State of Iowa v. Mathew John Irving

IN THE COURT OF APPEALS OF IOWA

No. 14-1479
Filed October 14, 2015

STATE OF IOWA,
Plaintiff-Appellee,

vs.

MATHEW JOHN IRVING,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Marshall County, James C.

Ellefson, Judge.

Mathew Irving appeals his conviction for murder in the second degree.

AFFIRMED.

Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,

Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney

General, Jennifer Miller, County Attorney, and Laura Roan, Assistant County

Attorney, for appellee.

Heard by Doyle, P.J., Bower, J., and Miller, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
2

DOYLE, Presiding Judge.

Mathew Irving appeals his conviction for murder in the second degree for

the death of his friend, Rebecca Hall. He contends his trial counsel1 was

ineffective in numerous respects, and if his counsel’s errors were not individually

prejudicial, the cumulative effect of the errors denied him a fair trial. We affirm.

I. Background Facts and Proceedings.

From the evidence presented at trial, a reasonable juror could have found

the following facts. In the early morning hours of July 14, 2013, Hall was found

dead by law enforcement officials in the back of her sister’s van.

The officers went to Hall’s sister’s home and talked to her sister. Shortly

after arriving, Shawn Irving, Mathew Irving’s wife, stopped by. Shawn was “kind

of hysterically . . . cry[ing],” saying, “Tell me it’s not so.” The officers, in the

general information-gathering stage of their investigation, requested Shawn

come to the sheriff’s office for an interview later, and Shawn agreed.

Shawn was subsequently interviewed. During Shawn’s interview, the

officers learned Hall and Shawn had been friends but had recently had “a falling

out or some animosity going on between them about some rumors that

Shawn . . . felt that [Hall] . . . was spreading about [Shawn and Mathew].”

Specifically, Shawn learned Hall had told persons, including Mathew, that Shawn

was cheating on Mathew with another man. Officers interviewed the other man,

and he told them Mathew had confronted him, that Mathew “was upset

and . . . made a statement that he’d throw [Hall] in the river.”

1
Although Mathew had two attorneys at trial, we collectively refer to both in the
singular as “trial counsel.”
3

On July 15, officers interviewed Mathew, and the interview was video-

recorded and played for the jury. During this almost two-hour interview, Mathew

told the officers he did not see Hall on the evening of July 14, and he did not

know what had happened to her. Mathew told them that after he got home from

work around 4:30 p.m., he went and got gas, went to a town festival by himself,

and got back home around 6:30-7:00 p.m. Shawn was at her mother’s house.

Mathew told them he sat there for a while, and later that night, he went out to buy

cigarettes, driving his wife’s truck. He stated that while he was driving, the truck

started having issues; it was running poorly and would not stay running. Though

he is a mechanic, Mathew told the officers he was not sure what the issue was

and his description of the problem was vague. He said he talked to his wife on

his cell phone about the truck issue, but he was ultimately able to drive the truck

home. Shawn got home around 11:00 p.m., and he and Shawn left and went to

a casino. He told them they left the casino around dawn, and he went home and

slept. Despite employment of intensive investigative techniques, Mathew

repeatedly stated he did not know what happened to Hall.

The next day, Mathew’s aunt called the sheriff’s office requesting to speak

to someone involved with the investigation. An officer called her back, and after

speaking to her for a few minutes, she gave her phone to Mathew. Mathew

talked to the officer and ultimately told him that on the evening of July 13, he

decided to walk over to Hall’s house while his wife was at her mother’s house, on

the off chance that Hall might be home. He told the officer he wanted to confront

Hall “about all the things she was saying.” Mathew stated he found Hall at home

in her garage, and she asked him if he wanted to go for a ride in the van. He
4

said he agreed, and she drove them to a park and parked the van. Mathew told

the officer that when they got there, Hall “informed him that she wanted to

perform oral sex on him, and . . . he said okay,” and Hall then got in the back of

the van and took off all of her clothes. She began performing oral sex on him,

but he was not becoming aroused. He told Hall this, and Hall “just freaked out,”

and “she replied back something to the effect of, ‘Am I not good enough for you,’

and maybe another phrase,” and she started smacking him. Mathew told the

officer

he was holding her down, and [had his] hands on her mouth and
nose or face area, . . . and he said that she . . . kept squirming
around, and he said eventually she squirmed free, and when she
had squirmed free, . . . she managed to be facing away from him.
He said somehow she got free and then was facing away from him.
He said that he then grabbed her from behind, and [his] elbow was
near her nose and mouth area . . . . He said he put . . . his arm
around her neck so that his elbow was near her nose and mouth.
He said she continued to fight and that for being so small, she was
very strong and that she at one point was attempting to kick him
and elbow him. . . . [H]e said that she kept elbowing [him].

