                    IN THE COURT OF APPEALS OF IOWA

                               No. 4-016 / 13-0035
                               Filed April 30, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BRADLEY WILLIAM ARTERBURN,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Mahaska County, Lucy J. Gamon,

Judge.



      A defendant appeals his conviction for first-degree murder. AFFIRMED.



      Alfredo Parrish and Andrew Dunn of Parrish, Kruidenier, Dunn, Boles,

Gribble, Gentry & Fisher, L.L.P., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, Mary Triick and Denise Timmins,

Assistant Attorneys General, and Rose Anne Mefford, County Attorney, for

appellee.



      Heard by Vaitheswaran, P.J., and Tabor and Bower, JJ.
                                           2



TABOR, J.

        Bradley Arterburn killed his mother’s boyfriend, Robert “Hank” Horovitz, by

striking him with a battle axe and slitting his throat with a knife. At trial, Arterburn

raised defenses of insanity and diminished responsibility, testifying that before

and during the attack he experienced flashbacks to being sexual abused by his

stepfather as a child. A jury convicted Arterburn of first-degree murder.

        On appeal, Arterburn advances several claims of ineffective assistance of

counsel; challenges the rejection of his insanity defense and the sufficiency of

the State’s evidence of malice aforethought, premeditation, deliberation, and

specific intent to kill; and argues the district court improperly allowed into

evidence a photograph of his abuser. We affirm Arterburn’s first-degree murder

conviction, finding substantial evidence to uphold the jury’s verdict. We conclude

the undated photograph of Arterburn’s stepfather was not relevant, but its

admission was harmless.          Finally, we preserve the claims of ineffective

assistance of counsel concerning change of venue and an allegedly biased juror.

We deny the ineffective-assistance claims alleging prosecutorial misconduct.

I.      Background Facts And Proceedings

        From age eight to eleven, Arterburn suffered horrendous sexual abuse at

the hands of his stepfather, Dave Myers. Myers fondled Arterburn almost daily,

engaged in sex acts with the boy, and ejaculated on his face. Myers molested

Arterburn’s friends and even forced Arterburn to watch while Myers had a sexual

encounter with the boy’s dog. Arterburn revealed the abuse to his mother in

1997.    Myers was convicted and sent to prison.            But Arterburn often had
                                         3



nightmares Myers would return and hurt him again. At age eighteen, Arterburn

began collecting swords, knives, and other blades, as well as guns, out of

concern for his safety. Arterburn’s mother, Linda, promised her son if someone

she dated ever reminded him of Myers, she would end the relationship.

      Linda took her son to specialized therapy for victims of sexual assault as

soon as the abuse came to light. Arterburn continued seeing various counselors

over the years.     He has been diagnosed with major depressive disorder,

generalized anxiety disorder, posttraumatic stress disorder, social anxiety

disorder, adjustment disorder, and attention deficit hyperactivity disorder.     In

June 2010, Arterburn sought treatment from Diane Simons, a physician’s

assistant, who prescribed Seroquel, Topamax, Zolpidem, Prozac, Gabitril,

Trazodone, and Ambien for him.        She considered Arterburn, who was then

twenty-five years old, to be stable on his medication.

      Arterburn dropped out of high school but earned his GED and attended

community college classes. He did not hold a job, except for a short stint at

Dairy Queen when he was sixteen. He qualified for Social Security assistance

and paid rent to stay in his mother’s basement.          Arterburn had a close

relationship with his sister, Brianna, and sometimes babysat for her daughter.

      In June 2011, his mother, Linda, met Hank Horovitz online.            Their

relationship moved quickly. On the first weekend in June, Horovitz stayed at the

family home in Oskaloosa. Horovitz spent time with Linda in her bedroom and

those dalliances bothered Arterburn.     Arterburn told his mother that Horovitz

reminded him of Myers and asked her not to date him, at least not while
                                           4



Arterburn continued to live in the home.          Arterburn expressed these same

sentiments to his sister. Brianna had not met Horovitz but shared her brother’s

concern about their mother rushing into this relationship.

       Despite Arterburn’s discomfort, Linda decided to let Horovitz move in.

Linda recalled that on the afternoon of June 19, 2011, Horovitz told Arterburn

about their plans: “Hank was really happy about the fact that we were going to

move in together and later get married, and he just kind of blurted it out to Brad.”

This news greatly upset Arterburn. At first, Arterburn told his mother: “[T]his is a

family home,” and it was not her decision alone to allow Horovitz to live with

them. He then asked her to wait for him to move out before letting Horovitz move

in.

       Later that day, Arterburn saw Horovitz sitting at the computer in the family

room without his shirt on. Arterburn testified he “started seeing Dave” and could

not get the visions of his abuser out of his head. Arterburn tried to calm down by

going to the video store and to Subway. Arterburn returned home and went to

his bedroom in the basement where he watched a movie, but he could not shake

his flashbacks. Arterburn then took his German Shepherd, Buddy,1 out for a

walk, and when he returned, Arterburn heard Horovitz say: “he likes my dog and

my dog likes him.” Horovitz’s reference to his dog further triggered Arterburn’s

memory of Myers’s abuse: “I immediately started having flashbacks about Buddy

and about me.”




