*1 Iowa, Appellee, STATE of THOMPSON,
Christopher Craig
Appellant.
No. 12-0255.
Supreme Iowa. Court
Aug. *4 Smith,
Mark Appellate C. State Defend- er, Wilson, and Theresa R. Assistant State Defender, Appellate appellant. Miller, General, Attorney Thomas J. Bridget A. B. Chambers and Andrew Pros- marriage, prior General, teenage daughters from Jill Attorneys ser, Assistant worked on Thompson and Savana. Sierra appellee. Kistler, Attorney, for County M. and returned during the week the road WATERMAN, Justice. weekends. home on weekends, defen- County jury found would An Allamakee On guilty consuming a case dant, Craig Thompson, heavily typically Christopher drink — regularly the death and Gabel murder for of beer. second-degree During arguments, He their Angela argued. Gabel. girlfriend, his live-in other. Gabel slap after she each in the head would sometimes her twice fatally shot daughters’ in her bedroom slept inside a gesture from often obscene made an Thompson’s Thompson. during away from get had retreated she car where parked ag- Gabel as the verbal viewed on four relatives appeals He argument. an Thompson to urged A friend gressor. erred district court arguing the grounds, up with her. break (1) an instruction failing to submit voluntary offense of included the lesser 2, Thompson was Saturday, October On *5 (2) hearsay evi- excluding manslaughter; day watching football most of the home diminished-capacity his relevant to dence son, Gabel of their while taking and care stress posttraumatic his based on defense drinking began Thompson at work. was (3) (PTSD); declining to obtain disorder boyfriend and her p.m. Sierra at around victim’s mental review the deceased and ready p.m. get about 6 returned hоme for health records homecoming dance. high her school’s for Cashen, 789 N.W.2d under State v. p.m. 7 and 8 arrived home between Gabel (Iowa 2010), section and Iowa Code being was Thompson noted Sierra (4) 622.10(4) applying (Supp.2011); Shortly her mother. “grouchy” towards rejecting his claim wrong standard left boyfriend and her p.m., Sierra after evidence. contrary to the verdict was Ga- p.m., At around 11:30 the dance. Sierra, still at who was bel called decide the appeal retained We receiving after went home dance. Sierra 622.10(4). For constitutionality of section sounded her mother the call because below, uphold explained reasons She scared, something wrong.” was “like face. as constitutional on its the statute entrance. blocking cars police found court committed conclude the district in and not let Sierra The officers would rulings error in no reversible was dead. that her mother later told her af- appeal. We therefore challenged on Thompson’s firm conviction. the Allamakee enforcement from Law and the Monona County Sheriffs Office Background Facts and Proceed- I. call to a 911 Department responded Police ings. p.m. Thompson 11:32 Thompson placed at girlfriend his dispatcher he and light facts in the most told the ‘We recite the Garcia, sitting in a while she was got fight in a State v. favorable to the verdict.” 2000). I car, big finger F gave me By all “[s]he f_shot the officers ar- her.” When accounts, Thompson and Gabel had a red Gabel dead inside they rived found They living had been rocky rеlationship. driveway. Monona, in the farmhouse parked a farmhouse outside Corsica together at house with his came out of the Iowa, Thompson years. two October for about him to Officers advised in his arms. of the farmhouse son the other residents retreated Thompson but up, his hands put and Gabel’s eight-month-old were their son Thompson ultimately back into his house. nothing does for him. got Gabel out of police surrendered to the at 1:19 a.m. and slapped bed and him. Thompson then was taken to the Waukon Police Depart- pushed against her the wall. Gabel left ment. the room and ran downstairs and outside yell while continued to at each other. Thompson rights was read his Miranda Thompson accused her of leaving go approximately agreed a.m. He to a outside, the riverboat casino. Once Gabel videotaped During interview. that inter- climbed into her daughter’s car after find- view, Thompson estimated that he drank ing hers Thompson, locked. watching beers, eighteen but said he did not know deck, from the saw Gabel him flip off and Deputy whether he was sober. Clark Mel- saw her talking on her phone. cell lick Thompson testified was intoxicated Thompson believed talking Gabel was actually but “was functioning at that time.” mother, telling his her what a guy” “bad Thompson given was later a breath test he is. He “pissed off’ and went inside after the interview ended at 4:40 a.m. His to retrieve a .22 caliber rifle from their blood alcohol level was .184. bedroom. Thompson vented to the officers about He came back out prоblems onto the deck relationship in his with with Ga- him rifle. Gabel They flipped again.
