                    IN THE COURT OF APPEALS OF IOWA

                                  No. 19-0214
                              Filed April 29, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

GREGORY MICHAEL DAVIS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Sean W. McPartland,

Judge.



      Gregory Davis appeals his conviction for first-degree murder. AFFIRMED.



      Alfredo Parrish and Andrew Dunn of Parrish Kruidenier Dunn Boles Gribble

Gentry Brown & Bergmann L.L.P., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.



      Heard by Bower, C.J., and Greer and Ahlers, JJ.
                                           2


GREER, Judge.

       Gregory Davis appeals his conviction for first-degree murder, raising

challenges to the jury instructions and the competence of his trial counsel. We

preserve one of his claims for a possible postconviction-relief action, deny the

remainder of his claims, and affirm his conviction.

       I. Background Facts and Proceedings.

       In 2017, the State charged Davis with first-degree murder in violation of

Iowa Code sections 707.1 and 707.2(1)(a) (2017) after he stabbed his girlfriend,

Carrie, twenty-six times. Davis claimed he was experiencing methamphetamine-

induced psychosis at the time of Carrie’s death and he had killed her believing it

would free her from the devil. Davis filed notice that he intended to rely on insanity

and/or diminished responsibility defenses at trial.

       A jury trial began on September 10, 2018. Three physicians evaluated

Davis and testified at trial. Two of the three were asked for their opinion on Davis’s

state of mind at the time of the offense. Both concluded Davis was experiencing

a substance-induced psychosis when he killed Carrie, but the experts differed in

their opinion on his intent to kill.

       Dr. Gary Keller, a physician at the prison, diagnosed Davis with major

depressive disorder, anxiety disorder, cannabis use disorder, and amphetamine

use disorder with psychosis. During his evaluation he noted that Davis described

some conspiracy theories, illusory conversations, and “images of Jesus,” but “he

acknowledged that was in his mind” and not real. Dr. Keller did not opine on

Davis’s mental state at the time of the killing.
                                            3


       Dr. Arthur Konar, the defense’s expert, testified that, at the time of the killing,

Davis was experiencing substance-induced psychosis and “was undergoing

hallucinations and delusions and was not able to essentially keep up with or

understand behavior and its consequences.” Dr. Konar concluded, “What I would

say is that Gregory Davis did not have the ability to form intent and . . . also did not

understand how his behaviors would ultimately affect” Carrie. Dr. Konar based

this opinion on Davis’s report that at the time of the offense,

       [Davis] stated that he was seeing and hearing things. He had
       thought that Carrie was the devil. He also thought that he was the
       devil. He thought that the way to essentially help her was to kill her
       and, therefore, essentially allow her to be resurrected, because he
       also thought that he was Jesus Christ.
               He was having a wild additional type of paranoid delusion in
       which he believed that there were chickens and chicken people that
       were on the roof, and these chicken people were armed, and they
       were essentially protecting him from other people coming on in. He
       believed that essentially that if he had killed her, that he was going
       to do her a favor because he was going to at that point save her; that
       somehow after he killed her he believed that these Muppet hands
       would come on in and essentially bring life back to her and allow her
       to be . . . free from these horrors.

       Dr. Arnold Andersen, originally an expert for the State, was called by the

defense at trial. Davis’s counsel did not depose Dr. Andersen before trial. Dr.

Andersen testified that Davis was experiencing methamphetamine-induced

psychosis, which can lead to hallucinations, delusions, hearing voices, and

abnormal beliefs. On direct examination by defense counsel regarding intent, the

following conversation between Dr. Andersen and defense counsel occurred,

       DR. ANDERSEN: I concluded that at the time of the alleged crime
       [Davis] did not have the capacity to form the specific intent of a
       criminal act. He did have the intent to kill [Carrie]. He, however,
       believed this act was morally right and necessary and that by killing
       her he would be freeing her of her evil forces and lead to her
       resurrection and perhaps life in a better location.
                                           4


              ....
              DEFENSE COUNSEL: You concluded that he did not have
       the capacity to form specific intent at the time he committed that act?
              DR. ANDERSEN: If I can nuance . . . that a bit. 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. So, yes, he had an intent to kill in order to do the second
       part of specific intent, to achieve a consequence of freeing her from
       evil and ushering her into a better place, but he did not have a
       criminal intent in that at that time he did not believe he was killing her
       against the law.

       After the parties presented their case, the parties jointly proposed jury

instructions to the court.     The court then reviewed the instructions for any

objections. The State proposed, and the court included over Davis’s objection, an

instruction about intoxication. Davis objected to some other instructions, but these

objections are not relevant for this appeal.

