IN THE SUPREME COURT OF IOWA
No. 12–0255
Filed August 23, 2013
STATE OF IOWA,
Appellee,
vs.
CHRISTOPHER CRAIG THOMPSON,
Appellant.
Appeal from the Iowa District Court for Allamakee County, John J.
Bauercamper, Judge.
Defendant appeals his conviction after a jury found him guilty of
second-degree murder. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,
Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget A. Chambers and
Andrew B. Prosser, Assistant Attorneys General, and Jill M. Kistler,
County Attorney, for appellee.
2
WATERMAN, Justice.
An Allamakee County jury found defendant, Christopher Craig
Thompson, guilty of second-degree murder for the death of his live-in
girlfriend, Angela Gabel. He fatally shot her twice in the head after she
made an obscene gesture from inside a parked car where she had
retreated during an argument. He appeals on four grounds, arguing the
district court erred by (1) failing to submit an instruction on the lesser
included offense of voluntary manslaughter; (2) excluding hearsay
evidence relevant to his diminished-capacity defense based on his
posttraumatic stress disorder (PTSD); (3) declining to obtain and review
the deceased victim’s mental health records for exculpatory information
under State v. Cashen, 789 N.W.2d 400 (Iowa 2010), and Iowa Code
section 622.10(4) (Supp. 2011); and (4) applying the wrong standard in
rejecting his claim the verdict was contrary to the evidence.
We retained the appeal to decide the constitutionality of section
622.10(4). For the reasons explained below, we uphold the statute as
constitutional on its face. We conclude the district court committed no
reversible error in any of the rulings challenged on appeal. We therefore
affirm Thompson’s conviction.
I. Background Facts and Proceedings.
“We recite the facts in the light most favorable to the verdict.”
State v. Garcia, 616 N.W.2d 594, 595 (Iowa 2000). By all accounts,
Thompson and Gabel had a rocky relationship. They had been living
together at a farmhouse outside Monona, Iowa, for about two years. In
October 2010, the other residents of the farmhouse were their eight-
month-old son and Gabel’s teenage daughters from a prior marriage,
Sierra and Savana. Thompson worked on the road during the week and
returned home on weekends.
3
On the weekends, Thompson would drink heavily—typically
consuming a case of beer. Thompson and Gabel regularly argued.
During their arguments, they would sometimes slap each other. Gabel
often slept in her daughters’ bedroom to get away from Thompson.
Thompson’s relatives viewed Gabel as the verbal aggressor. A friend
urged Thompson to break up with her.
On Saturday, October 2, Thompson was home most of the day
watching football and taking care of their son, while Gabel was at work.
Thompson began drinking at around 3 p.m. Sierra and her boyfriend
returned home about 6 p.m. to get ready for her high school’s
homecoming dance. Gabel arrived home between 7 and 8 p.m. Sierra
noted Thompson was being “grouchy” towards her mother. Shortly after
8 p.m., Sierra and her boyfriend left for the dance. At around 11:30
p.m., Gabel called Sierra, who was still at the dance. Sierra went home
after receiving the call because her mother sounded scared, “like
something was wrong.” She found police cars blocking the entrance.
The officers would not let Sierra in and later told her that her mother was
dead.
Law enforcement from the Allamakee County Sheriff’s Office and
the Monona Police Department responded to a 911 call Thompson placed
at 11:32 p.m. Thompson told the dispatcher he and his girlfriend got in
a fight and while she was sitting in a car, “[s]he gave me the big F finger
and I f______ shot her.” When the officers arrived they found Gabel dead
inside a red Corsica parked in the farmhouse driveway. Thompson came
out of the house with his son in his arms. Officers advised him to put
his hands up, but Thompson retreated back into his house. Thompson
ultimately surrendered to the police at 1:19 a.m. and was taken to the
Waukon Police Department.
4
Thompson was read his Miranda rights at approximately 2 a.m.
He agreed to a videotaped interview. During that interview, Thompson
estimated that he drank eighteen beers, but said he did not know
whether he was sober. Deputy Clark Mellick testified Thompson was
intoxicated but “was actually functioning at that time.” Thompson was
later given a breath test after the interview ended at 4:40 a.m. His blood
alcohol level was .184.
Thompson vented to the officers about the problems in his
relationship with Gabel. They fought over money. He said he paid the
bills while she gambled at the riverboats. Thompson complained about
their infrequent sex life. He complained that she failed to properly
discipline the children. Thompson said they fought often and that Gabel
would slap him or punch him all the time. Gabel had also put a pistol to
his head and pulled the trigger. Thompson said he had been telling
Gabel for the past four months that she should leave because they didn’t
get along and because his “head was snappin’.” As he put it, “Sometimes
a guy just can’t f______ take it anymore.”
Thompson told officers that they began arguing on the day of the
incident sometime after the game they were watching ended. Thompson
claimed Gabel was upset with him because he wanted to watch more
football while she wanted to go have sex with him. Gabel decided to go to
bed without him at around 10:30 p.m. When Thompson came up later,
she was asleep. He woke her up to have sex. Gabel told him it was too
late. Thompson told the officers that her temper flared after he called
her a “bitch” and told her he pays for everything for her even though she
does nothing for him. Gabel got out of bed and slapped him. Thompson
then pushed her against the wall. Gabel left the room and ran
downstairs and outside while they continued to yell at each other.
5
Thompson accused her of leaving to go to the riverboat casino. Once
outside, Gabel climbed into her daughter’s car after finding hers locked.
Thompson, watching from the deck, saw Gabel flip him off and saw her
talking on her cell phone. Thompson believed Gabel was talking to his
mother, telling her what a “bad guy” he is. He was “pissed off” and went
inside to retrieve a .22 caliber rifle from their bedroom.
He came back out onto the deck with the rifle. Gabel flipped him
off again. Without aiming, Thompson fired the gun at her from fifteen to
twenty feet away. The bullet went through the driver’s side window. He
told police he only meant to scare her with the first shot, not kill her. He
approached to find her breathing, but could tell “she wasn’t gonna make
it.” Thompson told officers he shot her a second time to “put her out of
her misery.” He was three feet away when he fired the second shot. The
autopsy showed Gabel was shot twice in the head and either shot could
have been fatal.
On October 7, the State filed a trial information charging
Thompson with murder in the first degree, in violation of Iowa Code
sections 707.1, 707.2(1), and 707.2(2) (2009). He pled not guilty and
waived his right to speedy trial. He filed a notice of intent to rely on the
defenses of insanity and diminished responsibility. He filed a motion to
suppress his statements to police, claiming he lacked the mental
capacity to waive his Miranda rights. The district court held a hearing on
the motion and denied it. Thompson does not appeal the ruling allowing
his videotaped confession into evidence.
On August 15, 2011, Thompson filed an application for discovery
asking the district court to conduct an in camera review of Gabel’s
mental health records to determine if they contained exculpatory
6
evidence. The district court held a hearing on September 12 and denied
the application in a written ruling two days later.
The jury trial began November 8. The jury found Thompson guilty
of the lesser included offense of murder in the second degree, in violation
of Iowa Code section 707.3. The district court denied Thompson’s
combined motion for new trial and arrest of judgment. The court
sentenced Thompson to a term of incarceration not to exceed fifty years.
Thompson appealed.
We discuss additional facts and procedural history with the
specific issues decided below.
II. Scope of Review.
A district court’s refusal to submit a requested jury instruction is
reviewed for correction of errors at law. State v. Rains, 574 N.W.2d 904,
915 (Iowa 1998). We review the district court’s evidentiary rulings for
abuse of discretion. State v. Huston, 825 N.W.2d 531, 536 (Iowa 2013).
Rulings on the admissibility of hearsay evidence are reviewed for
correction of errors at law. State v. Buenaventura, 660 N.W.2d 38, 50
(Iowa 2003). Discovery rulings challenged on constitutional grounds are
reviewed de novo. Cashen, 789 N.W.2d at 405 (“Because the issues in
this case rest on constitutional claims involving Cashen’s due process
right to present a defense, our review is de novo.”). Nonconstitutional
challenges to discovery rulings are reviewed for abuse of discretion. Id.
(“Ordinarily, we review discovery orders for an abuse of discretion.”). We
review claims of ineffective assistance of counsel de novo. In re Det. of
Blaise, 830 N.W.2d 310, 315 (Iowa 2013). We review a district court’s
ruling as to whether a verdict was contrary to the weight of the evidence
for abuse of discretion. State v. Reeves, 670 N.W.2d 199, 202–03 (Iowa
2003).
7
III. Analysis.
A. Voluntary Manslaughter Jury Instruction. Thompson
contends the district court erred by failing to submit his requested jury
instruction on the lesser included offense of voluntary manslaughter.
