JOSEPH KONCEL, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 9-784 / 07-1518
Filed December 17, 2009
JOSEPH KONCEL,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Jackson County, Mary E. Howes,
Judge.
Applicant appeals the district court‟s dismissal of his petition for
postconviction relief. AFFIRMED.
Andrew M. Larson, Moline, for appellant.
Joseph J. Koncel, Anamosa, pro se.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney
General, James Kivi, Assistant Attorney General, Phil Tabor, County Attorney,
and Christopher M. Raker, County Attorney for appellee.
Considered by Sackett, C.J., Vaitheswaran, J., and Miller, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).
2
SACKETT, C.J.
Applicant, Joseph Koncel, appeals from the district court‟s denial of his
application for postconviction relief. We affirm. Joseph Koncel was convicted
following a jury trial of the first-degree murder and first-degree kidnapping of
Marty Budde. Koncel appealed to this court. We reversed the conviction of firstdegree murder based on an error in a jury instruction, but we affirmed the
kidnapping conviction. See State v. Koncel, No. 97-1988 (Iowa Ct. App. Dec. 28,
1998). In this appeal from the district court‟s denial of his claim for postconviction
relief, Koncel contends his trial attorney was ineffective in (1) failing to seek to
suppress Koncel‟s statements made during interrogation and failing to object to
the admission of a transcript of the interrogation, (2) failing to strike two potential
jurors, (3) failing to object to certain testimony about an exhibit, and (4) failing to
call certain witnesses.
He claims the attorney representing him at the
postconviction proceeding was ineffective in failing to call Brian Houston as a
witness. He further contends that his right to effective assistance of counsel was
violated when the trial court prohibited his trial attorney from conferring with him
about his decision to not testify at trial. Koncel also claims the postconviction
court erred in finding his due process and equal protection rights were not
violated at sentencing. We affirm.
I.
SCOPE AND STANDARD OF REVIEW.
Ineffective assistance of
counsel claims involve a constitutional challenge and we therefore review them
de novo.
State v. Ray, 516 N.W.2d 863, 865 (Iowa 1994).
To prevail on
ineffective assistance of counsel claims, Koncel has the burden of proving by a
3
preponderance of the evidence that “(1) counsel failed to perform an essential
duty, and (2) prejudice resulted.”
Meier v. State, 337 N.W.2d 204, 206 (Iowa
1983). With regard to the first prong, Koncel must overcome the 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). With regard to the second prong, Koncel must show that “a reasonable
probability exists that, but for counsel‟s unprofessional errors, the result of the
proceeding would have been different.” Wemark v. State, 602 N.W.2d 810, 815
(Iowa 1999). We may dispose of ineffective assistance of counsel claims if an
applicant fails to meet either of these prongs. State v. Cook, 565 N.W.2d 611,
614 (Iowa 1997).
II. BACKGROUND AND PROCEEDINGS. Decedent Budde‟s parents
rented a farm to Koncel‟s mother. There was testimony that in the evening of
March 5, 1997, Budde and a friend drove by the farm and noticed lights on in an
out-building. After taking the friend home, Budde returned to the farm. The next
morning Budde‟s wife reported him missing. The search led to the farm where a
trail of blood was found. Budde‟s truck and body were located in a wooded area
eight miles from the farm.
Koncel told the police his brother, Brian, and Budde had gotten into an
argument in the late night hours of March 5, 1997, at the farm. At some point
Koncel went outside and saw Budde badly beaten and semi-conscious. Koncel
said he helped Brian load Budde in the back of Budde‟s truck and they drove to a
secluded area where Brian pulled Budde into the surrounding woods.
4
Both brothers were charged and convicted of murder and kidnapping in
the first degree.
Each brother‟s conviction for murder was reversed due to
instructional error. See State v. Koncel, No. 98-0169 (Iowa Ct. App. Feb. 7,
2001); State v. Koncel, No. 97-1988 (Iowa Ct. App. Dec. 28, 1998). The State
elected to not retry Joseph Koncel on the murder charge and the district court
imposed the sentence on Koncel‟s conviction for kidnapping in the first degree.
III. FAILURE TO MOVE TO SUPPRESS STATEMENTS MADE DURING
INTERROGATION. Koncel first claims his trial counsel was ineffective in failing
to move to suppress statements Koncel made when questioned by officers. He
claims these statements were inadmissible because they were made in
exchange for a promise of leniency. He also argues counsel was ineffective in
failing to object to the admission of the transcript of the statements. Under the
best evidence rule, he contends, any admissible statements should have been
presented to the jury through the audiotape of the statements and not the
transcript.