       In the final version of the instructions, instructions 14 through 16 discussed

Davis’s insanity defense.     The marshaling instruction for first-degree murder,

instruction 22, did not specifically direct the jury to consider these insanity defense

instructions. Davis did not object to this omission.

       The marshaling instructions for the lesser-included offenses, however, did

direct the jury to consider the insanity defense, stating that if the jury found the

defendant had committed the offense in the marshaling instruction, “You must then

consider the defense of insanity as described in [i]nstructions 14–18.”              But

instructions 17 and 18 explained the diminished responsibility defense, a defense

that applies only to specific intent crimes.       Almost all of the lesser-included

offenses were general intent crimes. Davis did not object to the reference to a

diminished capacity instruction in these marshaling instructions.
                                          5


       The case was submitted to the jury at 1:00 p.m. on September 14, and the

jury reached a verdict less than three hours later. The jury found Davis guilty of

first-degree murder.

       Davis retained new counsel for post-trial motions. For the first time, in his

motion for a new trial and later addendums, Davis claimed he was entitled to a

new trial based, in part, on the court’s omission of a reference to his insanity

defense in the marshaling instruction for first-degree murder; the court’s inclusion

of an intoxication instruction in instruction 19; the court’s inclusion of a reference

to the diminished capacity defense in the instructions for general-intent, lesser-

included offenses; and his counsel’s ineffectiveness in eliciting testimony on

specific intent during Dr. Andersen’s direct examination. The district court denied

Davis’s motion for a new trial on all grounds and sentenced him to life in prison.

Davis appeals.

       II. Standard of Review.

       We review constitutional issues de novo. State v. Bruegger, 773 N.W.2d

862, 869 (Iowa 2009). “[W]e review challenges to jury instructions for correction

of errors at law.” State v. Spates, 779 N.W.2d 770, 775 (Iowa 2010) (quoting

Anderson v. State, 692 N.W.2d 360, 363 (Iowa 2005)).

       “To the extent error is not preserved on an issue, any objections must be

raised within an ineffective-assistance-of-counsel framework.” State v. Ambrose,

861 N.W.2d 550, 555 (Iowa 2015). We review ineffective-assistance-of-counsel

claims de novo. Id.
                                           6


        III. Analysis.

        Davis challenges (1) the marshaling instruction for first-degree murder;

(2) the intoxication instruction; (3) the reference to diminished capacity in the

marshaling instructions for general intent lesser-included offenses; (4) the

effectiveness of his counsel in questioning one of the experts on Davis’s intent;

and (5) the cumulative effect of these alleged errors. We address each claim in

turn.

        A. First-Degree Murder Marshaling Instruction. Davis argues that the

district court erred by failing to refer to his insanity defense in the marshaling

instruction for first-degree murder. The State argues Davis has failed to preserve

error on this claim because his counsel did not object to the instruction on these

grounds before it was given to the jury.

        1. Error preservation. “Error preservation is important for two reasons: (1)

affording the district court an ‘opportunity to avoid or correct error’; and (2)

providing the appellate court ‘with an adequate record in reviewing errors

purportedly committed’ by the district court.” Id. (quoting State v. Pickett, 671

N.W.2d 866, 869 (Iowa 2003)). “We have previously held that to preserve error

counsel must make a specific objection to the instructions in their final form. In the

absence of such an objection, any alleged error in the instruction is waived.” State

v. Welch, 507 N.W.2d 580, 584 (Iowa 1993) (citations omitted); see also State v.

Taggart, 430 N.W.2d 423, 425 (Iowa 1988) (“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.”).
                                           7


       Raising an objection for the first time in a motion for a new trial cannot

preserve error unless the objection is based on revised or additional instructions.

See Iowa R. Crim. P. 2.19(5)(f) (“The rules relating to the instruction of juries in

civil cases shall apply to the trial of criminal cases.”); Iowa R. Civ. P. 1.924

(establishing rules for jury instructions, including error preservation); State v.

Rouse, 290 N.W.2d 911, 915 (Iowa 1980) (“We hold, therefore, that Iowa R. Civ.

P. 196 [later renumbered to rule 1.924], including its requirement of timely

preservation of error as to instructions, shall be fully applicable to all criminal cases

in which trial is commenced after the filing of this opinion. Any of the language of

our earlier cases inconsistent with this holding is expressly disapproved.”),

superseded by statute on other grounds as recognized in Ryan v. Arneson, 422

N.W.2d 491, 494 (Iowa 1988).

