               IN THE SUPREME COURT OF IOWA
                              No. 07–1999

                          Filed January 8, 2010


STATE OF IOWA,

      Appellee,

vs.

JUNE BETTY LYMAN,

      Appellant.



      Appeal from the Iowa District Court for Woodbury County,

Duane E. Hoffmeyer, Judge.



      The defendant appeals her conviction for second-degree murder.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Martha J. Lucey,

Assistant State Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant

Attorney General, Patrick Jennings, County Attorney, and Terry C.

Ganzel, Assistant County Attorney, for appellee.
                                      2

WIGGINS, Justice.

      The defendant appeals from her conviction for second-degree

murder alleging that the district court erred in holding she was

competent to stand trial and by failing to instruct the jury that murder in

the second degree is a specific intent crime. She also claims her trial

counsel provided ineffective assistance of counsel by failing to redact

and/or object to the introduction of evidence depicting the defendant’s

repeated invocations of her right to remain silent as well as failing to

object to prosecution references to these statements during closing

arguments.     In this appeal, we find the district court correctly

determined the defendant was competent to stand trial and that she was

not entitled to a specific intent instruction.     We also find the record

inadequate    to   decide    her   ineffective-assistance-of-counsel   claim.

Accordingly, we affirm her conviction.

      I.     Background Facts and Proceedings.

      June Lyman dropped out of high school and married Bob Auen

when she was fifteen years old. She had three daughters and one son

during the course of the marriage. A court dissolved her marriage after

seven or eight years.       In 1967 June married Leo Lyman, Sr.        Their

relationship was rocky.       During the marriage, Leo allegedly sexually

assaulted June’s three daughters from her first marriage. In May 1970

Leo was charged with three counts of lascivious acts with a child but the

case was later dismissed for lack of prosecution. The couple divorced in

July 1979 but later remarried in November. The couple divorced for a

second time in 1998; however, they remarried a third time sometime

before 2006. In 2004, Sandra, one of June’s three daughters, committed

suicide causing June to experience increased depression and anxiety.
                                    3

      At approximately 8:14 p.m. on May 15, 2006, June called her

daughter-in-law and asked to speak to her son. He was not home, so

she hung up.    Seven minutes later, an anonymous female called 911,

gave an address, requested police assistance, and reported a dead body

in the residence.   The phone used to make the call was listed under

June’s name and the address provided was her residence. At 8:31 p.m.,

June called her daughter-in-law and again asked to speak to her son. At

8:33 p.m., June called her daughter-in-law for a third time, again asked

to speak to her son, and then stated, “oh, God, I just shot Dad” and hung

up.

      Deputy Todd Peterson arrived at June’s residence around the time

June made the last call to her daughter-in-law.         Upon entering the

residence, he noticed Leo lying on the floor on his right side, facing the

door, with blood coming from his mouth. He also saw a revolver lying on

the floor directly behind Leo. The police later identified the revolver as

the murder weapon.     While Peterson was checking Leo’s vitals, June

entered the room, stood over Leo, and told Peterson that he deserved

what he got, he was a child molester, and she hoped he was dead. June

further stated that he should have been dead a long time ago, she had

shot him, and her fingerprints were all over the gun.

      A volunteer EMT, who was on the scene to administer first aid,

confirmed Leo was dead. He had been shot four times, with the lethal

shot striking him in the left lower chest. While working on Leo, the EMT

heard June say, “yes, I did it.    I shot him.”   At the scene, Peterson

observed that June spoke coherently, appeared to understand what was

going on, and at one point even asked to make a phone call so that

someone could take care of her dog.      Peterson smelled alcohol in the

residence and on June’s breath. He noticed there were numerous beer
                                     4

cans in the kitchen. He also thought June’s words were not slurred, but

her balance was a little unsteady. June admitted to him that she was

intoxicated.

      Peterson read June the Miranda warning at approximately

8:37 p.m.      Peterson observed that June appeared to understand her

rights when he read them to her. A short time thereafter, she requested

an attorney.     Peterson allowed June to call her daughter-in-law before

transporting her to the law enforcement center. During the transport,

June voluntarily made numerous incriminating statements that were

recorded by the patrol car’s video recording system, such as, “I shot the

motherfucker,” “I’ve already admitted to you I killed him,” and “I shot the

fucker.   Hey, and I can’t deny it.      My fingerprints are on the gun.”

