IN THE SUPREME COURT OF IOWA

No. 19–0214

Submitted October 14, 2020—Filed November 13, 2020

STATE OF IOWA,

Appellee,

vs.

GREGORY MICHAEL DAVIS,

Appellant.

On review from the Iowa Court of Appeals. 

Appeal from the Iowa District Court for Linn County, Sean 

McPartland, Judge. 

Defendant convicted of first-degree murder seeks further review of 

court of appeals decision affirming his conviction. DECISION OF COURT 

OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED

AND CASE REMANDED FOR NEW TRIAL. 

Waterman, J., delivered the opinion of the court, in which 

Christensen, C.J., and Appel and McDermott, JJ., joined. McDonald, J., 

filed a dissenting opinion, in which Mansfield and Oxley, JJ., joined. 

Alfredo Parrish (argued) and Andrew Dunn of Parrish Kruidenier 

Dunn Boles Gribble Gentry Brown & Bergmann L.L.P., Des Moines, for 

appellant. 
2

Thomas J. Miller, Attorney General, Louis S. Sloven (argued), 

Assistant Attorney General, Jerry A. Vander Sanden, County Attorney, 

and Elena S. Wolford, Assistant County Attorney, for appellee. 
3

WATERMAN, Justice.

The defendant, who had a history of substance abuse and mental 

illness, killed his girlfriend by stabbing her twenty-six times. A jury 

convicted him of first-degree murder. In this appeal, we must decide 

whether a new trial is required because the marshaling instruction for that 

charge failed to cross-reference the defendant’s insanity defense. The 

defendant’s trial counsel failed to object to that omission, even though the 

marshaling instructions for nine lesser included offenses cross-referenced 

the insanity defense. New counsel appealed, arguing the defendant’s trial 

counsel provided ineffective representation. We transferred the case to the 

court of appeals, which affirmed his conviction, stating, “While we 

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

insanity defense in the marshaling instructions, [the defendant] has not 

shown the result would be different but for the omission.” A dissenting 

judge concluded the inconsistent cross-referencing likely confused the 

jury and should require a new trial. We granted the defendant’s 

application for further review. 

On our review, we determine that this instructional error requires a 

new trial. Trial counsel breached an essential duty by failing to object. 

The jury instructions were materially misleading without the crossreference to the insanity defense in the marshaling instruction for firstdegree murder, when that cross-reference was included in all nine of the 

marshaling instructions for lesser included offenses. The instructional 

error allowed the jury to conclude the insanity defense didn’t apply to firstdegree murder. This error undermines our confidence in the verdict.

Accordingly, we vacate the decision of the court of appeals, reverse the 

district court judgment, and remand the case for a new trial.
4

I. Background Facts and Proceedings. 

The following facts were developed at trial. Gregory Davis had a long 

history of mental illness and drug abuse dating back to his childhood. 

Ultimately, he was diagnosed with amphetamine-use disorder with

psychosis, major depressive disorder, anxiety disorder, and cannabis-use 

disorder. Two experts testified in his murder trial that at the time he killed 

his longtime live-in girlfriend, Carrie Davis, he was experiencing psychosis 

and lacked the capacity to form criminal intent. Specifically, according to 

one psychiatrist, Greg believed “that by killing her he would be freeing her 

of her evil forces and lead to her resurrection and perhaps to life in a better 

location.” 

The trial experts relied on his medical and social history. Born with 

a cleft palate, Greg underwent five extensive facial surgeries between birth 

and adolescence. He was “paranoid” that “everyone was looking at his 

face.” In his teen years, his family noticed that he experienced “dark 

periods that would last for different amounts of time.” Greg was bullied in 

school, struggled academically, and developed a mental illness. Greg’s 

substance abuse began in his early teens with alcohol, and escalated to 

include marijuana, cocaine, methamphetamine, and ecstasy. He became 

addicted while self-medicating with illegal substances.

Greg graduated from Linn-Mar High School and enrolled at 

Kirkwood Community College. He was unable to control his addictions 

and repeatedly entered drug treatment programs. He dropped out of 

Kirkwood after two semesters. 

In 2013, Greg moved to Ohio to work for his brother Jeff’s 

landscaping and home remodeling business. Greg’s addictions continued. 

Jeff noticed that Greg’s house was “very dark”; that Greg “did not have 

great personal skills”; and that Greg had “a lot of paranoia of people 
5

breaking in, stealing things, [and] the government watching.” While in 

Ohio, Greg began dating Carrie. Jeff moved away and left Greg to run the

business, which soon failed. In the early summer of 2017, Greg returned 

home to Marion, Iowa. Carrie left her family, including her children, and 

moved in with Greg in Iowa. Both Greg and Carrie used meth.

September 28, the date of the murder, was the last day that Greg’s 

mother, Kathy, saw Carrie alive. On September 29, Greg called Kathy and 

said “Carrie is gone,” and he thought Carrie “would wake up when the 

devil was out of her.” On October 1, Greg drove a trailer to the house 

where his parents lived. Kathy saw rolls of carpet and asked Greg whether 

Carrie was in the trailer. Greg said that she was. The next day, Kathy 

contacted the Marion police to request a welfare check on Carrie and told 

them to look for Carrie at a vacant rental property Kathy owned on Hillview 

Drive. That same day, Sergeant Terry Kearney conducted a welfare check 

at the Hillview property, where he saw a trailer in a carport. After moving 

aside a blanket in the trailer, he saw a foot sticking out. He called for more 

officers, who secured the scene with him, and eventually Carrie’s body was 

removed. Doctor Jonathan Thompson performed an autopsy and 

determined that the cause of death was multiple sharp force injuries and 

that her manner of death was homicide. A toxicology report indicated that 

Carrie had used meth shortly before her death, and Greg admitted to the 

police on October 2 that he had used meth around two days earlier, which 

would have been around the same time. 

Tara Scott, a criminalist with the Iowa Division of Criminal 

Investigation, found a bloodstain in the living room carpet of the house 

where Greg and Carrie had lived together. A mattress covered the 

bloodstain, and it appeared as if the blood from the carpet had transferred 

to the mattress. Carrie’s blood was on a sample of carpeting from the 
6

living room and several items of clothing in the house. The carpeting in 

the basement of the residence had “similar characteristics and color” to 

the rolls of carpet in the trailer. She also found cleaners in the house and 

a mop bucket in the garage. There were several notes found in the garage, 

one of which read:

Greg Davis is and the spirit of Christ with the powers of the 

devil and always holds the power of God or the know how and 

ability and the ability to know how to do anything and 

everything by praying to himself to do what he or she or 

everyone or even Greg Davis wants. God can love or hate but 

not murder. Greg Davis can do anything so is similar to God 

but can choose to murder if he sees it necessary. God mostly 

love. 

Investigator James Hancox located Greg’s truck, a white Ford F-250, 

outside the Brookside house. The Immediate Response Unit arrived and 

arrested Greg. Greg had no drug paraphernalia or narcotics on his person. 

Nothing in Greg’s appearance or demeanor indicated he was impaired by 

alcohol or drugs. Investigators found no illegal drugs or paraphernalia in

the house where investigators found Carrie’s body or the house where Greg 

and Carrie lived. Greg seemed “normal” to the officers, was able to 

communicate with them, and was coherent and responsive to their

questions. After officers placed Greg in custody, Officer Bradley Feickert 

searched the garage at the house where Greg’s parents lived and found an 

extension cord set up like a “makeshift noose or a noose that was 

attempting to be constructed.” 