       Here, the parties jointly proposed two alternatives for instruction 22, the first-

degree murder marshaling instruction. The State proposed 22A, which did not

include a cross-reference to the insanity defense instructions, and Davis’s counsel

proposed 22B, which included the cross-reference. Instruction 22B also included

an additional element not listed in the model jury instruction for first-degree murder,

which required the jury to find that Davis intentionally killed Carrie.

       The court accepted Instruction 22A as the final first-degree murder

marshaling instruction and renumbered it to instruction 22. Davis’s counsel did not

object to this instruction for failing to cross-reference the insanity defense. For that

reason, we conclude that Davis has failed to preserve error on his claim that the

marshaling instruction violated his right to due process and was clearly erroneous.
                                           8


       Even so, we find his claims would fail. Davis cannot show that the district

court’s failure to include a reference to the insanity defense in the marshaling

instruction meets the high bar to prove a due process violation. See Middleton v.

McNeil, 541 U.S. 433, 437 (2004) (noting that, in determining whether there was a

due process violation based on an erroneous jury instruction, the court must

decide, looking at the instructions in their entirety, “whether the ailing

instruction . . . so infected the entire trial that the resulting conviction violates due

process.” (quoting Estelle v. McGuire, 502 U.S. 62, 72 (1991))). Likewise, Davis

cannot show the instruction was erroneous. State v. Benson, 919 N.W.2d 237,

245 (Iowa 2018) (noting we must determine “whether the jury instructions

‘convey[ed] the applicable law in such a way that the jury ha[d] a clear

understanding of the issues’ before it.” (quoting Rivera v. Woodward Res. Ctr., 865

N.W.2d 887, 892 (Iowa 2015))). As explained below, the instructions, read in their

entirety, accurately convey the applicable law and gave the jury a clear

understanding of the issues.

       2.   Ineffective assistance of counsel.      In the event that error was not

preserved, Davis raises an ineffective-assistance-of-counsel claim, arguing his

counsel should have objected to the omission of the insanity defense from the

marshaling instruction.1 The Iowa Supreme Court’s recent opinion in State v.

Kuhse, 937 N.W.2d 627, 628–29 (Iowa 2020), guides our analysis here. .



1“Although the Iowa Code no longer permits claims of ineffective assistance of
counsel to be decided on direct appeal . . ., we held in State v. Macke[, 933 N.W.2d
226, 228 (Iowa 2019),] that this provision ‘do[es] not apply to a direct appeal from
a judgment and sentence entered before July 1, 2019.’” State v. Kuhse, 937
N.W.2d 622, 627 (Iowa 2020). For that reason, we are not foreclosed from
                                           9


        “In order to support a claim of ineffective assistance of counsel, a defendant

must show (1) that counsel failed to perform an essential duty and (2) that prejudice

resulted.” Kuhse, 937 N.W.2d at 628. “To prove counsel failed to perform an

essential duty, the defendant ‘must show that counsel’s performance was

deficient,’ meaning counsel ‘made errors so serious that counsel was not

functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.’”

Id. (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). “The crux of the

prejudice component rests on whether the defendant has shown ‘that there is a

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

the proceeding would have been different.’” Id. (quoting Strickland, 466 U.S. at

694).

        To establish prejudice in the context of an ineffective-assistance-of-
        counsel claim, a defendant 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 conceivable. A
        defendant must show the probability of a different result is sufficient
        to undermine confidence in the outcome. This standard requires us
        to consider the totality of the evidence, identify what factual findings
        would have been affected, and determine if the error was pervasive
        or isolated and trivial.

Id. (quoting Ambrose, 861 N.W.2d at 557–59); see also State v. Lorenzo Baltazar,

935 N.W.2d 862, 871–72 (Iowa 2019) (discussing difference between the

presumed prejudice standard for preserved jury-instruction challenges and the

“deficiency and prejudice” standard for ineffectiveness claims).

        “Jury instructions are not considered separately; they should be considered

as a whole.” Kuhse, 937 N.W.2d at 628 (quoting State v. Fintel, 689 N.W.2d 95,



considering Davis’s ineffectiveness claim on direct appeal if we find the record
supports our review. See id. We find the record adequate.
                                           10


104 (Iowa 2004)). We will consider whether the instructions, taken together,

contain all of the necessary information. Id. at 628–29.

       In Kuhse, the defendant was charged with domestic abuse assault causing

bodily injury after it was alleged he assaulted his wife. Id. at 624–25. He filed

notice that he intended to rely on a justification defense. Id. at 625. At trial, the

marshaling instruction for domestic abuse assault did not refer to his justification

defense, but other instructions did. Id. He was found guilty as charged.

       On appeal, the defendant argued his counsel was ineffective for failing to

object to the marshaling instruction’s omission of the justification defense. The

Iowa Supreme Court addressed ineffectiveness related to jury instructions,

       [I]neffective 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.

