State of Iowa v. Denise Leone Frei , 2013 Iowa Sup. LEXIS 22 ( 2013 )

IN THE SUPREME COURT OF IOWA
No. 11–1516
Filed March 8, 2013
STATE OF IOWA,
Appellee,
vs.
DENISE LEONE FREI,
Appellant.
Appeal from the Iowa District Court for Iowa County, Denver D.
Dillard, Judge.
Defendant appeals from her conviction for first-degree murder.
AFFIRMED.
Wallace L. Taylor, Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, Thomas S. Tauber and
Douglas D. Hammerand, Assistant Attorneys General, Timothy D.
McMeen, County Attorney, and Lewis C. McMeen, Assistant County
Attorney, for appellee.
2
HECHT, Justice.
The defendant killed her longtime boyfriend. At trial she raised a
defense of justification based on evidence of battered women’s syndrome
and a defense of insanity based on various diagnoses including
depression and an anxiety disorder. She was convicted of first-degree
murder. On appeal, she alleges the district court erred in denying her
motion for mistrial and by giving improper jury instructions on
justification, insanity, and reasonable doubt. Finding no error in the
record, we affirm the conviction.
I. Background Facts and Proceedings.
In response to a 911 call shortly before 2:00 a.m. on July 19,
2009, police found Denise Frei sitting on the front porch of the home she
shared with Curtis Bailey in Marengo, Iowa.1 She had blood on her shirt
and hands. Inside, Bailey’s dead body lay on the living room floor,
beaten severely with blunt objects. Frei told the police she had been
upstairs and overheard a drug deal “gone bad” and then found Bailey’s
body. Later, however, she admitted that she had killed Bailey with the
help of her eighteen-year-old son and his girlfriend.
Frei was charged with first-degree murder. At trial, she relied on
defenses of justification and insanity. She testified that Bailey subjected
her to humiliating and degrading emotional, verbal, and sexual abuse
and that he threatened to kill her children and grandchild if she ever left
him. She described Bailey as an extremely jealous and controlling
person who checked her sales receipts after shopping trips to see if her
purchases had been rung up by a male cashier. If the receipts evidenced
the involvement of a male cashier, Bailey forced her to return the items
1Frei described Bailey as her common law husband.
3
for a refund. He allegedly cut her off from her family, including her adult
sons and her grandchild. Frei testified that she had tried to leave Bailey
at least once and had talked about it on other occasions but that he had
threatened to slit the throats of her children and grandchild if she did,
and that he had told her that even if she killed herself, he would still
harm her family. She testified that she tried to kill Bailey on three
previous occasions by giving him doses of morphine and insulin.
Frei devised a plan in early July 2009 to get Bailey drunk enough
to pass out and then smother him by wrapping his face in Saran Wrap.
She believed that if she suffocated him with the plastic wrap it would
leave no marks and it would appear Bailey had died as a consequence of
an overdose or heart attack. She sought the help of her eighteen-year-
old son, Jacob, and his girlfriend, Jessica. Frei told Bailey that she and
Jessica would engage in sex acts together while he watched if he would
drink a shot of vodka for each sex act they performed. Bailey agreed
and, on the morning of Saturday, July 18, told his work acquaintances
about the ménage à trois that was to take place that night.
That night, Frei and Jessica followed their plan, serving Bailey
shots of vodka until he passed out in the living room. Jessica
summoned Jacob to the house, and Frei bound Bailey’s wrists with
plastic wrap. As his face was being wrapped, however, Bailey woke up
and struggled to free himself. Frei, Jacob, and Jessica each grabbed
objects nearby, including a rock and a candy dish, and struck Bailey
approximately thirty times until he died. The three cleaned up the scene,
and Jacob and Jessica left the house. Frei called 911 and reported a
false story about the circumstances surrounding Bailey’s death. She told
the police that Bailey died during a drug deal gone bad—that while she
was upstairs he had let two men into the house to purchase drugs and
4
that she heard them struggle and came down to find Bailey dead. When
she later learned that her son had confessed his participation in the
incident, she returned to the police station and admitted her own
involvement.