1
 Arterburn testified he used the name “Buddy” for both his childhood pet and his current
German Shepherd.
                                         5



       Arterburn testified he believed he had to “protect” himself. He went to his

basement bedroom, grabbed a battle axe from the wall, walked back upstairs,

and struck Horovitz in the back with its blade. Arterburn struck him again and

again, then took a knife from his pocket and slit Horovitz’s throat.       In total,

Horovitz suffered seventeen sharp force injuries; the medical examiner

determined he died from “bleed[ing] out.”

       During the struggle, Hank yelled for Linda to help him, but Arterburn threw

her against the fireplace. When she tried to call police, Arterburn grabbed the

cell phone and snapped it into two pieces. Arterburn told his mother “he doesn’t

deserve for you to call 911.” Arterburn then turned the knife on himself. As he

was stabbing himself in the chest, Arterburn told his mother it was “all her fault.”

Arterburn next went out on the deck to smoke. Arterburn testified he hoped his

chest wounds would be fatal. He also testified he wanted the police officers

reporting to the scene to shoot him. He charged at one officer, trying to achieve

that result. Instead, another officer subdued him with a taser, placed him under

arrest, and transported him to the hospital.

       At the hospital, in the early morning hours of June 20, 2011, Iowa Division

of Criminal Investigation Special Agent Adam DeCamp interviewed Arterburn.

After waiving his Miranda rights, Arterburn admitted he “just snapped” on his

mother Linda because he “couldn’t take it anymore . . . [s]he put me through so

much shit.” He told the agent about his stepfather, Dave Myers, explaining: “She

got married and I got abused, sexually abused.” He described how he was

“ambushed” by the news that his mother and “her boyfriend that she only knew
                                         6



for two weeks” were moving into the house together. Arterburn told DeCamp the

boyfriend’s name was “Hank.”        Arterburn admitted “go[ing] after Hank” and

hurting him. Arterburn did not tell the agent that he mistook Hank for Dave

during the attack. Instead, Arterburn described his motive, as “just trying to make

my mom suffer.” He explained: “I was hoping she would have to lose both of us.”

When the agent told Arterburn that Hank was dead and asked who was

responsible for his death, Arterburn said his mom Linda was responsible.

          On June 28, 2011, the State charged Arterburn with murder in the first

degree, in violation of Iowa Code section 707.1 and 707.2(1) (2011), a class “A”

felony.     On September 7, 2011, Arterburn filed notice under Iowa Rule of

Criminal Procedure 2.11(11), claiming the defenses of insanity and diminished

responsibility. The court held a hearing on May 14, 2012, regarding Arterburn’s

competency to stand trial. Based on a psychiatric evaluation done by Dr. Eva

Christiansen, the court found Arterburn competent to stand trial.

          A jury trial began on September 25, 2012. After a day of voir dire, the

court impaneled a jury. On October 3, 2012, the jury returned a verdict finding

Arterburn guilty of first-degree murder.     On December 10, 2012, the court

sentenced him to life in prison. Arterburn now appeals his conviction.

II.       Scope and Standards of Review

          Arterburn claims his trial counsel’s performance was constitutionally

deficient; we review those claims de novo. See State v. Finney, 834 N.W.2d 46,

49 (Iowa 2013). Because Arterburn’s allegations of cumulative error also involve

the constitutional right to a fair trial, we review the record de novo under a
                                        7



totality-of-the-circumstances test for those claims as well. See State v. Carey,

165 N.W.2d 27, 36 (Iowa 1969); State v. Hardy, 492 N.W.2d 230, 236 (Iowa Ct.

App. 1992); see also Conner v. State, 362 N.W.2d 449, 458 (Iowa 1985).

       We review Arterburn’s challenge to the admission of a photograph into

evidence for an abuse of discretion; we will not reverse unless the evidence is

prejudicial.   See State v. Hunt, 801 N.W.2d 366, 374 (Iowa Ct. App. 2011).

       Finally, we review claims of insufficient evidence, preserved by a motion

for judgment of acquittal, for errors at law. State v. Hawkins, 620 N.W.2d 256,

258 (Iowa 2000). We view the record in the light most favorable to the State, and

make all legitimate inferences and presumptions that may be reasonably

deduced from the evidence. State v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005).

“Inherent in our standard of review of jury verdicts in criminal cases is the

recognition that the jury was free to reject certain evidence, and credit other

evidence.” State v. Nitcher, 720 N.W.2d 547, 556 (Iowa 2006) (quoting State v.

Anderson, 517 N.W.2d 208, 211 (Iowa 1994)).

III.   Analysis

       A.      Ineffective Assistance of Counsel

       Arterburn alleges his trial attorney performed below professional

standards in three ways: (1) by failing to move for a change of venue, (2) by

failing to move to strike juror L.D. based on her preconceived notions of the case,

and (3) by failing to take the proper action in response to alleged prosecutorial
                                            8



misconduct.2     We will assess each claim separately and then will consider

Arterburn’s assertion regarding the cumulative effect of counsel’s errors.

       In assessing counsel’s performance, we look to the familiar two-prong test

in Strickland v. Washington, 466 U.S. 668, 687 (1984).               Under Strickland,

appellate courts first decide if the representation dropped below an objective

standard of reasonableness. Hinton v. Alabama, 134 S. Ct. 1081, 1088 (2014).

That first prong, testing for constitutional deficiency, is linked to the practice and

expectations of the legal community. Id.        “An attorney’s ignorance of a point of

law that is fundamental to his case combined with his failure to perform basic

research on that point is a quintessential example of unreasonable performance

under Strickland. Id. at 1089. On the other hand, strategic choices by counsel

after thorough investigation of the law and facts are “virtually unchallengeable.”