bel. off fought money. over He said he paid aiming, Without gambled gun the bills while she fired the at the at her twenty riverboats. from fifteen to complained away. about feet *6 The infrequent through their sex bullet went complained life. He driver’s side that she failed to window. He told properly discipline police only he meant to shot, children. scare her with Thompson they fought said the first of- not kill her. approached ten and that He slap Gabel would him to find her breathing, but punch him all could gonna the time. Gabel tell “she wasn’t had also make it.” put pistol Thompson to told pulled his head and officers he shot her a sec- trigger. “put ond time to Thompson said he had her out of her misery.” been tell- ing He past away Gabel for the four was three feet when months that he fired the she should leave second shot. The they get autopsy because didn’t showed Gabel along and was shot in because his “head was twice the head and snappin’.” either shot it, put As he could have guy just “Sometimes a been fatal. can’t f_take anymore.” it On October the State filed a trial Thompson told they officers that began charging Thompson with mur- arguing day on the of the incident some- degree, der the first in violation of Iowa time after game they 707.1, 707.2(2) were watching 707.2(1), Code sections (2009). ended. Thompson claimed up- Gabel was pled guilty He not and waived his set him with because he wanted to watch speedy to trial. He filed a notice of more football while she wanted to go rely have intent to on the defenses of insanity sex with him. Gabel go decided to responsibility. bed and diminished He filed a without him at around 10:30 p.m. When motion to suppress his statements po- later, Thompson lice, came up she asleep. claiming was capacity he lacked the mental He up woke her to have sex. Gabel told rights. to waive his Miranda The district him it Thompson was too late. told the court hearing held a on the motion and officers that her temper flared after Thompson he denied it. appeal does not called her a “bitch” pays and told her he ruling allowing videotaped his confession everything for for though her even she into evidence. 15, 2011, ruling court’s as to wheth- Thompson filed an review a district August
On of discovery contrary weight the dis- er a to the asking verdict application an in camera review the for abuse of State trict court conduct evidence discretion. (Iowa Reeves, Gabel’s mental health to deter- v. of 2003). if contained evi- mine hearing The held
dence. district court Analysis. III. September applica- 12 and denied the on two later. ruling days tion in a written Voluntary Manslaughter A. Jury contends Instruction. The jury began The trial November 8. by failing court erred to submit district guilty of lesser jury found on the lesser requested jury his instruction included offense of murder the second voluntary manslaugh included offense in violation of Iowa section degree, Code ter. the evi The district concluded Thomp- 707.3. The district court denied provocation dence was insufficient motion for new trial and son’s combined support submission: judgment. The court arrest of sentenced that the factual court is concerned Thompson to of incarceration not to a term Voluntary inadequate give record fifty years. Thompson appealed. exceed under Instruc- Manslaughter Uniform proce- We discuss additional facts and 700.15, specifically finding tion evidence history specific dural with the issues decid- provocation as defined the record ed below. Instruction 700.16. Uniform evidence court understands that there is Scope II. of Review. having victim the Defen- slapped A district court’s refusal to sub There is of the victim dant. evidence requested jury mit a is re instruction finger having given Defendant viewed for correction of errors at law. occasions. The court is several Rains, State provoca- satisfied that that constitutes *7 1998). We review the district court’s evi- tion. dentiary of rulings for abuse discretion. “seri- agree. We had to show Huston, 531, State v. 825 N.W.2d 536 provocation” by ous Iowa Gabel. See Code (Iowa 2013). Rulings admissibility on the § provoca- The evidence of 707.4. serious hearsay evidence are reviewed for cor slapped tion in this case—that Gabel rection of errors at law. State Buena v. flipped before he Thompson and him off (Iowa 2003). ventura, 38, 660 50 N.W.2d shot insufficient to submit a vol- her —was Discovery challenged rulings on constitu untary manslaughter instruction. grounds tional are reviewed de novo. (“Because Cashen, 789 at 405 be sub N.W.2d “Lesser offenses must jury issues in this rest on as within the case constitutional mitted to included if involving process chаrged only claims Cashen’s due offense but if meet defense, present appropriate our review is de both and factual legal novo.”). Ware, 707, 714 challenges Nonconstitutional to tests.” State v. 338 N.W.2d (Iowa 1983). discovery legal An rulings are reviewed for abuse of offense meets “ (“Ordinarily, composed discretion. Id. we test if lesser [is] review dis offense ‘[t]he discretion.”). covery solely orders for an abuse of some but all elements 299 greater Sangster, We review of ineffective crime.’” State v. claims assistance (Iowa 1980) Blaise, (quoting of counsel de In re Det. State novo. N.W.2d 663 (Iowa 2013). Furnald, 830 N.W.2d 263 N.W.2d 1978)). legal jective The test met here because objective standard and standards explicitly provides Iowa section 707.4 Code be met before a defendant can be convict- “[v]oluntary manslaughter is an included ed of voluntary manslaughter.” offense under an indictment for murder in N.W.2d at 122. We elaborated: degree.” the first or second Iowa Code subjective requirement of section 707.4;1 Inger, accord State v. 707.4 is that the defendant must act (Iowa 1980) (“By N.W.2d solely sudden, violent, as a result of 707.4, paragraph second of section the leg- sudden, passion. irresistible vio- islature has seen fit to make voluntary lent, and manslaughter passion irresistible lesser included offense must result Therefore, second-degree murder. the ‘le- from provocation serious sufficient to ex- satisfied.”). But, gal’ test ... Thomp- passion cite such in a reasonable person. son fails to meet the factual test. This is an objective requirement. It is necessary, also as a objective final re-
