By Beth Karas - CNN.com

November 5, 2009

An Iowa jury found Thursday that a mother with a history of depression knew right from wrong when she slashed her sons' throats, killing one and leaving the other permanently scarred.

Michelle Kehoe of Coralville, Iowa, broke into tears as the jury of eight women and four men found her guilty of first-degree murder, attempted murder and child endangerment causing serious injury. The jury deliberated for just an hour and 40 minutes.

Kehoe faces a sentence of life in prison without parole.

Kehoe's attorneys presented an insanity defense, arguing that she believed she was trying to save her sons from a life of suffering when she cut their throats and her own. Her first suicide attempt occurred in 1996, according to testimony.

Prosecutors countered that Kehoe methodically planned to kill her sons and herself, but botched it. The detailed planning showed she was not legally insane, Iowa Attorney General Andrew Prosser said.

The trial's dramatic highlight came as prosecutors played an audiotape of the surviving son's police statement. The boy, now 8, described how his mother slashed his throat, then moved on to his younger brother.

"She cut me," the boy said in a high-pitched voice.

Police found him covered in dried blood in the family van the morning of October 27, 2008, near a pond east of Littleton, Iowa. Beside the van, the boy's 2-year-old brother lay dead, his throat also slashed.

The boy had locked himself in the van overnight after his mother slashed him and his younger brother the previous day and left them for dead, Prosser said.

Kehoe then walked to a nearby pond and attempted to kill herself by slashing her throat with the same weapon, a Winchester hunting knife she bought the month before, Prosser said.

She later told a defense mental health expert, Marilyn Hutchinson, that she had tried to pull out her windpipe, according to testimony.

When it became apparent she was not going to die, the prosecutor said, Kehoe staggered half a mile down the road to the nearest home and told a story she'd concocted weeks before of how a stranger abducted the family, killed her sons and tried to kill her.

But when authorities went searching for the stranger, they instead found her 7-year-old son in the car and his younger brother dead outside the driver's side.

"Do you know where you're injured at," Deputy Stephen Peterson asked the boy in the recording.

"Just my throat," the boy said.

"Who did that to you?"

"My mom."

The boy said his mother also put duct tape over his eyes, nose and mouth, but that he pulled them off after his mother left.

"She was hurting my baby brother," he said.

According to testimony Kehoe began planning the attack the previous month, buying the knife and the duct tape. She told her husband she was taking the boys to visit her mother at a nursing home.

Police found a handwritten note laying out details of the the attack. It said a man broke into the car when the family stopped at a gas station and forced them to the area where the van was found. Kehoe tried to fight him off with pepper spray, but he knocked her unconscious, the note said.

Police said Kehoe later told them she had written the note during the attack to explain what had happened to those who would find the scene.

According to testimony, Kehoe also told Hutchinson, the defense expert, that an incident a year earlier in which her car plunged into the Iowa River with the boys inside was actually a suicide attempt.

She and her sons were rescued by passers-by, who were hailed as heroes.

Iowa mom attempted suicide three times

By Beth Karas - CNN.com

November 3, 2009

INDEPENDENCE, Iowa – Michelle Kehoe suffered from severe depression for 12 years before she killed her toddler son, attempted to kill her other son and tried to kill herself in October 2008.

A psychiatrist who evaluated Kehoe for her defense to murder and attempted murder charges testified on Tuesday that Kehoe’s thinking was “so colored by depression” that she did not have the capacity to know right from wrong. She is asserting an insanity defense.

Dr. William Logan was the first defense witness. He recounted Kehoe’s childhood trauma in Missouri, where both of Kehoe's parents were alcoholics. Her parents separated when she was four and her father died when she was six years old. Between second and seventh grades, Kehoe was the victim of incest by her stepfather, her stepfather’s nephew and a neighbor.

When she finally told her mother about it, her mother sent her to live with an aunt in Iowa. She appeared to adjust well to her new life, but had her first depressive episode in the fall of 1996. She began to take an antidepressant, though it was effective for only a year or so.

Kehoe attempted suicide a number of times, the first being in March 1998. She drank “Heet” and inhaled carbon monoxide. Her next suicide attempt was a year later, in February 1999, when she checked herself into a hotel and cut her femoral artery. Kehoe was hospitalized after each suicide attempt. Her on-again/off-again therapy included up to 44 electroshock treatments.

Kehoe’s oldest son, Sean, was born in September 2001. She had miscarriages between 2003 and 2005. Her second child, Seth, was born in October 2006.

In December 2007, Kehoe’s car skidded into the Iowa River. She and her two sons were rescued by four men who witnessed it. According to Dr. Logan, Kehoe began to experience post-traumatic stress disorder after the river incident. Her condition worsened throughout 2008 following stressors that included her husband losing his job and her ill mother moving to Iowa.

From July to October 26, 2008, Kehoe had thoughts of suicide as “the only way out,” according to Dr. Logan’s evaluation of her. As in the past, she didn’t vocalize her suicidal thoughts to her husband or to those around her. Kehoe began to think that her children might be better off dead, fearing that they may have inherited her mental illness. She plotted to kill her sons and herself for two months before carrying out the acts on Sunday, October 26, 2008.