Id. (quoting Strickland, 466 U.S. at 690–91).

       The second question asked by appellate courts under Strickland is if there

exists a reasonable probability that, but for counsel’s unreasonable actions, the

result of the proceeding would have been different. Id. at 1088. “A reasonable

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

at 1089 (quoting Strickland, 466 U.S. at 694). The proper prejudice standard is a

point of contention in this appeal, which we will further discuss in our analysis of

Arterburn’s challenge to his trial attorney’s handling of jury selection.




2
  Arterburn also alleges counsel was ineffective in connection with the motion for
judgment of acquittal and its failure to specifically address the insanity defense. As we
will discuss later in this opinion, we find counsel preserved error on both of Arterburn’s
appellate challenges to the sufficiency of the State’s proof.
                                             9



       Generally, we do not resolve claims of ineffective assistance of counsel on

direct appeal. State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002). We prefer to

leave such claims for postconviction-relief proceedings.             State v. Lopez, 633

N.W.2d 774, 784 (Iowa 2001). Those proceedings allow the parties to develop

an adequate record “and the attorney charged with providing ineffective

assistance may have an opportunity to respond to defendant’s claims.” Biddle,

652 N.W.2d at 203. We will decide ineffective-assistance claims on direct appeal

when the record is sufficient to resolve them. State v. Coil, 264 N.W.2d 293, 296

(Iowa 1978).

               1.     Motion for Change of Venue

       Arterburn alleges his trial counsel should have filed a motion for change of

venue under Iowa Rule of Criminal Procedure 2.11(10)(b).3 To prevail on this

claim, Arterburn must prove the publicity attending the case was so pervasive

and inflammatory that prejudice must be presumed or that actual prejudice

occurred. State v. Simmons, 454 N.W.2d 866, 867 (Iowa 1990). Counsel may

request a change of venue when it appears likely during jury selection that “there

is a substantial likelihood a fair and impartial trial cannot be preserved with a jury

selected from the county.” State v. Newell, 710 N.W.2d 6, 33 (Iowa 2006).



3
       If the court is satisfied from a motion for a change of venue and the
       evidence introduced in support of the motion that such degree of
       prejudice exists in the county in which the trial is to be held that there is a
       substantial likelihood a fair and impartial trial cannot be preserved with a
       jury selected from that county, the court either shall order that the action
       be transferred to another county in which the offensive condition does not
       exist, as provided in rule 2.11(10)(c), or shall order that the trial jury be
       impaneled in and transferred from a county in which the offensive
       condition does not exist, as provided in rule 2.11(10)(d).
                                           10



       Arterburn claims the Mahaska County jury pool included too many people

who knew about his deadly attack on Horovitz or had another association with

the case. By his calculations, thirty-six of the forty-six prospective jurors had

some kind of connection to his case. He highlights twenty-two prospective jurors

who learned of the killing through the media and seven of those who heard the

weapon used was a battle axe. Four of those twenty-two were struck for cause.

He further argues nine learned about the case through family or community

relationships, and thirteen were acquainted with law enforcement officers, the

attorneys, Linda Arterburn, or other witnesses.         Arterburn points out, of the

twelve jurors impaneled, seven had heard about the case before voir dire, two

knew someone involved in the case, five had some exposure to persons with

mental illness, one knew a crime victim, and three knew other members of the

jury venire.    Of the twelve impaneled jurors, only two had no disclosed

connection to the case, according to Arterburn.

       Not all of Arterburn’s statistics support his claim counsel should have

sought a change of venue. Potential jurors from Mahaska County would not

differ from Iowans in other counties by virtue of knowing people with mental

illness, knowing people who have been victims of crime, or knowing other

members of their community called for jury duty. As for the jurors who heard

about the killing before voir dire, their mere exposure to news accounts does not

rise to the level of a substantial likelihood for prejudice.4 See State v. Walters,




4
   The United States Supreme Court wrote the following about pretrial publicity more than
fifty years ago:
                                             11



426 N.W.2d 136, 138 (Iowa 1988). To be fair, a juror need not be completely

ignorant of the issues and events involved in a trial. State v. Hoeck, 547 N.W.2d

852, 861 (Iowa Ct. App. 1996). The relevant question is whether a juror holds

such a fixed opinion of the merits of the case that he or she cannot impartially

decide if the defendant is guilty. Id.

       Arterburn cannot show on the existing record that such a degree of

prejudice existed in Mahaska County that his counsel performed below

professional norms in failing to ask for a change of venue. With the possible

exception of the voir dire responses by juror L.D., which we will discuss in the

next section of this opinion, Arterburn does not offer proof of actual prejudice

resulting from pretrial publicity that could have been avoided by a change of

venue. Moreover, both parties acknowledge the instant record is insufficient to

establish presumptive prejudice resulting from pretrial publicity.                 Proof of

presumptive prejudice would require a court to review the nature, tone, accuracy,

pervasiveness, and timing of the news coverage of the killing.                See State v.

Means, 547 N.W.2d 615, 622 (Iowa Ct. App. 1996). We preserve Arterburn’s




         In these days of swift, widespread and diverse methods of
         communication, an important case can be expected to arouse the interest
         of the public in the vicinity, and scarcely any of those best qualified to
         serve as jurors will not have formed some impression or opinion as to the
         merits of the case. This is particularly true in criminal cases. To hold that
         the mere existence of any preconceived notion as to the guilt or
         innocence of an accused, without more, is sufficient to rebut the
         presumption of a prospective juror’s impartiality would be to establish an
         impossible standard. It is sufficient if the juror can lay aside his
         impression or opinion and render a verdict based on the evidence
         presented in court.
Irvin v. Dowd, 366 U.S. 717, 722-23 (1961).
                                         12



claim that counsel should have moved for a change of venue for possible

postconviction proceedings so the record may be developed.