       The court, considering the evidence and instructions together, determined

that the defendant was not prejudiced by the omission of a justification defense

from the marshaling instruction.     Id.   The court noted that eight instructions

discussed the justification defense and one instruction informed the jury, “The

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

noted that the justification defense was a focal point in the parties’ closing

arguments. Also important was the fact that strong evidence showed that the

defendant was not acting in self-defense at the time of the assault and that the

defendant’s version of events was not plausible.        Id. at 630–31.    The court
                                            11


determined, “Viewing the instructions and the trial record as a whole, we do not

see a 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.

       For similar reasons, we conclude that Davis cannot show prejudice here.

Starting with the instructions themselves, we find that they accurately instructed

the jury on the applicable law. The jury was given fifty-one instructions. Twenty-

one were standard criminal instructions.          Ten instructions were marshaling

instructions for the offense charged—first-degree murder—and lesser-included

offenses, and fourteen instructions included definitions for terms used in the

marshaling instructions.         Of the remaining instructions, three were about the

insanity defense, two were about diminished responsibility, and one was about

intoxication.

       Turning to specific instructions, instruction 7 states, “You must determine

the defendant’s guilt or innocence from the evidence and the law in these

instructions. You must consider all of the instructions together. No one instruction

includes all of the applicable law.” Instruction 14 provides, “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.” Instruction 16 states, “If the State has proved all the elements

of a crime, you should then determine if the Defendant has proved he was insane.”
                                         12


Instruction 22 correctly recites the elements of first-degree murder.2            These

instructions, read together, correctly instruct the jury on the applicable law.

       In addition, the arguments and evidence presented show that insanity was

a key focus at trial. The State did not specifically reference the insanity defense

during opening argument, but it did emphasize that the killing “was a deliberate

and intentional act” and that “Davis knew at the time that what he was doing was

wrong.” The defense’s opening argument focused exclusively on Davis’s insanity

defense, with counsel walking through Davis’s various diagnoses, his drug use,

what the experts were likely to testify to, and the standard to prove insanity.

Counsel concluded, “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.”

       Moreover testimony at trial centered on Davis’s mental health.             Three

experts testified about Davis’s mental state, with two giving their opinions on

whether he was capable of forming intent. The jury also heard testimony from

Davis’s mother about his mental health, and the jury heard officers testify about

notes Davis wrote after the killing. This evidence was all presented to show

whether or not Davis was sane when he killed Carrie.

       During closing arguments, the State focused on instruction 22 and argued

that Davis’s actions were conscious, deliberate, and intentional.          The State


2 Instructions 14 through 16 mirror the model instructions about an insanity
defense. The model instruction on which instruction 14 is based has a comment
to the model instruction stating, “Caveat: If the insanity defense is submitted, then
the marshaling instruction should be modified accordingly.” See Iowa State Bar
Ass’n, Iowa Criminal Jury Instruction 200.9 cmt (2018). Instruction 22 mirrors the
model instruction for first-degree murder based on premeditation, willfulness, and
deliberation. This model first-degree murder instruction does not include any
comments. See Iowa State Bar Ass’n, Iowa Criminal Jury Instruction 700.1.
                                         13


highlighted evidence presented during trial suggesting Davis intended his actions,

including: Davis covered blood in the living room from the stabbing with a mattress;

he packed bloody clothing in a bag for easy disposal; police discovered cut up

credit cards in the driveway; Carrie’s body was wrapped in a sheet and three

blankets and rolled in cut-up carpeting to conceal her; her body was moved in the

nighttime to another location; Davis wrote and then tore up a note admitting his

“vicious attack,” which the State suggested was his suicide note; and officers when

searching Davis’s garage found a step ladder underneath a power cord fashioned

with a loop around the steel beam of the garage door opener, which the State

alleged also showed Davis was considering suicide. All of this evidence, the State

argued, showed a deliberate and intentional choice to kill Carrie.

       Defense counsel pointed out that the insanity defense was not specifically

discussed in instruction 22, stating, “One of the elements that [the prosecutor] 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 then discussed the expert testimony and the defenses of

diminished capacity and insanity in depth before concluding, “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.” In rebuttal, the State sought to address the

factors that showed that Davis understood what he was doing at the time.

