                 IN THE SUPREME COURT OF IOWA
                              No. 09–0888

                        Filed December 23, 2010


STATE OF IOWA,

      Appellee,

vs.

COLBY ALAN PALMER,

      Appellant.


      Appeal from the Iowa District Court for Webster County, Kurt John

Stoebe, Judge.



      Defendant appeals his convictions on the grounds the district

court should have suppressed his incriminating statements and that his

trial counsel provided ineffective assistance. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Patricia A. Reynolds,

Assistant State Appellate Defender, for appellant.


      Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant

Attorney General, Ricki L. Osborn, County Attorney, and Timothy N.

Schott, Assistant County Attorney, for appellee.
                                      2

WIGGINS, Justice.

         In this appeal, the defendant claims the district court erred in

failing to grant his motion to suppress the incriminating statements he

made in a second interview with the authorities. He also claims his trial

counsel was ineffective.      We hold the district court was correct in

overruling the defendant’s motion to suppress because the State

scrupulously honored the invocation of his right to remain silent under

the Fifth Amendment to the United States Constitution at the first

interview and the defendant knowingly, intelligently, and voluntarily

waived his right to remain silent prior to the initiation of the second

interview.     We also find defendant’s trial counsel did not provide

ineffective assistance by failing to object to an internally inconsistent

marshalling instruction. Therefore, we affirm the judgment of the district

court.

         I. Background Facts and Proceedings.

         On August 7, 2007, Colby Alan Palmer was an inmate under the

custody and control of the department of corrections and incarcerated at

the Fort Dodge Correctional Facility.        At approximately 9:05 a.m.,

correctional officers Richard Sorensen and Matthew Kent transported

Palmer from his cell to a recreation pen for an hour of recreation and

exercise time. The transfer occurred without incident.

         Approximately an hour later, Sorensen and Kent returned to the

recreation pen to remove Palmer and transport him back to his cell.

While preparing to transport Palmer, Palmer kicked Sorensen directly on

the front of the left knee with the back of his left foot.     Palmer then

looked over his shoulder and said, “There’s your f****** Iowa City trip.”

         After the kick, Kent quickly shut the recreation-pen door, locking

Palmer back inside the recreation pen. Sorensen then fell against the
                                     3

exit door. Kent assisted Sorensen back inside the control room, placed

him in a wheel chair, and transported him to health services. The kick

caused Sorensen to hyperextend his knee.        As a result of the kick,

Sorensen received medical treatment and missed approximately one

week of work.

        Eventually, officers removed Palmer from the recreation pen and

transferred him back to his cell. Shortly thereafter, on the same day,

correctional captain and investigator Kelly Holder approached Palmer at

his cell in an attempt to interview him about the assault. Holder read

Palmer the Miranda warning while Palmer read along from a written

Miranda waiver form.     Palmer, orally and in writing, acknowledged he

understood his rights. Next, Holder asked Palmer if he wished to waive

his rights and talk to her. Palmer stated that he wanted to talk about his

property, not the assault, and refused to waive his rights or sign the

waiver form. Holder terminated the interview.

        The next day, Palmer told a correctional officer that he wanted to

talk to someone about his property and “about the stuff that was going

on.” Palmer claims he never asked to speak to anyone about the assault

that occurred the day before. Palmer’s request was relayed to Holder,

who then met with Palmer for a second time in a no-contact room where

the prisoner and visitor are separated by a pane of glass. Holder only

knew Palmer wanted to talk to her; she did not know what topics he

wanted to discuss.

        Before initiating the interview, Holder again read Palmer the

Miranda warning while Palmer read along from a written Miranda waiver

form.     Palmer, orally and in writing, again acknowledged that he

understood his rights. Holder then asked Palmer whether he wished to

speak with her. Palmer said yes and signed the waiver form, indicating
                                    4

he agreed to waive his rights and speak with Holder. Palmer understood

that when he signed the waiver form, Holder was going to talk to him

about the assault.     He also understood Holder was recording the

interview and the authorities could use anything he said during the

interview in a future proceeding.    With these understandings, Palmer

agreed to the second interview.

      During the interview, Palmer complained about how he received

his property and food. Later in the interview, they discussed how things

were going, why he was upset, and why he kicked Sorensen.          Palmer

explained he was mad at the officers in general due to a medical

situation, he snapped, and Sorensen just happened to be there.