              2.     Striking Juror L.D. for Cause

       Arterburn also argues his counsel breached an essential duty by not

seeking to remove juror L.D. for cause. For-cause challenges are governed by

Iowa Rule of Criminal Procedure 2.18(5)(k). Under that rule, counsel may seek

to remove a potential juror for cause if the juror has formed a fixed opinion of the

defendant’s guilt.   Due process demands that if a jury is provided the jurors

cannot have formed an opinion on the defendant’s guilt in advance of trial. “[T]he

right to jury trial guarantees to the criminally accused a fair trial by a panel of

impartial, ‘indifferent’ jurors.” Turner v. Louisiana, 379 U.S. 466, 471 (1965); see

also Morgan v. Illinois, 504 U.S. 719, 727 (1992).

       During jury selection L.D. told the court she had heard about the case on

local radio and television stations. She said she was “upset” by what she had

seen and heard because she has a daughter who lives near where the killing

took place. She said she could decide the case on the evidence presented at

trial rather than what she heard in news accounts. But when defense counsel

asked if she felt his client “probably did it,” she replied: “I’m afraid so.” Defense

counsel then asked her: “If you’re sitting in my client’s chair, would you feel

comfortable with somebody indicating what you’ve just indicated sitting on a

jury?” L.D. candidly said: “No.” She then said she could “try” to be fair and

impartial. Later she said it would be “hard” for her to be impartial. The defense

moved to strike L.D., explaining: “I think that there’s still enough of a
                                           13



preconceived notion in her mind to where I don’t think she’s coming into the

process clean.”

       The prosecuting attorney followed up by asking L.D.: “If the Court instructs

you that you’re not supposed to consider the previous things that you heard, will

you do that?” She replied: “Yes, I will do that.” The prosecutor then asserted

L.D. should be able to remain in the jury pool.       Defense counsel asked her

whether she would listen to the court’s instructions and follow them. She replied:

“Yes. Oh, yes.” Defense counsel then asked: “Can you be fair and impartial in

this case?” She replied: “Yes. I will.” Hearing that, defense counsel withdrew his

request to strike L.D., and she served on the jury.

       Arterburn argues the facts here are similar to those in State v. Neuendorf,

509 N.W.2d 743 (Iowa 1993). There, a prospective juror said she would try to

overcome her prejudices but added it would be difficult. Id. at 745. The supreme

court agreed the juror was subject to a challenge for cause. Id. at 746. Here,

L.D. indicated she would “try” to be fair and impartial but added, “I don’t know”

when asked if she could disregard her previous knowledge of the case.

Arterburn argues L.D.’s “[a]ffirmations of impartiality are unpersuasive in the face

of multiple statements to the contrary.”

       The State counters with Simmons, 454 N.W.2d at 868, where the supreme

court found no abuse of discretion in the district court’s denial of a challenge for

cause to jurors who affirmatively indicated that though they were troubled by

what they knew about the case from extrajudicial sources, they would withhold

judgment and presume the defendant innocent until the evidence proved
                                        14



otherwise. The court held a “mere reservation” about impartiality does not justify

removal for cause.     Id.   The State contends L.D. was rehabilitated by her

responses to the attorneys’ final questions.

      We find the answer lies somewhere in between an indelible taint and a

surefire rehabilitation. We disagree that L.D.’s original views were so entrenched

that she was ineligible to serve as a juror. But we also disagree that she was

automatically cleansed of any preconceived bias by giving an affirmative

response to the attorneys’ leading questions.

      The following passage from Irvin is on point:

             Light impressions which may fairly be supposed to yield to
      the testimony that may be offered; which may leave the mind open
      to a fair consideration of that testimony, constitute no sufficient
      objection to a juror; but that those strong and deep impressions,
      which will close the mind against the testimony that may be offered
      in opposition to them; which will combat that testimony and resist its
      force, do constitute a sufficient objection to him.

Irvin, 366 U.S. 722 n.3 (quoting Chief Justice Marshal from 1 Burr’s Trial 416

(1807)).

      L.D. presented an enigma for defense counsel.            Counsel vacillated

between believing she needed to be struck for cause and believing she could be

a fair and impartial juror. The question on the performance prong is whether

counsel’s ultimate decision to withdraw his motion to strike L.D. was, without the

benefit of hindsight, reasonable under all of the circumstances as trial counsel

saw them at the time of voir dire. See Strickland, 466 U.S. at 690. We cannot

gauge the reasonableness of trial counsel’s strategy on our cold, written record
                                           15



of jury selection. In analyzing a Batson5 challenge, the California Supreme Court

offered the following observations which we find relevant to our reluctance to

decide this claim on direct appeal:

              Experienced trial lawyers recognize what has been borne
       out by common experience over the centuries. There is more to
       human communication than mere linguistic content. On appellate
       review, a voir dire answer sits on a page of transcript. In the trial
       court, however, advocates and trial judges watch and listen as the
       answer is delivered. Myriad subtle nuances may shape it, including
       attitude, attention, interest, body language, facial expression and
       eye contact. Even an inflection in the voice can make a difference
       in the meaning.