       After considering the totality of the circumstances, including the instructions

together with the arguments and evidence presented at trial, we conclude Davis

cannot show the result would have been different sufficient to satisfy the prejudice

prong of his ineffectiveness claim. See State v. Ondayog, 722 N.W.2d 778, 784
                                           14


(Iowa 2006) (noting that the prejudice prong is met when a defendant can show a

reasonable probability that without counsel’s alleged errors the result would have

been different); see also State v. McMullin, 421 N.W.2d 517, 520 (Iowa 1988)

(concluding “[t]he jury was fully instructed on the elements of first-degree murder

and the State’s responsibility to prove them,” and that “the instructions as given,

when read as a whole, state the applicable law in understandable fashion”). While

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

defense in the marshaling instructions, Davis has not shown the result would be

different but for the omission.

         Because Davis cannot show prejudice, we need not consider whether

counsel breached an essential duty. See Ledezma v. State, 626 N.W.2d 134, 142

(Iowa 2001) (“If the claim lacks prejudice, it can be decided on that ground alone

without deciding whether the attorney performed deficiently.”).                 Davis’s

ineffectiveness claim fails.

         B. Intoxication Instruction. At trial, the State proposed an instruction on

intoxication, and this instruction was included in the parties’ joint instructions.3

Davis’s attorney objected and asked that the instruction be excluded. The court



3   The instruction stated in part,
         The Defendant claims he was under the influence of drugs at the
         time of the alleged crime. The fact that a person is under the
         influence of drugs does not excuse nor aggravate his guilt.
                 Even if a person is under the influence of a drug, he is
         responsible for his act if he has sufficient mental capacity to form the
         specific intent necessary to the crime charged or had the specific
         intent before he fell under the influence of the drug and then
         committed the act. Intoxication is a defense only when it causes a
         mental disability, which makes the person incapable of forming the
         specific intent.
                                            15


overruled the objection, stating, “I don’t think that the defense can offer evidence,

which it did in this case, of the defendant’s chronic drug use and offer testimony

through [experts] that he was under the influence of drugs at the time and then not

have this instruction given.”

          Davis argues it was error to give this instruction to the jury because there

was no evidence that he was drug tested at the time of the offense, and the expert

testimony related only to long-term drug usage to help the jury understand a

complex medical diagnosis. Davis also claims the evidence did not support an

intoxication instruction and intoxication was inconsistent with his insanity defense.

He argues the instruction was erroneous and violated his right to due process.

          “It is well settled that the court must instruct on all material issues so that

the jury understands the matters which they are to decide.” State v. Jenkins, 412

N.W.2d 174, 177 (Iowa 1987). “Iowa law requires a court to give a requested jury

instruction if it correctly states the applicable law and is not embodied in other

instructions.” State v. Plain, 898 N.W.2d 801, 816 (Iowa 2017) (quoting Alcala v.

Marriott Int’l, Inc., 880 N.W.2d 699, 707 (Iowa 2016)). “The court ordinarily is

required to instruct the jury on all material issues raised by the evidence.” State v.

Voelkers, 547 N.W.2d 625, 632 (Iowa Ct .App. 1996). “The district court must

‘avoid arguing the case for either side in the instructions.’” Id. (quoting State v.

Marsh, 392 N.W.2d 132, 133 (Iowa 1986)). Instructions on defenses “should not

be submitted unless the evidence would sustain an affirmative finding on that

issue.”     State v. Booth, 169 N.W.2d 869, 871 (Iowa 1969).            A defendant is

prejudiced by an instruction if “the instruction could reasonably have misled or
                                          16

misdirected the jury.” State v. Hoyman, 863 N.W.2d 1, 7 (Iowa 2015) (quoting

State v. Becker, 818 N.W.2d 135, 141 (Iowa 2012)).

       There was ample testimony about Davis’s methamphetamine use leading

up to the time of the killing. Davis’s insanity and diminished capacity defenses

were based on the allegation that he was experiencing a methamphetamine-

induced psychosis. Dr. Andersen testified about Davis’s drug use before and on

the day of the killing, noting,

       He increased in the year of the alleged crime his use of
       methamphetamine. A typical dose might be a hundred milligrams or
       a quarter gram. He went to as much as three and a half grams,
       called in the community an eightball. And so 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.

There was also testimony about the distinction between voluntary and involuntary

intoxication, including Dr. Konar’s testimony that in his opinion Davis’s

methamphetamine addiction was like involuntary intoxication. Cf. State v. Aguilar,

325 N.W.2d 100, 103 (Iowa 1982) (“[W]hen the evidence shows the mental

condition at issue was caused by voluntary intoxication it is sufficient to instruct on

that issue and not give an additional instruction on diminished responsibility

generally.”).   We conclude the instruction accurately stated the law and was

supported by the evidence presented at trial. See Jenkins, 412 N.W.2d at 177

(concluding that including an intoxication instruction over defendant’s objection

was not error). For that reason, Davis cannot show the instruction was erroneous.

