State of Iowa v. Levi Gibbs III

IN THE SUPREME COURT OF IOWA
No. 18–1298

Filed April 17, 2020

STATE OF IOWA,

Appellee,

vs.

LEVI GIBBS III,

Appellant.

Appeal from the Iowa District Court for Webster County, Thomas J.

Bice, Judge.

A defendant appeals his conviction for second-degree murder,

arguing that his Fifth Amendment privilege against self-incrimination was

violated. AFFIRMED.

Ashley Stewart, Assistant Appellate Defender, and Levi Gibbs III,

pro se, for appellant.

Thomas J. Miller, Attorney General, Timothy M. Hau and Coleman

McAllister, Assistant Attorneys General, Darren Driscoll, County Attorney,

and Ryan Baldridge, Assistant County Attorney, for appellee.
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MANSFIELD, Justice.

I. Introduction.

This homicide case requires us to address another aspect of the

recently enacted stand-your-ground legislation. A man was charged with

murdering another man by firing a single fatal shot. Initially he denied

involvement in the shooting, but at trial he asserted the defense of

justification. Over the defendant’s objection, the district court gave a jury

instruction incorporating the terms of Iowa Code section 704.2B. Thus,

the instruction included a statement that “[a] person using deadly force is

required to notify or cause another to notify a law enforcement agency

about his use of deadly force within a reasonable time period after the use

of the deadly force.” The defendant, who was convicted, claims that both

section 704.2B itself and the jury instruction incorporating that section

violated his Fifth Amendment rights.

On our review, we conclude that it invades the defendant’s Fifth

Amendment rights when a trial judge instructs the jury in a homicide case

that the defendant was required to notify law enforcement of his or her use

of deadly force. However, because the evidence of guilt in this case was

overwhelming, we find the error to have been harmless beyond a

reasonable doubt. Therefore, we affirm the defendant’s conviction and

sentence.

II. Facts and Procedural History.

Around 3:34 a.m. on September 3, 2017, the defendant, Levi

Gibbs III, shot and killed Shane Wessels. The shooting was captured on a

law enforcement digital camera attached to a light pole at the scene. A

contemporaneous 911 caller reported the shooting and identified Gibbs as

the shooter. There were numerous eyewitnesses to the shooting.
 3

Gibbs killed Wessels during a melee at a street intersection in

Fort Dodge. Gibbs initiated the melee when he shoved Wessels and

indicated he wanted to fight. Gibbs was “very angry.” Gibbs and Wessels

exchanged punches. Several other individuals joined in and attacked

Wessels. Latricia Roby, Gibbs’s sister, struck Wessels with a vodka bottle

and later an extendable baton. Chassdie Mosley used a stun gun on

Wessels.

Gibbs left the fracas and went to his vehicle to retrieve a gun. While

Gibbs was retrieving his gun, Wessels, who had been beaten and knocked

to the ground, picked himself up and said he was done with the fight.

Wessels began to retreat. Gibbs then returned and shot Wessels. Wessels

fell to the ground. Gibbs stood over the fallen Wessels and tried to shoot

him again. This time, the gun jammed, and Gibbs instead hit Wessels

with the gun. One eyewitness testified Gibbs pointed his gun at her and

said, “B****, if you say anything, I’ll shoot you too.”

Wessels died at the scene from a single gunshot wound that

penetrated his heart. After firing the fatal shot and threatening a witness,

Gibbs fled. The gun that Gibbs used was never recovered.

Detective Larry Hedlund of the Fort Dodge Police Department led the

investigation into Wessels’s shooting. Because of the video evidence, the

911 call, and the statements from the eyewitnesses to the shooting, Gibbs

became the immediate focus of the investigation. The day of the shooting,

Hedlund went to Gibbs’s girlfriend’s house to interview her and look for

Gibbs. Later the same day, the police executed search warrants at the

girlfriend’s house and at what the police believed to be Gibbs’s main

residence. The next day, September 4, Hedlund also interviewed Gibbs’s

sister, Roby, at her residence. And Hedlund went to Gibbs’s mother’s

house. Hedlund informed each of these interviewees he was looking for
 4

Gibbs, and Hedlund provided each of the interviewees his contact

information. For nearly two days, Hedlund was unsuccessful in tracking

down Gibbs.

At around 4:17 p.m. on September 4, Gibbs called Hedlund.

Hedlund told Gibbs he wanted to take his statement, and the two arranged

for a meeting. Approximately ten minutes later, Gibbs called back,

indicating that he had changed his mind about meeting. The two

continued to talk throughout the remainder of the day as Hedlund tried to

coax Gibbs into meeting. Gibbs said he was going to “try to drag this thing

out.” Eventually, Hedlund gave up and went home to go to bed. Finally,

Gibbs woke up Hedlund around 1:49 a.m. on September 5 and stated he

would be willing to meet the detective at Gibbs’s residence.

Shortly thereafter, Hedlund arrived at Gibbs’s residence and

conducted an interview. Gibbs’s mother and grandmother were in the

house and in the vicinity of the interview as it was going on. Hedlund later

testified Gibbs was not under arrest. Hedlund testified Gibbs was

coherent and appeared to understand Hedlund’s questions. Hedlund

interviewed Gibbs for two hours and sixteen minutes at Gibbs’s dining

room table. Hedlund repeatedly asked Gibbs if he had a gun at the time

of the shooting, and Gibbs “adamantly and repeatedly denied he had a

gun.” Hedlund told Gibbs the shooting was on video. Gibbs nonetheless

denied shooting Wessels. Hedlund asked Gibbs about the clothing he had

been wearing at the time, and Gibbs gave inconsistent answers. None of

the answers were consistent with the clothing that Gibbs was actually

shown as wearing on the light pole video. Hedlund asked Gibbs to produce

the clothing, and he declined to do so. After taking Gibbs’s statement,

Hedlund left the residence.
 5

Hedlund returned to Gibbs’s residence that afternoon and asked

Gibbs to accompany him to the law enforcement center pursuant to a

search warrant to provide a DNA sample, fingerprints, and photographs.

Gibbs did so. At the center, in addition to collecting DNA, fingerprints,

and photographs, Hedlund again interviewed Gibbs. Hedlund told Gibbs

he was on camera shooting a gun. Gibbs said he “didn’t believe a video

existed of him shooting a gun or killing Shane Wessels.” Gibbs was at the

law enforcement center for a few hours in total. Once more, he denied

having a gun or shooting Wessels.

After the interview, Hedlund drove Gibbs back to Gibbs’s residence.

When they arrived at Gibbs’s residence, Gibbs volunteered to give Hedlund

a damaged cell phone and told Hedlund it was the phone Gibbs had been

carrying the night of the shooting. Subsequent forensic examination

showed the phone had not been used since May.

On September 11, eight days after the shooting, the State charged

Gibbs in the Webster County district court with murder in the first degree

in violation of Iowa Code section 707.2 (2018). Gibbs was taken into

custody on September 18 in Des Moines and transported to Fort Dodge.

Upon arrival, he was read his Miranda rights and questioned. The

questioning was recorded. Detective Hedlund showed Gibbs still pictures

from the light pole video. Gibbs nonetheless continued to deny he shot

Wessels. “I’m not the shooter at all,” he said.

Despite his repeated pretrial denials that he had shot Wessels,

Gibbs asserted a justification defense at trial. Specifically, Gibbs

maintained he was acting in defense of his sister, Roby. The State put into

evidence, without objection, testimony regarding Gibbs’s flight from the

scene, his failure to report his use of deadly force, his failure to produce

his clothing from the night of the shooting, his failure to produce his gun
 6

from the shooting, his repeated denials of shooting Wessels, and the

recorded interviews with law enforcement. Meanwhile, several

eyewitnesses confirmed what the light pole video showed: that Gibbs shot

Wessels as he was standing shirtless, unarmed, and backing away from

any confrontation.

Trial began on June 25, 2018. The defendant did not testify, but he

did call two eyewitnesses on his behalf. One testified she saw Wessels hit

Roby repeatedly and stomp on the face of another woman. She claimed

she believed at the time that Roby was badly hurt. However, she also

admitted she “d[id] not know how it initially started.” And on cross-

examination, this witness acknowledged she was “on [Roby’s] team” and

had posted on Facebook to that effect. She also testified she did not see

the shooting. In fact, she did not “remember seeing” Gibbs and did not

know if he had a gun.

Another defense witness testified he saw five or six people, including

Gibbs and several women, jumping Wessels and Wessels fighting back. He

saw Wessels hit Mosley after Mosley had tased Wessels. At that point,

Wessels, Mosley, and Roby were all on the ground. Wessels then got up

and tried to leave. At this point the witness saw Gibbs, who had returned

with a gun, shoot Wessels.

The district court’s proposed jury instructions included an

instruction that paraphrased Iowa Code section 704.2B, part of the stand-

your-ground legislation adopted by the legislature in 2017. See 2017 Iowa

Acts ch. 69, § 40 (codified at Iowa Code § 704.2B (2018)). 1 Thus, the

proposed instruction, Instruction No. 36, read as follows:

1Iowa Code section 704.2B states,
1. If a person uses deadly force, the person shall notify or cause
another to notify a law enforcement agency about the person’s use of
deadly force within a reasonable time period after the person’s use of the
 7
A person using deadly force is required to notify or
cause another to notify a law enforcement agency about his
use of deadly force within a reasonable time period after the
use of the deadly force, if the Defendant or another person is
capable of providing such notification.

A person using deadly force is also required to not
intentionally destroy, alter, conceal, or disguise physical
evidence relating to the person’s use of deadly force, and a
person using deadly force cannot intentionally intimidate
witnesses into refusing to cooperate with any investigation
relating to the use of such deadly force or induce another
person to alter testimony about the use of such deadly force.

Defense counsel objected to Instruction No. 36. Counsel contended the

instruction violated the defendant’s rights under the Iowa Constitution

and the Fifth and Fourteenth Amendments. Defense counsel also argued

if the district court were to give the instruction, the instruction should

include language that the failure to notify law enforcement did not bar

Gibbs’s justification defense. The district court submitted Instruction

No. 36 over counsel’s objection and without modification.

After deliberations, the jury found the defendant guilty of the lesser

included offense of murder in the second degree. See Iowa Code

§ 707.3(1). On July 27, Gibbs was sentenced to fifty years’ imprisonment.

See id. § 707.3(2).

Gibbs appeals. Through his appellate attorney, Gibbs argues that

Iowa Code section 704.2B(1) on its face violates the privilege against self-

incrimination; that the district court’s Instruction No. 36 paraphrasing
section 704.2B was improper; and that at a minimum, the district court

deadly force, if the person or another person is capable of providing such
notification.
2. The person using deadly force shall not intentionally destroy,
alter, conceal, or disguise physical evidence relating to the person’s use of
deadly force, and the person shall not intentionally intimidate witnesses
into refusing to cooperate with any investigation relating to the use of such
deadly force or induce another person to alter testimony about the use of
such deadly force.
 8

should have included his requested language that failure to notify law

enforcement does not bar a justification defense. Gibbs also raises several

arguments in a pro se brief. We retained the appeal.

III. Standard of Review.

We review constitutional challenges to a statute de novo. State v.

Newton, 929 N.W.2d 250, 254 (Iowa 2019). Challenges to jury instructions

are reviewed for correction of errors at law. State v. Bynum, 937 N.W.2d

319, 324 (Iowa 2020).

IV. Analysis.

A. Does Iowa Code Section 704.2B(1) on Its Face Improperly

Penalize Silence? The Fifth Amendment to the United States

Constitution provides, “No person . . . shall be compelled in any criminal

case to be a witness against himself . . . .” U.S. Const. amend. V. The

Fifth Amendment privilege against compulsory self-incrimination is

applicable to the states via the Fourteenth Amendment. See Malloy v.

