                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-1465
                               Filed April 29, 2020


BRIAN KONCEL,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Jackson County, Kevin McKeever,

Judge.



      Brian Koncel appeals the district court’s denial of his application for

postconviction relief. AFFIRMED.




      Mark C. Meyer, Cedar Rapids, for appellant.

      Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney

General, for appellee State.




      Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.
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VAITHESWARAN, Judge.

      Brian Koncel appeals the district court’s denial of his application for

postconviction relief (PCR) following his 1997 conviction for first-degree

kidnapping. He challenges the court’s denial of several ineffective-assistance-of-

counsel claims.

I.    Background Facts and Proceedings

      This court summarized the pertinent facts in State v. Koncel, No. 98-0169,

2001 WL 98611, at *1 (Iowa Ct. App. Feb. 7, 2001).

      When Marty Budde and a friend drove by his parents’ farm which
      was rented by Brian Koncel’s mother they noticed lights on in an out-
      building. After dropping his friend off, Budde returned to the farm.
      The next morning Budde’s wife reported him missing. The search
      led to the farm where a large amount of blood was found. The
      officers searched the farm area and asked Brian’s brother Joseph for
      permission to search the house where they found a crowbar behind
      the stove, a knife behind the sofa, and wet clothing in the bathtub.
      Budde’s truck and body eventually were located in a wooded area
      eight miles from the farm.
              During questioning, Brian Koncel told the police he heard a
      noise and went outside to find Joseph hitting someone with a
      crowbar. Brian said he helped Joseph load Budde in the back of his
      truck and they drove to a secluded area where Joseph pulled Budde
      into the surrounding woods. A short time later Joseph came back
      and said Budde was not dead. Joseph returned to the woods holding
      a knife and came back a short time later. The state charged Brian
      with felony murder in violation of Iowa Code sections 707.1 and
      707.2(2) and first-degree kidnapping in violation of Iowa Code
      sections 710.1(4) and 710.2 (1997).
              ....
              At trial the former state medical examiner testified the blows
      received at the farm, if untreated, would have resulted in death within
      about thirty minutes. He also opined, given the amount of blood
      found in the truck, that Budde was still alive when he was moved.
      He testified that the small amount of bruising near the knife wounds
      indicated they were received shortly before death. The marshalling
      instruction for first-degree murder said in part that the State needed
      to prove “the defendant or Joseph Koncel struck Marty Lee Budde.”
      (Emphasis added). The jury found Brian Koncel guilty of first-degree
                                         3


       kidnapping and first-degree felony murder. The court sentenced him
       to concurrent life sentences.

Koncel, 2001 WL 98611, at *1.         We set aside Koncel’s first-degree murder

conviction based on instructional error. Id. at *3–4. We affirmed his conviction for

first-degree kidnapping. Id. at *3.

       Koncel’s PCR application was filed in 2004 but was not heard and

considered until 2018.

II.    Ineffective Assistance of Counsel

       “A convicted defendant’s claim that counsel’s assistance was so defective

as to require reversal of a conviction . . . has two components. First, the defendant

must show that counsel’s performance was deficient. . . . Second the defendant

must show the deficient performance prejudiced the defense.”           Strickland v.

Washington, 466 U.S. 668, 687 (1984). Koncel argues his trial attorney failed to:

(A) present a more “nuanced” defense theory; (B) object to a jury instruction that

did not include certain language on one of the kidnapping elements; (C) object to

hearsay evidence that was inconsistent with the defense theory; and

(D) adequately investigate the circumstances surrounding the state medical

examiner’s resignation.

       A.     Failure to present a “nuanced” defense theory

       The jury was instructed the State would have to prove the following elements

of first-degree kidnapping:

               1. On or between March 5 and March 6, 1997, the defendant
       confined or removed Marty Lee Budde.
               2. At the time the defendant began to confine or remove the
       victim, Marty Lee Budde was alive.
               3. The defendant did so with the specific intent to secretly
       confine Marty Lee Budde.
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               4. The defendant knew he did not have the consent of the
       victim to do so.
               5. As a result of the confinement or removal, Marty Lee Budde
       suffered a serious injury.

Koncel’s trial attorney honed in on the second element. He argued Budde was not

alive at the time Koncel began to confine or remove him. Specifically, he theorized

that Budde died of wounds inflicted by Koncel’s brother before Koncel intervened

to help move the body.

       On appeal, Koncel contends counsel should have argued in the alternative

that if Budde was not dead before he intervened to help move the body, he was at

the very least “irreversibly injured.” The alternative argument, he asserts, would

have countered evidence of the potential for Budde to recover from his injuries with

medical intervention. In his view, “[i]f the victim is dead or about to die prior to the

confinement or removal, then the confinement or removal of the body is merely

incidental to the killing of the victim and no conviction for kidnapping lies.”