During the transport, June also repeatedly referenced her right to an

attorney and her right to remain silent.

      Upon arriving at the law enforcement center, Deputy Todd Wieck

walked June to an office. June appeared to act normal, seemed to know

what was going on, did not slur her words, and did not appear

intoxicated.    Wieck placed June in an office furnished with videotape

equipment. Another deputy informed her that she was being recorded

and reread the Miranda warning. After hearing the Miranda warning for

a second time, June again stated, “I want an attorney.”        Due to her

request, the officers did not question her.        However, rather than

remaining silent, June continued to voluntarily make incriminating

statements such as, “I shot the gun,” “I never thought it was that easy to

die or I would have done it a long time ago,” and “[w]ell, it’s not self-

defense actually. I wasn’t threatened, but I had a reasonable reason.” At

the same time, June continued to request an attorney and state that she

probably should not be saying anything.
                                             5

       While at the law enforcement center, investigators performed a

blood-alcohol-content test on June. A deputy administered a breath test

at approximately 12:32 a.m. to determine June’s blood-alcohol content.

June admitted to drinking ten beers and stated she felt buzzed at the

time the test was administered. The test’s final reading confirmed that

June’s blood-alcohol content was 0.133.               Using a standard absorption

rate, June’s blood-alcohol content was approximately 0.213 at the time

she called 911.         Moreover, June also had prescriptions for the drugs

Lipitor, Wellbutrin XL, Alprazolam, Naproxen, Daltiazem, Premarin, and

Triamterene at the time of the shooting.

       The State charged June with murder in the first degree. June filed

a motion requesting the district court determine whether she was

competent to stand trial.           She claimed an inability to remember and

recall facts surrounding the shooting, making her unable to assist her

attorneys in preparing her defense and rendering her incompetent

pursuant to Iowa Code section 812.3 (2005). 1

       After hearing testimony from experts on both sides, the district

court concluded June had failed to carry her burden of proof to show her

incompetence.           Therefore, the presumption of June’s competency
prevailed. Accordingly, the court denied the motion and set the matter

for trial.

       June then filed a motion for the adjudication of a law point,

seeking a determination from the court regarding whether second-degree

murder, under Iowa Code section 707.3, is a specific intent crime. The

district court stated its preliminary observation and research indicated

second-degree murder was not a specific intent crime.                    However, the



       1All   references to the Iowa Code are to the 2005 Code unless otherwise noted.
                                    6

court deferred action on the motion to the time and place June made her

record on the jury instructions.

      At trial, the State played the full video recordings of June’s

transport to the law enforcement center as well as her later detention in

an office located within the center. At no point during the presentation

of this evidence did her attorneys object or ask to redact any portion of

the videos.

      At the conclusion of the evidence, June renewed her argument that

because assault, a specific intent crime, is a lesser-included offense of

second-degree murder, the specific intent required for an assault must

be proven to establish second-degree murder.      Therefore, June argued

that to establish second-degree murder the State was required to prove

beyond a reasonable doubt that she had the specific intent to commit an

assault even though the State need not establish a specific intent to kill.

The district court denied June’s motion and found that second-degree

murder is a general intent crime.

      During the State’s closing argument, the prosecuting attorney

referred three times to June’s invocation of her right to remain silent by

requesting an attorney.      June’s counsel did not object to these

references. The jury returned a unanimous verdict finding June guilty of

the lesser-included offense of murder in the second degree.          June

appeals.
      II. Issues.

      In this appeal, June raises three issues. First, we must determine

whether the district court’s determination that June was competent to

stand trial was correct. Next, we must decide whether the district court

properly instructed the jury with regard to the elements of murder in the

second degree. Finally, we must consider whether June’s trial counsel
                                    7

was ineffective for failing to redact and/or object to the introduction of

the video evidence depicting June’s repeated invocations of her right to

remain silent by requesting an attorney and for failing to object to

references concerning these invocations made in the prosecutor’s closing

argument.

