              IN THE SUPREME COURT OF IOWA
                             No. 15–0871

                          Filed June 9, 2017


STATE OF IOWA,

      Appellee,

vs.

JOHN DAVID GREEN,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Sac County, Gary L.

McMinimee, Judge.



      John David Green seeks further review of a court of appeals

decision affirming his conviction of murder in the second degree.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, Joseph A. Fraioli (until

withdrawal) and Melinda J. Nye, Assistant Appellate Defender, for

appellant.



      Thomas J. Miller, Attorney General, and Bridget A. Chambers and

Douglas D. Hammerand, Assistant Attorneys General, for appellee.
                                        2

CADY, Chief Justice.

      In this case, we consider the right to counsel under article I,

section 10 of the Iowa Constitution. We also consider the court’s use of a

malice-inference jury instruction.      The district court held John David

Green did not have a right to counsel under the Iowa Constitution when

he voluntarily participated in a noncustodial police interview under the

supervision of an Iowa county attorney, even though the State’s homicide

investigation had by then focused on Green as the primary suspect. The

district court also instructed the jury that it could infer Green acted with

malice aforethought from his use of a baseball bat, despite Green’s

objection that he did not bring the bat to the fatal encounter. The court

of appeals affirmed the district court on both the claimed errors, finding

article I, section 10 could not apply to the preaccusation stage of a

criminal investigation, and the jury could infer malice aforethought from

the intentional use of a deadly weapon.          We conclude the level of

prosecutorial involvement at the time of the interview did not create a

prosecution or case that would trigger the right to counsel under article

I, section 10. We further conclude the jury could properly infer malice

aforethought from Green’s use of a deadly weapon. Therefore, we affirm

the decision of the court of appeals.

      I. Factual Background and Proceedings.

      Mark Koster lived in a one-bedroom house in Sac City. In 2009, he

seemingly disappeared from the area without notice. Police were alerted

after mail began to accumulate in the mailbox at his house and he

stopped paying his utility bills. Police found a handwritten note attached

to the back door of Koster’s house. The note indicated he had gone to

Florida for the winter and would return in the spring. A phone number

on the note was the number of a Florida resort, but the resort had no
                                      3

record of Koster.   As a result, police entered and searched the home.

Nothing looked suspicious, except Koster’s clothes and personal

belongings had not been removed from the home.

      After Koster failed to return to his house in the spring, police

continued to investigate his disappearance. They learned from neighbors

and others that a man had been staying with Koster.           The man was

described as tall. The investigation, however, led no further. Two years

passed with no answers or information.           Koster was subsequently

presumed dead, and his house was sold.

      The new owner of the home discovered a decomposed body buried

under a pile of debris in the basement.       The state medical examiner

identified the body as Koster. A renewed law enforcement investigation

eventually located the man who had stayed with Koster prior to his

disappearance. His name was John David Green, and police located him

in a camper near Jacksonville, Florida.

      The Sac County attorney, two police officers, and an agent from the

Iowa Department of Criminal Investigation traveled to Florida.          They

approached Green at his camper. Green agreed to accompany them to a

nearby police station for an interview. Green was told he was not under

arrest and was free to leave. He was not informed of his Miranda rights

prior to or at any time during the interview or told of a right to counsel.

      The interview was conducted in an unlocked room of the police

station.   Green sat on a couch, and law enforcement officers sat on

chairs. The county attorney was not in the interview room, but watched

from another room in the station.          Multiple times throughout the

interview, one of the officers would leave the interview room to consult

with the county attorney.       During these consultations, the county
                                       4

attorney would direct the officers to ask specific questions. The interview

was recorded.

      Green eventually confessed to killing Koster after the two men had

an altercation in Koster’s Sac City home one evening in 2009.        Green

said Koster became upset with him and started a fight by striking him

with a baseball bat. During the fight, the two fell onto a table and then

the ground, struggling over the bat.       Green, much larger in size than

Koster, gained control and pressed the bat against Koster’s throat until

he could no longer breathe. Green held it there until Koster died.

      Green then wrapped Koster’s body in blankets and placed it in the

basement of the home. He covered the body with cat litter and piled a

variety of items over it, including an old, heavy water heater. He propped

up the broken table next to the pile of debris. Green then cleaned the

house, attached the note to the back door, and left town.

