THOMAS WILLIAM KUNDE, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 8-176 / 07-0544
Filed March 26, 2008
THOMAS WILLIAM KUNDE,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
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Appeal from the Iowa District Court for Clinton County, Charles H. Pelton,
Judge.
Thomas Kunde appeals from the district court’s order denying his
application for postconviction relief. AFFIRMED.
Brian Farrell, Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney
General, Michael L. Wolf, County Attorney, and Elizabeth A. Srp, Assistant
County Attorney, for appellee State.
Considered by Huitink, P.J., and Zimmer and Miller, JJ.
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ZIMMER, J.
Thomas Kunde was convicted of first-degree arson following a jury trial
held in July 2004.
This court affirmed his conviction on appeal.
Kunde
subsequently filed an application for postconviction relief raising a variety of
issues. Following a hearing, the district court denied his application. In this
appeal, Kunde contends he received ineffective assistance of trial, direct appeal,
and postconviction counsel in two respects. Upon review of the record, we affirm
the district court.
I. Background Facts and Proceedings.
The record reveals the following facts: In the summer of 2003, Kunde,
Raymond Cole, and some other men built a cabin for Maury Hill. The cabin was
located in rural Clinton County.
Late in 2003, Kunde and Cole worked on a siding job together, which
resulted in a falling-out between the two men. Cole testified that he kept more
than half of the money given to him by the homeowner for the job because
Kunde had not completed the work. Kunde testified that Cole owed him $550
from the job, and that he kept Cole’s tools, which were in his truck, thinking that
Cole would pay him in order to get the tools back. Cole testified that he never
contacted Kunde to get the tools back because Kunde was known to have a bad
temper.
Shortly after this incident, Cole left for Florida. He remained in Florida
until the spring of 2004, at which time he returned to Iowa. Following his return,
Cole stayed at Hill’s cabin and completed some work around the cabin. At this
time, Kunde was living with his girlfriend, Katherine Beuse, and her daughter,
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April, in LeClaire. Kunde was doing yard work at several places in the town of
Folletts, including the B & S General Store. Kunde’s route between LeClaire and
Folletts on Highway 69 took him past Hill’s cabin on a regular basis.
Cristina Lyons, an acquaintance of Cole and Kunde, testified that
sometime around the beginning of April 2004, she had a conversation with
Kunde at the B & S General Store’s bar. Lyons told Kunde that she knew Cole
was back in town but did not know where he was staying. Kunde told her that he
had been looking for Cole because Cole owed him money.
Beuse testified that Kunde was very angry because Cole had “stiffed him”
on the siding job. She stated that Kunde brought the subject up a lot, and had
looked for Cole but could not find him. Beuse testified that on April 3, 2004,
Kunde, Beuse, and April were driving past Hill’s cabin on their way from LeClaire
to Follets when April said, “Mom, look, there is Ray.” Kunde replied, “Well, I can’t
do anything about it now because the dork is with us.”
Kunde testified that on the evening of April 3 he arrived at the B & S bar
around 9:45 p.m. Cheryl Brotherton, who was bartending, testified that Kunde
did not arrive at the bar until around 11:00 p.m. She testified that as she was
closing out the cash register around midnight, Kunde bought a gallon can of
Ozark Trail camping fuel and a quart of oil. She testified that she and Kunde left
the bar together sometime between midnight and 12:30 a.m. Kunde, however,
testified that he did not buy the camping fuel because it was too expensive. He
stated that he left the bar by himself around 11:30 p.m. and arrived home around
11:50 p.m. He testified that his route home took him past the Hill cabin but he
did not stop at the cabin and had no idea Cole or anyone else was staying there.
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Cole testified that on the evening of April 3, he fell asleep inside the cabin
around 7:00 p.m. He testified that during the night he was awakened by a noise,
and then he saw the motion detector light on the deck come on. He heard a
crackling sound and saw smoke coming through the door. He looked out the
window and saw Kunde standing at the bottom of the steps that lead up to the
deck of the cabin. He stated that the area where Kunde was standing was
illuminated by the motion detector light and that he had no doubt the person
standing there was Kunde. There was an explosion and Kunde ran for his truck,
which Cole recognized because of the truck’s distinctive visor. Kunde drove
away on the gravel road heading toward the highway. Cole grabbed a rag to
open the front door because it was hot, and once he was outside he saw Kunde
heading south on the highway.
