(dissenting).
I respectfully dissent. I find the instruction should have been objected to. I find no conceivable strategic reason not to object to it. I would reverse and remand to the trial court.
The majority does not discuss the instruction problem in its opinion. Defendant and the State agree the evidence is that defendant himself killed Eaton. There is no evidence defendant was an aider or abettor. Rather, the evidence was that Titus was the aider and abettor.
Defendant was entitled to have second-degree murder, manslaughter, and involuntary manslaughter submitted as lesser included offenses. See State v. Jeffries, 430 N.W.2d 728, 737-41 (Iowa 1988). The problem was the jury was instructed that they could consider the lesser included offenses only if they found defendant aided and abetted Titus in the killing.
Defendant was clearly prejudiced by this submission. It is obvious the mistake occurred because the file, including the instructions, from Titus’s case was used, with defendant’s name exchanged for Titus’s. There is no explanation for the error in submission.
Defendant should have a new trial.