      Law enforcement officers initially returned Green to his camper

after this confession, but arrested him after the county attorney obtained

an arrest warrant.    He was returned to Iowa and charged with first-

degree murder. See Iowa Code §§ 707.1, .2 (2009).

      Prior to trial, Green moved to suppress the interview with police in

Florida.   Pertinent to this appeal, he claimed the State obtained his

confession in violation of his right to counsel. Green asserted that his

right to counsel had attached at the time of the interview because the

case had effectively transformed from an investigation into a prosecution

based on the active role of the county attorney during the interview. The

district court overruled the motion.

      At trial, the State introduced the entire interview as evidence. The

State also used portions of the interview during cross-examination of

Green and in closing arguments.
                                      5

       The medical examiner testified that an autopsy of Koster’s body

showed the cause of death was consistent with Green’s version of the

events.     The medical examiner also testified it would have taken

approximately two minutes to asphyxiate a person by applying pressure

to the neck with a straight object.       Green testified he acted in self-

defense.

       The district court instructed the jury, over Green’s objection, that if

a person had an opportunity to deliberate and used a dangerous weapon

against another resulting in death, the jury may infer “the weapon was

used with malice, malice aforethought, premeditation, and specific intent

to kill.”   The district court also instructed the jury that a dangerous

weapon was an instrument actually used in a way to indicate “the user

intended to inflict death or serious injury, and when so used is capable

of inflicting death.”

       The jury found Green guilty of murder in the second degree. In

doing so, the jury found Green suffocated Koster without justification

and with malice aforethought. The district court sentenced Green to an

indeterminate sentence of fifty years with a mandatory minimum term of

incarceration of thirty-five years.

       Green appealed and raised two claims of error. First, he claimed

his confession was obtained in violation of his right to counsel under the

Iowa Constitution. Second, he claimed that the jury instruction on the

inference of malice and the definition of a dangerous weapon were

improper since there was no evidence introduced at trial that Green

initiated the physical altercation or that Green took the bat to the

altercation.

       We transferred the case to the court of appeals.         The court of

appeals affirmed the judgment and sentence. We granted further review.
                                      6

      II. Standard of Review.
      “When a defendant challenges a district court’s denial of a motion
to   suppress    based   upon   the   deprivation   of   a   state   or   federal
constitutional right, our standard of review is de novo.” State v. Brown,
890 N.W.2d 315, 321 (Iowa 2017).          We look to the entire record and
“make ‘an independent evaluation of the totality of the circumstances.’ ”
Id. (quoting In re Prop. Seized from Pardee, 872 N.W.2d 384, 390 (Iowa
2015)). On factual matters, we give deference to the trial court, but we
are not bound by its findings. Id.
      Similarly, when a jury instruction implicates a constitutional right,
our review is de novo.    See State v. Becker, 818 N.W.2d 135, 140–41
(Iowa 2012), overruled on other grounds by Alcala v. Marriott Int’l, Inc.,
880 N.W.2d 699, 708 n.3 (Iowa 2016).           If the instruction does not
implicate a constitutional right, we review the challenge for correction of
errors at law.     See Alcala, 880 N.W.2d at 707–08.            On review for
correction of errors at law, we are to “determine whether the challenged
instruction accurately states the law and is supported by substantial
evidence.” State v. Hanes, 790 N.W.2d 545, 548 (Iowa 2010).
      III. Error Preservation.

      Green preserved error on his article I, section 10 challenge by

citing the provision in his motion to suppress, arguing its independent

interpretation from the Sixth Amendment during the suppression

hearing, and obtaining a ruling from the district court on the issue. See

State v. Gaskins, 866 N.W.2d 1, 6 (Iowa 2015).           Green also preserved

error on his challenge to the jury instructions by objecting to them,

identifying authority for his objection, and obtaining a ruling. See State

v. Ambrose, 861 N.W.2d 550, 555 (Iowa 2015); State v. Overmann, 220

N.W.2d 914, 918 (Iowa 1974).
                                             7

       IV. Analysis.

       A. The Right to Counsel.                  Article I, section 10 of the Iowa

Constitution identifies the rights of “the accused” in “all criminal

prosecutions, and in cases involving the life, or liberty of an individual.”

Iowa Const. art. I, § 10. The enumerated rights are

       to a speedy and public trial by an impartial jury; to be
       informed of the accusations against him, to have a copy of
       the same when demanded; to be confronted with the
       witnesses against him; to have compulsory process for his
       witnesses; and, to have the assistance of counsel.