The district court concluded the evidence of provocation was insufficient
to support submission:
The court is concerned that the factual record is inadequate
to give Voluntary Manslaughter under Uniform Instruction
700.15, specifically finding evidence in the record of
provocation as defined by Uniform Instruction 700.16. The
court understands that there is evidence of the victim having
slapped the Defendant. There is evidence of the victim
having given the Defendant the finger on several occasions.
The court is not satisfied that that constitutes provocation.
We agree. Thompson had to show “serious provocation” by Gabel. See
Iowa Code § 707.4. The evidence of serious provocation in this case—
that Gabel slapped Thompson and flipped him off before he shot her—
was insufficient to submit a voluntary manslaughter instruction.
“Lesser offenses must be submitted to the jury as included within
the charged offense if but only if they meet both the appropriate legal and
factual tests.” State v. Ware, 338 N.W.2d 707, 714 (Iowa 1983). An
offense meets the legal test if “ ‘[t]he lesser offense [is] composed solely of
some but not all elements of the greater crime.’ ” State v. Sangster, 299
N.W.2d 661, 663 (Iowa 1980) (quoting State v. Furnald, 263 N.W.2d 751,
752 (Iowa 1978)). The legal test is met here because Iowa Code section
707.4 explicitly provides “[v]oluntary manslaughter is an included offense
under an indictment for murder in the first or second degree.” Iowa
Code § 707.4;1 accord State v. Inger, 292 N.W.2d 119, 121–22 (Iowa
1The general assembly made nonsubstantive, technical amendments to Iowa
Code section 707.4 during its 2013 legislative session, breaking the statutory provision
into four subsections. See 2013 Iowa Legis. Serv. ch. 90, § 224 (West 2013). This
8
1980) (“By the second paragraph of section 707.4, the legislature has
seen fit to make voluntary manslaughter a lesser included offense in
second-degree murder. Therefore, the ‘legal’ test . . . is satisfied.”). But,
Thompson fails to meet the factual test.
Determining whether a lesser included offense meets the factual
test involves “ ‘an ad hoc determination whether there is a factual basis
in the record for submitting the included offense to the jury.’ ” Sangster,
299 N.W.2d at 663 (quoting Furnald, 263 N.W.2d at 752). A factual basis
exists if the defendant has produced “substantial evidence of each
necessary element of the lesser-included offense[].” State v. Royer, 436
N.W.2d 637, 643 (Iowa 1989).
Section 707.4 provides:
A person commits voluntary manslaughter when that
person causes the death of another person, under
circumstances which would otherwise be murder, if the
person causing the death acts solely as the result of sudden,
violent, and irresistible passion resulting from serious
provocation sufficient to excite such passion in a person and
there is not an interval between the provocation and the
killing in which a person of ordinary reason and
temperament would regain control and suppress the impulse
to kill.
Iowa Code § 707.4 (emphasis added).
In Inger, we explained that “[s]ection 707.4 requires that both a
subjective standard and objective standards be met before a defendant
can be convicted of voluntary manslaughter.” 292 N.W.2d at 122. We
elaborated:
The subjective requirement of section 707.4 is that the
defendant must act solely as a result of sudden, violent, and
irresistible passion. The sudden, violent, and irresistible
__________________________
provision can be found in Iowa Code section 707.4(3) (West, Westlaw current with
legislation from the 2013 Reg. Sess.).
9
passion must result from serious provocation sufficient to
excite such passion in a reasonable person. This is an
objective requirement. It is also necessary, as a final
objective requirement, that there is not an interval between
the provocation and the killing in which a person of ordinary
reason and temperament would regain his or her control and
suppress the impulse to kill.
Id.
The district court declined to give the voluntary manslaughter
instruction because there was insufficient evidence of the first objective
requirement—that “[t]he sudden, violent, and irresistible passion . . .
result[ed] from serious provocation sufficient to excite such passion in a
reasonable person.” Id. Thompson presented evidence that Gabel had
slapped him, was arguing with him, and had given him “the finger”
before he shot her. In Inger, we recognized that evidence the victim
assaulted the defendant could be sufficient to establish serious
provocation. Id. We summarized the evidence in that case as follows:
Defendant testified that decedent attempted to strike him,
thereby inducing defendant to swing at [decedent] out of fear
or anger. Other evidence showed [decedent] then hit
defendant in the head with his fist. [Decedent] somehow fell
down against a metal pole supporting the grocery store and,
while [the decedent] was down, defendant quickly kicked
[decedent] in the head.
Id. (citations omitted). We concluded “[d]efendant’s own testimony
provide[d] a sufficient factual basis to meet the subjective requirement
that the defendant acted solely as a result of sudden, violent, and
irresistible passion.” Id. (emphasis added).
Additionally, words alone, historically, have been insufficient to
provide a factual basis for serious provocation. See, e.g., State v.
Rutledge, 243 Iowa 179, 192, 47 N.W.2d 251, 259 (1951). Thompson
contends, however, that some jurisdictions are beginning to reevaluate
the historical approach. In support of this proposition, Thompson cites
10
Wayne R. LaFave’s treatise, Substantive Criminal Law. According to this
treatise, some courts have recognized that words alone may be sufficient
to establish provocation if the words are informational (conveying
information of a fact that constitutes a reasonable provocation when that
fact is observed) rather than merely insulting or abusive words. 2 Wayne
R. LaFave, Substantive Criminal Law § 15.2(b)(6), at 499–500 (2d ed.
2003). Two of the cases cited in support of this proposition involved a
defendant being told that the victim had assaulted a close relative. See
id. at n.60 (citing State v. Copling, 741 A.2d 624, 631–32 (N.J. Super. Ct.
App. Div. 1999) (noting “a person can be provoked without actually
witnessing the provoking assault on the relative” while analyzing whether
defendant, whose mother told him the victim had attacked defendant’s
younger brother, was provoked), and Commonwealth v. Berry, 336 A.2d
262, 263–65 (Pa. 1975) (holding jury could find defendant was provoked
when, arriving on the scene shortly after the attack, his mother told him
she had been assaulted by man defendant then killed)). Those cases are
inapposite because the words Gabel used were “merely insulting or
abusive”—she did not tell Thompson she had assaulted anyone close to
him.
We agree with the district court that Gabel’s actions in slapping
him and insulting him with obscene gestures fell short of the objectively
serious provocation required to submit a voluntary manslaughter
instruction. See State v. Ballinger, No. 79974, 2002 WL 962835, at *6
(Ohio Ct. App. May 2, 2002) (holding “trial court did not err in refusing to
instruct on the inferior offense of voluntary manslaughter” when victim
slapped defendant and may have accidentally come into contact with
defendant’s infant daughter and called defendant a bitch).
11
Finally, the State argues Thompson had time to think twice and
calm down. After Gabel gave him the finger through the car window
fifteen to twenty feet away, he walked from the outside deck to his
bedroom to get the rifle and returned to the deck to shoot her. But, given
our holding that provocation was insufficient, we need not decide
whether this was a sufficient interval for a “person of ordinary reason
and temperament [to] regain his or her control and suppress the impulse
to kill.” Inger, 292 N.W.2d at 122. Accordingly, we affirm the district
court’s refusal to submit an instruction on voluntary manslaughter.
B. Exclusion of Hearsay Evidence. Thompson appeals the
district court’s exclusion of hearsay evidence showing that on an earlier
occasion Gabel threatened him with a firearm. Specifically, the district
court excluded testimony from his friend Joseph Christen that
Thompson told him thirty to forty-five days earlier that Gabel had aimed
a revolver at him the same morning. The district court also excluded
testimony from Gabel’s daughter that Gabel told her about putting a gun
to Thompson’s head. We conclude after reviewing the record that this
evidence was correctly excluded as hearsay. Thompson did not lay a
foundation to admit the evidence under any exception to the hearsay
rule.
Thompson also claims the district court erroneously excluded
evidence supporting his PTSD defense. The evidence includes
correspondence Thompson sent from Iraq describing his war experiences.
The State responds that the district court correctly excluded his letters
as hearsay. We agree. Thompson failed to lay a foundation supporting
any exception to the hearsay rule such as present sense impression or
then existing mental, emotional, or physical state of mind. See Iowa R.
Evid. 5.803(1), (3). For example, Thompson never showed the letters
12
were written while he was “perceiving the event . . . or immediately
thereafter.” See id. r. 5.803(1). For the same reasons, the district court
correctly excluded testimony from Thompson’s brothers, Tyler and
Cristen, regarding the letters.
Moreover, after carefully reviewing the record, we conclude that
any error in excluding this evidence was harmless. Tyler was allowed to
testify regarding defendant’s reports of his war experiences. The State
did not dispute that Thompson suffered from PTSD. A defense expert
was allowed to testify regarding the content of the letters. In any event,
the evidence of guilt was overwhelming. Thompson’s videotaped
confession includes his admissions that he intentionally shot Gabel the
second time to “put her out of her misery.” Accordingly, Thompson was
not entitled to a new trial. See State v. Howard, 825 N.W.2d 32, 41–42
(Iowa 2012) (noting evidentiary error is harmless when State establishes
overwhelming evidence of guilt).