      III. Competence to Stand Trial.

      A. Standard of Review. June claims the standard of review is de

novo. The State claims the standard of review is for correction of errors

at law and that we are bound by the district court’s finding of

competency, if it is supported by substantial evidence.    June and the

State cite Iowa authority for their respective positions. Accordingly, to

determine the proper standard of review, it is necessary to review the

applicable cases and statutes pertaining to competency.

      The trial of an incompetent defendant in a criminal matter violates

the defendant’s due process rights as guaranteed by the Fourteenth

Amendment to the United States Constitution. Cooper v. Oklahoma, 517

U.S. 348, 354, 116 S. Ct. 1373, 1376, 134 L. Ed. 2d 498, 505–06 (1996).

Therefore, whether a defendant is competent to stand trial implicates a

constitutional right.   State v. Edwards, 507 N.W.2d 393, 395 (Iowa

1993).

      Prior to January 1, 1978, a jury determined a defendant’s

competency to stand trial. Iowa Code § 783.2 (1975); see also State v.

Drosos, 253 Iowa 1152, 1156, 114 N.W.2d 526, 528 (1962) (recognizing it

is well settled law in Iowa that a jury determines the mental competency

of a defendant to stand trial). Because a jury made the determination of

a defendant’s competency, we reviewed the jury’s finding for substantial

evidence and did not conduct a de novo review. Id.
                                    8

      Effective January 1, 1978, the legislature repealed section 783.2.

1976 Iowa Acts ch. 1245, ch. 4, §§ 526, 529. In its place, the legislature

enacted section 812.4. 1976 Iowa Acts ch. 1245, ch. 2, § 1204. Section

812.4 required the court to make the determination of a defendant’s

competency to stand trial. Iowa Code § 812.4 (Supp. 1977). Although

the legislature has amended chapter 812 numerous times since 1978,

the determination of a defendant’s competency to stand trial has

remained with the court. See Iowa Code § 812.5 (stating the court shall

receive all relevant evidence and make the determination of a defendant’s

competency to stand trial).

      Since 1978, we have been somewhat inconsistent as to the

standard of review we use to determine if a defendant is competent to

stand trial.   In State v. Lyon, 293 N.W.2d 8, 10 (Iowa 1980), the

defendant’s competency to stand trial became an issue during the trial.

At that point, the court recessed the trial, personally questioned the

defendant, and heard testimony from various experts regarding the

defendant’s competency.       Lyon, 293 N.W.2d at 12.     Based on this

testimony, the trial court found the defendant competent to stand trial.

Id. There, we conducted a de novo review, considered all the defendant’s

circumstances, and affirmed the trial court’s finding of competency. Id.

at 9, 12–13.

      One year later, we were confronted with another case where a

defendant’s competency to stand trial was at issue.     State v. Jackson,

305 N.W.2d 420, 422 (Iowa 1981). There, the trial court held a pretrial

competency hearing.     Id.    In reviewing the competency ruling, we

determined the standard of review was at law to determine whether

substantial evidence supported the trial court’s determination of

competency. Id. at 425. In reaching this conclusion, we did not discuss
                                     9

the constitutional implications of the competency issue, but instead

relied on our pre-1978 decisions reviewing jury determinations of

competency. Id.

      In 1981, we were again confronted with a case involving a

defendant’s mental competency to stand trial.      State v. Pedersen, 309

N.W.2d 490, 491 (Iowa 1981). In Pedersen, the trial court conducted a

pretrial hearing to determine the defendant’s competency.       Id. at 492.

After hearing testimony from conflicting experts, the trial court found the

defendant competent to stand trial. Id. During the trial, the defendant

began to display odd behavior.      Id. at 492–95.    The trial continued

despite this behavior.    Id.   Noting that the trial of an incompetent

defendant deprives that defendant of due process of law, we conducted a

de novo review of the entire record including the pretrial hearing, the

defendant’s conduct during trial, and his conduct following trial. Id. at

495–501.

      Two years later, we were again confronted with the issue of

competency.    State v. Aswegan, 331 N.W.2d 93, 95 (Iowa 1983).          In

Aswegan, two pretrial hearings were held to determine the defendant’s

competency to stand trial. Id. After the second hearing, the trial court

found the defendant competent to stand trial. Id. There, we held the

defendant did not raise a due process challenge with respect to the

pretrial competency hearing; therefore, our review was not de novo. Id.