      The State charged Palmer with:     (1) interference with the official

acts of a correctional officer, inflicting or attempting to inflict bodily

injury in violation of Iowa Code section 719.1(2) (2007), a class “D”

felony; and (2) assault on a correctional officer, causing bodily injury in

violation of Iowa Code section 708.3A(3), an aggravated misdemeanor.

Palmer pled not guilty to the charges.

      Palmer filed a motion to suppress the incriminating statements he

made to Holder in the second interview. Palmer argued Holder violated

his constitutional rights by failing to honor his request to remain silent

and interviewing him for a second time after he had previously stated he

did not want to make any statements. Thus, Palmer claimed, he did not

knowingly, intelligently, and voluntarily waive his right to remain silent

and his statements to Holder were involuntary.

      During the suppression hearing, Palmer admitted to his prior

experiences with the criminal justice system.     The record established

that Palmer was first arrested shortly after he turned eighteen, is
                                      5

experienced with the criminal justice system, and can remember being

read the Miranda warning on at least three separate prior occasions.

      The district court denied Palmer’s motion to suppress the

incriminating statements he had made to Holder. The case proceeded to

trial, and the jury returned a verdict finding Palmer guilty of both

interference with an official act of a correctional officer, inflicting or

attempting to inflict bodily injury and assault on a correctional officer,

causing bodily injury. After the district court entered its judgment and

sentence, Palmer filed his notice of appeal.

      II. Issues.

      This case presents two issues: (1) whether the district court erred

by refusing to suppress Palmer’s statements to an investigating

correctional officer regarding an alleged assault, and (2) whether Palmer’s

trial counsel was ineffective for failing to object to an internally

inconsistent marshalling instruction.
     III. Suppression       of   Statements      Palmer    Made     to    the
Correctional Officer.
      A. Scope of Review.        We review a district court’s refusal to

suppress statements allegedly made in violation of constitutional

guarantees de novo. State v. Ortiz, 766 N.W.2d 244, 249 (Iowa 2009);

State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001). Under this standard

of review, we make “ ‘an independent evaluation of the totality of the

circumstances as shown by the entire record.’ ” Turner, 630 N.W.2d at

606 (quoting State v. Howard, 509 N.W.2d 764, 767 (Iowa 1993)). “We

give deference to the district court’s fact findings due to its opportunity to

assess the credibility of witnesses, but we are not bound by those

findings.”   Id.    We consider both the evidence introduced at the
                                     6

suppression hearing as well as the evidence introduced at trial. State v.

Countryman, 572 N.W.2d 553, 557 (Iowa 1997).

       B. General   Constitutional       Principles.   Palmer   argues   his

incriminating statements were not voluntary and were obtained in

violation of his rights under the Fifth and Fourteenth Amendments to the

United States Constitution. In the district court and on appeal, Palmer’s

counsel failed to raise the admissibility of the statements under the Iowa

Constitution. See State v. Effler, 769 N.W.2d 880, 894–95 (Iowa 2009)

(Appel, J., specially concurring) (discussing why counsel should raise

and brief an independent analysis of a constitutional issue under the

Iowa Constitution). Consequently, we will limit our analysis regarding

the admissibility of the statements to the Federal Constitution.

       The Supreme Court requires the authorities to advise suspects of

their Miranda rights under the United States Constitution before

beginning a custodial interrogation. Ortiz, 766 N.W.2d at 250–51. The

Miranda warnings protect a suspect’s privilege against self-incrimination

embodied in the Fifth Amendment by informing the suspect of his or her

right to remain silent and right to the presence of counsel during

questioning. Miranda v. Arizona, 384 U.S. 436, 444–45, 86 S. Ct. 1602,

1612, 16 L. Ed. 2d 694, 706–07 (1966). These safeguards are more than

a “mere procedural nicety or legal technicality.”      Ortiz, 766 N.W.2d at

251.

       Any statements made by a suspect in response to a custodial

interrogation are inadmissible unless there has been an adequate

recitation of the Miranda warning and a valid waiver by the suspect of his

or her rights.   Id.; State v. Harris, 741 N.W.2d 1, 5 (Iowa 2007).       A

suspect can waive his or her Miranda rights as long as the suspect has
                                    7

done so knowingly, intelligently, and voluntarily. Ortiz, 766 N.W.2d at

251.