The admissibility of inculpatory statements made during interrogations
depends on whether the statements were made voluntarily. See State v. Munro,
295 N.W.2d 437, 440 (Iowa 1980). We make this determination by examining
the totality of the circumstances, including the characteristics of the accused, the
details of the interrogation process, and the psychological impact of the officers‟
statements on the defendant and the defendant‟s reactions. Id. If the inculpatory
statement “results from a promise of help or leniency by a person in authority it is
5
not considered voluntary and is not admissible.” State v. Hodges, 326 N.W.2d
345, 348 (Iowa 1982).
An officer can tell a suspect that it is better to tell the truth without
crossing the line between admissible and inadmissible statements
from the defendant. However, the line is crossed if the officer also
tells the suspect what advantage is to be gained or is likely from
making a confession. Under the latter circumstances, the officer‟s
statements ordinarily become promises of leniency, rendering the
statements involuntary.
State v. McCoy, 692 N.W.2d 6, 28 (Iowa 2005) (citations omitted).
Koncel contends that his statements were made involuntarily because
they were induced by a promise of leniency. He identifies two places in the
transcript where the sheriff‟s statements end mid-sentence and he claims the
transcript does not have the full statements.
According to Koncel the full
statements, added in italics below, were:
Sheriff: If you helped him load him up, you know, that‟s fine Marty
could have been alive still and that is not as serious as Brian’s
murdering Marty.
Sheriff: That‟s what I‟m saying. But, we need to find out exactly
what happened. And if you helped him load that body into that
truck, we need to know. That‟s fine, tell us, you know, ok? We
have, we have to pinpoint down exactly what took place. Ok? And
then we‟ll get through this. Ok? But, you have to provide something
useful for the deal we’ve talked about.
He claims that these full statements show that his admissions were induced by a
promise of leniency.
We disagree.
Statements throughout the interrogation
show that the sheriff was encouraging Koncel to be honest. At one point in the
questioning, the sheriff told Koncel he could not make promises about whether
Koncel would have to testify against his brother. Koncel‟s allegation that the
sheriff‟s statements were not fully transcribed is not supported by any evidence.
6
As the State argues, it is plausible that the sheriff did not complete the sentence
because Koncel began talking. Also, in the entire transcript of the interrogation,
there is no reference to a potential deal or leniency for Koncel.
No officer
references such an agreement, Koncel‟s statements never mention a deal, and
he never inquires about leniency or a deal during the interrogation. Under the
totality of the circumstances, we find Koncel‟s statements were voluntary and
admissible. His attorney was therefore not ineffective in failing to suppress the
statements.
Koncel also contends the transcript of the interrogation was inadmissible
under the best evidence rule. “When a party is attempting to prove the contents
of a writing, recording, or photograph, the courts require the original to be
produced, unless it falls under exceptions carved out by the Iowa Rules of
Evidence.” State v. Khalsa, 542 N.W.2d 263, 268 (Iowa Ct. App. 1995). At the
postconviction trial, Koncel testified that his trial attorney found the audiotape to
be inaudible and read the transcript. Koncel stated that his attorney discussed
the possibility of suppressing the transcript with him. Koncel testified that at that
stage in the trial, he intended to testify and therefore his attorney believed it
would not matter whether the statements were suppressed or not. Koncel stated
at the postconviction hearing, “In retrospect, I believe we should have at least put
the motion forward.” He admitted his attorney was very busy with the case and
they had to prioritize and make decisions quickly because “there were a lot more
important things to be done inside the case . . . .”
7
Koncel‟s own testimony at the postconviction hearing shows that his
attorney did not perform outside the range of a reasonably competent attorney
and that the trial attorney‟s decision to not move to suppress the statements was
a reasonable strategic decision. Since Koncel planned to testify, the attorney
believed the substance of the statements would be admitted through Koncel‟s
own testimony, regardless of whether the transcribed interrogation was admitted.
The attorney may have also found the transcribed statements to contain both
exculpatory and inculpatory information. It may have been a strategic decision to
have the information admitted through a transcript rather than the audiotape if the
tape was inaudible. We will not find ineffective assistance rendered, “„where
counsel has made a reasonable decision concerning trial tactics and strategy,
even if such judgments ultimately fail.‟” State v. Ondayog, 722 N.W.2d 778, 786
(Iowa 2006) (quoting Brewer v. State, 444 N.W.2d 77, 83 (Iowa 1989)).