This holding is inconsistent with the Supreme Court’s statement that,

“ ‘[c]ompetence to stand trial is rudimentary, for upon it depends the

main part of those rights deemed essential to a fair trial, including the

right to effective assistance of counsel . . . .’ ” Cooper, 517 U.S. at 354,

116 S. Ct. at 1376–77, 134 L. Ed. 2d at 506 (quoting Riggins v. Nevada,

504 U.S. 127, 139–40, 112 S. Ct. 1810, 1817, 118 L. Ed. 2d 479, 492
                                     10

(1992) (Kennedy, J., concurring)).    We cannot see how the issue of a

defendant’s competence to stand trial does not implicate a defendant’s

due process rights.

      In 1985, we reviewed another case involving the competency issue.

State v. Emerson, 375 N.W.2d 256, 260 (Iowa 1985), abrogated on other

grounds by Horton v. California, 496 U.S. 128, 110 S. Ct. 2301, 110

L. Ed. 2d 112 (1990). In Emerson, the trial court held a pretrial hearing

and determined the defendant was competent to stand trial.         Id.   On

appeal, we held the standard of review was de novo because

constitutional safeguards were implicated. Id. at 261.

      In 1993, we decided State v. Edwards, 507 N.W.2d 393 (Iowa

1993). There, the defendant’s competency became an issue during trial

due to his obstreperous behavior.     Edwards, 507 N.W.2d at 394.        We

reviewed the defendant’s trial conduct de novo to determine if he was

competent to stand trial because the issue of his incompetence raised a

constitutional issue. Id. at 395.

      Finally, in 1996, we decided State v. Rieflin, 558 N.W.2d 149 (Iowa

1996). There, after a pretrial hearing, the trial court found the defendant

competent to stand trial.       Rieflin, 558 N.W.2d at 151.       On our

discretionary review, we relied on Jackson and Aswegan in holding the

scope of review was at law for substantial evidence because the court

had held a pretrial competency hearing.     Id. at 151–52.   We did note,

however, if competency became an issue during trial, our review was de

novo. Id. The Rieflin court did not distinguish Emerson or discuss the

constitutional implications of a competency-to-stand-trial challenge.

      We believe Jackson, Aswegan, and Rieflin were wrongly decided as

to the standard of review required when this court reviews a defendant’s

pretrial hearing to determine his or her competence to stand trial.
                                    11

Jackson relied on our old cases, decided under a statute that allowed a

jury to determine the defendant’s competence to stand trial.         Jackson,

305 N.W.2d at 425.       Aswegan and Rieflin failed to consider that a

defendant’s competency to stand trial implicates a constitutional right.

Rieflin, 558 N.W.2d at 151–52; Aswegan, 331 N.W.2d at 95.            In Iowa,

when an appeal involves a defendant’s constitutional rights, we review

the appeal de novo. See, e.g., State v. Bruegger, 773 N.W.2d 862, 869

(Iowa   2009)   (reviewing   sentence    under   the   Cruel   and   Unusual

Punishment Clause); Formaro v. Polk County, 773 N.W.2d 834, 838 (Iowa

2009) (reviewing claim that a statute violated the Ex Post Facto Clause);

State v. Harper, 770 N.W.2d 316, 319 (Iowa 2009) (reviewing claim

involving the Confrontation Clause); State v. Cromer, 765 N.W.2d 1, 6

(Iowa 2009) (reviewing ineffective-assistance-of-counsel claim under the

Sixth Amendment); State v. Kramer, 760 N.W.2d 190, 193–94 (Iowa

2009) (reviewing application of the Double Jeopardy Clause under the

Fifth Amendment); State v. Mitchell, 757 N.W.2d 431, 434 (Iowa 2008)

(reviewing constitutionality of a statute under the Equal Protection

Clause); State v. Willard, 756 N.W.2d 207, 211–12 (Iowa 2008) (reviewing

prohibition against bills of attainder under the Federal and Iowa

Constitutions); State v. Fremont, 749 N.W.2d 234, 236 (Iowa 2008)

(reviewing validity of a search warrant under the Fourth Amendment);