Investigator Hancox searched the Ford and found several knives, 

bloodstained clothing in a garbage bag in a utility box, and a torn-up note, 

which he believed—due to singed edges—someone had tried to burn. The 

note, which had “VOID” written over it, and some words crossed out, read:

I stabbed Carrie in a vicious attack four days ago when I was 

on drugs and possessed(?) by what I believe was the devil. I 
7

am truly sorry and apologize to her friends and family. She is 

in the trailer. She was the love of my life. Greg Davis. 

Kathy believed Greg was showing signs of paranoid schizophrenia. She 

reported his claims that,

They were out to get him. They were bugging his house. They 

were bugging his car. He couldn’t have any piece of 

electronics in a working condition because there was either a 

camera or a microphone in it. They were out to get him, to set 

him up. 

At the time of his interview on October 2, however, Greg was “lucid” and 

“coherent” and did not seem to be under the influence of illegal drugs. 

During the interview, Greg said: 

Q. So I’ll turn it over to you for a second. A. I don’t 

know. I recall the possession from the devil once. 

Q. When was that? A. I don’t know. 

Q. You were possessed by the devil once? A. You 

know, that’s what I think, you know, that’s the best way I can 

put it. 

Later, Greg said, “There is nothing good about it. She was possessed, as 

well. I almost felt like she took me over. I don’t know how to explain it. I 

don’t want to sound crazy.” A few minutes later, he said, 

I was scared. I didn’t know what to do. I seriously thought 

there was a connection with her being possessed with the 

devil, and I didn’t know if I needed to go to church. I don’t 

know. I didn’t want to take any initiative but it just 

(inaudible).

In the interview, Greg nodded his head when the officer asked him if he 

knew what he did was wrong. He also said that while he knew it was 

wrong, “I just don’t feel like I was totally in control of it, honestly.” In the 

interview, he admitted to attempting to hang himself in the garage. Greg 

later attempted suicide and was placed on suicide watch at the Linn 

County jail. 
8

The State charged Davis with first-degree murder in violation of Iowa 

Code sections 707.1, 707.2(1)(a), and 902.7 (2017) for the death of Carrie 

Davis. He filed notice that he intended to rely at trial on defenses of

insanity or diminished responsibility. The case proceeded to a five-day 

jury trial. Prospective jurors were questioned about their views on insanity 

and diminished capacity through a questionnaire and during voir dire. At 

trial, two experts, Dr. Arnold Andersen, a psychiatrist, and Dr. Arthur H. 

Konar, a psychologist, testified as to Greg’s mental state. Dr. Andersen 

said he found Davis “forthcoming and accurate,” and Dr. Konar agreed 

that Davis was telling the truth. 

For their evaluations of Davis, Dr. Konar and Dr. Andersen relied 

on, among other things, interviews with him, his medical records, and 

Kathy Davis’s notes about him. Dr. Konar administered the MMPI-2. He 

testified it could result in an invalid result for reasons such as

inconsistency, someone trying to pretend as if they are better or worse 

than they actually are, or someone being “at such a level of agitation that 

they simply can’t focus in on the test adequately enough to provide a valid 

administration.” Dr. Konar stated that Greg’s test was invalid “because he 

was so agitated when he was taking the test.” 

Dr. Andersen testified, “He had the specific intent of killing her. He 

did not have a specific criminal intent. His understanding was that what 

he was doing was morally right and necessary.” Similarly, Dr. Konar 

testified that Greg “did not have the ability to form intent” and “did not 

understand how his behaviors would ultimately affect the individual that 

he hurt.” 

Dr. Anderson testified that what Greg had claimed he had 

experienced appeared to be psychosis, which usually means 

“hallucinations and delusions, hearing voices that aren’t there and having 
9

abnormal beliefs.” He also said Greg increased his use of 

methamphetamine in the year of the alleged crime and stated that 

methamphetamine use, when it is high dose and long term, could tend to 

cause an abnormal mental state. He testified that “on the day of this act 

he was using a heavy dose and continued through about October 1st, if I 

have my dates correct, at which time he stopped and some clarity of mind 

returned.” He said that a “complete remission” occurs generally nine to 

twelve months after a person stops using, as long as they don’t have any 

other illnesses. Dr. Konar found that Greg’s “addiction dependency on 

methamphetamine comes from a long-term depression, and his ability to 

simply stop using was no longer in his control.” Ultimately, as Dr. Konar 

testified, while he and Dr. Andersen agreed that there was a substanceinduced psychosis and that Greg did not have the requisite criminal intent, 

they disagreed as to “whether Gregory Davis could voluntarily have 

stopped using methamphetamine.” 

Dr. Gary Keller, a psychiatrist, also evaluated Davis. He agreed that 

Davis was “genuine.” Dr. Keller diagnosed Davis with major depressive 

disorder, cannabis-use disorder, amphetamine-use disorder with 

psychosis, and a generalized anxiety disorder. He testified that Davis told 

him Davis had visions of Jesus and Jesus sitting next to him, “but he 

acknowledged that was in his mind.” 

The State and the defense proposed different instructions for Jury 

Instruction No. 22, the first-degree murder marshaling instruction. There 

were two key differences: The defense’s proposed instruction had a crossreference to the insanity defense and an element that required the jury to 

find Davis intentionally killed Carrie. The State’s proposed instruction 

included neither of these. The court accepted the State’s proposed 

instruction as the final instruction and Davis’s counsel did not object to 
10

the instruction for failing to cross-reference the insanity defense. Jury 

Instruction No. 7 told the jury to “consider all the instructions together.” 

Jury Instruction Nos. 14 through 16 discussed the insanity defense. 

Instruction No. 14 stated: 

The Defendant claims he is not guilty by reason of 

insanity. You must first determine if the State has proved all 

the elements of the crime charged beyond a reasonable doubt. 

If you find the State has proved all the elements, then you

must consider the issue of the Defendant’s sanity. 

None of the instructions for insanity specifically mentioned first-degree 

murder. By contrast, Jury Instruction No. 17, on diminished 

responsibility, specifically mentioned first-degree murder: “If you have a 

reasonable doubt the Defendant was capable of acting deliberately, with 

premeditation, and the specific intent to kill, then the Defendant cannot 

be guilty of First Degree Murder. You should then consider the lesser 

included charges.” Each of the marshaling instructions for the nine lesser 

included offenses expressly cross-referenced the insanity defense, as 

follows, with little variation: “If the State has proved all the elements, the 

Defendant is guilty of [the lesser included offense]. You must then 

consider the defense of insanity as described in Instructions No. 14–18.” 

As noted, those statements were missing from the marshaling instruction 

for the major offense of first-degree murder. 

The prosecutor’s closing argument emphasized the first-degree 

murder instruction: “What this whole case boils down to really is 

Instruction No. 22.” The prosecutor outlined the facts of the case, arguing

that Greg’s conduct demonstrated he was acting rationally, intentionally, 

deliberately, and consciously. The State focused on the note that Greg 

wrote: “There’s nothing in this note that he thought he was doing 
11

something good for her or that he was trying to help her or didn’t 

understand what he was doing. He used the phrase ‘vicious attack.’ ” 

Davis’s counsel began his summation by pointing out the missing 

element in Instruction No. 22: the “why.” Counsel reminded the jury that 

both experts found Davis lacked “the capacity to form the specific intent 

to commit a crime” and told the jury that “[i]t’s the State’s burden to prove 

that different.” He ended by stating, “If you believe those doctors, then it 

is not murder in the first degree. It’s murder in the second degree or not 

guilty by reason of insanity.” 

The verdict forms began with “not guilty,” and, starting with firstdegree murder, included “guilty” verdicts for each charged offense. The 

thirteenth and final verdict form was “not guilty by reason of insanity.”