We affirm the district court’s evidentiary rulings and denial of
Thompson’s motion for a new trial.
C. Thompson’s Request for Gabel’s Mental Health Records.
Thompson challenges the district court’s denial of his application to
obtain and review in camera Gabel’s mental health records. We must
decide whether section 622.10(4) or Cashen governed this request.
Thompson argues on appeal that section 622.10(4) is unconstitutional
under the Iowa Constitution to the extent the statute makes it more
difficult for a defendant to obtain potentially exculpatory evidence from a
victim’s mental health records than it would be under the protocol set
13
forth in Cashen.2 We begin by comparing the Cashen and statutory
approaches to frame the constitutional analysis.
1. The Cashen protocol. Ross Cashen was charged with domestic
abuse assault and willful injury, class “D” felonies with potential ten-year
prison sentences. Cashen, 789 N.W.2d at 404–05. He claimed self-
defense. Id. at 404. Cashen argued the mental health records of the
victim, Jane Doe, were relevant to her credibility and to show her
“propensity for violence.” Id. He had already acquired some of her
records and sought more. Id. The state moved in limine, arguing her
records were inadmissible. Id. The district court denied the motion and
ruled the records were relevant to Cashen’s claim of self-defense and
Doe’s credibility. Id. We granted the state’s application for discretionary
review and transferred the case to the court of appeals, which affirmed in
part but failed to address the discovery procedure for mental health
records. Id. at 404–05. We granted further review. Id. at 405.
The state argued the psychotherapist privilege prevented
“ ‘intrusion into the victim’s mental health records’ ” and, alternatively,
that any disclosure should be limited. Id. Cashen argued his
constitutional right to a fair trial supported compelled access to
confidential records that may contain exculpatory evidence. Id. at 414
2Thompson did not challenge the constitutionality of section 622.10(4) in district
court. On appeal, Thompson contends his trial counsel was ineffective because he
failed to challenge the constitutionality of the statute under the Iowa Constitution.
Thompson concedes the statute complies with the United States Constitution, but
contends it violates his right to a fair trial and to present a defense under the due
process clause of the Iowa Constitution. We find the record adequate to decide this
issue on direct appeal. His facial challenge to the constitutionality of the statute is a
question of law. Because we conclude the statute is constitutional and reject his facial
challenge, his ineffective-assistance claim necessarily fails for lack of prejudice. See
State v. Elston, 735 N.W.2d 196, 200 (Iowa 2007) (“[I]f the record is sufficient to decide
[an ineffective-assistance-of-counsel] claim[], we will do so on direct appeal.”).
14
(Cady, J., dissenting). Our court reviewed precedent employing “a
balancing test to determine if a party to a proceeding is entitled to review
the confidential medical records of a nonparty.” Id. at 405–07 (majority
opinion). We recognized patients have a qualified, rather than an
absolute, “constitutional right to privacy in their medical records.” Id. at
406. And we recognized “a criminal defendant has a due process right to
present evidence to a jury that might influence the jury’s determination
of guilt.” Id. at 407 (citing Pennsylvania v. Ritchie, 480 U.S. 39, 56, 107
S. Ct. 989, 1000–01, 94 L. Ed. 2d 40, 56–57 (1987)).
The Cashen court took the opportunity to “set forth the proper
protocol to be used by a court to determine when and how a defendant’s
attorney can gain access to a victim’s privileged mental health records.”
Id. at 405. “We . . . emphasize[d] that a defendant is not entitled to
engage in a fishing expedition when seeking a victim’s mental health
records.” Id. at 408. Then, we outlined a five-step protocol. Id. at 408–
10. First, the defendant must file a confidential motion “demonstrating a
good faith factual basis that the records sought contain evidence relevant
to the defendant’s innocence.” Id. at 408. Second, the county attorney
notifies and confers with the victim. Id. “If the victim consents to the
disclosure, the court shall issue a subpoena for the records to be
produced under seal to the court.” Id. If the victim objects, the court is
to “hold a hearing to determine if a reasonable probability exists that the
records contain exculpatory evidence tending to create a reasonable
doubt as to the defendant’s guilt” and, if so, “issue[s] a subpoena for the
records to be produced under seal to the court.” Id. The court is to enter
a protective order before issuing the subpoena. Id. at 408–09. Third,
once the records are obtained, the defendant’s attorney, not the judge,
inspects the records at the courthouse. Id. at 409. Fourth, if defense
15
counsel identifies exculpatory information, the county attorney and the
court are notified and prior to a hearing, the county attorney is given the
opportunity to review the identified records. Id. Fifth, the court holds a
closed hearing to determine whether the information is exculpatory and,
if so, allows use, subject to a protective order. Id.
We expressly declined to require “a showing that the information
sought in the records could not be obtained from another source, such
as the victim’s testimony, before the defendant is allowed to seek
production of the victim’s mental health records.” Id. at 410. We
concluded Cashen had made the threshold showing and remanded with
instructions for issuance of a subpoena for Doe’s mental health records.
Id. at 410–11.
Justice Cady dissented. His dissenting opinion foreshadowed the
controversy Cashen engendered:
The majority adopts one of the weakest tests known to the
law in an area of the law that deals with the clash of two of
the most compelling and venerable interests known to the
law. This is a step backwards. It gives the defendant more
power than necessary to protect the right to a fair trial, while
presenting a serious risk of a different form of abuse for
victims of domestic violence. This new test may also
ultimately cause victims to decline to report domestic abuse
in order to protect themselves from being required to disclose
very personal and private information to the alleged abusers
and other parties to the prosecution.
Id. at 411 (Cady, J., dissenting). Others raised the same concerns. See,
e.g., Caroline K. Bettis, Note, Adding Insult to Injury: How the Cashen
Protocol Fails to Properly Balance Competing Constitutional Interests of
Iowans, 60 Drake L. Rev. 1151 (2012) [hereinafter Bettis].
The Cashen dissent concluded as follows:
The new test developed by the majority may be easy
and beneficial to defendants, but it is a step back both for
victims and for the progress made in addressing domestic
16
violence over the last decade. The only way victims of
domestic abuse with a history of counseling will be able to
ensure the confidentiality of their private counseling records
is to not report domestic abuse. The law should be able to
do better.
789 N.W.2d at 417. The legislature responded in its next session. We
must interpret the resulting statutory enactment mindful of the
legislature’s purpose to supersede the Cashen test with a protocol that
restores protection for the confidentiality of counseling records while also
protecting the due process rights of defendants. See State v. Walker, 804
N.W.2d 284, 290 (Iowa 2011) (“ ‘We seek a reasonable interpretation
which will best effectuate the purpose of the statute . . . .’ ” (quoting State
v. Johnson, 528 N.W.2d 638, 640 (Iowa 1995))); id. at 293–94 (noting our
court’s “ ‘mandate to construe statutes in a fashion to avoid a
constitutional infirmity where possible’ ” (quoting In re Young, 780
N.W.2d 726, 729 (Iowa 2010)).
2. The constitutionality of section 622.10(4). While murder charges
were pending against Thompson, the Iowa legislature, in reaction to
Cashen, passed Senate File 291. 2011 Iowa Acts ch. 8, § 2. The law
took effect upon its enactment on March 30, 2011. 2011 Iowa Acts ch.
8, § 3. Senate File 291 amended section 622.10 by adding the following
subsection:
4. a. Except as otherwise provided in this subsection,
the confidentiality privilege under this section shall be
absolute with regard to a criminal action and this section
shall not be construed to authorize or require the disclosure
of any privileged records to a defendant in a criminal action
unless either of the following occur:
(1) The privilege holder voluntarily waives the
confidentiality privilege.
(2)(a) The defendant seeking access to privileged
records under this section files a motion demonstrating in
good faith a reasonable probability that the information
sought is likely to contain exculpatory information that is
not available from any other source and for which there is a
17
compelling need for the defendant to present a defense in the
case. Such a motion shall be filed not later than forty days
after arraignment under seal of the court. Failure of the
defendant to timely file such a motion constitutes a waiver of
the right to seek access to privileged records under this
section, but the court, for good cause shown, may grant
relief from such waiver.
(b) Upon a showing of a reasonable probability that
the privileged records sought may likely contain exculpatory
information that is not available from any other source, the
court shall conduct an in camera review of such records to
determine whether exculpatory information is contained in
such records.
(c) If exculpatory information is contained in such
records, the court shall balance the need to disclose such
information against the privacy interest of the privilege
holder.
(d) Upon the court’s determination, in writing, that
the privileged information sought is exculpatory and that
there is a compelling need for such information that
outweighs the privacy interest of the privilege holder, the
court shall issue an order allowing the disclosure of only
those portions of the records that contain the exculpatory
information. The court’s order shall also prohibit any
further dissemination of the information to any person, other
than the defendant, the defendant’s attorney, and the
prosecutor, unless otherwise authorized by the court.
b. Privileged information obtained by any means other
than as provided in paragraph “a” shall not be admissible in
any criminal action.