Hogan, 378 U.S. 1, 6, 84 S. Ct. 1489, 1492 (1964). Although the Iowa

Constitution does not have a parallel textual provision, this court has held

the right to be free from compulsory self-incrimination is protected by the

due process clause of the Iowa Constitution. See Iowa Const. art. I, § 9;

State v. Iowa Dist. Ct., 801 N.W.2d 513, 518 n.2 (Iowa 2011); State v.

Height, 117 Iowa 650, 654–55, 91 N.W. 935, 938 (1902).

The United States Supreme Court has found that the Fifth

Amendment can be violated even when the government does not directly

coerce testimony from the defendant. It also forbids the use of a penalty

that might compel the defendant into offering testimony against himself or

herself. Spevack v. Klein, 385 U.S. 511, 514–15, 87 S. Ct. 625, 627–28

(1967). Thus, the Fifth Amendment generally protects “the right of a

person to remain silent unless he chooses to speak in the unfettered
 9

exercise of his own will, and to suffer no penalty . . . for such silence.” Id.

(quoting Malloy, 378 U.S. at 8, 84 S. Ct. at 1493–94).

Notably, in Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229,

1233 (1965), the Supreme Court held that the Fifth Amendment forbid

comment by the prosecution on a defendant’s failure to testify. As the

Court explained, “It is a penalty imposed by courts for exercising a

constitutional privilege. It cuts down on the privilege by making its

assertion costly.” Id. at 614, 85 S. Ct. at 1232–33; see also Carter v.

Kentucky, 450 U.S. 288, 300, 101 S. Ct. 1112, 1119 (1981) (“[T]he Fifth

Amendment requires that a criminal trial judge must give a ‘no-adverse-

inference’ jury instruction [i.e., an instruction directing the jury not to

draw an adverse inference from the defendant’s failure to testify] when

requested by a defendant to do so.”).

In Doyle v. Ohio, 426 U.S. 610, 619, 96 S. Ct. 2240, 2245 (1976),

the Supreme Court held that it was a Fourteenth Amendment violation for

the prosecution to impeach a testifying defendant at trial with his

postarrest silence. “[I]t would be fundamentally unfair and a deprivation

of due process to allow the arrested person’s silence to be used to impeach

an explanation subsequently offered at trial,” the Court stated. Id. at 618,

96 S. Ct. at 2245.

The Supreme Court has also addressed failure-to-report laws that

criminalize silence in certain contexts. In United States v. Sullivan, 274

U.S. 259, 262, 47 S. Ct. 607, 607 (1927), the defendant was convicted of

willfully refusing to make a tax return as required by the Internal Revenue

Code. The defendant contended, and the circuit court held, the Fifth

Amendment “protected the defendant from the requirement of a return”

where the income was generated from illegal liquor sales. Id. at 263, 47

S. Ct. at 607. The Supreme Court rejected the argument, concluding that
 10

“[i]t would be an extreme if not an extravagant application of the Fifth

Amendment to say that it authorized a man to refuse to state the amount

of his income because it had been made in crime.” Id. at 263–64, 47 S. Ct.

at 607.

Albertson v. Subversive Activities Control Board, 382 U.S. 70, 71–72,

86 S. Ct. 194, 195–96 (1965), involved a challenge by members of the

Communist Party of the United States of America to registration orders

issued by the Subversive Activities Control Board. The members were

subject to “very heavy penalties” for failing to register in compliance with

the board’s order. Id. at 75, 86 S. Ct. at 197 (noting “each day of failure

to register constitutes a separate offense punishable by a fine of up to

$10,000 or imprisonment of up to five years, or both”). In addition to being

subject to penalties for the failure to register, the petitioners were also

subject to criminal prosecution upon registration and admitting

membership in the communist party. See id. at 77, 86 S. Ct. at 198 (“Such

an admission of membership may be used to prosecute the registrant

under the membership clause of the Smith Act, 18 U.S.C. § 2385 (1964

ed.) or under § 4(a) of the Subversive Activities Control Act, 64 Stat. 991,

50 U.S.C. § 783(a) (1964 ed.), to mention only two federal criminal

statutes.”). The Court set aside the registration orders on the ground the

orders violated the Fifth Amendment. See id. at 81, 86 S. Ct. at 200. The

Court further explained the registration orders ran afoul of the Fifth

Amendment because “response to any of the form’s questions in context

might involve the petitioners in the admission of a crucial element of a

crime.” Id. at 79, 86 S. Ct. at 199.

In California v. Byers, 402 U.S. 424, 425, 91 S. Ct. 1535, 1536

(1971) (plurality opinion), the Supreme Court addressed the
 11
narrow but important question of whether the constitutional
privilege against compulsory self-incrimination [was] infringed
by California’s so-called “hit and run” statute which require[d]
the driver of a motor vehicle involved in an accident to stop at
the scene and give his name and address.

In Byers, the defendant was prosecuted for the failure to stop and identify

himself after being involved in a motor vehicle accident. See id. at 426, 91

S. Ct. at 1537. Violation of the statute was punishable by imprisonment

up to six months or a fine of $500 or both. See id. at 426 n.1, 91 S. Ct. at

1537 n.1. The Court upheld the reporting statute from constitutional
challenge. Id. at 431, 91 S. Ct. at 1539. The court reasoned the disclosure

of “automobile accidents simply do[es] not entail [a] . . . substantial risk of

self-incrimination.” Id. The Court further noted “the statutory purpose is

noncriminal and self-reporting is indispensable to its fulfillment.” Id. The

Court further explained there is no constitutional right to flee the scene

even if remaining and reporting might lead to criminal prosecution:

Although identity, when made known, may lead to
inquiry that in turn leads to arrest and charge, those
developments depend on different factors and independent
evidence. Here the compelled disclosure of identity could have
led to a charge that might not have been made had the driver
fled the scene; but this is true only in the same sense that a
taxpayer can be charged on the basis of the contents of a tax
return or failure to file an income tax form. There is no
constitutional right to refuse to file an income tax return or to
flee the scene of an accident in order to avoid the possibility
of legal involvement.

Id. at 434, 91 S. Ct. at 1541.

And in Hiibel v. Sixth Judicial District Court, 542 U.S. 177, 181–82,

187, 190–91, 125 S. Ct. 2451, 2456, 2459, 2461 (2004), the Supreme

Court found no Fifth Amendment violation when an individual was

convicted of disobeying a law that required a detained person to “identify

himself,” but also provided he “may not be compelled to answer any other

inquiry of any peace officer.” The Court noted,
 12
The narrow scope of the disclosure requirement is also
important. One’s identity is, by definition, unique; yet it is, in
another sense, a universal characteristic. Answering a
request to disclose a name is likely to be so insignificant in
the scheme of things as to be incriminating only in unusual
circumstances. In every criminal case, it is known and must
be known who has been arrested and who is being tried.

Id. at 191, 124 S. Ct. at 2461 (citations omitted).
Gibbs argues that Iowa Code section 704.2B(1) on its face violates

the Fifth Amendment. From the Supreme Court precedents, Gibbs distills

and proposes a four-factor test to determine whether a reporting or

disclosure statute creates unconstitutional risk of compelled self-

incrimination: (1) whether the statute is regulatory or criminal; (2) whether

the statute is directed at the public at large or a highly selective group

inherently suspected of criminal activities; (3) whether the statute creates

a real and appreciable risk of self-incrimination; and (4) whether the

statute compels the disclosure of information which would constitute a

significant link in the chain of evidence tending to establish guilt. See

Byers, 402 U.S. at 430–31, 92 S. Ct. at 1539 (noting that the “stop and

identify” statute found not to violate the Fifth Amendment “is essentially

regulatory, not criminal,” that it is “directed at the public at large,” and

that the required disclosures “simply do not entail the kind of substantial

risk of self-incrimination involved in [prior cases where a Fifth Amendment

violation was found]” (second quote Albertson, 382 U.S. at 79, 86 S. Ct. at

199)); Albertson, 382 U.S. at 79, 86 S. Ct. at 199 (“Petitioners’ claims are

not asserted in an essentially noncriminal and regulatory area of inquiry,

but against an inquiry in an area permeated with criminal statutes, where

response to any of the form’s questions in context might involve the

petitioners in the admission of a crucial element of a crime.”). Under the

four-factor test, Gibbs argues, Iowa Code section 704.2B is

constitutionally infirm.
 13

Gibbs urges us to follow the Idaho Supreme Court’s lead in State v.

Akins, 423 P.3d 1026 (Idaho 2018). In Akins, an Idaho statute made it a

crime for a person who finds or has custody of a body to fail to promptly

notify authorities. Id. at 1027. The court found that the statute as applied

to the defendant violated her Fifth Amendment privilege. Id. at 1034–35.

The record showed the defendant moved and attempted to dispose of a

body in a lake after the decedent had died of a drug overdose. See id. at

1028. The reporting statute at issue was a criminal statute, and violation

of the statute was punishable by a term of incarceration not to exceed ten

years or a fine not to exceed $50,000 or both. See id. at 1029. The Idaho

Supreme Court held the prosecution for the failure to report the death, as

applied, violated the defendant’s right against self-incrimination. See id.

at 1034. The court also observed that “on its face, the statute fits

somewhere between Albertson and Byers: it applies against the public at

large but carries with it an underlying criminal purpose.” Id.

The State responds that cases like Akins and Albertson are

inapplicable because Iowa Code section 704.2B(1) “does not punish a

defendant’s failure to comply with criminal sanctions.” We agree that a

failure to comply with section 704.2B(1) carries no criminal sanctions.

Therefore, we pass over the question of whether that section violates the

Fifth Amendment merely by being on the books. We turn to the more

salient issue of how section 704.2B was used by the district court in this

case.

B. Does Giving a Jury Instruction Based on Iowa Code

Section 704.2B Improperly Penalize Silence? We quote again the first

paragraph of Instruction No. 36:

A person using deadly force is required to notify or
cause another to notify a law enforcement agency about his
use of deadly force within a reasonable time period after the
 14
use of the deadly force, if the Defendant or another person is
capable of providing such notification.

The district court’s implementation of section 704.2B through a jury

instruction puts someone who has used deadly force in a dilemma. 2 Either
the person gives up his or her right to remain silent, or in a later

prosecution, the person faces a jury told that he or she violated the law in

not doing so. The question, as before, is whether this imposes an improper

penalty on the exercise of the constitutional right to remain silent. 3

We think it does. A jury instruction authorizing an inference of guilt

in a murder case because the defendant breached a legal duty to make a

report to authorities exacts a significant penalty on the defendant’s right

to remain silent. The State directs us to three categories of cases; we think

all are readily distinguishable.