       Koncel’s attorney testified by deposition that he generally did not like

making either/or arguments. In his words:

       I thought your case is never stronger than your weakest argument.
       And thought that would have been a weaker argument if I had made
       it. I guess if you are asking me to Monday morning quarterback
       myself, I don’t know—I don’t recall having that thought process.
              But having it now, I would not want to weaken my argument
       on element 2 by making an alternative argument on element 5. That
       would have been—that would be my thought process today. And
       perhaps that was my thought process at the time, or maybe it didn’t
       even occur to me at the time. I don’t recall. But I don’t—I never liked
       either-or argument[s].

Counsel’s strategy was reasonable. He retained an expert witness, who opined

“to a reasonable degree of medical certainty” that Budde’s death occurred “at the

completion of the head injuries.” The expert reasoned that “[t]he configuration of
                                           5


the fracture lines” and “the relatively scant amount of bleeding that one finds in the

brain and surrounding soft tissues” indicated “a very rapid cessation of heart and

respiratory functions.” He stated “the injuries as sustained here and the rapid

collapse” were “irreversible.”

       The expert opined on Budde’s specific injuries as follows: (1) “there [was]

really comparatively little bleeding in the scalp compared to what one would expect

to see in somebody who had lived a while with this particular injury”; (2) “circulation

ceased very rapidly after” certain tears to his liver “were sustained”; and (3) “blood

pressure and blood circulation had ceased very early on, and was minimal at the

time . . . injuries [to Budde’s ribs] were sustained” and the state medical examiner’s

use of the term “agonal” in characterizing the rib injuries meant they were

“sustained at the time of death or during the process of dying.”

       As for evidence of blood in the truck used to transport Budde, the expert

testified there were no “signs of arterial spurting” or “signs of significant

splattering,” which “would [have] be[en] definite proof of . . . circulation”; the blood

on the vehicle screen could have occurred after death; and Budde “was not actively

bleeding” in the woods where his body was found, meaning “[h]e was dead.”

       The expert acknowledged “individual respiratory functions” might “have

occurred for a considerable time later,” but he did not find those functions

inconsistent with his opinion on the time of death. In his view, movement of a dead

body could “force a small amount of air out through the windpipe and into the

surrounding air.”

       In sum, counsel presented and supported what he believed to be the most

cogent defense to the kidnapping charge—a challenge to the element requiring
                                          6


Budde to have been alive before he was removed or confined. Counsel’s theory

that Budde died before he was moved necessarily subsumed an argument that he

was “irreversibly injured” before he was moved. Although counsel’s theory failed

to win the day, we are not to consider “whether defense counsel’s actions were

successful, but whether they were ‘justifiable.’” Anfinson v. State, 758 N.W.2d 496,

501 (Iowa 2008) (quoting Pettes v. State, 418 N.W.2d 53, 57 (Iowa 1988)). On our

de novo review, we are persuaded that Koncel’s trial attorney acted competently

when he limited his defense theory to death-before-the-kidnapping rather than

death-or-irreversible-injury before the kidnapping. See Strickland, 466 U.S. at 688

(“The proper measure of attorney performance remains simply reasonableness

under prevailing professional norms.”).

      Our conclusion effectively resolves Koncel’s related assertion that his

attorney was ineffective in failing to call the Jackson County medical examiner to

testify about Budde’s serious injuries. Death was the ultimate serious injury and,

as discussed, the defense expert testified at length about the timing of Budde’s

death and the injuries leading up to it. Additionally, calling the local medical

examiner to the stand carried risks. Koncel’s trial attorney testified by deposition

that he spoke to the medical examiner before trial, and “he was kind of coy.” In

counsel’s words, “I remember him saying very explicitly . . . don’t call me, you are

not going to like what I have to say. And so I took him at his word and didn’t call

him.” Counsel also explained that he did not depose him because “if [he] listed

him and he was deposed,” then he “was going to add a witness to the state’s list

that they didn’t have.” Counsel’s strategy was reasonable. See Ledezma v. State,

626 N.W.2d 134, 143 (Iowa 2001) (“[S]trategic decisions made after ‘thorough
                                             7


investigation of law and facts relevant to plausible options are virtually

unchallengeable.’” (citation omitted)).