Mathew told the officer Hall “just stopped fighting,” but “he knew she was

gone . . . when she . . . had peed herself.” When asked by the officer if Hall “just

pass[ed],” Mathew told him “[i]t wasn’t anywhere that neat.” Mathew told the

officer that after he knew Hall had died, he “just freaked out. He said he then

drove the van with her dead body in the back, and he drove west through town.”

He told the officer that when he got in the driver’s seat of the van, he called his

wife “and said, ‘I’m driving [Hall’s] van, and [Hall’s] in the back,’ and . . . he asked

her to come pick [him] up . . . , and she said she would.” “[H]e then just parked

[the van] alongside the road.” He left the keys on the front seat, where they were

found. Mathew told the officer he then ran into the nearby “cornfields in an
5

attempt to make his way back to town and to make his way back to his house.”

Mathew initially told the officer he walked all the way home but later told the

officer during the call that Shawn “had actually picked him up before he had

gotten to his house.” Mathew told the officer that he later took a shower and

changed his clothes, and thereafter, Shawn drove them to the casino. On the

way, they threw out articles of clothing and, after destroying it in the car, the

pieces of his cell phone.

Mathew voluntarily came back to the sheriff’s office for another interview,

which was video-recorded and played for the jury. In that interview, Mathew

related essentially the same story he gave the officer on the phone. Mathew was

arrested thereafter. Mathew had injuries on his hands, forearm, and bicep, along

with some scratches on his back. He told the officers the injuries on his hands

were sustained when he had fled from the van and had fallen in a creek, and the

scratches on his back were caused by Shawn. Mathew was subsequently

charged with first-degree murder.

In August 2013, Mathew filed notices that he intended to offer evidence of

self-defense and intoxication. At trial, Mathew testified that on the night of Hall’s

death:

[He] kind of had a feeling [Shawn] was going to sneak over to the
casino, . . . telling [him] not to wait up for her, and [he] kind of got to
thinking [he] should sneak over to [Hall’s] house and see if she
would do some dope with [him] and maybe [he’d] have sex with
her, and [he] was kind of wondering what . . . was up with
[Shawn]. . . . [He] thought maybe [he] could get that out of [Hall].

Mathew testified he walked over to Hall’s house, and they smoked marijuana.

He began “kind of rubbing on her leg as [he] was sitting there next to her . . . to
6

see if she was receptive to come-ons,” and she was. He testified Hall “[s]tarted

out rubbing on [his] leg and then [they] stood up, and she was showing [him]—

she had like a knife, and she was showing it to [him].” Mathew testified they

continued rubbing each other and decided to go for a ride because Hall’s

teenage son was home and she did not want to get caught. They found a place

“kind of tucked off behind everything,” and Hall parked the van. He testified they

proceeded to have oral sex in the back of the van, as he previously told officers

in his other interviews, but he testified that when he told Hall he was not

becoming aroused, “[s]he pretty much flipped out.” He testified she smacked him

and tried to punch him “in the mouth, and then she was screaming, ‘You fucker;

you fucker; I’m going to kill you.’” He testified he pushed her away, but she came

back at him, hitting him in the mouth, trying to smack and claw him, all while

continuing to yell, “You fucker; you fucker; and . . . I’m going to kill you.” He

testified he “tried to push her down again, harder this time, and she landed on

her back. She went all the way down on her back.” He

turned to [his] left towards the door, and [he] pretty much no more
than got turned around and she—before [he] got turned around,
she kicked [him] once in the back, and then [he] got turned around
a little more, and she kicked [him] in the ribs . . . , and [he] should
have kept going, but [he] turned around, and when [he] turned
around, she kicked at [him] again. [He was] pretty sure she was
trying to kick [him] in the crotch.