First, there are cases allowing the State to argue adverse inferences

from the defendant’s conduct. A recent example is State v. Wilson, 878

N.W.2d 203, 211–14 (Iowa 2016). In Wilson, we found that the State could

introduce evidence of the defendant’s flight from law enforcement and

argue that it showed consciousness of guilt, although we held that such

2The parties’ arguments and briefing have focused on the first half of Iowa Code

section 704.2B, the notification requirement, see Iowa Code § 704.2B(1), and the
corresponding first paragraph of Instruction No. 36. We do not address the constitutional
ramifications of a jury instruction based only on section 704.2B(2).
3A question could be raised whether Gibbs’s appellate counsel are raising an as-
applied Fifth Amendment challenge to the use of Iowa Code section 704.2B in a jury
instruction. We believe they are. There is no doubt, as already noted, that trial counsel
made a Fifth Amendment objection to the instruction below. On appeal, Gibbs likewise
maintained that the use of section 704.2B in a jury instruction violated the Fifth
Amendment. Appellate counsel quoted from trial counsel’s objection to the instruction
to demonstrate that error preserved. Then, on the merits, as part of the Fifth Amendment
argument, appellate counsel urged, “When paired with the other instructions, [the] Iowa
[C]ode [section] 702.4B instruction suggests that failure to inform law enforcement equals
criminal culpability.” Appellate counsel went on to quote disapprovingly from the State’s
rebuttal argument, in which the State asked the jury to rely upon the instruction and
Gibbs’s failure to report as a basis for inferring his guilt. In short, Gibbs’s overall Fifth
Amendment argument on appeal included an attack on the instructional use of section
704.2B.
 15

evidence is subject to an Iowa Rule of Evidence 5.404(b) screen and must

be treated “with caution.” Id.

Wilson relied on an Iowa case indicating that the State can use the

defendant’s failure to report coupled with other conduct to argue the

defendant’s conduct was not justified. Id. at 211 (citing State v. Shanahan,

712 N.W.2d 121, 138 (Iowa 2006)). We said in Shanahan,

When a person is required to use deadly force to protect
himself or herself, normally the first course of action is for that
person to notify the authorities and report the incident. We
believe Dixie’s failure to contact the authorities after the
incident coupled with her elaborate plan to create the illusion
Scott was still alive, of which these acts are a part, is
inconsistent with a person’s claim of self-defense.

712 N.W.2d at 138.

Those cases are different. It is one thing for parties in litigation to

make various arguments from the evidence based on common sense and

experience. It is quite another for the court in an official instruction to tell

the jury that the defendant whose innocence or guilt they are determining

has already, in effect, violated the law by not making a report. The latter
puts a heavy thumb on the State’s side of the scale. An instruction coming

from the judge, and received by the jurors as law they must follow, is very

different from a litigant’s argument, which the jury can weigh as they wish

and choose to ignore.

Second, and relatedly, there are cases allowing the State to argue

adverse inferences from a defendant’s prearrest silence when the

defendant did not invoke his or her Fifth Amendment rights in response

to questioning. See Salinas v. Texas, 570 U.S. 178, 186, 133 S. Ct. 2174,

2180 (2013) (plurality opinion). Salinas has not won universal acceptance

in the state courts. See, e.g., State v. Tsujimura, 400 P.3d 500, 520 (Haw.

2017) (deciding not to follow Salinas under the Hawai’i Constitution and
 16

concluding that “the State may not elicit evidence of prearrest silence to

imply the defendant’s guilt”).

Regardless, Salinas is different from a court instruction that

penalizes the defendant in the guilt or innocence stage for failing to

affirmatively seek out the authorities and speak to them prearrest—with

no Fifth Amendment exception. 4 Having the benefit of a judge’s

instruction reciting a legal obligation empowers the prosecution and stifles

the defendant in a way that simply being able to argue facts to the jury

doesn’t. Consider the following excerpt from the State’s rebuttal closing

argument:

I want you also to consider Instruction No. 36. The
Court tells you what the law is when somebody uses deadly
force. The Court says, “A person using deadly force is required
to notify or cause another to notify a law enforcement agency
about his” -- or it could be her -- “use of deadly force within a
reasonable degree” -- excuse me, “within a reasonable time
period,” if they can do so.

Ladies and gentlemen, remember I asked the witnesses
in this case, “Did the Defendant ever call 911?” And the
answer was no. I also asked “At any point, did he contact law
enforcement and say that he had shot Mr. Wessels?” Ladies
and gentlemen, he did not. He did not fulfill one of the duties
if somebody uses deadly force.

4Salinas is a case about the timing of invocation of Fifth Amendment Rights. It
indicates that the defendant who wishes to avoid a prosecutor’s trial argument about his
silence during a voluntary, noncustodial police interview has to invoke the Fifth
Amendment at the time he is questioned, not at the time of trial. Salinas, 570 U.S. at
183–86, 133 S. Ct. at 2179–80.
But this is not a case about the timing of invocation. The statute imposes an
affirmative duty on the defendant without even being questioned to self-report the
homicide he just committed. It would be absurd to suggest Gibbs could, as a practical
matter, invoke the Fifth Amendment at that time. Assuming he was even aware of the
statute, would he call the Fort Dodge Police and say, “Hi, I’m Levi Gibbs, and I’m taking
the Fifth”? Even referencing the statute would potentially incriminate him because it
would inform the police that he had just used deadly force and they ought to investigate
him. The only practical time to raise the Fifth Amendment was when the defendant did
raise it, namely, at the jury instruction conference. The issue here is whether the
instruction itself violated the defendant’s Fifth Amendment rights.
 17

Finally, there are regulatory statutes that impose adverse

consequences on not speaking when there is a legitimate regulatory reason

to require the speech—e.g., parental termination laws that penalize a

parent’s refusal to explain what happened to the child; sex offender laws

that penalize an already convicted defendant for not participating in sex

offender treatment where the defendant would have to admit his or her

prior misconduct; and the laws involved in Sullivan, Byers, and Hiibel. See

Hiibel, 542 U.S. at 191, 124 S. Ct. at 2461; McKune v. Lile, 536 U.S. 24,

48–49, 122 S. Ct. 2017, 2032–33 (2002) (O’Connor, J., concurring); Byers,

402 U.S. at 427, 91 S. Ct. at 1537; Sullivan, 274 U.S. at 263–64, 47 S. Ct.

at 607; Iowa Dist. Ct., 801 N.W.2d at 515; In re C.H., 652 N.W.2d 144, 150

(Iowa 2002). Any analogy to those statutes, however, runs out of steam

because a jury instruction restating 704.2B doesn’t serve a significant

regulatory purpose other than facilitating the defendant’s conviction of the

homicide offense.

Arguably, if failure to report a use of deadly force were an

independent crime, this would incentivize a knowledgeable person who

uses deadly force (or a person who consults counsel after using deadly

force) to come forward to the authorities. This would help assure that the

decedent is found quickly and relatives are notified promptly. These

regulatory purposes could be separated from crime-solving itself. One still

might argue that criminal-justice purposes substantially outweigh any

regulatory purposes, 5 but at least there would be a bona fide regulatory

purpose.

But what is the valid regulatory purpose served by instructing the

jury on the words of section 704.2B? In that case, the statute applies only

5Again,we are not deciding whether Iowa Code section 704.2B on its face violates
the Fifth Amendment.
 18

to a narrow group of individuals who are being charged with homicide.

And what is the point of giving the instruction? The State never says, but

there can only be one answer—so the jury holds it against the defendant

in some significant but indeterminate way. This penalizes the defendant,

and it does so without serving a valid regulatory end.

The State argues that the justification defense in Iowa is statutory

and that the general assembly can condition the availability of that defense

in whatever way it chooses. The State refers us to Cruz v. State, 189 So. 3d

822, 829 (Fla. Dist. Ct. App. 2015), where a Florida appellate court held

that it did not violate the Fifth Amendment for a defendant’s pretrial stand-

your-ground hearing testimony to be used against him at trial. But there

is a critical difference between Florida and Iowa. In Florida, stand-your-

ground is an additional immunity created by the legislature that may be

raised by the defendant in a separate pretrial hearing. See Fla. Stat. Ann.

§ 776.032(1) (West, Westlaw current through 2019 1st Reg. Sess.). Even

if the defendant skips or loses the stand-your-ground hearing, he or she

is not precluded from submitting justification to the jury as an affirmative

defense at trial. See Peterson v. State, 983 So. 2d 27, 29 (Fla. Dist. Ct.

App. 2008). In short, a defendant who wants to jealously guard his or her

privilege against self-incrimination can pass up the pretrial hearing and

go directly to trial.

But here the legislature did not limit the applicability of Iowa Code

section 704.2B to the expanded justification defense that it enacted in

2017. The reporting requirement—as carried forward in Instruction

No. 36—applies to any assertion of the justification defense in a homicide

case. Justification is a historical common law defense, see, e.g., State v.

Kennedy, 20 Iowa 569, 571–72 (1866), and the effect of the district court’s

instruction is to burden the traditional assertion of that defense in the
 19

traditional way simply because the defendant exercised his or her

constitutional right not to self-report his or her conduct to the authorities.

For all these reasons, we find that Gibbs’s Fifth Amendment rights

as incorporated through the Fourteenth Amendment were violated when,

over his objection, the district court gave a jury instruction paraphrasing

Iowa Code section 704.2B(1). 6

C. Was Any Error Harmless Beyond a Reasonable Doubt? The

State argues that even if there was error in giving this instruction, it was

harmless beyond a reasonable doubt. “In order for a constitutional error

to be harmless, the court must be able to declare it harmless beyond a

reasonable doubt.” State v. Simmons, 714 N.W.2d 264, 275 (Iowa 2006)

(quoting State v. Deases, 518 N.W.2d 784, 791 (Iowa 1994)).

After careful review of the record, we find the error harmless beyond

a reasonable doubt. The evidence of guilt was overwhelming. This was

the rare murder case where the murder was captured on video. The video

shows Gibbs entering the scene and shooting at Wessels as Wessels is

backing up, withdrawing, and disengaging. Other eyewitnesses

corroborated the video. Even when Gibbs was confronted with the video’s

existence, Gibbs repeatedly lied, denying he was the shooter. Gibbs also

dissembled about his clothing and tried to lead the police astray by giving

them a cell phone he had not been using for months.

Gibbs called two witnesses at trial, but one was shown to be heavily

biased and in any event said she didn’t remember seeing Gibbs or the

shooting. The other witness essentially supported the State’s version of

events.

6Because we resolve this issue under the Federal Constitution, we do not reach

the issue of whether there was a violation of article I, section 9 of the Iowa Constitution.
We also do not reach the issue of whether article I, section 9 has been properly raised.
That issue has not been briefed or argued by any party.
 20

In sum, even though instructing the jury that a homicide defendant

is required to notify a law enforcement agency of his or her use of deadly

force violates the defendant’s Fifth Amendment rights, here any error was

harmless beyond a reasonable doubt because the evidence of guilt was so

strong and that of justification was so weak. 7

One might argue that there is a tension between our harmless error

conclusion and our conclusion that a jury instruction on Iowa Code

section 704.2B violates the defendant’s Fifth Amendment rights. There

isn’t. The instruction unconstitutionally penalizes the defendant’s silence

and is therefore improper to use in all cases, but in this case the error was

harmless. Similarly, a Griffin violation unconstitutionally penalizes a

defendant’s silence, but is nonetheless subject to a harmless error

analysis. See United States v. Hasting, 461 U.S. 499, 509, 103 S. Ct. 1974,

1980 (1983). 8

7In his pro se brief, Gibbs asserts that he was denied the right to a fair and
impartial trial, denied due process and equal protection of the laws, and denied the right
to present his defense due to (1) the failure of the jury to represent a fair cross section of
the community and (2) juror bias on the part of four jurors.
As to Gibbs’s first claim, he made no objection at the time of trial, so error is not
preserved. In any event, Gibbs merely asserts that the jury “eventually chosen” did not
reflect the racial composition of his community. The fair-cross-section requirement,
however, applies to the venire, not the final twelve members who are seated. See State v.
Moore, 469 N.W.2d 269, 272 (Iowa Ct. App. 1991).
As to Gibbs’s claim regarding juror bias, one of the four jurors was stricken, and
her statements occurred when she was questioned individually outside the presence of
other jurors. Gibbs did not preserve error as to the other three jurors either because his
counsel did not request the juror be stricken for cause or because counsel did not comply
with the procedure set forth in State v. Jonas, 904 N.W.2d 566, 583–84 (Iowa 2017). In
any event, Gibbs’s pro se brief takes the jurors’ comments out of context and disregards
other statements by these three jurors indicating that they could be fair and impartial.
8In his pro se brief, Gibbs asserts that he was denied the right to a fair and
impartial trial, denied due process and equal protection of the laws, and denied the right
to present his defense due to (1) the failure of the jury to represent a fair cross section of
the community and (2) juror bias on the part of four jurors.
As to Gibbs’s first claim, he made no objection at the time of trial, so error is not
preserved. In any event, Gibbs merely asserts that the jury “eventually chosen” did not
reflect the racial composition of his community. The fair-cross-section requirement,
 21

V. Conclusion.

For the foregoing reasons, we affirm Gibbs’s conviction and

sentence.