Determining whether a lesser quirement, that there is not an interval included offense meets the factual in test “ provocation between the and the killing volves ‘an ad hoc determination whether there is a factual basis in the record for in which a person ordinary reason and submitting the included offense to the temperament regain would his or her ” jury.’ Sangster, 299 suppress control and impulse to kill. 752). Furnald, (quoting 268 N.W.2d at A Id. factual basis exists if the defendant has produced “substantial evidence of each The district court give declined to necessary element of the lesser-included voluntary manslaughter instruction be- Royer, State v. offense[].” cause there was insufficient evidence of the (Iowa 1989). 637, 643 objective first requirement “[t]he —that Section 707.4 provides: sudden, violent, passion and irresistible person A voluntary commits man- ... from provocation resulted] serious slaughter when that person causes the passion sufficient to excite such in a rea- person, death of another under circum- person.” sonable Thompson presented Id. stances which would otherwise be mur- him, evidence that slapped Gabel had der, if person causing the death acts him, arguing with him given had “the sudden, violent, solely as the result of finger” before he Inger, shot her. passion resulting irresistible from recognized that evidence the victim as- *8 provocation serious sufficient to excite saulted the defendant could be sufficient to passion such person in a and there is not provocation. establish serious Id. We аn interval between the provocation and summarized the evidence in that case as killing in which a person ordinary follows: reason temperament regain and would control suppress impulse to kill. Defendant testified that at- decedent added). § Iowa Code 707.4 (emphasis him, tempted thereby inducing to strike swing defendant to Inger,
In out of explained [decedent] we that requires 707.4 that anger. “[s]ection both a sub- fear or Other evidence showed nonsubstantive, general (West 2013). assembly 1. The provision § made 224 This can be (West, technical amendments to Iowa 707.4(3) Code section found in Iowa Code section session, during legislative 707.4 its 2013 legislation Westlaw current with from the breaking statutory provision into four sub- Sess.). Reg. 2013 90, Legis. sections. See 2013 Iowa Serv. ch. attack, his told him after the mother she hit defendant then [decedent] defendant then with his fist. somehow had been assaulted man [Decedent] head pole against support- killed)). a metal inapposite fell down cases be- Those are and, store while ing grocery [the “merely were cause the words Gabel used down, quickly was defendant decedent] did not tell insulting or abusive”—she head. in the kicked [decedent] anyone she had assaulted close Thompson to omitted). him. (citations We concluded Id. testimony provide[d] a own “[d]efendant’s with district agree meet subjec- factual to sufficient basis him and insult- slapping Gabel’s actions the defendant acted requirement
tive ing fell short of gestures him with obscene sudden, violent, and solely as a result of re- objectively provocаtion serious (emphasis add- passion.” Id. irresistible voluntary manslaughter quired to submit ed). Ballinger, No. instruction. See State v. alone, historically, Additionally, words (Ohio 962835, 79974, at *6 2002 WL Ct. provide to a factual have been insufficient 2002) App. “trial court did May (holding See, e.g., provocation. basis for serious refusing not to on the err in instruct inferi- 179, 192, Rutledge, 248 Iowa State voluntary manslaughter” or offense (1951). Thompson con- slapped when victim however, tends, jurisdictions are that some accidentally have come into contact with ap- beginning to reevaluate historical infant and called de- daughter defendant’s proach. support proposition, of this bitch). fendant a Wayne cites R. LaFave’s trea State had Finally, argues tise, According Law. Substantive Criminal time to think twice and calm down. After treatise, recog this courts have to some finger through Gabel him the the car gave may be nized that words alone sufficient to away, to feet twenty window fifteen he provocation if the words are in establish deck to his walked from outside bed of a (conveying formational get room the rifle and returned provo fact which constitutes a reasonable observed) But, given holding deck shoot her. our cation when that fact is rather insufficient, merely abusive we insulting provocation than words. need LaFave, Wayne R. Substantive whether this was a sufficient Criminal decide (2d ed.2003). 15.2(b)(6), Law at 499-500 “person ordinary interval for a reason support cited in of this Two cases regain his or her temperament [to] proposition being involved a defendant told suрpress impulse control and kill.” victim a close rela that the had assaulted Inger, 122. Accordingly, 292 N.W.2d at (citing tive. id. at n. 60 State v. Co See the district refusal affirm court’s pling, N.J.Super. A.2d voluntary submit an instruction man (Ct.App.Div.1999)(noting person “a slaughter. actually provoked can be without witness- *9 Hearsay Evi B. Exclusion of on the
ing
provoking
assault
relative”
Thompson
dence.
the district
appeals
defendant,
analyzing
while
whose
whether
of hearsay
court’s exclusion
evidence show
had
mother told him the victim
attacked
ing
an
occasion Gabel
brother,
that on
earlier
pro-
defendant’s younger
was
with a
voked),
Specifical
threatened him
firearm.
and
Berry,
Commonwealth
(1975) (hold-
ly,
testimony
court
the district
excluded
Pa.
263-65
A.2d
from
friend
ing jury
Joseph
could
his
Christen
pro-
find
was
when,
forty-five
arriving
shortly
thirty
voked
on the scene
told him
to
Thompson
a
A
days
expert
earlier
Gabel had aimed revolv-
suffered from PTSD.
defense
was
testify
The district
morning.
regarding
er at him the same
allowed to
the content of
event,
testimony
any
court also excluded
from Gabel’s
the letters.
the evidence of
daughter
putting
told her about
that Gabel
guilt
overwhelming. Thompson’s
gun
Thompson’s
head.
conclude
We
videotaped confession
his
includes
admis-
reviewing
after
record that
this evi-
intentionally
sions that he
Gabel
shot
correctly
hearsay.
dence was
excluded as
“put
second time to
her out of her misery.”
Thompson
lay
to ad-
did
foundation
Accordingly, Thompson was not entitled to
any exception
mit the
under
evidence
Howard,
new trial.
See State v.
the hearsay
rule.
2012)
(noting evi-
dentiary еrror is harmless when State es-
also
the district
Thompson
claims
overwhelming
of guilt).
tablishes
evidence
erroneously
sup
court
excluded evidence
We affirm the district court’s evidentia-
porting his PTSD defense. The evidence
ry rulings
denial of Thompson’s
and
mo-
correspondence Thompson
includes
sent
for a
tion
new trial.
Iraq describing
experiences.
from
his war
The State
that the
court
responds
district
Thompson’s Request
C.
for Gabel’s
correctly
hearsay.
his
as
excluded
letters
Thompson
Mental Health Records.
chal-
lay
agree. Thompson
We
failed to
a foun
lenges the district court’s denial of his
any
dation
supporting
exception
application to
obtain
review camera
hearsay
present
impres
rule such as
sense
Gabel’s mental health
records.
must
emotional,
mental,
existing
sion or then
622.10(4)or
decide whether section
Cashen
physical state of mind. See Iowa R. Evid. governed
request.
this
Thompson argues
5.803(1), (3).
example, Thompson
For
nev
622.10(4)
appeal that
section
is uncon-
er showed the letters were
while
written
under the Iowa
stitutional
Constitution to
he was
... or
“perceiving
event
imme
extent
the statute makes it more diffi-
5.803(1).
diately
r.
thereafter.”
See id.
for a
potentially
cult
defendant to obtain
reasons,
For the same
the district
from
evidence
a victim’s men-
correctly
testimony
Thomp
from
excluded
than
tal
it would be under
brothers,
Cristen,
Tyler
regard
son’s
protocol
forth in
set
Cashen.2 We
ing the letters.
begin by comparing the
and statu-
Cashen
tory approaches to frame the constitutional
Moreover,
carefully
after
review
analysis.
record,
ing
we conclude that
error
in excluding
'protocol.
this evidence was harmless.