Jury Instruction No. 50 told the jury that “[w]hen you have agreed upon a 

verdict and the foreperson has signed the verdict form, please notify the 

Court Attendant.” There was no instruction that told the jury to read all 

of the verdict forms. The jury found Davis guilty of first-degree murder. 

Davis retained substitute counsel who moved for a new trial on 

several grounds, including instructional error. The substitute counsel 

argued that the court was required to include a reference to Davis’s 

insanity defense in the marshaling instruction for first-degree murder, as 

it had with all of the lesser included offenses. The district court denied 

Davis’s motion and sentenced him to life in prison. 

Davis appealed on multiple grounds, including: (1) the omitted 

cross-reference to the insanity defense in the first-degree murder 

marshaling instruction, (2) the inclusion of the intoxication-defense 

instruction, (3) cross-references to the diminished-responsibility defense 

in the marshaling instructions for general intent offenses, (4) trial counsel 

eliciting testimony that he had specific intent to kill Carrie, and (5) the 
12

cumulative effect of these errors violating his right to a fair trial and due 

process. We transferred the case to the court of appeals, which affirmed 

Davis’s conviction for first-degree murder. As to the first ground, the court 

of appeals held that Davis failed to establish he suffered prejudice, and as 

such, it did not need to consider whether his counsel breached an 

essential duty. A dissenting judge concluded that Davis’s trial counsel’s 

performance was deficient and Davis suffered prejudice. Davis applied for 

further review, and we granted his application. 

II. Standard of Review. 

“On further review, we have the discretion to review all or some of 

the issues raised on appeal or in the application for further review.” State 

v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). In exercising our discretion 

here, we choose to review only the ineffective-assistance-of-counsel claim 

regarding the marshaling instruction for first-degree murder. We let the 

court of appeals decision stand as the final decision regarding the 

remaining issues. “Our review of claims of ineffective assistance of counsel 

is de novo.” State v. Ortiz, 905 N.W.2d 174, 179 (Iowa 2017). 

III. Preservation of Error. 

Davis’s trial counsel failed to object to the court’s Instruction No. 22, 

which would have provided the court with the opportunity to correct the 

instruction and avoid another trial. “We have repeatedly held that timely 

objection to jury instructions in criminal prosecutions is necessary in 

order to preserve any error thereon for appellate review.” State v. Taggart, 

430 N.W.2d 423, 425 (Iowa 1988).

[O]ur adversary system imposes the burden upon counsel to 

make a proper record to preserve error, if any, in this factual 

circumstance by specifically objecting to instructions in their 

final form, requesting instructions and voicing specific 

exception in event they are refused. 
13

State v. Sallis, 262 N.W.2d 240, 248 (Iowa 1978). Davis failed to preserve 

error because his trial counsel did not object to the final draft of 

Instruction No. 22.

IV. Analysis. 

“The constitutions of the United States and Iowa guarantee a 

criminal defendant the right to effective assistance of counsel.” State v. 

Kuhse, 937 N.W.2d 622, 628 (Iowa 2020). A defendant proves ineffective 

assistance of counsel when he establishes: “(1) his trial counsel failed to 

perform an essential duty, and (2) this failure resulted in prejudice.” State 

v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). 

When error regarding jury instructions is preserved, we presume 

prejudice. See State v. Lorenzo Baltazar, 935 N.W.2d 862, 871 (Iowa 

2019). By contrast, “an ineffective-assistance-of-counsel claim based on 

failure to preserve jury instruction error must demonstrate deficiency and 

prejudice.” Id. at 871–72. Because Davis’s counsel failed to preserve error

on his challenge to the marshaling instruction, he must establish both 

deficiency (failure to perform an essential duty, that is, breach) and 

prejudice.

We begin with whether Davis’s attorney failed to perform an 

essential duty. Davis bears the burden of proving that his counsel 

“performed below the standard demanded of a reasonably competent 

attorney.” Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001) (en banc). 

We presume Davis’s counsel “performed competently,” and “we scrutinize 

each claim in light of the totality of the circumstances.” Id.

In State v. Ondayog, we noted “the failure to recognize an erroneous 

instruction and preserve error breaches an essential duty.” 722 N.W.2d 

778, 785 (Iowa 2006). “The question becomes whether there was a tactical 

reason for not objecting to the instruction.” Id. Whether such a reason 
14

existed is determined based on “the perspective of when the decision was 

made—during the course of trial.” Id. We concluded that Ondayog’s 

counsel’s failure to object could be trial strategy because it meant that the 

jury was instructed on a lesser crime, which “would give the jury the 

opportunity to forego the three higher offenses.” Id. at 786. 

By contrast, in State v. Harris, we held that counsel breached a duty 

because there was “no possible strategic reason for failing to object” to an 

erroneous marshaling instruction that omitted the “going” element from 

the crime of going armed with intent. 891 N.W.2d 182, 186–87 (Iowa 

2017). Similarly, we see “no possible strategic reason” for Davis’s trial

counsel to fail to object to the omitted cross-reference. The uniform jury 

instruction for the insanity defense has a comment that states, “If the 

insanity defense is submitted, then the marshaling instruction should be 

modified accordingly.” Iowa State Bar Ass’n, Iowa Criminal Jury 

Instruction 200.9 cmt. (2019). “As we have noted in the past, ‘trial courts 

should generally adhere to the uniform instructions.’ ” State v. Becker, 

818 N.W.2d 135, 143 (Iowa 2012) (quoting State v. Mitchell, 568 N.W.2d 

493, 501 (Iowa 1997)), overruled on other grounds by Alcala v. Marriott Int’l, 

Inc., 880 N.W.2d 699, 708 n.3 (Iowa 2016). Indeed, Davis’s trial counsel

proposed a marshaling instruction for first-degree murder with this crossreference, and this cross-reference was included in all nine marshaling

instructions for the lesser included offenses. Nevertheless, trial counsel 

failed to object when the final marshaling instruction for first-degree 

murder omitted this cross-reference. In our view, this failure to object 

breached an essential duty. We see no tactical reason for not including 

the cross-reference; in fact, failing to object contradicted the attorney’s 

previous request to include it. 
15

We turn to the second prong of the analysis, whether Davis suffered 

prejudice due to his attorney’s breach. The defendant must prove that 

“there is a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different. A 

reasonable probability is a probability sufficient to undermine confidence 

in the outcome.” Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 

2052, 2068 (1984). 

“We presume juries follow the court’s instructions.” State v. Hanes, 

790 N.W.2d 545, 552 (Iowa 2010). “Jury instructions are not considered 

separately; they should be considered as a whole.” State v. Fintel, 689

N.W.2d 95, 104 (Iowa 2004). 

Litigants are entitled to have their legal theories 

submitted if those theories are supported by the pleadings 

and substantial evidence in the record. Moreover, the court’s 

instructions must convey the applicable law in such a way 

that the jury has a clear understanding of the issues it must 

decide. 

Thompson v. City of Des Moines, 564 N.W.2d 839, 846 (Iowa 1997) (citation 

omitted); see also State v. Benson, 919 N.W.2d 237, 245–46 (Iowa 2018) 

(determining there was prejudice because of “confusing and misleading” 

jury instructions). 

In Harris, we held that trial counsel was ineffective for failing to 

object to an erroneous marshaling instruction. 891 N.W.2d at 189. Harris 

had been arguing with another patron inside a bar and both were told to 

leave. Id. at 184. Harris left first and waited outside, where he attacked 

the other man with a knife. Id. He was convicted of going armed with 

intent. Id. On appeal, he argued the evidence of movement was 

insufficient and that his trial counsel was ineffective in failing to object to 

omission of the “going” (movement) element in the marshaling instruction. 