AFFIRMED.

Christensen, C.J., and Appel, Waterman, and Oxley, JJ., join this

opinion. McDonald, J., files a concurring opinion in which Oxley, J., joins

as to division I.

however, applies to the venire, not the final twelve members who are seated. See State v.
Moore, 469 N.W.2d 269, 272 (Iowa Ct. App. 1991).
As to Gibbs’s claim regarding juror bias, one of the four jurors was stricken, and
her statements occurred when she was questioned individually outside the presence of
other jurors. Gibbs did not preserve error as to the other three jurors either because his
counsel did not request the juror be stricken for cause or because counsel did not comply
with the procedure set forth in State v. Jonas, 904 N.W.2d 566, 583–84 (Iowa 2017). In
any event, Gibbs’s pro se brief takes the jurors’ comments out of context and disregards
other statements by these three jurors indicating that they could be fair and impartial.
 22

#18–1298, State v. Gibbs

McDONALD, Justice (concurring specially in the judgment).

The Iowa Code requires a person who uses deadly force to, among

other things, “notify or cause another to notify a law enforcement agency

about the person’s use of deadly force within a reasonable time period after

the person’s use of the deadly force.” Iowa Code § 704.2B(1) (2018). The

district court instructed the jury on the applicable law, and the parties

argued to the jury the inferences, if any, to be drawn from the defendant’s

failure to comply with the applicable law. The majority concludes the

district court’s instruction on the applicable law violated the defendant’s

privilege against self-incrimination. With this, I respectfully disagree.

Because I conclude the defendant has failed to establish a violation of his

constitutional rights, however, I would affirm the defendant’s conviction.

I thus respectfully concur in the judgment.

I.

I first address the defendant’s claim arising under the Iowa

Constitution. The defendant contends the district court’s instruction

violated his right to due process and right to a fair trial under article I,

section 9 of the Iowa Constitution. In my view, the defendant waived his

state constitutional claim. The defendant failed to develop an argument

or cite authority in support of his claim. In the past, this court has

excused a party’s failure to cite authority in support of a state

constitutional claim. Going forward, this court should hold a party raising

a state constitutional claim must brief the claim in a separate brief point

with citations to relevant Iowa authority and the failure to do so

constitutes waiver of the claim. See Iowa R. App. P. 6.903(2)(g)(3) (“Failure

to cite authority in support of an issue may be deemed waiver of that

issue.”).
 23

A.

It is a well-established principle that a party’s failure to sufficiently

identify and brief an issue constitutes waiver of the issue. The failure to

clearly identify an issue constitutes waiver. See Goode v. State, 920

N.W.2d 520, 524 (Iowa 2018) (discussing the specificity requirement). The

failure to make an argument in support of an issue constitutes waiver.

See State v. Vaughan, 859 N.W.2d 492, 503 (Iowa 2015) (finding waiver

where party presented “no argument in support of his contention”); State

v. Short, 851 N.W.2d 474, 479 (Iowa 2014) (declining to address the merits

of arguments not made, “as under our rules and our precedents they have

been waived in this appeal”); State v. Seering, 701 N.W.2d 655, 661 (Iowa

2005) (“In the absence of an argument on these allegations [on appeal], we

deem them waived.”), superseded by statute on other grounds, 2009 Iowa

Acts ch. 119, § 3 (codified at Iowa Code § 692A.103 (Supp. 2009)). The

failure to make more than a perfunctory argument constitutes waiver. See

State v. Tyler, 867 N.W.2d 136, 166 n.14 (Iowa 2015) (indicating a “passing

reference” in a brief is insufficient). The failure to cite any authority in

support of an issue constitutes waiver. See Iowa R. App. P. 6.903(2)(g)(3)

(“Failure to cite authority in support of an issue may be deemed waiver of

that issue.”); James v. State, 858 N.W.2d 32, 34 (Iowa Ct. App. 2014)

(“James also cites no authority supporting the ‘deprivation of services’

argument. Accordingly, he has waived error on the argument, even if it is

properly before us.”).

In this case, Gibbs waived his argument arising under the Iowa

Constitution. The entirety of the defendant’s argument in support of his

state constitutional claim is two sentences. At the beginning of his brief,

Gibbs notes that “Iowa courts are free to interpret the state constitution

more stringently than its federal counterpart, ‘providing greater protection
 24

for our citizen’s constitutional rights.’ ” Def. Br. 21 (quoting Nguyen v.

State, 878 N.W.2d 744, 755 (Iowa 2016)). At the end of his brief, Gibbs

states, “Further, due to the violation of [his] Fifth Amendment rights,

Gibbs was denied his right to a fair trial under article I, § 9 of the Iowa

Constitution.” While Gibbs identified a state constitutional claim, he did

not make more than a perfunctory argument in support of the state

constitutional claim, and he did not cite any authority in support of his

state constitutional claim. Gibbs’s perfunctory argument without citation

to any authority constitutes waiver of his state constitutional claim. See

Iowa R. App. P. 6.903(2)(g)(3); Tyler, 867 N.W.2d at 166 n.14; Vaughan,

859 N.W.2d at 503; Short, 851 N.W.2d at 479; Seering, 701 N.W.2d at 661;

State v. Juste, 939 N.W.2d 664, 677 (Iowa Ct. App. 2019) (holding the

defendant waived an argument after citing only a single inapposite case in

support of the argument); James, 858 N.W.2d at 34.

B.

Gibbs’s failure to brief his state constitutional claim is not atypical,

but we have excused this failure as a matter of prudence. As we noted in

Short, “Notwithstanding the development of independent state

constitutional law, in many cases lawyers do not advocate an Iowa

constitutional standard different from the generally accepted federal

standard.” 851 N.W.2d at 491. In the past, “[a]s a matter of prudence, we

have adopted the approach in these cases that we will utilize the general

standard urged by the parties, but reserve the right to apply the standard

in a fashion different than the federal caselaw.” Id.; see State v. Kuhse,

937 N.W.2d 622, 631 n.3 (Iowa 2020) (Appel, J., concurring specially)

(stating the defendant did not cite either the Federal or Iowa Constitution,

which allowed the court to apply the federal standard for the purposes of

Iowa law while “reserving the right to apply the federal standard more
 25

stringently than the federal courts”); Behm v. City of Cedar Rapids, 922

N.W.2d 524, 566 (Iowa 2019) (“The plaintiffs have not suggested that we

should follow different substantive standards under the Iowa Constitution

than would be applied to procedural due process claims under the Federal

Constitution. As a result, we apply the substantive federal standards,

reserving the right to apply these standards in a more stringent fashion

than under federal caselaw.”); State v. Graham, 897 N.W.2d 476, 481 (Iowa

2017) (“[W]e do not necessarily apply the federal standards in a fashion

identical to the United States Supreme Court.”); State v. Lindsey, 881

N.W.2d 411, 427 (Iowa 2016) (noting that while “we apply the federal

framework for the purpose of this case,” we also “reserve the right to apply

that framework in a fashion different from federal caselaw”); State v. Pals,

805 N.W.2d 767, 771–72 (Iowa 2011) (“Even where a party has not

advanced a different standard for interpreting a state constitutional

provision, we may apply the standard more stringently than federal case

law.”).

This court should no longer excuse a party’s inadequate briefing on

a state constitutional claim by defaulting to the federal standard but

reserving the right to apply the federal standard in a different fashion. At

least three reasons dictate this conclusion. First, our decision to excuse

inadequate briefing by applying the federal standard but reserving the

right to reach a different result is not consistent with the adversarial

process. We have an adversarial legal system. In our system, courts do

not direct parties on what issues to raise. In our system, courts afford

parties the freedom to choose what issues to raise. This freedom, however,

imposes corresponding duties on parties. With respect to appellate

practice, one of those duties is the duty to sufficiently brief an issue to

allow for meaningful appellate review. This means when a party advances
 26

a claim involving questions of state constitutional law, it is incumbent

upon the party to actually research state constitutional law, actually make

an argument regarding state constitutional law, and actually cite authority

relevant to state constitutional law. Our cases that excuse this

requirement are inconsistent with the adversarial process. See Goode, 920

N.W.2d at 524 (stating judicial restraint requires the parties to raise and

brief the issues); In re S.P., 719 N.W.2d 535, 539–40 (Iowa 2006) (stating

“the court is prohibited from assuming the role of an advocate” and calling

for “what Edmund Burke described as the ‘cold neutrality of an impartial

judge’ ” (quoting State v. Glanton, 231 N.W.2d 31, 35 (Iowa 1975))).

Second, this court’s decision to excuse inadequate briefing by

substituting Iowa constitutional law with federal constitutional law is

inconsistent with this court’s duty to determine the meaning of the state

constitution. This court is the final arbiter of the meaning of the Iowa

Constitution, not the Supreme Court of the United States:

We are asked by appellants’ counsel to change the later
ruling of this court and abandon the principles of the
adjudications so frequently heretofore announced . . . . This
we are asked to do, not because these rulings and the
principles of construction of our Constitution upon which they
are based are unsound, but because the Supreme Court of the
United States, which is termed, in the language of appellants’
counsel, the final arbiter upon these questions, has
disregarded the decisions of this court, and in cases before it,
has overruled them.

The questions determined, and upon which there has
thus arisen a conflict between this court and the federal
courts, are purely those arising upon the construction of the
laws and Constitution of our own State. The language of
counsel is, therefore, incorrect.

The Supreme Court of the United States is not in cases of
this kind the final arbiter. That august tribunal, the court of last
resort in all cases within the federal jurisdiction, as prescribed
by the Constitution and laws of the Union, is not charged with
the grave duty and great power of construing the Constitution
and laws of the States, except where they may be in conflict
 27
with the federal laws and Constitution, and of establishing
thereby a rule of construction obligatory upon the State courts.
In questions of this kind it is, in no sense, the final arbiter, but
by a course of adjudications beginning at the foundation of the
government and extending to the present time, it is required to
look to the courts of the States for the rules of construction of
their respective laws and Constitutions. Upon such questions,
then, it is, in law and in fact, inferior in authority to the courts
of the States. It has the power to disregard the decision of the
State courts upon such questions and to enforce its own
decisions in a class of cases over which it has jurisdiction; but
the superior authority of its decisions upon these questions
has not been and never can be admitted. We can not,
therefore, be expected to conform our rulings to the opinion of
that court upon questions of this character when they are in
conflict with the adjudications of this court.

McClure v. Owen, 26 Iowa 243, 248–50 (1868) (emphasis added). Just last

term, in Brown, we “acknowledge[d] our duty to interpret [the Iowa

Constitution] independently.” State v. Brown, 930 N.W.2d 840, 847 (Iowa

2019).