Frei offered the trial testimony of Dr. Marilyn Hutchinson, who
testified that Frei suffered from depression, posttraumatic stress
syndrome (PTSD), battered women’s syndrome (BWS),2 and possibly an
anxiety disorder. Dr. Hutchinson explained that she believed Frei had
endured a tremendous amount of sexual and emotional abuse from
Bailey, childhood sexual and physical abuse, and adult physical abuse
from her former husband. She opined this extensive history of abuse
distorted Frei’s thoughts and feelings and impacted her ability to make
rational decisions. Dr. Hutchinson further testified that at the time of
the murder, Frei would have had the ability to distinguish between right
and wrong, but that Frei would not have understood right and wrong the
way people without these mental health issues understand them. In
particular, Dr. Hutchinson opined that Frei would have understood it
was legally wrong to kill Bailey but would have also believed that it was
right to protect her children from his threat to kill them.
The State offered expert testimony from Dr. Michael Taylor, who
concluded that Frei did not suffer from any psychiatric disorder and that
she understood the nature and quality of her acts when she plotted to
kill Bailey. He specifically rejected Dr. Hutchinson’s posttraumatic stress
syndrome disorder diagnosis, noting Frei had denied all of the normal
2In this case, Frei’s expert testified that she believed Frei suffered from “battered
women’s syndrome.” This condition is also sometimes referred to as “battered woman
syndrome,” “battered person syndrome,” or “battered spouse syndrome.” For clarity, we
use the term utilized by the expert and the parties in this case.
5
symptoms of PTSD during his interview with her. The State also relied
on Frei’s own admissions to disprove her justification defense—
specifically that she planned Bailey’s death for a week-and-a-half to two
weeks and that she tried to make it look like an accidental death rather
than a murder. The State also introduced evidence that she made
statements suggesting proceeds from life insurance on Bailey’s life would
allow her to pay off debts on the restaurant she owned with Bailey.
The jury found Frei guilty. On appeal, she raises four issues: that
the district court erroneously (1) instructed the jury on the elements of a
justification defense, (2) instructed the jury that the defendant bore the
burden to prove an insanity defense, (3) instructed the jury on the
definition of reasonable doubt, and (4) denied Frei’s motion for mistrial
after the prosecution violated a ruling in limine during opening
statements.
II. Scope of Review.
We review challenges to jury instructions for correction of errors at
law. State v. Marin, 788 N.W.2d 833, 836 (Iowa 2010); see also Iowa R.
App. P. 6.907. “ ‘We review the related claim that the trial court should
have given the defendant’s requested instructions for an abuse of
discretion.’ ” Marin, 788 N.W.2d at 836 (quoting Summy v. City of Des
Moines, 708 N.W.2d 333, 340 (Iowa 2006)). “Error in giving or refusing
to give a particular instruction warrants reversal unless the record shows
the absence of prejudice.” Id. “ ‘When the error is not of constitutional
magnitude, the test of prejudice is whether it sufficiently appears that
the rights of the complaining party have been injuriously affected or that
the party has suffered a miscarriage of justice.’ ” Id. (quoting State v.
Gansz, 376 N.W.2d 887, 891 (Iowa 1985)). When the alleged
instructional error is of constitutional magnitude, the burden is on the
6
State to prove lack of prejudice beyond a reasonable doubt. State v.
Hanes, 790 N.W.2d 545, 550 (Iowa 2010). We review a trial court’s
denial of a motion for mistrial for an abuse of discretion. State v. Greene,
592 N.W.2d 24, 30 (Iowa 1999).
III. Discussion.
A. Jury Instructions on Justification Defense. Iowa Code
section 704.3 (2011) prescribes the elements of a justification defense.
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.
Iowa Code § 704.3.