State v. Harris, 741 N.W.2d 1, 5 (Iowa 2007) (reviewing right against self-

incrimination under the Fifth Amendment); State v. Wells, 738 N.W.2d

214, 218–19 (Iowa 2007) (reviewing breakdown of the attorney-client

relationship under the Sixth Amendment); State v. Smitherman, 733

N.W.2d 341, 345 (Iowa 2007) (reviewing conflict of interest implicating

the right to counsel under the Sixth Amendment).
                                     12

      We review de novo a district court decision implicating a

defendant’s constitutional rights, even if the district court held a full

hearing on the matter below. Formaro, 773 N.W.2d at 838; Harper, 770

N.W.2d at 319; Willard, 756 N.W.2d at 211; Fremont, 749 N.W.2d at 236;

Harris, 741 N.W.2d at 4–5; Smitherman, 733 N.W.2d at 344–45.             The

distinction made in Rieflin, that our review is de novo if the district court

did not conduct a competency hearing, but for substantial evidence if the

district court held a competency hearing, is inconsistent with our

jurisprudence regarding the standard of review when constitutional

issues are implicated.    We see no reason to treat a defendant’s due

process rights, implicated by a claim of competency to stand trial, any

differently from our review of other constitutional issues. Accordingly,

we review a trial court’s decision as to a defendant’s competency to stand

trial de novo and overrule any of our prior cases holding otherwise.

      B. Legal Framework. At common law, the State could not try a

criminal defendant if that person’s mental condition was such that he or

she lacked the capacity to understand the nature and object of the

proceedings, to consult with counsel, and to assist in preparing a

defense. Drope v. Missouri, 420 U.S. 162, 171, 95 S. Ct. 896, 903, 43

L. Ed. 2d 103, 112–13 (1975). The Supreme Court has stated the test to

determine if a criminal defendant is competent to stand trial is whether

the person “ ‘has sufficient present ability to consult with [counsel] with

a reasonable degree of rational understanding—and whether [the person]

has a rational as well as factual understanding of the proceedings.’ ”

Dusky v. United States, 362 U.S. 402, 402, 80 S. Ct. 788, 789, 4

L. Ed. 2d 824, 825 (1960) (per curiam). In Iowa, we define the test as

whether “the defendant is suffering from a mental disorder which

prevents the defendant from appreciating the charge, understanding the
                                      13

proceedings, or assisting effectively in the defense.”              Iowa Code

§ 812.3(1); accord Rieflin, 558 N.W.2d at 152; Edwards, 507 N.W.2d at

395; Lyon, 293 N.W.2d at 9. The common thread running through these

tests is that a criminal defendant must be able to effectively assist

counsel in his or her defense.

      We presume a defendant is competent to stand trial.            Pedersen,

309 N.W.2d at 496. The defendant has the burden of proving his or her

incompetency to stand trial by a preponderance of the evidence. Id. If

the evidence is in equipoise, the presumption of competency prevails. Id.

Moreover, once a court finds a defendant competent to stand trial, the

presumption of competency continues unless and until the defendant

produces new evidence to the contrary. Jackson, 305 N.W.2d at 425–26.

      In this appeal, June argues she suffers from amnesia concerning

the facts and events surrounding the shooting; therefore, she asserts she

was incompetent to stand trial because she was unable to effectively

assist in her own defense. Particularly, she claims she was unable to

assist her counsel in determining whether the defense of self-defense

would be available to her.

      Amnesia on its own will not render a criminal defendant

incompetent to stand trial.      Emerson, 375 N.W.2d at 261.         Rather, a

court must determine whether an amnesic defendant is competent to

stand trial by the circumstances of each individual case. United States v.

Swanson, 572 F.2d 523, 526 (5th Cir. 1978). A subjective circumstance

to consider is the defendant’s present ability to assist counsel in his or

her defense.   Id.   Under a subjective circumstance analysis, the court

should   consider    the     defendant’s   particular   situation    including:

(1) whether the defendant has the present ability to take the stand on

matters other than the amnesic event, (2) whether the defendant suffers
                                    14

from other pathological or psychological conditions that hinder the

defendant’s present ability to assist in his or her defense, and (3) whether

a continuance would remediate the situation. Id. at 526–27.

        An objective circumstance to consider is whether the defendant

can receive a fair trial despite his or her amnesia. Id. at 527. To analyze

this factor, a court should consider: (1) whether the crime and the

defendant’s whereabouts could be reconstructed without the defendant’s

testimony, (2) whether access to the information contained in the State’s

files would help fill in the gaps of the defendant’s memory, and (3) how

the defendant’s testimony would affect the strength of the State’s case.