He testified he told Hall to stop and “just quit it,” but she continued to try “to hit

[him], trying to poke [him] in the eyes, and that’s when [he] shoved her back

down the third time.” He “kind of jumped up on her just to hold her down,

and . . . [he] had one hand on her shoulder and one hand on her face, and [he]

was holding it, and she was trying to roll over . . . to her right side.” He “tried to
7

keep her on the floor, but [he] couldn’t, and when she got rolled over to where

she was kind of facing away from [him], [he] dropped down on the floor and put

[his] arm around her neck and [his other] arm around her waist just to hold her.”

He

let go of her neck because [he] thought [he] was going to break her
neck. . . . [A]round that time she spit at [him], and she started
coming back up. Right away [he] held her down, and she tried to
kind of get away, and . . . as [he] was pushing her down, [he] kind
of slid her over in the corner of the van, and that’s just—that’s just
how it happened.

He testified

she kind of got a little bit quieter, and then, you know, she’s cussing
[him] the whole time, and she kind of got quiet . . . . [He] kind of felt
her right hand. Like she patted [him] on the leg . . . . [He] kind of
took that as [she gave] up, and then she quit moving. And then—
and then she peed on the carpet, and [he] realized that she was
dead.

He testified that although he was not “so much” physically afraid of Hall, he had

“never known her not to have a knife, and she was mad as hell.” Mathew

testified he did not tell the officers that Hall threatened to kill him several times

because “originally [he] thought [he] had told them, but [he didn’t] know a lot of

details in that interview.” He had assumed Hall had a knife on her because he

had “never ever seen her without one or three or four knives,” and he did not get

out of the van because he thought he “could restrain her and get her to chill out.”

He testified he acted in self-defense, but he did not intend to kill Hall. He testified

that he thought the amount of force he used to respond and react to Hall’s

actions seemed reasonable at the time, but he testified he was unsure now,

since she had died.
8

The jury found Mathew guilty of second-degree murder. See Iowa Code

§§ 707.1, .3 (2013). He now appeals.

II. Discussion.

On appeal, Mathew asserts his trial counsel was ineffective in failing (1) to

argue the evidence was insufficient to establish he acted with malice

aforethought; (2) to assert and request a jury instruction on imperfect self-

defense; (3) to challenge hearsay statements and personal opinions presented

by law enforcement officials; and (4) to object to the prosecutor’s statement in

closing argument that a defendant must pick only one legal defense and may not

present inconsistent theories. Mathew contends that if not individually

prejudicial, the cumulative effect of the errors denied him a fair trial. We address

his arguments in turn.

A. Ineffective Assistance of Counsel and Fair Trial.

We review ineffective-assistance-of-counsel claims de novo. See

Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015). We generally preserve

such claims for postconviction-relief proceedings where a proper record can be

developed. See State v. Null, 836 N.W.2d 41, 48 (Iowa 2013). “That is

particularly true where the challenged actions of counsel implicate trial tactics or

strategy which might be explained in a record fully developed to address those

issues.” State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). “[A]t a postconviction

relief hearing, trial counsel will have an opportunity to explain [his or] her conduct

and performance.” State v. Blair, 798 N.W.2d 322, 329 (Iowa Ct. App. 2011).

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

reputation is impugned.” State v. Bentley, 757 N.W.2d 257, 264 (Iowa 2008).
9

Consequently, we will only address claims of ineffective assistance of counsel on

direct appeal when the record is sufficient to decide the issue. See State v.

Ross, 845 N.W.2d 692, 697 (Iowa 2014). We find the record adequate here.

To succeed on a claim of ineffective assistance of counsel, Mathew must

prove both that (1) his counsel failed to perform an essential duty and (2) he

suffered prejudice as a result of his counsel’s failure. See id.; see also Strickland

v. Washington, 466 U.S. 668, 687 (1984). Counsel does not provide ineffective

assistance if the underlying claim is meritless; in other words, counsel has no

duty to engage in an exercise in futility. See State v. Halverson, 857 N.W.2d

632, 635 (Iowa 2015). Only if the underlying claim has merit will we move to the

determination of whether the failure to make the claim amounted to a breach of

duty and whether the defendant was prejudiced by the breach. See id.