Id.

       The right at issue in this case is the assistance of counsel in a

criminal prosecution. 1 Green claims the right attached to the prearrest
interview because enough prosecutorial forces of the state had been

committed against him to make him “the accused” and to make the

interview the functional equivalent of a “criminal prosecution[].” Id. The

claim relies only on the article I, section 10 right to counsel, although it

utilizes concepts of the right found within the privilege against self-

incrimination. 2
       It is a “universal principle of constitutional law” that the provision
of counsel for the defense of the accused is “essential to any fair trial.”

       1We   discussed the origin of the “cases” portion of article I, section 10 in State v.
Senn, 882 N.W.2d 1, 12–16 (Iowa 2016); id. at 41–47 (Wiggins, J., dissenting); id. at 65–
68 (Appel, J., dissenting). We reaffirm the general proposition that this textual
difference indicates a broader right to counsel under the Iowa Constitution than its
federal counterpart, see, e.g., State v. Young, 863 N.W.2d 249, 271, 281 (Iowa 2015)
(concluding the “cases” language supports a right to counsel in certain misdemeanor
prosecutions that is not provided by the U.S. Constitution), but find Green’s argument
is properly resolved by focusing on when a “criminal prosecution[]” begins. Iowa Const.
art. I, § 10. The State’s “case” against Green is a criminal one. There must be a
prosecution before the Iowa Constitution will provide him a right to counsel.
       2Green
            does not pursue alternative arguments under article I, sections 8 or 9 on
appeal. We address his claim only under the right to counsel provided by article I,
section 10.
                                     8

Powell v. Alabama, 287 U.S. 45, 70, 53 S. Ct. 55, 64 (1932) (first quoting
1 Cooley’s Constitutional Limitations 700 (8th ed.); and then quoting
Ex Parte Chin Loy You, 223 F. 833, 838 (D. Mass. 1915)); see also State v.
Peterson, 663 N.W.2d 417, 426 (Iowa 2003) (noting the constitutional
guarantee of counsel “maintains the fair administration of our criminal
justice system by assuring aid to the accused when confronted by the
government adversary”).    This is a basic and prominent goal, and we
have broadly construed the right to achieve it. See State v. Newsom, 414
N.W.2d 354, 359 (Iowa 1987) (We broadly construe this provision to
effectuate its purpose, which was to correct the imbalance between the
position of the accused and the powerful forces of the State in a criminal
investigation.”). In short, the constitutional right to counsel provides “an
aid to the understanding and protection of [other] constitutional rights,”
Moran v. Burbine, 475 U.S. 412, 468, 106 S. Ct. 1135, 1166 (1986)
(Stevens, J., dissenting), and is “indispensable to the fair administration
of our adversary system of criminal justice,” Brewer v. Williams, 430 U.S.
387, 398, 97 S. Ct. 1232, 1239 (1977). Our founders provided it because
the system is balanced only when both the state and the accused have
the professional assistance of counsel.
      While the purpose of the right to counsel applies to both trial and
pretrial proceedings, even beyond, the text of article I, section 10 applies
to “criminal prosecutions” and to “the accused.” We must decide if this
text extends the right to counsel to an interview conducted just prior to
the filing of a complaint and the issuance of an arrest warrant.
      In applying the right to counsel under the Sixth Amendment to the
U.S. Constitution, the Supreme Court has held that a criminal
prosecution commences only after “the initiation of adversary judicial
criminal proceedings—whether by way of formal charge, preliminary
hearing, indictment, information, or arraignment.” Rothgery v. Gillespie
                                     9