The duty of independent interpretation requires more than adopting

the federal standard but choosing to apply it differently. The duty of

independent interpretation requires an investigation into the meaning of

our constitution. As I noted in Brown,

[T]his court has a duty to independently interpret the Iowa
Constitution. This court discharges that duty by looking to
the text of the document through the prism of our precedent,
tradition, and custom. This court’s interpretation of the Iowa
Constitution may be the same as the Supreme Court’s
interpretation of a parallel provision of the Federal
Constitution. This court’s interpretation of the Iowa
Constitution may be different than the Supreme Court’s
interpretation of a parallel provision of the Federal
Constitution. But this court’s interpretation of the Iowa
Constitution is not dictated by the Supreme Court’s
precedents under the incorporation doctrine of the Federal
Constitution.

Id. at 861 (McDonald, J., concurring specially). Justices Appel and

Wiggins agreed the duty of independent interpretation means more than

“importing whole hog” the federal framework:
 28
Frankly, I have very little interest in importing whole hog to
Iowa the approach adopted by the Supreme Court in
Washington, D.C. Not only should we not incorporate the
federal cases, there should be no presumption, or special
weight, given to the Supreme Court’s precedents. We should
think for ourselves.

That said, I agree with Justice McDonald that there
should be no artificial presumption that the Iowa Constitution
is more protective than federal caselaw in any given case.
Instead, we should independently examine each case, free
from any predisposition, and engage in a thorough review of
plausible legal options without any artificial doctrines that
block independent thinking. In light of Justice McDonald’s
opinion, it is clear that a majority of this court continues to
embrace this approach.

Id. at 887 (Appel, J., dissenting). I agree with Justice Appel’s conclusion

that we should think for ourselves on questions of state constitutional law,

and I would go further—we have a duty to think for ourselves on questions

of state constitutional law. Applying the federal standard but reserving

the right to reach a different result does not discharge our duty of

independent interpretation.

Third, and related, this court’s decision to excuse inadequate

briefing by applying the federal standard but reserving the right to apply

the federal standard in a different fashion rests on the presumptions

(1) that federal law and state law with respect to parallel provisions of the

constitution are largely the same due to the incorporation doctrine and

(2) that federal law sets the floor but not the ceiling with respect to the

right at issue. The presumptions are wrong. See id. at 858 (McDonald,
J., concurring specially) (“Brown’s contention that the incorporation

doctrine dictates the minimum required content of state constitutional law

misapprehends the incorporation doctrine. Incorporation did not change

the substantive content of state constitutional law; it changed the

substantive content of federal constitutional law.”). “The Supreme Court’s
 29

Fourteenth Amendment jurisprudence does not dictate the substance of

the state law or the remedy for any violation of the same.” Id.

For these reasons, I would hold a party raising a state constitutional

claim must brief the claim in a separate brief point with citations to

relevant Iowa authority and the failure to do so constitutes waiver of the

claim. See Iowa R. App. P. 6.903(2)(g)(3); State v. LaMar, 260 Iowa 957,

970, 151 N.W.2d 496, 503 (1967) (“We have adequate procedure, if

followed, to properly determine the constitutional question involved and

there is a legitimate interest and a sound public purpose to be served by

a procedural rule which requires that . . . this court be apprised of the

question of law involved in the manner prescribed by the statute and our

decisions.”).

C.

This concern is not merely a procedural or academic concern.

Consider the significant textual difference between the Federal and Iowa

Constitutions regarding the privilege against self-incrimination and how

that textual difference resulted in wholly different federal and state

doctrines. As the discussion below will show, because of the potentially

significant differences between federal constitutional law and state

constitutional law, a party’s perfunctory statement that this court can use

the federal standard but apply it more stringently to determine the

substantive content Iowa constitutional law is not legally sound.

The most obvious difference between the Federal and Iowa

Constitutions regarding the privilege against self-incrimination is textual.

The Fifth Amendment to the United States Constitution provides, “No

person . . . shall be compelled in any criminal case to be a witness against

himself . . . .” U.S. Const. amend. V. The Iowa Constitution does not have

a corresponding or parallel provision regarding this right. Over the course
 30

of time, the textual distinction between the two constitutions resulted in

significantly different federal and state doctrine.

Some background is necessary to understand the divergence in

doctrine. At the time of Iowa’s founding, by statute, a criminal defendant

was not competent to testify at trial. See State v. Ferguson, 226 Iowa 361,

364–67, 283 N.W. 917, 918–19 (1939) (discussing versions of the Iowa

Code from 1851 through 1873 that prohibited a defendant from testifying),

overruled by State v. Johnson, 257 Iowa 1052, 1056, 135 N.W.2d 518, 521

(1965). Because the defendant was statutorily barred from testifying at

trial, it was “obvious[]” that the prosecution could not comment upon the

defendant’s trial silence. See id. at 364, 283 N.W. at 919 (“With the

defendant in a criminal case declared to be incompetent to testify in his

own behalf, obviously his failure to testify would not be a matter upon

which the county attorney could comment.”).

The statutory bar prohibiting criminal defendants from testifying at

trial was eventually lifted. The Code of 1897 provided a defendant could

testify at trial but the prosecutor was prohibited from commenting on a

defendant’s trial silence if a defendant elected not to testify:

Defendants in all criminal proceedings shall be competent
witnesses in their own behalf, but cannot be called as
witnesses by the state; and should a defendant not elect to
become a witness, that fact shall not have any weight against
him on the trial, nor shall the attorney or attorneys for the
state during the trial refer to the fact that the defendant did
not testify in his own behalf; and should they do so, such
attorney or attorneys will be guilty of a misdemeanor, and
defendant shall for that cause alone be entitled to a new trial.

Iowa Code § 5484 (1897).

Shortly after the passage of this provision, this court wrestled with

a self-incrimination question. In State v. Height, the defendant was

charged with “having sexual intercourse with a female under the age of
 31

consent.” 117 Iowa 650, 652, 91 N.W. 935, 935 (1902). To prove the

defendant committed the offense, the state sought evidence that the

defendant had a venereal disease and transmitted the same to the child.

See id. To obtain evidence of the disease, the police arrested the

defendant. See id. at 653–54, 91 N.W. at 935–36. In the presence of the

county attorney and the arresting officer, the state forced the defendant to

undergo a medical examination of his “privates.” Id. at 653–54, 91 N.W.

at 935–36. The results of the medical examination were admitted at trial

over the defendant’s objection. See id. at 652, 91 N.W. at 935. While

recognizing the Iowa Constitution contained no “specific provision”

regarding self-incrimination, the court concluded the privilege against

compulsory self-incrimination was included within the concept of due

process under article I, section 9 of the Iowa Constitution. Id. at 659–61,

91 N.W. at 938 (“[S]uch an investigation as that made in the case before

us is without authority as against defendant’s objection, and the receipt of

the evidence was error, on the ground that it was the result of the invasion

of defendant’s constitutional right, impliedly guaranteed under the

provision of our constitution as to due process of law, not to criminate

himself.”). The court held the forced medical examination violated the

defendant’s right to due process, the evidence should have been excluded,

and the defendant was entitled to a new trial. See id. at 665, 667, 91 N.W.

at 940. Height did not address what use, if any, the prosecutor could make

of the defendant’s refusal to voluntarily submit to the medical

examination.

In 1929, the legislature repealed the provision disallowing the

prosecutor from commenting on the defendant’s failure to testify at trial.

See Ferguson, 226 Iowa at 365–66, 283 N.W. at 919 (discussing legislative

history). In Ferguson, this court examined the constitutional implications
 32

of the statutory repeal. The defendant was convicted of stealing eleven

head of cattle. Id. at 362, 283 N.W. at 918. In his opening argument, the

prosecutor, over the defendant’s objection, commented on the fact the

defendant was not going to testify at trial. Id. at 363, 283 N.W.2d at 918.

On appeal, the defendant contended the State’s use of the defendant’s trial

silence as substantive evidence of guilt violated the defendant’s right to

due process under article I, section 9 of the Iowa Constitution. Id. at 363–

64, 283 N.W. at 918. After surveying the relevant authorities, the court

rejected the defendant’s due process argument:

Due process of law requires that the accused be
properly charged by an indictment or information and be given
adequate information in regard to the nature of the charge
against him, that he be accorded representation by counsel, a
jury trial in open court, and that the state introduce such
competent evidence which, if believed, would be sufficient to
establish a defendant’s guilt beyond a reasonable doubt,
without compelling the defendant, against his will, to testify
against himself. When this has been accomplished, the
defendant must be accorded full opportunity to introduce his
evidence to meet that introduced by the state. Defendant may
choose to introduce no evidence. He may choose to offer only
witnesses other than himself. He may choose to testify in his
own behalf. The choice, in each event, is that of the
defendant. Having made his choice, if he chooses not to testify
in his own behalf, the effect of such choice, as an inference or
presumption of guilt, does not come within the contemplation
of what constitutes due process of law. If the effect of such
choice is to be determined by constitutional provision, it must
be determined by some provision other than the due process
clause. If the constitution contains only the due process
clause, as does our constitution, then the effect to be given
the failure to testify is a matter for the legislature to determine.
Were we to sustain appellant’s contention herein, the result
would be that, under the guise of construing the due process
clause, we would, in effect, re-enact Section 13891 of the Code
of 1927, which the 43rd Gen. Assem., c. 269, in 1929, chose
to repeal. This we cannot do.

Id. at 372–73, 283 N.W. at 922–23; see State v. Graff, 228 Iowa 159, 173,

290 N.W. 97, 103 (1940) (“While such failure to testify did not deprive the

defendant of the presumption of innocence, the jury was entitled to
 33

consider it as an inference of guilt, and the county attorney was entitled

to comment upon it.”).

Just over two years later, this court extended the rationale of

Ferguson to allow the prosecutor to use the defendant’s pretrial refusal to

provide information as substantive evidence of guilt. In State v. Benson,

230 Iowa 1168, 1171–72, 300 N.W. 275, 277 (1941), this court recognized

the due process clause of the Iowa Constitution prohibited a defendant

from being compelled to provide information, as recognized in Height, but

concluded it did not prohibit the state from using the defendant’s pretrial

refusal to take a blood test as substantive evidence of guilt. The court

reasoned,

Defendant did not take the stand in his own defense.
He could not be compelled to testify. However, the fact that
he did not testify was a circumstance to be considered by the
jury and was a proper subject for comment by the county
attorney. His refusal to testify is analogous to his refusal to
submit to a blood test. Were we to concede that, pursuant to
our decisions in State v. Height, Wragg v. Griffin, [185 Iowa
243, 170 N.W. 400 (1919)], and State v. Weltha, [228 Iowa
519, 292 N.W. 148 (1940)], defendant could not be compelled
to submit to a blood test, that does not mean that his refusal
to submit to it cannot be shown and considered. He cannot
be compelled to testify. Yet his refusal to testify can be
considered and commented upon. If he cannot be compelled
to submit to a blood test, it is because he cannot be compelled
to give evidence. But, since his refusal to give evidence by
testifying can be considered, why cannot his refusal to give
evidence by submitting to a blood test be likewise considered?
We think that it can be.

Id. (citations omitted).

In support of its holding, the Benson court relied on the fact that the

Iowa Constitution does not contain a provision prohibiting self-

incrimination:

Our constitution contains no express provision prohibiting
self-incrimination. The only constitutional provision that
would appear to guarantee such protection is the due process
clause. The statute is Section 13890 of the Code, 1939, and
 34
provides as follows: “Defendants in all criminal proceedings
shall be competent witnesses in their own behalf, but cannot
be called as witnesses by the state.” Defendant was not called
as a witness by the state. He was not even called as such in
his own behalf. The statutory prohibition was fully
recognized. We then have the question remaining: Does the
due process clause render the testimony of the deputy sheriff
inadmissible? We answer: No. It is proper to show the
defendant’s conduct, demeanor and statements (not merely
self-serving), whether oral or written, his attitude and
relations toward the crime, if there was one. These are
circumstances that may be shown. Their weight is for the jury
to determine.