To determine whether counsel failed to perform an essential duty, “we

measure counsel’s performance against the standard of a reasonably competent

practitioner,” objectively assessing whether counsel’s performance “was

reasonable, under prevailing professional norms, considering all the

circumstances.” State v. Thorndike, 860 N.W.2d 316, 320 (Iowa 2015).

Counsel’s competence is presumed. See id. On the second prong, Mathew has

to establish his “counsel’s errors were so serious as to deprive [him] of a fair

trial.” See id. He must prove “there is a reasonable probability that, but for

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

different.” See id. A mere showing that the error conceivably could have

influenced the proceeding’s outcome is not sufficient. See id.
10

1. Malice Aforethought.

Mathew asserts the evidence was not sufficient to show he acted with

“malice aforethought” when he killed Hall, and his trial counsel was therefore

ineffective for not challenging the sufficiency of the evidence on this element. In

reviewing challenges to the sufficiency of the evidence, we view the record in the

light most favorable to the non-moving party—here, the State—and make all

legitimate inferences and presumptions that may be reasonably deduced from

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

is substantial if it would convince a reasonable trier of fact the defendant is guilty

beyond a reasonable doubt. See id.

Malice aforethought is an essential element of second-degree murder and

separates second-degree murder from other lesser-included offenses of first-

degree murder. See State v. Reeves, 670 N.W.2d 199, 207 (Iowa 2003).

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

that exists before the act is committed.” State v. Myers, 653 N.W.2d 574, 579

(Iowa 2002). It does not need to exist for any particular length of time; it is

sufficient if the purpose was formed and continued to exist at the time the act

was committed. See Reeves, 670 N.W.2d at 207. “Because this element is a

state of mind, circumstantial evidence is generally used to prove malice.” State

v. Buenaventura, 660 N.W.2d 38, 49 (Iowa 2003). The relationship between the

state of mind, malice aforethought, and the homicidal act “is more accurately

characterized as a causal relationship than as a temporal relationship.” Bentley,

757 N.W.2d at 265. “In other words, the malice must result in the homicidal act.”

Id. “Evidence of bad feelings or quarrels between the defendant and the victim
11

are circumstances that may be used to support a finding of malice aforethought.”

Buenaventura, 660 N.W.2d at 49.

Mathew asserts the “only evidence presented to the jury about the events

that transpired the night of July 13, 2013, came from [him],” and he points to his

own testimony that Hall’s death was accidental and that he acted with justification

in protecting himself. However, it was for the jury to determine whether Mathew’s

testimony was credible. See State v. Blair, 347 N.W.2d 416, 420 (Iowa 1984)

(stating that “evidence, if deemed credible by the jury, would substantiate

defendants’ alibi and serve to acquit defendants,” but noting “the jury is at liberty

to believe or disbelieve the testimony of witnesses as it chooses”). “The jury is

free to believe or disbelieve any testimony as it chooses and to give weight to the

evidence as in its judgment such evidence should receive.” State v. Thornton,

498 N.W.2d 670, 673 (Iowa 1993). To reach their verdict, it is the function of the

jury to sort out the evidence presented and place credibility where it belongs.

See Blair, 347 N.W.2d at 420; see also State v. Musser, 721 N.W.2d 758, 761

(Iowa 2006) (“It is not the province of the court . . . to resolve conflicts in the

evidence, to pass upon the credibility of witnesses, to determine the plausibility of

explanations, or to weigh the evidence; such matters are for the jury.”).

Mathew maintains his testimony was “essentially the same version of

events he gave police in his second interview,” but he ignores crucial differences

between his testimony and his two recorded interviews. Specifically, he never

mentioned in his interviews that he thought Hall had a knife, that Hall threatened

to kill him, or that he feared for his life. Assuming his failure to mention these

details in his first interview can be explained by his total denial of his involvement
12

in Hall’s death, his failure to bring up these details in the second interview, which

he came in for voluntarily and admitted to killing Hall, has no rational explanation.