       C. Diminished Responsibility Instruction. Davis argues it was error for

the court to include a reference to instructions 17 and 18, discussing his diminished

capacity defense, in the marshaling instructions for general intent lesser-included
                                          17

offenses because this defense only applies to specific intent crimes. See Afinson

v. State, 758 N.W.2d 496, 502 (Iowa 2008).          For the reasons stated in our

discussion of the first-degree murder marshaling instruction, we find Davis has

failed to preserve error on this claim.

       Even so, any potential error is harmless. The jury found Davis guilty of first-

degree murder, specifically rejecting a diminished responsibility defense. Davis

cannot show he was prejudiced by the court’s inclusion of a reference to the

diminished responsibility instructions in the lesser-included offenses. For that

reason, Davis also cannot establish prejudice under an ineffectiveness framework.

       D. Specific Intent Testimony. Davis next argues that his counsel was

ineffective when he elicited testimony that Davis had the specific intent to kill

Carrie. Davis argues this was improper opinion testimony and his counsel should

have requested Dr. Andersen’s response be stricken from the record and the

question be rephrased to elicit proper expert testimony.

       A criminal “defendant’s mental condition is peculiarly a matter of expert

evaluation and analysis.” State v. Moses, 320 N.W.2d 581, 588 (Iowa 1982). That

said, no witness may opine on an ultimate issue at trial. Id. at 587–88; see also,

e.g., State v. Nimmo, 247 N.W.2d 228, 230 (Iowa 1976) (ruling the expert witness

was not permitted to testify about whether the amount of marijuana defendant

possessed would exceed personal use).

       “Courts generally presume counsel is competent and a ‘defendant must

overcome the presumption that, under the circumstances, the challenged action

‘might be considered sound trial strategy.’” Ondayog, 722 N.W.2d at 785 (quoting

State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995)). “Because ‘[i]mprovident trial
                                           18


strategy, miscalculated tactics, and mistakes in judgment do not necessarily

amount to ineffective assistance of counsel,’ postconviction proceedings are often

necessary to discern the difference between improvident trial strategy and

ineffective assistance.” Id. at 786 (quoting State v. McKettrick, 480 N.W.2d 52, 55

(Iowa 1992)).

       We find the record insufficient to address this claim on direct appeal. We

preserve this claim for a possible postconviction-relief application.

       E. Cumulative Effect. Finally, Davis argues the cumulative effect of the

constitutional and evidentiary errors violated his right to a fair trial and due process.

See State v. Carey, 165 N.W.2d 27, 36 (Iowa 1969) (concluding that the

cumulative effect of errors deprived the defendant of a fair trial). Because we find

Davis has failed to preserve error on two jury instruction claims and failed to show

prejudice on the third, and because we have preserved one of his ineffectiveness

claims for postconviction relief proceedings, he cannot show cumulative errors.

       IV. Disposition.

       For all of these reasons, we affirm Davis’s conviction and sentence for first-

degree murder.

       AFFIRMED.

       Bower, C.J., concurs; Ahlers, J., dissents.
                                          19


AHLERS, Judge (dissenting).

       In the words of defense counsel at oral argument, “these jury instructions

were all messed up.” I agree. And, in my view, they were so “messed up,” they

deprived Davis of a fair trial. In particular, the error of failing to include a cross-

reference to defenses in the marshaling instruction for the first-degree murder

charge while including the cross-reference in the marshaling instructions for all

lesser-included charges created confusing and misleading instructions that

warrant a new trial. Because I find this issue dispositive, it is unnecessary to

address the other issues raised.

       To begin, I agree with much of the well-written and thorough majority

opinion, including its description of the events at trial. I agree Davis failed to

preserve error on his challenge to the missing cross-reference to defenses in the

first-degree murder marshaling instruction, so the challenge must be addressed

under an ineffective-assistance-of-counsel framework. This framework requires

Davis to show: (1) counsel’s performance was deficient to the extent counsel was

not functioning as the “counsel” guaranteed by the Sixth Amendment of the United

States Constitution; and (2) the deficient performance resulted in prejudice such

that Davis was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 687

(1984).

       Due to the fact it found that Davis failed to meet the prejudice prong, the

majority understandably chose not to address the deficient-performance prong.

See id. at 697 (“[A] court need not determine whether counsel’s performance was

deficient before examining the prejudice suffered by the defendant as a result of

the alleged deficiencies.”). As I will discuss in a moment, I disagree with the
                                         20


majority’s conclusion regarding prejudice. Therefore, it is necessary for me to also

address the deficient-performance prong.