IV. JURORS. Koncel contends that his trial attorney was ineffective in
failing to strike two jurors, Mary Kubic and Marty Horlik. During voir dire, Mary
Kubic expressed that she had formed an opinion on the case but would try to set
her opinion aside. Trial counsel moved to have her dismissed for cause but the
court denied the motion. Koncel argues trial counsel was ineffective in failing to
use a peremptory strike to have her excluded. He also contends counsel should
have had Marty Horlik excluded from the jury through a motion to excuse for
cause or through a peremptory strike.
Koncel submitted an affidavit from a
cellmate to support this contention. The affidavit stated that Marty Horlik was a
county employee who supervised prisoners while completing community service.
8
The affidavit stated that while Horlik supervised Koncel‟s cellmate during
community service, they discussed the case and evidence against Koncel.
We have examined this argument and find it to be without merit.
“Impartiality does not demand complete juror ignorance of issues and events.”
State v. Walters, 426 N.W.2d 136, 138 (Iowa 1988). Standing alone, the fact that
a juror has been exposed to information about a case does not support the
conclusion that the juror is prejudiced. State v. Gavin, 360 N.W.2d 817, 819
(Iowa 1985). The relevant inquiry is whether the juror holds a fixed opinion of the
merits of the case and cannot judge the defendant‟s guilt or innocence
impartially. Walters, 426 N.W.2d at 138. “„It is sufficient if the juror can lay aside
his impression or opinion and render a verdict based on the evidence presented
in court.‟” Id. at 139 (quoting Irvin v. Dowd, 366 U.S. 717, 723, 81 S. Ct. 1639,
1642, 6 L. Ed. 2d 751, 756 (1961)). Mary Kubic indicated that she would follow
the obligation of the oath, put aside what she had learned about the case
previously, and base her decision on the evidence presented. The cellmate‟s
affidavit only states that Horlik learned information about the case during his
employment. Koncel provides no evidence that Horlik had a fixed opinion on
Koncel‟s guilt or innocence. We also note that counsel may have had a strategic
reason for choosing to use peremptory strikes on other jurors. Koncel has failed
to establish ineffective assistance of counsel on this issue.
V. ADMISSION OF PHOTOGRAPH. Koncel contends his trial attorney
should have objected to testimony about a photograph showing the bed of the
pickup that allegedly carried decedent. The photograph was taken from behind
9
the driver‟s side of the cab and showed the back end of the pickup bed. There
was testimony that there was a stain of what was thought to be blood shown in
the photograph on both the bed and tailgate of the pickup.
Dr. Thomas Bennett, the state medical examiner, testified and was asked
a series of hypothetical questions premised on the assumption that the stain in
the photograph was blood. Bennett opined the victim was alive when put in the
pickup due to the amount of alleged blood in the pickup. Koncel claims this
theory formed the predicate action to convict Koncel of kidnapping. He contends
his attorney should have objected to this testimony because there had been no
testimony that the stain on the bed of the truck was actually identified as human
blood, or specifically Budde‟s blood.
The State contends there is no basis to this claim because Koncel‟s own
statements support a finding that he and his brother carried Budde and put him in
the bed of the pickup while he was still alive. The State also contends that there
was testimony that the tailgate was analyzed and contained blood matching the
DNA profile of Budde, and the photograph showed that the stain on the tailgate
and the bed of the pickup was a continuous blood stain.
There is no merit to this contention. Bennett‟s opinion was supported by
the evidence and Koncel cannot show prejudice. Even if the photograph and
related testimony was not admitted, Koncel‟s own statements indicated Budde
was placed in the truck while alive.
VI. FAILURE TO CALL WITNESSES. Koncel contends his trial counsel
should have called the Jackson County medical Examiner. The Bellevue Police
10
Chief apparently reported that upon arriving at the scene the doctor was shown
the blood and hair on the tire and the blood in the yard and said, “if an individual
lost this much blood they were probably dead.” Koncel argues that this evidence
would show that he disposed of a dead body, not that he kidnapped anyone.
