State of Iowa v. Gregory Michael Davis

IN THE SUPREME COURT OF IOWA
No. 19–0214

Submitted October 14, 2020—Filed November 13, 2020

STATE OF IOWA,

Appellee,

vs.

GREGORY MICHAEL DAVIS,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Linn County, Sean

McPartland, Judge.

Defendant convicted of first-degree murder seeks further review of

court of appeals decision affirming his conviction. DECISION OF COURT

OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED

AND CASE REMANDED FOR NEW TRIAL.

Waterman, J., delivered the opinion of the court, in which

Christensen, C.J., and Appel and McDermott, JJ., joined. McDonald, J.,

filed a dissenting opinion, in which Mansfield and Oxley, JJ., joined.

Alfredo Parrish (argued) and Andrew Dunn of Parrish Kruidenier

Dunn Boles Gribble Gentry Brown & Bergmann L.L.P., Des Moines, for

appellant.
 2

Thomas J. Miller, Attorney General, Louis S. Sloven (argued),

Assistant Attorney General, Jerry A. Vander Sanden, County Attorney,

and Elena S. Wolford, Assistant County Attorney, for appellee.
 3

WATERMAN, Justice.

The defendant, who had a history of substance abuse and mental

illness, killed his girlfriend by stabbing her twenty-six times. A jury

convicted him of first-degree murder. In this appeal, we must decide

whether a new trial is required because the marshaling instruction for that

charge failed to cross-reference the defendant’s insanity defense. The

defendant’s trial counsel failed to object to that omission, even though the

marshaling instructions for nine lesser included offenses cross-referenced

the insanity defense. New counsel appealed, arguing the defendant’s trial
counsel provided ineffective representation. We transferred the case to the

court of appeals, which affirmed his conviction, stating, “While we

encourage trial courts in cases like this to include a reference to an

insanity defense in the marshaling instructions, [the defendant] has not

shown the result would be different but for the omission.” A dissenting

judge concluded the inconsistent cross-referencing likely confused the

jury and should require a new trial. We granted the defendant’s

application for further review.

On our review, we determine that this instructional error requires a

new trial. Trial counsel breached an essential duty by failing to object.

The jury instructions were materially misleading without the cross-

reference to the insanity defense in the marshaling instruction for first-

degree murder, when that cross-reference was included in all nine of the

marshaling instructions for lesser included offenses. The instructional

error allowed the jury to conclude the insanity defense didn’t apply to first-

degree murder. This error undermines our confidence in the verdict.

Accordingly, we vacate the decision of the court of appeals, reverse the

district court judgment, and remand the case for a new trial.
 4

I. Background Facts and Proceedings.

The following facts were developed at trial. Gregory Davis had a long

history of mental illness and drug abuse dating back to his childhood.

Ultimately, he was diagnosed with amphetamine-use disorder with

psychosis, major depressive disorder, anxiety disorder, and cannabis-use

disorder. Two experts testified in his murder trial that at the time he killed

his longtime live-in girlfriend, Carrie Davis, he was experiencing psychosis

and lacked the capacity to form criminal intent. Specifically, according to

one psychiatrist, Greg believed “that by killing her he would be freeing her
of her evil forces and lead to her resurrection and perhaps to life in a better

location.”

The trial experts relied on his medical and social history. Born with

a cleft palate, Greg underwent five extensive facial surgeries between birth

and adolescence. He was “paranoid” that “everyone was looking at his

face.” In his teen years, his family noticed that he experienced “dark

periods that would last for different amounts of time.” Greg was bullied in

school, struggled academically, and developed a mental illness. Greg’s

substance abuse began in his early teens with alcohol, and escalated to

include marijuana, cocaine, methamphetamine, and ecstasy. He became

addicted while self-medicating with illegal substances.

Greg graduated from Linn-Mar High School and enrolled at

Kirkwood Community College. He was unable to control his addictions

and repeatedly entered drug treatment programs. He dropped out of

Kirkwood after two semesters.

In 2013, Greg moved to Ohio to work for his brother Jeff’s

landscaping and home remodeling business. Greg’s addictions continued.

Jeff noticed that Greg’s house was “very dark”; that Greg “did not have

great personal skills”; and that Greg had “a lot of paranoia of people
 5

breaking in, stealing things, [and] the government watching.” While in

Ohio, Greg began dating Carrie. Jeff moved away and left Greg to run the

business, which soon failed. In the early summer of 2017, Greg returned

home to Marion, Iowa. Carrie left her family, including her children, and

moved in with Greg in Iowa. Both Greg and Carrie used meth.

September 28, the date of the murder, was the last day that Greg’s

mother, Kathy, saw Carrie alive. On September 29, Greg called Kathy and

said “Carrie is gone,” and he thought Carrie “would wake up when the

devil was out of her.” On October 1, Greg drove a trailer to the house
where his parents lived. Kathy saw rolls of carpet and asked Greg whether

Carrie was in the trailer. Greg said that she was. The next day, Kathy

contacted the Marion police to request a welfare check on Carrie and told

them to look for Carrie at a vacant rental property Kathy owned on Hillview

Drive. That same day, Sergeant Terry Kearney conducted a welfare check

at the Hillview property, where he saw a trailer in a carport. After moving

aside a blanket in the trailer, he saw a foot sticking out. He called for more

officers, who secured the scene with him, and eventually Carrie’s body was

removed. Doctor Jonathan Thompson performed an autopsy and

determined that the cause of death was multiple sharp force injuries and

that her manner of death was homicide. A toxicology report indicated that

Carrie had used meth shortly before her death, and Greg admitted to the

police on October 2 that he had used meth around two days earlier, which

would have been around the same time.

Tara Scott, a criminalist with the Iowa Division of Criminal

Investigation, found a bloodstain in the living room carpet of the house

where Greg and Carrie had lived together. A mattress covered the

bloodstain, and it appeared as if the blood from the carpet had transferred

to the mattress. Carrie’s blood was on a sample of carpeting from the
 6

living room and several items of clothing in the house. The carpeting in

the basement of the residence had “similar characteristics and color” to

the rolls of carpet in the trailer. She also found cleaners in the house and

a mop bucket in the garage. There were several notes found in the garage,

one of which read:

Greg Davis is and the spirit of Christ with the powers of the
devil and always holds the power of God or the know how and
ability and the ability to know how to do anything and
everything by praying to himself to do what he or she or
everyone or even Greg Davis wants. God can love or hate but
not murder. Greg Davis can do anything so is similar to God
but can choose to murder if he sees it necessary. God mostly
love.

Investigator James Hancox located Greg’s truck, a white Ford F-250,

outside the Brookside house. The Immediate Response Unit arrived and

arrested Greg. Greg had no drug paraphernalia or narcotics on his person.

Nothing in Greg’s appearance or demeanor indicated he was impaired by

alcohol or drugs. Investigators found no illegal drugs or paraphernalia in

the house where investigators found Carrie’s body or the house where Greg

and Carrie lived. Greg seemed “normal” to the officers, was able to

communicate with them, and was coherent and responsive to their

questions. After officers placed Greg in custody, Officer Bradley Feickert

searched the garage at the house where Greg’s parents lived and found an

extension cord set up like a “makeshift noose or a noose that was

attempting to be constructed.”