       The State must prove two facts to establish a suspect has waived

his or her Miranda rights knowingly, intelligently, and voluntarily. Moran

v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 1140–41, 89 L. Ed. 2d

410, 421 (1986). First, for a suspect to knowingly and intelligently waive

his Miranda rights, the State must prove by a preponderance of the

evidence that the waiver was made “ ‘with a full awareness of both the

nature of the right being abandoned and the consequences of the

decision to abandon it.’ ” Ortiz, 766 N.W.2d at 251 (quoting Moran, 475

U.S. at 421, 106 S. Ct. at 1141, 89 L. Ed. 2d at 421).      Second, for a

waiver to be made voluntarily, the State must prove by a preponderance

of the evidence that the relinquishment of the right was “the product of a

free and deliberate choice rather than intimidation, coercion, or

deception.” Moran, 475 U.S. at 421, 106 S. Ct. at 1141, 89 L. Ed. 2d at

421.   To make these determinations, a court must inquire into the

totality of the circumstances surrounding the interrogation. Ortiz, 766

N.W.2d at 251.

       Miranda also provides a second level of procedural safeguards law

enforcement must follow after a suspect invokes his or her Fifth

Amendment privilege against self-incrimination by asserting either the

right to remain silent or the right to the presence of counsel. See, e.g.,

Christopher S. Thrutchley, Note and Comment, Minnick v. Mississippi:

Rationale of Right to Counsel Ruling Necessitates Reversal of Michigan v.

Mosley’s Right to Silence Ruling, 27 Tulsa L.J. 181, 183 (1991)

(recognizing Miranda imposes two levels of procedural protections). The

Supreme Court has employed different procedural safeguards depending

on whether the suspect has invoked the right to remain silent or the
                                           8

right to the presence of counsel. Compare Michigan v. Mosley, 423 U.S.

96, 103–04, 96 S. Ct. 321, 326, 46 L. Ed. 2d 313, 321 (1975) (defining

the procedure police must follow upon a suspect’s invocation of the right

to remain silent), with Edwards v. Arizona, 451 U.S. 477, 484–85, 101 S.

Ct. 1880, 1884–85, 68 L. Ed. 2d 378, 386 (1981) (defining the procedure

police must follow upon a suspect’s invocation of the right to counsel). 1
     C. Differing Procedural Safeguards Upon Invocation of the
Right to Remain Silent and the Right to Counsel.
       1. Procedural safeguards after a suspect invokes his or her right to

remain silent. In Michigan v. Mosley, Mosley was arrested based on an

informant’s tip linking him to a recent string of robberies. Mosley, 423

U.S. at 97, 96 S. Ct. at 323, 46 L. Ed. 2d at 317. The police took Mosley

to the fourth floor of the police department, read him the Miranda

warning, and interrogated him. Id. When the questioning began, Mosley

stated he did not want to answer any questions about the robberies and

the interrogation immediately ceased. Id. Mosley was then transferred

to a cell on the ninth floor of the building. Id. At no point did he indicate

a desire to consult with an attorney. Id. More than two hours later, a

detective brought Mosley to the fifth floor, again advised him of his



       1Although   some scholars have criticized the differing levels of protection a
suspect is provided based upon whether he or she invokes the right to remain silent or
the right to counsel, a majority of the Supreme Court has not retreated from this
distinction. See, e.g., Minnick v. Mississippi, 498 U.S. 146, 164, 111 S. Ct. 486, 497,
112 L. Ed. 2d 489, 505 (1990) (Scalia, J., dissenting) (finding the distinction between
the procedural safeguards triggered by invoking the right to remain silent and the right
to counsel is illogical); Christopher S. Thrutchley, Note and Comment, Minnick v.
Mississippi: Rationale of Right to Counsel Ruling Necessitates Reversal of Michigan v.
Mosley’s Right to Silence Ruling, 27 Tulsa L.J. 181, 201 (1991) (arguing either Mosley or
Edwards was wrongly decided because the same standard of procedural protection
should be applied to both the right to counsel and the right to silence). Thus, we will
base the level of procedural protection to which Palmer is entitled upon which of the
two Miranda rights he invoked. Because Palmer only raised this issue under the
Federal Constitution, we will not discuss the difference, if any, in the procedural
safeguards under the Iowa Constitution.
                                     9