       B.      Failure to object to jury instruction

       As discussed, the second element of the marshalling instruction for

kidnapping required the defendant to “confine or remove” Budde. The trial court

defined the terms as follows:

       Concerning element number 1 of instruction Nos. 28 and 33,
       confinement or removal requires more than what is included in the
       commission of the crime of murder.
              A person is “confined” when his or her freedom to move about
       is substantially restricted by force, threat or deception. The person
       may be confined either in the place where the restriction began or in
       a place to which he or she has been removed.
              No minimum time of confinement or distance of removal is
       required. It must be more than slight. The confinement or removal
       must have significance apart from the murder. In determining
       whether confinement or removal exists, you may consider whether:
              1. The risk of harm to Marty Budde was increased.
              2. The risk of detection was reduced.
              3. Escape was made easier.

Koncel argues the instruction “included a watered-down version of” certain

language required by our case law. See State v. Albright, 925 N.W.2d 144, 152–

53 (Iowa 2019) (“The three prongs [of the confinement-or-removal test] include

confinement or removal that (1) ‘substantially increases the risk of harm to the

victim,’ (2) ‘significantly lessens the risk of detection,’ or (3) ‘significantly facilitates

escape of the perpetrator.’”); State v. Robinson, 859 N.W.2d 464, 481 (Iowa 2015)

(“In the end, the question calls for an exercise of our judgment as to whether, on

the totality of the circumstances, the State offered sufficient evidence that a jury

could find beyond a reasonable doubt that the defendant’s confinement of the

victim substantially increased the risk of harm, significantly lessened the risk of
                                          8

detection, or significantly facilitated escape.”); State v. Rich, 305 N.W.2d 739, 745

(Iowa 1981) (“Such confinement or removal may exist because it substantially

increases the risk of harm to the victim, significantly lessens the risk of detection,

or significantly facilitates escape following the consummation of the offense.”

(emphasis added)). In his view, “[c]ounsel acting within the range of normally

competent counsel would not have failed to object to an instruction that diminished

the State’s burden of proving that confinement or removal was more than incidental

to the underlying offense.”

       The jury instruction clearly failed to include the italicized language adopted

in Rich and reaffirmed in subsequent opinions. Assuming without deciding counsel

had a duty to object to the absence of that language, Koncel failed to establish

Strickland prejudice.

       According to a report of a law enforcement interview, Koncel told the

investigator the brothers went south from their home “for possibly five miles,”

“turned right,” proceeded “approximately two miles,” “turned left on a gravel road

that went up hill,” “made a left turn and then made a right turn into a grassy area.”

They “drove along the tree line” before coming to a stop. It was “very dark that

night.” Koncel’s brother went “into the woods” and appeared to be “pulling [Budde]

into the woods.”

       Based on the report, this court characterized the site where Budde’s body

was found as a “secluded area.”          Koncel, 2001 WL 98611, at *1.           This

characterization together with the underlying evidence lead us to conclude that

there was no reasonable probability of a different outcome had counsel succeeded

in having the jury instruction changed from “[t]he risk of detection was reduced” to
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“significantly lessened the risk of detection.” See Harper v. State, No.17-0435,

2018 WL 4360892, at *9 (Iowa Ct. App. Sept. 12, 2018) (“Assuming without

deciding trial counsel had a duty to object to the instruction without the intensifiers,

we cannot say Harper suffered prejudice. We find no reasonable probability the

jury would have returned a not-guilty verdict on the first-degree kidnapping charge

had the intensifiers been included in the instruction.”); Gailey v. State, No. 15-2183,

2017 WL 3077915, at *3 (Iowa Ct. App. July 19, 2017) (“Even assuming Gailey’s

trial counsel had a duty to object to the confinement instruction without the

intensifiers, we cannot find Gailey suffered prejudice as a result of his counsel’s

omission.”); State v. Ronnau, No. 14-0787, 2016 WL 351314, at *10 (Iowa Ct. App.

Jan. 27, 2016) (“Assuming Ronnau’s trial counsel had a duty to object to the

confinement instruction without the intensifiers, we cannot find Ronnau suffered

prejudice as a result of his counsel’s omission.”); State v. Norem, No. 14-1524,

2016 WL 146237, at *7 (Iowa Ct. App. Jan. 13, 2016) (“Assuming Norem’s trial

counsel had a duty to object to the confinement instruction without the intensifiers,

we cannot find Norem suffered prejudice as a result of counsel’s omission”.); cf.

State v. Chamberlain, No. 17-1426, 2018 WL 6719730, at *8 (Iowa Ct. App. Dec.

19, 2018) (“[A]lthough the jury could have found that Chamberlain’s confinement

and removal of Robin was not merely incidental to the crime of intimidation with a

dangerous weapon with intent, we cannot say the record contains overwhelming

evidence to compel the jury to reach that result.”).

       C.     Failure to object to hearsay statement

       Koncel next contends counsel was ineffective in failing to object to hearsay

evidence that undermined his theory of the case. He points to an investigator’s
                                          10


testimony about the interview with Koncel and, specifically, Koncel’s statement that

his brother returned from the woods and “told him that [Budde’s] not dead,

[Budde’s] not dead.” He also challenges the division of criminal investigation report

containing the statement.