Investigator Hancox searched the Ford and found several knives,

bloodstained clothing in a garbage bag in a utility box, and a torn-up note,

which he believed—due to singed edges—someone had tried to burn. The

note, which had “VOID” written over it, and some words crossed out, read:

I stabbed Carrie in a vicious attack four days ago when I was
on drugs and possessed(?) by what I believe was the devil. I
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am truly sorry and apologize to her friends and family. She is
in the trailer. She was the love of my life. Greg Davis.

Kathy believed Greg was showing signs of paranoid schizophrenia. She

reported his claims that,

They were out to get him. They were bugging his house. They
were bugging his car. He couldn’t have any piece of
electronics in a working condition because there was either a
camera or a microphone in it. They were out to get him, to set
him up.

At the time of his interview on October 2, however, Greg was “lucid” and

“coherent” and did not seem to be under the influence of illegal drugs.

During the interview, Greg said:

Q. So I’ll turn it over to you for a second. A. I don’t
know. I recall the possession from the devil once.
Q. When was that? A. I don’t know.
Q. You were possessed by the devil once? A. You
know, that’s what I think, you know, that’s the best way I can
put it.

Later, Greg said, “There is nothing good about it. She was possessed, as

well. I almost felt like she took me over. I don’t know how to explain it. I

don’t want to sound crazy.” A few minutes later, he said,

I was scared. I didn’t know what to do. I seriously thought
there was a connection with her being possessed with the
devil, and I didn’t know if I needed to go to church. I don’t
know. I didn’t want to take any initiative but it just
(inaudible).

In the interview, Greg nodded his head when the officer asked him if he

knew what he did was wrong. He also said that while he knew it was

wrong, “I just don’t feel like I was totally in control of it, honestly.” In the

interview, he admitted to attempting to hang himself in the garage. Greg

later attempted suicide and was placed on suicide watch at the Linn

County jail.
 8

The State charged Davis with first-degree murder in violation of Iowa

Code sections 707.1, 707.2(1)(a), and 902.7 (2017) for the death of Carrie

Davis. He filed notice that he intended to rely at trial on defenses of

insanity or diminished responsibility. The case proceeded to a five-day

jury trial. Prospective jurors were questioned about their views on insanity

and diminished capacity through a questionnaire and during voir dire. At

trial, two experts, Dr. Arnold Andersen, a psychiatrist, and Dr. Arthur H.

Konar, a psychologist, testified as to Greg’s mental state. Dr. Andersen

said he found Davis “forthcoming and accurate,” and Dr. Konar agreed
that Davis was telling the truth.

For their evaluations of Davis, Dr. Konar and Dr. Andersen relied

on, among other things, interviews with him, his medical records, and

Kathy Davis’s notes about him. Dr. Konar administered the MMPI-2. He

testified it could result in an invalid result for reasons such as

inconsistency, someone trying to pretend as if they are better or worse

than they actually are, or someone being “at such a level of agitation that

they simply can’t focus in on the test adequately enough to provide a valid

administration.” Dr. Konar stated that Greg’s test was invalid “because he

was so agitated when he was taking the test.”

Dr. Andersen testified, “He had the specific intent of killing her. He

did not have a specific criminal intent. His understanding was that what

he was doing was morally right and necessary.” Similarly, Dr. Konar

testified that Greg “did not have the ability to form intent” and “did not

understand how his behaviors would ultimately affect the individual that

he hurt.”

Dr. Anderson testified that what Greg had claimed he had

experienced appeared to be psychosis, which usually means

“hallucinations and delusions, hearing voices that aren’t there and having
 9

abnormal beliefs.” He also said Greg increased his use of

methamphetamine in the year of the alleged crime and stated that

methamphetamine use, when it is high dose and long term, could tend to

cause an abnormal mental state. He testified that “on the day of this act

he was using a heavy dose and continued through about October 1st, if I

have my dates correct, at which time he stopped and some clarity of mind

returned.” He said that a “complete remission” occurs generally nine to

twelve months after a person stops using, as long as they don’t have any

other illnesses. Dr. Konar found that Greg’s “addiction dependency on
methamphetamine comes from a long-term depression, and his ability to

simply stop using was no longer in his control.” Ultimately, as Dr. Konar

testified, while he and Dr. Andersen agreed that there was a substance-

induced psychosis and that Greg did not have the requisite criminal intent,

they disagreed as to “whether Gregory Davis could voluntarily have

stopped using methamphetamine.”

Dr. Gary Keller, a psychiatrist, also evaluated Davis. He agreed that

Davis was “genuine.” Dr. Keller diagnosed Davis with major depressive

disorder, cannabis-use disorder, amphetamine-use disorder with

psychosis, and a generalized anxiety disorder. He testified that Davis told

him Davis had visions of Jesus and Jesus sitting next to him, “but he

acknowledged that was in his mind.”

The State and the defense proposed different instructions for Jury

Instruction No. 22, the first-degree murder marshaling instruction. There

were two key differences: The defense’s proposed instruction had a cross-

reference to the insanity defense and an element that required the jury to

find Davis intentionally killed Carrie. The State’s proposed instruction

included neither of these. The court accepted the State’s proposed

instruction as the final instruction and Davis’s counsel did not object to
 10

the instruction for failing to cross-reference the insanity defense. Jury

Instruction No. 7 told the jury to “consider all the instructions together.”

Jury Instruction Nos. 14 through 16 discussed the insanity defense.

Instruction No. 14 stated:

The Defendant claims he is not guilty by reason of
insanity. You must first determine if the State has proved all
the elements of the crime charged beyond a reasonable doubt.
If you find the State has proved all the elements, then you
must consider the issue of the Defendant’s sanity.

None of the instructions for insanity specifically mentioned first-degree

murder. By contrast, Jury Instruction No. 17, on diminished

responsibility, specifically mentioned first-degree murder: “If you have a

reasonable doubt the Defendant was capable of acting deliberately, with

premeditation, and the specific intent to kill, then the Defendant cannot

be guilty of First Degree Murder. You should then consider the lesser

included charges.” Each of the marshaling instructions for the nine lesser

included offenses expressly cross-referenced the insanity defense, as

follows, with little variation: “If the State has proved all the elements, the

Defendant is guilty of [the lesser included offense]. You must then

consider the defense of insanity as described in Instructions No. 14–18.”

As noted, those statements were missing from the marshaling instruction

for the major offense of first-degree murder.

The prosecutor’s closing argument emphasized the first-degree

murder instruction: “What this whole case boils down to really is

Instruction No. 22.” The prosecutor outlined the facts of the case, arguing

that Greg’s conduct demonstrated he was acting rationally, intentionally,

deliberately, and consciously. The State focused on the note that Greg

wrote: “There’s nothing in this note that he thought he was doing
 11

something good for her or that he was trying to help her or didn’t

understand what he was doing. He used the phrase ‘vicious attack.’ ”

Davis’s counsel began his summation by pointing out the missing

element in Instruction No. 22: the “why.” Counsel reminded the jury that

both experts found Davis lacked “the capacity to form the specific intent

to commit a crime” and told the jury that “[i]t’s the State’s burden to prove

that different.” He ended by stating, “If you believe those doctors, then it

is not murder in the first degree. It’s murder in the second degree or not

guilty by reason of insanity.”
The verdict forms began with “not guilty,” and, starting with first-

degree murder, included “guilty” verdicts for each charged offense. The

thirteenth and final verdict form was “not guilty by reason of insanity.”