Three days after killing Seth, attempting to kill Sean and while recuperating from her own self-inflicted slash to the throat, Kehoe said that the December 2007 river incident was a suicide attempt but no one realized it at the time. She also said it was an unforgivable sin.

Jurors saw photographs of the gaping wound to Kehoe’s neck. It was a deep cut across her entire throat, through her windpipe. There were other smaller cuts across a portion of her neck.

Before Dr. Logan’s testimony, the State called its final witness, the deputy medical examiner who performed the autopsy on Seth Kehoe. Jurors saw a deep gash across half of Seth’s throat and multiple bruises on the left side of his head, ear, and left lower extremity, indicating recent impact of blunt force. Periodically, Kehoe glanced at the autopsy photos of her little boy and dabbed her eyes.

Michelle Kehoe’s murder trial opens

By Regina Zilbermints - The Daily Iowan

October 30, 2009

GRUNDY CENTER, Iowa — Michelle Kehoe, 36, sat in the Grundy County Courthouse on Thursday, rarely looking at family members as her oldest son’s voice echoed around the courtroom.

“She put duct tape over my eyes, and nose, and mouth,” Sean Kehoe, then 7 years old, said in describing his mother’s actions. “She was hurting my baby brother.”

Kehoe faces a charge of first-degree murder in the death of her younger son, Seth Kehoe, and charges of attempted murder, and child endangerment causing injury.

The jury heard Sean Kehoe’s high, thin voice telling authorities his mother bound him and his brother before cutting their necks.

His interview was recorded on Oct. 27, 2008, the day authorities found him covered in dried blood with his neck cut inside his family’s van near the Hook ’N’ Liner pond near Littleton, Iowa.

Authorities found the body of his brother, 2-year-old Seth Kehoe, nearby.

Kehoe’s defense attorney is using the insanity, or diminished-capacity, plea. But on day one of the trial, which drew national media attention, the prosecution outlined graphic details that suggested detailed preparations leading up to and following the alleged crimes — including how Kehoe may have tried to point the finger on someone else.

“In this way, the elaborate and meticulous planning of the murder of her children had begun,” said Assistant Iowa Attorney General Andrew Prosser.

Prosser told the jury that Kehoe had purchased a Winchester hunting knife and duct tape from stores around Iowa City. She also picked a secluded location to carry out the alleged crimes.

Through the 10 witnesses called Thursday, the prosecutors pieced together for the jury the alleged events of Oct. 26, 2008.

According to authorities, Michelle Kehoe and her sons left their Coralville home after she told her husband they were going to visit her mother in a Sumner, Iowa, nursing home.

Instead, she pulled her white van off the road near the pond, where prosecutors say she tried to kill both boys before cutting her own neck.

Debra Hinne of Littleton, Iowa, told the jury she heard a knock on her front door around 7:30 a.m. on Oct. 27, 2008. An injured person, later identified as Michelle Kehoe, was leaning against her front door and fell inside when Hinne opened the door. Kehoe was difficult to understand, Hinne said, so she handed her paper to write a note.

“A man killed my boys and tried to kill me,” Kehoe wrote.

As emergency responders began to arrive, several searched for the two boys.

Shawn Even, a member of the Jessup Fire Department, was a member of the first team to find the van — and Seth Kehoe’s body.

“I didn’t check the body, it was obvious,” Even said as Michelle Kehoe looked down.

He found Sean Kehoe kneeling in the driver’s seat of the van. He’d managed to remove the duct tape and hide in the vehicle, according to multiple witnesses.

The state’s final witness was Amy Pollpeter, a criminalist with the Iowa Division of Criminal Investigation. She walked the jury through the evidence found at the crime scene.

Pollpeter said investigators found blood from both boys as well as Michelle Kehoe. She also identified for the jury two pictures of Seth Kehoe’s body.

Dryer, Kehoe’s attorney, questioned few of the state’s witnesses. She did clarify with Pollpeter that a large amount of the blood at the scene came from Michelle Kehoe.

If convicted of the charges, Kehoe faces life in prison.

2-Year-Old Dead, Mother and Brother Injured

Kcrg.com

November 2, 2008

BUCHANAN COUNTY - State investigators won't reveal many details surrounding the death of a toddler and injuries suffered by his mother and brother in Littleton because police are still trying to piece together what happened.

Division of Criminal Investigation spokeswoman Jessica Lown says details about the death of Sean Kehoe and injuries to his mother Michelle and brother Seth are being kept private while investigators pursue "a variety of options."

Seth was found dead in rural Buchanan County on Monday morning. His mother and seven-year-old brother were taken to area hospitals with injuries.

Michelle Kehoe, 35, and her two sons, Seth, 2 and Sean, 7, were reported missing by husband and father Gene Kehoe on Sunday evening. He told police that they were traveling from their home in Coralville to visit family in Sumner, but they never arrived.

Officials say that around 8:00 a.m. Monday morning, an injured Michelle Kehoe went to a nearby residence to get help. She said her sons were in danger.