Id. at 184–85. In determining Strickland prejudice, “we consider[ed] 
16

whether our confidence in the outcome of Harris’s trial [was] undermined 

by omission of the element of movement in [the marshaling instruction].” 

Id. at 189. While “substantial evidence supported a finding of movement 

sufficient to uphold Harris’s conviction,” we stated “that conclusion does 

not control our determination of whether prejudice flowed from the flawed 

marshalling instruction.” Id. We held that Harris suffered Strickland 

prejudice and that a new trial was required “because the evidence of 

Harris’s movement was not great and the flawed marshalling instruction 

did not require the jury to make a finding on that element of the crime.” 

Id. We reach the same conclusion here. Our confidence in the verdict is 

undermined when the key marshaling instruction fails to address the 

central issue in the trial: Davis’s sanity. 

In State v. Kuhse, the defendant was convicted of domestic abuse 

assault causing bodily injury. 937 N.W.2d at 624. He appealed, arguing 

his trial counsel was ineffective for failing to object to the marshaling

instruction that omitted language that “the State needed to prove the act 

was done without justification.” Id. The court of appeals reversed his 

conviction, “reasoning that failure to include ‘lack of justification’ in the 

marshaling instruction was prejudicial for ineffective-assistance purposes, 

regardless of the strength of the State’s case and the fact that the subject 

had been covered elsewhere in the instructions.” Id. On further review, 

we vacated the court of appeals decision and affirmed his conviction 

because, 

[i]n our view, considering the evidence and the instructions as 

a whole, we do not believe there was a reasonable probability 

of a different outcome if justification had been covered in the 

marshaling instruction in addition to the other instructions. 

Id. The justification defense instructions immediately followed the 

marshaling instructions covering the major and lesser included offenses. 
17

Id. at 630. Moreover, the first instruction on the justification defense said,

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

Id. And factually, we observed the defense seemed “implausible.” Id.

The evidence showed the self-defense theory was indeed 

implausible. The victim was Kuhse’s wife of nine years. Id. at 624. Kuhse 

was in the basement drinking with friends when the victim went

downstairs to do laundry and they began arguing after he called her 

names. Id. Kuhse “strangled [her] to the point that she could not breathe” 

while she swiped at him to loosen his grip. Id. at 624–25. He “finally let 

her go but caught her as she fell and slammed her against the wall,” and 

then slammed her “toward the entertainment center,” and finally slammed 

her “against the coffee table.” Id. at 625. She called the police, who 

observed her injuries—“bruises, abrasions, and scratches on her knees, 

neck, and arm.” Id. When police told her to go to the hospital by 

ambulance, she balked at the cost and had a friend take her. Id. Kuhse

told police he acted in self-defense. Id. He had a scratch on his nose and 

a bruise on his arm, and told the police he got the injuries from her 

“bumping into him” and “throwing herself onto his arm.” Id. She was five 

feet, two inches tall and 105 pounds; he was five feet, nine inches tall and 

190 pounds. Id. Photographs showed her “injuries were much more 

significant” than his and matched her testimony. Id. at 630. 

Davis argues our analysis in Kuhse supports reversal of his 

conviction. Kuhse provides the governing test for determining Strickland

prejudice in this context: 

In sum, . . . ineffective assistance of counsel does not 

necessarily occur when defense counsel fails to object that a 

marshaling instruction does not refer to a required element of 

a defense—or cross-reference a defense that the State is 

required to disprove. Instead, one must examine the record 
18

and consider the evidence presented, how the case was tried, 

and what the jury instructions as a whole said. 

Id. Our analysis of prejudice considered how the parties used the jury 

instructions in their closing arguments. Id. Applying Kuhse, we conclude 

Davis has established Strickland prejudice. The difference in outcomes is 

explained by key differences in the instructions and evidentiary record. 

First, we review the jury instructions as a whole. Id. Each of the 

marshaling instructions for the nine lesser included offenses crossreferenced Davis’s insanity defense. Not so in Kuhse. As the dissenting 

judge on the court of appeals in this case concluded, upon seeing the 

insanity defense specifically mentioned in the nine lesser included 

instructions but not in Instruction No. 22, jurors would understand that

the defense did not apply to first-degree murder.1 And as Davis’s appellate 

counsel argued, “the jury would logically believe there was something 

unique about the ‘defense of insanity’ when it came to first-degree murder, 

 

1The dissenting judge mentioned a canon of statutory construction,

expressio unius est exclusio alterius, which shows how jurors might interpret this set of 

instructions, stating,

Presumably we apply this maxim because it makes logical sense. Although 

the jurors were obviously not instructed on this maxim, the idea behind it 

would make a reasonable juror conclude the omission of the reference to 

the defenses meant they did not apply. 

Indeed, we have observed “the legislature’s selective inclusion of [a] phrase . . . to be 

dispositive.” Oyens Feed & Supply, Inc. v. Primebank, 808 N.W.2d 186, 194 (Iowa 2011);

see also Chesnut v. Montgomery, 307 F.3d 698, 701 (8th Cir. 2002) (“[W]here Congress 

includes particular language in one section of a statute but omits it in another section of 

the same Act, it is generally presumed that Congress acts intentionally and purposely in 

the disparate inclusion or exclusion.” (alteration in original) (quoting Russello v. 

United States, 464 U.S. 16, 23, 104 S. Ct. 296, 300 (1983))); Freedom Fin. Bank v. Estate 

of Boesen, 805 N.W.2d 802, 812 (Iowa 2011) (same). The same principle applies here. 

When the marshaling instructions for the other nine offenses cross-referenced the 

insanity defense but not the instruction for first-degree murder, the jurors would 

reasonably conclude that omission was intentional and the defense was unavailable. 
19

and that insanity did not apply to it.” We agree, and conclude the 

instructions, read as a whole, are materially misleading.2 

Second, in our view, Davis’s insanity defense is stronger than 

Kuhse’s “implausible” justification defense. Davis had the burden to prove 

insanity by a preponderance of the evidence. Iowa Code § 701.4; Becker, 

818 N.W.2d at 142. Two medical experts testified that Davis lacked the 

requisite criminal intent for first-degree murder.

3 Davis has a long history 

of methamphetamine abuse, which both Dr. Konar and Dr. Andersen 

testified can lead to a substance-induced psychosis. Indeed, both agreed 

that Davis was under this psychosis. The day after the murder, Davis told 

his mother that he thought Carrie “would wake up when the devil was out 

of her.” The way he described himself indicated he was not of a sound 

mind. He claimed he was “similar to God but can choose to murder if he 

sees it necessary” and that he was “the spirit of Christ with the powers of 

the devil.” 

Sanity is judged at the time of the offense. The State relies, in part,

on after-the-fact evidence such as Davis’s sobriety and demeanor several 

days later as well as his effort to clean up the crime scene. Davis rolled 

 

2Moreover, the jury’s first-degree murder verdict, which shows it rejected Davis’s 

diminished capacity defense, does not mean the jury would not have found him insane. 

Insanity and diminished capacity are separate concepts with separate instructions. The 

diminished capacity instruction expressly mentioned first-degree murder, while the 

insanity instruction merely referred to “the crime charged.” 