Jury Instruction No. 50 told the jury that “[w]hen you have agreed upon a

verdict and the foreperson has signed the verdict form, please notify the

Court Attendant.” There was no instruction that told the jury to read all

of the verdict forms. The jury found Davis guilty of first-degree murder.

Davis retained substitute counsel who moved for a new trial on

several grounds, including instructional error. The substitute counsel

argued that the court was required to include a reference to Davis’s

insanity defense in the marshaling instruction for first-degree murder, as

it had with all of the lesser included offenses. The district court denied

Davis’s motion and sentenced him to life in prison.

Davis appealed on multiple grounds, including: (1) the omitted

cross-reference to the insanity defense in the first-degree murder

marshaling instruction, (2) the inclusion of the intoxication-defense

instruction, (3) cross-references to the diminished-responsibility defense

in the marshaling instructions for general intent offenses, (4) trial counsel

eliciting testimony that he had specific intent to kill Carrie, and (5) the
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cumulative effect of these errors violating his right to a fair trial and due

process. We transferred the case to the court of appeals, which affirmed

Davis’s conviction for first-degree murder. As to the first ground, the court

of appeals held that Davis failed to establish he suffered prejudice, and as

such, it did not need to consider whether his counsel breached an

essential duty. A dissenting judge concluded that Davis’s trial counsel’s

performance was deficient and Davis suffered prejudice. Davis applied for

further review, and we granted his application.

II. Standard of Review.
“On further review, we have the discretion to review all or some of

the issues raised on appeal or in the application for further review.” State

v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). In exercising our discretion

here, we choose to review only the ineffective-assistance-of-counsel claim

regarding the marshaling instruction for first-degree murder. We let the

court of appeals decision stand as the final decision regarding the

remaining issues. “Our review of claims of ineffective assistance of counsel

is de novo.” State v. Ortiz, 905 N.W.2d 174, 179 (Iowa 2017).

III. Preservation of Error.

Davis’s trial counsel failed to object to the court’s Instruction No. 22,

which would have provided the court with the opportunity to correct the

instruction and avoid another trial. “We have repeatedly held that timely

objection to jury instructions in criminal prosecutions is necessary in

order to preserve any error thereon for appellate review.” State v. Taggart,

430 N.W.2d 423, 425 (Iowa 1988).

[O]ur adversary system imposes the burden upon counsel to
make a proper record to preserve error, if any, in this factual
circumstance by specifically objecting to instructions in their
final form, requesting instructions and voicing specific
exception in event they are refused.
 13

State v. Sallis, 262 N.W.2d 240, 248 (Iowa 1978). Davis failed to preserve

error because his trial counsel did not object to the final draft of

Instruction No. 22.

IV. Analysis.

“The constitutions of the United States and Iowa guarantee a

criminal defendant the right to effective assistance of counsel.” State v.

Kuhse, 937 N.W.2d 622, 628 (Iowa 2020). A defendant proves ineffective

assistance of counsel when he establishes: “(1) his trial counsel failed to

perform an essential duty, and (2) this failure resulted in prejudice.” State
v. Straw, 709 N.W.2d 128, 133 (Iowa 2006).

When error regarding jury instructions is preserved, we presume

prejudice. See State v. Lorenzo Baltazar, 935 N.W.2d 862, 871 (Iowa

2019). By contrast, “an ineffective-assistance-of-counsel claim based on

failure to preserve jury instruction error must demonstrate deficiency and

prejudice.” Id. at 871–72. Because Davis’s counsel failed to preserve error

on his challenge to the marshaling instruction, he must establish both

deficiency (failure to perform an essential duty, that is, breach) and

prejudice.

We begin with whether Davis’s attorney failed to perform an

essential duty. Davis bears the burden of proving that his counsel

“performed below the standard demanded of a reasonably competent

attorney.” Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001) (en banc).

We presume Davis’s counsel “performed competently,” and “we scrutinize

each claim in light of the totality of the circumstances.” Id.

In State v. Ondayog, we noted “the failure to recognize an erroneous

instruction and preserve error breaches an essential duty.” 722 N.W.2d

778, 785 (Iowa 2006). “The question becomes whether there was a tactical

reason for not objecting to the instruction.” Id. Whether such a reason
 14

existed is determined based on “the perspective of when the decision was

made—during the course of trial.” Id. We concluded that Ondayog’s

counsel’s failure to object could be trial strategy because it meant that the

jury was instructed on a lesser crime, which “would give the jury the

opportunity to forego the three higher offenses.” Id. at 786.

By contrast, in State v. Harris, we held that counsel breached a duty

because there was “no possible strategic reason for failing to object” to an

erroneous marshaling instruction that omitted the “going” element from

the crime of going armed with intent. 891 N.W.2d 182, 186–87 (Iowa
2017). Similarly, we see “no possible strategic reason” for Davis’s trial

counsel to fail to object to the omitted cross-reference. The uniform jury

instruction for the insanity defense has a comment that states, “If the

insanity defense is submitted, then the marshaling instruction should be

modified accordingly.” Iowa State Bar Ass’n, Iowa Criminal Jury

Instruction 200.9 cmt. (2019). “As we have noted in the past, ‘trial courts

should generally adhere to the uniform instructions.’ ” State v. Becker,

818 N.W.2d 135, 143 (Iowa 2012) (quoting State v. Mitchell, 568 N.W.2d

493, 501 (Iowa 1997)), overruled on other grounds by Alcala v. Marriott Int’l,

Inc., 880 N.W.2d 699, 708 n.3 (Iowa 2016). Indeed, Davis’s trial counsel

proposed a marshaling instruction for first-degree murder with this cross-

reference, and this cross-reference was included in all nine marshaling

instructions for the lesser included offenses. Nevertheless, trial counsel

failed to object when the final marshaling instruction for first-degree

murder omitted this cross-reference. In our view, this failure to object

breached an essential duty. We see no tactical reason for not including

the cross-reference; in fact, failing to object contradicted the attorney’s

previous request to include it.
 15

We turn to the second prong of the analysis, whether Davis suffered

prejudice due to his attorney’s breach. The defendant must prove that

“there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence

in the outcome.” Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct.

2052, 2068 (1984).

“We presume juries follow the court’s instructions.” State v. Hanes,

790 N.W.2d 545, 552 (Iowa 2010). “Jury instructions are not considered
separately; they should be considered as a whole.” State v. Fintel, 689

N.W.2d 95, 104 (Iowa 2004).

Litigants are entitled to have their legal theories
submitted if those theories are supported by the pleadings
and substantial evidence in the record. Moreover, the court’s
instructions must convey the applicable law in such a way
that the jury has a clear understanding of the issues it must
decide.

Thompson v. City of Des Moines, 564 N.W.2d 839, 846 (Iowa 1997) (citation

omitted); see also State v. Benson, 919 N.W.2d 237, 245–46 (Iowa 2018)

(determining there was prejudice because of “confusing and misleading”

jury instructions).

In Harris, we held that trial counsel was ineffective for failing to

object to an erroneous marshaling instruction. 891 N.W.2d at 189. Harris

had been arguing with another patron inside a bar and both were told to

leave. Id. at 184. Harris left first and waited outside, where he attacked

the other man with a knife. Id. He was convicted of going armed with

intent. Id. On appeal, he argued the evidence of movement was

insufficient and that his trial counsel was ineffective in failing to object to

omission of the “going” (movement) element in the marshaling instruction.