Seth was found dead near his family's minivan in a wooded area on Monday morning. Sean was found inside the family’s minivan with injuries. Michelle and Sean were taken to local hospitals for treatment of their injuries. Officials would not elaborate on the extent of Michelle and Sean's injuries, but did say that each required surgery and that Michelle was air lifted to Iowa City.

The two boys and the family's van were found in an area that locals call Hook and Liner Pond, near the Buchanan County town of Littleton. Allan Vanderhart, Buchanan County Attorney, said the van was pulled off the road near the pond. To his knowledge, nothing has been recovered from the pond.

Vanderhart said they are ruling nothing out. He said that no arrests have been made and no arrest warrants have been issued. Vanderhart said that authorities do not believe the public is at risk.

If you saw Michelle Kehoe or the family's white 2002 Volkswagen Eurovan between Sunday afternoon and Monday morning, you are asked to call the Buchanan County Sheriff at 319-334-2568.

Michelle and her sons were seen on Sunday at 12:30 p.m., on the surveillance camera at the Kwikstar in Jesup.

State detectives are also investigating another incident involving Michelle Kehoe and her two sons. Iowa City Police say state investigators are looking into an accident report from December of 2007. In that accident, Michelle Kehoe and her two sons Sean and Seth plunged into the Iowa River by the Park Road Bridge.

Police say Kehoe told them that her sons Sean and Seth distracted her which caused her car to plunge into the Iowa River by the Park Road Bridge. Four passers-by dove into the icy river to save her and the two boys.

Given what has happened during the last 24 hours, police reviewed that accident report to determine if there is any reason to believe that crash wasn't just an accident. But police say after reviewing the report again, they don't have any reason to not believe what Michelle Kehoe told them that day.

IN THE COURT OF APPEALS OF IOWA

July 13, 2011

STATE OF IOWA, PLAINTIFF-APPELLEE,
v.
MICHELLE LYNN KEHOE, DEFENDANT-APPELLANT.

Appeal from the Iowa District Court for Buchanan County, Bruce B. Zager, Judge.

The opinion of the court was delivered by: Doyle, J.

Michelle Kehoe appeals from her convictions for first-degree murder, attempted murder, and child endangerment resulting in serious injury. AFFIRMED.

Heard by Sackett, C.J., and Vogel, Vaitheswaran, Potterfield, Doyle and Danilson, JJ. Tabor, J., takes no part.

Michelle Kehoe appeals from her convictions for first-degree murder, attempted murder, and child endangerment resulting in serious injury. She contends her trial counsel was ineffective in three respects. She first argues Iowa Code section 701.4 (2007), which defines the legal standard for the insanity defense in Iowa, is unconstitutional, asserting violations of the Due Process and Cruel and Unusual Punishment Clauses of the state and federal constitutions. Because her trial counsel did not challenge the constitutionality of section 701.4, she asserts her trial counsel rendered ineffective assistance. Additionally, she argues her trial counsel was ineffective for failing to request a jury instruction on the consequences of a verdict of not guilty by reason of insanity and for failing to object to the marshalling instruction on attempted murder as not including malice aforethought as an element. Upon our review, we affirm.

I. Background Facts and Proceedings.

On October 26, 2008, Michelle Kehoe drove her two children, seven-year-old S.M.K. and two-year-old S.L.K., in the family's van to a secluded pond near Jessup, Iowa. One by one, she took each child from the van, covered the child's eyes, nose, and mouth with duct tape, and then slit the child's throat with a hunting knife. She then slit her own throat.

Kehoe survived her suicide attempt and regained consciousness early the next day. She made her way to a house located about a half mile away, and law enforcement officers were called. Kehoe told the officers a man had tried to kill her and her children. Based upon Kehoe's report, the officers went to the pond where Kehoe alleged she and her children were attacked. Officers found S.L.K.'s lifeless body near a bush. S.M.K. was found alive hiding in the van. S.M.K. told the officers his mother had taken him to the woods and cut him.

Michelle Kehoe was charged with first-degree murder, attempted murder, and child endangerment resulting in serious injury. At trial, her counsel essentially conceded the State's version of events was correct and relied on the insanity defense. Two experts testified in support of Kehoe's defense of insanity.

Dr. William Logan, M.D., testified that he diagnosed Kehoe with a major depressive disorder. Dr. Logan opined Kehoe was able to understand she was killing herself and her children. However, he testified that Kehoe's thought processes were so distorted by her mental illness that she was not rational.

Dr. Marilyn Hutchison, Ph.D., also testified in support of Kehoe's defense of insanity. Dr. Hutchison opined Kehoe both understood the nature and quality of her actions when she cut her children's throats and Kehoe formed a specific intent to kill her children. However, she opined Kehoe did not understand cutting her children's throats was wrong, explaining Kehoe, in her "very, very irrational thinking," believed killing her children would save them from losing a parent and from a lifetime of depression, as well as guarantee them eternal life in Heaven.