“Reasonable force” is defined as
that force and no more which a reasonable person, in like
circumstances, would judge to be necessary to prevent an
injury or loss and can include deadly force if it is reasonable
to believe that such force is necessary to avoid injury or risk
to one’s life or safety or the life or safety of another, or it is
reasonable to believe that such force is necessary to resist a
like force or threat. Reasonable force, including deadly force,
may be used even if an alternative course of action is
available if the alternative entails a risk to life or safety, or
the life or safety of a third party, or requires one to abandon
or retreat from one’s dwelling or place of business or
employment.
Id. § 704.1.
When interpreting and applying these statutes, we have explained
that “the test of justification is both subjective and objective. The actor
must actually believe that he is in danger and that belief must be a
reasonable one.” State v. Elam, 328 N.W.2d 314, 317 (Iowa 1982). Frei
takes issue with this characterization of the justification defense. She
contends the “objective” element of the justification—requiring the
defendant to act and perceive as a reasonable person—is incompatible
with the requirement that the State must prove the defendant possessed
7
the level of culpability required to support a conviction for the charged
crime. She asserts that if the defendant possesses the subjective belief
that her actions are justified, then “the objective reasonableness of that
belief should not matter.” Accordingly, she contends the district court
erred when it rejected her proposed instruction defining “reasonable
force” as “only the amount of force a reasonable person or a person with
the Defendant’s alleged degree of mental illness would find necessary to
use under the circumstances.” Frei contends the district court further
erred in denying her requested justification instruction, which would
have permitted the jurors to acquit her if they found she subjectively
believed her actions were justified without considering whether her
perception of danger or belief regarding the availability of an alternative
course of action was reasonable. The given justification instruction, by
contrast, retained an objective reasonableness requirement.
Frei contends the decision of our court of appeals in State v. Price
supports her contention that the standard should be subjective. See
State v. Price, No. 07–1659, 2008 WL 5234351 (Iowa Ct. App. Dec. 17,
2008). In its discussion of the admissibility of BWS evidence in that
case, the court noted:
[W]e think the expert’s testimony would have given the jury
information that it needed to understand the significance
and meaning of the victim’s conduct and to understand the
defendant’s reaction to that conduct . . . . Furthermore, we
agree with those jurisdictions that have concluded that while
evidence of battered women’s syndrome is not in and of itself
a defense, “its function is to aid the jury in determining
whether a defendant’s fear and claim of self-defense are
reasonable.”
Id. at *6 (citation omitted) (quoting State v. Edwards, 60 S.W.3d 602, 613
(Mo. Ct. App. 2001)).
8
While the decision in the unreported Price decision is not binding
authority for this court, it appears to be the only decision of an appellate
court in the state addressing the admissibility of expert testimony about
BWS offered by a defendant in furtherance of her justification defense.3
We note the conclusion reached by the court of appeals in Price that such
evidence is relevant to both the defendant’s subjective belief and the
reasonableness of her belief is consistent with the results reached by
several other courts across the country. See, e.g., People v. Humphrey,
921 P.2d 1, 9 (Cal. 1996); Smith v. State, 486 S.E.2d 819, 822 (Ga.
1997); State v. Hennum, 441 N.W.2d 793, 798 (Minn. 1989); State v.
Kelly, 478 A.2d 364, 376–77 (N.J. 1984); State v. Seeley, 720 N.Y.S.2d
315, 321 (Sup. Ct. 2000); State v. Koss, 551 N.E.2d 970, 973–74 (Ohio
1990). The decisions of these courts have not eliminated the
reasonableness requirement from a justification defense when a
defendant relies on BWS. But see Bechtel v. State, 840 P.2d 1, 11 (Okla.