3The State’s position is not supported by Lamasters v. State, 821 N.W.2d 856 (Iowa 

2012). There, in finding no Strickland prejudice, we stated: “[W]e cannot find a reasonable 

probability on this record that an insanity defense would have been successful. No expert 

has opined that Lamasters was legally insane at the time of the killing.” Id. at 868. Nor 

is the State’s position supported by State v. Buck, 510 N.W.2d 850, 853–54 (Iowa 1994)

(holding defendant was not prejudiced by his trial counsel’s failure to preserve error as 

to his waiver of a jury trial on the insanity defense). Buck relied solely on lay-witness 

testimony for his insanity defense and the State’s expert testified that at the time of the 

killing, “Buck understood the nature and quality of his acts, could distinguish right from 

wrong, and could form a specific intent to kill.” Id. at 851–52. Those cases are readily 

distinguishable because Davis supported his insanity defense with expert testimony. 
20

up Carrie’s body in blankets and carpet and placed bloodstained clothes 

in a garbage bag. Davis also placed a mattress over the bloodstain in the 

living room to cover it and wrote a note confessing to “stabb[ing] Carrie in 

a vicious attack,” all of which the State argued were evidence showing he 

knew what he did was wrong. Additionally, officers found no drugs or 

paraphernalia on Davis, who was lucid and coherent four days after he 

killed Carrie. On balance, the question of Davis’s sanity was for the jury 

to decide, under proper instructions.

Third, as in Kuhse, we consider how the parties argued the jury 

instructions in summation. 937 N.W.2d at 630. “The marshaling 

instruction is the crown jewel of the court’s instructions in a criminal 

case.” Id. at 633 (Appel, J., concurring specially). The State’s closing 

argument focused on Instruction No. 22: “What this whole case boils down 

to really is Instruction No. 22.” The prosecutor displayed Instruction No. 

22 for the jury on a PowerPoint slide. In the rebuttal argument, the 

prosecutor said, “And what I’d argue to you is that after you consider the 

elements of first degree murder, you don’t go any further. That’s it.” 

Indeed, the jury returned a verdict for first-degree murder, and stopped. 

Davis’s trial counsel provided ineffective assistance when he failed 

to object to the trial court’s departure from the uniform jury instructions 

that would cross-reference the insanity defense in the marshaling

instruction for first-degree murder. This significant error in the 

marshaling instruction for the main offense undermines our confidence in 

the verdict. Trial counsel’s breach and the resulting prejudice require a 

new trial. 

V. Disposition. 

For these reasons, we vacate the decision of the court of appeals, 

reverse the district court judgment, and remand the case for a new trial. 
21

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT 

JUDGMENT REVERSED AND CASE REMANDED FOR NEW TRIAL. 

All justices concur except McDonald, J., Mansfield, and Oxley, JJ., 

who dissent. 
22

#19–0214, State v. Davis

McDONALD, Justice (dissenting).

Lest there be any doubt, the defense presented its insanity defense 

to the charge of murder in the first degree, the jury considered the same, 

and the jury rejected it. From defense counsel’s first words to the jury in 

his opening statement—

I thought she was the devil. I thought that I was the devil. I 

thought I was Jesus and I thought I was God. I thought she 

was going to be resurrected and saved. I wrapped her body 

like they did Christ. Voices in my head told me I was doing 

the right thing. I was doing her a favor. I figured she had to 

be covered out of respect. This is what Greg Davis thought. 

These are not the thoughts of a sane man.

—through defense counsel’s final words to the jury in his closing 

statement—

The only way you convict Greg Davis of murder in the 

first degree is if you don’t believe both of those doctors. If you 

believe that both of those doctors are wrong, then it’s murder in 

the first degree. I submit to you the State has produced no 

evidence to dispute that either of those doctors are wrong.

. . . .

That’s why we have experts, to help us -- to help explain 

to us. Again, if you don’t believe either of those doctors, that’s 

the only way you’re going to get a murder first degree. If you 

believe those doctors, then it is not murder in the first degree. 

It’s murder in the second degree or not guilty by reason of 

insanity.

—Davis’s insanity defense was squarely and unequivocally presented to 

the jury. (Emphasis added.) The majority nonetheless concludes the jury 

might not have understood the insanity defense applied to murder in the 

first degree because the marshaling instruction for murder in the first 

degree lacked a cross-reference to the insanity instructions. This is 

contrary to the relevant law, the record, and common sense. I respectfully 

dissent.
23

To establish his claim of ineffective assistance of counsel, Davis was 

required to establish his trial counsel failed to perform an essential duty 

and trial counsel’s breach of duty resulted in constitutional prejudice. See

State v. Walker, 935 N.W.2d 874, 881 (Iowa 2019). To establish 

constitutional prejudice, Davis was required to show counsel’s 

performance caused a complete “breakdown in the adversary process” 

such that the result of the trial was unreliable. Strickland v. Washington, 

466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). “It is not enough for the 

defendant to show that the errors had some conceivable effect on the 

outcome of the proceeding.” Id. at 693, 104 S. Ct. at 2067. Rather, “[t]he 

defendant must show that there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have 

been different.” Id. at 694, 104 S. Ct. at 2068. “An error by counsel, even 

if professionally unreasonable, does not warrant setting aside the 

judgment of a criminal proceeding if the error had no effect on the 

judgment.” Id. at 691, 104 S. Ct. at 2066. 

This court resolved the question presented in this case in the 

materially indistinguishable case of State v. Kuhse, 937 N.W.2d 622 (Iowa 

2020). In that case, the defendant was charged with domestic abuse 

assault causing bodily injury. See Kuhse, 937 N.W.2d at 625. The 

defendant asserted a justification defense. See id. at 626. The marshaling 

instruction did not cross-reference the defense, and counsel did not object 

to the omitted cross-reference. See id. at 625–26, 627. The jury found the 

defendant guilty as charged. See id. at 627. In reviewing the unpreserved 

error, we applied the Strickland prejudice standard. See id. at 628. We 

explained Strickland required “us to consider the totality of the evidence, 

identify what factual findings would have been affected, and determine if 
24

the error was pervasive or isolated and trivial.” Id. at 628 (quoting State 

v. Ambrose, 861 N.W.2d 550, 557–59 (Iowa 2015)). We further explained,

ineffective assistance of counsel does not necessarily occur 

when defense counsel fails to object that a marshaling 

instruction does not refer to a required element of a defense—

or cross-reference a defense that the State is required to 

disprove. Instead, one must examine the record and consider 

the evidence presented, how the case was tried, and what the 

jury instructions as a whole said.

Id. at 630.

We ultimately concluded the defendant did not carry his burden to 

“establish Strickland prejudice.” Id. at 631. In reaching that conclusion, 

we explained Kuhse’s justification defense was weak. See id. at 630–31. 

We also noted there was little risk the jury did not understand justification 

was at issue. Id. at 631. Justification was the “focal point” of the case 

and closing arguments. See id. at 630. The fact that justification was the 

focal point of the case “helped confirm for the jury that justification was 

an essential part of its deliberations.” Id. Further, we explained the jury 

instructions as a whole made clear that justification was at issue and had 

to be considered. See id. Those considerations showed there was no 

“reasonable probability of a different outcome if the marshaling instruction 

on domestic abuse assault causing bodily injury had included or crossreferenced lack of justification.” Id. at 631.

Those same three considerations control the disposition of this case. 

First, as in Kuhse, the defendant’s insanity defense was weak. The jury 

was instructed Davis needed to prove by a preponderance of the evidence 

either of the following: 

1. At the time the crime was committed, the 

Defendant suffered from such a diseased or deranged 

condition of the mind as to render him incapable of 

knowing the nature and quality of the acts he is accused 

of; or
25

2. At the time the crime was committed, the 

Defendant suffered from such a diseased or deranged 

condition of the mind as to render him incapable of 

distinguishing between right and wrong in relation to 

the act.

“[T]he jury instructions become the law of the case for purposes of our 

review of the record.” State v. Canal, 773 N.W.2d 528, 530 (Iowa 2009). 

