(dissenting).
Defendant contends his conviction was tainted by ineffectiveness of counsel which occurred at three separate stages of this criminal proceeding: during plea bargaining; during presentation of opening statements and evidence to the jury; and near the close of trial when the jury was instructed on the elements of the charged offense and lesser included offenses. I agree with the majority that defendant is entitled to relief from the judgment of conviction because he has established he was prejudiced by his counsel’s failure to perform an essential duty. From my review of this record, however, I conclude that the only prejudicial error resulted from counsel’s failure to object to clearly erroneous jury instructions. I would reverse and remand for a new trial.
To obtain relief on a sixth amendment claim that counsel was ineffective a defendant must prove by a preponderance of the evidence that counsel failed to perform an essential duty and that the failure caused such prejudice as to constitute “a denial of the accused’s due process right to a fair trial, a fundamental miscarriage of justice, or an equivalent constitutional deprivation.” State v. Miles, 344 N.W.2d 231, 234 (Iowa 1984); see Strickland v. Washington, 466 U.S. 668, .695, 104 S.Ct. 2052, 2069, 80 L.Ed.2d 674, 698 (1984) (accused must show that counsel’s unprofessional errors caused a different result). We review such constitutional issues de novo. Taylor v. State, 352 N.W.2d 683, 684 (Iowa 1984).
I. The Rejected Plea Bargain.
Defendant has not demonstrated he would have pleaded guilty to the charge of involuntary manslaughter if his counsel and the court in its colloquy with defendant had more clearly explained the elements of second-degree murder. Several factors lead me to that conclusion. Defendant’s counsel vigorously recommended that he plead guilty to involuntary manslaughter, and defendant’s initial acceptance of that advice brought about the hearing before Judge Briles and subsequent colloquy. The court correctly pointed out, and defendant understood from the colloquy, that a guilty plea would put him at risk for a sentence of five years in prison. To me it is plain defendant decided not to plead guilty to involuntary manslaughter for the reason he told the court: “I don’t feel I deserve ... going to prison for five years.” Defendant rejected the plea bargain at that point not because he misunderstood the technical elements of second-degree murder but because he was unwilling to accept the likely prison sentence.
It is also noteworthy that after that colloquy the prosecution left open until the commencement of trial the same proposed plea bargain, and during the intervening four months defendant’s counsel continued to urge its acceptance. Again I conclude the likelihood of a five year sentence, not counsel’s ineffectiveness, caused defendant to stand his ground. This record does not support defendant’s contention that he would have accepted the plea if he had understood more clearly the elements of second-degree murder.
I also disagree with the remedy selected by the majority, a disposition which allows defendant on remand to accept the plea bargain formerly offered and directs the district court to accept such a plea. This disposition deprives the State of its ordinary prosecutorial discretion and also invades the usual discretion of the trial court to determine whether any plea bargain should be accepted under the circumstances existing at the time a defendant offers *678to plead guilty. In Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984), the Court drew a sharp line of demarcation between defective guilty pleas and bare plea bargains which have not been approved and accepted by the Court.
A plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest. It is the ensuing guilty plea that implicates the Constitution.
Id. at 507, 104 S.Ct. at 2546, 81 L.Ed.2d at 442. Here, as in Mabry, the fruitlessness of plea negotiations did not amount to “a denial of the accused’s due process right to a fair trial, a fundamental miscarriage of justice, or an equivalent constitutional deprivation.” Miles, 344 N.W.2d at 234; cf. State v. Aschan, 366 N.W.2d 912, 915 (Iowa 1985) (affirming judgment of conviction resulting “not from a tainted guilty plea but from a jury trial”). Defendant has not demonstrated that he was prejudiced by the claimed ineffectiveness of his counsel in advising him concerning plea bargaining.
II. Trial Strategy.
On the second ineffectiveness claim, I agree with the majority that defendant has not shown his counsel failed to represent him properly in connection with waiver of an opening statement and presentation of evidence to the jury. On those matters involving trial tactics and strategy, defendant’s claim of ineffectiveness is without merit because defendant's trial attorney acted reasonably in selecting and following through on the chosen strategy of attempting to persuade the jury this case involved an accidental shooting. See State v. Wilkens, 346 N.W.2d 16, 19 (Iowa 1984); State v. Veverka, 271 N.W.2d 744, 750-51 (Iowa 1978).