Crim. App. 1992) (modifying jury instructions, in BWS cases, to eliminate
requirement that defendant “reasonably” believe use of deadly force is
necessary to avoid imminent danger). Instead, these cases have
examined the appropriate level of contextualization for the
reasonableness inquiry. See Smith, 486 S.E.2d at 823. As applied to a
battered woman, an appropriately specific reasonableness inquiry might
consider objective facts about the batterer, any history of violence, any
failed attempts to escape abuse, and any other facts relevant under the
3We have twice addressed the admission of testimony regarding battered
women’s syndrome in criminal trials, but neither case involved a defendant’s offer of
BWS evidence. Instead, the evidence was used by the State against the defendant—to
explain an abuse victim’s recantation of an accusation, State v. Griffin, 564 N.W.2d 370,
374 (Iowa 1997), or to prove the defendant confined the victim against her will, State v.
Rodriquez, 636 N.W.2d 234, 246 (Iowa 2001).
9
circumstances. Further, expert testimony can aid in cautioning jurors
that the behavior of battered women should not be lightly dismissed as
inherently unreasonable. These cases do not, however, establish that an
appropriate reasonableness inquiry extends only as far as a specific
defendant’s actual, subjective beliefs regarding the surrounding
circumstances. Accordingly, Frei’s reliance on Price, and by extension
the authorities from other jurisdictions, does not support her argument
for a purely subjective test for justification.
The State argues that the jury instructions given by the court in
this case accurately express the legal elements of a justification defense
as provided by sections 704.1 and 704.3 and interpreted by our prior
caselaw. We agree. Frei’s proposal for an entirely subjective test of
justification is incompatible with the clear mandate of sections 704.1 and
704.3 requiring the actions and perceptions of the defendant be tested
against a reasonableness standard. The district court did not err in
instructing the jury as it did.
B. Reasonable Doubt Instruction. Frei requested a jury
instruction on reasonable doubt that read as follows:
The burden is on the State to prove Denise Frei guilty
beyond a reasonable doubt.
A “reasonable doubt” is such a doubt as fairly and naturally
arises in our mind and by reason of which you cannot say
that you have a full and abiding conviction of the guilt of the
defendant; and if, after considering all of the circumstances
as disclosed by the evidence, you find your mind wavering or
vacillating, then you have a reasonable doubt, and the
defendant is entitled to the benefit of such doubt and you
must acquit her. A reasonable doubt may arise from the
evidence in the case or it may arise from a lack or failure of
evidence produced by the State, and it must be such a doubt
as would cause a reasonable, prudent and considerate man
to pause and hesitate before acting in the graver and more
important affairs of life. But you should not ignore credible
evidence to hunt for doubt, and you should not entertain
10
such doubt as is purely imaginary or fanciful or based on
groundless conjecture. If, after a careful and impartial
consideration of all evidence in the case, you have a full and
abiding conviction of the guilt of the defendant, then you are
satisfied beyond a reasonable doubt, otherwise you are not
satisfied beyond a reasonable doubt.4
The district court declined to give the instruction requested by
Frei, electing instead to give the following instruction on the subject:
The burden is on the State to prove Denise Leone Frei guilty
beyond a reasonable doubt.
A reasonable doubt is one that fairly and naturally arises
from the evidence or lack of evidence produced by the State.
If, after a full and fair consideration of all the evidence, you
are firmly convinced of the defendant’s guilt, then you have
no reasonable doubt and you should find the defendant
guilty.
But if, after a full and fair consideration of all the evidence or
lack of evidence produced by the State, you are not firmly
convinced of the defendant’s guilt, then you have a
reasonable doubt and you should find the defendant not
guilty.5
Frei contends the instruction given by the district court violated her due
process rights.
4This proposed instruction was derived from language found in one of the
“Uniform Jury Instructions” drafted by a special committee of the Iowa State Bar
Association (ISBA) and published by that association prior to 2004.
5This instruction given by the district court was derived from language found in
the version of the ISBA’s uniform instruction on reasonable doubt extant from 2004 to
2009. By the time of the trial of this case in August 2011, the ISBA’s uniform
instruction on reasonable doubt had been revised to include an additional paragraph
which provides:
A reasonable doubt is a doubt based upon reason and common sense,
and not the mere possibility of innocence. A reasonable doubt is the
kind of doubt that would make a reasonable person hesitate to act. Proof
beyond a reasonable doubt, therefore, must be proof of such a
convincing character that a reasonable person would not hesitate to rely
and act upon it. However, proof beyond a reasonable doubt does not
mean proof beyond all possible doubt.