Dr. Bennett, the state medical examiner, testified the blows to Budde‟s
head would have been fatal if left untreated. Based on the amount of blood in
the pickup truck, and the fact that Budde bled into the wounds received in the
woods, a reasonable jury could find he was alive when kidnapped and died in the
woods, with or without the county medical examiner‟s opinion. This argument
was also addressed and rejected in Koncel‟s direct appeal. See State v. Koncel,
No. 97-1988 (Iowa Ct. App. Dec. 28, 1998) (finding that since Koncel‟s own
version of the events was that Budde was alive when loaded into the truck, his
counsel had no duty to seek a pathologist‟s opinion that Budde was dead when
loaded into the truck).
He also contends that his trial counsel should have called Brian Keuter,
who would have testified he drove by the farm at 12:40 a.m. on March 6, 1997,
and saw Budde‟s truck parked on a hill.
Koncel argues this evidence was
essential to his defense because the State argued that Budde died at
approximately 12:30 a.m. and was removed from the scene in Budde‟s truck.
Koncel asserts this testimony would have created reasonable doubt as to
whether a kidnapping did occur.
We disagree.
The time of death was
approximated and testimony that Budde‟s truck was seen at the farm at 12:40
a.m. would not contradict the State‟s evidence.
Furthermore, Koncel cannot
11
prove prejudice because he admitted to police during interrogation that Budde
was alive when placed in the truck bed.
Koncel contends that his postconviction attorney should have called his
cellmate, Brian Houston, as a witness in the postconviction relief proceeding.
Koncel made a pro se motion to continue the postconviction trial to allow
Houston‟s testimony. The district court denied the motion finding the testimony
would not be “so relevant and material to what I heard that it requires a
continuance.” Houston, while doing community service, was supervised by Marty
Horlik, a county maintenance employee who served on Koncel‟s jury. Houston
filed an affidavit stating he talked to Horlik about the case and why Koncel was
arrested.
The district court had the benefit of these documents and Koncel
stated that Houston would have only testified to what was already in the affidavits
and reports filed with the court. Houston‟s testimony at the postconviction relief
hearing would have been repetitive of these exhibits. Koncel has failed to show
how he was prejudiced by the failure to call this witness, given that the evidence
to be provided by Houston‟s testimony was already included in exhibits admitted
at the postconviction relief proceeding.
VII. FAILURE TO CONFER WITH DEFENDANT ABOUT TESTIFYING
AT TRIAL. At trial, at the close of the State‟s evidence, the State moved to
amend the trial information to add a charge of aiding or abetting in the murder of
Marty Budde, and the court granted the amendment.
Thereafter, in judge‟s
chambers, Koncel‟s attorney requested a record be made regarding whether or
not the defendant intended to testify. The attorney confirmed with Koncel that he
12
had been advised throughout the trial that, in the attorney‟s opinion, it was in
Koncel‟s best interest to testify. The court then asked Koncel whether he would
testify and Koncel stated that he did not want to testify.
Koncel‟s attorney
stressed to the court that he believed it was to Koncel‟s advantage to take the
stand and the attorney had based the entire case on Koncel‟s testifying. Koncel
confirmed he was electing to not testify. The attorney then requested a few
minutes to confer with Koncel.
The court stated that the attorney could not
“rubber hose” the defendant into testifying and that the defendant must make the
decision. The court asked Koncel whether conferring with counsel would make
any difference in his decision. Koncel stated he had basically made the decision
to not testify the day before.
The court expressed concern that if Koncel
conferred with counsel and then decided to testify, that it may not be of his free
will. The court confirmed with Koncel that no one had talked him out of testifying
and that Koncel alone was making the decision.
Koncel now argues his right to effective assistance of counsel was denied
when the trial court refused to allow his trial attorney to confer with Koncel about
testifying. He now believes if he would have conferred with counsel, he would
have testified. He cites Geders v. U.S., 425 U.S. 80, 96 S. Ct. 1330, 47 L. Ed. 2d
592 (1976) for support. In Geders, the Supreme Court concluded that a court‟s
order prohibiting a defendant from discussing the case with his attorney during
an overnight recess violated the defendant‟s Sixth Amendment right to counsel.
Geders, 425 U.S. at 91, 96 S. Ct. at 1337, 47 L. Ed. 2d at 601. We find this case
inapplicable to the circumstances before us. In Geders, there was an overnight
13
recess in the middle of the defendant‟s testimony. Id. at 82, 96 S. Ct. at 1332, 47
L. Ed. 2d at 595-96. The court prohibited the defendant and his attorney from
discussing any matters during the overnight recess due to the court‟s concern
that the defendant would seek improper “coaching” about the impending crossexamination. Id. at 82-83, 96 S. Ct. at 1332-33, 47 L. Ed. 2d at 596-97.