Miranda rights, and began to question him about an unrelated fatal

shooting. Id. at 97–98, 96 S. Ct. at 323–24, 46 L. Ed. 2d at 318. At first,

Mosley denied any involvement in the shooting but eventually made an

incriminating statement implicating himself in the homicide. Id. at 98,

96 S. Ct. at 324, 46 L. Ed. 2d at 318. At no point during this second

interrogation did Mosley ask to consult with a lawyer or indicate that he

did not want to talk about the homicide. Id. The Supreme Court granted

a writ of certiorari to consider whether, consistent with Miranda, the

police could resume questioning Mosley after he had asserted his right to

remain silent. Id. at 100, 96 S. Ct. at 325, 46 L. Ed. 2d at 319.

      The Supreme Court recognized the Miranda opinion stated the

interrogation must cease when the suspect invokes his right to remain

silent, but did not state under what circumstances, if any, a resumption

of questioning was permissible. Id. at 101, 96 S. Ct. at 325, 46 L. Ed. 2d

at 320; see also Miranda, 384 U.S. at 473–74, 86 S. Ct. at 1627, 16

L. Ed. 2d at 723 (“If the individual indicates in any manner, at any time

prior to or during questioning, that he wishes to remain silent, the

interrogation must cease.”).    The Court reasoned the right to remain

silent protects a suspect’s right to cut off questioning and thereby control

the time at which questioning occurs, the subjects discussed, and the

length of the interrogation. Mosley, 423 U.S. at 103–04, 96 S. Ct. at 326,

46 L. Ed. 2d at 321.       Thus, the Court concluded a resumption of

questioning after a suspect has invoked his or her right to remain silent

was permissible only when the suspect’s right to cut off questioning was

scrupulously honored. Id. at 104, 96 S. Ct. at 326, 46 L. Ed. 2d at 321.

      To determine whether Mosley’s right to cut off questioning had

been scrupulously honored, the Court examined the totality of the

circumstances. Id. at 104, 96 S. Ct. at 326–27, 46 L. Ed. 2d at 321–22.
                                          10

Although the Court did not identify any controlling factors in its analysis,

in holding Mosley’s right to cut off questioning had been scrupulously

honored, the court relied on the following facts in reaching its decision:

(1) the police immediately ceased the interrogation upon Mosley’s

invocation of his right to remain silent, (2) the police resumed

questioning only after the passage of a significant period of time, (3)

before resuming questioning, the police provided Mosley with a fresh set

of Miranda warnings, and (4) a new police officer, in another location,

restricted the second interrogation to a crime that had not been a subject

of the earlier interrogation.        Id. at 104–06, 96 S. Ct. at 326–27, 46

L. Ed. 2d at 321–22.

       Accordingly, under a federal constitutional analysis when a

suspect asks us to determine whether an interrogator scrupulously

honored the suspect’s invocation of his or her right to remain silent, we

must examine the totality of the circumstances by applying the Mosley

factors.     See State v. Kasel, 488 N.W.2d 706, 709 (Iowa 1992)

(recognizing Mosley as the appropriate analysis under the Federal

Constitution when a suspect invokes his or her right to silence and later

talks to the authorities); State v. Snethen, 245 N.W.2d 308, 314 (Iowa

1976) (same). 2




       2In State v. Washburne, 574 N.W.2d 261, 267 (Iowa 1997), this court was asked
to determine if a suspect’s invocation of his right to remain silent was honored. There,
the court determined the investigating officer honored the suspect’s right to remain
silent. Washburne, 574 N.W.2d at 267. In reaching this conclusion, the court cited
State v. Newsom, 414 N.W.2d 354, 357 (Iowa 1987), as the sole authority for its
conclusion. Id. Newsom was an invocation of the right-to-counsel case, rather than an
invocation of the right-to-remain-silent case.        Newsom, 414 N.W.2d at 357–58.
Consequently, we overrule Washburne to the extent that it could be read to implicate a
right-to-counsel analysis when a suspect only invokes his or her right to remain silent
under the Federal Constitution.
                                     11

