Rümmer v. State

• Decision Date: 17 October 2006
• Docket Number: No. 20050341.,20050341.
• Citation: 2006 ND 216,722 N.W.2d 528
• Parties: Werner RÜMMER, f.k.a. Werner Kunkel, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.
• Court: North Dakota Supreme Court

722 N.W.2d 528

2006 ND 216

Werner RÜMMER, f.k.a. Werner Kunkel, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.

No. 20050341.

Supreme Court of North Dakota.

October 17, 2006.

COPYRIGHT MATERIAL OMITTED

Douglas Leo Broden, Devils Lake, N.D., for petitioner and appellant.

Lonnie Olson, State's Attorney, Devils Lake, N.D., for respondent and appellee.

MARING, Justice.

[¶ 1] Werner Rümmer, formerly known as Werner Kunkel, appealed from a district court judgment denying his petition for post-conviction relief. We conclude Rümmer has failed to establish his trial counsel was ineffective, failed to establish the State withheld potentially exculpatory evidence, and failed to establish the State violated his rights under the Vienna Convention on Consular Relations. We affirm.

I

[¶ 2] In 1995, a jury found Rümmer guilty of murdering Gilbert Fassett in Ramsey County. Fassett's body had been found in August 1986 in a wooded area on the Fort Totten Indian reservation. Fassett had been stabbed more than one hundred times. On direct appeal to this Court, Rümmer argued the State presented insufficient evidence to sustain the jury's verdict, claiming the verdict was unsupported by physical evidence or eyewitness testimony and the existing physical evidence pointed to his innocence. State v. Kunkel, 548 N.W.2d 773, 773 (N.D. 1996).

[¶ 3] This Court, reviewing the evidence in the light most favorable to the verdict, concluded the jury could reasonably have found:

Kunkel and Fassett were together for a significant amount of time on August 1, 1986, the last day Fassett was seen alive; Fassett was carrying a great deal of money that day; when last seen alive around 10:30 p.m. on August 1, Fassett was with Kunkel; Kunkel was nervous and behaving strangely at the time; Fassett probably died sometime in the late evening of August 1 or early morning of August 2.

Id. at 773-74. This Court also concluded that the record clearly demonstrated Rümmer made several admissions implicating himself in Fassett's killing:

Christopher Anderson testified Kunkel showed him a ring that belonged to Fassett, and said "You see this? You're going to get the same thing that Gilbert got." Mark Demarce testified that Kunkel admitted he killed and mutilated Fassett and dumped Fassett's body on the Fort Totten reservation. Sandra Austin testified that Kunkel admitted "stabbing [Fassett] over and over and over and over." Rodney Maier and Shelley Rutten testified that Kunkel admitted fighting with Fassett and said "the better man won." Nicholas Elston testified that Kunkel admitted stabbing Fassett with the help of a third person. Fred Nakken testified that Kunkel admitted holding Fassett while a third person stabbed Fassett.

Id. at 774.

[¶ 4] In affirming Rümmer's conviction, we concluded there was substantial competent evidence to support the jury's verdict finding him guilty of murder and that substantial evidence supported the jury's finding Rümmer murdered Fassett in Ramsey County. Id. at 774.

[¶ 5] During Rümmer's trial, the State presented the testimony of Dr. Roel Gallo, a pathologist who performed Fassett's autopsy. Dr. Gallo testified that based upon his observations of the body's decomposition, Fassett's death occurred at least seven or eight days before being found. The State also presented the testimony of Dr. Omer Larson, a zoology professor at the University of North Dakota, who specialized in parasitology and entomology. Dr. Larson testified that maggots removed from the body during the autopsy on August 11, 1986, were between nine and ten days old, which placed the date of larvae colonization of Fassett's body on either August 1 or August 2, 1986.

[¶ 6] Thereafter, Rümmer sought post-conviction relief under N.D.C.C. ch. 29-32.1. At a hearing on his petition, Rümmer presented the expert testimony of Dr. Neil Haskell, a forensic entomologist. Dr. Haskell testified that Fassett likely died between sunrise on August 3, and sunset on August 6, 1986. The State again called Dr. Larson to rebut the testimony of Dr. Haskell. Rümmer also presented the testimony of four additional witnesses, claiming they established an alibi for him during the time period when Dr. Haskell determined Fassett had died. Rümmer also presented testimony relating to his German citizenship from a representative of the German Consulate in Chicago.

[¶ 7] The district court denied Rümmer's application for post-conviction relief and Rümmer appeals.

II

[¶ 8] Rümmer argues that he had ineffective assistance of trial counsel.