Id.

        C. Analysis. The experts testifying regarding June’s competency

to stand trial offered differing opinions as to the extent and permanency

of June’s amnesia.     On our de novo review, we find her amnesia is

probably due to patchy memory retrieval, rather than memory formation.

We reach this conclusion because she is able to remember some of the

events, but not all of them.     Although we cannot say whether June’s

amnesia is permanent or transient, we do believe it will probably last

indefinitely into the future.   From a subjective standpoint, we are left

with an individual who has a memory of the events, but for some reason

cannot relate her entire memory of the events to her attorneys at this

time.    We do not believe a continuance will help her patchy memory

retrieval.

        June’s situation is not unlike many persons who are involved in

similar incidents. No person’s memory is complete; even under the best

conditions everyone is amnesic to some degree due to the natural loss of

memory or the failure to observe. State v. Martens, 521 N.W.2d 768, 771

(Iowa Ct. App. 1994); see also United States v. Stevens, 461 F.2d 317,
                                     15

320 (7th Cir. 1972); State v. McClendon, 437 P.2d 421, 423, 425 (Ariz.

1968) (finding that “a defendant is entitled to a fair trial, but not

necessarily to a perfect trial”). As the Seventh Circuit Court of Appeals

noted about the plight of an amnesiac:

            “In his plight the amnesiac differs very little from an
      accused who was home alone, asleep in bed, at the time of
      the crime or from a defendant whose only witnesses die or
      disappear before trial. Furthermore, courts, of necessity,
      must decide guilt or innocence on the basis of available facts
      even where those facts are known to be incomplete, and the
      amnesiac’s loss of memory differs only in degree from that
      experienced by every defendant, witness, attorney, judge,
      and venireman. How much worse off is a generally amnesic
      defendant on trial for murder, for example, than one who
      remembers all but the dispositive fact: who struck the first
      blow?

      ....

            If a defendant is permanently amnesic, furthermore,
      there will be no time in the future when the court can secure
      the benefit of his version of the facts. The choice facing the
      court would therefore be that of proceeding to adjudicate the
      defendant’s guilt or innocence on the basis of incomplete
      data or abandoning the adjudicatory process altogether.”

Stevens, 461 F.2d at 320 (quoting Note, Amnesia: A Case Study in the

Limits of Particular Justice, 71 Yale L.J. 109, 128–29 (1961)).

      In spite of June’s memory problems, we believe June can receive a

fair trial. The State’s files and physical evidence make it relatively simple

for the defense to reconstruct the facts surrounding the shooting. June

was the only other individual at the house at the time of the shooting.

The crime scene did not indicate a struggle took place prior to the

shooting. June had no visible injuries indicating that Leo attacked her

prior to the shooting. After the shooting, June made numerous calls to

her family.   There was no indication from the manner in which she

spoke, or in the words she used to describe the incident, that signaled
                                     16

she was in imminent danger of death or injury at the time of the

shooting.

      In none of the statements she made after the shooting, either at

the scene, while being transported to the law enforcement center, or at

the center, did she ever indicate that she shot Leo in self-defense. In

fact, in two of her statements she said, “[w]ell, it’s not self-defense

actually,” and “I wasn’t threatened, but I had a reasonable reason.”

From the statements made by June, the physical evidence gathered, and

the information contained in the State’s file, we conclude June’s amnesia

did not prevent her from receiving a fair trial and agree with the district

court that she was competent to stand trial.

      IV. Jury Instruction Regarding Second-Degree Murder.

      A. Standard of Review. June claims the district court erred by

failing to give a specific intent instruction in connection with its

instruction regarding second-degree murder. Although we review a claim

that the court gave an improper jury instruction for correction of errors

at law, we review the related claim that the trial court should have given

a defendant’s requested instruction for abuse of discretion. Summy v.

City of Des Moines, 708 N.W.2d 333, 340 (Iowa 2006). “Under Iowa law,

a court is required to give a requested instruction when it states a correct

rule of law having application to the facts of the case and when the

concept is not otherwise embodied in other instructions.”         Herbst v.