       I believe trial counsel breached an essential duty by failing to object to the

first-degree murder marshaling instruction that neglected to cross-reference the

insanity defense instructions while the marshaling instructions for all lesser-

included offenses included the cross-reference.         The model jury instruction

addressing the insanity defense includes a caveat to modify the marshaling

instruction when the insanity defense is submitted. See Iowa State Bar Ass’n,

Iowa Criminal Jury Instruction 200.9 (2018). Furthermore, trial counsel submitted

a proposed marshaling instruction for first-degree murder that included the cross-

reference, suggesting trial counsel knew such a cross-reference was needed and

important. Inexplicably, when the district court submitted a marshaling instruction

for first-degree murder that omitted the cross-reference, while submitting

marshaling instructions for lesser-included offenses that included it, trial counsel

lodged no objection. There is no conceivable trial tactic or strategy for allowing the

marshaling instruction for first-degree murder, the most serious charge, to be

submitted without the cross-reference to the key defense while allowing the

marshaling instructions for the lesser-included offenses to include the cross-

reference. See State v. Neal, 353 N.W.2d 83, 86 (Iowa 1984) (finding it appropriate

to address ineffective-assistance-of-counsel claim on direct appeal when there is

“no conceivable trial tactic or strategy” to justify counsel’s actions). Under these

circumstances, trial counsel’s performance in this regard was unacceptably

deficient.
                                          21


       Turning to the prejudice prong, Davis must show “that there is 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. “A reasonable probability

is a probability sufficient to undermine confidence in the outcome.”          Id.   My

confidence in the outcome of this trial is significantly undermined as a result of the

problem with the cross-reference to defenses in the marshaling instructions.

       Instruction 22 set forth the elements for first-degree murder and then

instructed the jury:

       If the State has proved all the elements, the Defendant is guilty of
       Murder in the First Degree. If the State has failed to prove any one
       of the elements, the Defendant is not guilty of Murder in the First
       Degree and you will then consider the charge of Murder in the
       Second Degree as explained in Instruction No. 30.

Instruction 30 in turn set forth the elements for second-degree murder and then

instructed the jury:

       If the State has proved all the elements, the Defendant is guilty of
       Murder in the Second Degree. You must then consider the defense
       of insanity as described in Instructions No. 14–18. If the State has
       failed to prove any one of the elements, the Defendant is not guilty
       of Murder in the Second Degree and you will then consider the
       charge of Voluntary Manslaughter as explained in Instruction No. 32.

(Emphasis added.) Subsequent instructions for all the lesser-included offenses

followed this language in Instruction 30, including the cross-reference to defenses.

Omitting the cross-reference to defenses in the first-degree murder marshaling

instruction while including it in the marshaling instructions for the lesser-included

offenses in this way was confusing, misleading, and, thus, prejudicial. See State

v. Benson, 919 N.W.2d 237, 245-46 (Iowa 2018) (holding confusing and

misleading jury instructions are prejudicial and warrant a new trial).
                                           22


         I stress the fact the cross-reference was included for some charges but not

all because it is critically important for two reasons. First, it distinguishes this case

from others decided by our appellate courts. Second, it makes the instructions in

this case confusing, misleading, and prejudicial regardless of how the case was

tried.

         The State relies on two cases to support its argument the cross-reference

issue did not cause reversible error. Both cases are distinguishable. In State v.

Stonerook, our court rejected an ineffective-assistance-of-counsel claim for failing

to object to a first-degree murder marshaling instruction that did not include a

cross-reference to the defendant’s insanity defense.          No. 05-1917, 2006 WL

3799546, at *2 (Iowa Ct. App. Dec. 28, 2006).4 Importantly, nowhere in Stonerook

are lesser-included offenses mentioned. This suggests either lesser-included

offenses were not submitted or, more likely, they were submitted but also omitted

the cross-reference. At the very least, Stonerook did not address the issue in this

case, which is an inconsistency between the marshaling instructions in terms of

cross-referencing defenses. Therefore, Stonerook does not control the outcome

in this case.

         In State v. Kuhse, the supreme court rejected an ineffective-assistance-of-

counsel claim for failing to object to a domestic-abuse-assault-causing-bodily-

injury marshaling instruction that did not include a reference to the defendant’s

justification defense. 937 N.W.2d 622, 630–31 (Iowa 2020). Just as in Stonerook,



4 In spite of the holding, the court noted that including the cross-reference would
have been appropriate and “perhaps preferable.” Stonerook, 2006 WL 3799546,
at *3.
                                         23

however, there is no indication in Kuhse that the missing reference to the defense

in the marshaling instruction to the primary charge was included in the marshaling

instructions to the lesser-included charges. Again, this key detail distinguishes the

cases and, in my view, requires a different result.