Dr. Michael Taylor, M.D., testified on behalf of the State. He agreed with Dr. Logan that Kehoe suffered from a major depressive disorder. Dr. Taylor further testified that in his opinion, on October 28, 2008, Kehoe "was fully competent, fully capable of deliberating, premeditating, forming a specific intent to kill." He opined on that day Kehoe was also fully capable of understanding the nature and quality of her acts and she "very clearly had the ability to differentiate between right and wrong."

At the close of evidence, instructions were submitted to the jury. Relevant here, the instruction concerning the elements of the insanity defense stated:

If the State has proved all of the elements of a crime, you should then determine if [Kehoe] has proved whether she was insane.

In order for [Kehoe] to establish she was insane, she must prove by a preponderance of the evidence either of the following:

1. At the time the crime was committed, [Kehoe] did not have sufficient mental capacity to know and understand the nature and quality of the acts she is accused of; or

2. At the time the crime was committed, [Kehoe] did not have the mental capacity to tell the difference between right and wrong as to the acts she is accused of.

If [Kehoe] has failed to prove either of the elements by a preponderance of the evidence, [Kehoe] is guilty.

Kehoe's trial counsel did not object to the instruction set forth above, nor did he object to the marshalling instruction on attempted murder as not including malice aforethought as an element. Additionally, Kehoe's trial counsel did not request an instruction advising the jury of "the consequences of a verdict of not guilty by reason of insanity."

The jury ultimately rejected Kehoe's asserted insanity defense and found her guilty as charged. Kehoe now appeals.

II. Discussion.

On appeal, Kehoe contends her trial counsel was ineffective in failing to

(1) challenge the constitutionality of Iowa Code section 701.4, (2) request a jury instruction on the consequences of a verdict of not guilty by reason of insanity, and (3) object to the marshalling instruction on attempted murder as not including malice aforethought as an element. We review claims of ineffective assistance of counsel de novo. State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). Although we generally preserve such claims for post-conviction relief, where the record is sufficient to address the issues, we may resolve the claims on direct appeal. Id. We find the record here is adequate to address the issues.

In order to establish a claim for ineffective assistance of counsel, Kehoe must demonstrate her trial counsel (1) failed to perform an essential duty and (2) prejudice resulted. Anfinson v. State, 758 N.W.2d 496, 499 (Iowa 2008) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)). If either element is not met, the claim will fail. Id. There is a strong presumption counsel's representation fell within the wide range of reasonable professional assistance, and Kehoe is not denied effective assistance by counsel's failure to raise a meritless issue. State v. Graves, 668 N.W.2d 860, 881 (Iowa 2003). To demonstrate prejudice, the defendant must show that "but for the counsel's unprofessional errors, the result of the proceeding would have been different." Anfinson, 758 N.W.2d at 499.

We now address Kehoe's arguments in turn.*fn1

A. Constitutionality of Iowa Code Section 701.4.

The legal standard for an insanity defense in Iowa is codified at Iowa Code section 701.4, which provides, in relevant part:

If the defense of insanity is raised, the defendant must prove by a preponderance of the evidence that the defendant at the time of the crime suffered from such a deranged condition of the mind as to render the defendant incapable of knowing the nature and quality of the act the defendant was committing or was incapable of distinguishing between right and wrong in relation to the act.

Iowa Code § 701.4; see also Anfinson, 758 N.W.2d at 501-02. The language of section 701.4 "is a codification of the rule articulated in Britain in M'Naghten's Case," known as the M'Naghten rule, which has been adopted in many other jurisdictions as the legal standard where insanity is alleged as a defense. See 4A B. John Burns, Iowa Practice Series: Criminal Procedure § 11:2, at 173 (2006) (citing R. v. McNaughten, 1843 WL 5869 (HL 1843)); see also State v. Craney, 347 N.W.2d 668, 679 (Iowa 1984).

The Iowa Supreme Court first adopted the M'Naghten rule as a common law rule in approximately 1928, see State v. Harkness, 160 N.W.2d 324, 330 (Iowa 1968), and the court continued to adhere to the rule despite numerous challenges throughout the years. See, e.g., State v. Lass, 228 N.W.2d 758, 768-69 (Iowa 1975) (declining to depart from the M'Naghten rule); State v. Arthur, 160 N.W.2d 470, 478-79 (Iowa 1968) ("We are not convinced that the M'Naghten [r]ule . . . is unworkable in Iowa, nor are we convinced that alternatives to M'Naghten are better solutions."); Harkness, 160 N.W.2d at 335-37 (declining to depart from the M'Naghten rule in favor of the American Law Institute standard for insanity). In 1976, the general assembly, endorsing the M'Naghten rule, codified the rule at section 701.4. See State v. McVey, 376 N.W.2d 585, 587 (Iowa 1985) (citing 1976 Iowa Acts ch. 1245, § 104).

Section 701.4 was later challenged in State v. Craney, 347 N.W.2d at 679-80. In Craney, the defendant asserted the trial court erred in failing to give a separate instruction on "irresistible impulse" as a defense in addition to the jury instruction setting forth section 701.4's statutory definition of insanity. Id. The court found no error, noting:

In adopting the M‟Naghten test, without any of the other alternatives and refinements which exist in this area of law, the General Assembly laid down the rule which is to be applied as the test of insanity in criminal prosecutions.