Iowa Crim. Jury Instruction 100.10 (March 2009).
11
We begin our analysis by noting the clearly established proposition
that “the Due Process Clause protects the accused against conviction
except upon proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged.” In re Winship, 397 U.S.
358, 364, 90 S. Ct. 1068, 1073, 25 L. Ed. 2d 368, 375 (1970). “ ‘[T]aken
as a whole, the instructions [must] correctly conve[y] the concept of
reasonable doubt to the jury.’ ” Victor v. Nebraska, 511 U.S. 1, 5, 114
S. Ct. 1239, 1243, 127 L. Ed. 2d 583, 590 (1994) (quoting Holland v.
United States, 348 U.S. 121, 140, 75 S. Ct. 127, 138, 99 L. Ed. 150, 167
(1954)). The constitutional question presented here “is whether there is
a reasonable likelihood that the jury understood the instructions to allow
conviction based on proof insufficient to meet the Winship standard.” Id.
at 6, 114 S. Ct. at 1243, 127 L. Ed. 2d at 591.
Courts have struggled, however, in settling upon a serviceable
definition of the “reasonable doubt” standard. The choice of words
accurately communicating the nature and extent of certitude jurors must
have a defendant’s guilt in order to vote for a conviction is not an easy
project. The Due Process Clause provides no definitional guidance as it
requires no “particular form of words be used in advising the jury of the
government’s burden of proof.” Id. at 5, 114 S. Ct. at 1242–43, 127
L. Ed. 2d at 590 (noting “[a]lthough this standard is an ancient and
honored aspect of our criminal justice system, it defies easy
explication.”). Yet, Supreme Court jurisprudence teaches that a
minimum definitional threshold for the standard does exist. For
example, a jury instruction characterizing reasonable doubt as “such
doubt as would give rise to grave uncertainty” and “an actual substantial
doubt” amounting to a “moral certainty” set the bar for the State’s
burden of proof too low and fell below the due process threshold. Cage v.
12
Louisiana, 498 U.S. 39, 41, 111 S. Ct. 328, 329–30, 112 L. Ed. 2d 339,
342 (1990) (per curiam, overruled in part on other grounds by Estelle v.
McGuire, 502 U.S. 62, 72 n.4, 112 S. Ct. 475, 482 n.4, 116 L. Ed. 2d
385, 399 n.4 (1991)).
Other formulations of the reasonable doubt standard have survived
due process scrutiny. In Victor, the Supreme Court found no due
process violation resulted from jury instructions in two consolidated
cases. In one of these cases, the California state trial court’s instructions
defined reasonable doubt as follows:
It is not a mere possible doubt; because everything relating
to human affairs, and depending on moral evidence, is open
to some possible or imaginary doubt. It is that state of the
case which, after the entire comparison and consideration of
all the evidence, leaves the minds of the jurors in that
condition that they cannot say they feel an abiding
conviction, to a moral certainty, of the truth of the charge.
Victor, 511 U.S. at 7, 114 S. Ct. at 1244, 127 L. Ed. 2d at 591–92
(citation omitted). In the other consolidated case, a Nebraska state trial
court defined reasonable doubt as follows:
“Reasonable doubt” is such a doubt as would cause a
reasonable and prudent person, in one of the graver and
more important transactions of life, to pause and hesitate
before taking the represented facts as true and relying and
acting thereon. It is such a doubt as will not permit you,
after full, fair, and impartial consideration of all the
evidence, to have an abiding conviction, to a moral certainty,
of the guilt of the accused. At the same time, absolute or
mathematical certainty is not required. You may be
convinced of the truth of a fact beyond a reasonable doubt
and yet be fully aware that possibly you may be mistaken.