People v. Lenix, 187 P.3d 946, 961 (Cal. 2008).

       We    preserve     this   claim   of     ineffective   assistance   for   possible

postconviction-relief proceedings where counsel would have an opportunity to

explain his decision to leave L.D. on the jury. See Coil, 264 N.W.2d at 296

(“Even a lawyer is entitled to his day in court, especially when his professional

reputation is impugned.”). Arterburn’s appellate counsel urges us to decide on

direct appeal that trial counsel breached his professional duty by backing away

from questions he should have asked L.D. to probe her preconceived notion of

the defendant’s guilt. We decline to do so when it is possible for trial counsel to

rehabilitate his performance by suggesting a reasonable trial strategy for

withdrawing his motion to strike L.D. See Virgil v. Dretke, 446 F.3d 598, 610 (5th

Cir. 2006) (considering, yet rejecting defense counsel’s explanation, offered in

state habeas proceedings, for not challenging certain jurors).




5
 Batson v. Kentucky, 476 U.S. 79 (1986) (prohibiting challenge to potential jurors solely
on the account of their race).
                                          16



       We also decline the State’s invitation to reject this claim on direct appeal

based on the lack of Strickland prejudice. The State argues that in addition to

proving his trial attorney was constitutionally deficient in not moving to strike L.D.,

Arterburn must show the outcome of the trial would have been different if an

unbiased juror had deliberated in L.D.’s place—a task he cannot accomplish.

The State cites Ledezma v. State, 626 N.W.2d 134, 144-45 (Iowa 2001), for the

proposition that the reasonable probability of a different “result” under Strickland

means “the reasonable probability of a different verdict, or that the fact finder

would have possessed reasonable doubt.”

       Arterburn insists Strickland prejudice is “contextual.”      In Ledezma, the

context was counsel’s performance regarding the development and presentation

of evidence, and prejudice existed if that evidence ultimately had an impact on

the outcome of the trial. In the jury selection context, Arterburn believes he

satisfies the prejudice standard by showing that had counsel challenged L.D. for

cause, the district court would have been legally obligated to strike her and a

different, unbiased juror, would have served.          Arterburn says it would be

impossible for him to prove there was a reasonable probability that a jury without

L.D. would have acquitted him.

       Arterburn’s position has been accepted by several federal circuit courts.

For instance, the Fifth Circuit Court of Appeals reasoned: “Strickland’s prejudice

inquiry is process-based: Given counsel’s deficient performance, do we have

confidence in the process afforded the criminally accused?” Virgil, 446 F.3d at

612. In Virgil, the court was confronted with a situation where, due to counsel’s
                                           17



deficient performance, two people who admitted bias were allowed to sit on the

jury.   Id.   The court concluded, given the fundamental nature of seating an

impartial jury, the result of Virgil’s trial was unreliable. Id. The court stated:

        “The jury box is a holy place.” Our criminal justice system is
        predicated on the notion that those accused of criminal offenses
        are innocent until proven guilty and are entitled to a jury of persons
        willing and able to consider fairly the evidence presented in order to
        reach a determination of guilt or innocence.

Id. at 613 (quoting United States v. Nell, 526 F.2d 1223, 1229 (5th Cir. 1976)).

        The Fifth Circuit lacked confidence in the adversarial process that resulted

in Virgil’s conviction: “Expressed in Strickland terms, the deficient performance of

counsel denied Virgil an impartial jury, leaving him with one that could not

constitutionally convict, perforce establishing Strickland prejudice with its focus

upon reliability.” Id. at 613–14.

        The Eighth Circuit also held that a defendant whose attorney fails to

attempt to remove biased persons from a jury panel is prejudiced. Johnson v.

Armontrout, 961 F.2d 748, 755–56 (8th Cir. 1992), called into doubt by United

States v. Johnson, 688 F.3d 494 (8th Cir. 2012). In Johnson v. Armontrout, the

court rejected the government’s argument that the seating of biased jurors did

not affect the outcome of the trial, and therefore, there was no showing of

prejudice under Strickland: “This is an assumption we cannot make. Trying a

defendant before a biased jury is akin to providing him no trial at all.             It

constitutes a fundamental defect in the trial mechanism itself.” Id. at 755; see

also Hughes v. United States, 258 F.3d 453, 463 (6th Cir. 2001) (holding when a
                                           18



biased juror is impaneled, prejudice under Strickland is presumed, and a new

trial is required); accord Miller v. Webb, 385 F.3d 666, 672 (6th Cir. 2004).

       If trial counsel’s performance was deficient, Arterburn can show he was

prejudiced by the impaneling of a biased juror.6           That showing alone would

undermine our confidence in the conviction. We do not believe Arterburn must

further establish it was reasonably probable a jury featuring an impartial juror in

L.D.’s place would have acquitted him. The assessment of prejudice articulated

in Strickland proceeds on the assumption that the decision makers are impartial.

Strickland, 466 U.S. at 695. When a biased juror is impaneled, the fundamental

fairness of the proceedings is called into question, and a new trial is required.

Hughes, 258 F.3d at 463 (internal citations omitted). This prejudice analysis is

consistent with Ledezma, where our supreme court recognized that “unique

situations” may call for a different formulation of the “different result” standard

from Strickland. Ledezma, 626 N.W.2d at 145 (citing Wanatee v. Ault, 101 F.

Supp. 2d 1189, 1197 (N.D. Iowa 2000)).