A point of procedure makes Davis’s defense weaker—and his claim 

of constitutional prejudice necessarily weaker—than that presented in 

Kuhse. In Kuhse, the defendant presented an affirmative defense of 

justification. A defendant asserting a justification defense “bears the 

initial burden of producing sufficient evidence to support the instruction. 

Once that threshold is met, the burden shifts to the State to prove lack of 

justification beyond a reasonable doubt.” Kuhse, 937 N.W.2d at 628 

(citation omitted). Here, however, the burden of proof was on Davis. It 

was his burden to prove his insanity defense by a preponderance of the 

evidence. See Iowa Code § 701.4 (2017); State v. James, 393 N.W.2d 465, 

466–67 (Iowa 1986) (en banc) (rejecting federal and state due process 

challenges to the statute).

The record shows Davis failed to prove he did not know the nature 

and quality of his acts or was incapable of distinguishing between right 

and wrong. Davis undertook deliberate, methodical, and calculated action 

to cover up the murder. This demonstrates he understood both the nature 

of his acts and his acts were wrong. See Lamasters v. State, 821 N.W.2d 

856, 867–69 (Iowa 2012) (holding there was no reasonable probability an 

insanity defense would have been successful when the defendant lied 

about the murder victim’s whereabouts to suggest she was still alive); State 

v. Jacobs, 607 N.W.2d 679, 685 (Iowa 2000) (holding that the trial court’s 

rejection of an insanity defense was supported by evidence the defendant 

used “intricate transactions” to cover up his theft); State v. Hamann, 285 
26

N.W.2d 180, 184 (Iowa 1979) (en banc) (holding right or wrong under the 

insanity test refers to “legal right or wrong”); see also State v. Crenshaw, 

659 P.2d 488, 497 (Wash. 1983) (en banc) (“Such attempts to hide evidence 

of a crime manifest an awareness that the act was legally wrong.”). 

Here, shortly after brutally killing Carrie, Davis tried to hide her 

body. He wrapped Carrie’s body in a sheet and several blankets. He then 

rolled her body into a roll of carpet. He put her body in the back of his 

trailer next to another rolled up carpet. He then drove the trailer first to 

his parents’ house and then later to one of their vacant rental properties, 

where he parked the trailer under a carport hidden from sight. The 

defendant’s attempts to hide Carrie’s body manifested his understanding 

of both the nature and wrongfulness of his conduct. See State v. Buck, 

510 N.W.2d 850, 851, 853–54 (Iowa 1994) (holding no prejudice in waiving 

jury trial where defendant hid the body of the decedent and a reasonable 

jury would have found him guilty of first-degree murder despite the weak 

insanity defense); see also Alvelo v. State, 724 S.E.2d 377, 382 (Ga. 2012) 

(rejecting defendant’s contention he proved insanity defense where 

evidence showed defendant’s “efforts to . . . hide the body indicated 

[defendant] knew the wrongfulness of his actions”); Crenshaw, 659 P.2d 

at 497 (stating defendant’s attempt to hide body manifested his awareness 

his crime was wrong).

The evidence also showed Davis took deliberate action to clean up 

the crime scene. After Davis killed Carrie, Davis placed his bloodstained 

clothing near the washer and dryer. A garbage bag in the bed of his truck 

contained damp clothing with apparent bloodstains and a paper towel with 

similar stains. Inside the residence, Davis moved a mattress to cover a 

bloodstained carpet. Davis’s attempts to clean up the crime scene are 

inconsistent with his insanity defense. See Alvelo, 724 S.E.2d at 382 
27

(rejecting defendant’s contention he proved insanity defense where 

evidence showed defendant’s “efforts to clean up the blood . . . indicated 

[defendant] knew the wrongfulness of his actions”); Crenshaw, 659 P.2d 

at 497 (holding defendant’s efforts to “clean up the blood” from crime scene 

“manifest[ed] an awareness that the act was legally wrong”). 

Davis also acknowledged the wrongfulness of his conduct. He 

handwrote a note in which he admitted his conduct. In the note, he did 

not claim he did not understand what he had done to Carrie. Instead, he 

wrote he “was on drugs.” In the note, he confessed he killed Carrie in a 

“vicious attack.” In the note, Davis apologized to Carrie’s family and 

friends and demonstrated he understood what he had done and that it 

was wrong. Davis’s expressions of remorse are inconsistent with his 

insanity defense. See Frost v. State, 453 So.2d 695, 698 (Miss. 1984) 

(“Actual expressions of remorse such as the ones at issue here would be 

probative of whether a Defendant knew the difference between right and 

wrong at the time he committed the crimes.”).

Davis’s interview with police also strongly undercuts his insanity 

defense. One officer testified Davis’s demeanor was normal at the time the 

police took him into custody. He was able to communicate with officers 

without any problem. During his interview with the police, Davis was 

coherent, lucid, and able to respond to questions. The defendant’s lucidity 

during the interview cuts against his insanity defense. See Choisnet v. 

State, 761 S.E.2d 322, 324, 326 (Ga. 2014) (holding defendant failed to 

prove insanity defense where, among other things, the defendant was 

“lucid and gave no indication of delusional thinking” during police 

interview). 

Given Davis’s conduct upon being taken into custody and during 

the police interview, Davis’s evidence showed, at best, Davis experienced 
28

a temporary methamphetamine-induced psychosis. During Davis’s 

evaluation with Dr. Arnold Andersen at the Iowa Medical and 

Classification Center, Davis admitted to using methamphetamines around 

the time he killed Carrie. Dr. Andersen testified Davis’s drug use was 

voluntary. Davis’s voluntary drug use does not support his defense. 

“Voluntary temporary intoxication does not excuse one for the criminal 

consequences of his conduct.” State v. Booth, 169 N.W.2d 869, 873 (Iowa 

1969). “[T]emporary insanity which arises from present voluntary 

intoxication is not [a] defense[] . . . even though the defendant’s temporary 

state of mind may meet the requirements of legal insanity contained in the 

M’Naghten rule . . . .” Id. (quoting 21 Am. Jur. 2d Criminal Law § 44, at 

128 (1969)). 

Davis’s defense was further undermined by his own witness. Davis 

called Dr. Andersen to testify. Upon questioning by defense counsel, 

Dr. Andersen testified Davis had the specific intent to kill Carrie. 

Dr. Andersen’s testimony regarding Davis’s intent to kill was so damaging 

to the defendant’s case that Davis claims in this appeal that his counsel 

was ineffective for eliciting the testimony. 

Second, as in Kuhse, there was no risk of juror confusion here 

because one of the focal points of the case was Davis’s insanity defense. 

In this case, from the outset—even prior to the jury being empaneled—the 

prospective jurors were informed this case was about Davis’s insanity 

defense. Question No. 7 of the juror questionnaire stated the “[d]efendant 

has asserted a defense of insanity/diminished responsibility. . . . Does the 

fact that this defense is asserted affect your ability to decide this case fairly 

and impartially on the evidence presented and the law as stated by the 

Judge?” Each juror then provided responses in the questionnaire 
29

regarding their view of the insanity defense for the lawyers to use during 

voir dire. 

During voir dire, defense counsel implanted in the minds of the 

jurors the centrality of the insanity defense. Defense counsel asked the 

prospective jurors about their opinions on “mental health, psychiatrists, 

psychologists, [and] mental health professionals.” He asked the 

prospective jurors about their respective experience with health care 

professionals and whether that would have an effect on their ability to 

listen to the testimony of the defendant’s professionals and experts. He 

asked the prospective jurors whether any knew of a person who had a 

mental health issue and whether that would impact their ability to serve. 