You may find an accused guilty upon the strong probabilities
of the case, provided such probabilities are strong enough to
exclude any doubt of his guilt that is reasonable. A
reasonable doubt is an actual and substantial doubt
reasonably arising from the evidence, from the facts or
circumstances shown by the evidence, or from the lack of
evidence on the part of the State, as distinguished from a
doubt arising from mere possibility, from bare imagination,
or from fanciful conjecture.
13
Id. at 18, 114 S. Ct. at 1249, 127 L. Ed. 2d at 598 (citation omitted). The
Supreme Court concluded both of these reasonable doubt formulations
passed due process muster. Id. at 22–23, 114 S. Ct. at 1252, 127
L. Ed. 2d at 601.
Frei contends the reasonable doubt instruction given by the
district court in this case fell short of the applicable due process
standard because it failed to “ ‘impress[] upon the factfinder the need to
reach a subjective state of near certitude of the guilt of the accused.’ ”
Id. at 15, 114 S. Ct. at 1247, 127 L. Ed. 2d at 596 (quoting Jackson v.
Virginia, 443 U.S. 307, 315, 99 S. Ct. 2781, 2786, 61 L. Ed. 2d 560, 571
(1979)). In particular, she posits that the “firmly convinced” formulation
of reasonable doubt instructed upon in this case provided no real
guidance to the jurors as to the nature or quality of doubt that would
require an acquittal, and thus allowed them to convict her with a lesser
quantum of certainty than is required by the Federal Constitution.6
We approved a very similar formulation of the reasonable doubt
standard in State v. McFarland, 287 N.W.2d 162, 163 (Iowa 1980). The
relevant instructions in McFarland authorized the jury to convict the
defendant only if they were “firmly and abidingly convinced” of the
defendant’s guilt. Id. We concluded the instructions sufficiently “set out
an objective standard for measuring the jurors’ doubts.” Id.
6Frei also suggests “this Court can interpret the due process clause of the Iowa
Constitution to require the use of Ms. Frei’s proposed instruction, even if the U.S.
Supreme Court’s interpretation of the federal Constitution would not require it.” She
makes no argument however, suggesting a different interpretation is mandated under
the corollary due process clause in the Iowa Constitution. “As a result, prudential
concerns ordinarily mean that where an argument that the Iowa Constitution should be
construed differently than the United States Constitution is not presented, we assume
for purposes of the case that the provisions should be interpreted in an identical
fashion.” State v. Feregrino, 756 N.W.2d 700, 703–04 n.1 (Iowa 2008).
14
Since Victor was decided in 1994, the “firmly convinced” standard
has achieved extensive recognition and is likely the formulation of the
reasonable doubt standard most widely approved by American jurists,
academics, and litigants. Lawrence M. Solan, Refocusing the Burden of
Proof in Criminal Cases: Some Doubt About Reasonable Doubt, 78 Tex. L.
Rev. 105, 145 (1999) (“The superiority of the firmly convinced instruction
comes not from its semantic fidelity to the reasonable doubt standard
but from its greater success in promoting important values.”); see also
Jon O. Newman, Beyond “Reasonable Doubt,” 68 N.Y.U. L. Rev. 979,
990–91 (1993); Irwin A. Horowitz, Reasonable Doubt Instructions, 3
Psychol. Pub. Pol’y & L. 285, 297–98 (1997) (discussing the superiority of
the firmly convinced standard as evidenced by statistical analysis); A
Handbook of Criminal Terms 574 (Bryan A. Garner ed., 2000); Black’s
Law Dictionary 1380 (9th ed. 2009) (defining reasonable doubt as “the
doubt that prevents one from being firmly convinced of a defendant’s
guilt, or the belief that there is a real possibility that a defendant is not
guilty.”).