Iowa Code § 622.10(4) (Supp. 2011)).
Thompson argues section 622.10(4) is unconstitutional on its face
because the Cashen protocol sets the constitutional floor for criminal
defendants’ access to the potentially exculpatory mental health records of
their alleged victims. Thompson focuses on three key differences
between the Cashen protocol and section 622.10(4). First, the statute
requires a stronger threshold showing to obtain mental health records for
an in camera inspection. Compare id. § 622.10(4)(a)(2)(a) (requiring
defendant to establish “a reasonable probability that the information
sought is likely to contain exculpatory information . . . for which there is
18
a compelling need for the defendant to present a defense in the case”),
with Cashen, 789 N.W.2d at 408 (majority opinion) (requiring defendant
to show there is “a reasonable probability the records sought contain
exculpatory evidence tending to create a reasonable doubt as to the
defendant’s guilt”).3 Second, the statute requires the information be
unavailable “from any other source”—a hurdle omitted under Cashen.
Compare Iowa Code § 622.10(4)(a)(2)(a), with Cashen, 789 N.W.2d at 410
(rejecting such a requirement). Third, under Cashen, the initial
in camera inspection is performed by defense counsel while under the
statute the district court first reviews the records in camera to identify
exculpatory information. Compare Cashen, 789 N.W.2d at 409 (“[T]he
attorney for the defendant who obtained the subpoena shall have the
right to inspect the records at the courthouse. An in camera review of
the records by the court is insufficient.”), with Iowa Code
§ 622.10(4)(a)(2)(b) (“[T]he court shall conduct an in camera review of
[the] records to determine whether exculpatory information is contained
in [the] records.”). We must determine whether these statutory
requirements on their face violate the due process rights of criminal
defendants.
3Cashen describes the showing the defendant must make under the first step in
three different ways: (1) “a reasonable basis to believe the records are likely to contain
exculpatory evidence tending to create a reasonable doubt as to the defendant’s guilt”;
(2) “a good faith factual basis that the records sought contain evidence relevant to the
defendant’s innocence”; and (3) “specific facts establishing a reasonable probability the
records sought contain exculpatory evidence tending to create a reasonable doubt as to
the defendant’s guilt.” Cashen, 789 N.W.2d at 408. Presuming “reasonable basis,”
“good faith factual basis,” and “specific facts establishing a reasonable probability” are
all equivalent, the primary difference between these standards is that under Cashen the
evidence must tend to create a reasonable doubt, whereas under the statute the
defendant must establish a “compelling need” for the evidence.
19
Before we address those fighting issues, we reiterate the well-
settled rules governing constitutional challenges to Iowa statutes:
“We review constitutional challenges to a statute
de novo. In doing so, we must remember that statutes are
cloaked with a presumption of constitutionality. The
challenger bears a heavy burden, because it must prove the
unconstitutionality beyond a reasonable doubt. Moreover,
‘the challenger must refute every reasonable basis upon
which the statute could be found to be constitutional.’
Furthermore, if the statute is capable of being construed in
more than one manner, one of which is constitutional, we
must adopt that construction.”
State v. Seering, 701 N.W.2d 655, 661 (Iowa 2005) (quoting State v.
Hernandez-Lopez, 639 N.W.2d 226, 233 (Iowa 2002) (citations omitted));
see also Iowa Code § 4.4(1) (2013) (“In enacting a statute, it is presumed
that . . . [c]ompliance with the Constitutions of the state and of the
United States is intended.”).4 We also reiterate the importance of
maintaining confidentiality in mental health treatment:
“Psychotherapy probes the core of the patient’s personality.
The patient’s most intimate thoughts and emotions are
exposed during the course of the treatment. The psychiatric
patient confides [in his therapist] more utterly than anyone
else in the world. . . . [H]e lays bare his entire self, his
dreams, his fantasies, his sin, and his shame. The patient’s
innermost thoughts may be so frightening, embarrassing,
shameful or morbid that the patient in therapy will struggle
to remain sick, rather than to reveal those thoughts even to
himself. The possibility that the psychotherapist could be
compelled to reveal those communications to anyone . . . can
deter persons from seeking needed treatment and destroy
treatment in progress.”
4The mental health records in this case involve Gabel’s treatment in Wisconsin
while she was an Illinois resident. We apply Iowa law because no party argues the law
of Illinois or Wisconsin governs Thompson’s access to Gabel’s mental health records to
defend against criminal charges in Iowa. See In re Estate of Whalen, 827 N.W.2d 184,
188 n.2 (Iowa 2013) (“Iowa law [applies] when no party pleads and proves that a foreign
law governs.” (citing Talen v. Emp’rs Mut. Cas. Co., 703 N.W.2d 395, 409 (Iowa 2005))).
20
McMaster v. Iowa Bd. of Psychology Exam’rs, 509 N.W.2d 754, 758 (Iowa
1993) (quoting Haw. Psychiatric Soc’y v. Ariyoshi, 481 F. Supp. 1028,
1038 (D. Haw. 1979) (citations omitted)); cf. Hedgepeth v. Whitman
Walker Clinic, 22 A.3d 789, 816 n.43 (D.C. 2003) (“[I]t is especially likely
that a therapist’s disclosure of highly personal information revealed by a
patient who feels vulnerably exposed during therapy sessions would
cause serious emotional distress.”).
We begin our analysis with the threshold showing required to
subpoena and review mental health records. Under Cashen, records may
be subpoenaed for review by defense counsel if the defendant shows “a
good faith factual basis that the records sought contain evidence relevant
to the defendant’s innocence.” Cashen, 789 N.W.2d at 408. By contrast,
the statute requires defendant to show
in good faith a reasonable probability that the information
sought is likely to contain exculpatory information that is
not available from any other source and for which there is a
compelling need for the defendant to present a defense in the
case.
Iowa Code § 622.10(4)(a)(2)(a). “We are obligated to presume statutes to
be constitutional, and we are further obligated to give them any
reasonable construction possible to make them constitutional.” State v.
Wiederien, 709 N.W.2d 538, 544 (Iowa 2006). We give the words of the
statute “their ordinary and common meaning by considering the context
within which they are used.” Auen v. Alcoholic Beverages Div., 679
N.W.2d 586, 590 (Iowa 2004). In drafting section 622.10(4)(a)(2)(a), “the
legislature employed language that invokes traditional legal standards
with definitions commonly assigned in our jurisprudence.” See State
ex rel. Miller v. Vertrue, Inc., 834 N.W.2d 12, 44 (Iowa 2013). We reiterate
that it is “our mandate to construe statutes in a fashion to avoid a
21
constitutional infirmity where possible.” In re Young, 780 N.W.2d at 729.
But, we cannot use the doctrine of constitutional avoidance to change
the meaning of unambiguous statutory language. Id.
The first term in the statutory threshold requirement is “good
faith,” which “ ‘has various meanings; sometimes it is viewed objectively
and at other times, subjectively.’ ” City of Riverdale v. Diercks, 806
N.W.2d 643, 656 (Iowa 2011) (quoting Sieg Co. v. Kelly, 568 N.W.2d 794,
804 (Iowa 1997)). We define “good faith” subjectively to mean “honest
motive” when the term is paired with an objective term such as
“reasonable.” Id. at 656–57. Here, the requirement to show “in good
faith a reasonable probability” means the district court must find
defendant has an honest motive or purpose to seek the records.
Accordingly, the district court should deny the motion upon a finding the
defendant has a dishonest, bad-faith motive, such as to deter the victim
from testifying against him.
The next term is “reasonable probability,” which we have defined in
an analogous setting to mean “a ‘substantial,’ not ‘just conceivable,’
likelihood.” State v. Madsen, 813 N.W.2d 714, 727 (Iowa 2012) (quoting
King v. State, 797 N.W.2d 565, 572 (Iowa 2011)) (discussing showing of
prejudice required for an ineffective-assistance-of-counsel claim). The
term “likely” in turn “means ‘probable or reasonably to be expected.’ ” In
re B.B., 826 N.W.2d 425, 433 (Iowa 2013) (quoting In re Oseing, 296
N.W.2d 797, 801 (Iowa 1980)); see also Black’s Law Dictionary 834, 1081
(5th ed. 1979) (defining “likely” to mean “probable,” which in turn is
defined as “[h]aving more evidence for than against”).