Id. at 680. The court reasoned the "entire defense of insanity is thus subsumed under the M‟Naghten test embodied in section 701.4," including any alleged irresistible impulse on the part of a defendant, and it declined to alter the rule. See id.

The constitutionally of section 701.4 was specifically challenged in State v. James, 393 N.W.2d 465, 466 (Iowa 1986). In James, the Iowa Supreme Court was asked to find section 701.4 unconstitutional as violating James's federal and state due process rights because it placed the burden of establishing an insanity defense on the defendant. James, 393 N.W.2d at 466. The court rejected James's federal challenge, noting the United States Supreme Court had expressly rejected the same argument in Leland v. Oregon, 343 U.S. 790, 798-99, 72 S. Ct. 1002, 1007, 96 L. Ed. 1302, 1307 (1952). See James, 393 N.W.2d at 466 ("In Leland . . . the court held that a state statute requiring an accused to establish an insanity defense did not violate due process. Leland is still the law."). The court also rejected James's claim under the Iowa Constitution. The court stated:

The due process guaranteed in article I, section 9 of the Iowa Constitution is identical to that in the fourteenth amendment to the United States Constitution. Normally we interpret provisions in our constitution which are similar to those in the federal constitution as being identical in scope, import and purpose. In State v. Boland, 309 N.W.2d 438, 440 (Iowa 1981) we applied this time-honored principle to the due process clauses of the federal and Iowa constitutions.

Of course no rule requires us to apply the principle which accords our constitutional provision the same interpretation which has been rendered to the companion provision in the federal constitution. [James] urges us to give Iowa's due process clause an interpretation diametrically opposed to the existing interpretation of the federal clause. But to do so would contradict more than the federal authorities; it would also contradict the clear majority of conclusions of state appellate courts interpreting state constitutions.

Id. (citing thereafter Price v. State, 412 N.E.2d 783 (Ind. 1980) (upholding the statute‟s placement of burden on the defendant in the face of both federal and state challenges); People v. Drew, 583 P.2d 1318 (Cal. 1978) (upholding the constitutionality of the burden on both state and federal grounds, finding the rule did not conflict with due process); State v. Crocker, 435 A.2d 58 (Me. 1981) (holding that assigning the defendant "the burden of proving lack of criminal responsibility is permissible under the Maine and United States Constitutions.")). The court further noted:

Ordinarily statutes regularly enacted by the legislature will be accorded a strong presumption of constitutionality and all reasonable intendments must be indulged in favor of the legislation attacked. One who challenges legislation on constitutional grounds has the burden to negate every reasonable basis upon which the statute may be sustained. Where the constitutionality of a statute is merely doubtful or fairly debatable, the courts will not interfere. Thus a statute will not be declared unconstitutional unless it clearly, palpably and without doubt, infringes the Constitution authorities.

The judicial branch of the government has no power to determine whether the legislative Acts are wise or unwise, nor has it the power to declare an Act void unless it is plainly and without doubt repugnant to some provision of the Constitution.

Id. at 467. Rejecting James's claim under the Iowa Constitution, the court explained:

The presumption of constitutionality arises, not because we do not take the constitution seriously, but because we do. All three branches of government were commissioned by the same constituency. It is the primary function of the legislative branch to declare what the law shall be. When the people acting through that branch have made such a solemn declaration, our scheme of government calls upon the judicial branch to strike it down only with profound reluctance and only when it clearly falls outside the basic charter of government. The provision challenged here clearly withstands scrutiny under this standard.

This court is in a poor position to subscribe to [James's] claim that the burden under the rule is so fundamentally unfair as to be unconstitutional. During most of our state's history we preferred the burden under the challenged rule and adopted it as a matter of common law.

Id.

1. Due Process Claim.

Here, Kehoe first argues our legislature's adoption of the M'Naghten rule is a violation of due process under the Iowa Constitution because our standard does not include a volitional prong, unlike the American Law Institute (ALI) Model Penal Code's standard for determining insanity.*fn2 Kehoe asserts section 701.4's lack of a volitional prong did not allow the jury to consider whether her mental illness prevented her from conforming her behavior to legal standards, and thus violated her due process rights under article I, section 9 of the Iowa Constitution. We disagree.

As noted above in James, we normally interpret provisions in our constitution that are similar to those in the federal constitution as being identical in scope, import and purpose. See James, 393 N.W.2d at 466; see also State v. Seering, 701 N.W.2d 655, 662 (Iowa 2005). But, we do not always follow a lockstep approach in interpreting the Iowa Constitution. "[W]hile we recognize opinions of the United States Supreme Court as "persuasive," we "jealously" protect our authority to follow our own independent approach." State v. Ochoa, 792 N.W.2d 260, 267 (Iowa 2010) (citations omitted).