Id. at 184–85. In determining Strickland prejudice, “we consider[ed]
 16

whether our confidence in the outcome of Harris’s trial [was] undermined

by omission of the element of movement in [the marshaling instruction].”

Id. at 189. While “substantial evidence supported a finding of movement

sufficient to uphold Harris’s conviction,” we stated “that conclusion does

not control our determination of whether prejudice flowed from the flawed

marshalling instruction.” Id. We held that Harris suffered Strickland

prejudice and that a new trial was required “because the evidence of

Harris’s movement was not great and the flawed marshalling instruction

did not require the jury to make a finding on that element of the crime.”
Id. We reach the same conclusion here. Our confidence in the verdict is

undermined when the key marshaling instruction fails to address the

central issue in the trial: Davis’s sanity.

In State v. Kuhse, the defendant was convicted of domestic abuse

assault causing bodily injury. 937 N.W.2d at 624. He appealed, arguing

his trial counsel was ineffective for failing to object to the marshaling

instruction that omitted language that “the State needed to prove the act

was done without justification.” Id. The court of appeals reversed his

conviction, “reasoning that failure to include ‘lack of justification’ in the

marshaling instruction was prejudicial for ineffective-assistance purposes,

regardless of the strength of the State’s case and the fact that the subject

had been covered elsewhere in the instructions.” Id. On further review,

we vacated the court of appeals decision and affirmed his conviction

because,

[i]n our view, considering the evidence and the instructions as
a whole, we do not believe there was a reasonable probability
of a different outcome if justification had been covered in the
marshaling instruction in addition to the other instructions.

Id. The justification defense instructions immediately followed the

marshaling instructions covering the major and lesser included offenses.
 17

Id. at 630. Moreover, the first instruction on the justification defense said,

“The State must prove the Defendant was not acting with justification.”

Id. And factually, we observed the defense seemed “implausible.” Id.

The evidence showed the self-defense theory was indeed

implausible. The victim was Kuhse’s wife of nine years. Id. at 624. Kuhse

was in the basement drinking with friends when the victim went

downstairs to do laundry and they began arguing after he called her

names. Id. Kuhse “strangled [her] to the point that she could not breathe”

while she swiped at him to loosen his grip. Id. at 624–25. He “finally let
her go but caught her as she fell and slammed her against the wall,” and

then slammed her “toward the entertainment center,” and finally slammed

her “against the coffee table.” Id. at 625. She called the police, who

observed her injuries—“bruises, abrasions, and scratches on her knees,

neck, and arm.” Id. When police told her to go to the hospital by

ambulance, she balked at the cost and had a friend take her. Id. Kuhse

told police he acted in self-defense. Id. He had a scratch on his nose and

a bruise on his arm, and told the police he got the injuries from her

“bumping into him” and “throwing herself onto his arm.” Id. She was five

feet, two inches tall and 105 pounds; he was five feet, nine inches tall and

190 pounds. Id. Photographs showed her “injuries were much more

significant” than his and matched her testimony. Id. at 630.

Davis argues our analysis in Kuhse supports reversal of his

conviction. Kuhse provides the governing test for determining Strickland

prejudice in this context:

In sum, . . . ineffective assistance of counsel does not
necessarily occur when defense counsel fails to object that a
marshaling instruction does not refer to a required element of
a defense—or cross-reference a defense that the State is
required to disprove. Instead, one must examine the record
 18
and consider the evidence presented, how the case was tried,
and what the jury instructions as a whole said.

Id. Our analysis of prejudice considered how the parties used the jury

instructions in their closing arguments. Id. Applying Kuhse, we conclude

Davis has established Strickland prejudice. The difference in outcomes is

explained by key differences in the instructions and evidentiary record.

First, we review the jury instructions as a whole. Id. Each of the

marshaling instructions for the nine lesser included offenses cross-

referenced Davis’s insanity defense. Not so in Kuhse. As the dissenting

judge on the court of appeals in this case concluded, upon seeing the

insanity defense specifically mentioned in the nine lesser included

instructions but not in Instruction No. 22, jurors would understand that

the defense did not apply to first-degree murder.1 And as Davis’s appellate

counsel argued, “the jury would logically believe there was something

unique about the ‘defense of insanity’ when it came to first-degree murder,

1The dissenting judge mentioned a canon of statutory construction,
expressio unius est exclusio alterius, which shows how jurors might interpret this set of
instructions, stating,
Presumably we apply this maxim because it makes logical sense. Although
the jurors were obviously not instructed on this maxim, the idea behind it
would make a reasonable juror conclude the omission of the reference to
the defenses meant they did not apply.
Indeed, we have observed “the legislature’s selective inclusion of [a] phrase . . . to be
dispositive.” Oyens Feed & Supply, Inc. v. Primebank, 808 N.W.2d 186, 194 (Iowa 2011);
see also Chesnut v. Montgomery, 307 F.3d 698, 701 (8th Cir. 2002) (“[W]here Congress
includes particular language in one section of a statute but omits it in another section of
the same Act, it is generally presumed that Congress acts intentionally and purposely in
the disparate inclusion or exclusion.” (alteration in original) (quoting Russello v.
United States, 464 U.S. 16, 23, 104 S. Ct. 296, 300 (1983))); Freedom Fin. Bank v. Estate
of Boesen, 805 N.W.2d 802, 812 (Iowa 2011) (same). The same principle applies here.
When the marshaling instructions for the other nine offenses cross-referenced the
insanity defense but not the instruction for first-degree murder, the jurors would
reasonably conclude that omission was intentional and the defense was unavailable.
 19

and that insanity did not apply to it.” We agree, and conclude the

instructions, read as a whole, are materially misleading.2

Second, in our view, Davis’s insanity defense is stronger than

Kuhse’s “implausible” justification defense. Davis had the burden to prove

insanity by a preponderance of the evidence. Iowa Code § 701.4; Becker,

818 N.W.2d at 142. Two medical experts testified that Davis lacked the

requisite criminal intent for first-degree murder.3 Davis has a long history

of methamphetamine abuse, which both Dr. Konar and Dr. Andersen

testified can lead to a substance-induced psychosis. Indeed, both agreed
that Davis was under this psychosis. The day after the murder, Davis told

his mother that he thought Carrie “would wake up when the devil was out

of her.” The way he described himself indicated he was not of a sound

mind. He claimed he was “similar to God but can choose to murder if he

sees it necessary” and that he was “the spirit of Christ with the powers of

the devil.”

Sanity is judged at the time of the offense. The State relies, in part,

on after-the-fact evidence such as Davis’s sobriety and demeanor several

days later as well as his effort to clean up the crime scene. Davis rolled

2Moreover, the jury’s first-degree murder verdict, which shows it rejected Davis’s
diminished capacity defense, does not mean the jury would not have found him insane.
Insanity and diminished capacity are separate concepts with separate instructions. The
diminished capacity instruction expressly mentioned first-degree murder, while the
insanity instruction merely referred to “the crime charged.”
3The State’s position is not supported by Lamasters v. State, 821 N.W.2d 856 (Iowa
2012). There, in finding no Strickland prejudice, we stated: “[W]e cannot find a reasonable
probability on this record that an insanity defense would have been successful. No expert
has opined that Lamasters was legally insane at the time of the killing.” Id. at 868. Nor
is the State’s position supported by State v. Buck, 510 N.W.2d 850, 853–54 (Iowa 1994)
(holding defendant was not prejudiced by his trial counsel’s failure to preserve error as
to his waiver of a jury trial on the insanity defense). Buck relied solely on lay-witness
testimony for his insanity defense and the State’s expert testified that at the time of the
killing, “Buck understood the nature and quality of his acts, could distinguish right from
wrong, and could form a specific intent to kill.” Id. at 851–52. Those cases are readily
distinguishable because Davis supported his insanity defense with expert testimony.
 20

up Carrie’s body in blankets and carpet and placed bloodstained clothes

in a garbage bag. Davis also placed a mattress over the bloodstain in the

living room to cover it and wrote a note confessing to “stabb[ing] Carrie in

a vicious attack,” all of which the State argued were evidence showing he

knew what he did was wrong. Additionally, officers found no drugs or

paraphernalia on Davis, who was lucid and coherent four days after he

killed Carrie. On balance, the question of Davis’s sanity was for the jury

to decide, under proper instructions.

