State of Iowa v. Richard Wayne Leedom

IN THE COURT OF APPEALS OF IOWA

No. 20-0561
Filed May 12, 2021

STATE OF IOWA,
Plaintiff-Appellee,

vs.

RICHARD WAYNE LEEDOM,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Poweshiek County, Shawn R.

Showers, Judge.

Defendant appeals the district court’s decision finding there was no

exculpatory evidence in a sexual assault victim’s counseling records after

conducting an in camera review. AFFIRMED.

Christine E. Branstad and Nathan Olson of Branstad & Olson Law Office,

Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Darrel Mullins, Susan R. Krisko,

and Thomas J. Ogden, Assistant Attorneys General, for appellee.

Heard by Vaitheswaran, P.J., and Greer and Schumacher, JJ.
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SCHUMACHER, Judge.

This case presents itself on appeal for a second time. In the instant appeal,

Richard Leedom challenges the district court’s decision finding that there was no

exculpatory evidence in a sexual assault victim’s counseling records after

conducting an in camera review of those records. He also argues the district court

used an erroneously narrow definition of exculpatory. Leedom argues the district

court was required to consider both materiality and effect on defense strategy and

trial preparation when conducting the in camera review of the counseling records.

Leedom requests a second remand.

We find the district court did not err in interpreting the Iowa Supreme Court’s

remand order or the relevant statutes concerning the privacy of mental-health

records. The court’s interpretation did not violate Leedom’s due process rights.

The court properly determined the records were confidential. The district court did

not abuse its discretion in balancing the victim’s privacy interest against Leedom’s

need for the information. We affirm the decision of the district court.

I. Background Facts & Proceedings

Leedom was charged with two counts of second-degree sexual abuse, in

violation of Iowa Code section 709.3(1)(b) (2016), and indecent contact with a

child, in violation of section 709.12(1)(b). The alleged victim of the offenses was

a minor child, H.M., who reported three instances of sexual abuse. According to

the trial information, the offenses occurred between January 2005 and December

2010.

Beginning in 2015, H.M. participated in counseling with Jessica Schmidt, a

therapist. Leedom filed a motion seeking the disclosure of H.M.’s mental-health
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counseling records, claiming there was a reasonable probability the records

contained exculpatory information. He asked for an in camera review of the

records by the court. The State resisted the motion. The district court denied the

motion, finding, “The defendant has not shown a compelling need which outweighs

the patient’s right to confidentiality.” Leedom was convicted on two counts of

second-degree sexual abuse and indecent contact with a child.

Leedom appealed his convictions. With regard to Leedom’s motion for an

in camera review of H.M.’s mental health records, the Iowa Supreme Court stated:

Turning to the merits of Leedom’s motion, in our view, the district
court abused its discretion by failing to conduct an in camera review
of the Schmidt therapy records for exculpatory information. The
State lacked corroborating physical evidence of sexual abuse, and
its case hinged on H.M.’s credibility. . . . H.M. testified she reported
Leedom’s abuse to her therapist, Schmidt. Yet Schmidt, a
mandatory reporter who would note any abuse in her records, did not
report the allegations to the DHS. Leedom argues the district court
should have reviewed Schmidt’s records because the absence of
any mention of abuse by Leedom would be exculpatory as evidence
it never happened and would also serve as impeachment evidence
against H.M. We agree with Leedom that a sufficient showing was
made to require the district court’s in camera review. This was a
targeted inquiry rather than a fishing expedition.

State v. Leedom, 938 N.W.2d 177, 187–88 (Iowa 2020). The court remanded the

case to the district court for an in camera review of H.M.’s mental-health records.

Id. at 196. The court noted, “If the district court finds no exculpatory evidence in

those records, Leedom’s conviction remains affirmed.” Id. If the district court

found exculpatory evidence, then the court was directed to proceed in accordance

with section 622.10(4)(a)(2)(c) and (d) to determine whether Leedom was entitled

to a new trial. Id.
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On remand, the district court conducted an in camera review of notes

authored by Schmidt from June 14, 2016, to January 11, 2018. The court

determined there was “no exculpatory evidence in records as it relates to absence

of disclosure or inconsistent statements by H.M.” Also, the court balanced any

possible impeachment evidence concerning the custody dispute between H.M.’s

parents and determined, “this marginal impeachment information does not

outweigh the privacy interests” of H.M. The court further ordered that if there were

mental-health records from before June 14, 2016, the records should be provided

to the court.

The district court was provided with mental-health records covering the

period of February 17, 2015, to May 31, 2016. After an in camera review, the court

found “these records offer no reasonable impeachment material for Defendant.”

The court determined the records did not contain any exculpatory evidence. The

court determined, “H.M. did report the sexual abuse by Defendant in a [manner]

consistent with her trial testimony.” The court concluded Leedom was not entitled

to a new trial.

Leedom filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2).

The State resisted the motion. The court denied the motion, again noting there

was no exculpatory evidence in the confidential records examined by the court.

Leedom appeals the district court’s decision.

II. Statutory Background

Leedom’s motion requesting the release of H.M.’s privileged records was

based on Iowa Code section 622.10(4)(a)(2), which provides:
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(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 compelling need for the defendant to present a defense in
the case.
(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
interests 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.