Id. (citation omitted).

After Ferguson and Benson, the United States Supreme Court began,

through the process of selective incorporation, to constitutionalize

criminal procedure and expand the Supreme Court’s authority over state

legal processes. See Pointer v. Texas, 380 U.S. 400, 409, 85 S. Ct. 1065,

1070 (1965) (Harlan, J., concurring in the result) (“The concept of

Fourteenth Amendment due process . . . recognizes that our Constitution

tolerates, indeed encourages, differences between the methods used to

effectuate legitimate federal and state concerns . . . . The philosophy of

‘incorporation,’ on the other hand, subordinates all such state differences

to the particular requirements of the Federal Bill of Rights and increasingly

subjects state legal processes to enveloping federal judicial authority.”

(citations omitted)).

As part of the expansion of federal authority, in 1964, the Supreme

Court held “the Fifth Amendment’s exception from compulsory self-

incrimination is also protected by the Fourteenth Amendment against

abridgment by the States.” Malloy v. Hogan, 378 U.S. 1, 6, 84 S. Ct. 1489,

1492 (1964). In the following year, the Court held “the Fifth Amendment,

in its direct application to the Federal Government and in its bearing on

the States by reason of the Fourteenth Amendment, forbids either
 35

comment by the prosecution on the accused’s silence or instructions by

the court that such silence is evidence of guilt.” Griffin v. California, 380

U.S. 609, 615, 85 S. Ct. 1229, 1233 (1965). Griffin specifically

acknowledged Iowa had a different rule due to “[t]he absence of an express

constitutional privilege against self-incrimination.” Id. at 611 n.3, 85

S. Ct. at 1231 n.3.

Immediately after Griffin, this court was presented with the question

of whether a district court erred in instructing the jury it could consider a

defendant’s failure to testify as “an inference of guilt.” Johnson, 257 Iowa

at 1055, 135 N.W.2d at 521. The court correctly concluded Griffin

prohibited the instruction. In so doing, however, the court appeared to

conclude Griffin changed Iowa constitutional law. See id. (stating

“[a]lthough Iowa was listed as one of the six states which has no express

constitutional privilege against self-incrimination or laws forbidding

comment on failure to testify,” the court “was constrained to follow” the

change in law announced in Griffin). To the extent the Johnson court so

concluded, its conclusion was in error. See Brown, 930 N.W.2d at 861

(“But this court’s interpretation of the Iowa Constitution is not dictated by

the Supreme Court’s precedents under the incorporation doctrine of the

Federal Constitution.”); Schmidt v. State, 909 N.W.2d 778, 793 (Iowa 2018)

(“Because we ‘jealously’ safeguard our authority to interpret the Iowa

Constitution on our own terms, we do not employ a lockstep approach in

following federal precedent although United States Supreme Court cases

are ‘persuasive.’ ” (quoting State v. Ochoa, 792 N.W.2d 260, 267 (Iowa

2010))). Griffin changed only federal law and not state law. See LaMar,

260 Iowa at 969, 151 N.W.2d at 503 (recognizing “[t]he change brought

about by Griffin gave defendant a federal constitutional right”).
 36

Even after Griffin and Johnson, this court continued to hold that the

state could use the defendant’s pretrial silence as substantive evidence of

guilt and that the district court could provide instruction regarding the

defendant’s pretrial silence. In State v. Myers, the defendant was charged

with committing “sodomy” on a child. See 258 Iowa 940, 942, 140 N.W.2d

891, 892 (1966). Upon being accused of the crime, the defendant

remained silent, and the prosecutor introduced into evidence the

defendant’s pretrial silence. See id. at 948–49, 140 N.W.2d at 896. The

district court instructed the jury “such silence may be considered along

with all other evidence in determining the guilt or innocence of the

defendant.” Id. at 949, 140 N.W.2d at 896. This court distinguished

Griffin, explaining that case dealt only with “comment by the prosecution

on the accused’s failure to testify.” Id. at 950, 140 N.W.2d at 897

(emphasis added). The court reasoned that because the defendant had

not asserted any right to remain silent, the “instruction did not penalize

[the defendant] for his failure to speak out.” Id. at 951, 140 N.W.2d at

898. Thus the court found the instruction was not “violative of the Fifth

Amendment.” Id. at 951, 140 N.W.2d at 897.

Later, in State v. Holt, the court reaffirmed the Benson rule post

Griffin. See 261 Iowa 1089, 156 N.W.2d 884 (1968). The court noted, “For

over 100 years it has been the law of Iowa that it is proper to show a

defendant’s conduct, demeanor, voluntary statements and attitude toward

the crime.” Id. at 1093, 156 N.W.2d at 886. The court reaffirmed that a

defendant’s pretrial “act of silence may be shown to the jury.” Id. (quoting

Benson, 230 Iowa at 1171, 300 N.W. at 277). The Holt court also affirmed

that it was permissible for the district court to instruct the jury it could

consider as substantive evidence of guilt what the “defendant did or

refused to do or said” prior to trial. See id. at 1096, 156 N.W.2d at 888.
 37

I need not belabor the point any further—textual differences

between the Federal Constitution and the Iowa Constitution regarding the

privilege against self-incrimination have resulted in different doctrine. The

Iowa Constitution, as originally understood and applied for over 100 years,

does not prohibit the district court from instructing the jury it may draw

an adverse inference from the defendant’s trial silence. In contrast, federal

constitutional law prohibits this. The Iowa Constitution, as originally

understood and applied for over 100 years, does not prohibit the district

court from instructing the jury it may draw an adverse inference from the

defendant’s pretrial silence. In contrast, federal constitutional law appears

unsettled. Admittedly, the differences in doctrine have been obscured by

selective incorporation and the passage of time. But the differences in

doctrine nonetheless remain.

D.

Iowa has a rich constitutional history. We should no longer allow

parties to obscure this rich constitutional history by raising a claim under

the state constitution but then discussing only the federal standard on the

assumption the standards are the same. Allowing the parties to continue

to proceed in this manner is contrary to the adversarial process, is

contrary to the rules of appellate procedure, and is bad substantive law.

As Justice Stevens explained,

“The right question,” however, “is not whether a state’s
guarantee is the same as or broader than its federal
counterpart as interpreted by the Supreme Court. The right
question is what the state’s guarantee means and how it
applies to the case at hand. The answer may turn out the
same as it would under federal law. The State’s law may prove
to be more protective than federal law. The state law also may
be less protective. In that case the court must go on to decide
the claim under federal law, assuming it has been raised.”
 38

Massachusetts v. Upton, 466 U.S. 727, 738, 104 S. Ct. 2085, 2091, (1984)

(quoting Hans A. Linde, E Pluribus—Constitutional Theory and State

Courts, 18 Ga. L. Rev. 165, 179 (1984)).

II.

I next address Gibbs’s facial challenge to the statute arising under

the Federal Constitution. The Fifth Amendment to the United States

Constitution provides, “No person . . . shall be compelled in any criminal

case to be a witness against himself . . . .”

By definition, “a necessary element of compulsory self-incrimination

is some kind of compulsion.” Hoffa v. United States, 385 U.S. 293, 304,

87 S. Ct. 408, 414 (1966). “As a general rule, compulsion is present when

the state threatens to inflict ‘potent sanctions’ unless the constitutional

privilege is waived or threatens to impose ‘substantial penalties’ because

a person elects to exercise that privilege.” State v. Iowa Dist. Ct., 801

N.W.2d 513, 518 (Iowa 2011) (quoting Lefkowitz v. Cunningham, 431 U.S.

801, 805, 97 S. Ct. 2132, 2135–36 (1977)).

Section 704.2B(1), on its face, does not violate the Fifth Amendment

because it does not compel anything. See Iowa Code § 704.2B(1)(2018).

Section 704.2B(1), on its face, does not inflict any potent sanction or

substantial penalty for the failure to notify law enforcement of the use of

deadly force. Indeed, the statute does not impose any sanction or penalty

for the failure to notify law enforcement of the use of deadly force. In the

absence of “some kind of compulsion” the statute does not violate the Fifth

Amendment. See Hoffa, 385 U.S. at 304, 87 S. Ct. at 414.

The lack of penalty or sanction in the statute distinguishes this case

from the cases upon which Gibbs relies. In every case upon which Gibbs

relies, the government sought to impose penalties or criminal sanctions

for the failure to provide information to the government. See, e.g., Grosso
 39

v. United States, 390 U.S. 62, 64–66, 72, 88 S. Ct. 709, 711–13, 715 (1968)

(holding the defendant could not be prosecuted for the failure to pay the

excise tax on gambling winnings); Marchetti v. United States, 390 U.S. 39,

60–61, 88 S. Ct. 697, 709 (1968) (vacating conviction where the defendant

was convicted for failing to register and pay a tax on illegal gambling

winnings); Albertson v. Subversive Activities Control Bd., 382 U.S. 70, 75,

81, 86 S. Ct. 194, 197, 200 (1965) (setting aside registration orders where

the challengers were subject to “very heavy penalties” and criminal

sanction for the failure to register in accord with the orders issued by the

board); State v. Akins, 423 P.3d 1026, 1034 (Idaho 2018) (holding the

defendant could not be criminally prosecuted for her failure to notify law

enforcement or the coroner of the death of another, the defendant’s

custody of the body, and the defendant’s failure to preserve the body).

Even then, some of the cases hold the imposition of criminal sanctions for

the failure to provide information did not violate the Fifth Amendment.

See, e.g., California v. Byers, 402 U.S. 424, 433–34, 91 S. Ct. 1535, 1540–

41 (1971) (holding no violation where the defendant was criminally

prosecuted for the failure to stop and identify himself after being involved

in a motor vehicle accident); United States v. Sullivan, 274 U.S. 259, 263,

47 S. Ct. 607, 607 (1927) (finding no violation where the defendant was

convicted of willfully refusing to make a tax return as required by the

Internal Revenue Code).

Even if the reporting statute contained a penalty provision, the

statute, on its face, would not be unconstitutional. Reporting statutes of

this type are deeply rooted in the common law and have been approved by

the Supreme Court:

Concealment of crime has been condemned throughout our
history. The citizen’s duty to “raise the ‘hue and cry’ and
report felonies to the authorities,” was an established tenet of
 40
Anglo-Saxon law at least as early as the 13th century. The
first Congress of the United States enacted a statute imposing
criminal penalties upon anyone who, “having knowledge of the
actual commission of [certain felonies,] shall conceal, and not
as soon as may be disclose and make known the same to [the
appropriate] authority . . . .” Although the term “misprision of
felony” now has an archaic ring, gross indifference to the duty
to report known criminal behavior remains a badge of
irresponsible citizenship.

This deeply rooted social obligation is not diminished
when the witness to crime is involved in illicit activities
himself.

Roberts v. United States, 445 U.S. 552, 557–58, 100 S. Ct. 1358, 1362–63

(1980) (alterations in original) (citations omitted) (first quoting Branzburg

v. Hayes, 408 U.S. 665, 696, 92 S. Ct. 2646, 2664 (1972); and then

quoting Act of Apr. 30, § 6, 1 Stat. 113 (current version at 18 U.S.C. § 4

(2018)). The federal statute criminalizing the failure to report the

commission of a felony, enacted in the first Congress, remains good law.