       A different result is required due to the misleading nature of the marshaling

instructions in this case. The effects of the misleading instructions were not

negated by “how the case was tried” or by looking at the jury instructions as a

whole. As the majority rightly highlights, in Kuhse, the supreme court noted “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. I, in no way,

question that principle, as it is a sound one. However, there is a critical difference

between this case, Kuhse, and Stonerook, and that is the contradictory nature of

the cross-reference to the defenses in the marshaling instructions.

       I have no doubt, based on the evidence submitted and the arguments made,

that the jury was well aware the insanity defense was the fighting issue in this

case—just as the juries would have been aware the defenses were the fighting

issues in Kuhse and Stonerook. I also acknowledge the jurors in all three cases

were instructed they “must consider all of the instructions together,” and we

presume the jurors follow the instructions. See State v. Morrison, 368 N.W.2d 173,

176 (Iowa 1985) (“A jury is presumed to have followed its instructions absent

evidence to the contrary.”).

       However, once the dust settles after the evidence is submitted, the closing

arguments are finished, and the jurors gather in the jury room to deliberate, the

only resource they have to guide them in terms of the law in the case is the jury
                                         24


instructions. But, what do the jury instructions in this case tell them? Assuming,

as we should, the jurors read all the instructions, including instructions 14 through

18 dealing with various defenses, they would also read the marshaling instructions.

Conspicuously absent from the marshaling instruction for first-degree murder is

any reference to the defenses. That in and of itself might not be a problem but for

the fact that the marshaling instructions for all other crimes conspicuously mention

the defenses. Keeping in mind the jury is composed of twelve lay persons, what

would a reasonable lay person conclude by that different treatment of the

marshaling instructions? I firmly believe a reasonable juror would conclude the

omission of the reference to the defenses in the first-degree murder instruction,

and only the first-degree murder instruction, meant that crime was different and

the defenses did not apply only to that charge. See State v. Rinehart, 283 N.W.2d

319, 322 (Iowa 1979) (evaluating how a reasonable juror would interpret an

instruction). “Expressio unius est exclusio alterius”5 is a maxim we apply in a

variety of areas of the law, including statutory interpretation and contract

construction. See, e.g., Homan v. Branstad, 887 N.W.2d 153, 166 (Iowa 2016)

(applying the maxim to statutory interpretation); Peak, 799 N.W.2d at 548 (applying

the principle to contract construction). 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.



5This is a Latin phrase meaning “the expression of one thing of a class implies the
exclusion of others not expressed.” Peak v. Adams, 799 N.W.2d 535, 548 (Iowa
2011) (quoting Maytag Co. v. Alward, 112 N.W.2d 654, 656 (1962)).
                                           25


       To clarify the point, it may be useful to think of a hierarchy of methods to

deal with defenses and marshaling instructions. The first method would be the

one suggested in the model jury instructions, urged by Davis, and referenced as

“perhaps preferable” in Stonerook, which is to include cross-references to all

relevant defenses in all relevant marshaling instructions. The second method

would be the one used in Stonerook and Kuhse, which is to omit all cross-

references to defenses in all marshaling instructions and rely on the jury to

thoroughly read the instructions and apply defenses appropriately.         The third

method, which is the one used in this case, would be to omit cross-reference to

relevant defenses in one marshaling instruction and include cross-reference to

defenses in other marshaling instructions. In my view, the first method is clearly

the preferred and best of the three and should be encouraged and enforced. The

second method, while less than ideal and not preferred, may be found acceptable

on a case-by-case basis, as it was in Stonerook and Kuhse, and as I would have

reluctantly found in this case if this method had been followed. The third method,

in my view, is unacceptable, and a hard line should be drawn between the second

and third methods. The third method has no benefits and numerous deficits, and

its use in this case deprived Davis of a fair trial.

       I believe the conflicting cross-references in the marshaling instructions

made the instructions confusing, misleading, and prejudicial. Trial counsel’s failure

to object was deficient performance that resulted in prejudice to Davis and

constituted ineffective assistance of counsel. Davis should receive a new trial as

a result.
                                         26


       I am not unmindful of the import of my proposed resolution. I am mindful

that Davis unquestionably committed unspeakably horrible acts. I am mindful that

a fellow human being had her life unfairly taken from her. I am mindful that a new

trial would result in additional pain to the victim’s family and may reopen emotional

wounds that would be better left to heal. I am mindful that a new trial would be

expensive, challenging, and painful.     But I am also mindful that our system

demands a fair trial and Davis did not get one. Therefore, I respectfully dissent.