Cole saw flames going up the outside of the door. He also saw a gas can
sitting in front of the door on the deck. He began to throw buckets of water on
the fire, and eventually hooked up the hose to get the fire under control. Cole
also kicked the gas can partway down the steps. Two men saw the fire from the
highway. They stopped to help and called 911.
At 12:19 a.m., the first deputy was dispatched to the scene. Investigators
found two matchbooks in front of the door to the cabin and a burned can of Ozark
Trail camping fuel on the steps. The door of the cabin was blackened, and the
wood around it was charred, as was the soffit above the door.
Beuse testified that a few days after the fire she heard rumors that Kunde
had been involved. She confronted Kunde about the camping fuel, and Kunde
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admitted that he had bought a can of fuel and it was in his truck. However, he
was unable to produce the can for her.
On May 10, 2004, Kunde was charged with first-degree arson in violation
of Iowa Code sections 712.1 and 712.2 (2003). The case proceeded to jury trial
on July 26, 2004. The following day, the jury returned a verdict of guilty. Kunde
was sentenced to a term of incarceration not to exceed twenty-five years. Kunde
appealed his conviction, and on August 31, 2005, this court affirmed his
conviction.
On November 28, 2005, Kunde filed an application for postconviction relief
raising numerous claims. The hearing on Kunde’s application for postconviction
relief was heard on February 1 and February 19, 2007, the postconviction court
issued its ruling denying the application for relief.
Kunde appeals.
II. Scope and Standards of Review.
Postconviction proceedings are generally reviewed for the correction of
errors at law. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). However,
because Kunde asserts violations of constitutional safeguards, including
ineffective assistance of counsel, we make our own evaluation based on the
totality of the circumstances. Origer v. State, 495 N.W.2d 132, 135 (Iowa Ct.
App. 1992). This is the equivalent of de novo review. Id.
III. Discussion.
On appeal, Kunde contends he was denied effective assistance of counsel
by the failure of his trial, direct appeal, and postconviction counsel to raise the
following claims: (1) that Beuse’s testimony concerning April’s remark, “Mom,
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look, there is Ray,” was inadmissible hearsay and (2) that the evidence was
insufficient to prove he was the person who set the fire.
To establish ineffective assistance of counsel, Kunde must prove his
counsel failed to perform an essential duty and prejudice resulted.
State v.
Martin, 587 N.W.2d 606, 609 (Iowa Ct. App. 1998). To establish breach of duty,
a defendant must overcome the presumption counsel was competent and prove
counsel’s performance was not within the range of normal competency. State v.
Buck, 510 N.W.2d 850, 853 (Iowa 1994). A defendant may establish prejudice
by showing a reasonable probability that, but for counsel’s errors, the result of
the proceeding would have differed. State v. Atwood, 602 N.W.2d 775, 784
(Iowa 1999). We may dispose of Kunde’s ineffective assistance claims if he fails
to prove either prong. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct. App.
1999). With these principles in mind, we now address each of Kunde’s appellate
claims in turn.
A. Beuse’s Testimony.
Kunde first asserts his trial, direct appeal, and postconviction counsel
failed to provide effective assistance because they failed to challenge Beuse’s
testimony that her daughter, April, said, “Mom, look, there is Ray” as she, Kunde,
and April drove past Maury Hill’s cabin during the day on April 3. The following
testimony by Beuse was admitted without objection at Kunde’s trial:
Q. Did you see Ray Cole that day? A. I did not. My
daughter did.
Q. What did she say? A. She said, Mom, look, there is
Ray. She made a comment that, you know, he was really scruffy
looking and looked like he needed a bath and …
Q. And when she made that comment, were you in the area
of the cabin? A. Yes.
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Q. And who was driving at that time? A. Tom [Kunde].
Q. So all three of you were in the pickup? A. Correct.
Q. Did you and Tom talk about this at all, or did he make
any comment? A. I believe he made a comment, Well, I can’t do
anything about it now because the dork is with us, referring to my
daughter.
Kunde contends his trial counsel should have objected to April’s statement, as
related by Beuse, as inadmissible hearsay, and that his later counsel should
have claimed the failure to object constituted ineffective assistance. The State
argues that counsel was not ineffective because Beuse’s testimony was properly
admitted as a statement of present sense impression under Iowa Rule of
Evidence 5.803(1), and thus, there was no duty for counsel to object.
Iowa Rule of Evidence 5.803(1) provides:
The following [is] not excluded by the hearsay rule, even though the
declarant is available as a witness:
(1) Present sense impression. A statement describing or explaining
an event or condition made while the declarant was perceiving
the event or condition, or immediately thereafter.