See 18 U.S.C. § 4. That statute punishes the failure to report the

commission of a felony by a fine or a term of incarceration not to exceed

three years, or both. See id.

For these reasons, I conclude the defendant failed to establish

section 704.2B(1), on its face, violates the defendant’s privilege against

self-incrimination. The majority also appears to recognize the fatal defects

in Gibbs’s facial challenge to the statute. Rather than upholding the

constitutionality of the statute, however, the majority chooses to “pass
over” the issue. The majority’s implicit concession on the constitutionality

of the statute, however, undermines the remainder of the majority’s

rationale. If the statute is constitutional, and the majority does not hold

otherwise, then the district court was required to instruct the jury on the

applicable law.
 41

III.

I next address Gibbs’s contention that the district court’s instruction

regarding section 704.2B violated his Fifth Amendment right. The majority

concludes the district court’s instruction “imposes an improper penalty on

the exercise of the constitutional right to remain silent.” I respectfully

disagree. The majority’s conclusion that the jury instruction, standing

alone, creates an unconstitutional compulsion is contrary to actual

experience and historical understanding. The majority’s penalty rationale

is also contrary to the Supreme Court’s most recent self-incrimination

case, Salinas v. Texas, 570 U.S. 178, 133 S. Ct. 2174 (2013). Indeed, the

majority’s penalty rationale is contrary in some respects to each of the

opinions in the Salinas case—the three-justice plurality opinion, the two-

justice concurring opinion, and the four-justice dissenting opinion.

A.

As a matter of actual experience and historical understanding, both

the criminal law and the law of evidence subject a criminal defendant to a

strong compulsion to provide information to law enforcement after the

commission of a crime because evidence of the failure to do so is relevant

to the determination of guilt and admissible at trial. For example, our

cases hold evidence of a defendant’s failure to remain at the scene of a

crime and a defendant’s postoffense attempt to evade law enforcement is

admissible and probative of guilt. See State v. Wilson, 878 N.W.2d 203,

211 (Iowa 2016) (“It is well-settled law that the act of avoiding law

enforcement after a crime has been committed may constitute

circumstantial evidence of consciousness of guilt that is probative of guilt

itself.”); State v. Seymore, 94 Iowa 699, 707, 63 N.W. 661, 664 (1895)

(approving a jury instruction that stated, “If you find from the evidence
 42

that the defendant . . . fled to avoid arrest . . . such fact is a circumstance

which prima facie is indicative of guilt”).

We have also held a defendant’s conduct, demeanor, and silence at

the time of arrest or in the face of a criminal accusation is admissible and

relevant to the determination of guilt. See Schrier v. State, 347 N.W.2d

657, 665 (Iowa 1984) (“We find the evidence of petitioner’s demeanor and

activities immediately following his son’s injuries to be relevant and

material to the jury’s understanding of the events surrounding the victim’s

injuries. Such acts may provide a legitimate basis for inferring

consciousness of guilt.”); State v. Canada, 212 N.W.2d 430, 434 (Iowa

1973) (“It has been repeatedly held in this state that the admission of

testimony as to the conduct of a defendant when first accused of a crime

is not objectionable.” (quoting Myers, 258 Iowa at 950, 140 N.W.2d at

897)); Holt, 261 Iowa at 1093, 156 N.W.2d at 886; Benson, 230 Iowa at

1171, 300 N.W. at 276–77; State v. Pratt, 20 Iowa 267, 269 (1866) (“It

seems that there was testimony tending to show that the prisoner, when

arrested, was charged with the theft and made no reply. . . . [W]hile this

character of proof is often entitled to but little weight, there is no rule

justifying its entire exclusion. Its value is to be determined by all the

circumstances, of which the jury are the peculiar judges.”); State v. Jirak,

491 N.W.2d 794, 797 (Iowa Ct. App. 1992) (“However, even if the issue of

Sires’s testimony concerning Jirak’s silence had been correctly preserved,

such testimony is proper and does not constitute error.”).

Our caselaw is consistent with the law of other jurisdictions. More

specifically, other jurisdictions agree the failure to report a shooting is

relevant and admissible in homicide prosecutions where intent or

justification is at issue. See, e.g., People v. Halsema, No. C077933, 2017

WL 1130927, at *11 (Cal. Ct. App. Mar. 27, 2017) (unreported); Allen v.
 43

United States, 603 A.2d 1219, 1223 (D.C. 1992); People v. Grimes, 898

N.E.2d 768, 775 (Ill. App. Ct. 2008); People v. Graham, 279 N.E.2d 41, 43

(Ill. App. Ct. 1971); Johnson v. Commonwealth, No. 2007-SC-000612-MR,

2008 WL 4691694, at *6 (Ky. Oct. 23, 2008) (unreported); State v.

Patterson, 63 So. 3d 140, 149–50 (La. Ct. App. 2011); Commonwealth v.

Morgan, No. 599 WDA 2013, 2014 WL 10920399, at *9 (Pa. Super. Ct.

May 23, 2014) (unreported); Scott v. State, No. 03-07-00654-CR, 2009 WL

416513, at *12 (Tex. Ct. App. Feb. 20, 2009) (unpublished).

While the admission into evidence of Gibbs’s postoffense conduct,

including his failure to report the use of deadly force, created a compulsion

of a sort, it was not an unconstitutional compulsion. See Ohio Adult Parole

Auth. v. Woodard, 523 U.S. 272, 287, 118 S. Ct. 1244, 1253 (1998)

(“[T]here are undoubted pressures—generated by the strength of the

government’s case against him—pushing the criminal defendant to testify.

But it has never been suggested that such pressures constitute

‘compulsion’ for Fifth Amendment purposes.”); Carter v. Kentucky, 450

U.S. 288, 306, 101 S. Ct. 1112, 1122 (1981) (Powell, J., concurring) (“But

nothing in the [Self-Incrimination] Clause requires that jurors not draw

logical inferences when a defendant chooses not to explain incriminating

circumstances.”); Jenkins v. Anderson, 447 U.S. 231, 243–44, 100 S. Ct.

2124, 2132 (1980) (Stevens, J., concurring) (explaining the admissibility

of a defendant’s prearrest silence is an evidentiary question and not a

constitutional one). For example, in a very similar case, the Michigan

Court of Appeals held a homicide defendant’s privilege against self-

incrimination was not violated by the prosecutor’s arguments regarding

the defendant’s postoffense conduct:

The prosecutor’s comment that defendant fled the scene
of the crime was proper commentary to support an inference
of “consciousness of guilt.” The prosecutor’s comment that
 44
defendant waited a day before reporting the crime or turning
himself in was proper commentary on defendant’s failure to
report a crime under circumstances under which it would
have been natural to do so. The comment questioning why
defendant failed to turn over the gun was proper because it
referred to the weaknesses of the self-defense theory and
referred to prearrest conduct. Moreover, because the
prosecutor’s comments attacked the credibility of the defense
theory, the prosecutor did not impermissibly shift the burden
of proof.

People v. Camel, No. 290270, 2010 WL 199612, at *3 (Mich. Ct. App.

Jan. 21, 2010) (unpublished) (citations omitted) (quoting People v. Goodin,

668 N.W.2d 392, 396 (Mich. Ct. App. 2003)).

The majority agrees evidence of the defendant’s failure to report the

use of deadly force was relevant to the determination of guilt and

admissible. The majority also agrees the prosecutor was free to argue the

defendant’s failure to report the use of deadly force supported an inference

of guilt. The majority concludes, however, an instruction on the relevant

law crosses the constitutional line. In other words, the majority’s holding

rests on the conclusions (1) that the district court’s instruction creates

some marginal compulsion above and beyond the strength of the State’s

evidence and (2) that the marginal compulsion is of sufficient magnitude

to violate Gibbs’s Fifth Amendment rights. On these points, I disagree.

First, the majority’s conclusion that the jury instruction creates a

marginal compulsion that rises to the level of unconstitutional compulsion

seems far-fetched. The test for compulsion “is whether, considering the

totality of the circumstances, the free will” of the party “was overborne.”

United States v. Washington, 431 U.S. 181, 188, 97 S. Ct. 1814, 1819

(1977); In re Gault, 387 U.S. 1, 47, 87 S. Ct. 1428, 1454 (1967) (stating the

state compels evidence when, “whether by force or by psychological

domination, [it] overcom[es] the mind and will of the person under

investigation and depriv[es] him of the freedom to decide whether to assist
 45

the state in securing his conviction”), overruled on other grounds by Allen

v. Illinois, 478 U.S. 364, 365, 106 S. Ct. 2988, 2990 (1986).

The case for finding unconstitutional marginal compulsion is weak

here. Here, the jury was instructed as follows:

A person using deadly force is required to notify or
cause another to notify a law enforcement agency about his
use of deadly force within a reasonable time period after the
use of the deadly force, if the Defendant or another person is
capable of providing such notification.

Noticeably absent from the instruction is any suggestion from the district

court that the jury could draw an adverse inference from the defendant’s

failure to report the use of deadly force. The district court’s instruction

allowed the parties to argue what inferences, if any, should be drawn from

the defendant’s failure to report the use of deadly force. It is hard to

believe, as a factual matter, that after Gibbs shot and killed Wessels, Gibbs

felt deprived of his “freedom to decide whether to assist the state in

securing his conviction,” In re Gault, 387 U.S. at 47, 87 S. Ct. at 1454,

because he knew that if he was apprehended and charged with murder

the district court might neutrally instruct the jury on the relevant law.

Second, the district court’s provision of a jury instruction is not the
kind of compulsion about which the founders were concerned. As will be

discussed more below, this is the position of Justices Thomas and Scalia.

See Salinas, 570 U.S. at 192, 133 S. Ct. at 2184 (Thomas, J., concurring);

see also Mitchell v. United States, 526 U.S. 314, 331, 335, 119 S. Ct. 1307,

1316, 1318 (1999) (Scalia, J., dissenting) (stating “[a]s an original matter,

it would seem to me that the threat of an adverse inference does not

‘compel’ anyone to testify,” and “[o]ur hardy forebears, who thought of

compulsion in terms of the rack and oaths forced by the power of law,
 46

would not have viewed the drawing of a commonsense inference as

equivalent pressure”).

The majority’s conclusion that the district court’s instruction,

standing alone, rises to the level of unconstitutional compulsion is

contrary to actual experience and historical practice. Like Justices

Thomas and Scalia, I conclude “our hardy forebears” would be shocked to

learn the privilege against self-incrimination prevents the district court

from instructing the jury on the relevant law and allowing the lawyers to

argue the inferences to the jury.

B.

The majority opinion is also contrary to the Supreme Court’s most

recent articulation of the self-incrimination doctrine in Salinas. Because

the majority opinion conflates separate issues, it is actually contrary in

some respects to each of the opinions in the Salinas case—the three-

justice plurality opinion, the two-justice concurring opinion, and the four-

justice dissenting opinion.

1.

The majority opinion is contrary to the plurality opinion in Salinas.

In Salinas, the defendant was charged with murder. 570 U.S. at 181, 133

S. Ct. at 2177 (plurality opinion). At trial, over the defendant’s objection,

the prosecutor used the defendant’s prearrest silence as substantive

evidence of the defendant’s guilt. See id. at 182, 133 S. Ct. at 2178. The

defendant was convicted of murder, and the state courts affirmed the

defendant’s conviction. The Supreme Court granted certiorari on the case

to “resolve a division of authority in the lower courts over whether the

prosecution may use a defendant’s assertion of the privilege against self-

incrimination . . . as part of its case in chief.” Id. at 183, 133 S. Ct. at
 47

2179. The Court found it unnecessary to address that question, however,

“because [the defendant] did not invoke the privilege.” Id.