1. The
Cashen
Cashen
Ross
Tyler
testify
regarding
charged
was allowed
de was
with domestic abuse assault
experiences.
injury,
fendant’s
of his
class “D”
reports
war
and willful
felonies with
dispute
Thompson
ten-year prison
The State did not
sentences.
potential
Cash-
appeal.
challenge
did not
the constitu-
this issue on
facial chal-
direct
His
622.10(4)
tionality of
lenge
section
in district court.
constitutionality
statute
of the
appeal, Thompson
On
contends his trial coun-
question of law. Because we conclude the
sel was ineffective because he failed to chal-
reject
statute is
his facial
constitutional
lenge
constitutionality
statute
under
challenge, his ineffective-assistance claim nec-
the Iowa
Constitution.
concedes
essarily
prejudice. See
fails for lack of
State v.
complies
the statute
with the United States
Elston,
(Iowa 2007)
Constitution,
contends
but
it violates his
("[I]f
decide [an
the record is sufficient to
present
to a fair trial and to
a defense under
*10
], we
ineffective-assistance-of-counsel] claim[
process
the due
clause of the Iowa Constitu-
appeal.”).
will do so on direct
adequate
tion. We find the record
to decide
en,
privileged
at
He claimed victim’s
mental health records.”
404-05.
...
a
argued
emphasize[d]
at
Id. at 405. ‘We
Id.
404. Cashen
self-defense.
victim,
engage
the
is not entitled to
in a
health records of
the mental
Doe,
credibility
seeking a
fishing expedition
to her
when
victim’s
were relevant
Jane
Then,
violence.”
Id. at 408.
“propensity
her
for
mental
records.”
and to show
a
already
five-step protocol.
some of her we outlined
Id. at
acquired
Id. He had
First,
must file a
sought
more. Id. The state
408-10.
the defendant
records
limine,
“demonstrating
good
her records were
confidential motion
a
arguing
moved
factual
the records sought
Id. The
court denied
faith
basis that
inadmissible.
district
the
records
contain evidence relevant
to
defen-
the motion and ruled the
were
Second,
to
claim of self-defense
dant’s innocence.” Id. at 408.
the
relevant
Cashen’s
attorney
credibility.
granted
county
notifies and
with
and Doe’s
Id. We
the
confers
discretionary
for
victim.
Id. “If the victim
to
application
state’s
review the
consents
disclosure,
the
to the court of
the
the court shall issue a sub-
and transferred
case
for the
part
poena
produced
which
but failed
records to be
un-
appeals,
affirmed
to
to the
Id. If the
discovery procedure
address the
for
der seal
court.”
victim
a
objects,
hearing
mental health records.
Id. at 404-05. We
court is to “hold
to
granted
probability
at 405.
if a
ex-
further review. Id.
determine
reasonable
ists that
the records contain exculpatory
argued
psychotherapist
The state
“
tending
evidence
to create
reasonable
into
privilege prevented
‘intrusion
”
and,
to the
guilt”
doubt as
defendant’s
if
and,
mental health
alter-
victim’s
records’
so,
for the
subpoena
“issue[s]
records to
be lim-
natively, that
disclosure should
produced
under seal to
court.” Id.
argued
Id. at 405. Cashen
his con-
ited.
to
protective
The court is
enter a
order
supported
to a
right
stitutional
fair trial
issuing
Id.
subpoena.
before
at 408-
access to
compelled
confidential records
Third,
obtained,
once
records are
09.
exculpatory
contain
evidence.
attorney,
judge,
the defendant’s
not the
J.,
(Cady,
dissenting).
Id. at 414
Our
inspects
records at
courthouse.
precedent employing
reviewed
court
“a
Fourth,
Id. at
if defense counsel
balancing
party
test to determine if a
to a
information,
exculpatory
identifies
is entitled
the confi-
proceeding
to review
attorney
are
county
and the court
notified
nonparty.”
dential medical
of a
county
to a
prior
hearing,
attorney
(majority opinion).
Id. at 405-07
We rec-
review
given
opportunity
to
the iden-
ognized patients
qualified,
have a
rather
Fifth,
records.
the court
tified
Id.
holds a
absolute,
right
than an
“constitutional
to
hearing
closed
to determine whether the
privacy in their medical records.” Id. at
and,
so,
information is
if
allows
recognized
defen-
406. And we
“a criminal
use, subject
protective
order.
Id.
process
present
dant has a due
jury
might
evidence to a
influence
require
expressly
declined
“a
jury’s
guilt.”
determination of
Id.
that the
showing
in the
Ritchie,
Pennsylvania
(citing
U.S.
from
records could not be obtained
anoth-
39, 56,
989, 1000-01,
107 S.Ct.
94 L.Ed.2d
source,
testimony,
er
such
the victim’s
as
(1987)).
40, 56-57
before the defendant
is allowed to seek
opportunity
production
tоok the
of the victim’s mental health
Cashen
Id. at
proper protocol
“set forth
to be used
records.”
410. We concluded Cash-
showing
a court to determine when and how a
en had made the threshold
attorney
with
gain
defendant’s
can
access
remanded
instructions
issuance of
*11
subpoena for Doe’s mental health rec-
to supersede
proto-
Cashen test with a
ords. Id. at 410-11.
col
protection
that restores
for the confi-
dentiality of counseling records while also
Cady
dissenting
Justice
dissented. His
protecting
process
the due
rights of defen-
opinion
controversy
foreshadowed
Walker,
dants. See State v.
804 N.W.2d
engendered:
Cashen
(Iowa 2011)
284,
(“
‘We seek a reason-
majority adopts
The
one of the weakest
able interpretation which will best effectu-
to the
in an
tests known
law
area of the
ate
purpose
of the statute
....’”
law that deals with the clash of two of
Johnson,
(quoting
638,
State v.
compelling
the most
and venerable in-
(Iowa 1995)));
id. at
(noting
known
step
terests
to the law. This is a
“
our court’s
‘mandate to construe statutes
gives
backwards.