       The State acknowledges Koncel’s attorney could have lodged hearsay

objections to this evidence but argues Koncel was not prejudiced because

“compelling medical and physical evidence establish[ed] the same fact.” On our

de novo review, we agree.

       The State medical examiner, Dr. Thomas Bennett, opined that “Mr. Budde

did not die immediately.” He stated, “[T]here was definite bleeding going into the

soft tissues, indicating that he had blood pressure when those injuries were

sustained, he was still alive when these injuries were sustained.” He further opined

Budde “lived for at least several minutes and could perhaps have lived for thirty

minutes or longer before finally, because of these injuries, those vital functions

stopped and he died.” He reiterated, “[A]t least he could have lived at least thirty

minutes or so.” When asked about blood in the truck, he testified, “You don’t get

that much drainage from an individual that has received fatal head wounds after

they’re dead. It indicates to me that he was alive and bleeding to allow his body

to push blood to the outside through these many wounds into this area.” Finally,

he testified to knife wounds inflicted after Budde was taken to the woods, stating,

“[H]e still had evidence of circulatory function.”

       Based on this evidence, there is no reasonable probability of a different

outcome had counsel succeeded in excluding the statements of Koncel’s brother

that Budde was not dead when he was taken to the woods. See Linn v. State, 929
                                        11


N.W.2d 717, 731 (Iowa 2019) (“The ultimate question is whether there is a

reasonable probability that, absent the errors, the factfinder would have had a

reasonable doubt respecting guilt.”).

       D.    Failure to adequately investigate resignation of medical examiner

       Koncel challenges his trial attorney’s failure to question Dr. Bennett in

greater detail “about the circumstances of his departure from the state medical

examiner’s office.”   Counsel made a strategic decision to limit his cross-

examination to the facts of the case. See State v. Rice, 543 N.W.2d 884, 888

(Iowa 1996) (“Counsel did not breach any essential duty to the defendant by failing

to pose specific cross-examination questions defendant would prefer him to ask.”).

He elicited inconsistencies between Dr. Bennett’s trial and deposition testimony

about the time of Budde’s death which, as discussed, was the crux of Koncel’s

defense. Although he conceded in his deposition testimony, that he “wishe[d] [he]

would have explored” the circumstances surrounding Dr. Bennett’s resignation “a

little more,” he noted Dr. Bennett was a “very charismatic witness” and he would

have only questioned him if, for example, he “knew there was demonstrated proof

that he had lied at a criminal trial.” We conclude his failure to delve into the

resignation did not amount to ineffective assistance.

III.   Issues Sought to Be Preserved

       Koncel raises several claims of ineffective assistance of PCR counsel he

would like to have this court preserve for another PCR action as well as a claim of

actual innocence under Schmidt v. State, 909 N.W.2d 778 (Iowa 2018).            He

concedes recent legislation “nullifies [precedent] which . . . held that the proper

mechanism for resolving claims of ineffective assistance of PCR counsel raised
                                           12


for the first time on appeal is for an applicant to file a separate PCR application in

the district court.” See 2019 Iowa Acts ch. 140, § 34; Iowa Code § 822.3 (2019)

(“An allegation of ineffective assistance of counsel in a prior case under this

chapter shall not toll or extend the limitation periods in this section nor shall such

claim relate back to a prior filing to avoid the application of the limitation periods.”);

Allison v. State, 914 N.W.2d 866, 891 (Iowa 2018) (“In order to avoid the difficult

constitutional position that would result in denying a remedy where defense

counsel allegedly provided ineffective assistance at trial and postconviction

counsel is ineffective in raising that claim, we think the best approach is to hold

that where a PCR petition alleging ineffective assistance of trial counsel has been

timely filed per section 822.3 and there is a successive PCR petition alleging

postconviction counsel was ineffective in presenting the ineffective-assistance-of-

trial-counsel claim, the timing of the filing of the second PCR petition relates back

to the timing of the filing of the original PCR petition for purposes of Iowa Code

section 822.3 if the successive PCR petition is filed promptly after the conclusion

of the first PCR action.”). For that reason, he asks us to either remand the case

for hearing on the claims or decide all but one of the claims at this time.

       We decline to follow either suggested course or weigh in on the effect of the

recent legislation should Koncel elect to file another PCR action raising ineffective-

assistance-of-counsel claims against his PCR attorney. With respect to the actual-

innocence claim, Koncel concedes the record would require “more development.”

Again, we decline to decide how Koncel should raise the claim or whether the claim

is viable.
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We affirm the denial of Koncel’s postconviction-relief application.

AFFIRMED.