Third, as in Kuhse, we consider how the parties argued the jury
instructions in summation. 937 N.W.2d at 630. “The marshaling

instruction is the crown jewel of the court’s instructions in a criminal

case.” Id. at 633 (Appel, J., concurring specially). The State’s closing

argument focused on Instruction No. 22: “What this whole case boils down

to really is Instruction No. 22.” The prosecutor displayed Instruction No.

22 for the jury on a PowerPoint slide. In the rebuttal argument, the

prosecutor said, “And what I’d argue to you is that after you consider the

elements of first degree murder, you don’t go any further. That’s it.”

Indeed, the jury returned a verdict for first-degree murder, and stopped.

Davis’s trial counsel provided ineffective assistance when he failed

to object to the trial court’s departure from the uniform jury instructions

that would cross-reference the insanity defense in the marshaling

instruction for first-degree murder. This significant error in the

marshaling instruction for the main offense undermines our confidence in

the verdict. Trial counsel’s breach and the resulting prejudice require a

new trial.

V. Disposition.

For these reasons, we vacate the decision of the court of appeals,

reverse the district court judgment, and remand the case for a new trial.
 21

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

JUDGMENT REVERSED AND CASE REMANDED FOR NEW TRIAL.

All justices concur except McDonald, J., Mansfield, and Oxley, JJ.,

who dissent.
 22

#19–0214, State v. Davis

McDONALD, Justice (dissenting).

Lest there by any doubt, the defense presented its insanity defense

to the charge of murder in the first degree, the jury considered the same,

and the jury rejected it. From defense counsel’s first words to the jury in

his opening statement—

I thought she was the devil. I thought that I was the devil. I
thought I was Jesus and I thought I was God. I thought she
was going to be resurrected and saved. I wrapped her body
like they did Christ. Voices in my head told me I was doing
the right thing. I was doing her a favor. I figured she had to
be covered out of respect. This is what Greg Davis thought.
These are not the thoughts of a sane man.

—through defense counsel’s final words to the jury in his closing

statement—

The only way you convict Greg Davis of murder in the
first degree is if you don’t believe both of those doctors. If you
believe that both of those doctors are wrong, then it’s murder in
the first degree. I submit to you the State has produced no
evidence to dispute that either of those doctors are wrong.

....

That’s why we have experts, to help us -- to help explain
to us. Again, if you don’t believe either of those doctors, that’s
the only way you’re going to get a murder first degree. If you
believe those doctors, then it is not murder in the first degree.
It’s murder in the second degree or not guilty by reason of
insanity.

—Davis’s insanity defense was squarely and unequivocally presented to

the jury. (Emphasis added.) The majority nonetheless concludes the jury

might not have understood the insanity defense applied to murder in the

first degree because the marshaling instruction for murder in the first

degree lacked a cross-reference to the insanity instructions. This is

contrary to the relevant law, the record, and common sense. I respectfully

dissent.
 23

To establish his claim of ineffective assistance of counsel, Davis was

required to establish his trial counsel failed to perform an essential duty

and trial counsel’s breach of duty resulted in constitutional prejudice. See

State v. Walker, 935 N.W.2d 874, 881 (Iowa 2019). To establish

constitutional prejudice, Davis was required to show counsel’s

performance caused a complete “breakdown in the adversary process”

such that the result of the trial was unreliable. Strickland v. Washington,

466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). “It is not enough for the

defendant to show that the errors had some conceivable effect on the
outcome of the proceeding.” Id. at 693, 104 S. Ct. at 2067. Rather, “[t]he

defendant must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have

been different.” Id. at 694, 104 S. Ct. at 2068. “An error by counsel, even

if professionally unreasonable, does not warrant setting aside the

judgment of a criminal proceeding if the error had no effect on the

judgment.” Id. at 691, 104 S. Ct. at 2066.

This court resolved the question presented in this case in the

materially indistinguishable case of State v. Kuhse, 937 N.W.2d 622 (Iowa

2020). In that case, the defendant was charged with domestic abuse

assault causing bodily injury. See Kuhse, 937 N.W.2d at 625. The

defendant asserted a justification defense. See id. at 626. The marshaling

instruction did not cross-reference the defense, and counsel did not object

to the omitted cross-reference. See id. at 625–26, 627. The jury found the

defendant guilty as charged. See id. at 627. In reviewing the unpreserved

error, we applied the Strickland prejudice standard. See id. at 628. We

explained Strickland required “us to consider the totality of the evidence,

identify what factual findings would have been affected, and determine if
 24

the error was pervasive or isolated and trivial.” Id. at 628 (quoting State

v. Ambrose, 861 N.W.2d 550, 557–59 (Iowa 2015)). We further explained,

ineffective assistance of counsel does not necessarily occur
when defense counsel fails to object that a marshaling
instruction does not refer to a required element of a defense—
or cross-reference a defense that the State is required to
disprove. Instead, one must examine the record and consider
the evidence presented, how the case was tried, and what the
jury instructions as a whole said.

Id. at 630.

We ultimately concluded the defendant did not carry his burden to

“establish Strickland prejudice.” Id. at 631. In reaching that conclusion,

we explained Kuhse’s justification defense was weak. See id. at 630–31.

We also noted there was little risk the jury did not understand justification

was at issue. Id. at 631. Justification was the “focal point” of the case

and closing arguments. See id. at 630. The fact that justification was the

focal point of the case “helped confirm for the jury that justification was

an essential part of its deliberations.” Id. Further, we explained the jury

instructions as a whole made clear that justification was at issue and had

to be considered. See id. Those considerations showed there was no

“reasonable probability of a different outcome if the marshaling instruction

on domestic abuse assault causing bodily injury had included or cross-

referenced lack of justification.” Id. at 631.

Those same three considerations control the disposition of this case.

First, as in Kuhse, the defendant’s insanity defense was weak. The jury

was instructed Davis needed to prove by a preponderance of the evidence

either of the following:

1. At the time the crime was committed, the
Defendant suffered from such a diseased or deranged
condition of the mind as to render him incapable of
knowing the nature and quality of the acts he is accused
of; or
 25
2. At the time the crime was committed, the
Defendant suffered from such a diseased or deranged
condition of the mind as to render him incapable of
distinguishing between right and wrong in relation to
the act.

“[T]he jury instructions become the law of the case for purposes of our

review of the record.” State v. Canal, 773 N.W.2d 528, 530 (Iowa 2009).