       On direct appeal, we cannot rule for Arterburn on the performance of

counsel prong, nor can we rule against him on the prejudice prong. Therefore,

we preserve his ineffective-assistance claims concerning jury selection for a

potential postconviction-relief action.


6
   In the context of preserved challenges for cause, the court does not “presume
prejudice”; the defendant must show (1) an error in the court’s ruling on challenge for
cause and (2) either (a) the challenged juror served on the jury or (b) the remaining jury
was biased as a result of the defendant’s use of all the peremptory challenges. See
State v. Tillman, 514 N.W.2d 105, 107 (Iowa 1994) (citing Neuendorf, 509 N.W.2d at
747). But if the jury that ultimately sat was in some way biased against the defendant,
we would not indulge a further argument that its verdict could be harmless if an impartial
jury would have reached the same result.
                                        19



             3.     Alleged Prosecutorial Misconduct

      Arterburn next alleges two instances of prosecutorial misconduct

mishandled by trial counsel. The first allegation involves the prosecutor’s redirect

examination of Arterburn’s sister, Brianna, and the second allegation implicates

the State’s closing argument.

      To show he was denied due process by counsel’s failure to object to

conduct by the prosecutor, Arterburn must first show proof of misconduct. See

State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003). Arterburn does not need to

offer evidence of the prosecutor’s bad faith, as a trial can be unfair even when

the prosecutor has acted in good faith. See id. The second requirement is that

prejudice resulting from the misconduct denied Arterburn a fair trial. See id.

Courts examine (1) the severity and pervasiveness of the misconduct, (2) the

significance of the misconduct to the central issues in the case, (3) the strength

of the State’s evidence, (4) the use of cautionary instructions or other curative

measures, and (5) the extent to which the defense invited the misconduct. Id.

      We turn first to the claim concerning the examination of Arterburn’s sister.

While discussing a defense motion in limine before trial, the prosecutor agreed

not to broach the subject of Arterburn’s past acts of physical violence toward his

sister “unless the defense . . . starts putting in character evidence that he was a

gentle person . . . a non-violent person.” During cross-examination, defense

counsel asked Brianna if Arterburn was a “kind” and “gentle” person when he

was on his medication. She answered yes.
                                         20



       On redirect, the prosecutor asked Brianna: “Your brother has had some

issues in the past. Correct?” Brianna responded: “Yes.” The prosecutor then

asked: “And there were times in his past where he wasn’t always gentle and kind,

isn’t that correct?” Defense counsel objected, claiming a violation of the motion

in limine.      The court “sustained preliminarily” the objection and advised the

parties the matter could be taken up outside the presence of the jury. Later,

outside the presence of the jury, the court ruled the State was not allowed to ask

about Arterburn’s conduct predating his current medication regimen.

       On appeal, Arterburn argues counsel was ineffective by failing to “move

for a mistrial, request the question be stricken, or ask for a cautionary

instruction.”

       Arguably, defense counsel opened the door to the discussion of

Arterburn’s prior acts by asking about his conduct while on medication. See

State v. Mitchell, 670 N.W.2d 416, 420 (Iowa 2003). But even if the State’s

question to Briana violated the motion in limine, the breach was not severe or

pervasive. Defense counsel lodged a successful objection to the line of inquiry.

Arterburn’s sister never answered the question. The court instructed the jury that

counsel’s questions are not evidence. Counsel was not ineffective for declining

to draw more attention to the disputed question or by failing to seek a mistrial

based on an isolated inquiry. See State v. Krogman, 804 N.W.2d 518, 526 (Iowa

2011) (holding isolated incident of misconduct does not usually result in

prejudice).
                                          21



       Arterburn next argues the prosecutor acted improperly during closing

arguments by asking the jury to return a guilty verdict to protect the community.

He contends trial counsel should have lodged an objection.          In arguing that

Arterburn had not proven his defense of insanity, the prosecutor told the jury,

“There’s no question in this case the defendant has mental health issues. Okay?

But if every person in this country with mental health issues couldn’t be held

criminally responsible for their actions, imagine what that would be like.”

       On appeal, Arterburn argues the prosecutor’s remark suggested to the

jury that if he were found not guilty by reason of insanity “the community is in

danger and you must protect the community.”              Normally, a prosecutor’s

comments suggesting the need to protect the “community” from the actions of the

defendant are improper when used to inflame the jury. See State v. Johnson,

534 N.W.2d 118, 128 (Iowa Ct. App. 1995) (stating prosecutor urged jury to

convict to “protect community values”).

       But when viewed in context, the prosecutor’s comment was not sounding

an alarm about the potential danger of a not-guilty-by-reason-of-insanity verdict.

The prosecutor did not mention community protection.           The prosecutor was

simply drawing a distinction between people with mental illness who are

responsible for their criminal acts and the standard of proof required for an

insanity defense.   See generally Rucker v. State, 728 S.E.2d 205, 209 (Ga.

2012). The disputed comment was not prosecutorial misconduct, and therefore,

counsel had no duty to object. See State v. Atwood, 342 N.W.2d 474, 477 (Iowa
                                         22



1984) (explaining counsel was not ineffective for failing to make “questionable

objection”).

               4.    Counsel’s Cumulative Errors

       Arterburn argues counsel’s errors, considered together, resulted in

prejudice. When there are multiple claims of ineffective assistance of counsel,

the cumulative prejudice from those individual claims should be properly

assessed under the prejudice prong of Strickland. State v. Clay, 824 N.W.2d

488, 501 (Iowa 2012). In this case we preserve two of Arterburn’s claims of

ineffective assistance for a more fully developed record and reject two others. In

this situation, any prejudice analysis must wait for postconviction proceedings.

