “general search,” and thereby did not
limit the discretion of the officers executing the warrants or give sufficient notice
of the objects of the search.
Probable cause to issue a search warrant exists when “a reasonable
person would believe a crime was committed on the premises or that evidence of
a crime could be located there.” State v. Simpson, 528 N.W.2d 627, 634 (Iowa
1995).
The issuing judge must make “a practical, common-sense decision
whether, given all the circumstances set forth in the affidavit before him [or her],
. . . there is a fair probability that contraband or evidence of a crime will be found
in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332,
76 L. Ed. 2d 527, 548 (1983). The warrant application must demonstrate an
adequate nexus between the criminal activity, the place to be searched, and the
items to be seized.
See State v. Gogg, 561 N.W.2d 360, 365 (Iowa 1997)
(considering “„the type of crime, the nature of the items involved, the extent of the
defendant‟s opportunity for concealment, and the normal inferences as to where
the defendant would be likely to conceal the items‟” (citation omitted)).
In
addition, a search warrant must be reasonably specific. See State v. Todd, 468
N.W.2d 462, 467 (Iowa 1991). A warrant will not be upheld if the description of
items to be seized is “so broad and vague it necessarily clothed the warrantexecuting officers with interdicted discretion regarding items to be seized.” Munz
v. State, 382 N.W.2d 693, 699 (Iowa Ct. App. 1985).
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However, a description is “sufficiently particular” if it allows law
enforcement to reasonably ascertain and identify the things to be seized. When
a warrant affiant has probable cause but cannot give an exact description of the
materials to be seized, a warrant will generally be upheld if the description is as
specific as the circumstances and the nature of the activity under investigation
permit. Todd, 468 N.W.2d at 467 (citations omitted).
A. April 17 Warrant.
The April 17, 2000 warrant was obtained very early in the investigation—
before officers discovered the burned car on River Road and Pippenger‟s
remains within the car. At the time the warrant was obtained, officers merely
knew that Hemm‟s house and Hemm‟s car had both caught on fire within an
hour, and that Pippenger (who was staying at Hemm‟s house that night) was
missing. Officers were suspicious of Hemm, however, because his stories were
not consistent and his clothes were clean with no sign he had been around the
fires, although he claimed he awoke to find his house completely on fire and that
his car had been burning while he drove it. The warrant authorized officers to
search Hemm‟s house and garage for:
Any and all materials relevant and useful to the investigation of the
possible intentional setting of the fire at 306 Elm St. Also any
evidence and information relevant to the whereabouts of Larry K.
Pippenger.
Evidence seized pursuant to this warrant included a plastic shower curtain with
three smears of blood containing DNA matching Pippenger‟s and a piece of
blanket matching a second piece of blanket that was later found with Pippenger‟s
decapitated head.
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The affidavit supporting the warrant application set forth Deputy Sheriff
Justin Klodt‟s personal knowledge of the investigation, including the fact that Fire
Chief Donald Harness believed the fire at Hemm‟s residence was non-accidental.
The affidavit contained information relating that Hemm had supposedly driven his
burning vehicle in search of Pippenger for approximately an hour, before arriving
at his mother‟s house where firefighters found the vehicle fully engulfed in
flames.
The affidavit also set forth information regarding Hemm‟s refusal to
come to the sheriff‟s office later that evening to discuss the whereabouts of
Pippenger and the nature of the two fires, and Hemm‟s statements that there was
a ten-thousand dollar “hit” out on Pippenger.
Given the nature of the circumstances that existed at the time the warrant
was executed, it would have been impossible for the officers to be more specific
as to what type of evidence they were seeking. See Malloy, 409 N.W.2d at 708.
Officers knew that two fires, likely non-accidental, had occurred. Pippenger was
missing, and Hemm‟s house was the last place he had been seen. Officers had
reason to be suspicious of Hemm and to believe Pippenger was a victim of some
crime. However, at that time, officers did not yet have enough information to say
what crime had been committed or by whom.
Under the facts of this case, we conclude the warrant authorizing officers
to search for and seize “any evidence and information relating to the
whereabouts of Larry Pippenger” was sufficiently particularized. This language
essentially seeks to search for the person or body of Larry Pippenger or evidence
of the whereabouts of either. A similar description was approved in the case of a
missing person in United States v. Hibbard, 963 F.2d 1100, 1101 (8th Cir. 1992).
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In Hibbard, the warrant sought to search for “[a]ny evidence or fruits of any crime
that may have occured [sic] concerning the were abouts [sic] or whether foul play
is involve in the disappearance of Shelly Ramsey.” Id. The court noted that
Ramsey had been missing for six days and had last been seen by the defendant.
Id. In finding that the issuing judge had a substantial basis for authorizing the
search of the defendant‟s residence the court noted:
The purpose of the particularity requirement is to prevent a
general exploratory rummaging through a person‟s belongings.