A point of procedure makes Davis’s defense weaker—and his claim

of constitutional prejudice necessarily weaker—than that presented in

Kuhse. In Kuhse, the defendant presented an affirmative defense of

justification. A defendant asserting a justification defense “bears the

initial burden of producing sufficient evidence to support the instruction.

Once that threshold is met, the burden shifts to the State to prove lack of

justification beyond a reasonable doubt.” Kuhse, 937 N.W.2d at 628

(citation omitted). Here, however, the burden of proof was on Davis. It

was his burden to prove his insanity defense by a preponderance of the

evidence. See Iowa Code § 701.4 (2017); State v. James, 393 N.W.2d 465,

466–67 (Iowa 1986) (en banc) (rejecting federal and state due process

challenges to the statute).

The record shows Davis failed to prove he did not know the nature

and quality of his acts or was incapable of distinguishing between right

and wrong. Davis undertook deliberate, methodical, and calculated action

to cover up the murder. This demonstrates he understood both the nature

of his acts and his acts were wrong. See Lamasters v. State, 821 N.W.2d

856, 867–69 (Iowa 2012) (holding there was no reasonable probability an

insanity defense would have been successful when the defendant lied

about the murder victim’s whereabouts to suggest she was still alive); State

v. Jacobs, 607 N.W.2d 679, 685 (Iowa 2000) (holding that the trial court’s

rejection of an insanity defense was supported by evidence the defendant

used “intricate transactions” to cover up his theft); State v. Hamann, 285
 26

N.W.2d 180, 184 (Iowa 1979) (en banc) (holding right or wrong under the

insanity test refers to “legal right or wrong”); see also State v. Crenshaw,

659 P.2d 488, 497 (Wash. 1983) (en banc) (“Such attempts to hide evidence

of a crime manifest an awareness that the act was legally wrong.”).

Here, shortly after brutally killing Carrie, Davis tried to hide her

body. He wrapped Carrie’s body in a sheet and several blankets. He then

rolled her body into a roll of carpet. He put her body in the back of his

trailer next to another rolled up carpet. He then drove the trailer first to

his parents’ house and then later to one of their vacant rental properties,
where he parked the trailer under a carport hidden from sight. The

defendant’s attempts to hide Carrie’s body manifested his understanding

of both the nature and wrongfulness of his conduct. See State v. Buck,

510 N.W.2d 850, 851, 853–54 (Iowa 1994) (holding no prejudice in waiving

jury trial where defendant hid the body of the decedent and a reasonable

jury would have found him guilty of first-degree murder despite the weak

insanity defense); see also Alvelo v. State, 724 S.E.2d 377, 382 (Ga. 2012)

(rejecting defendant’s contention he proved insanity defense where

evidence showed defendant’s “efforts to . . . hide the body indicated

[defendant] knew the wrongfulness of his actions”); Crenshaw, 659 P.2d

at 497 (stating defendant’s attempt to hide body manifested his awareness

his crime was wrong).

The evidence also showed Davis took deliberate action to clean up

the crime scene. After Davis killed Carrie, Davis placed his bloodstained

clothing near the washer and dryer. A garbage bag in the bed of his truck

contained damp clothing with apparent bloodstains and a paper towel with

similar stains. Inside the residence, Davis moved a mattress to cover a

bloodstained carpet. Davis’s attempts to clean up the crime scene are

inconsistent with his insanity defense. See Alvelo, 724 S.E.2d at 382
 27

(rejecting defendant’s contention he proved insanity defense where

evidence showed defendant’s “efforts to clean up the blood . . . indicated

[defendant] knew the wrongfulness of his actions”); Crenshaw, 659 P.2d

at 497 (holding defendant’s efforts to “clean up the blood” from crime scene

“manifest[ed] an awareness that the act was legally wrong”).

Davis also acknowledged the wrongfulness of his conduct. He

handwrote a note in which he admitted his conduct. In the note, he did

not claim he did not understand what he had done to Carrie. Instead, he

wrote he “was on drugs.” In the note, he confessed he killed Carrie in a
“vicious attack.” In the note, Davis apologized to Carrie’s family and

friends and demonstrated he understood what he had done and that it

was wrong. Davis’s expressions of remorse are inconsistent with his

insanity defense. See Frost v. State, 453 So.2d 695, 698 (Miss. 1984)

(“Actual expressions of remorse such as the ones at issue here would be

probative of whether a Defendant knew the difference between right and

wrong at the time he committed the crimes.”).

Davis’s interview with police also strongly undercuts his insanity

defense. One officer testified Davis’s demeanor was normal at the time the

police took him into custody. He was able to communicate with officers

without any problem. During his interview with the police, Davis was

coherent, lucid, and able to respond to questions. The defendant’s lucidity

during the interview cuts against his insanity defense. See Choisnet v.

State, 761 S.E.2d 322, 324, 326 (Ga. 2014) (holding defendant failed to

prove insanity defense where, among other things, the defendant was

“lucid and gave no indication of delusional thinking” during police

interview).

Given Davis’s conduct upon being taken into custody and during

the police interview, Davis’s evidence showed, at best, Davis experienced
 28

a temporary methamphetamine-induced psychosis. During Davis’s

evaluation with Dr. Arnold Andersen at the Iowa Medical and

Classification Center, Davis admitted to using methamphetamines around

the time he killed Carrie. Dr. Andersen testified Davis’s drug use was

voluntary. Davis’s voluntary drug use does not support his defense.

“Voluntary temporary intoxication does not excuse one for the criminal

consequences of his conduct.” State v. Booth, 169 N.W.2d 869, 873 (Iowa

1969). “[T]emporary insanity which arises from present voluntary

intoxication is not [a] defense[] . . . even though the defendant’s temporary
state of mind may meet the requirements of legal insanity contained in the

M’Naghten rule . . . .” Id. (quoting 21 Am. Jur. 2d Criminal Law § 44, at

128 (1969)).

Davis’s defense was further undermined by his own witness. Davis

called Dr. Andersen to testify. Upon questioning by defense counsel,

Dr. Andersen testified Davis had the specific intent to kill Carrie.

Dr. Andersen’s testimony regarding Davis’s intent to kill was so damaging

to the defendant’s case that Davis claims in this appeal that his counsel

was ineffective for eliciting the testimony.

Second, as in Kuhse, there was no risk of juror confusion here

because one of the focal points of the case was Davis’s insanity defense.

In this case, from the outset—even prior to the jury being empaneled—the

prospective jurors were informed this case was about Davis’s insanity

defense. Question No. 7 of the juror questionnaire stated the “[d]efendant

has asserted a defense of insanity/diminished responsibility. . . . Does the

fact that this defense is asserted affect your ability to decide this case fairly

and impartially on the evidence presented and the law as stated by the

Judge?” Each juror then provided responses in the questionnaire
 29

regarding their view of the insanity defense for the lawyers to use during

voir dire.

During voir dire, defense counsel implanted in the minds of the

jurors the centrality of the insanity defense. Defense counsel asked the

prospective jurors about their opinions on “mental health, psychiatrists,

psychologists, [and] mental health professionals.” He asked the

prospective jurors about their respective experience with health care

professionals and whether that would have an effect on their ability to

listen to the testimony of the defendant’s professionals and experts. He
asked the prospective jurors whether any knew of a person who had a

mental health issue and whether that would impact their ability to serve.