We decline at this juncture to explicate the phrase “not available
from any other source and for which there is a compelling need for the
defendant to present a defense in the case.” Iowa Code
22
§ 622.10(4)(a)(2)(a). We give those terms their ordinary meaning. Auen,
679 N.W.2d at 590. We leave it to case-by-case adjudication to
determine on a particular factual record whether the information sought
from privileged mental health records is “available from any other
source.” Today, for example, in State v. Neiderbach, we hold the district
court erred by concluding under the circumstances of that case that the
defendant failed to show the information was “not available from any
other source” because he failed to take the deposition of the privilege-
holding codefendant. 837 N.W.2d 180, 198 (Iowa 2013). Moreover,
whether a defendant shows a “compelling need” for information is best
determined under the factual record of each case. See Cashen, 789
N.W.2d at 415 (Cady, J., dissenting) (noting a balancing test “focuses on
all the facts and circumstances of each case to fully assess a compelling
need for the information”).
We first address the constitutionality of the initial threshold
requirement that the defendant show “a reasonable probability that the
information sought is likely to contain exculpatory information.” Iowa
Code § 622.10(4)(a)(2)(a). In Commonwealth v. Barroso, the Kentucky
Supreme Court surveyed cases addressing a criminal defendant’s
constitutional right to obtain access to a witness’s mental health records.
122 S.W.3d 554, 558–64 (Ky. 2003). The court noted that Ritchie
involved records held by a state agency governed by a Brady5 analysis
inapplicable to determining the threshold standard required to subpoena
records from a third party. Id. at 559–60. The Barroso court observed
that a
5Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
23
majority of the state courts that have addressed this issue
have held that a criminal defendant, upon a preliminary
showing that the records likely contain exculpatory evidence,
is entitled to some form of pretrial discovery of a prosecution
witness’s mental health treatment records . . . .
Id. at 561 (emphasis added). The Barroso court held that the defendant’s
constitutional rights are satisfied by authorizing an “in camera review of
a witness’s psychotherapy records . . . upon receipt of evidence sufficient
to establish a reasonable belief that the records contain exculpatory
evidence.” Id. at 564.
Maryland’s highest court held that “to require disclosure at trial of
privileged records, a defendant must establish a reasonable likelihood
that the privileged records contain exculpatory information necessary for
a proper defense.” Goldsmith v. State, 651 A.2d 866, 877 (Md. 1995).
The Michigan Supreme Court requires a defendant to show a “reasonable
probability that the privileged records are likely to contain material
information necessary to his defense.” People v. Stanaway, 521 N.W.2d
557, 562 (Mich. 1994). The New Hampshire Supreme Court requires the
defendant to “establish a reasonable probability that the records contain
information that is material and relevant to his defense.” State v. King,
34 A.3d 655, 658 (N.H. 2011). The Wisconsin Supreme Court,
recognizing the “strong public policy favoring protection of the counseling
records,” requires a defendant to “show a ‘reasonable likelihood’ that the
records contain relevant information necessary to a determination of
guilt or innocence.” State v. Green, 646 N.W.2d 298, 309–10 (Wis. 2002).
The foregoing threshold requirements found constitutional by these state
supreme courts are similar to the initial showing required under the Iowa
statute. See Iowa Code § 622.10(4)(a)(2)(a) (requiring defendant to show
“a reasonable probability that the information sought is likely to contain
exculpatory information”). Based on the foregoing authorities, we reject
24
Thompson’s facial challenge to the statutory requirement that the
defendant show “a reasonable probability that the information sought is
likely to contain exculpatory information.”
We next address defendant’s constitutional challenge to the
statutory requirement that the in camera review be performed by the
court, not defense counsel. Id. § 622.10(4)(a)(2)(b). Cashen relied on
Ritchie for the due process right to access exculpatory information in
privileged records. Cashen, 789 N.W.2d at 407 (citing Ritchie, 480 U.S.
at 56, 107 S. Ct. at 1000–01, 94 L. Ed. 2d at 56–57). Accordingly, we
look to Ritchie for the scope of that right. See State v. Allen, 690 N.W.2d
684, 690 (Iowa 2005) (“[P]ast construction of the federal constitution . . .
is persuasive in our interpretation of the corresponding provisions of the
Iowa Constitution.”).
In Ritchie, the defendant was found guilty by a jury of sexually
abusing his thirteen-year-old daughter. 480 U.S. at 43, 45, 107 S. Ct. at
994–95, 94 L. Ed. 2d at 48–49. Her report of child abuse was
investigated by a state agency, Pennsylvania Children and Youth Services
(CYS). Id. at 43, 107 S. Ct. at 994, 94 L. Ed. 2d at 48. Defense counsel
subpoenaed the CYS records. Id. The agency objected, citing a statutory
privilege. Id. The trial court refused to order production of the CYS
records to the defendant and did not fully review the CYS file. Id. at 44,
107 S. Ct. at 994, 94 L. Ed. 2d at 49. The Pennsylvania Supreme Court
vacated the conviction and remanded the case for an in camera review of
the CYS records by defense counsel. Id. at 45, 107 S. Ct. at 995, 94
L. Ed. 2d at 49–50. The U.S. Supreme Court granted certiorari. Id. at
46, 107 S. Ct. at 995, 94 L. Ed. 2d at 50.
The Ritchie Court held that the defendant was entitled under the
Due Process Clause to an in camera review of the CYS records by the
25
trial court. Id. at 58, 107 S. Ct. at 1001–02, 94 L. Ed. 2d at 58. A five-
justice majority, however, held that the defense counsel was not entitled
to conduct his own in camera review of the CYS records in light of the
state’s compelling interest in the confidentiality of child abuse
information. Id. at 60, 107 S. Ct. at 1002–03, 94 L. Ed. 2d at 59. The
majority concluded:
We disagree with the decision of the Pennsylvania Supreme
Court to the extent that it allows defense counsel access to
the CYS file. An in camera review by the trial court will serve
Ritchie’s interest without destroying the Commonwealth’s
need to protect the confidentiality of those involved in child-
abuse investigations.
Id. at 61, 107 S. Ct. at 1003, 94 L. Ed. 2d at 60. Thus, under Ritchie, the
criminal defendant does not have a federal due process right to an
in camera inspection by his own lawyer. Rather, the in camera
inspection is to be by the trial judge. Id.
Thompson nevertheless argues we should find broader rights of
access under the due process clause of the Iowa Constitution, relying on
Cashen. In Cashen, however, we merely cited to Ritchie without any
separate citation or analysis of the Iowa Constitution’s due process
clause. See Cashen, 789 N.W.2d at 405, 407, 408. Ritchie squarely
holds that review by the trial judge, rather than by defense counsel, is
constitutionally sufficient. 480 U.S. at 61, 107 S. Ct. at 1003, 94
L. Ed. 2d at 60. We agree. There are sound reasons to refrain from
reaching a different conclusion under the Iowa Constitution. The Cashen
majority made a policy choice to allow defense counsel to conduct the
in camera review without stating that procedure is constitutionally
required. We hold that it is not. Less than a year later, the Iowa
legislature made a different policy choice—to substitute the trial judge for
defense counsel for the in camera inspection. We decline to make new
26
law under the Iowa due process clause to redraw the constitutional
boundaries to strike down the legislature’s policy choice.
Cashen relied on a Massachusetts case adopting a similar protocol
requiring defense counsel to perform the initial review of the records.
Cashen, 789 N.W.2d at 409 (citing Commonwealth v. Dwyer, 859 N.E.2d
400, 418 (Mass. 2006)). The Dwyer court stated this protocol “is not
constitutionally compelled.” 859 N.E.2d at 419. The constitutional
argument made by Thompson was rejected in Ritchie:
A defendant’s right to discover exculpatory evidence
does not include the unsupervised authority to search
through the Commonwealth’s files. Although the eye of an
advocate may be helpful to a defendant in ferreting out
information, this Court has never held—even in the absence
of a statute restricting disclosure—that a defendant alone
may make the determination as to the materiality of the
information. Settled practice is to the contrary. In the
typical case where a defendant makes only a general request
for exculpatory material under Brady v. Maryland, 373 U.S.
83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), it is the State
that decides which information must be disclosed. Unless
defense counsel becomes aware that other exculpatory
evidence was withheld and brings it to the court’s attention,
the prosecutor’s decision on disclosure is final. Defense
counsel has no constitutional right to conduct his own
search of the State’s files to argue relevance.
Ritchie, 480 U.S. at 59, 107 S. Ct. at 1002, 94 L. Ed. 2d at 58–59
(footnote and citations omitted). Although we agree “the eye of an
advocate may be helpful to a defendant in ferreting out information,” that
role is not constitutionally mandated. Nor should it be when a neutral
trial judge can perform the review.
The Cashen majority stated, “Only the attorneys representing the
parties know what they are looking for in the records. The court cannot
foresee what may or may not be important to the defendant.” Cashen,
789 N.W.2d at 409. Yet, we repeatedly emphasized in Cashen that
defendants are not permitted to embark on a “fishing expedition” through
27
confidential mental health records. Id. at 407–08. We believe that a
defense counsel who is not merely “fishing” should be able to articulate
to the district court specifically what information is being sought and
why. With that guidance, we trust Iowa district court judges will be able
to recognize exculpatory information when they see it.