“We review the specificity of the search warrant under a „practical
accuracy‟ standard; the degree of specificity may vary according to
the circumstances and type of items sought.” United States v.
Pillow, 842 F.2d 1001, 1004 (8th Cir. 1988) (other citations
omitted). Here, the search warrant limited the search to locating
Shelly Ramsey or any evidence relating to her. Considering the
circumstances of the case, we conclude that the warrant satisfied
the practical accuracy standard.
Id. (internal citations omitted).
Similarly, the April 17 warrant in this case was as specific as
circumstances permitted. The warrant limited the officers‟ discretion to search to
locate Larry Pippenger or any evidence relating to him. Id.; see also Todd, 468
N.W.2d at 467.
In regard to the language concerning the “investigation of a possible
intentional setting of the fire,” such a catchall phrase does not cause the warrant
to fail where one or more items sought have been particularly described. See
Todd, 468 N.W.2d at 467. Because the item or items sought were sufficiently
10
described relative to Larry Pippenger, the warrant description is not overly broad
by the inclusion of the catchall phrase. See id.1
For these reasons, we find that a motion to suppress the April 17 warrant
would have been meritless. Hemm‟s trial counsel had no duty to file a meritless
motion. See Dudley, 766 N.W.2d at 620. Because Hemm has failed to show
counsel failed to perform an essential duty, we find his claim for ineffective
assistance of counsel as it relates to the April 17 warrant must fail. See Polly,
657 N.W.2d at 465.
B. April 21 Warrant.
The April 21, 2000 warrant2 was obtained after officers had made several
critical findings, which gave investigators a better idea what they were looking for
at Hemm‟s house and garage. At 11:09 a.m. on April 17, 2000, officers received
a report about a car fire at an unoccupied farmhouse on River Road outside
Eldon. Firefighters put out the fire and indicated that it had not been burning long
before it was reported, and that it had been started intentionally using
accelerants. The badly burned remains of Pippenger‟s body were on the front
seat. Pippenger had been decapitated, and his head was wrapped in a garbage
bag and a piece of blanket. He had been stabbed in the heart, his arms and legs
had been sawed off, and his genitals had been amputated and were stuffed in his
mouth. Along with Pippenger‟s body, a hacksaw, a miter saw, and the head of a
1
We note that even without a warrant, fire officials were authorized to reenter the
residence for a reasonable time to investigate the cause of the fire after it had been
extinguished. Michigan v. Tyler, 436 U.S. 499, 510, 98 S. Ct. 1942, 1950, 56 L. Ed. 2d
486, 509 (1978).
2
Evidence seized pursuant to this warrant included a number of hacksaw blades
but no hacksaw, a miter box but no miter saw, and no hammer (although Hemm had
reported having a hammer in his possession at his house on April 16 that he had used to
work on Pippenger‟s car).
11
hammer were also found in the burned car. The warrant authorized officers to
search Hemm‟s house and garage for: “Any and all materials relevant and useful
to the investigation of the fire at 306 Elm Eldon and the death of Larry Pippinger.”
We find that, given the nature of the circumstances that existed at the time
the warrant was executed, it would have been possible for the officers to be more
specific as to what type of evidence they were seeking. See, e.g., Malloy, 409
N.W.2d at 708. By April 21, 2000, officers knew there were saw marks on the
bones of Pippenger‟s arms and legs, and that a hacksaw and miter saw had
been discovered in the burned car. Further, in a meeting with an insurance
investigator on April 20, 2000, Hemm indicated he had used a hammer while
working on Pippenger‟s car on April 16, 2000. These facts led officers executing
the April 21 warrant to expect to find “either the presence of some saws or some
items that might indicate that the saws that we found in the car might have
originated in that location,” or more specifically, “a hand miter saw, a hacksaw
and hammer.”
We therefore conclude the April 21 warrant authorizing officers to search
for and seize “[a]ny and all materials relevant and useful to the investigation of
the fire at 306 Elm Eldon and the death of Larry Pippinger” was too broad and
not sufficiently particularized as circumstances then permitted.
Hibbard, 963
F.2d at 1101; see also Todd, 468 N.W.2d at 467.
IV. Prejudice.
If we have erroneously determined the validity of the April 17 warrant, and
because we have determined that the April 21 warrant was overly broad under
the circumstances, we consider and conclude Hemm has failed to prove that he
12
was prejudiced by his attorneys‟ failure to file motions to suppress. Ledezma,
626 N.W.2d at 142 (“If the claim lacks prejudice, it can be decided on that ground
alone without deciding whether the attorney performed deficiently.”).
To
establish prejudice, Hemm must prove a reasonable probability that, but for his
counsel‟s failure, the result of the proceeding would have been different.