He asked the prospective jurors directly if they could “find someone not 

guilty by reason of insanity” if the evidence supported it. The following 

exchange is just an example:

COUNSEL: One of the other questions on the 

questionnaire we talked about, diminished responsibility and 

insanity. If there was evidence—I’m going to stick with you, 

Ms. Hasek—evidence that supports it, could you find someone 

not guilty by reason of insanity?

PROSPECTIVE JUROR HASEK: If evidence was there to 

support it, yes.

COUNSEL: Okay. Obviously there’s a standard, and if 

we supported it, you would be okay with that?

PROSPECTIVE JUROR HASEK: Yes.

COUNSEL: Mr. McShane?

PROSPECTIVE JUROR McSHANE: Yes.

COUNSEL: How are you?

PROSPECTIVE JUROR McSHANE: Good.

COUNSEL: Good. Same question. If the evidence 

supported it, could you vote not guilty by reason of insanity?
30

PROSPECTIVE JUROR McSHANE: Yes.

COUNSEL: Thank you. Mr. Taylor?

PROSPECTIVE JUROR TAYLOR: Yes.

COUNSEL: Same question. If the evidence supported 

it, could you vote not guilty by reason of insanity?

PROSPECTIVE JUROR TAYLOR: Yes.

COUNSEL: Ms. Brecht, same question.

PROSPECTIVE JUROR BRECHT: Yes.

COUNSEL: Okay. Thank you. Mr. Allen?

PROSPECTIVE JUROR ALLEN: Yes.

COUNSEL: Same question.

PROSPECTIVE JUROR ALLEN: Yes.

COUNSEL: If the evidence supported it, you could vote 

not guilty by reason of insanity?

PROSPECTIVE JUROR ALLEN: Yes.

COUNSEL: Mr. Tijerina?

PROSPECTIVE JUROR TIJERINA: Pretty close.

COUNSEL: Pretty close. Okay. We just met not long 

ago. The same question. If the evidence supported it, could 

you vote not guilty by reason of insanity?

PROSPECTIVE JUROR TIJERINA: I could, yes.

Defense counsel repeated this same line of questioning with other 

prospective jurors as well.

The conduct of the trial further cemented in the jury’s collective 

mind that a focal point of the case was Davis’s insanity defense. During 

opening statements, the prosecutor directly addressed the issue. As noted 

above, the very first words out of defense counsel’s mouth involved Davis’s 

sanity. Defense counsel framed the entire case around this issue:
31

You’re going to receive an instruction on whether or not 

the defendant was insane during the time of this crime. . . . 

Insanity means such a diseased and deranged condition that 

someone cannot tell right from wrong. Greg Davis did not 

believe he was doing wrong at this time.

Defense counsel then explained to the jury the centrality of the insanity 

defense to the case. He said the State is “going to try to prove to you that 

[Davis] didn’t have any mental health issues, that he was not insane when 

this incident occurred. But that cannot be the case.” Defense counsel 

told the jury about the delusional thoughts Davis allegedly had at the time 

of the crime, such as seeing Jesus and the devil, and said, “These are not 

the thoughts of a sane man.” Defense counsel then explicitly asked the 

jury to return a verdict of not guilty by reason of insanity:

We have to prove to you beyond—we have to prove to 

you by a preponderance of the evidence that Gregory Davis 

was insane during the time of this incident. When the 

evidence is before you, that will not be a difficult conclusion 

to come to. Preponderance of the evidence is a different 

standard than beyond a reasonable doubt. Preponderance of 

the evidence is the lowest standard of the law. It is the easiest 

burden to prove. It means that it was more likely than not 

that Greg Davis was insane at the time of this crime.

We’re not asking you to excuse him because he was 

voluntarily on meth, as the State would have you believe. We 

are asking you to recognize that Greg was under an 

involuntary psychosis and that this is the law that will be 

presented to you. It is your obligation to interpret the evidence 

as such. We believe that this evidence will be so compelling, 

and that is why you are going to return a verdict of not guilty 

by reason of insanity

The centrality of the insanity defense continued through trial and 

closing argument. “This helped confirm for the jury that [the insanity 

defense] was an essential part of its deliberations.” Kuhse, 937 N.W.2d at 

630. Davis presented his insanity defense through the opinion testimony 

of Dr. Konar and Dr. Andersen. Relying on their testimony, defense 
32

counsel directly addressed the issue in his closing argument, stating the 

prosecutor 

put up there the elements of murder one . . . . One of the 

elements that he did not address which has been the core of 

this case since we started—we talked about it from voir dire, 

opening statement. It was never a whodunit. It was a why.

Defense counsel continued, explicitly tying the doctor’s testimony 

regarding Davis’s sanity to the charge of murder in the first degree:

The only way you convict Greg Davis of murder in the 

first degree is if you don’t believe both of those doctors. If you 

believe that both of those doctors are wrong, then it’s murder 

in the first degree. I submit to you the State has produced no 

evidence to dispute that either of those doctors are wrong.

. . . .

That’s why we have experts, to help us—to help explain 

to us. Again, if you don’t believe either of those doctors, that’s 

the only way you’re going to get a murder first degree. If you 

believe those doctors, then it is not murder in the first degree. 

It’s murder in the second degree or not guilty by reason of 

insanity.

The prosecutor directly responded and argued the evidence showed Davis 

was “not a man who has taken leave of his senses. This is not a man who 

has lost touch with reality. He is as sane as rain.” The prosecutor asked 

the jury to thus return a verdict of guilty of murder in the first degree. 

The centrality of the insanity defense throughout the entire 

proceeding—from jury selection, through opening statement, through the 

presentation of evidence, and through closing argument—would be a 

sufficient basis, standing alone, to conclude Davis failed to carry his 

affirmative burden of establishing Strickland prejudice. 

Third, as in Kuhse, Davis’s showing of Strickland prejudice is 

undermined by the jury instructions given in this case. When this court 

evaluates claims involving instructional error, the court should not “parse 

particular phrases” but should “look at the instructions as a whole in light 
33

of the relevant standard of review.” Booker v. Mass. Dep’t of Pub. Health, 

612 F.3d 34, 44 (1st Cir. 2010); see State v. Fintel, 689 N.W.2d 95, 104 

(Iowa 2004) (“Jury instructions are not considered separately; they should 

be considered as a whole.”). 

Here, the jury was instructed it should consider all of the 

instructions together as a whole. The district court read preliminary 

instructions to the jury. The preliminary instruction stated, “The jury will 

be instructed to consider all of the instructions together. No one 

instruction includes all of the applicable law.” Jury Instruction No. 7 told 

the jury to consider all of the instructions together: “You must consider all 

of the instructions together. No one instruction includes all of the 

applicable law.” 

The instructions given here, when considered as a whole, make clear 

the jury was to consider Davis’s insanity defense with respect to the charge 

of murder in the first degree. Jury Instruction No. 14 set forth the jury’s 

duty to consider the insanity defense with respect to the crime charged: 

The Defendant claims he is not guilty by reason of 

insanity. You must first determine if the State has proved all 

the elements of the crime charged beyond a reasonable doubt. 

If you find the State has proved all the elements, then you 

must consider the issue of the Defendant’s sanity.

Jury Instruction Nos. 15 and 16 made clear the jury should consider 

Davis’s insanity defense. Jury Instruction No. 15 provided: “The defendant 

claims he is not criminally responsible for his conduct by reason of 

insanity. A person is presumed sane and responsible for his acts.” Jury 

Instruction No. 16 provided: “If the State has proved all the elements of a 

crime, you should then determine if the Defendant has proved he was 

insane.” Notably, Jury Instruction No. 16 provided the jury should 

consider the insanity defense if the State proved all the elements of “a 
34

crime,” meaning any crime charged, without limitation. See Am. Bus Ass’n 

v. Slater, 231 F.3d 1, 4–5 (D.C. Cir. 2000) (“[I]t is a rule of law well 

established that the definite article ‘the’ particularizes the subject which it 

precedes. It is a word of limitation as opposed to the indefinite or 

generalizing force of ‘a’ or ‘an.’ ” (quoting Brooks v. Zabka, 450 P.2d 653, 

655 (Colo. 1969) (en banc))). 