It
the defendant more
in a fashion to avoid a constitutional infir-
power
necessary
than
protect
”
mity
possible’
where
(quoting In re
trial,
presenting
to a fair
while
2010))).
Young, 780 N.W.2d
serious risk of a different form of abuse
for victims of domestic violence. This
2. The constitutionality
section
new
ultimately
test
also
cause vic- 622.10(1).
charges
While murder
were
tims to
to report
decline
domestic abuse pending against Thompson,
legis-
the Iowa
protect
order to
thеmselves from be-
lature,
Cashen,
in reaction to
passed Sen-
ing required to
very personal
disclose
ate File
291. 2011 Iowa
ch.
Acts
private
alleged
information to the
The law
upon
took effect
its enactment on
parties
abusers and other
to the prose-
March
2011. 2011 Iowa Acts ch.
cution.
§ 3. Senate File 291 amended section
J.,
(Cady,
by adding
Id. at 411
622.10
dissenting).
following
Others
subsection:
See, e.g.,
raised the same concerns.
Caro-
4. a. Except as otherwise provided
Bettis, Note,
line K.
Adding Insult
to In-
subsection,
in this
confidentiality
jury: How the Cashen Protocol Fails to
privilege under this section shall be ab-
Properly Balance Competing Constitu-
solute with regard to a criminal action
Iowans,
tional
Interests
60 Drake
and this section shall not be construed to
(2012)
L.Rev. 1151
[hereinafter Bettis].
authorize or require the disclosure of
any privileged
dissent
a defendant in
Cashen
concluded as fol-
a criminal action
either
lows:
unless
following occur:
The new test developed by majori-
(1)
ty may
easy
and beneficial to defen-
The privilege
voluntarily
holder
dants,
step
but it is a
back both for
waives the confidentiality privilege.
victims and for
progress
made in
(a)
(2)
seeking
defendant
access
addressing domestic violence over the
privileged
records under this section
last
only way
decade. The
victims of
demonstrating
good
files motion
domestic
history
abuse with a
of coun-
probability
faith a reasonable
seling will be able to ensure the confi-
likely
to contain
dentiality
private
of their
counseling rec-
exculpatory infоrmation that is not avail-
ords is to not report domestic abuse.
able from
other source and for
The law should be able to do better.
which there is a
for the
compelling need
legislature
defendant any criminal action. of the to seek a waiver constitutes this records under privileged 622.10(4) access to (Supp.2011). § Iowa Code court, section, good for cause but the 622.10(4) is Thompson argues section shown, relief waiv- may grant from such its face because the unconstitutional on er. sets the constitutional protocol Cashen
(b)
floor for
defendants’ access to the
showing
a reasonable
criminal
Upon
exculpatory mental health rec-
potentially
privileged
that
the
records
probability
alleged
victims.
ords
their
likely
exculpatory
contain
sought
key
focuses on three
differences between
is not available from
information
622.10(4).
and section
protocol
the Cashen
source, the court
conduct
other
shall
any
First,
requires
stronger
the statute
review of
records to
an in camera
such
showing
threshold
to obtain mental health
exculpatory
whether
informa-
determine
inspection.
records
an in camera
Com-
for
in such
tion is contained
records.
622.10(4)(a)(2)(a)
§
pare
(requiring
id.
de-
(c)
exculpatory information is con-
If
proba-
fendant
“a reasonable
to establish
records,
shall
tained in such
the court
bility
sought
likely
that the information
is
need to
such infor-
balance the
disclose
exculpatory
to contain
information ...
for
against
privacy
the
interest of
mation
compelling need for the
which there is a
privilege
holder.
present a defense in the
defendant
(d)
determination,
court’s
Upon the
case”),
Cashen,
Maryland’s highest
court,
court held that “to performed by the
not defense coun
622.10(4)(a)(2)(b).
require
disclosure at
trial of privileged
sel.
Id.
re-
Cashen
83,
1194,
Brady
(1963).
Maryland,
5.
v.
373 U.S.
83 S.Ct.
Relatives and
who
senting).
come
A commentator elaborated
willing
also will be more
abuse
who learn their
if
that
identi-
mind-set
victims
they
forward
know
their
this,
private
will
lawyer
attacker’s
review their
Recognizing
be protected.
ties will
mental health records:
Commonwealth—like
all other
effort
made a commendable
States —has
Consider the circumstance of a woman
and
to assure victims
witnesses
raped.
been
The crime itself
who has
they may speak to the CYS counselors
traumatic,
likely
shattering,
has had a
fear
general
without
disclosure.
impact
ability
and destructive
on her
frus-
purpose would be
Commonwealth’s
live
had
the life she
before it was com-
if this
trated
confidential material had
In an effort to deal with
mitted.
and
upon
disclosed
demand
a defen-
be
ordeal,
from her
she has under-
recover
abuse,
criminal
charged
dant
with
child
gone counseling,
which she
during
may
may
a trial court
simply because
information,
thoughts,
have disclosed
recognize
evidence. Nei-
fears, and self-doubts of the most in-
precedent nor common
re-
ther
sense
It
tensely personal
private
kind.
such
quires
a result.
that,
trial,
enough
bad
come the
she
her ordeal before an audi-
must relive
Ritchie,
60-61,
at
at
U.S.
