from the Iowa District Court for Polk County, Jeanie K.
defendant appeals his conviction for murder in the second
C. Smith, State Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Tabor and McDonald, JJ.
did something bad, " Patrick Kirwan repeatedly told his
estranged girlfriend after he fatally shot their neighbor,
Mark Hruska. Kirwan stood trial for first-degree
murder-advancing justification, diminished responsibility,
and insanity as defenses. The jury returned a verdict of
second-degree murder. On appeal, Kirwan raises four issues:
(1) the verdict was not supported by the evidence, (2) the
district court wrongfully excluded his expert's written
report, (3) the jury should have been instructed on the
consequences of a not-guilty-by-reason-of-insanity verdict,
and (4) defense counsel was ineffective for not objecting to
assertions about the crime scene in the State's closing
reviewing the evidence in the light most favorable to the
State, we find substantial evidence to support the jury's
verdict. We also find counsel performed competently despite
not moving for a new trial based on the weight of the
evidence. Second, we find the exclusion of the defense
expert's report did not amount to reversible error.
Third, as the court of appeals, we cannot revisit our supreme
court's decision in State v. Becker, 818 N.W.2d
135, 137 (Iowa 2012),  which found no error in the denial of a
jury instruction explaining the consequences of an insanity
verdict. Fourth and finally, after reviewing the entirety of
the trial transcript and the exhibits, we conclude Kirwan
cannot show he was prejudiced by trial counsel's failure
to object during the State's closing argument. Rejecting
all four grounds for relief, we affirm Kirwan's
conviction for murder in the second degree.
Facts and Prior Proceedings
nineteen, Kirwan joined the Army and served a fourteen-month
tour of duty in Iraq between 2004 and 2006. After returning
home, he was diagnosed with post-traumatic stress disorder
(PTSD). Kirwan sought treatment for his PTSD through the VA
Health Care System and was hospitalized at least twice, once
in Iowa City and more recently in Des Moines.
four-and-one-half years before March 1, 2015, Kirwan had a
romantic relationship with Jennifer Kizer. They lived
together with their daughter on the east side of Des Moines.
Kirwan and Kizer socialized with their next-door neighbor,
Mark Hruska. On occasion, all three would have cookouts or
smoke marijuana together. But Kirwan harbored a darker view
of Hruska. According to Kizer: "[Kirwan] thought that
Mark was an FBI agent. He thought that Mark was watching our
house or throwing rocks at our house. He also accused me of
having a relationship with Mark."
testified Kirwan's paranoid thoughts escalated after his
stay at the Central Iowa VA Health Center in late December
2014. "Within the months of January and February, it was
really bad." The night of February 28, 2015, was
especially fitful for Kizer. Kirwan kept waking her up,
haranguing her about his suspicions. The next morning, March
1, she was "mentally drained" and decided to leave.
She called her mother to help move her belongings. Kizer left
with their daughter around 11:00 a.m. She recalled Kirwan was
"apologetic to my mom and manipulating me nicely."
Kizer called Kirwan after lunch to see how he was and he
about 5:00 p.m., Kizer received a phone call from Kirwan.
"He was screaming at me telling me, 'I did something
bad. I did something bad. You need to come here.'"
Kizer, who was holding their daughter, handed the cell phone
to her mother. Her mother asked Kirwan what he did, and he
replied: "[T]he neighbor . . . Mark's not
okay." Kizer's mother called 911 to report the
police officers noticed blood in the driveway and found
Hruska's dead body inside his entry way. The officers
noticed activity next door and asked the dispatcher to call
Kirwan. The dispatcher asked Kirwan to come out of his house
without a weapon and with his hands in the air. Kirwan asked:
"Am I going to jail?" He also said he was
"feeling pretty suicidal." Kirwan then volunteered
that he never had "anything against him" but just
wanted to "go buy some marijuana." Kirwan admitted
shooting his neighbor after they got into a fight and said:
"[H]e is no longer with us." Kirwan also told the
dispatcher: "It's just he's really an
peacefully surrendered to police, leaving his Glock .40
caliber pistol on his kitchen floor. Eight casings from the
crime scene next door matched that weapon. An autopsy
revealed Hruska's cause of death was multiple gunshot
agreed to an interview with Des Moines Police Detective Brad
Youngblut. Kirwan admitted shooting Hruska, explaining,
"[W]e haven't really gotten along, at least as
neighbors." Kirwan said he "went over there to ask
for some weed" and Hruska "kind of snapped" on
him. Kirwan told the detective: "l've never wanted
to kill somebody, but it happened." Kirwan said after
the shooting he "panicked" and went back home. He
"lit a cigarette" and "took a shower."
Kirwan said when he had smoked his last cigarette he went to
the grocery store to buy more, before calling Kizer.
State charged Kirwan with murder in the first degree, in
violation of Iowa Code sections 707.1 and 707.2 (2015). He
gave notice he intended to rely on three defenses: insanity,
diminished responsibility, and justification. His jury trial
started in early April 2016. After several days of testimony,
the jury found Kirwan not guilty of murder in the first
degree but guilty of murder in the second degree. He now
Scope and Standards of Review
review Kirwan's substantial-evidence claim, preserved by
his motions for judgment of acquittal, for errors at law.
See State v. Hawkins, 620 N.W.2d 256, 258 (Iowa
2000). We view the record in the light most favorable to the
State, and we allow 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). "Inherent in our standard of review of jury
verdicts in criminal cases is the recognition that the jury
was free to reject certain evidence, and credit other
evidence." State v. Nitcher, 720 N.W.2d 547,
556 (Iowa 2006) (quoting State v. Anderson, 517
N.W.2d 208, 211 (Iowa 1994)).
apply a de novo review to Kirwan's claims that his trial
attorney was constitutionally deficient in not moving for a
new trial based on the weight of the evidence and not
objecting during the State's closing argument. See
State v. Harris, 891 N.W.2d 182, 185 (Iowa
2017). Kirwan bears the burden of proving (1) counsel failed
to perform essential duties and (2) that failure resulted in
prejudice. See Strickland v. Washington, 466 U.S.
668, 687-88 (1984).
engage in a hybrid review when considering the district
court's exclusion of the report authored by psychologist
Steven Bruce. Generally, we review hearsay challenges for
errors at law, but when the question involves the
expert-opinion rule, we review for an abuse of discretion.
See State v. Neiderbach, 837 N.W.2d 180, 190 (Iowa
2013). Abuse of discretion is also the standard applied to
the exclusion of evidence deemed cumulative. See
Iowa R. Evid. 5.403 (allowing judges to exclude relevant but
Analysis of Kirwan's Claims
Proof of Criminal Responsibility
disputes both the sufficiency of the State's evidence and
its weight. The first challenge was preserved; the second was
not. Accordingly, Kirwan argues the second point as a claim
of ineffective assistance of counsel.
Sufficiency of the Evidence
jury acquitted Kirwan of murder in the first degree but found
the State offered proof beyond a reasonable doubt of murder