[¶ 9] Post-conviction relief proceedings are civil in nature and governed by the North Dakota Rules of Civil Procedure. Flanagan v. State, 2006 ND 76, ¶ 9, 712 N.W.2d 602. The issue of ineffective assistance of counsel is a mixed question of law and fact and is fully reviewable on appeal. Klose v. State, 2005 ND 192, ¶ 10, 705 N.W.2d 809. The district court's findings of fact in a post-conviction proceeding will not be disturbed on appeal unless clearly erroneous under N.D.R.Civ.P. 52(a). Laib v. State, 2005 ND 187, ¶ 11, 705 N.W.2d 845.

[¶ 10] The petitioner has the burden of establishing grounds for post-conviction relief. Flanagan, 2006 ND 76, ¶ 10, 712 N.W.2d 602; State v. Steen, 2004 ND 228, ¶ 9, 690 N.W.2d 239. In order to prevail on a post-conviction claim for ineffective assistance of counsel, we have explained the petitioner carries a "heavy burden":

The Sixth Amendment of the United States Constitution, made applicable to the states through the Fourteenth Amendment, and Article I, § 12 of the North Dakota Constitution guarantee a criminal defendant effective assistance of counsel. In accord with the test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 ..., a defendant claiming ineffective assistance of counsel has a heavy burden of proving (1) counsel's representation fell below an objective standard of reasonableness, and (2) the defendant was prejudiced by counsel's deficient performance. "Effectiveness of counsel is measured by an `objective standard of reasonableness' considering `prevailing professional norms.'" The defendant must first overcome the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Trial counsel's conduct is presumed to be reasonable and courts consciously attempt to limit the distorting effect of hindsight.

The prejudice element requires a defendant to "establish a reasonable probability that, but for his counsel's errors, the result of the proceeding would have been different." Not only does a criminal defendant have "the heavy, demanding burden of proving counsel's assistance was ineffective," a defendant claiming ineffective assistance of counsel "must specify how and where trial counsel was incompetent and the probable different result." A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed."

Flanagan, at ¶ 10 (quoting Heckelsmiller v. State, 2004 ND 191, ¶¶ 3-4, 687 N.W.2d 454 (citations omitted)). We use the same Strickland test to assess ineffective assistance of counsel claims under the state constitution. Flanagan, at ¶ 11 (citing Woehlhoff v. State, 487 N.W.2d 16, 17 (N.D.1992)).

[¶ 11] Rümmer argues his trial counsel was ineffective in failing to adequately investigate various scientific evidence. Rümmer asserts trial counsel inadequately investigated forensic entomological evidence offered by the State to establish the time of Fassett's death and counsel was inadequately prepared to meet that evidence at trial. Rümmer also argues trial counsel inadequately investigated scientific evidence offered by the State to show that a fire in the defendant's car occurring several years after the crime was intentionally set and counsel was inadequately prepared to meet that evidence at trial.

[¶ 12] "A defendant must offer evidence that any additional witnesses would have aided the defense's claim." Damron v. State, 2003 ND 102, ¶ 16, 663 N.W.2d 650. We do not second guess matters of trial tactics on appeal, such as whether to call a certain witness. Sayler v. State, 2005 ND 166, ¶ 10, 704 N.W.2d 559; Mathre v. State, 2000 ND 201, ¶ 7, 619 N.W.2d 627. Strategic choices by trial counsel "made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable". State v. Schlickenmayer, 364 N.W.2d 108, 112 (N.D.1985) (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052).

[¶ 13] "This Court's role is not to superimpose our collective judgment upon that of a trial counsel on a tactical decision as to whether a witness should testify." Sayler, at ¶ 10; Smith v. Woodley, 164 N.W.2d 594, 598 (N.D.1969). A trial counsel's failure to have a critical witness testify, coupled with other errors by trial counsel, may result in ineffective assistance of counsel. Sayler, at ¶ 10; Heckelsmiller, 2004 ND 191, ¶¶ 11-12, 687 N.W.2d 454 (2004). In a case premised on ineffective assistance of counsel, the challenger must identify with specificity or particularity how and where the trial counsel was incompetent and the probable different result. State v. Wolf, 347 N.W.2d 573, 575 (N.D.1984). In the absence of a specific showing, we are compelled to reject the contention that trial counsel acted incompetently. Id. at 575.

[¶ 14] In this case, the district court found:

Trial counsel's strategy to minimize the methodology of dating the time of death as anything but science was an appropriate strategy among other alternatives in light of all of the other evidence presented. Even though another attorney may have chosen a different strategy ... , the strategy used by trial counsel was not a strategy that was below minimal...