Though he appeared sleepy and sometimes had slurred speech in the second

interview, his account of what happened that night was detailed and straight-

forward, and he had no reason to omit these details from the interview if true.

Furthermore, his trial testimony that he did not tell the officers because he

thought he already had does not add up. Moreover, Mathew admitted he was

upset with Hall and that he told others that he would like to kill her and throw her

in the river.

Murder in the second degree is a general intent crime. See State v.

Lyman, 776 N.W.2d 865, 877 (Iowa 2010). Clearly, viewing the record in the

light most favorable to the State, the jury could have found Mathew’s actions

were not accidental or justified. We therefore find his claim to be without merit,

and his counsel therefore had no duty to object and was not ineffective.

2. Imperfect Defense.

Mathew next argues his trial counsel was ineffective in failing “to assert

and argue the doctrine of imperfect self-defense.” Mathew acknowledges the

doctrine “has not been formally adopted in Iowa,” but he asserts the argument

was worth making and had counsel done so, there was a reasonable probability

the jury would have chosen to convict Mathew of involuntary manslaughter rather

than second-degree murder. We find his argument to be without merit.

In an unpublished opinion, this court previously addressed an ineffective-

assistance-of-counsel claim for failure to assert the doctrine of imperfect self-
13

defense. See State v. Gomez-Rodriguez, No. 06-0527, 2007 WL 1688987, *1

(Iowa Ct. App. 2007). There, this court explained:

Under Iowa law, self-defense is the justified use of force
“when the person reasonably believes that such force is necessary
to defend oneself or another from any imminent use of unlawful
force.” Iowa Code § 704.3 (emphasis added). The doctrine of
imperfect self-defense, on the other hand, recognizes a defendant’s
honest but unreasonable belief that deadly force is necessary.
See, e.g., State v. Jones, 8 P.3d 1282, 1287 (Kan. Ct. App. 2000)
(“Imperfect self-defense is an intentional killing committed with an
unreasonable but honest belief that circumstances justified deadly
force.”); State v. Faulkner, 483 A.2d 759, 769 (Md. 1984) (“[W]hen
evidence is presented showing the defendant’s subjective belief
that the use of force was necessary to prevent imminent death or
serious bodily harm, the defendant is entitled to a proper instruction
on imperfect self defense.”). “The theory underlying the doctrine is
that when a defendant uses deadly force with an honest but
unreasonable belief that it is necessary to defend himself, the
element of malice, necessary for a murder conviction, is lacking.”
State v. Catalano, 750 A.2d 426, 429 (R.I. 2000). In states where
the doctrine of imperfect self-defense has been adopted, proof of
an imperfect self-defense does not exonerate the accused but
mitigates the homicide to voluntary manslaughter. See, e.g.,
People v. Vasquez, 39 Cal. Rptr. 3d 433, 435 (Cal. Ct. App. 2006)
(“When imperfect self-defense applies, it reduces a homicide from
murder to voluntary manslaughter because the killing lacks malice
aforethought.”).

Id. at *1-2. Nevertheless, we determined Gomez-Rodriguez’s trial counsel “had

no duty to present a defense based on the doctrine of imperfect self-defense,”

noting that it had not been adopted in Iowa and finding it conflicted with Iowa

statutory law, stating

Iowa Code section 704.3 provides that “[a] person is justified in the
use of reasonable force when the person reasonably believes that
such force is necessary to defend oneself or another from any
imminent use of unlawful force.” (emphasis added). In essence,
Gomez-Rodriguez is asking us to judicially create a new non-
statutory defense. See State v. Khouri, 503 N.W.2d 393, 395 (Iowa
1993) (declining to adopt the doctrine of emotional disturbance in
the absence of legislative action).
14

Id. at *3. We declined “Gomez-Rodriguez’s invitation to find his trial counsel

breached any duty by failing to argue a defense that has not been adopted in this

state, has been rejected in several other states, and is contrary to Iowa statutory

law.” Id.