County, 554 U.S. 191, 198, 128 S. Ct. 2578, 2583 (2008) (quoting United
States v. Gouveia, 467 U.S. 180, 188, 104 S. Ct. 2292, 2297 (1984)).
Under this standard, Green had no right to counsel.          The interview
occurred before any of these formal events.
      Like article I, section 10, the text of the right to counsel under the
Sixth Amendment applies to “the accused” in all “criminal prosecutions.”
However, in applying the Sixth Amendment to our state criminal
procedure, we have held that the criminal prosecution required by the
text of the clause exists once a complaint has been filed and an arrest
warrant has been issued. See State v. Jackson, 380 N.W.2d 420, 424
(Iowa 1986); State v. Johnson, 318 N.W.2d 417, 434–35 (Iowa 1982).
      In Johnson, the defendant was arrested after the county attorney
filed a complaint against him.      318 N.W.2d at 427.       Police officers
subsequently interrogated him in an interview room of the jail and
obtained inculpatory statements. Id. at 427–28. We held the interview
could not be characterized as investigatory in nature once the “forces of
the state had solidified in a position adverse to defendant” by virtue of
the filing of the criminal complaint and issuance of an arrest warrant.
Id. at 435.   Additionally, we observed the prosecuting attorney had
become intimately involved in the case. Id. In Jackson, as in Johnson, a
defendant was questioned in an interview room of the jail following an
initial appearance on an arrest and a criminal complaint. 380 N.W.2d at
422. We held the right to counsel attached prior to the interview because
the arrest warrant and complaint showed a commitment by the state to
prosecute the defendant. Id. at 424. We rejected the state’s claim that
the interview was investigatory because the prosecuting attorney did not
participate in the proceedings. Id. at 423. Instead, we found the totality
of the prosecutorial forces had focused on the defendant and showed a
commitment by the state to prosecute him. Id. at 424.
                                    10

      Accordingly, once a complaint has been filed and an arrest has
occurred, a police interview is no longer a criminal investigation.
Instead, it takes the shape of an accusation.     This conclusion is even
more evident when the interviewing involves significant participation by
the prosecutor. As such, we have held that a criminal prosecution for
the purposes of the right to counsel does not just begin with the filing of
the trial information or other formal charges. See Jackson, 380 N.W.2d
at 423; Johnson, 318 N.W.2d at 435. Instead, a criminal prosecution for
the purposes of the right to counsel can also begin once the preliminary
complaint and arrest occurs. See Jackson, 380 N.W.2d at 423; Johnson,
318 N.W.2d at 435. Furthermore, we recognize that the “cases” language
of article I, section 10 reflects that the right to counsel can exist even
without the filing of formal or informal charges. See State v. Young, 863
N.W.2d 249, 279 (Iowa 2015) (“What is apparent, therefore, is that one of
the purposes of the ‘cases’ language was to guarantee the protections of
article I, section 10 to those whom no formal criminal prosecution was or
could be instituted, thereby providing broader protections than the
United States Constitution.”).   In other words, the right is not entirely
dependent upon the existence of criminal charges.       Green argues the
approach we have taken under our constitution supports interpreting a
“criminal prosecution[]” under article I, section 10 to include the police
interview in this case.
      We are aware of no other state court in the nation that has held
the right to counsel attaches during a criminal investigation prior to the
filing of charges. This observation is not made to reject Green’s claim or
to deter us from our task to interpret our constitution, but to only
recognize the limited backdrop we draw upon.
      At the same time, we recognize that the purpose of the right to
counsel under article I, section 10 is generally applicable to all police
                                     11

interviews with suspects of crimes. It is common for police officers to be
trained in the interrogation of suspects and in eliciting confessions. See
Miranda v. Arizona, 384 U.S. 436, 449–55, 86 S. Ct. 1602, 1615–17
(1966). Importantly, confessions are normally powerful evidence of guilt.
See Escobedo v. Illinois, 378 U.S. 478, 487–88, 84 S. Ct. 1758, 1763–64
(1964). Thus, the reason for counsel to represent a suspect during an
interview is the same as the reason for counsel to represent a suspect
during trial. See id. at 486, 84 S. Ct. at 1762.
      Notwithstanding, the text of the constitution is at the core of our
analysis and is our primary focus. See State v. Briggs, 666 N.W.2d 573,
578 (Iowa 2003) (noting while “[o]ur polestar in this analysis is the intent
of the framers of our constitution[,]” “[f]irst and foremost, ‘[w]e give the
words used by the framers their natural and commonly-understood
meaning’ ” (fourth alteration in original) (quoting Howard v. Schildberg
Constr. Co., 528 N.W.2d 550, 553 (Iowa 1995))). The text tells us that the
right to counsel applies only to the accused and, for the purposes of this
case, only to a criminal prosecution. See Iowa Const. art. I, § 10. Thus,
we can only recognize a right to counsel in this case if the evidence
supports the conclusion that Green was the accused in a criminal
prosecution at the time of the interview. In making this decision, we are
not confined to our prior holdings in Johnson and Jackson that a
criminal prosecution at least requires a complaint to be filed and an
arrest warrant to be issued, but we are confined to the meaning of a
criminal prosecution. Accordingly, the facts before us must justify the
conclusion we reach.     This is because we interpret our constitution
consistent with the text given to us by our founders through the lens of
the facts and circumstances of today. See Griffin v. Pate, 884 N.W.2d
182, 202 (Iowa 2016); Varnum v. Brien, 763 N.W.2d 862, 876 (Iowa
2009).
                                           12