The plurality opinion held the defendant’s “Fifth Amendment claim

fail[ed] because he did not expressly invoke the privilege against self-

incrimination.” Id. at 181, 133 S. Ct. at 2178. The Court reasoned,

It has long been settled that the privilege “generally is not self-
executing” and that a witness who desires its protection “must
claim it.” Although “no ritualistic formula is necessary in
order to invoke the privilege,” a witness does not do so by
simply standing mute. Because petitioner was required to
assert the privilege in order to benefit from it, the judgment of
the Texas Court of Criminal Appeals rejecting petitioner’s Fifth
Amendment claim is affirmed.

Id. (first quoting Minnesota v. Murphy, 465 U.S. 420, 425, 427, 104 S. Ct.

1136, 1141–42 (1984); and then quoting Quinn v. United States, 349 U.S.

155, 164, 75 S. Ct. 668, 674 (1955)). The Court concluded the government

was free to make adverse use of the defendant’s silence in the absence of

express invocation. See id. at 186, 133 S. Ct. at 2180 (stating “the

prosecution’s use of [the defendant’s] noncustodial silence did not violate

the Fifth Amendment” because the defendant failed to invoke the right).

Here, as in Salinas, Gibbs never invoked his Fifth Amendment

privilege against self-incrimination. The majority thus errs in concluding
the district court’s instruction imposed a penalty “on the exercise of the

constitutional right to remain silent” when the defendant never exercised

the right. The majority’s opinion is directly contrary to the Salinas

plurality’s conclusion “that a witness must assert the privilege to

subsequently benefit from it” and “that a defendant normally does not

invoke the privilege by remaining silent.” Id. at 186, 133 S. Ct. at 2181.

2.

The majority disregards the fact that Gibbs never exercised his

constitutional right to remain silent and nonetheless holds the district
 48

court’s instruction “imposes an improper penalty on the exercise of the

constitutional right to remain silent” because the defendant never had an

opportunity to invoke the privilege. The majority notes it would be absurd

to conclude Gibbs had a duty to call the police and say, “Hi, I’m Levi Gibbs,

and I’m taking the Fifth.” The majority also notes “[t]he only practical time

to raise the Fifth Amendment was when the defendant did raise it, namely,

at the jury instruction conference.” The majority’s holding and attempt to

distinguish the Salinas plurality opinion highlight two deficiencies in the

majority’s rationale. The first factual. The second legal.

First, the majority’s assertion that Gibbs did not have an

opportunity to invoke the privilege prior to the jury instruction conference

is factually incorrect and contrary to the record. Gibbs had multiple

opportunities to invoke the privilege against self-incrimination prior to the

instruction conference, and he failed to do so. On the day of September 4,

Gibbs communicated with Detective Hedlund over the phone and by text

multiple times throughout the day, but Gibbs never invoked the privilege.

On the morning of September 5, Hedlund interviewed Gibbs for over two

hours at Gibbs’s residence, but Gibbs never invoked the privilege. On the

afternoon of September 5, Hedlund interviewed Gibbs at the law

enforcement center, but Gibbs never invoked the privilege. Instead of

invoking his privilege on the multiple occasions he interacted with police

officers, Gibbs chose to speak with the officers and provide them with false

information regarding the shooting.

Second, the majority fails to contextualize the defendant’s failure to

report the use of deadly force and tease out the constitutional implications.

In this case, the defendant’s failure to report the use of deadly force arose

in two contexts.
 49

The first context was Gibbs’s failure to report the use of deadly

force—his silence—prior to his interaction with the police. Both the

Salinas plurality and dissenting opinions conclude the adverse use and

comment on a criminal defendant’s silence prior to police interaction is not

constitutionally protected. The Salinas plurality because the defendant

never invoked the privilege. 9 The Salinas dissent because the defendant’s

silence in this context is an evidentiary question and not a constitutional

question. Salinas, 570 U.S. at 198, 133 S. Ct. at 2187–88 (Breyer, J.,

dissenting). In reaching that conclusion, the Salinas dissent relied on

Jenkins, 447 U.S. 231, 100 S. Ct. 2124. Id. In his dissenting opinion in

Salinas, Justice Breyer explained Jenkins as follows:

Jenkins killed someone, and was not arrested until he turned
himself in two weeks later. On cross-examination at his trial,
Jenkins claimed that his killing was in self-defense after being
attacked. The prosecutor then asked why he did not report
the alleged attack, and in closing argument suggested that
Jenkins’ failure to do so cast doubt on his claim to have acted
in self-defense. We explained that this unusual form of
“prearrest silence” was not constitutionally protected from use
at trial. Perhaps even more aptly, Justice Stevens’
concurrence noted that “the privilege against compulsory self-
incrimination is simply irrelevant” in such circumstances.
How would anyone have known that Jenkins, while failing to
report an attack, was relying on the Fifth Amendment?

Id. (quoting Jenkins, 447 U.S. at 241, 100 S. Ct. at 2131 (Stevens, J.,

concurring in the judgment)). The dissenting opinion in Salinas

specifically credited Justice Stevens’ rationale regarding a defendant’s

9The Salinas plurality does note there are two categories of exceptions to the
requirement that a witness must invoke their right to remain silent for it to be triggered.
See 570 U.S. at 184–85, 133 S. Ct. at 2179–80. While it is possible this case falls into
the second category, the majority does not make that argument here. More important, if
Gibbs’s failure to report the use of deadly force falls within one of the recognized
exceptions, the failure to report the use of deadly force is the constitutionally protected
conduct. The majority never explains why the government can penalize the protected
conduct by using it as substantive evidence of guilt and by allowing the prosecutor to
argue adverse inferences from constitutionally protected conduct.
 50

silence prior to police interaction. As Justice Stevens explained in Jenkins,

“the admissibility of petitioner’s failure to come forward with the excuse of

self-defense shortly after the stabbing raised a routine evidentiary question

that turns on the probative significance of that evidence and presented no

issue under the Federal Constitution.” Jenkins, 447 U.S. at 244, 100

S. Ct. at 2132. I agree with Justice Stevens’ conclusion. The adverse use

and comment on defendant’s silence prior to any interaction with police is

an evidentiary question and not a constitutional question.

The second context in which Gibbs failed to report his use of deadly

force—his silence—was during his voluntary interviews with the police. As

noted above, Gibbs was twice interviewed by the police, but he never

invoked the privilege during these interviews. The failure to invoke the

privilege during a police interview is the Salinas case. Under the Salinas

plurality opinion, Gibbs’s failure to report the use of deadly force during

his multiple voluntary interviews with the police is not protected “because

he did not expressly invoke the privilege against self-incrimination in

response to the officer’s question.” Salinas, 570 U.S. at 181, 133 S. Ct. at

2178 (plurality opinion).

In sum, the majority’s rationale that the district court’s instruction

violated the defendant’s privilege against self-incrimination because the

defendant never had the opportunity to invoke is not supported by the

record or the law. With respect to Gibbs’s failure to report the use of deadly

force prior to his interaction with police, the Salinas plurality and dissent

each conclude silence prior to police interaction is not constitutionally

protected. In addition, the record shows the defendant had numerous

communications with the police prior to his arrest, including phone calls,

text messages, and two voluntary interviews. At no point during these

voluntary police interactions did Gibbs invoke his privilege against self-
 51

incrimination. The defendant’s failure to invoke the privilege during these

voluntary police interactions defeats his Fifth Amendment claim. See id.

at 186, 133 S. Ct. at 2180 (“We have before us no allegation that

petitioner’s failure to assert the privilege was involuntary, and it would

have been a simple matter for him to say that he was not answering the

officer’s question on Fifth Amendment grounds. Because he failed to do

so, the prosecution’s use of his noncustodial silence did not violate the

Fifth Amendment.”).

3.

The majority disregards the fact that Gibbs never exercised his

constitutional right and nonetheless holds the district court’s instruction

“imposes an improper penalty on the exercise of the constitutional right to

remain silent” because the district court’s jury instruction is a more

significant penalty than allowing the prosecutor to make adverse use of

the defendant’s silence. In so concluding, the majority misapprehends the

holding and rationale of the Salinas plurality and is contrary to the

concurring opinion in Salinas.

The Salinas plurality did not turn on whether the government’s

adverse use of the defendant’s silence was an unconstitutional penalty on

his invocation of the privilege. Instead, it turned on the question of

whether the defendant invoked his privilege at all. The majority’s more-

severe-penalty rationale conflates two separate issues—the defendant’s

silence and the defendant’s invocation of his privilege against self-

incrimination. See id. at 189, 133 S. Ct. at 2182–83 (“But popular

misconceptions notwithstanding, the Fifth Amendment guarantees that no

one may be ‘compelled in any criminal case to be a witness against

himself’; it does not establish an unqualified ‘right to remain silent.’ A

witness’ constitutional right to refuse to answer questions depends on his
 52

reasons for doing so, and courts need to know those reasons to evaluate

the merits of a Fifth Amendment claim.”). The Salinas plurality holds the

defendant’s silence is not an exercise or invocation of the privilege against

self-incrimination. Thus, under the Salinas plurality, adverse use of the

defendant’s silence, including an instruction on the same, does not

constitute a penalty on the exercise of a constitutional right because the

defendant never exercised the constitutional right. See id. at 186, 133

S. Ct. at 2180–81.

In addition to being contrary to the Salinas plurality opinion, the

majority’s more-severe-penalty rationale is also contrary to Justice

Thomas’s concurring opinion in Salinas. In Salinas, Justices Thomas and

Scalia concurred in the judgment but not the plurality opinion. In their

view, Griffin’s prohibition against an adverse inference instruction relating

to trial silence “lack[ed] foundation in the Constitution’s text, history, or

logic” and for that reason should not be extended to pretrial-silence

situations. Id. at 192, 133 S. Ct. at 2184 (Thomas, J., concurring in the

judgment) (quoting Mitchell, 526 U.S. at 340, 119 S. Ct. at 1321 (Thomas,

J., dissenting)). They specifically rejected the contention that a jury

instruction allowing for an adverse inference to be drawn from the

defendant’s silence was unconstitutional. See id. (stating there is no

constitutional compulsion “simply because a jury has been told that it may

draw an adverse inference from [the defendant’s] silence”).

In my view, Justices Thomas and Scalia’s position, as expressed in

Salinas, is the superior understanding of the privilege against self-

incrimination. Their understanding better reconciles constitutional text,

the common law, and historical practice. Their understanding is

consistent with the original understanding of the Iowa Constitution as

expressed in Height, Ferguson, Benson, Meyers, and Holt—a defendant has
 53

a right not to be compelled to provide testimony, but the right does not

include a prohibition against the district court instructing the jury it may

draw an adverse inference from the exercise of the right.

4.

Each of the majority’s reasons for concluding the district court’s

instruction violated the defendant’s privilege against self-incrimination are

contrary to a majority of the Justices as expressed in the three opinions in

Salinas. In this case, the defendant failed to voluntarily report his use of

deadly force prior to being contacted by the police. His silence in that

context is not constitutionally protected. He had multiple opportunities to

invoke his privilege against self-incrimination during voluntary police

interviews, and he failed to do so. In the absence of invocation of the

privilege during these voluntary police interviews, the Fifth Amendment

did not prohibit the district court from instructing the jury on the relevant

law.

IV.

Because I conclude the defendant waived his state constitutional

claim and failed to show a violation of his federal constitutional rights, I

concur in the judgment.

Oxley, J., joins division I of this special concurrence.