A powerful counterbalance to the pretrial discovery rights of a
defendant is the victim–patient’s constitutional right to privacy in her
mental health records. See id. at 406 (recognizing patients have “a
constitutional right to privacy in their medical records”). The legislature
was entitled to choose to have a neutral judge review the victim’s private
records, rather than the advocate for the alleged abuser. The Ritchie
Court observed that the state’s interests in protecting confidential child-
abuse information would be undermined by allowing defense counsel to
review records for relevancy:
To allow full disclosure to defense counsel in this type
of case would sacrifice unnecessarily the Commonwealth’s
compelling interest in protecting its child-abuse information.
If the CYS records were made available to defendants, even
through counsel, it could have a seriously adverse effect on
Pennsylvania’s efforts to uncover and treat abuse. Child
abuse is one of the most difficult crimes to detect and
prosecute, in large part because there often are no witnesses
except the victim. A child’s feelings of vulnerability and guilt
and his or her unwillingness to come forward are
particularly acute when the abuser is a parent. It therefore
is essential that the child have a state-designated person to
whom he may turn, and to do so with the assurance of
confidentiality. Relatives and neighbors who suspect abuse
also will be more willing to come forward if they know that
their identities will be protected. Recognizing this, the
Commonwealth—like all other States—has made a
commendable effort to assure victims and witnesses that
they may speak to the CYS counselors without fear of
general disclosure. The Commonwealth’s purpose would be
frustrated if this confidential material had to be disclosed
upon demand to a defendant charged with criminal child
abuse, simply because a trial court may not recognize
exculpatory evidence. Neither precedent nor common sense
requires such a result.
28
Ritchie, 480 U.S. at 60–61, 107 S. Ct. at 1003, 94 L. Ed. 2d at 59–60
(footnote omitted). Accordingly, the U.S. Supreme Court held that the
defendant’s “interest (as well as that of the Commonwealth) in ensuring a
fair trial can be fully protected” through an in camera inspection by the
trial court alone, even though “this rule denies [the defendant] the
benefits of ‘an advocate’s eye.’ ” Id. at 60, 107 S. Ct. at 1002–03, 94
L. Ed. 2d at 59. We agree.
The cost of second-guessing the legislature’s sound policy choices
in section 622.10(4) would be high. As Justice Cady observed:
If victims of domestic violence must suffer the embarrassing
and debilitating loss of their physician–patient privilege once
they become a witness in a criminal domestic-abuse
prosecution, a chilling effect will be cast over the reporting of
domestic abuse, the disclosure of information to treatment
providers by victims, the ability of physicians and
psychotherapists to treat psychological disorders arising
from domestic abuse, and the willingness of victims to testify
against their abusers.
Cashen, 789 N.W.2d at 416 (Cady, J., dissenting). A commentator
elaborated on the mind-set of victims who learn their attacker’s lawyer
will review their private mental health records:
Consider the circumstance of a woman who has been raped.
The crime itself likely has had a traumatic, shattering, and
destructive impact on her ability to live the life she had
before it was committed. In an effort to deal with and
recover from her ordeal, she has undergone counseling,
during which she may have disclosed information, thoughts,
fears, and self-doubts of the most intensely personal and
private kind. It is bad enough that, come the trial, she must
relive her ordeal before an audience of strangers, and that
the judge will examine her records to determine whether they
contain information that must be disclosed to the defense.
In Massachusetts, however, she must take the witness stand
knowing that her rapist’s lawyer, whose primary
responsibility is to attack her testimony, credibility and
character, has read the entire file of her counseling. The
lawyers in the case may have every confidence that defense
counsel has adhered and will adhere to the rules. To the
witness, by contrast, this may provide little comfort
29
compared to the sense of betrayal, humiliation, and
exposure she is likely to experience.
Clifford S. Fishman, Defense Access to a Prosecution Witness’s
Psychotherapy or Counseling Records, 86 Or. L. Rev. 1, 33 (2007)
[hereinafter Fishman]; accord Bettis, 60 Drake L. Rev. at 1202 (“When a
victim discovers that records are being sought by an alleged attacker,
this alone will likely re-traumatize the victim.”).
Finally, in light of the importance of maintaining confidentiality, we
hold the legislature could constitutionally require the defendant to show
the information sought in the victim’s mental health records is “not
available from any other source.” Iowa Code § 622.10(4)(a)(2)(b). This
statutory requirement is constitutional on its face. Whether it is
unconstitutional as applied must be determined on a case-by-case basis.
Other “courts have held that, even if the requisite standard for in camera
review has been established, the defendant is entitled to disclosure only
if comparable evidence is ‘unavailable from less intrusive sources.’ ”
Fishman, 86 Or. L. Rev. at 50 & n.189 (collecting cases). Although the
Cashen court made a policy choice to omit this requirement, it cited no
authority for rejecting it. Thompson cites no case holding due process
requires allowing the defendant to obtain the victim’s privileged mental
health records to obtain information that is available from other, less
intrusive sources. The Kentucky Supreme Court held that exculpatory
evidence found in the court’s in camera review “must be disclosed to the
defendant if unavailable from less intrusive sources.” Barroso, 122
S.W.3d at 564 (emphasis added).
Moreover, other state supreme courts have upheld absolute
privileges against constitutional challenges by criminal defendants. See,
e.g., Crisis Connection, Inc. v. Fromme, 949 N.E.2d 789, 802 (Ind. 2011).
30
In Fromme, the Indiana Supreme Court conducted a thorough analysis of
federal and state caselaw. Id. at 795–802. In upholding the
constitutionality of Indiana’s victim–advocate privilege—an absolute
privilege—the court concluded:
In sum, by providing a complete ban to disclosure in
cases like the present one, Indiana’s victim advocate
privilege advances the State’s compelling interest in
maintaining the confidentiality of information gathered in the
course of serving emotional and psychological needs of
victims of domestic violence and sexual abuse. For the
reasons stated above, this interest is not outweighed by
Fromme’s right to present a complete defense. Accordingly,
Fromme does not have a constitutional right to an in camera
review of Crisis Connection’s records. In the absence of a
violation of Fromme’s constitutional rights, we apply the
victim advocate privilege as provided by the General
Assembly.
Id. at 802. Thus, in Fromme, the Indiana Supreme Court held that the
defendant’s “right to present a complete defense” was outweighed by the
compelling interest in serving the psychological and emotional needs of
victims of domestic violence and sexual abuse. Here, our legislature has
recognized a similar compelling interest in protecting the psychological
and emotional needs of crime victims by limiting the disclosure of their
mental health records. In doing so, the legislature has not created a
new, absolute privilege as in Indiana; it has merely restricted the
circumstances under which a traditional, long-recognized privilege may
be overcome. This is within the legislature’s power.
Let us examine the alternative. If we were to find that a criminal
defendant has a general due process right to obtain otherwise privileged
evidence, where would it end? Consider a case in which a victim of a
serious violent crime gives somewhat inconsistent accounts as to what
happened—a not uncommon occurrence. Could the crime victim’s
spouse be subpoenaed to testify under oath about what the victim told
31
him or her? See Iowa Code § 622.9 (recognizing the marital privilege in
Iowa). Could the victim’s priest be subpoenaed? See id. § 622.10(1)
(recognizing the priest–penitent privilege). Could the victim’s attorney be
required to produce communications with the victim? See id. § 622.10(1)
(recognizing the attorney–client privilege).
Reasonable minds may disagree over how best to balance the
competing rights of criminal defendants and their victims. Our task is
simply to decide whether the balance struck by the elected branches in
section 622.10(4) is constitutional. We hold that section 622.10(4) is
constitutional on its face and supersedes the Cashen protocol.
We next determine whether the district court correctly applied the
statute.
3. The confidentiality of mental health records survives the patient’s
death. We begin our analysis with the observation that the
confidentiality of Gabel’s mental health records survives her death. See
Cashen, 789 N.W.2d at 414–15 (“[T]he physician–patient privilege
continues after death . . . .” (citing 1 Kenneth S. Broun, et al., McCormick
on Evidence § 102, at 462 (6th ed. 2006)); State v. Heemstra, 721 N.W.2d
549, 563 (Iowa 2006) (noting medical privilege continued after patient’s
death); cf. Bailey v. Chi., Burlington & Quincy R.R., 179 N.W.2d 560, 564
(Iowa 1970) (“[T]he protective shield provided by Code section 622.10 . . .
generally survives the client’s death, termination of the relationship, or
dismissal of a case in litigation.”).
Of course, the death of the patient is a fact to consider in
balancing the rights of a criminal defendant to exculpatory information
in confidential records. After all, “[t]he holder of the privilege has little
private interest in preventing disclosure, because he is dead.” United
States v. Hansen, 955 F. Supp. 1225, 1226 (D. Mont. 1997); accord
32
Cashen, 789 N.W.2d at 414 (noting the “diminish[ed] . . . importance of
protecting the records from disclosure” after the patient’s death).