       B.      Photographic Evidence

       During the testimony of Linda Arterburn, the State introduced a

photograph of the victim, Hank Horovitz, in life, as well as photographs of her

former husband Dave Myers and her former boyfriend Jim Head.                Defense

counsel objected to the photograph of Myers, arguing there was “no frame of

reference about timing of when that picture was taken. No frame of reference to

why it would be relevant if it’s any other time than close to the time of the abuse.”

The court overruled the objection. On cross-examination, Linda admitted she did

not know when the photograph was taken.

       On appeal, Arterburn contends the photograph of Myers was “wholly

irrelevant under Iowa Rule of Evidence 5.402” because the State offered no proof

it was taken at or near the time Myers abused him. Because it could have been

taken at any time during Myers’s adult life, Arterburn argues it had “enormous”
                                         23



potential to mislead the jury.      He asserts: “Pictures are powerful, and this

misrepresentation    of   Myers’s   visage    was    profoundly   effective   for   the

prosecution—it went to the very heart of the insanity claim and, as hard, visual

evidence that Horovitz simply didn’t look like Myers, completely negated the

defense’s theory.”

       An exhibit is relevant if it has “any tendency to make the existence of any

fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence.” Iowa R. Evid. 5.401. “All

relevant evidence is admissible” unless otherwise excluded. Iowa R. Evid. 5.402.

       The State argues Arterburn’s defense made the similarities in the

appearances of Myers and Horovitz a fact of consequence at trial. On appeal,

the State urges: “The photograph of Mr. Myers has at least some tendency to

assist the jury in evaluating the physical similarities between the two men.”

       We agree with Arterburn’s critique of the exhibit. To be admissible into

evidence, a photograph must be “relevant to the controversy, which normally

requires that the picture be identified in time and place.” State v. Holderness,

293 N.W.2d 226, 230 (Iowa 1980). The district court admitted the photograph of

Myers without requiring proper foundation.          The State did not establish the

photograph accurately portrayed Myers at the time he was abusing Arterburn.

The district court abused its discretion when it allowed the photograph into

evidence.

       But that does not end our inquiry. Admission of the photograph is subject

to harmless error analysis.     The question is does it sufficiently appear that
                                           24



Arterburn’s rights have been injuriously affected by the error or that he has

suffered a miscarriage of justice? See State v. Paredes, 775 N.W.2d 554, 571

(Iowa 2009). The State carries the burden of proving the error does not require

reversal.

       The trial record as a whole shows admission of Myers’s photograph was

harmless. The defense does not point to any efforts by the prosecution during

trial to contrast the photographs of the victim and Arterburn’s abuser. Moreover,

the primary issue at trial was not whether Dave actually looked like Hank. It was

instead, whether Arterburn was experiencing a mental disorder at the time of the

killing that absolved him of criminal responsibility. While the photographs may

have shed some light on the physical characteristics of the two men, they did not

go to the main issues of insanity or diminished responsibility. We decline to

reverse on this ground.

       C.     Sufficiency of the Evidence

       Arterburn contends the court should have determined as a matter of law

he was not guilty by reason of insanity, or at worst, convicted him of murder in

the second degree because his diminished responsibility prevented him from

forming the specific intent to kill Horovitz.

              1.      Preservation of Error on Insanity Defense

       Before reaching the merits of Arterburn’s contentions, we address the

State’s argument that Arterburn failed to preserve error on his challenge to the

rejection of his insanity defense.
                                            25



       Defense counsel moved for judgment of acquittal following the State’s

case-in-chief:

              [A]t this time we move for judgment of acquittal on the
       grounds that the State has not generated a jury question regarding
       whether or not the defendant acted with malice aforethought, or
       further, whether the defendant act[ed] willfully, deliberately,
       premeditatedly, and with a specific intent to kill Robert Horovitz.

The State resisted, and the court overruled the motion.                Defense counsel

renewed the motion at the close of all evidence, and the court again overruled it.

       On appeal, the State argues at no point during the trial did Arterburn claim

he had established his insanity as a matter of law. While that is true, defense

counsel did argue the State failed to generate a jury question on the element of

malice aforethought. Evidence of insanity may negate the element of malice

aforethought under Iowa law. Anfinson v. State, 758 N.W.2d 496, 503 (Iowa

2008). Accordingly, we find Arterburn preserved error on his claim he should not

have been convicted because he was insane at the time of the killing.7

                 2.     Proof of First-Degree Murder

       To support a conviction for murder in the first degree, the State had the

burden to prove, beyond a reasonable doubt, the following elements:

                 1.   Arterburn stabbed and or cut Horovitz with an axe or
       knife.
                 2. Horovitz died as a result of that stabbing or cutting.


7
  We recognize that because insanity is an affirmative defense under Iowa Code section
701.4 and Iowa Rule of Criminal Procedure 2.11(11), which a defendant must prove by a
preponderance of the evidence, a motion for judgment of acquittal asking the court to
find the defense has met its burden may be more realistically advanced after the close of
all evidence than following the State’s case-in-chief. See generally Iowa R. Crim. P.
2.19(8)(a) (“If a defendant’s motion for judgment of acquittal at the close of the evidence
offered by the prosecuting attorney is not granted, the defendant may offer evidence
without having waived the right to rely on such motion.”).
                                         26



              3. Arterburn acted with malice aforethought.
              4. Arterburn acted willfully, deliberately, premeditatedly and
       with specific intent to kill.