       2. Procedural safeguards after a suspect invokes his or her right to

counsel.   In Edwards v. Arizona, Edwards was arrested in connection

with charges for robbery, burglary, and first-degree murder. Edwards,

451 U.S. at 478, 101 S. Ct. at 1881–82, 68 L. Ed. 2d at 382. At the

police station, the authorities read him the Miranda warning and he

agreed to submit to questioning.      Id. at 478, 101 S. Ct. at 1882, 68

L. Ed. 2d at 382. After being told another suspect had implicated him in

the crimes, he gave a taped statement presenting an alibi defense. Id. at

478–79, 101 S. Ct. at 1882, 68 L. Ed. 2d at 382. Edwards then agreed to

make a deal with the police but stated, “I want an attorney before making

a deal.” Id. at 479, 101 S. Ct. at 1882, 68 L. Ed. 2d at 382. At this

point, the interrogation ceased and Edwards was taken to the county jail.

Id.   The next morning, two detectives came to the jail to interrogate

Edwards. Id. Edwards stated he did not want to talk to anyone but was

still forced to meet with the detectives. Id. at 479, 101 S. Ct. at 1882, 68

L. Ed. 2d at 382–83. The detectives read Edwards the Miranda warning

again. Id. at 479, 101 S. Ct. at 1882, 68 L. Ed. 2d at 383. Edwards told

the detectives he was willing to talk, but first he wanted to listen to the

tape recording of the other suspect who had implicated him in the

crimes. Id. After listening to the tape, Edwards agreed to make a non-

tape-recorded statement.    Id.   Thereafter, he implicated himself in the

crimes. Id. The Supreme Court granted a writ of certiorari to consider

whether, consistent with Miranda, the police could resume questioning a

suspect after he had asserted his right to the presence of counsel. Id. at

478, 101 S. Ct. at 1881, 68 L. Ed. 2d at 382.

       The Supreme Court recognized the Miranda opinion stated that

once a suspect states he or she wants an attorney, “ ‘the interrogation

must cease until an attorney is present.’ ” Id. at 485, 101 S. Ct. at 1885,
                                    12

68 L. Ed. 2d at 386 (quoting Miranda, 384 U.S. at 474, 86 S. Ct. at 1628,

16 L. Ed. 2d at 723). The Court also noted it had previously recognized

the Miranda opinion distinguished between the procedural safeguards

triggered by the invocation of the right to remain silent and the right to

counsel. Id. (citing Mosley, 423 U.S. at 104 n.10, 96 S. Ct. at 326 n.10,

46 L. Ed. 2d at 321 n.10). Thus, the Court held that
      when an accused has invoked his right to have counsel
      present during custodial interrogation, a valid waiver of that
      right cannot be established by showing only that he
      responded to further police-initiated custodial interrogation
      even if he has been advised of his rights. We further hold
      that an accused, such as Edwards, having expressed his
      desire to deal with the police only through counsel, is not
      subject to further interrogation by the authorities until
      counsel has been made available to him, unless the accused
      himself initiates further communication, exchanges, or
      conversations with the police.
Id. at 484–85, 101 S. Ct. at 1884–85, 68 L. Ed. 2d at 386. Accordingly,

the Court in Edwards adopted a per se ban on any further questioning of

a suspect without the presence of counsel, for an indefinite duration,

after the suspect invokes the right to counsel.

      In Maryland v. Shatzer, the Supreme Court modified the Edwards

rule. Maryland v. Shatzer, ___ U.S. ___, ___, 130 S. Ct. 1213, 1227, ___

L. Ed. 3d ___, ___ (2010). There, the Court decided the Edwards per se

ban does not apply if a break in police custody lasting fourteen days has

occurred. Id. In reaching this conclusion, the Court stated the fourteen-

day period “provides plenty of time for the suspect to get reacclimated to

his normal life, to consult with friends and counsel, and to shake off any

residual coercive effects of his prior custody.” Id. at ___, 130 S. Ct. at

1223, ___ L. Ed. 3d at ___.