In Clark v. Arizona, 548 U.S. 735, 742, 126 S. Ct. 2709, 2716, 165 L. Ed. 2d 842, 855-56 (2006), the United States Supreme Court addressed the issue of whether Arizona's insanity defense statute, which includes only part of the M'Naghten rule, violated the Due Process Clause of the U.S. Constitution. In that case, Clark was accused of killing a police officer. See Clark, 548 U.S. at 743, 126 S. Ct. at 2716, 165 L. Ed. 2d at 856. At trial, Clark did not challenge the shooting or death, but asserted an insanity defense based upon his undisputed paranoid schizophrenia at the time of the incident. See id. Arizona's insanity statute, which includes only the second part of the M'Naghten rule, required Clark to prove by clear and convincing evidence, that "at the time of the commission of the criminal act [he] was afflicted with a mental disease or defect of such severity that [he] did not know the criminal act was wrong . . . ." See id. at 744, 746, 126 S. Ct. at 2717, 2718, 165 L. Ed. 2d at 856-57, 858 (citing Ariz. Rev. Stat. § 13-502(A) (2001)). Clark was ultimately found guilty of first-degree murder. Id. at 746, 126 S. Ct. at 2718, 165 L. Ed. 2d at 858. Thereafter, Clark moved to vacate the judgment and sentence, asserting the Arizona Legislature "impermissibly narrowed" its insanity standard when it eliminated the first part of the M'Naghten rule from the statute in 1993. Id. The trial court denied Clark's motion, and the Arizona Court of Appeals affirmed Clark's conviction on his appeal, finding Arizona's "insanity scheme consistent with due process." Id. After the Arizona Supreme Court denied further review, the U.S. Supreme Court granted certiorari. Id. at 747, 126 S. Ct. at 2718, 165 L. Ed. 2d at 858.

On appeal, Clark challenged the Arizona Legislature's removal of the first part of the M'Naghten rule from the Arizona insanity test. Id. at 748, 126 S. Ct. at 2719, 165 L. Ed. 2d at 859. He argued that the full M'Naghten rule represented "the minimum that a government must provide in recognizing an alternative to criminal responsibility on grounds of mental illness or defect." Id. Additionally, he asserted that removal of the "nature and quality" language in part one of the M'Naghten rule offended a ""principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'" Id. at 748-49, 126 S. Ct. at 2719, 165 L. Ed. 2d at 859. The Supreme Court disagreed. Id.

The Court first noted that "[h]istory shows no deference to [the] M'Naghten [rule] that could elevate its formula to the level of fundamental principle, so as to limit the traditional recognition of a [s]tate's capacity to define crimes and defenses." Id. at 749, 126 S. Ct. at 2719, 165 L. Ed. 2d at 859. With states having their own various definitions of insanity, the Court remarked "it is clear no particular formulation has evolved into a baseline for due process, and that the insanity rule, like the conceptualization of criminal offenses, is substantially open to state choice." Id. at 752, 126 S. Ct. at 2722, 165 L. Ed. 2d at 862. Finding Arizona's statute did not "raise a proper claim that some constitutional minimum ha[d] been shortchanged," the Court stated:

Clark's argument of course assumes that Arizona's former statement of the M'Naghten rule, with its express alternative of cognitive incapacity, was constitutionally adequate (as we agree). That being so, the abbreviated rule is no less so, for cognitive incapacity is relevant under that statement, just as it was under the more extended formulation, and evidence going to cognitive incapacity has the same significance under the short form as it had under the long.

Id. at 753, 126 S. Ct. at 2722, 165 L. Ed. 2d at 862 (emphasis added). The Court concluded it was "satisfied that neither in theory nor in practice did Arizona's 1993 abridgment of the insanity formulation deprive Clark of due process," and it affirmed the decision of the Arizona Court of Appeals. Id. at 756, 779, 126 S. Ct. at 2724, 2737, 165 L. Ed. 2d at 864, 878. Thus, it is clear that the U.S. Supreme Court in Clark found both the full M'Naghten rule and the minimal Arizona insanity rule to comport with the requirement of due process under the United States Constitution. Id. at 753, 126 S. Ct. at 2722, 165 L. Ed. 2d at 862.

Several jurisdictions adhering to the M'Naghten rule have also found the elements of the rule to comport with due process under their state constitutions. See, e.g., Jones v. State, 648 P.2d 1251, 1259 (Okla. 1982) (holding the M'Naghten rule of legal sanity is consonant with state and federal constitutional guarantees of due process of law); Commonwealth v. Zewe, 663 A.2d 195, 201 (Pa. Super. Ct. 1995) (reaffirming its insanity statute did not violate state or federal due process requirements). Others have simply found their states' M'Naghten rule statutes meet federal due process requirements. See, e.g., Schleicher v. State, 718 N.W.2d 440, 448 (Minn. 2006); State v. Pagano, 242 S.E.2d 825, 828 (N.C. 1978); State v. Myers, 494 P.2d 1015, 1021 (Wash. Ct. App. 1972).