       It is important to observe that the words used in both our
constitution and the U.S. Constitution to articulate the “right to counsel”
have remained the same over time. The text tells us the right applies
only to “criminal prosecutions.” 3 Yet, it was not until 1932 that the U.S.
Supreme Court declared the concept of a “criminal prosecution” extended
beyond the trial itself. See Powell, 287 U.S. at 58, 53 S. Ct. at 59–60.
Over time, it was extended again to custodial interrogations prior to any
charges once a general criminal investigation has focused on a specific
suspect.      See Escobedo, 378 U.S. at 490–91, 84 S. Ct. at 1765.
Eventually, the view broadened to “at least,” Rothgery, 554 U.S. at 212,
128 S. Ct. at 2591, all “critical stages” of criminal proceedings.                    See
United States v. Wade, 388 U.S. 218, 227, 87 S. Ct. 1926, 1932 (1967).
The facts and circumstances of each case were the tools for developing
the constitutional meaning.
       The facts and circumstances of this case confirm that Green was
not formally or informally an “accused,” and the interview was not a
“criminal prosecution” under our existing jurisprudence.                           Green
appeared voluntarily at the police station.                 He could have left the
interview room or stopped the interview at any time.                     There was no
warrant for his arrest, and there were no charges filed against him.
These facts signal a police investigation, not a criminal prosecution.
       In truth, many circumstances can be articulated to distinguish a
prearrest interview from a criminal prosecution. Additionally, the right
to counsel is not the sole protection against the fundamental and
inherent imbalance in a police interview. The constitution addresses this
imbalance initially by prohibiting police from seizing individuals without

       3Again, we recognize the right also applies in “cases involving the life, or liberty
of an individual.” Iowa Const. art. I, § 10. However, as noted above, this case concerns
a criminal prosecution.
                                    13

reasonable suspicion of a crime or probable cause to believe a crime
occurred. See Iowa Const. art. I, § 8; State v. McIver, 858 N.W.2d 699,
702 (Iowa 2015).     Next, it requires the police give warnings before
engaging in a custodial interview. See Iowa Const. art. I, § 9; State v.
Schlitter, 881 N.W.2d 380, 395 (Iowa 2016). It is only once a prosecution
is commenced that the imbalance is corrected through the adversary
process and through the right to counsel given by article I, section 10.
       In the end, Green relies in large measure on the involvement of the
prosecuting attorney in the interview to elevate it into a criminal
prosecution of an accused. But the facts that describe this involvement
do not support a criminal prosecution either. See State v. Evans, 495
N.W.2d 760, 765 (Iowa 1993). The prosecutor only participated in the
interview as an investigator, just as the police officers.     He did not
confront Green as an accused or direct accusatory statements toward
him.    Instead, the prosecutor had joined with law enforcement to
investigate and gather evidence of a crime. The prosecutor assisted by
seeking warrants and guiding the police throughout the investigation.
The prosecutor then used this evidence to prosecute Green by filing a
trial information.
       It is important to remember that the democracy of our constitution
is achieved in large part by the balance it creates between the forces of
government and the rights of individuals. But the balance works with
the use of many rights. The right to counsel is but one. Among all the
rights, some attach before the criminal prosecution begins, some attach
during the prosecution, and some attach after. The balance must also
consider the role of criminal investigation and law enforcement in
society. The adversarial process that gives rise to the right to counsel
includes the accusatory stage, but excludes the investigatory stage.
While the lines drawn between these stages can move over time, the facts
                                     14