The language of section 704.3 has not been amended since we decided

Gomez-Rodriguez, nor has the legislature amended other sections of the Iowa

Code to include the option of asserting a defense based upon the doctrine of

imperfect self-defense. This could be interpreted as a “tacit approval of [the]

decision.” See Drahaus v. State, 584 N.W.2d 270, 276 (Iowa 1998) (holding that

where the legislature has failed to amend a statute in response to a particular

interpretation of the statute announced by the court, it is presumed that the

“legislature has acquiesced in that interpretation”); see also Swiss Colony, Inc. v.

Deutmeyer, 789 N.W.2d 129, 135 (Iowa 2010) (“Had the legislature intended to

establish the forty-hour week as standard for full-time employment it could have

done so.”). In any event, we do not find the law has changed since Gomez-

Rodriguez, and we decline Mathew’s invitation to revisit the issue. Mathew’s

counsel had no duty to request the defense and was therefore not ineffective.

3. Testimonial Evidence.

Mathew next argues his counsel was ineffective for failing to object to

alleged “hearsay evidence” related by the officers to Mathew in his first recorded

interview, as well as an officer’s trial testimony alleged to contain hearsay

evidence. He also asserts the officers in the first interview “made numerous

statements indicating their personal opinion of Mathew and that they knew he

was involved in the commission of the offense.” We disagree.
15

i. Hearsay.

Mathew contends his trial counsel should have objected to the statements

conveyed to him by the officers in the interview, allegedly made by Shawn, as

well as the man with whom she was allegedly having an affair. Neither Shawn

nor the man testified at trial. Mathew argues the statements made by the officers

in the interview related evidence to the jury that the officers had other evidence of

Mathew’s guilt that was not introduced at trial. Additionally, he asserts the

statements would undermine Mathew’s theory of defense and bolster the State’s

argument that he acted with malice aforethought. The State disputes whether

the statements were hearsay, but in any event, it argues the statements were

cumulative of Mathew’s own testimony and therefore harmless. We agree.

When an out-of-court declarant’s statement is presented at trial to explain

responsive conduct, and it not offered to show the truth of the matter asserted, it

is not considered hearsay. See State v. Tompkins, 859 N.W.2d 631, 642 (Iowa

2015). Nevertheless, even if the statement is deemed to be hearsay, the

hearsay testimony will be considered cumulative and rebut the presumption of

prejudice if the hearsay statement is found to be trustworthy, based on the

trustworthiness of the corroborating testimony. See State v. Elliott, 806 N.W.2d

660, 669 (Iowa 2011). For example, the Iowa Supreme Court has found hearsay

evidence to be extremely trustworthy and its admission therefore harmless error

where other witnesses, including the defendant, “all gave testimony corroborating

the same line of testimony without objection.” Id. (discussing State v. Johnson,

272 N.W.2d 480, 482-83 (Iowa 1978)).
16

Here, even assuming the complained of testimony was hearsay, we agree

with the State that its admission was harmless. The statements challenged by

Mathew were confirmed by his own testimony. When asked on direct

examination about his overall feelings towards Hall, Mathew testified he “was

pretty pissed off” and that he probably stated to his wife that he wanted to kill

Hall. On cross examination, Mathew admitted he told Shawn, “I ought to kill

that—I’d like to kill that bitch and throw her in the river or something like that,” but

he denied saying it to Shawn’s male friend. Given that Mathew admitted at trial

he made the statements and similar ones, the alleged hearsay statements were

merely cumulative and harmless. Mathew cannot show he was prejudiced for

this reason. Consequently, he cannot show his counsel was ineffective for failing

to object to the statements.

ii. Opinion Testimony.

Mathew also argues the statements made by the officers during his first

interview alleging that they knew he was involved and that he was lying to them

were opinion evidence that should have been excluded, or, at the very least, his

trial counsel should have requested a limiting instruction directing the jury to

consider the statements for their limited purpose. Again, even assuming without

deciding his counsel should have objected to the statements made by the

officers, Mathew cannot show the required prejudice. As the State points out,

this was not a “who-done-it” case. Mathew continually denied involvement in

Hall’s death in the first interview, despite the officers’ statements and

investigative tactics. And the officers were correct; Mathew was lying and

involved in Hall’s death, to which he confessed the next day. Mathew testified at
17

trial and admitted he lied, and he had the opportunity to explain his actions to the

jury. He cannot show that had his counsel objected to the statements and had

them redacted or if his counsel had requested a limiting instruction, the outcome

of his proceeding would have been different. Consequently, he cannot show his

counsel was ineffective for failing to object to the statements.