“The underlying theory of this exception is that substantial contemporaneity of
event and statement negate the likelihood of deliberate or conscious
misrepresentation.”
Fratzke v. Meyer, 398 N.W.2d 200, 205 (Iowa Ct. App.
1986). Our supreme court first recognized the present sense impression in State
v. Flesher, 286 N.W.2d 215 (Iowa 1979). In Flesher, the court explained that
statements of present sense impression are considered to be reliable because
there is “little or no time for calculated misstatement.”
(internal quotation omitted).
286 N.W.2d at 217
The court further explained that the phrase
“immediately thereafter” should be interpreted to mean “a time within which,
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under the conditions, it is unlikely that the declarant had an opportunity to form a
purpose to misstate his observations.” Id. (internal quotation omitted).
In this case, April’s remark was made contemporaneously with her
observation of Cole and in the presence of her mother and Kunde, who were in a
position to confirm or deny what she said. April had neither an opportunity for
calculated misstatement nor a motive to falsify. Therefore, an objection to the
admissibility of April’s remark would have been meritless. Because trial counsel
did not have a duty to raise a meritless claim, State v. Nitcher, 720 N.W.2d 547,
555 (Iowa 2006), we conclude Kunde was not denied effective assistance of
counsel.
B. Sufficiency of the Evidence.
Kunde also asserts his prior counsel were ineffective in failing to
challenge, or failing to preserve a challenge to, the sufficiency of the evidence
proving that Kunde was the person who set the fire. Upon our review of the
record, we conclude Kunde’s claim is without merit.
This court is bound by the jury's verdict so long as the record contains
substantial evidence of guilt. See State v. Button, 622 N.W.2d 480, 483 (Iowa
2001). Evidence is substantial if it could “convince a rational jury of a defendant's
guilt beyond a reasonable doubt.” State v. Smitherman, 733 N.W.2d 341, 345
(Iowa 2007). When we determine the sufficiency of the evidence supporting a
conviction, we consider all the evidence in the record, not just the evidence
supporting the defendant's guilt. State v. Carter, 696 N.W.2d 31, 36 (Iowa 2005).
However, when we make this determination, we consider the evidence in the
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light most favorable to the State, and we include legitimate inferences and
presumptions that may reasonably be deduced from the record. Id.
In this case, the evidence showed that Kunde was very angry because he
thought Cole had “stiffed him” on a siding job that they had worked on together.
Kunde told several people that he was “looking for” Cole because of the money
Cole owed him. On the day of the fire, Kunde learned from Beuse’s daughter’s
remark that Cole was around Hill’s cabin. Acknowledging Beuse’s daughter’s
remark, Kunde stated, “Well, I can’t do anything about it now because the dork is
with us.”
Reasonable jurors could have interpreted Kunde’s statement as a
threat that he planned to do something later when Beuse’s daughter was not
around. An employee at the B & S store testified that less than an hour before
the crime occurred, Kunde bought a gallon can of Ozark Trail camping fuel.
Kunde testified that he was at the B & S store before he went home on the
evening of April 3, and that his route from the store to his home took him past the
cabin. At the time of the explosion, Cole testified that he saw Kunde. He also
saw Kunde’s truck at the scene of the fire. After the explosion, Cole saw Kunde
run toward his truck and then drive away. A burned can of Ozark Trail camping
fuel was found at the fire scene. Beuse testified that Kunde told her he had
bought a can of fuel, and claimed it was in his truck, but he could not produce it.
Based on the foregoing, we conclude the evidence in the record was
sufficient to convince a rational factfinder that Kunde was the person who set the
fire. Kunde points to inconsistencies in the witnesses’ testimony and asserts that
the evidence does not support Kunde’s conviction. However, the jury was free to
believe or disbelieve any of the testimony and to give weight to the evidence as
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in its judgment such evidence should receive. State v. Thornton, 498 N.W.2d
670, 673 (Iowa 1993). Because we find there was substantial evidence that
Kunde set the fire, we conclude Kunde was not denied effective assistance of
counsel by his prior attorneys’ failure to raise a meritless challenge to the
sufficiency of the evidence. Nitcher, 720 N.W.2d at 555.
IV. Conclusion.
We find Kunde’s claims of ineffective assistance of counsel are without
merit and affirm the decision of the postconviction court.
AFFIRMED.
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