The majority attempts to distinguish Kuhse on the ground the risk 

of confusion is greater here because the marshaling instruction for murder 

in the first degree failed to cross-reference Davis’s defense of insanity while 

the lesser included offense instructions did cross-reference Davis’s defense 

of insanity. The majority’s purported distinction does not hold for two 

reasons: the majority’s distinction rests on the wrong legal standard, and 

the majority’s distinction is contrary to the record and common sense. 

The majority’s purported distinction rests on the wrong legal 

standard. While the majority cites Strickland and purports to apply the 

Strickland prejudice standard, it actually applies some sort of presumedprejudice standard for preserved error. See Kuhse, 937 N.W.2d at 629 (“A 

‘presumed-prejudice standard applies to preserved errors in jury 

instructions.’ However, ‘an ineffective-assistance-of-counsel claim based 

on failure to preserve jury instruction error must demonstrate deficiency 

and prejudice.’ ” (Citation omitted) (quoting State v. Lorenzo Baltazar, 935 

N.W.2d 862, 871–72 (Iowa 2019)).). Under this new standard, the majority 

concludes Davis established prejudice because the jury instruction 

undermines the majority’s confidence in the verdict. However, this is not 

the relevant standard under Strickland. Under Strickland, Davis must 

show “a reasonable probability that the result of the trial would have been 

different. The likelihood of a different result must be substantial, not just 
35

conceivable.” Ambrose, 861 N.W.2d at 557 (citation omitted).4 Nowhere 

does the majority conclude, as Strickland and Kuhse require, that Davis 

established a reasonable probability the result of the trial would have been 

different. 

Not only does the majority opinion apply the wrong legal standard, 

its erroneous standard leads the majority to misapprehend and understate 

the value citizen jurors bring to the administration of criminal justice.

[T]he essential feature of a jury obviously lies in the 

interposition between the accused and his accuser of the 

commonsense judgment of a group of laymen, and in the 

community participation and shared responsibility that 

results from that group’s determination of guilt or innocence.

Williams v. Florida, 399 U.S. 78, 100, 90 S. Ct. 1893, 1906 (1970). Jurors 

are serious-minded in taking the oath. Jurors discharge their civic duty 

with the seriousness and earnestness the occasion demands. Jurors 

“undertake[] deliberations that are honest, candid, robust, and based on 

common sense.” Peña-Rodriguez v. Colorado, 580 U.S. ___, ___, 137 S. Ct. 

855, 861 (2017). The application of common sense in the administration 

of justice is one of the central values of the jury system:

One of the main objects of a jury trial is to secure to parties 

the judgment of 12 men of average intelligence, who will bring

to bear upon the consideration of the case the sound common 

sense which is supposed to characterize their ordinary daily 

transactions. If cases were to be decided alone by the 

application of technical rules of law and evidence, it could 

better be done by men who are learned in the law, and who 

 

4This is the showing required to establish Strickland prejudice with respect to all 

unpreserved claims of instructional error. See Lorenzo Baltazar, 935 N.W.2d at 872 

(finding that even where there was outdated language within the jury instruction, the 

defendant could not show prejudice due to the overwhelming evidence against him); 

Ambrose, 861 N.W.2d at 557–59 (deciding there was no ineffective assistance of counsel 

when defense counsel failed to object to an instruction that told the jury not to consider 

lesser included offenses until it had acquitted the defendant of the greater offense); State 

v. Propps, 376 N.W.2d 619, 623–24 (Iowa 1985) (holding the defendant failed to establish 

prejudice where the omission of a knowledge element from marshaling instruction was 

cured by other instructions). 
36

have made it the study of their lives; and while it is entirely 

true that the jury are bound to receive the law from the court, 

and to be guided by its instructions, it by no means follows 

that they are to abdicate their common sense, or to adopt any 

different processes of reasoning from those which guide them 

in the most important matters which concern themselves. 

Their sound common sense, brought to bear upon the 

consideration of testimony, and in obedience to the rules laid 

down by the court, is the most valuable feature of the jury 

system, and has done more to preserve its popularity than any 

apprehension that a bench of judges will willfully misuse their 

power.

Dunlop v. United States, 165 U.S. 486, 499–500, 17 S. Ct. 375, 380 (1897).

The jury brings this collective common sense to reading, 

understanding, and applying the jury instructions. 

Jurors do not sit in solitary isolation booths parsing 

instructions for subtle shades of meaning in the same way 

that lawyers might. Differences among them in interpretation 

of instructions may be thrashed out in the deliberative 

process, with commonsense understanding of the 

instructions in the light of all that has taken place at the trial 

likely to prevail over technical hairsplitting.

Boyde v. California, 494 U.S. 370, 380–81, 110 S. Ct. 1190, 1198 (1990). 

The jury is not composed of technocrats who apply arcane Latin maxims 

of statutory construction to parse jury instructions. 

Other courts applying the Strickland prejudice standard have 

recognized the strength and value of the jury system and reached the same 

conclusion this court reached in Kuhse:

Upon this record, [there is] little potential for the jury 

being misdirected sufficiently to cause a miscarriage of justice 

when all the instructions are read together, especially in light 

of the lengthy record in which substantially all the evidence 

focused on a single defense. Reading the instructions together 

in the light of the facts here presented, no reasonably attentive 

and intelligent juror could have been misled or confused by 

the failure to include [a cross reference in the marshaling 

instruction]. 

State v. Howard, 896 S.W.2d 471, 484 (Mo. Ct. App. 1995) (citation 

omitted); see also Patterson v. State, 576 S.W.3d 240, 246 (Mo. Ct. App. 
37

2019) (holding defendant failed to establish Strickland prejudice due to 

omission of cross-reference to defense in instructions where the 

instructions as a whole referenced the defense); Wright v. State, 125 

S.W.3d 861, 867 (Mo. Ct. App. 2003) (holding defendant failed to establish 

Strickland prejudice due to lack of cross-reference to defense in 

instructions where “trial counsel explained the concepts of self-defense 

and defense-of-another in his closing arguments to the jury,” and “the trial 

court instructed the jury on justification”). I would follow Kuhse and the 

persuasive authority.

The defendant is entitled to a fair trial, not a perfect one. See State 

v. Webster, 865 N.W.2d 223, 233 (Iowa 2015). He undoubtedly received a 

fair trial. Here, able counsel on both sides vigorously contested the case. 

The defendant was able to present his theory of the case to a jury of his 

peers. Defense counsel put the relevant question directly to the jury in his 

closing statement: “[t]he only way you convict Greg Davis of murder in the 

first degree is if you don’t believe both of those doctors.” (Emphasis added.) 

The jury didn’t. I would respect the jury’s verdict. See Barany v. State, 

658 N.E.2d 60, 64 (Ind. 1995) (affirming jury’s verdict where “the medical 

experts were unanimous in concluding that appellant was insane at the 

time of the killing” but “the State offered testimony from several lay 

witnesses that indicated that appellant was sane”). The State and the 

victim’s family have an interest in finality. That interest should not be 

disturbed in the absence of a showing of a reasonable probability of a 

different result if the matter were retried. Davis has not made such a 

showing. 

For these reasons, I would affirm the defendant’s conviction. I 

respectfully dissent.

Mansfield and Oxley, JJ., join this dissent.