Privileged information that does not come within section 622.10(4)(a) is not

admissible in a criminal action. Iowa Code § 622.10(4)(b). The statute serves an

important purpose by fostering and protecting “necessarily confidential

communications.” State v. Neiderbach, 837 N.W.2d 180, 195 (Iowa 2013). “A

powerful counterbalance to the pretrial discovery rights of a defendant is the

victim–patient’s constitutional right to privacy in [the patient’s] mental health

records.” State v. Thompson, 836 N.W.2d 470, 487 (Iowa 2013).

III. Exculpatory Evidence

A. Leedom claims the district court did not properly interpret the term

“exculpatory” when it conducted an in camera review of H.M.’s mental-health

records. He argues for a wide-sweeping, broad definition to be adopted by the

court and suggests that any evidence that could be used to impeach H.M. should
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be considered exculpatory and provided to the defense. He states, “Exculpatory

evidence includes impeachment evidence, evidence of motive to lie, and any

evidence that would generally call into question the reliability of witness

statements.”

The Iowa Supreme Court’s ruling granting Leedom’s request for an in

camera review of H.M.’s mental-health records required the district court to

interpret the remand order and the relevant statutes. Therefore, we review the

district court’s ruling for the correction of errors at law. State v. Retterath, No. 19-

2075, 2020 WL 7383807, at *3 (Iowa Ct. App. Dec. 16, 2020) (citing Taylor v. State,

632 N.W.2d 891, 894 (Iowa 2001)). On appeal, we may review the confidential

mental-health records. See State v. Barrett, No. 17-1814, 2018 WL 6132275, at

*3 (Iowa Ct. App. Nov. 21, 2018) (“This court has reviewed the mental-health and

counseling records the defendant sought . . . .”).

The supreme court stated the term “exculpatory” should be given its

ordinary meaning, stating, “Exculpatory evidence tends to ‘establish a criminal

defendant’s innocence.’” Leedom, 938 N.W.2d at 188 (quoting Exculpatory

Evidence, Black’s Law Dictionary (11th ed. 2019)). The court noted that

exculpatory evidence includes impeachment evidence because impeachment

evidence “may make the difference between conviction and acquittal.” Id. (quoting

DeSimone v. State, 803 N.W.2d 97, 105 (Iowa 2011)). The court stated:

We are satisfied that the absence of any reported abuse in
Schmidt’s therapy notes for H.M. would be exculpatory within the
meaning of Iowa Code section 622.10(4)(a), as would notes of H.M.’s
descriptions of abuse materially inconsistent with her testimony.
Such records would be useful in cross-examining H.M. and helpful
to the jury in weighing her testimony.
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Id.

Under the law of the case doctrine, “an appellate decision becomes the law

of the case and is controlling on both the trial court and on any further appeals in

the same case.” Bahl v. City of Asbury, 725 N.W.2d 317, 321 (Iowa 2006) (quoting

United Fire & Cas. Co. v. Iowa Dist. Ct., 612 N.W.2d 101, 103 (Iowa 2000)). “The

appellate court decision is final as to all questions decided and the trial court is

obligated to follow that decision.” Id. Thus, on remand, the district court was

obligated to follow the law as set out in Leedom, 938 N.W.2d at 188.

The district court’s ruling on March 7, 2020, stated, “The Court finds no

exculpatory evidence in the records as it relates to absence of disclosure or

inconsistent statements by H.M.” The court’s ruling on March 17, after the court

considered additional mental-health records, stated,

As with the prior notes, the contents contain themes of a
custody dispute, though these records offer no reasonable
impeachment material for Defendant.
Additionally, the Court specifically finds that there is no
exculpatory evidence in these records. The Court is not going to
disclose these confidential records to counsel. However, the Court
finds that H.M. did report the sexual abuse by Defendant in a
[manner] consistent with her trial testimony.

The rulings reflect the court followed the supreme court ruling concerning

the definition of “exculpatory evidence.” The court did not consider only evidence

that would be directly exculpatory, but also considered evidence that could

potentially be used to impeach H.M. Leedom has not shown the district court failed

to follow the dictates of Leedom when it conducted an in camera review of H.M.’s

mental-health records. See 938 N.W.2d at 188.
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B. Leedom contends the district court’s narrow definition of “exculpatory

evidence” violated his constitutional due process right to present all exculpatory

evidence. Under Brady v. Maryland, the United States Supreme Court determined

that the prosecution violates a defendant’s due process rights when there has been

a suppression of material evidence favorable to the defendant. 373 U.S. 83, 86

(1963). The Brady rule applies to exculpatory, as well as impeachment evidence.

United States v. Bagley, 473 U.S. 667, 676 (1985). Evidence is material when

“there is a reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different.” Pennsylvania v.

Ritchie, 480 U.S. 39, 57 (1987); see also State v. Barrett, 952 N.W.2d 308, 312

(Iowa 2020).