S.Ct.
strangers,
judge
ence of
(footnote
1003,
Reasonable rights the competing revictimizing to balance er the concern over how best includes and through their victims. specific living of criminal defendants victim disclo- simply to decide whether Our task is sure of confidential records to her her in by the elected branches chilling balance struck or the victim’s lawyer, abuser’s 622.10(4) is constitutional. We section to ongoing counseling report or incentive 622.10(4)is constitutional that section But, hold further the societal interest abuse. supersedes on the Cashen its face health privacy of mental records con- protocol. regardless tinues death of unabated any generally victim. See Iowa individual next determine whether the district
We privacy ch. of mental (protecting Code 228 correctly applied the statute. Cashen, information); health 789 N.W.2d confidentiality mental 3. The the fundamental im- (discussing patient’s survives death. health records confidentiality in mental health portance of with analysis our the observation begin treatment). confidentiality Gabel’s mental that the her survives death. See health records meet failed (“[T]he Cashen, phy at 414-15 to obtain requirements threshold Gabel’s continues after sician-patient privilege mental health records. claimed death....”) Broun, (citing 1 Kenneth et S. he needed mental health Gabel’s records al., Evidence at 462 McCormick He support argued his PTSD defense. (6th Heemstra, ed.2006)); State v. her contain records could information (Iowa 2006) (noting medi N.W.2d manipulation, showing prone “she was privilege patient’s cal continued after anger, violence all of which exac could Chi., death); Bailey v. & Burlington cf. symptoms.” Thompson erbate his PSTD R.R., Quincy N.W.2d failed to Gabel received mental show when (“[T]he 1970) by protective provided shield why she was treated. treatment ... generally Code section 622.10 survives Thompson’s The State resisted motion for death, the client’s termination of the rela September an in On inspection. camera litiga of a tionship, or dismissal case 14, 2011, Thomp the district court denied tion.”). determining upon son’s motion he had course, pa Of the death of the “no showing proba made of a reasonable consider in balancing tient is a fact to bility records privileged rights exculpato of a criminal defendant to may likely exculpatory information contain ry in confidential records. Af source, other available from all, ter holder of the has privilege “[t]he compelling which defendant had a need private preventing little interest disclo present a defense.” The district court sure, he is dead.” because United States “[f|acts regarding found victim’s Hansen, F.Supp. 1226 conduct relating PTSD] defense [the Cashen, (D.Mont.1997); accord already presented deposi have been (noting at 414 the “diminish[ed] tions” and other sources were avail ... importance protecting the expert. able to We agree. the defense death). patient’s from disclosure” after the *20 Thompson showing no evidence offered Perversely, a defendant who his vic- kills access a nexus between the issues trial and greater tim have to her mental by treatment received than an vic- the mental health health records abuser whose virtually no extrinsic balancing competing tim Gabel. He offered survives. Rather, argued circumstances sur- court. he regarding Thompson the trict evidence involuntary rounding hospitaliza- prejudiced evidentiary errors, by prin- Gabel’s was why her videotaped asked mother cipally tion. When his confession was hospital, in” to the Gabel’s into despite “checked admitted evidence his intoxi- daughter my “because simply ruling said he not challenge cation—a does on her — Um, just upset her grandma, appeal. agree mom. with State that though she needed point her she Thompson failed to error preserve on his I did not help, guess.” Thompson estab- applied the district wrong claim court occurred, 2.24(2)(6)(6). when the or hospitalization lish under standard rule Thompson had even whether Gabel and event, already we havе concluded Further, relationship at the time. al- overwhelming supported evidence before though Thompson asserted the dis- Accordingly, verdict. guilty the district expert trict court that the defendant’s in- did deny- court not abuse its discretion in obtaining records would dicated ing Thompson’s for new motion trial. See valuable,” “very there was no affidavit Reeves, 670 at 202 (noting N.W.2d our other evidence submitted from the ex- court’s review of the district court’s ruling only the pert point, arguments on this but contrary as whether the was verdict of counsel. weight of the evidence is for abuse of Thompson’s disputed. PTSD was not discretion). denying We affirm order plead He did not self-defense. Gabel’s Thompson’s motion new trial. for jury mental state was not at issue. The evidence the conduct of regarding
heard IV. Conclusion. Thompson night he and Gabel shot reasons, For these affirm the rulings her, concerning as well as evidence Thompson’s of the district court and con- relationship. Thompson of their nature viction. go fishing expedi- not entitled to was AFFIRMED. in her mental records. He tion already had what he needed. district justices CADY, C.J., All except concur correctly court ruled failed to specially, Appel, concurs who showing required make the for an in cam- HECHT, WIGGINS, JJ., who 622.10(4). inspection era under section separately specially. concur D. The Was Not Verdict Con CADY, (concurring spe- Chief Justice trary to the Evidence. moved cially). trial, a new because “the part, for ver by majority I concur in guilty jury opinion, dict rendered was but my contrary separately express to evidence.” He claims on write view that ap applied statutory judicial the district review peal wrong standard motion under denying stating standard his of confidential records Iowa Code 622.10(4) jury’s supported by (Supp.2011) verdict am should be section “[t]he through the ple appeal, given application evidence in the record.” On its definition case-by-case Rule facts on basis. As Thompson relies on Iowa of Criminal of this 2.24(2)(6)(6) Neiderbach, Ellis, and State and State v. Procedure case 1998). (Iowa 180, 220-43, 2013), Howev WL er, illustrate, never are Thompson’s counsel cited that the facts what should the “reasonable posttrial meaning rule or Ellis in his motion or breathe into standard, during motion and this standard hearing probability” on that in dis- *21 492 involved, Thompson dem- in the frame could not greater clarity gain