III. Erroneous Jury Instructions.
I do find merit in defendant’s contention that he was prejudiced when his counsel failed to object to the trial court’s jury instructions on the elements of second-degree murder and involuntary manslaughter. Failure of defense counsel to point out flaws in jury instructions may be so egregious and prejudicial as to mandate a new trial for infringement of a defendant’s sixth amendment right to effective assistance of counsel. State v. Goff, 342 N.W.2d 830, 838 (Iowa 1983). Defendant has proved that a failure of that magnitude occurred in this case.
Defendant’s trial counsel submitted no proposed jury instructions and made no objections to the trial court’s charge to the jury. In my view, however, the trial court’s charge misinformed the jury on several elements of murder in the second degree and the lesser included charge of involuntary manslaughter. The missing elements were critical to defendant’s theory that the gun had accidentally discharged. See State v. Blackford, 335 N.W.2d 173, 178 (Iowa 1983) (defense counsel’s primary concern should be the elements “essential to the theory of the defense”).
In its marshalling instruction on the elements of murder in the second degree, the trial court did not inform the jury that the State was required to prove defendant intentionally shot the victim, stating rather that the first element was that defendant “did unlawfully shoot” the victim. The word “unlawfully” in that instruction suggested that any unlawful shooting, regardless of the intention to perform the act, would suffice. Although specific intent to kill was not an element of second-degree murder, general intent to commit the act of shooting was required. See State v. McCormack, 293 N.W.2d 209, 212 (Iowa 1980); Dunahoo, The New Iowa Criminal Code, 32 Drake L.Rev. 61, 78 (1983).
The State argues that the court’s instruction on malice aforethought provided the element of general intent, but I disagree. The references to “intentionally” and “deliberate” in the five-paragraph instruction on malice were nowhere repeated or directly referenced in the marshalling instruction setting forth the elements of second-degree *679murder. The jury could well have been misled by that instruction into believing that second-degree murder could be committed by an accidental, though unlawful, shooting of the victim. The firing of a weapon under circumstances which constituted an assault or even involuntary manslaughter would be unlawful but not necessarily second-degree murder. The important question for the jury to answer was whether this shooting was or was not intentional. The failure to object to the instruction setting forth the elements of second-degree murder constituted prejudicial ineffective assistance of counsel.
Even more crucial to defendant’s theory that the shooting was accidental were the instructions governing involuntary manslaughter. The definition of involuntary manslaughter applicable to the facts in this case was set forth in Iowa Code section 707.5(1) (1983). See State v. Ware, 338 N.W.2d 707, 715 (Iowa 1983); State v. Inger, 292 N.W.2d 119, 122-24 (Iowa 1980). The State was required to prove beyond a reasonable doubt that the defendant (1) unintentionally, (2) recklessly, and (3) without justification, (4) caused the death of another person, (5) by the commission of a public offense other than a forceable felony or escape. See Dunahoo, The New Iowa Criminal Code: Part II, 29 Drake L.Rev. 491, 588 (1980); State v. Conner, 292 N.W.2d 682, 686 (Iowa 1980) (recklessness a necessary element of both definitions of involuntary manslaughter). The trial court’s marshalling instruction on involuntary manslaughter, however, omitted the second element and only vaguely referred to the first and fifth elements. The instructions did not make clear that the implicated public offense was assault. The very essence of counsel’s theory of defense was the accidental nature of this tragic homicide. The instructions to the jury missed that central point.
I would grant defendant a new trial because (1) defendant’s trial counsel should have assisted the court, the jury, and his client by providing accurate instructions focused on the theory of the defense, and (2) there is a reasonable probability that if the jury had been correctly instructed on the elements of the charged and included offenses it would have returned a verdict of guilty on the lesser included offense of involuntary manslaughter, not the charged offense of second-degree murder.
I would vacate the decision of the court of appeals, reverse defendant’s conviction of murder in the second degree, and remand this case for a new trial.
McGIVERIN, SCHULTZ and NEUMAN, JJ., join this dissent.