       Arterburn does not dispute the first two elements. He instead argues his

insanity neutralized any proof of malice aforethought or, alternatively, he was

unable to form the specific intent to kill because of his diminished responsibility.

       The insanity defense provides:

       A person shall not be convicted of a crime if at the time the crime is
       committed the person suffers from such a diseased or deranged
       condition of the mind as to render the person incapable of knowing
       the nature and quality of the act the person is committing or
       incapable of distinguishing between right and wrong in relation to
       that act. Insanity need not exist for any specific length of time
       before or after the commission of the alleged criminal act.

Iowa Code § 701.4.       The law presumes Arterburn is sane until he proves

otherwise by a preponderance of the evidence. See id.

       Unlike the insanity defense, proving diminished responsibility does not fall

to Arterburn.   State v. Stewart, 445 N.W.2d 418, 422 (Iowa Ct. App. 1989).

Instead, the jury considers evidence of diminished responsibility to decide if the

State met its burden of proving specific intent. Id.

       We first consider whether Arterburn acted with malice aforethought.

Malice aforethought is “a fixed purpose or design to do some physical harm to

another that exists before the act is committed.” Newell, 710 N.W.2d at 21. Iowa

law allows the jury to presume a person who uses a deadly weapon acted with

malice aforethought. State v. Reeves, 670 N.W.2d 199, 207 (Iowa 2003). That

presumption may be rebutted by evidence of mental incapacity. Id. Moreover,

proof of motive is not a necessary element of murder, but the absence of motive
                                        27



may be considered on the question the accused acted with malice aforethought.

Id. Finally, the malice aforethought necessary to convert a homicide into murder

need not be directed at the person actually killed. State v. Alford, 151 N.W.2d

573, 574 (Iowa 1967), overruled on other grounds by State v. Bester, 167

N.W.2d 705 (Iowa 1969).

       On appeal, Arterburn denies any motive to kill Horovitz. The record does

not support his denial.    In his conversation with Agent DeCamp, Arterburn

revealed the killing was motivated by his resentment toward his mother.

Arterburn wanted her to suffer for all the grief she had caused him. He told the

agent he was upset by the news of his mother’s engagement to Horovitz. Even

in his trial testimony, Arterburn said he grabbed the axe from his bedroom wall

because “I needed to protect myself because mom wasn’t protecting me like she

said she was.” Undisputed evidence showed Arterburn first swung the axe at

Horovitz from behind and then struck him several more times, before slitting his

throat with a second deadly weapon. The State offered sufficient evidence to

generate a jury question regarding Arterburn’s fixed purpose to do physical harm

to the victim.

       Arterburn claims his proof of insanity was sufficient to overcome the

State’s evidence of malice aforethought. The jurors heard from several experts.

Dr. Eva Christianson testified Arterburn was in a dissociative state when he killed

Horovitz. Dr. Craig Rypma also believed Arterburn’s mental condition left him

unable to appreciate his actions or understand that the killing was wrong. Dr.

James Dennert disagreed; he testified Arterburn did not suffer from a psychiatric
                                           28



illness that prevented him from knowing and understanding the nature and

consequences of his actions or that prevented him from knowing the difference

between right and wrong. Critical to Dr. Dennert’s view was Arterburn’s interview

with Agent DeCamp soon after the attack when Arterburn explained what actions

he had taken and why. This battle of the experts supported the district court’s

decision to submit the question of Arterburn’s sanity to the jury. No trier of fact—

be it a judge or a jury—is obligated to accept expert opinion evidence as

conclusive. See State v. Venzke, 576 N.W.2d 382, 384 (Iowa Ct. App. 1997).

         We next turn to the question whether Arterburn’s actions were willful,

deliberate, premeditated, and with the specific intent to kill. Arterburn had an

opportunity to deliberate when he went to his bedroom to retrieve the battle axe.

His specific intent to kill can also be inferred from the number and nature of the

wounds inflicted on Horovitz. See State v. Poyner, 306 N.W.2d 716, 718 (Iowa

1981).

         His claim of diminished responsibility, relating to his “intense flashback” of

being abused by Myers, did not as a matter of law render him unable to form the

specific intent to kill. Even if Arterburn sincerely mistook Horovitz for Myers, Iowa

law recognizes a transfer of the intent to kill from the intended victim to the actual

victim. See State v. Huston, 174 N.W. 641, 642 (Iowa 1919) (“The malice and

intent which started the bullet is deemed in law to have followed it wherever it

went.”).      The district court did not err in overruling Arterburn’s motion for

judgment of acquittal. We will not disturb the jury’s verdict.

         D.     Cumulative Error
                                       29



      Finally, Arterburn argues the errors alleged in this appeal collectively

deprived him of a fair trial. On appeal, we may grant relief if a combination of

errors, resulting in unfair prejudice, warrant a new trial. See Hardy, 492 N.W.2d

at 236. Where the defendant’s individual claims do not merit relief, we reject a

claim of cumulative error. State v. Artzer, 609 N.W.2d 526, 532 (Iowa 2000).

Here, the only error we found was the admission of the undated photograph of

Arterburn’s stepfather, and that error was harmless in the overall scheme of the

case. Arterburn cannot show cumulative prejudice warrants a new trial.

      AFFIRMED.