and circumstances of this case primarily identify the forces of an
investigation, not a prosecution.
      Assistance of counsel would aid a suspect during a police
interrogation and would help correct the inherent imbalance between the
investigatory forces of the government and a suspect, but our
constitution does not give the right to counsel as a protection from all
police encounters. It only applies to those accused by the government in
a criminal prosecution or case involving life or liberty. We hold there is
no right to counsel based solely on the presence and the assistance of a
prosecuting attorney during an investigatory police interview.
      B. The Jury Instruction. We have said, “ ‘Malice’ . . . means that
condition of mind which prompts one to do a wrongful act intentionally,
without legal justification or excuse.” State v. McCollom, 260 Iowa 977,
988, 151 N.W.2d 519, 525 (1967). When an individual acts on that state
of mind, the individual is said to have acted with “malice aforethought.”
See State v. Bentley, 757 N.W.2d 257, 265 (Iowa 2008). In the homicide
context, the wrongful act is taking a life, and therefore a person acts with
malice aforethought if the person has a state of mind prompting the
person to take the life of another intentionally, without legal justification
or excuse.   Malice aforethought may accompany an unlawful intent to
kill, or may simply be an unlawful intent “to do physical harm to
another” that results in death.     State v. Myers, 653 N.W.2d 574, 579
(Iowa 2002); see also State v. Ceretti, 871 N.W.2d 88, 93–94 & n.4 (Iowa
2015); Malice Aforethought, Black’s Law Dictionary (10th ed. 2014).
Whether accompanied by a specific intent to kill or simply consisting of
the general intent to do physical harm, “[a] person who kills another
person with malice aforethought either express or implied commits
murder,” and not manslaughter. Iowa Code § 707.1.
                                    15

      Malice aforethought, then, is a term of art used to describe a
culpable state of mind, an essential element of the offense of murder that
the State must prove to the jury beyond a reasonable doubt. See State v.
Reeves, 670 N.W.2d 199, 207 (Iowa 2003).            However, it is often
impossible for a jury to determine a defendant’s state of mind without
the aid of inference. See State v. Serrato, 787 N.W.2d 462, 469 (Iowa
2010). By instructing the jury that it may infer malice from the use of a
dangerous weapon, courts present the jury with a straightforward
example of how the State might prove the defendant’s culpable state of
mind. The inference, which the jury is permitted but never required to
make, see Sandstrom v. Montana, 442 U.S. 510, 524, 99 S. Ct. 2450,
2459 (1979); State v. Rinehart, 283 N.W.2d 319, 323 (Iowa 1979), exists
because a rational juror could infer that one who uses a dangerous
weapon intends to cause physical harm, and even to kill. See State v.
Artzer, 609 N.W.2d 526, 530 (Iowa 2000); State v. Berlovich, 220 Iowa
1288, 1294, 263 N.W. 853, 856 (1935); see also State v. Ochoa, 244
N.W.2d 773, 777 (Iowa 1976) (“It is presumed a person intends the
natural consequences of his intentional acts.”).       If unjustified and
unexcused, causing physical harm or death is a wrongful act, and
therefore the intent to do these things is a state of mind that would
constitute malice aforethought. McCollom, 260 Iowa at 988, 151 N.W.2d
at 525.   Thus, the jury may infer the defendant acted with malice
aforethought by using a dangerous weapon, the natural consequence of
which is physical harm or death.
      We have approved instructions to this effect when defendants
discharged a firearm aimed at a victim, see Ambrose, 861 N.W.2d at 560–
61, struck a victim in the head with a blunt object, see State v. Lass, 228
N.W.2d 758, 761–62, 766 (Iowa 1975), and stabbed a victim in the chest
with a penknife, see State v. Roan, 122 Iowa 136, 139, 97 N.W. 997, 998
                                   16