      3. Summary of differing procedural safeguards based upon whether

a suspect invokes his or her right to remain silent or the right to counsel.
                                         13

Under the Federal Constitution, the authorities must follow different

procedural safeguards to re-interrogate a suspect depending on whether

the suspect has invoked his or her right to remain silent or the right to

the presence of counsel.         When a suspect invokes the right to remain

silent, the authorities must scrupulously honor the suspect’s right to cut

off questioning. Mosley, 423 U.S. at 104, 96 S. Ct. at 326, 46 L. Ed. 2d

at 321. To determine if the authorities can re-interrogate a suspect after

he or she has invoked the right to remain silent, a court must examine

the totality of the circumstances by applying the Mosley factors to decide

if the interrogator scrupulously honored the suspect’s invocation of his

or her right to remain silent.       Id. at 104–06, 96 S. Ct. at 326–27, 46

L. Ed. 2d at 321–22. On the other hand, if the suspect invokes the right

to counsel, the authorities are barred from reinitiating the interrogation

without the presence of counsel, unless a break in police custody lasting

fourteen days or more has occurred. Shatzer, ___ U.S. at ___, 130 S. Ct.

at 1227, ___ L. Ed. 3d at ___; Edwards, 451 U.S. at 484–85, 101 S. Ct. at

1884–85, 68 L. Ed. 2d at 386.

       D. Analysis.         To     determine    whether      the    State   elicited

incriminating     statements      from   Palmer    in   violation   of   his   Fifth

Amendment right to remain silent, this court must apply the procedural

safeguards established in Mosley. 3 Accordingly, whether Holder elicited

Palmer’s incriminating statements in violation of his Fifth Amendment

right to remain silent rests on whether Holder scrupulously honored

Palmer’s right to cut off questioning. Mosley, 423 U.S. at 104, 96 S. Ct.

at 326, 46 L. Ed. 2d at 321.

       3Palmer does not claim, nor do the facts support, that Palmer ever invoked his

right to the presence of counsel.     Consequently, the more stringent procedural
safeguards under the Federal Constitution embodied by Edwards do not apply to this
case.
                                        14

      After the alleged kick, officers removed Palmer from the recreation

pen and transferred him back to his cell.           Shortly thereafter, Holder

approached Palmer at his cell to interrogate him about the incident.

Holder read Palmer the Miranda warning, and Palmer orally and in

writing acknowledged that he understood his rights.                Palmer then

refused to waive his rights or sign the waiver form, and the interrogation

promptly terminated.

      Holder did not approach Palmer until the next day. The next day,

Palmer asked to speak to someone about a number of issues.

Subsequently, Palmer met with Holder in a no-contact room.                Before

initiating the second interview, Holder read Palmer the Miranda warning.

Palmer orally and in writing acknowledged that he understood his rights.

Palmer also agreed to waive his rights, sign the waiver form, and speak

with Holder. He understood the waiver applied to questions regarding

the assault on Sorensen.         During the course of the second interview,

Palmer made incriminating statements concerning the alleged assault

that had occurred the day before.

      Under     the   totality   of   the    circumstances,   we   find   Holder

scrupulously honored Palmer’s initial request to remain silent. Holder

immediately ceased her initial interrogation upon Palmer’s invocation of

his right to remain silent. Holder did not attempt to reinterview Palmer

until the next day. A significant period of time had passed between the

first interview and the second interview. Before resuming questioning,

Holder provided Palmer with a fresh set of Miranda warnings, which he

acknowledged he understood. The second interrogation took place in a

new location.

      Palmer’s only argument that Holder did not scrupulously honor his

right to remain silent is based upon the fact that the second interview
                                     15

was conducted by the same person and was about the same incident.

However, this factor is not determinative as to whether Holder

scrupulously honored Palmer’s right to remain silent. It is only one of

the factors to consider under the totality of the circumstances.

      The Court in Mosley clearly decided the invocation of the right to

remain silent did not “create a per se proscription of indefinite duration

upon any further questioning by any police officer on any subject, once

the person in custody has indicated a desire to remain silent.” Mosley,

423 U.S. at 102–03, 96 S. Ct. at 326, 46 L. Ed. 2d at 320–21 (emphasis

added).   If we were to hold the subsequent questioning by the same

officer about the same crime is the determinative factor, we would be

creating “a per se proscription of indefinite duration upon any further

questioning by any police officer on any subject.” Id. (emphasis added).

Such a holding would be contrary to Mosley.