will continue good faith belief that give required cases continue to onstrate the future as additional probability a existed shape. reasonable it ex- likely were to contain records APPEL, (concurring specially). information, Justice or that the defense culpatory had need compelling a records. below, I con- expressed For the reasons 622.10(4)(a)(2)(a) (Supp. See Iowa Code in this case. only in the result cur 2011). Hence, Thomp- the State contends son not establish what information in did of Mental Health Rec- I. Production him in his help medical records would ords. particularized defense. Without more Thomp- the Parties. A. Positions of knowledge of the contents of the mental in not claims the district errеd son records, suggests, produc- health the State Angela health rec- ordering Gabel’s mental tion is unjustified. of the documents produced inspection. for in camera ords Further, Thompson the State claimed evidence Gabel was hos- Thompson offered failed to demonstrate the information was past in the for mental health is- pitalized other unavailable from sources. State Skemp at Franciscan Medical Center sues living
493 conclusion, specific request One of the reasons for in the context of a however, specific Neiderbach, is the threshold standard case. See 837 of mental health production records is N.W.2d at 225 n.8. overly demanding. The standard of Finally, although the statements are in- probability” “reasonable in Iowa sec- Code dicta, direct plainly and are I disagree with 622.10(4)(a)(2) requires plausible tion any suggestion that exculpatory evidence showing that the mental health in in the trial of a defendant facing life in may likely produce the case exculpatory prison might be denied to the defendant Further, any ap- evidence. Id. at 226. privacy because of the needs of a deceased proach to the proper recog- standard must Heemstra, party. In where the defendant statutory nize all of language, includ- sought a deceased’s victim’s medical rec- ing probability” “may.” “reasonable ords, we found the defendant had set forth 622.10(4)(a (re- )(2)(b) Iowa See Code a “bona fide claim of compelling interest quiring the district court to conduct in sufficient tо require a limited disclosure of camera review when the defendant has privileged information” and noted the shown “a reasonable probability that the might be able to use the evi- privileged record sought may likely con- dence to impeach key prosecution wit- tain exculpatory information that is not 559, ness. 721 N.W.2d at doing 563. In any (empha- available from other source” so, we cited another finding case a defen- added)). addition, sis proper inter- dant’s need for treatment records to out- pretation recognize of the statute must weigh a privacy deceased’s interest. Id. at constitutional restraints described Hansen, 562 (citing United States v. 955 Ritchie, 39, Pennsylvania v. 480 U.S. 107 (D.Mont.1997)). F.Supp. 1225 989, It would (1987); be S.Ct. 94 40 L.Ed.2d Davis v. astounding to me that a Alaska, party facing life in 308, 1105, 415 94 U.S. S.Ct. 39 prison deprived would be (1974); of L.Ed.2d 347 and United v. States Valenzuela-Bernal, 858, protect evidence order to the privilege 458 U.S. 102 S.Ct. (1982). 3440, And, course, of a 73 deceased victim. of Finally, L.Ed.2d 1193 while do not have characterization of the effort before us an absolute privilege as “fishing expedition” has emotional statute appeal, related to domestic abuse or sexual it cannot victims, be a substitute for analysis of assault which would raise a num- length (Iowa 2013) J., discussed at some the benefit that will (Appel, concurring specially). purchased by Our view of what evidentiary creation of the might policy consequence. be better noof
privilege encouragement in this case: the Mauti, See State v. 208 N.J. 33 A.3d psychoanalytic counseling” and that has “[i]t (2012) (stating that where the purchase price: not mentioned the occasional legislature privilege, has enacted a the court’s injustice”). upon We decide our cases based "own conclusions about what would be better upon perceptions facts and law and not policy simply consequence”); are of no see whether a decision will be viewed some as Sebelius, Indep. also Nat'l Fed’n Bus. controversial. -, -, 2566, 2600, U.S. 132 S.Ct. legisla- I also implication resist that the (2012) (noting L.Ed.2d it is not the approach approach tive was "better” than the pass upon Court’s role to the wisdom of the my spe- in Cashen. As stated in Neiderbach requirement federal Affordable Care Act’s concurrence, cial the issue is not whether the pay individuals tax if do not obtain better, approach legislature or even insurance, only upon but rather its worse, face, approach, but whether the on its constitutionality). Any implication that cer requirements meets the United States policy preferences tain are relevant with re Neiderbach, spect and Iowa Constitutions. State v. constitutional issues this case *23 PTSD, mens he did not have the rea that should not time very difficult issues ber of a case support in the absence of or prejudged necessary to first —or second-de- controversy before us.7 question. murder on in gree night the Proper Application Standard. of
C. case has similarities to The some of proper application turn to the the I now Heemstra, In the defendant Heemstra. my articulated in Nеiderbach standard victim, the did not contest that he shot but Thompson’s main defense was opinion. victim was a argued instead that the hot PTSD, Thompson his because of was that that he to shoot provoked head and was requisite premeditation form the unable to in at him self-defense. 552. second- a conviction of first- or support Heemstra, in makes no Thompson Unlike had Thompson murder. evidence degree that he the victim in self- argument shot very poorly, treated him but he that Gabel Thompson argues that defense. because get into unable this evidence the was on pulled triggers Gabel his PTSD the Thompson at trial because declined record question, in he did not form the night wit- the stand the defense to take first-degree requisite support intent to knowledge not have of personal nesses did charge. health murder The mental rec- hearsay evi- Thompson’s the incidents. that, could contain evidence objective ords gun pointed dence indicated Gabel once Heemstra, in had like the victim Gabel the pulled trigger. head and On to his personality tending kind of to behave in a occasion, apparently she held a another to Thomp- fashion that could be relevant throat. knife to his son’s claim of entitlement to an instruction argues kind of Thompson this behavior voluntary manslaughter. on Iraq toward a troubled veteran of the war Heemstra, however, mental to destabi- experience with combat tended impeach key records tended aggravate the relationship lize his witness, wife, who the deceased’s claimed Thompson argued PTSD. the mental had disposition. the decedent a calm Id. health records could demonstrate Gabel Here, does not Thompson claim personality. a mean and manipulative had impeach evidence could be used Thompson asserted such evidence witness, only but it could be used to that mental health could convince a person Gabel establish was the kind of who Thompson’s jury that PTSD was fact enjoyed aggravating symptoms. his PTSD by exacerbated conduct on Gabel’s that, attempted night of the murder and because of to establish this appearance impartiality lying Wigmorean in the Law undermines of Absolutism judicial review. Evidentiary L.Rev. Privileges, 