State, 616 N.W.2d 582, 585 (Iowa 2000) (emphasis added).

      B.    Analysis.   The court instructed the jury that before it could

find June committed the crime of second-degree murder, the State had to

prove the following elements:

            1. On or about the 15th day of May 2006, the
      defendant shot Leo Lyman.
                                    17
            2. Leo Lyman died as a result of being shot.

            3. The defendant acted with malice aforethought.

June requested a specific intent instruction arguing that the act of

shooting someone, as instructed in element number one, is an assault

and to commit an assault, a person must necessarily have acted with

specific intent. The district court rejected this argument and so do we.

      In Iowa, all crimes are statutory. Iowa Code § 701.2 (stating, “[a]

public offense is that which is prohibited by statute and is punishable by

fine or imprisonment”). Iowa Code section 707.1 provides that a person
commits murder when that person “kills another person with malice

aforethought either express or implied.” Id. § 707.1. Murder in the first

degree occurs when a person commits murder under any of the following

circumstances:

           1. The person willfully, deliberately,          and   with
      premeditation kills another person.

             2. The person kills another person while participating
      in a forcible felony.

           3. The person kills another person while escaping or
      attempting to escape from lawful custody.

             4. The person intentionally kills a peace officer,
      correctional officer, public employee, or hostage while the
      person is imprisoned in a correctional institution under the
      jurisdiction of the Iowa department of corrections, or in a
      city or county jail.

             5. The person kills a child while committing child
      endangerment under section 726.6, subsection 1, paragraph
      “b”, or while committing assault under section 708.1 upon
      the child, and the death occurs under circumstances
      manifesting an extreme indifference to human life.

            6. The person kills another person while participating
      in an act of terrorism as defined in section 708A.1.
                                     18

Id. § 707.2. Murder in the second degree occurs when “[a] person . . .

commits murder which is not murder in the first degree.” Id. § 707.3.

Thus, murder in the second degree has only two elements—a person kills

another person and does so with malice aforethought.

      The first element required for a person to commit second-degree

murder is the killing of a person. The killing can occur by an affirmative

act, such as when a person shoots another person, or by an omission to

act when there is a duty to do so, such as when a parent fails to provide

medical care for a child who dies from a lack of care.         1 Wayne R.

LaFave, Substantive Criminal Law §§ 6.1, .2, at 422–23, 435–36 (2d ed.

2003).

      The second element required for a person to commit second-degree

murder is that the act of killing another person is done with malice

aforethought.   Malice aforethought requires the actor to have “a fixed

purpose or design to do physical harm to another that exists before the

act is committed.” State v. Myers, 653 N.W.2d 574, 579 (Iowa 2002). “‘It

does not mean mere spite, hatred, or ill will, but does signify that state of

disposition which shows a heart regardless of human life.’ ”        State v.

Leedom, 247 Iowa 911, 917, 76 N.W.2d 773, 777 (1956) (quoting State v.

Burris, 198 Iowa 1156, 1158, 198 N.W. 82, 84 (1924), overruled on other

grounds by State v. Kernes, 262 N.W.2d 602, 604 (Iowa 1978)). It is well-

settled law that murder in the second degree is a general intent crime

only requiring proof of malice aforethought. State v. Kraus, 397 N.W.2d

671, 672–73 (Iowa 1986).

      June argues when the court instructs the jury that the State must

prove June shot Leo, the court must also give the jury a specific intent

instruction because a shooting is an assault, and an assault can only be

committed with specific intent. We disagree.
                                    19

      The first element the State must prove to convict June of second-

degree murder is that June killed another person, namely Leo. It does

not matter how she accomplished the act of killing. She could have shot

Leo as alleged or withheld medical care if the State proved she had a

duty to provide such care.     The manner of killing another is not an

element of the crime; the only element required by the Code is that she

did an act that killed another person. Thus, if the State proves June did

an act to kill Leo with malice aforethought, she is guilty of murder in the

second degree.     Neither the killing of another person nor malice

aforethought requires specific intent under section 707.3. Consequently,

the district court was correct in refusing to give a specific intent

instruction for second-degree murder.

      V. Ineffective Assistance of Counsel.

      A. Standard of Review. Claims involving ineffective assistance of

counsel have their basis in the Sixth Amendment to the United States

Constitution and we review these claims de novo.       State v. Allen, 708

N.W.2d 361, 365 (Iowa 2006).