      The second interview by the same officer about the same crime

occurred at Palmer’s request. The second interview was not a product of

repeated police efforts to wear down Palmer’s resistance to talk about the

incident or to induce him to abandon his earlier invocation of his right to

remain silent.   The mere fact the second interview was by the same

officer concerning the same crime does not overcome the other

circumstances that lead us to find Holder scrupulously honored Palmer’s

right to remain silent after Palmer invoked his right to remain silent

during the first interview. Therefore, we hold, under the totality of the

circumstances, there is no showing that Holder did not scrupulously

honor Palmer’s right to remain silent after Palmer invoked his right to

remain silent during the first interview.
                                    16

      Palmer also argues we should find he did not knowingly,

intelligently, and voluntarily waive his right to remain silent prior to the

initiation of the second interview. We disagree.

      First, it is clear Palmer was aware of the nature of his right to

remain silent and the consequences of abandoning it. He acknowledged

this orally and in writing prior to the initiation of the second interview.

Moreover, at the suppression hearing Palmer admitted he was aware he

waived his rights by signing the waiver form on August 8. Thus, we find

Palmer knowingly and intelligently waived his right to remain silent.

      Second, there is no evidence in the record to support the fact that

Palmer was intimidated, coerced, or deceived into waiving his right to

remain silent.    To the contrary, it appears Palmer’s waiver was the

product of a free and deliberate choice.     At the suppression hearing,

Palmer admitted he was experienced with the criminal justice system,

could remember being read the Miranda warning on at least three prior

occasions, and was aware he waived his rights prior to the initiation of

the second interview.     Moreover, from the invocation of his right to

remain silent on the previous day, it is evident Palmer understood how to

invoke his rights. There is no evidence Holder physically abused Palmer,

denied him food or sleep, or used deceit or improper promises to elicit his

incriminating statements. There is also no evidence Palmer suffers from

any mental weaknesses. Thus, we also find Palmer voluntarily waived

his right to remain silent.

      Accordingly, the district court properly denied Palmer’s motion to

suppress the incriminating statements he made to Holder during the

second interview.
                                     17

      IV. Ineffective-Assistance-of-Counsel Claim.

      A. Scope of Review. Ineffective-assistance-of-counsel claims are

the exception to the general rule requiring a party to preserve error in the

district court.   State v. Doggett, 687 N.W.2d 97, 100 (Iowa 2004).

Normally, we preserve these claims for postconviction relief actions. Id.

However, if the record is adequate, we will consider the merits of an

ineffective-assistance-of-counsel claim on direct appeal. Id. We believe

under this record we can decide Palmer’s ineffective-assistance-of-

counsel claim.

      B. Ineffective-Assistance-of-Counsel Standard.        To succeed on

an ineffective-assistance-of-counsel claim, Palmer must prove:       (1) his

counsel failed to perform an essential duty and (2) prejudice resulted

from such failure.     Strickland v. Washington, 466 U.S. 668, 687, 104

S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).         To prove his trial

counsel failed to perform an essential duty, Palmer must prove his

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.” Id. We measure trial counsel’s

performance objectively by determining whether counsel’s assistance was

reasonable, under prevailing professional norms, considering all the

circumstances. Id. at 688, 104 S. Ct. at 2064–65, 80 L. Ed. 2d at 693–

94; State v. Vance, 790 N.W.2d 775, 785 (Iowa 2010).

      To   establish   prejudice,   Palmer   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, Palmer “need only show that

the probability of a different result is ‘sufficient to undermine confidence
                                      18

in the outcome.’ ”    State v. Graves, 668 N.W.2d 860, 882 (Iowa 2003)

(quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at

698).

        C. Palmer’s Alleged Ineffective-Assistance-of-Counsel Claim.

Palmer alleges his trial counsel was ineffective for failing to object to an

internally   inconsistent   marshalling    instruction   for   the   charge   of

interference with the official acts of a correctional officer, inflicting or

attempting to inflict bodily injury, in violation of Iowa Code section

719.1(2). The instruction given by the court provided:
                The State must prove all of the following elements of
        Interference with an Official Act of a Correctional Officer
        Inflicting or Attempting to Inflict Bodily Injury:

              1.     On or about the 7th day of August, 2007, the
              defendant knew Richard Sorensen was a correctional
              officer who was engaged in his duty of supervising the
              defendant.

              2.   The defendant knowingly resisted or obstructed
              Richard Sorensen in the performance of this act.

              3.      In so doing, the defendant inflicted or attempted
              to inflict a bodily injury to Richard Sorensen.

              If you find the State has proved all of the elements, the
        defendant is guilty of Interference with an Official Act Causing
        Bodily Injury.