65 U. Pitt. (2004) (concluding, canvassing after privilege 7. The case for has been absolute studies, empirical "lay respondents that were leading attacked in at least one treatise judicially compelled as concerned not about See, e.g., Edward the academic literature. J. Wigmore hy- that disclosure confidences Imwinkelried, Wigmore: The New A Treatise proceeding pothesized” and to review consti- Evidence, 5.2.2, (2d ed.2009) on at 313-23 privi- tutional doctrines that render absolute (canvassing empirical studies related to the Weissenberger, leges qualified); Glen psychotherapist-patient privilege and con- Supreme Psychotherapist Privilege and the cluding that "the ... do available studies Legisla- Misplaced Court's Reliance on State assumption mind bear out the that in the tures, (1998) Hastings L.J. typiсal patient, the existence of an eviden- (agreeing with Imwinkelried Professor tiary privilege major has a influence either on psycho- justification "the instrumental professional decision consult a therapist privilege unimpressive” and the decision to make revelations to a consult- Imwinkelried, empirical professional”); ed J. "the evidence for instrumental Edward weak”). Questioning Assumption Under- rationale is Behavioral incidents direct evidence of the am not convinced that such offering knife, involving gun and the but could was in fact available from other sources. following prosecution’s hear- not do so however, problem, say objection. Although the evidence *24 offered showing no evidence be- nexus Thompson offered hearsay, nonetheless tween at the issues trial and the mental evidence had a hearsay indicating Gabel health treatment received Gabel. He manipulative personality and en- mean and virtually offered no extrinsic re- evidence gaged activity in that would to exac- tend garding the circumstances surrounding symptoms. PTSD erbate his involuntary hospitalization. Gabel’s When also did argues Thompson The State not why asked her mother “checked in” the the provide any court with hospital, daughter simply Gabel’s “be- said this, sought, about records he the but my Um, grandma, cause her mom. her — course, is the catch-22 See argument. they just her upset to the she point Neiderbach, 837 Because 225. thought needed help, she I guess.” confidential, Thompson are the records Thompson not indicating did offer evidence in- provide cannot the district court with occurred, when the hospitalization or even specific formation related to their contents. whether and Thompson Gabel had a rela- But, Thompson to do is required all Further, tionship at time. although surrounding show that the circumstances Thompson told the district court that mental Gabel’s health treatment are suffi- expert obtaining defendant’s indicated that trigger a reasonably plausible cient to ba- valuable,” “very would be records there is informa- sis to believe Thompson no offered affidavit or other records. tion in the evidence from the expert submitted on this The district denied the motion only point, arguments but of counsel. ground the information the na- about Because failed through extrin- relationship ture of the between Gabel and plausibly hospitalization sic facts to tie the other available from case, in I the issues this conclude the sources. For the reasons in expressed did not err in declining district court Neiderbach, I find the district court erred allow for in camera review of the docu- reaching in this rec- conclusion. Medical my ments the standard in under outlined gold evidence. ords are standard of Neiderbach concurrence. I special do Further, Thompson See at 228-29. id. any concur in additional discussion of the exercised his constitutional to not application beyond Neiderbach test take the stand. There were no other facts, provide which legally the above witnesses tо their do- third-party private denying production sufficient basis relationship sought mestic that Thompson Any in this case. dis- further Further, develop. the information merely cussion is dicta and is not neces- included the potential observations of a I diagnosis professional. sary trained of this the outcome case.8 argu- logic slope slippery-slope-type linguistic slippery I resist also further make a Schauer, regarding Slopes, application process Slippery ment of due claim.” Frederick course, (1985). long principles privileges. to other noted Of As Harv. L.Rev. every ago essay, virtually only a classic "in before the case issue court involves made, 622.10(4), slippery slope argument application as in which of Iowa Code section court, opposing party by this equal could with formal construed to the facts at hand. II. Conclusion. above, expressed
For reasons I con- only case.
cur result this HECHT, JJ., join this
WIGGINS
special concurrence. notes had with Ga- Thompson been Crosse, Citing in La State v. Wisconsin. years bel for two to the (Iowa prior at least time Heemstra, 2006), 721 549 N.W.2d argues he be in killed her he would argues that if there was infor- Thompson position to know if Gabel from suffered sug- in the mation mental mental illness. State contends cruel, manipulative, that Gabel was gesting showing regarding made no an mean, it be valuable could inquiry couples’ of the that would friends experts, who for the defense’s were assert- have them interact. seen that, posttraumatic of his ing because (PTSD), Thompson disorder lacked stress Proper B. Standard for Produсtion. necessary support intent to a murder challenges constitutionality conviction. of Iowa section its face Code 622.10 on as The State that the responds request recently legislature. amended the Iowa speculative. expressed special too For simply my Defense counsel the reasons Neiderbaeh, have “might stated deceased been hos- concurrence State v. 837 2013) 180, 220, pitalized,” give approxi- (Ap- but could not N.W.2d J., purported hospitaliza- pel, concurring specially), mate date Gabel’s I conclude State, 622.10(4) According Iowa uncon- tion. without some Code section is not for treatment time- its face.6 idea reasons stitutional on 6. A reference made to tion Cashen has been "the contro- that our decision was controver- versy engendered” sial. Id. at 1187. Cashen with citation to a describes, among review law note that other court, course, our are Decisions of often things, the "Evils of Heemstra Decision” possible It con- controversial. to avoid in reference this court's decision in State v. troversy hotly poten- contested cases as all Heemstra, (Iowa 2006). 721 549 See likely tial resolutions are to be controversial Note, Bettis, Adding K. Caroline Insult to In- Indeed, quarters. recognition in some jury: Prop- How the Cashen Protocol Fails to psychotherapist patient privilege is sub — erly Competing Redmond, Balance Constitutional Inter- ject controversy. See Jaffee lowans, 1151, 1932, Drake L.Rev. ests U.S. S.Ct. (2012). (1996) X, (Scalia, This further note references articles dissent L.Ed.2d ing) noting Register (caustically Des proposi- from the Moines for the Court has "[t]he