He asked the prospective jurors directly if they could “find someone not

guilty by reason of insanity” if the evidence supported it. The following

exchange is just an example:

COUNSEL: One of the other questions on the
questionnaire we talked about, diminished responsibility and
insanity. If there was evidence—I’m going to stick with you,
Ms. Hasek—evidence that supports it, could you find someone
not guilty by reason of insanity?

PROSPECTIVE JUROR HASEK: If evidence was there to
support it, yes.

COUNSEL: Okay. Obviously there’s a standard, and if
we supported it, you would be okay with that?

PROSPECTIVE JUROR HASEK: Yes.

COUNSEL: Mr. McShane?

PROSPECTIVE JUROR McSHANE: Yes.

COUNSEL: How are you?

PROSPECTIVE JUROR McSHANE: Good.

COUNSEL: Good. Same question. If the evidence
supported it, could you vote not guilty by reason of insanity?
 30
PROSPECTIVE JUROR McSHANE: Yes.

COUNSEL: Thank you. Mr. Taylor?

PROSPECTIVE JUROR TAYLOR: Yes.

COUNSEL: Same question. If the evidence supported
it, could you vote not guilty by reason of insanity?

PROSPECTIVE JUROR TAYLOR: Yes.

COUNSEL: Ms. Brecht, same question.

PROSPECTIVE JUROR BRECHT: Yes.

COUNSEL: Okay. Thank you. Mr. Allen?

PROSPECTIVE JUROR ALLEN: Yes.

COUNSEL: Same question.

PROSPECTIVE JUROR ALLEN: Yes.

COUNSEL: If the evidence supported it, you could vote
not guilty by reason of insanity?

PROSPECTIVE JUROR ALLEN: Yes.

COUNSEL: Mr. Tijerina?

PROSPECTIVE JUROR TIJERINA: Pretty close.

COUNSEL: Pretty close. Okay. We just met not long
ago. The same question. If the evidence supported it, could
you vote not guilty by reason of insanity?

PROSPECTIVE JUROR TIJERINA: I could, yes.

Defense counsel repeated this same line of questioning with other

prospective jurors as well.

The conduct of the trial further cemented in the jury’s collective

mind that a focal point of the case was Davis’s insanity defense. During

opening statements, the prosecutor directly addressed the issue. As noted

above, the very first words out of defense counsel’s mouth involved Davis’s

sanity. Defense counsel framed the entire case around this issue:
 31
You’re going to receive an instruction on whether or not
the defendant was insane during the time of this crime. . . .
Insanity means such a diseased and deranged condition that
someone cannot tell right from wrong. Greg Davis did not
believe he was doing wrong at this time.

Defense counsel then explained to the jury the centrality of the insanity

defense to the case. He said the State is “going to try to prove to you that

[Davis] didn’t have any mental health issues, that he was not insane when

this incident occurred. But that cannot be the case.” Defense counsel

told the jury about the delusional thoughts Davis allegedly had at the time

of the crime, such as seeing Jesus and the devil, and said, “These are not

the thoughts of a sane man.” Defense counsel then explicitly asked the

jury to return a verdict of not guilty by reason of insanity:

We have to prove to you beyond—we have to prove to
you by a preponderance of the evidence that Gregory Davis
was insane during the time of this incident. When the
evidence is before you, that will not be a difficult conclusion
to come to. Preponderance of the evidence is a different
standard than beyond a reasonable doubt. Preponderance of
the evidence is the lowest standard of the law. It is the easiest
burden to prove. It means that it was more likely than not
that Greg Davis was insane at the time of this crime.

We’re not asking you to excuse him because he was
voluntarily on meth, as the State would have you believe. We
are asking you to recognize that Greg was under an
involuntary psychosis and that this is the law that will be
presented to you. It is your obligation to interpret the evidence
as such. We believe that this evidence will be so compelling,
and that is why you are going to return a verdict of not guilty
by reason of insanity

The centrality of the insanity defense continued through trial and

closing argument. “This helped confirm for the jury that [the insanity

defense] was an essential part of its deliberations.” Kuhse, 937 N.W.2d at

630. Davis presented his insanity defense through the opinion testimony

of Dr. Konar and Dr. Andersen. Relying on their testimony, defense
 32

counsel directly addressed the issue in his closing argument, stating the

prosecutor

put up there the elements of murder one . . . . One of the
elements that he did not address which has been the core of
this case since we started—we talked about it from voir dire,
opening statement. It was never a whodunit. It was a why.

Defense counsel continued, explicitly tying the doctor’s testimony

regarding Davis’s sanity to the charge of murder in the first degree:

The only way you convict Greg Davis of murder in the
first degree is if you don’t believe both of those doctors. If you
believe that both of those doctors are wrong, then it’s murder
in the first degree. I submit to you the State has produced no
evidence to dispute that either of those doctors are wrong.

....

That’s why we have experts, to help us—to help explain
to us. Again, if you don’t believe either of those doctors, that’s
the only way you’re going to get a murder first degree. If you
believe those doctors, then it is not murder in the first degree.
It’s murder in the second degree or not guilty by reason of
insanity.

The prosecutor directly responded and argued the evidence showed Davis

was “not a man who has taken leave of his senses. This is not a man who

has lost touch with reality. He is as sane as rain.” The prosecutor asked

the jury to thus return a verdict of guilty of murder in the first degree.

The centrality of the insanity defense throughout the entire

proceeding—from jury selection, through opening statement, through the

presentation of evidence, and through closing argument—would be a

sufficient basis, standing alone, to conclude Davis failed to carry his

affirmative burden of establishing Strickland prejudice.

Third, as in Kuhse, Davis’s showing of Strickland prejudice is

undermined by the jury instructions given in this case. When this court

evaluates claims involving instructional error, the court should not “parse

particular phrases” but should “look at the instructions as a whole in light
 33

of the relevant standard of review.” Booker v. Mass. Dep’t of Pub. Health,

612 F.3d 34, 44 (1st Cir. 2010); see State v. Fintel, 689 N.W.2d 95, 104

(Iowa 2004) (“Jury instructions are not considered separately; they should

be considered as a whole.”).

Here, the jury was instructed it should consider all of the

instructions together as a whole. The district court read preliminary

instructions to the jury. The preliminary instruction stated, “The jury will

be instructed to consider all of the instructions together. No one

instruction includes all of the applicable law.” Jury Instruction No. 7 told
the jury to consider all of the instructions together: “You must consider all

of the instructions together. No one instruction includes all of the

applicable law.”

The instructions given here, when considered as a whole, make clear

the jury was to consider Davis’s insanity defense with respect to the charge

of murder in the first degree. Jury Instruction No. 14 set forth the jury’s

duty to consider the insanity defense with respect to the crime charged:

The Defendant claims he is not guilty by reason of
insanity. You must first determine if the State has proved all
the elements of the crime charged beyond a reasonable doubt.
If you find the State has proved all the elements, then you
must consider the issue of the Defendant’s sanity.

Jury Instruction Nos. 15 and 16 made clear the jury should consider

Davis’s insanity defense. Jury Instruction No. 15 provided: “The defendant

claims he is not criminally responsible for his conduct by reason of

insanity. A person is presumed sane and responsible for his acts.” Jury

Instruction No. 16 provided: “If the State has proved all the elements of a

crime, you should then determine if the Defendant has proved he was

insane.” Notably, Jury Instruction No. 16 provided the jury should

consider the insanity defense if the State proved all the elements of “a
 34

crime,” meaning any crime charged, without limitation. See Am. Bus Ass’n

v. Slater, 231 F.3d 1, 4–5 (D.C. Cir. 2000) (“[I]t is a rule of law well

established that the definite article ‘the’ particularizes the subject which it

precedes. It is a word of limitation as opposed to the indefinite or

generalizing force of ‘a’ or ‘an.’ ” (quoting Brooks v. Zabka, 450 P.2d 653,

655 (Colo. 1969) (en banc))).