(1904). Similarly, based on defendants’ uses of a variety of dangerous
weapons, we have relied on the inference to uphold convictions despite
challenges to the sufficiency of evidence of the crime. See, e.g., Artzer,
609 N.W.2d at 530 (firearm); State v. Frazer, 267 N.W.2d 34, 39 (Iowa
1978) (automobile); State v. Emery, 236 Iowa 60, 65, 17 N.W.2d 854,
856–57 (1945) (iron pipe); State v. Heinz, 223 Iowa 1241, 1259, 275 N.W.
10, 21 (1937) (hands and fists, when used against a small child). We
approve of deadly weapon instructions because they are an accurate
statement of the law and aid in defining the, although “time honored,”
often poorly understood concept of malice aforethought.        4 John L.
Yeager & Ronald L. Carlson, Iowa Practice: Criminal Law & Procedure
§ 131, at 35 (1979).
      However, there may be circumstances where it would not be
appropriate to infer malice. For example, the defendant may argue the
weapon was not deadly or dangerous. See State v. Brown, 67 Iowa 289,
291, 25 N.W. 248, 249 (1885); see also State v. Greene, 709 N.W.2d 535,
537–38 (Iowa 2006).     The inference would be inappropriate because
death or grievous bodily harm is not a foreseeable consequence of using
the “weapon.” Or, the defendant may concede the weapon was deadly,
but assert it was not used intentionally, such as when a firearm is
accidentally discharged. See State v. Pepples, 250 N.W.2d 390, 392, 395
(Iowa 1977); State v. Smith, 242 N.W.2d 320, 325–26 (Iowa 1976). If the
trier of fact accepts the defendant’s assertion, the inference would be
inappropriate because the defendant did not intend the foreseeable
consequences of the action.     Finally, the defendant may argue the
inference is improper because, even though the weapon was deadly, and
even though the defendant intended the foreseeable consequences of
using it, the defendant had adequate provocation or fear of imminent
bodily harm to use the weapon. See Reeves, 670 N.W.2d at 207; State v.
                                   17

McNamara, 252 Iowa 19, 25–26, 104 N.W.2d 568, 572 (1960); State v.
Borwick, 193 Iowa 639, 643, 187 N.W. 460, 462 (1922). The inference
would be inappropriate because the defendant’s state of mind was not
malicious, but instead was justified or excused.        Green asserts the
inference was inappropriate in his case based on the last of these
examples; he argues the evidence did not show he committed the
homicide with malice because he did not bring the weapon to the
encounter and he was acting in self-defense. See 4 Robert R. Rigg, Iowa
Practice Series™: Criminal Law § 3:5, at 94 (2016–2017).        Essentially,
Green challenges the jury instruction in this case by asserting there was
not substantial evidence to support it. See Hanes, 790 N.W.2d at 548.
      Green testified he held a baseball bat to Koster’s throat until he
died. Medical expert testimony was introduced at trial that, under these
circumstances, this would have taken up to two minutes.                 The
foreseeable consequence of a person with a significant weight advantage
forcing a bat against the throat of another person for that length of time
is death. Green concedes he did this, and death followed. Thus, while
Green did not bring the weapon to the encounter, a rational observer
could infer he intended to kill Koster when he used the bat in that
manner. It could also infer he did so with malice aforethought.
      While evidence that a person took a dangerous weapon to a fight
could support an inference of malice aforethought, it is not a
requirement. Malice aforethought is inferred simply from the use of the
dangerous weapon, see State v. Reeves, 636 N.W.2d 22, 25 (Iowa 2001),
and the manner that Green used the bat in this case—to cause death to
another—supports     the   inference    of   malice   aforethought.     The
instructions on malice aforethought and a dangerous weapon accurately
stated the law, and there was substantial evidence presented at trial to
support them.    We do not find them redundant.          See Ambrose, 861
                                    18

N.W.2d at 561.      Therefore, if the jury rejected Green’s self-defense
argument, it could, but was not required to, infer Green acted with
malice aforethought from his use of a dangerous weapon.              Later
instructions explained Green’s justification defense and the State’s
burden to overcome it. Moreover, the jury was instructed it could only
find Green guilty of second-degree murder if it found the State proved he
lacked justification. Green does not object to these other instructions,
and the jury apparently found the State met its burden of proof. We find
no error.
      We hold the court properly instructed the jury that it could infer
Green acted with malice aforethought from his use of a dangerous
weapon.     Thus, we necessarily hold there was no constitutional error.
Because we conclude there was no constitutional error in the jury
instructions, we do not address the State’s assertion that Green failed to
preserve a constitutional argument, nor do we address Green’s
alternative claim of ineffective assistance of counsel. Finally, we do not
decide whether a malice-inference jury instruction is always appropriate
when a person kills another with a dangerous weapon.         We hold only
that in Green’s case, such an inference was permissible.
      V. Conclusion.
      We reject Green’s claims of error and affirm the judgment of the
court of appeals.   There was no right to counsel provided by article I,
section 10 of the Iowa Constitution at the time of Green’s voluntary and
noncustodial interview with police under the supervision of an Iowa
county attorney.    The constitutional right to counsel is essential to
ensuring a fair trial, but has no application without a prosecution or case
with which counsel could aid the accused. There was no prosecution or
case at the time of Green’s interview. As to the use of a jury instruction
on inferring malice aforethought from the use of a dangerous weapon,
                                    19

this was an accurate statement of the law and supported by the evidence
in this case. Malice aforethought is a legal term of art used to describe a
culpable mental state.    Mental states necessarily must be proven by
inference.   It was not error to provide the jury with this guidance, as
Green’s actions supported an inference of malice. For these reasons, we
affirm.
      AFFIRMED.
      Wiggins, Hecht, Mansfield, and Zager, JJ., join this opinion.
Appel, J., files a concurring opinion joined by Wiggins and Hecht, JJ.
Waterman files a separate concurring opinion joined by Zager, J.
                                        20