4. Prosecutorial Misconduct.

Mathew asserts his trial counsel was ineffective for failing to object to a

statement made by the prosecutor during rebuttal, arguing the statement was an

incorrect statement of the law. During closing arguments, the prosecutor stated

in rebuttal:

Let’s look at the inconsistency of the defense theories in this
case. What he did was an accident. He acted recklessly. He
didn’t mean to kill her. You heard his own words under
oath. . . . That would be involuntary manslaughter [as set out in]
Verdict Form Number 3. On the other hand, they claim that
[Mathew] is not guilty because he was justified of his acts, because
he acted in self-defense [corresponding to] Verdict Form Number 4.
See, simply under the law, you pick a legal excuse supported by
evidence, but these are inconsistent. They simply both cannot be
true. They cannot both be true. And that’s the trouble with the
facts and the trouble with the truth. This crime scene, it only
happened one way. This isn’t a game where you pick A or B or in
this case 3 or 4. And quite simply, neither one of these defenses
as they claim is a valid legal excuse because [Mathew] intentionally
committed this crime.

A party is entitled to a new trial based on prosecutorial misconduct only if

the party has shown prejudice. See State v. Bowers, 656 N.W.2d 349, 355 (Iowa

2002). “Thus it is the prejudice resulting from misconduct, not the misconduct

itself, that entitles a defendant to a new trial.” State v. Graves, 668 N.W.2d 860,

869 (Iowa 2003) (citation omitted). A prosecutor is entitled to “some latitude”

during closing arguments in analyzing the evidence admitted at trial. See id. at
18

874. A prosecutor may argue the reasonable inferences and conclusions to be

drawn from the evidence, but may not suggest that the jury decide the case on

any ground other than the weight of the evidence introduced at trial. See id. The

prosecutor cannot assert a personal opinion, create evidence, or misstate the

law. See id.

It is true that defendants “may present diverse theories of defense, even

those as ‘inconsistent’ as insanity and alibi.” State v. Broughton, 425 N.W.2d 48,

50 (Iowa 1988). But Mathew was able to present those inconsistent theories at

trial, as well as given the opportunity to explain the inconsistency, if any. Mathew

does not point to any case law that says the prosecutor cannot point out the

inconsistencies to the jury, nor do we find any. It makes sense that a prosecutor

would be able to point out the inconsistencies, particularly where the defendant’s

credibility is at issue. Ultimately, the attack is on the inconsistent actions, not the

asserted theories. Here, Mathew testified he inadvertently smothered Hall in

self-defense. However, he is only entitled to use reasonable force to prevent

injury to himself. The State was entitled to point out that Mathew had other

options, such as exiting the van, that made his actions to stay and hold Hall to

the point of smothering her unreasonable and inconsistent with his claim his

actions were necessary to defend himself. Because we find no error in the

prosecutor’s statements, Mathew’s trial counsel had no duty to object and was

therefore not ineffective.

B. Cumulative Error.

Finally, Mathew maintains we should determine whether he was

prejudiced by the cumulative effect of trial counsel’s errors. See Clay, 824
19

N.W.2d at 500 (“Under Iowa law, we should look to the cumulative effect of

counsel’s errors to determine whether the defendant satisfied the prejudice prong

of the Strickland test.”). While we agree that consideration of cumulative

prejudice is the proper analysis, we have already concluded that most of

Mathew’s allegations did not amount to a failure to perform an essential duty.

Assuming without deciding his counsel had a duty to object to the complained of

testimonial evidence, for the reasons stated above, Mathew cannot show there

was a reasonable probability that, but for counsel’s failure to object to the

admission of the hearsay and opinion evidence, individually or cumulatively, the

result of the proceeding would have been different. Those complained of

statements were cumulative of other testimonial evidence given by Mathew at

trial. Consequently, Mathew’s trial counsel was not ineffective.

III. Conclusion.

For all of the foregoing reasons, we affirm Mathew’s conviction of second-

degree murder.

AFFIRMED.