               If the State has proved Elements 1 and 2 but has
        failed to prove Element 3, the defendant is guilty of
        Interference with Official Acts.

             If the State has failed to prove either Element 1 or
        Element 2, the defendant is not guilty.

(Emphasis added.)        Palmer claims this instruction was internally

inconsistent because, under the third element of the instruction, the jury

could find Palmer guilty of interference with an official act causing bodily
                                       19

injury even if it concluded he only attempted to inflict a bodily injury

upon Sorensen.

      The marshalling instruction correctly delineates the elements of

the crime of interference with the official acts of a correctional officer,

inflicting or attempting to inflict bodily injury. Under Iowa Code section

719.1(2), a defendant under the custody, control, or supervision of the

department of corrections commits the crime of interference with the

official acts of a correction officer, inflicting or attempting to inflict bodily

injury, when the defendant:          (1) “knowingly resists, obstructs, or

interferes with a correctional officer,” (2) in the performance of the

correctional officer’s official duties, and (3) “in so doing inflicts or

attempts to inflict bodily injury other than serious injury,” upon the

correctional officer. Iowa Code § 719.1(2).

      However, after properly delineating the elements of this crime, the

instruction erroneously states the name of the crime by referring to it as,

interference with an official act causing bodily injury in the first full

paragraph after numbered paragraph three.           The correct name of the

crime in that paragraph should have been, interference with an official

act of a correctional officer, inflicting or attempting to inflict bodily

injury. Accordingly, we must decide whether counsel’s failure to object

to this erroneous reference amounted to ineffective assistance of counsel.

      D. Analysis. Although Palmer must prove both failure to perform

an essential duty and resulting prejudice, if his claim lacks the necessary

prejudice we “can decide the case on the prejudice prong of the test

without deciding whether the attorney performed deficiently.”           State v.

Maxwell, 743 N.W.2d 185, 196 (Iowa 2008).

      Here, the jury also convicted Palmer of assault on a correctional

officer, causing bodily injury.      Under Iowa Code sections 708.1 and
                                    20

708.3A(3), a defendant commits the crime of assault on a correctional

officer, causing bodily injury when the defendant: (1) does an act “which

is intended to cause pain or injury to, or which is intended to result in

physical contact which will be insulting or offensive” to a correctional

officer, (2) the defendant has “the apparent ability to execute the act,”

(3) the defendant knows the person he assaulted is a correctional officer,

and (4) the assault causes bodily injury or mental illness to the

correctional officer. Iowa Code §§ 708.1(1), .3A(3) (emphasis added). The

court properly instructed the jury as to the elements of this crime.

Moreover, the jury returned a verdict finding Palmer guilty of assault on

a correctional officer, causing bodily injury.   Thus, the jury concluded

Palmer did an act, which caused a bodily injury to a correctional officer,

Sorensen.

      Palmer claims he was prejudiced by his trial counsel’s failure to

object to the interference marshalling instruction because the jury could

have convicted him for interference with an official act causing bodily

injury even if it concluded he only attempted to cause such an injury.

Assuming, without deciding, that the marshalling instruction for the

crime of interference with the official acts of a correctional officer,

inflicting or attempting to inflict bodily injury, was objectionable due to

the inconsistent language in the instruction, Palmer has failed to prove

he was prejudiced by this error because Palmer’s conviction for assault

on a correctional officer, causing bodily injury, makes it clear the jury

concluded Palmer did an act that caused bodily injury to Sorensen.

Therefore, the jury found Palmer did more than attempt to cause bodily

injury to Sorensen. Consequently, we conclude misnaming the crime of

interference with the official acts of a correctional officer, inflicting or

attempting to inflict bodily injury, in the marshalling instruction was not
                                    21

prejudicial because, but for this error, the result of the proceeding would

not have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at

2068, 80 L. Ed. 2d at 698.       Accordingly, Palmer has failed to show

prejudice, and we find against him on his ineffective-assistance-of-

counsel claim.

      V. Disposition.

      We affirm the judgment of the district court because the district

court correctly overruled Palmer’s motion to suppress the incriminating

statements he gave in the second interview with the authorities and his

trial counsel did not provide ineffective assistance by failing to object to

an internally inconsistent marshalling instruction.

      AFFIRMED.