                                                       #15–0871, State v. Green

APPEL, Justice (concurring specially).

      This fact-bound case has been decided narrowly on the record

presented.     At the time of John Green’s interview, no indictment had

been handed down, no criminal complaint or trial information had been

filed, no warrant for his arrest had been sought or issued, and Green had

not been arrested. Green had not retained counsel prior to the interview

and did not request an opportunity to speak with counsel during the

interview.
      Further, although the prosecutor traveled to Florida, viewed the
interrogation from another room, and appears to have on a couple of
occasions discussed the progress of the interrogation with police officers,
Green has failed to show he faced an imbalance by being confronted with
a trained prosecutor skilled in the arts of interrogation.           Instead, the
record shows only the officers occasionally talked with the prosecutor
during breaks of the interview, the prosecutor suggested areas of inquiry
or direction of the interview, and little else. Nothing in the record shows
the prosecutor’s involvement had shifted from an investigative to an
accusatorial role.
      As a result, Green’s right to counsel argument fails.                Article I,
section 10 of the Iowa Constitution does not prohibit law enforcement
from seeking advice from county attorneys in the course of a criminal
investigation.      The record is thus not sufficient to trigger the right to
counsel      even   under   a   broad   construction     of   the   “all   criminal
prosecutions” clause or the distinctive “cases” language of article I,
section 10. See State v. Senn, 882 N.W.2d 1, 36–47 (2016) (Wiggins, J.,
dissenting) (describing the unique features and history of article I,
section 10). See generally id. at 50–68 (Appel, J., dissenting).
      Wiggins and Hecht, JJ., join this special concurrence.
                                    21
                                                  #15–0871, State v. Green

WATERMAN, Justice (concurring specially).
      I respectfully concur in the result of the majority’s opinion. I write

separately to reiterate that no right to counsel attaches under article I,

section 10 of the Iowa Constitution before the filing of criminal charges in

a court proceeding, for the reasons thoroughly explained in State v. Senn,

882 N.W.2d 1, 8–31 (Iowa 2016) (surveying language and history of

article I, section 10 and determining no right to counsel existed during

implied-consent procedures before charges filed).         As the majority

correctly observes, there is “no other state court in the nation that has

held the right to counsel attaches during a criminal investigation prior to

the filing of charges.”

      Green claims he had a precharge right to counsel under article I,

section 10 because an Iowa prosecutor and police traveled to Florida in

tandem and the prosecutor guided the police interview.           The Fifth

Amendment and article I, section 9 of the Iowa Constitution require

Miranda warnings to protect the right to counsel during custodial

interviews before and after the filing of criminal charges.    See State v.

Schlitter, 881 N.W.2d 380, 395 (Iowa 2016) (noting under both the Iowa

and Federal Constitutions, “[l]aw enforcement officers are required to give

Miranda warnings when a suspect is in custody and subjected to

interrogation” and analyzing whether defendant was in custody). But as

the majority holds, Green’s right to counsel was not triggered in his

noncustodial interview conducted as part of the police investigation

before the State of Iowa charged him with a crime.

      I do not join the majority opinion to the extent it relies on State v.

Young, 863 N.W.2d 249, 279 (Iowa 2015), and inaccurately suggests in

dicta that “the ‘cases’ language of article I, section 10 reflects that the
                                    22

right to counsel can exist even without the filing of formal or informal

charges.” Young does not stand for that proposition. To the contrary,

Young found a right to counsel in cases in which criminal misdemeanor

charges that carried a potential sentence of incarceration had been filed.

Id. at 281.

      Our court has never previously held or suggested the right to

counsel under section 10 could arise before a criminal case is

commenced in court. Why suggest that now? We should decide the case

before us and leave it at that.

      Zager, J., joins this special concurrence.