Upon our review, we do not find section 701.4 is plainly and without doubt repugnant to the requirements of due process. The Iowa Supreme Court and numerous other courts have found the M'Naghten test to meet constitutional guarantees. We find no persuasive reason to depart from the United States Supreme Court's analysis in Clark, and therefore we decline to interpret the Iowa Constitution guarantee of due process to afford more protection than the federal constitution with respect to the appropriate definition of sanity. See State v. Allen, 690 N.W.2d 684, 690 (Iowa 2005). We therefore reach the same conclusion, in interpreting our constitution, as that reached by the Court in Clark in interpreting the Due Process Clause of the Fourteenth Amendment to the United States Constitution. See Clark, 548 U.S. at 753, 126 S. Ct. at 2722, 165 L. Ed. 2d at 862. Kehoe's due process rights were not violated by section 701.4, and thus, her trial counsel did not render ineffective assistance by failing to challenge the constitutionality of this section under the Iowa Constitution's Due Process Clause. See Graves, 668 N.W.2d at 881 ("[T]rial counsel has no duty to raise an issue that has no merit.").

2. Cruel and Unusual Punishment Clauses.

Kehoe also contends that our legislature's adoption of the M'Naghten rule is a violation of the Cruel and Unusual Punishment Clauses, citing both the federal and Iowa constitutions. Her contention is premised on the belief that it is unconstitutional to criminally punish a person who, under the traditional M'Naghten test for determining sanity, cannot control his or her behavior. We find this argument unpersuasive.

Both the state and federal*fn3 constitutions prohibit "cruel and unusual punishment." See U.S. Const. amend. VIII; Iowa Const. art. I, § 17. Punishment may be cruel and unusual because it inflicts torture, is otherwise barbaric, or is so excessively severe it is disproportionate to the offense charged. See State v. Bruegger, 773 N.W.2d 862, 872 (Iowa 2009) ("The clause embraces a bedrock rule of law that punishment should fit the crime."); State v. Cronkhite, 613 N.W.2d 664, 669 (Iowa 2000).

Generally, a sentence that falls within the parameters of a statutorily prescribed penalty does not constitute cruel and unusual punishment. Only extreme sentences that are "grossly disproportionate" to the crime conceivably violate the Eighth Amendment.

Substantial deference is afforded the legislature in setting the penalty for crimes. Notwithstanding, it is within the court's power to determine whether the term of imprisonment imposed is grossly disproportionate to the crime charged. If it is not, no further analysis is necessary.

Cronkhite, 613 N.W.2d at 669 (citations omitted).

The United States Supreme Court and other courts have found the M'Naghten test complies with basic constitutional requirements. See, e.g., Clark, 548 U.S. at 753, 126 S. Ct. at 2722, 165 L. Ed. 2d at 862; Leland v. Oregon, 343 U.S. 790, 798-99, 72 S. Ct. 1002, 1007, 96 L. Ed. 1302, 1307 (1952). Here, the M'Naghten test was submitted to the jury for a determination of whether Kehoe proved her asserted insanity defense, and the jury rejected Kehoe‟s defense. Kehoe does not cite, nor do we find, any authority finding that punishing someone who fails to meet the M'Naghten rule constitutes cruel and unusual punishment. See State v. Herrera, 993 P.2d 854, 867 (Utah 1999) (""[N]o court has ever ruled that punishing someone who fails to meet the M'Naghten test constitutes cruel and unusual punishment.' [citation omitted.] This continues to hold true today."). To the extent Kehoe argues life imprisonment, at least, is cruel and unusual punishment for her, it must be remembered she is being punished not for her status, but rather, for her filicidal act of first-degree murder, as well as her acts of attempted murder and child endangerment. See People v. Grant, 174 P.3d 798, 813 (Colo. Ct. App. 2007). We find no violation of the prohibition against cruel and unusual punishment, and accordingly find her trial counsel did not render ineffective assistance by failing to challenge the constitutionality of this section under the state and federal Cruel and Unusual Punishment Clauses. See Graves, 668 N.W.2d at 881 ("[T]rial counsel has no duty to raise an issue that has no merit.").

B. Jury Instructions.

1. Consequences of a Not Guilty Verdict by Reason of Insanity.

Kehoe next contends her trial counsel was ineffective for failing to request a jury instruction informing the jury of the consequences of a verdict of not guilty by reason of insanity. Kehoe acknowledges Iowa cases have held such an instruction is generally inappropriate and unnecessary. See State v. Oppelt, 329 N.W.2d 17, 21 (1983); State v. Hamann, 285 N.W.2d 180, 185-96 (1979); State v. Fetters, 562 N.W.2d 770, 775 (Iowa Ct. App. 1997). She asserts that compelling reasons exist to inform the jury of such a verdict, and as a result, her attorney was ineffective for not requesting these cases be overruled. We note that "[a]lthough counsel is not required to predict changes in the law, counsel must "exercise reasonable diligence in deciding whether an issue is "worth raising.''" State v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009) (citation omitted).