In her concurring opinion in Victor, Justice Ginsburg stoutly
endorsed a reasonable doubt instruction proposed by the Federal
Judicial Center, characterizing it as “clear, straightforward, and
accurate.” 511 U.S. at 27, 114 S. Ct. at 1253, 127 L. Ed. 2d at 603
(Ginsburg, J., concurring in part and concurring in judgment) (quoting
Federal Judicial Center (FJC), Pattern Criminal Jury Instructions, at 17-
18 (instruction 21)). That instruction embraced firmly convinced
language comparable to that used in the instruction challenged in this
case: “Proof beyond a reasonable doubt is proof that leaves you firmly
convinced of the defendant’s guilt. . . . If, based on your consideration of
the evidence, you are firmly convinced that the defendant is guilty of the
15
crime charged, you must find him guilty.” Id. Six federal courts of
appeals have approved the firmly convinced standard, finding that it
accurately expresses the degree of certainty required to find a defendant
guilty beyond a reasonable doubt. See, e.g., United States v. Rodriguez,
162 F.3d 135, 146 (1st Cir. 1998); United States v. Conway, 73 F.3d 975,
980 (10th Cir. 1995); United States v. Reese, 33 F.3d 166, 172 (2d Cir.
1994); United States v. Williams, 20 F.3d 125, 131–32 (5th Cir. 1994);
United States v. Taylor, 997 F.2d 1551, 1555–56 (D.C. Cir. 1993); United
States v. Velasquez, 980 F.2d 1275, 1278 (9th Cir. 1992).
Numerous state courts have also adopted the FJC pattern
instruction and expressly approved its firmly convinced language. State
v. Portillo, 898 P.2d 970, 974 (Ariz. 1995) (adopting the FJC firmly
convinced standard in all criminal cases); Winegeart v. State, 665 N.E.2d
893, 902 (Ind. 1996) (approving the FJC firmly convinced standard and
recommending its use in Indiana courts, “preferably with no
supplementation or embellishment”); State v. Reyes, 116 P.3d 305, 314
(Utah 2005) (requiring that Utah trial courts use the FJC instruction); cf.
Joyner-Pitts v. State, 647 A.2d 116, 122–23 (Md. Ct. Spec. App. 1994)
(quoting the FJC “firmly convinced” instruction with approval).
We find no reversible error in the “firmly convinced” formulation
used by the district court in this case. “Firmly” means “steadfastly,”
“resolutely,” “soundly,” “solidly,” and “strongly.” Webster’s Third
International Dictionary 856 (unabr. ed. 2002). Likewise, “firm” is defined
as “immovable,” “fixed,” “settled,” “not easily moved, shaken, excited, or
disturbed.” Id. The word “firmly” is not arcane or obscure, but rather is
a plain, well-understood word commonly used in modern speech. We
believe it adequately expressed—within the due process parameters
articulated in Victor—the extent of certitude the jury must possess to
16
convict a defendant of a crime in this state.7 Accordingly, we conclude
the district court did not err when it instructed the jury on reasonable
doubt.
C. Burden of Proof on Insanity Defense. Frei proposed a jury
instruction allocating to the State the burden of proving Frei was not
insane at the time of Bailey’s death. Arguing in favor of the proposed
jury instruction and in opposition to the instruction actually given by the
district court in this case, Frei’s counsel made the following record:
I know the court’s concerned about the fact that we placed
insanity as an element the State has to disprove, and I think
due process has to prove that notwithstanding the
legislature to turn that upside down with the burden on the
Defendant. But if the court believes that the legislature has
that power, but we would propose that that be removed from
the marshaling instructions that that would be the proper
instruction that should be given.
Frei argues on appeal that the district court’s allocation to her of
the burden of proving insanity violated her right to equal protection of
the law. However, the State contends error was not preserved because
Frei raised no equal protection argument in the district court. Frei
responds that she raised “constitutional” concerns to the court and
raised a specific equal protection challenge in her motion for a new trial.
As we have noted, the record made by Frei’s counsel on the jury
instructions advanced only a due process argument, not the equal
protection argument she now asserts. Issues raised for the first time in
posttrial motions are not sufficient to preserve error. State v. Stone, 764
7Our determination that the district court did not err in using the “firmly
convinced” formulation to define the reasonable doubt standard in this case should not
be viewed as a rejection of any other formulation expressing in equivalent terms the
state’s burden of proof.