Maxwell, 743 N.W.2d at 196. “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Ledezma, 626 N.W.2d at 143 (quoting
Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d
674, 698 (1984)).
Even without any of the evidence seized by the warrants, there was no
reasonable probability of a different result. See Ledezma, 626 N.W.2d at 144.
The evidence reflects that three fires were intentionally started within about
seven hours. The first fire was at Hemm‟s home and was reported by a neighbor
at 2:09 a.m.
The second fire was in Hemm‟s vehicle and was reported by
Hemm‟s step-father at 3:15 a.m. The third fire was the fire set in the inoperable
vehicle behind an unoccupied farmhouse not far from the other two fires.
Hemm‟s statements reflect that he had visited the farmhouse and was familiar
with the location.
This latter fire was reported at 11:30 a.m. and once
extinguished, the body of Larry Pippenger was located within the car. Pippenger
was stabbed to death and his body was mutilated.
Hemm had the time and opportunity to set each fire and kill Pippenger.
Hemm was physically capable of carrying the body of Larry Pippenger. The
evidence also reflects by Hemm‟s own statement that he was personally present
when his house was on fire and he was at his mother‟s home when his vehicle
13
was on fire.
Hemm was also the last person to see Pippenger alive and
according to his statement, allegedly chased Pippenger‟s abductors several
miles. Notwithstanding his house being on fire, his vehicle being on fire, or his
alleged friend Larry Pippenger being abducted, not once did Hemm call 911 or
report these incidents to law enforcement. Officers only learned that Pippenger
was missing after they located Hemm and inquired about his home being on fire.
Hemm was also reluctant to talk to law enforcement and his own
insurance agent regarding the facts.
His version of the limited facts he did
divulge were inconsistent and difficult to believe (such as Hemm driving his car
several miles while it was burning or on fire and Hemm‟s unaccounted-for
absence after his house fire was reported and before he arrived at his mother‟s
residence). Pippenger‟s clothes were with his body although Hemm claimed they
both had retired for the night prior to Pippenger‟s alleged abduction. However,
the evidence reflected that Pippenger always slept naked due to getting bed
sores (contradicting Hemm‟s claim of an abduction in the middle of the night).
Iowa Department of Criminal Investigation agent Mike Hiles also testified that the
fires in Hemm‟s home and vehicle would have been impossible to escape from
based upon Hemm‟s version of the facts. Hemm‟s statements regarding the
doors to his home being locked and the distance and time that he chased the
alleged the abductors were also contradicted.
Hemm told law enforcement officers that there was a $10,000 “hit” out on
Pippenger, which if true, may have served as his motive. Others who Hemm
suggested may have had a motive to kill Pippenger all testified and either denied
their involvement or had confirmed alibis. Additionally, Pippenger did not reside
14
with Hemm, but was simply an overnight houseguest. Any abductors would have
had to have known Pippenger was at Hemm‟s house that night.
There was also evidence that the investigators found one incendiary can
near Pippenger‟s body which appeared to be a Zippo cigarette lighter fluid
container, and officers observed Hemm possessing a Zippo lighter the morning
of the house fire. Finally, Hemm‟s statements lacking credibility and consistency,
along with his suspicious actions, lend support to the other incriminating
evidence.
Thus, we conclude the evidence seized from both warrants was
cumulative and there was no reasonable probability of a different result even
disregarding the evidence obtained via the search warrants. Moreover, counsel
is not ineffective for failing to attempt to exclude evidence which is “not likely to
be outcome determinative.”
State v. Carberry, 501 N.W.2d 473, 477 (Iowa
1993); see also State v. Reynolds, 670 N.W.2d 405, 415-16 (Iowa 2003).
There is even a less probability of a different result when the prejudice
prong is viewed solely in respect to the April 21 warrant, and on the basis that the
April 17 warrant was valid. Clearly, the evidence seized pursuant to the April 21
warrant played a small role in the State‟s case against Hemm and was
cumulative to other admissible evidence (such as that gathered under the
April 17 warrant, including blood matching Pippenger‟s DNA in Hemm‟s house
and part of a blanket that was later found wrapped around Pippenger‟s
decapitated head) bearing on the same point: the evidence tended to connect
Hemm to Pippenger‟s remains and the burned car found on River Road. See,
e.g., State v. Shanahan, 712 N.W.2d 121, 138 (Iowa 2006). In particular, with all
the other above-mentioned evidence indicating Hemm‟s guilt in this case, the
15
hacksaw blades and miter box found at Hemm‟s residence were not likely to
have changed the verdict.
V. Conclusion.
We conclude Hemm‟s counsel did not render ineffective assistance by not
attempting to suppress the evidence seized during the execution of the two
warrants.
AFFIRMED.
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