Perversely, a defendant who kills his victim may have greater access to
her mental health records than an abuser whose victim survives. The
balancing of competing interests after the patient’s death no longer
includes the concern over revictimizing a specific living victim through
the disclosure of her confidential records to her abuser’s lawyer, or
chilling the victim’s ongoing counseling or incentive to report further
abuse. But, the societal interest in the privacy of mental health records
continues unabated regardless of the death of any individual victim. See
generally Iowa Code ch. 228 (protecting privacy of mental health
information); Cashen, 789 N.W.2d at 411–12 (discussing the
fundamental importance of confidentiality in mental health treatment).
4. Thompson failed to meet the threshold requirements to obtain
Gabel’s mental health records. Thompson claimed he needed Gabel’s
mental health records to support his PTSD defense. He argued her
records could contain information showing “she was prone to
manipulation, violence and anger, all of which could exacerbate his PTSD
symptoms.” Thompson failed to show when Gabel received mental
health treatment or why she was treated. The State resisted Thompson’s
motion for an in camera inspection. On September 14, 2011, the district
court denied Thompson’s motion upon determining he had made “no
showing of a reasonable probability that the privileged records sought
may likely contain exculpatory information not available from any other
source, for which the defendant had a compelling need to present a
defense.” The district court found that “[f]acts regarding the victim’s
conduct relating to [the PTSD] defense have already been presented by
33
depositions” and other sources and were available to the defense expert.
We agree.
Thompson offered no evidence showing a nexus between the issues
at trial and the mental health treatment received by Gabel. He offered
virtually no extrinsic evidence regarding the circumstances surrounding
Gabel’s involuntary hospitalization. When asked why her mother
“checked in” to the hospital, Gabel’s daughter simply said “because her—
my grandma, her mom. Um, they just upset her to the point she thought
she needed help, I guess.” Thompson did not establish when the
hospitalization occurred, or even whether Gabel and Thompson had a
relationship at the time. Further, although Thompson asserted before
the district court that the defendant’s expert indicated that obtaining the
records would be “very valuable,” there was no affidavit or other evidence
submitted from the expert on this point, but only the arguments of
counsel.
Thompson’s PTSD was not disputed. He did not plead self-defense.
Gabel’s mental state was not at issue. The jury heard evidence regarding
the conduct of Thompson and Gabel the night he shot her, as well as
evidence concerning the nature of their relationship. Thompson was not
entitled to go on a fishing expedition in her mental health records. He
already had what he needed. The district court correctly ruled
Thompson failed to make the showing required for an in camera
inspection under section 622.10(4).
D. The Verdict Was Not Contrary to the Evidence. Thompson
moved for a new trial, in part, because “the verdict of guilty rendered by
the jury was contrary to evidence.” He claims on appeal the district
court applied the wrong standard in denying his motion by stating “[t]he
jury’s verdict was supported by ample evidence in the record.” On
34
appeal, Thompson relies on Iowa Rule of Criminal Procedure 2.24(2)(b)(6)
and State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998). However,
Thompson’s counsel never cited that rule or Ellis in his posttrial motion
or during the hearing on that motion in district court. Rather, he argued
Thompson was prejudiced by evidentiary errors, principally that his
videotaped confession was admitted into evidence despite his
intoxication—a ruling he does not challenge on appeal. We agree with
the State that Thompson failed to preserve error on his claim the district
court applied the wrong standard under rule 2.24(2)(b)(6).
In any event, we have already concluded that overwhelming
evidence supported the guilty verdict. Accordingly, the district court did
not abuse its discretion in denying Thompson’s motion for new trial. See
Reeves, 670 N.W.2d at 202 (noting our court’s review of the district
court’s ruling as to whether the verdict was contrary to weight of the
evidence is for abuse of discretion). We affirm the order denying
Thompson’s motion for new trial.
IV. Conclusion.
For these reasons, we affirm the rulings of the district court and
Thompson’s conviction.
AFFIRMED.
All justices concur except Cady, C.J., who concurs specially, and
Appel, Wiggins, and Hecht, JJ., who separately concur specially.
35
#12–0255, State v. Thompson
CADY, C.J. (concurring specially).
I concur in the majority opinion, but write separately to express my
view that the statutory standard for judicial review of confidential records
under Iowa Code section 622.10(4) (Supp. 2011) should be given its
definition through the application of facts on a case-by-case basis. As
this case and State v. Niederbach, 837 N.W.2d 180, 194 (Iowa 2013),
illustrate, the facts are what should breathe meaning into the
“reasonable probability” standard, and this standard will continue to
gain greater clarity in the future as additional cases continue to give it
shape.
36
#12–0255, State v. Thompson
APPEL, Justice (concurring specially).
For the reasons expressed below, I concur only in the result in this
case.
I. Production of Mental Health Records.
A. Positions of the Parties. Thompson claims the district court
erred in not ordering Angela Gabel’s mental health records produced for
in camera inspection. Thompson offered evidence Gabel was hospitalized
in the past for mental health issues at Franciscan Skemp Medical Center
in La Crosse, Wisconsin. Citing State v. Heemstra, 721 N.W.2d 549 (Iowa
2006), Thompson argues that if there was information in the mental
health records suggesting that Gabel was manipulative, cruel, or mean, it
could be valuable information for the defense’s experts, who were
asserting that, because of his posttraumatic stress disorder (PTSD),
Thompson lacked the necessary intent to support a murder conviction.
The State responds that the request was simply too speculative.
Defense counsel stated the deceased “might have been hospitalized,” but
could not give the approximate date of Gabel’s purported hospitalization.
According to the State, without some idea of the reasons for treatment
and timeframe involved, Thompson could not demonstrate the required
good faith belief that a reasonable probability existed that the records
sought were likely to contain exculpatory information, or that the defense
had a compelling need for the records. See Iowa Code § 622.10(4)(a)(2)(a)
(Supp. 2011). Hence, the State contends Thompson did not establish
what information in the medical records would help him in his defense.
Without a more particularized knowledge of the contents of the mental
health records, the State suggests, production of the documents is
unjustified.
37
Further, the State claimed Thompson failed to demonstrate the
information was unavailable from other sources. The State notes
Thompson had been living with Gabel for at least two years prior to the
time he killed her and argues he would be in a position to know if Gabel
suffered from a mental illness. The State contends Thompson made no
showing regarding an inquiry of the couples’ friends that would have
seen them interact.
B. Proper Standard for Production. Thompson challenges the
constitutionality of Iowa Code section 622.10 on its face as recently
amended by the Iowa legislature. For the reasons expressed in my
special concurrence in State v. Neiderbach, 837 N.W.2d 180, 220, 223–37
(Iowa 2013) (Appel, J., concurring specially), I conclude Iowa Code
section 622.10(4) is not unconstitutional on its face.6
6A reference has been made to “the controversy Cashen engendered” with a
citation to a law review note that describes, among other things, the “Evils of the
Heemstra Decision” in reference to this court’s decision in State v. Heemstra, 721
N.W.2d 549 (Iowa 2006). See Caroline K. Bettis, Note, Adding Insult to Injury: How the
Cashen Protocol Fails to Properly Balance Competing Constitutional Interests of Iowans,
60 Drake L. Rev. 1151, 1167 (2012). This note further references articles from the Des
Moines Register for the proposition that our Cashen decision was controversial. Id. at
1187.
Decisions of our court, of course, are often controversial. It is not possible to
avoid controversy in hotly contested cases as all potential resolutions are likely to be
controversial in some quarters. Indeed, the recognition of the psychotherapist–patient
privilege is subject to controversy. See Jaffee v. Redmond, 518 U.S. 1, 18, 116 S. Ct.
1923, 1932, 135 L. Ed. 2d 337, 350 (1996) (Scalia, J., dissenting) (caustically noting
that “[t]he Court has discussed at some length the benefit that will be purchased by
creation of the evidentiary privilege in this case: the encouragement of psychoanalytic
counseling” and that “[i]t has not mentioned the purchase price: occasional injustice”).
We decide our cases based upon facts and law and not upon perceptions of whether a
decision will be viewed by some as controversial.
I also resist any implication that the legislative approach was “better” than the
approach in Cashen. As stated in my Neiderbach special concurrence, the issue is not
whether the approach of the legislature is better, or even worse, but whether the
approach, on its face, meets the requirements of the United States and Iowa
Constitutions. State v. Neiderbach, 837 N.W.2d 180, 220 (Iowa 2013) (Appel, J.,
concurring specially). Our view of what might be better policy is of no consequence.
38
One of the reasons for that conclusion, however, is that the
threshold standard for production of mental health records is not overly
demanding. The standard of “reasonable probability” in Iowa Code
section 622.10(4)(a)(2) requires a plausible showing that the mental
health records in the case may likely produce exculpatory evidence. Id.
at 226. Further, any approach to the proper standard must recognize all
of the statutory language, including “reasonable probability” and “may.”