In State v. Hamann, our supreme court expressly held the refusal of this type of instruction was not error, explaining:

The majority rule is that the jury should not be informed of the effect of such a verdict. Two principle reasons are given for this view. The first is that such information is irrelevant to the jury's proper function, the determination of the insanity issue. The second reason is that the information would invite a compromised verdict.

. . . . . . . [A]n instruction to the jury regarding the post-trial disposition of a defendant found not guilty by reason of insanity is irrelevant to the jury's proper function. It could only serve to confuse the jury or invite it to consider improperly defendant's post-trial disposition. A jury might improperly consider defendant's post-trial disposition even in the absence of an instruction on that subject. But this does not justify our aiding and abetting it in that role. Rather, such a possibility merely tends to illustrate the necessity of precisely informing the jury of its proper function.

Hamann, 285 N.W.2d at 186 (citations omitted). Additionally, the United States Supreme Court has considered and rejected the argument that such an instruction should be given because a juror's lack of knowledge or understanding of the consequences of a verdict of not guilty by reason of insanity might result in a decision to find the defendant guilty instead of risking the defendant's release into the community. See Shannon v. United States, 512 U.S. 573, 585-86, 114 S. Ct. 2419, 2428, 129 L. Ed. 2d at 459, 470 (1994) ("We also are not persuaded that the instruction Shannon proposes would allay the fears of the misinformed juror about whom Shannon is concerned. "[I]f the members of a jury are so fearful of a particular defendant's release that they would violate their oaths by convicting [the defendant] solely in order to ensure that he is not set free, it is questionable whether they would be reassured by anything short of an instruction strongly suggesting that the defendant, if found [not guilty by reason of insanity], would very likely be civilly committed for a lengthy period.'" (citation omitted)). Given our and the United States Supreme Court's prior precedents, and the reasons stated therein, we conclude a normally competent attorney would have found the question was not worth raising under the circumstances presented.

See State v. Fountain, 786 N.W.2d 260, 266 (Iowa 2010) (citing State v. Schoelerman, 315 N.W.2d 67, 72 (Iowa 1982)). We find Kehoe's attorney was not ineffective for failing to request the instruction be given.

2. Failing to Object to the Attempted Murder Jury Instruction.

Iowa Code section 707.11 states, in relevant part:

A person commits a class "B" felony when, with the intent to cause the death of another person and not under circumstances which would justify the person's actions, the person does any act by which the person expects to set in motion a force or chain of events which will cause or result in the death of the other person. Although section 707.11 is entitled in the code as "attempt to commit murder," the express terms of the statute indicate it does not contain a "malice aforethought" element. (Emphasis added.)

The marshalling instruction given by the trial court in this case stated:

The State must prove all of the following elements of . . . attempt to commit murder:

1. On or about October 26, 2008, [Kehoe] cut [S.M.K.] with a knife.

2. By her acts, [Kehoe] expected to set in motion a force or chain of events which would cause or result in the death of [S.M.K.].

3. When [Kehoe] acted, she specifically intended to cause the death of [S.M.K.].

If the State has proved all the elements, [Kehoe] is guilty of . . . attempt to commit murder. If the State has failed to prove any one of the elements, [Kehoe] is not guilty of . . . attempt to commit murder

No malice aforethought element was included, and Kehoe's trial counsel did not object to the element's absence.

On appeal, Kehoe asserts that because the Code has identified the crime stated in section 707.11 as "attempt to commit murder," and murder is defined in the code as occurring when "[a] person who kills another person with malice aforethought either express or implied commits murder," her attorney was ineffective for not objecting to the marshalling instruction that did not include a malice aforethought element. See Iowa Code §§ 707.1, 707.11 (emphasis added). We disagree.

In 1976, the legislature enacted a "complete revision of the substantive criminal laws." 1976 Iowa Acts ch. 1245. The legislature created a new section entitled "attempt to commit homicide," which replaced "assault with intent to commit murder." See id. § 711; State v. Braggs, 784 N.W.2d 31, 35 (Iowa 2010). However, when the 1979 Iowa Code was printed, the code editor retained the word "murder" in the title of the section, rather than "homicide" as stated by the legislative act.

As the Iowa Supreme Court has explained, a headnote is "no part of the statutory law of the State, and its inclusion in the information in the instant case adds nothing to the information." State v. Chenoweth, 226 Iowa 217, 220, 284 N.W. 110, 112 (1939). As to section 707.11, the statute only requires "(1) a specific intent to cause the death of another and (2) an overt act in furtherance of the required specific intent" to be guilty of attempted murder. See State v. Young, 686 N.W.2d 182, 185 (Iowa 2004); see also Iowa Code § 707.11.

Malice aforethought is a not required element under the express language of the statute.

Because malice aforethought is not an element of the crime of attempt to commit murder, we find Kehoe's trial counsel had no duty to object to the instruction. See Graves, 668 N.W.2d at 881 ("[T]rial counsel has no duty to raise an issue that has no merit."). We find her counsel was not ineffective for failing to object to the instruction.

III. Conclusion.

For the foregoing reasons, we affirm Kehoe's convictions for first-degree

murder, attempted murder, and child endangerment resulting in serious injury.

AFFIRMED.