The majority attempts to distinguish Kuhse on the ground the risk

of confusion is greater here because the marshaling instruction for murder

in the first degree failed to cross-reference Davis’s defense of insanity while
the lesser included offense instructions did cross-reference Davis’s defense

of insanity. The majority’s purported distinction does not hold for two

reasons: the majority’s distinction rests on the wrong legal standard, and

the majority’s distinction is contrary to the record and common sense.

The majority’s purported distinction rests on the wrong legal

standard. While the majority cites Strickland and purports to apply the

Strickland prejudice standard, it actually applies some sort of presumed-

prejudice standard for preserved error. See Kuhse, 937 N.W.2d at 629 (“A

‘presumed-prejudice standard applies to preserved errors in jury

instructions.’ However, ‘an ineffective-assistance-of-counsel claim based

on failure to preserve jury instruction error must demonstrate deficiency

and prejudice.’ ” (Citation omitted) (quoting State v. Lorenzo Baltazar, 935

N.W.2d 862, 871–72 (Iowa 2019)).). Under this new standard, the majority

concludes Davis established prejudice because the jury instruction

undermines the majority’s confidence in the verdict. However, this is not

the relevant standard under Strickland. Under Strickland, Davis must

show “a reasonable probability that the result of the trial would have been

different. The likelihood of a different result must be substantial, not just
 35

conceivable.” Ambrose, 861 N.W.2d at 557 (citation omitted).4 Nowhere

does the majority conclude, as Strickland and Kuhse require, that Davis

established a reasonable probability the result of the trial would have been

different.

Not only does the majority opinion apply the wrong legal standard,

its erroneous standard leads the majority to misapprehend and understate

the value citizen jurors bring to the administration of criminal justice.

[T]he essential feature of a jury obviously lies in the
interposition between the accused and his accuser of the
commonsense judgment of a group of laymen, and in the
community participation and shared responsibility that
results from that group’s determination of guilt or innocence.

Williams v. Florida, 399 U.S. 78, 100, 90 S. Ct. 1893, 1906 (1970). Jurors

are serious-minded in taking the oath. Jurors discharge their civic duty

with the seriousness and earnestness the occasion demands. Jurors

“undertake[] deliberations that are honest, candid, robust, and based on

common sense.” Peña-Rodriguez v. Colorado, 580 U.S. ___, ___, 137 S. Ct.

855, 861 (2017). The application of common sense in the administration

of justice is one of the central values of the jury system:

One of the main objects of a jury trial is to secure to parties
the judgment of 12 men of average intelligence, who will bring
to bear upon the consideration of the case the sound common
sense which is supposed to characterize their ordinary daily
transactions. If cases were to be decided alone by the
application of technical rules of law and evidence, it could
better be done by men who are learned in the law, and who

4This is the showing required to establish Strickland prejudice with respect to all
unpreserved claims of instructional error. See Lorenzo Baltazar, 935 N.W.2d at 872
(finding that even where there was outdated language within the jury instruction, the
defendant could not show prejudice due to the overwhelming evidence against him);
Ambrose, 861 N.W.2d at 557–59 (deciding there was no ineffective assistance of counsel
when defense counsel failed to object to an instruction that told the jury not to consider
lesser included offenses until it had acquitted the defendant of the greater offense); State
v. Propps, 376 N.W.2d 619, 623–24 (Iowa 1985) (holding the defendant failed to establish
prejudice where the omission of a knowledge element from marshaling instruction was
cured by other instructions).
 36
have made it the study of their lives; and while it is entirely
true that the jury are bound to receive the law from the court,
and to be guided by its instructions, it by no means follows
that they are to abdicate their common sense, or to adopt any
different processes of reasoning from those which guide them
in the most important matters which concern themselves.
Their sound common sense, brought to bear upon the
consideration of testimony, and in obedience to the rules laid
down by the court, is the most valuable feature of the jury
system, and has done more to preserve its popularity than any
apprehension that a bench of judges will willfully misuse their
power.

Dunlop v. United States, 165 U.S. 486, 499–500, 17 S. Ct. 375, 380 (1897).

The jury brings this collective common sense to reading,
understanding, and applying the jury instructions.

Jurors do not sit in solitary isolation booths parsing
instructions for subtle shades of meaning in the same way
that lawyers might. Differences among them in interpretation
of instructions may be thrashed out in the deliberative
process, with commonsense understanding of the
instructions in the light of all that has taken place at the trial
likely to prevail over technical hairsplitting.

Boyde v. California, 494 U.S. 370, 380–81, 110 S. Ct. 1190, 1198 (1990).

The jury is not composed of technocrats who apply arcane Latin maxims

of statutory construction to parse jury instructions.

Other courts applying the Strickland prejudice standard have

recognized the strength and value of the jury system and reached the same

conclusion this court reached in Kuhse:

Upon this record, [there is] little potential for the jury
being misdirected sufficiently to cause a miscarriage of justice
when all the instructions are read together, especially in light
of the lengthy record in which substantially all the evidence
focused on a single defense. Reading the instructions together
in the light of the facts here presented, no reasonably attentive
and intelligent juror could have been misled or confused by
the failure to include [a cross reference in the marshaling
instruction].

State v. Howard, 896 S.W.2d 471, 484 (Mo. Ct. App. 1995) (citation

omitted); see also Patterson v. State, 576 S.W.3d 240, 246 (Mo. Ct. App.
 37

2019) (holding defendant failed to establish Strickland prejudice due to

omission of cross-reference to defense in instructions where the

instructions as a whole referenced the defense); Wright v. State, 125

S.W.3d 861, 867 (Mo. Ct. App. 2003) (holding defendant failed to establish

Strickland prejudice due to lack of cross-reference to defense in

instructions where “trial counsel explained the concepts of self-defense

and defense-of-another in his closing arguments to the jury,” and “the trial

court instructed the jury on justification”). I would follow Kuhse and the

persuasive authority.
The defendant is entitled to a fair trial, not a perfect one. See State

v. Webster, 865 N.W.2d 223, 233 (Iowa 2015). He undoubtedly received a

fair trial. Here, able counsel on both sides vigorously contested the case.

The defendant was able to present his theory of the case to a jury of his

peers. Defense counsel put the relevant question directly to the jury in his

closing statement: “[t]he only way you convict Greg Davis of murder in the

first degree is if you don’t believe both of those doctors.” (Emphasis added.)

The jury didn’t. I would respect the jury’s verdict. See Barany v. State,

658 N.E.2d 60, 64 (Ind. 1995) (affirming jury’s verdict where “the medical

experts were unanimous in concluding that appellant was insane at the

time of the killing” but “the State offered testimony from several lay

witnesses that indicated that appellant was sane”). The State and the

victim’s family have an interest in finality. That interest should not be

disturbed in the absence of a showing of a reasonable probability of a

different result if the matter were retried. Davis has not made such a

showing.

For these reasons, I would affirm the defendant’s conviction. I

respectfully dissent.

Mansfield and Oxley, JJ., join this dissent.