      B. Analysis. “ ‘In order for a defendant to succeed on a claim of

ineffective assistance of counsel, the defendant must prove: (1) counsel

failed to perform an essential duty and (2) prejudice resulted.’ ”      Id.

(quoting State v. Wills, 696 N.W.2d 20, 22 (Iowa 2005)); see also

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80

L. Ed. 2d 674, 693 (1984).      To prove counsel failed to perform an

“essential duty,” a defendant must prove counsel’s performance was

deficient, meaning trial counsel “made errors so serious that counsel was

not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment.”      Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, 80

L. Ed. 2d at 693. Trial counsel’s performance is measured objectively by
                                     20

determining   whether    counsel’s   assistance   was   reasonable,   under

prevailing professional norms, considering all the circumstances. Id. at

688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694; State v. Maxwell, 743

N.W.2d 185, 195 (Iowa 2008). Establishing this first prong is not easy

because “ ‘there is a strong presumption trial counsel’s conduct fell

within the wide range of reasonable professional assistance.’ ” State v.

Graves, 668 N.W.2d 860, 881 (Iowa 2003) (quoting DeVoss v. State, 648

N.W.2d 56, 64 (Iowa 2002)).

      To establish prejudice, a defendant must prove “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694, 104

S. Ct. at 2068, 80 L. Ed. 2d at 698. To establish a reasonable probability

that the result would have been different, we have stated that a

defendant “need only show that the probability of a different result is

‘sufficient to undermine confidence in the outcome.’ ”        Graves, 668

N.W.2d at 882 (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068,

80 L. Ed. 2d at 698).

      June claims her trial counsel was ineffective for failing to redact

and/or object to the introduction of video evidence depicting June’s

repeated invocations of her right to remain silent by requesting an

attorney, as well as for failing to object to several prosecution references

to these statements made during the prosecutor’s closing argument. It is

impermissible to use an individual’s exercise of his or her constitutional

rights against them after the State implicitly assured the individual,

through the Miranda warning, that his or her invocation of those rights

would not be penalized.    Wainwright v. Greenfield, 474 U.S. 284, 292,

106 S. Ct. 634, 639, 88 L. Ed. 2d 623, 631 (1986). Any breach of this

implied assurance is a breach of fundamental fairness required by the
                                       21

due process clauses of the Federal and Iowa Constitutions. Id. at 291,

106 S. Ct. at 638–39, 88 L. Ed. 2d at 630; State v. Decker, 744 N.W.2d

346, 353–54 (Iowa 2008). Additionally, the Supreme Court has held that

prosecutorial     comments        concerning   a    defendant’s   silence     are

constitutionally banned.      Griffin v. California, 380 U.S. 609, 615, 85

S. Ct. 1229, 1233, 14 L. Ed. 2d 106, 110 (1965).           Under this record,

however, we cannot reach June’s claim of ineffective assistance of

counsel.

         The State charged June with first-degree murder.             First-degree

murder is a specific intent crime. State v. Jespersen, 360 N.W.2d 804,

807 (Iowa 1985). As a defense to this charge, June raised the defense of

diminished      responsibility.     The   court    instructed   the    jury   that

“ ‘diminished responsibility’ means a mental condition which does not

allow the person to form a premeditated, deliberate, specific intent to

kill.”   The jury did not return a verdict for first-degree murder under

these instructions. The state of the record does not allow us to decide if

June’s trial counsel purposely decided not to object to this evidence or

prosecutorial comments to show June’s mental state at the time of the

shooting, in order to bolster her diminished responsibility defense. Trial

tactics may require counsel to forego certain defenses or objections in

pursuit of the best interests of the accused. State v. Rand, 268 N.W.2d

642, 649 (Iowa 1978).             Accordingly, we will not address June’s

ineffective-assistance-of-counsel claim on direct appeal.

         VI. Disposition.

         We affirm June’s conviction for second-degree murder because the

district court was correct when it found June competent to stand trial

and when it refused to give a specific intent instruction for second-degree
                                  22

murder. However, we do not reach June’s claim of ineffective assistance

of counsel on direct appeal.

      AFFIRMED.