In this case, the trial court asked Koncel whether he wanted to meet with
counsel privately before making a final decision and Koncel indicated it would not
change his decision. The trial court‟s ruling was intended to protect Koncel‟s
constitutional right to decide whether to testify on his own behalf. The trial court
was careful to assure Koncel made the decision independently and the record
thoroughly documents that Koncel‟s decision not to testify was against counsel‟s
advice. The attorney and trial court obeyed Koncel‟s wishes. Koncel cannot now
complain that his right to effective assistance was denied when he was not
allowed to meet with counsel. He cannot prove prejudice when he advised the
court that there was no need to confer with his attorney. See State v. Sage, 162
N.W.2d 502, 504 (Iowa 1968) (stating that a defendant “cannot assume
inconsistent positions in the trial and appellate courts and, as a general rule, will
not be permitted to allege an error . . . which was committed or invited by him, or
was the natural consequence of his own actions”).
VIII.
SENTENCING CLAIMS.
Koncel‟s remaining claims involve the
sentencing proceedings that occurred after our court reversed Koncel‟s
conviction for murder due to instructional error.
In the original sentencing
proceeding, the court entered judgment against Koncel for both murder and
14
kidnapping in the first degree but specified that sentence was only being issued
on the murder conviction because the sentence for kidnapping merged into the
murder sentence.
After our decision, the State decided not to reinitiate the
murder charges, and instead sought to have Koncel sentenced for only the
kidnapping conviction. Koncel contends there were various errors during this
second sentencing proceeding.
He argues (1) his right to due process was
violated when he received no notice of the new sentencing proceeding, (2) the
scheduling of the sentencing was a violation of Iowa Rule of Criminal Procedure
2.23(1),1 and (3) his right to counsel was violated because the attorney
representing him at the new sentencing had a conflict of interest.2
We need not determine whether these errors occurred. Even if there is
merit in these claims, Koncel cannot establish any prejudice resulted.
Kidnapping in the first degree is a class “A” felony, which required the court to
1
Iowa Rule of Criminal Procedure 2.23(1) provides in applicable part,
Upon a plea of guilty, verdict of guilty, or a special verdict upon which a
judgment of conviction may be rendered, the court must fix a date for
pronouncing judgment, which must be within a reasonable time but not
less than 15 days after the plea is entered or the verdict is rendered,
unless defendant consents to a shorter time.
Koncel contends there was only a thirteen day period between his judgment and
sentence because the court entered the order scheduling the new sentence proceeding
on February 26, 1999, and the new sentencing proceeding occurred on March 11, 1999.
Koncel misreads the rule. The jury returned a verdict of guilty on the charge of
kidnapping in the first degree on October 8, 1997. This judgment was entered at the
original sentencing on October 24, 1997. The verdict and judgment on the kidnapping
conviction was affirmed by our court on December 28, 1998 and procedendo issued on
February 8, 1999. The sentence was then imposed on the kidnapping conviction on
March 11, 1999, well beyond fifteen days after the verdict was rendered. The day the
court scheduled the new sentence proceeding, February 26, 1999, is irrelevant to the
application of rule 2.23(1).
2
Koncel‟s original trial attorney represented Koncel at the second sentencing. Koncel
claims this was a conflict of interest since Koncel had raised ineffective assistance of
counsel claims on direct appeal.
15
impose a life sentence. See Iowa Code §§ 710.2 (1997) (defining kidnapping in
the first degree as a class “A” felony); 902.1 (requiring the court to commit a
defendant adjudged guilty of a class “A” felony to the custody of the department
of corrections for the rest of the defendant‟s life). The sentence would have been
the same even if the alleged errors had not occurred.
IX. CONCLUSION. We affirm the district court‟s dismissal of Koncel‟s
petition for postconviction relief. Koncel‟s trial attorney did not render ineffective
assistance in failing to move to suppress the statements made during
interrogation or in failing to object to admission of the transcribed interrogation.
Koncel did not establish that Mary Kubic or Marty Horlik were not impartial jurors
and failed to prove he was prejudiced by witness testimony regarding a stain
found on the bed and tailgate of Budde‟s truck. Koncel also was not prejudiced
by trial or postconviction counsel‟s failure to call certain witnesses and he was
not denied effective assistance when the trial court refused counsel‟s request to
confer with Koncel about testifying.
alleged errors in sentencing.
AFFIRMED.
There was no prejudice shown by any
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.