See Iowa Code § 622.10(4)(a)(2)(b) (requiring the district court to conduct
in camera review when the defendant has shown “a reasonable
probability that the privileged record sought may likely contain
exculpatory information that is not available from any other source”
(emphasis added)). In addition, the proper interpretation of the statute
must recognize the constitutional restraints described in Pennsylvania v.
Ritchie, 480 U.S. 39, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987); Davis v.
Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); and
United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S. Ct. 3440, 73 L.
Ed. 2d 1193 (1982). Finally, while characterization of the effort as a
“fishing expedition” has emotional appeal, it cannot be a substitute for
analysis of the specific request in the context of a specific case. See
Neiderbach, 837 N.W.2d at 225 n.8.
__________________________
See State v. Mauti, 33 A.3d 1216, 1229 (N.J. 2012) (stating that where the legislature
has enacted a privilege, the court’s “own conclusions about what would be better policy
are simply of no consequence”); see also Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S.
___, ___, 132 S. Ct. 2566, 2600, 183 L. Ed. 2d 450, 490 (2012) (noting it is not the
Court’s role to pass upon the wisdom of the federal Affordable Care Act’s requirement
that individuals pay a tax if they do not obtain health insurance, but rather only upon
its constitutionality). Any implication that certain policy preferences are relevant with
respect to the constitutional issues in this case undermines the appearance of
impartiality of judicial review.
39
Finally, although the statements are indirect and are plainly dicta,
I disagree with any suggestion that exculpatory evidence in the trial of a
defendant facing life in prison might be denied to the defendant because
of the privacy needs of a deceased party. In Heemstra, where the
defendant sought a deceased’s victim’s medical records, we found the
defendant had set forth a “bona fide claim of compelling interest
sufficient to require a limited disclosure of the privileged information”
and noted the defendant might be able to use the evidence to impeach a
key prosecution witness. 721 N.W.2d at 559, 563. In doing so, we cited
another case finding a defendant’s need for treatment records to
outweigh a deceased’s privacy interest. Id. at 562 (citing United States v.
Hansen, 955 F. Supp. 1225 (D. Mont. 1997)). It would be astounding to
me that a party facing life in prison would be deprived of exculpatory
evidence in order to protect the privilege of a deceased victim. And, of
course, we do not have before us an absolute privilege statute related to
domestic abuse or sexual assault victims, which would raise a number of
very difficult issues that should not be prejudged in the absence of a case
or controversy before us.7
7The case for absolute privilege has been attacked in at least one leading treatise
and in the academic literature. See, e.g., Edward J. Imwinkelried, The New Wigmore: A
Treatise on Evidence, § 5.2.2, at 313–23 (2d ed. 2009) (canvassing empirical studies
related to the psychotherapist–patient privilege and concluding that “the available
studies . . . do not bear out the assumption that in the mind of the typical patient, the
existence of an evidentiary privilege has a major influence either on the decision to
consult a professional or on the decision to make revelations to a consulted
professional”); Edward J. Imwinkelried, Questioning the Behavioral Assumption
Underlying Wigmorean Absolutism in the Law of Evidentiary Privileges, 65 U. Pitt. L. Rev.
145, 159–62 (2004) (concluding, after canvassing empirical studies, that “lay
respondents were not as concerned about judicially compelled disclosure of confidences
that Wigmore hypothesized” and proceeding to review constitutional doctrines that
render absolute privileges qualified); Glen Weissenberger, The Psychotherapist Privilege
and the Supreme Court’s Misplaced Reliance on State Legislatures, 49 Hastings L.J. 999,
1004 (1998) (agreeing with Professor Imwinkelried that “the instrumental justification
40
C. Application of Proper Standard. I now turn to the proper
application of the standard articulated in my Neiderbach opinion.
Thompson’s main defense was that because of his PTSD, Thompson was
unable to form the requisite premeditation to support a conviction of
first- or second-degree murder. Thompson had evidence that Gabel
treated him very poorly, but he was unable to get this evidence into the
record at trial because Thompson declined to take the stand and the
defense witnesses did not have personal knowledge of the incidents.
Thompson’s hearsay evidence indicated Gabel once pointed a gun to his
head and pulled the trigger. On another occasion, she apparently held a
knife to his throat.
Thompson argues this kind of behavior toward a troubled veteran
of the Iraq war with combat experience tended to destabilize the
relationship and aggravate his PTSD. Thompson argued the mental
health records could demonstrate Gabel had a mean and manipulative
personality. Thompson asserted such evidence in the mental health
records could convince a jury that Thompson’s PTSD was in fact
exacerbated by Gabel’s conduct on the night of the murder and that,
because of the PTSD, he did not have the mens rea necessary to support
first- or second-degree murder on the night in question.
The case has some similarities to Heemstra. In Heemstra, the
defendant did not contest that he shot the victim, but instead argued
that the victim was a hot head and that he was provoked to shoot him in
self-defense. 721 N.W.2d at 552. Unlike in Heemstra, Thompson makes
no argument that he shot the victim in self-defense. Thompson argues
__________________________
for the psychotherapist privilege is unimpressive” and that “the empirical evidence for
the instrumental rationale is weak”).
41
that because Gabel pulled his PTSD triggers on the night in question, he
did not form the requisite intent to support a first-degree murder charge.
The mental health records could contain objective evidence that, like the
victim in Heemstra, Gabel had the kind of personality tending to behave
in a fashion that could be relevant to Thompson’s claim of entitlement to
an instruction on voluntary manslaughter.
In Heemstra, however, the mental health records tended to
impeach a key witness, the deceased’s wife, who claimed the decedent
had a calm disposition. Id. at 563. Here, Thompson does not claim the
evidence could be used to impeach a witness, but only that it could be
used to establish Gabel was the kind of person who enjoyed aggravating
his PTSD symptoms. Thompson attempted to establish this by offering
direct evidence of the incidents involving the gun and the knife, but
could not do so following the prosecution’s hearsay objection. Although
the evidence was hearsay, Thompson nonetheless offered hearsay
evidence indicating Gabel had a mean and manipulative personality and
engaged in activity that would tend to exacerbate his PTSD symptoms.
The State also argues Thompson did not provide the court with any
information about the records he sought, but this, of course, is the
catch-22 argument. See Neiderbach, 837 N.W.2d at 225. Because the
records are confidential, Thompson cannot provide the district court with
information related to their specific contents. But, all Thompson is
required to do is show that the circumstances surrounding Gabel’s
mental health treatment are sufficient to trigger a reasonably plausible
basis to believe there is exculpatory information in the records.
The district court denied the motion on the ground the information
about the nature of the relationship between Gabel and Thompson was
available from other sources. For the reasons expressed in Neiderbach, I
42
find the district court erred in reaching this conclusion. Medical records
are the gold standard of evidence. See id. at 228–29. Further,
Thompson exercised his constitutional right to not take the stand. There
were no other third-party witnesses to their private domestic relationship
that Thompson sought to develop. Further, the information sought
included the potential observations and diagnosis of a trained
professional. I am not convinced that such information was in fact
available from other sources.
The problem, however, is that Thompson offered no evidence
showing a nexus between the issues at trial and the mental health
treatment received by Gabel. He offered virtually no extrinsic evidence
regarding the circumstances surrounding Gabel’s involuntary
hospitalization. When asked why her mother “checked in” to the
hospital, Gabel’s daughter simply said “because her—my grandma, her
mom. Um, they just upset her to the point she thought she needed help,
I guess.” Thompson did not offer evidence indicating when the
hospitalization occurred, or even whether Gabel and Thompson had a
relationship at the time. Further, although Thompson told the district
court that the defendant’s expert indicated that obtaining the records
would be “very valuable,” Thompson offered no affidavit or other evidence
submitted from the expert on this point, but only the arguments of
counsel. Because Thompson failed through extrinsic facts to plausibly
tie the hospitalization to the issues in this case, I conclude the district
court did not err in declining to allow for in camera review of the
documents under the standard outlined in my Neiderbach special
concurrence. I do not concur in any additional discussion of the
application of the Neiderbach test beyond the above facts, which provide
a legally sufficient basis for denying production of the records in this
43
case. Any further discussion is merely dicta and is not necessary to the
outcome of this case.8
II. Conclusion.
For the reasons expressed above, I concur in result only in this
case.
Wiggins and Hecht, JJ., join this special concurrence.
8I further resist any slippery-slope-type argument regarding the application of
due process principles to other privileges. As noted long ago in a classic essay, “in
virtually every case in which a slippery slope argument is made, the opposing party
could with equal formal and linguistic logic also make a slippery slope claim.”
Frederick Schauer, Slippery Slopes, 99 Harv. L. Rev. 361, 381 (1985). Of course, the
only issue before the court involves the application of Iowa Code section 622.10(4), as
construed by this court, to the facts at hand.