17
N.W.2d 545, 550 (Iowa 2009). Accordingly, this issue has not been
preserved for our review.
D. Denial of Motion for Mistrial. When Frei first spoke with
police, she told them she believed Bailey had died during a drug deal.
She told them two men had come to the house to conduct a drug
transaction, that she heard Bailey use racial slurs referring to one of the
men, and that she heard one of the men speak with an accent she did
not recognize.
Frei moved in limine to exclude any reference at trial to the fact
that she used racial slurs in reporting the story to the police or to the
fact that she had claimed the fictitious drug dealers belonged to any
particular racial or ethnic group. The court granted the motion, ruling
that the State should not reveal to the jury any racial or ethnic slurs
spoken by Frei, but that “the State may refer to the Defendant
attempting to blame other persons without reference to ethnic or racial
characteristics.”
During opening statements, the prosecution twice referred to the
defendant blaming “Hispanic” drug dealers for Bailey’s death.
Specifically the prosecutor told the jurors that Frei “not only . . . said it
was a drug deal gone bad, she seemed to blame it on the drug dealers, at
least one sounded like he was Hispanic.” The prosecutor’s opening
statement also asserted that after Frei’s original plan failed and Bailey
was beaten to death, “then the plan became let’s blame Hispanic drug
dealers for [Bailey’s] death.” Frei moved for a mistrial.
The district court inquired of the prosecutor during the ensuing
colloquy on the motion for mistrial whether it was really worth it to him
to try to correct the error and run the risk of having any guilty verdict
overturned on appeal. After hearing the arguments of counsel, the court
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concluded the prosecutor’s statements had violated the order in limine
but denied the motion “somewhat reluctantly.” The parties discussed
whether a curative instruction should be given, but the district court
declined to give one. When the trial resumed, the prosecutor made the
following statement to the jury:
During opening statement there was a reference made the
Defendant blamed others for a drug deal, and Hispanics. It
should have just been Defendant blamed others. I was
incorrect in Hispanics. It was Defendant blamed others.
Frei contends the district court abused its discretion in denying
her motion for mistrial. As it is in the best position to appraise the effect
of any alleged misconduct, we allow the district court broad discretion in
deciding whether to grant a mistrial. Fry v. Blauvelt, 818 N.W.2d 123,
132 (Iowa 2012). To establish reversible error on this issue, Frei must
show the violation of the limine order resulted in prejudice that deprived
her of a fair trial. State v. Greene, 592 N.W.2d 24, 32 (Iowa 1999). “The
party claiming prejudice bears the burden of establishing it.” State v.
Anderson, 448 N.W.2d 32, 33 (Iowa 1989).
Frei contends opening statements strongly influence jurors’
impressions of the case even before they hear evidence. Noting that her
justification defense depended on the jury’s perception of her credibility,
Frei posits that the prosecutor’s disclosure during his opening statement
of Frei’s false initial report of the incident blaming Hispanics for the
murder was especially prejudicial. Upon our review of the record, we
conclude the prosecution’s remarks and subsequent correction of them
did not produce such prejudice as would deny Frei a fair trial. We
acknowledge the importance of opening statements in the trial process
and do not diminish the importance of faithful observance of limine
orders by prosecutors. However, the prosecutor’s attribution to Frei of
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statements blaming Hispanics for the murder and his later attempt to
“correct” his error did not include racial slurs or other inflammatory
language. There were no further violations of the court’s limine order
during the remainder of the trial. On this record, we conclude the
prosecutor’s statements did not deprive Frei of a fair trial. Accordingly,
the district court did not abuse its discretion in denying Frei’s motion for
mistrial and we therefore affirm on this issue.
IV. Conclusion.
For the reasons stated above, we affirm Frei’s conviction.
AFFIRMED.