Where, as here, the defendant is seeking the disclosure of confidential

information, a defendant’s due process right to “a fair trial can be protected fully by

requiring that the [confidential] files be submitted only to the trial court for in camera

review.” See Ritchie, 480 U.S. at 60. “[T]he trial court’s discretion is not

unbounded. If a defendant is aware of specific information contained in the

file . . . he is free to request it directly from the court, and argue in favor of its

materiality.” Id. There is no requirement that all of the confidential information

available “had to be disclosed upon demand to a defendant charged with criminal

child abuse, simply because a trial court may not recognize exculpatory evidence.”

Id. at 61. “Neither precedent nor common sense requires such a result.” Id.

As discussed above, the district court considered whether there was direct

exculpatory evidence and whether there was impeachment evidence that would

have been helpful to the defense. We conclude the district court’s decision did not
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violate Leedom’s due process rights. Leedom did not have a constitutional right

to all of the information in H.M.’s mental health records. See id.

IV. Confidential Communication

Leedom claims the district court erred by determining that information

concerning the date when H.M. first mentioned the sexual abuse to her therapist

was confidential information under Iowa Code section 622.10. He contends this

information cannot be confidential because the therapist was a mandatory

reporter, and he argues there could be no expectation of privacy in information that

must be conveyed to a third party. See Iowa Code §§ 232.69(1), .70(1).

Section 622.10(1) provides that a mental health professional “shall not be

allowed, in giving testimony, to disclose any confidential communication properly

entrusted to the person in the person’s professional capacity, and necessary and

proper to enable the person to discharge the functions of the person’s office

according to the usual course of practice or discipline.”

Leedom cites State v. Randle, for the proposition that information

communicated to a third party loses its confidential nature. 484 N.W.2d 220, 221

(Iowa Ct. App. 1992). In Randle, the victim voluntarily waived the doctor-patient

privilege. Id. Leedom also cites to State v. Doorenbos, which noted that a victim’s

statements to police officers while in the presence of her therapist were not

privileged. No. 19-1257, 2020 WL 3264408, at *5 n.4 (Iowa Ct. App. June 17,

2020). These cases come within the exception found in section 622.10(4)(a)(1)

(“The privilege holder voluntarily waives the confidentiality privilege.”). Leedom

has presented no evidence to show H.M. voluntarily waived the confidentiality

privilege in her mental-health records. See Retterath, 2020 WL 7383807, at *5
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(“The statute does not authorize disclosure to a defendant unless (1) the privilege

holder waives confidentiality or (2) the defendant’s request for access to the

privileged information meets a threshold test.”).

Leedom contends H.M. did not have an expectation of privacy because

Schmidt was a mandatory reporter of abuse, and therefore H.M. should have

realized Schmidt might be required to disclose H.M.’s statements. Contrary to

Leedom’s argument, H.M.’s statements to Schmidt were confidential and could be

disclosed only under the statutory framework found in section 622.10(4). Section

622.10(4)(b) provides that privileged information that does not come within section

622.10(4)(a) is not admissible in a criminal action.

We conclude the district court did not improperly determine that information

concerning the date when H.M. first mentioned the sexual abuse to her therapist

was confidential information under Iowa Code section 622.10(4). The court

properly followed the mandates of the statute.

V. Balancing Test

Finally, Leedom contends the district court misapplied the balancing test

found in section 622.10(4)(a)(2)(c). If the court finds exculpatory information

during its in camera review of confidential records, “the court shall balance the

need to disclose such information against the privacy interest of the privilege

holder.” Iowa Code § 622.10(4)(a)(2)(c).

“Confidential mental health information that is only marginally exculpatory

can be protected by the district court under the balancing test in section

622.10(4)(a)(2)(c).” Leedom, 938 N.W.2d at 188. The court should “conduct a full

and fair review of the privileged records to determine whether the privileged
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records contain exculpatory information.” Barrett, 2018 WL 6132275, at *3. We

review the court’s decision for an abuse of discretion. Id.

In the March 7 ruling, the district court found:

The privileged records the Court reviewed does contain
additional information that defense counsel could have used for
impeachment purposes, specifically as it relates to the custody
dispute between H.M.’s mother and father. However, pursuant to
Iowa Code 622.10(4)(a)(2)(c), this marginal impeachment
information does not outweigh the privacy interests of the privilege
holder. Accordingly, the Court finds these therapy notes should not
be disclosed to counsel.

The March 17 ruling states, “As with the prior notes, the contents contain themes

of a custody dispute, though these records offer no reasonable impeachment

material for Defendant.” The court specifically found “there [was] no exculpatory

evidence in these records.”

Prior to oral arguments, Leedom filed a notice of additional authorities. In

part, Leedom advocates for this court to “adopt the clarified balancing test” set forth

by the supreme court in Barrett. See 952 N.W.2d at 313. He asserts a remand is

necessary to allow the district court to adopt the new balancing test referenced in

Barrett, and argues the district court’s use of “marginally exculpatory” language is

contrary to a new standard adopted by the supreme court. However, as pointed

to by the State, the defendant in the Barrett opinion had already received the

exculpatory evidence. Id. at 311. The issue in Barrett was whether a new trial was

warranted, with the supreme court indicating that when exculpatory documents are

erroneously withheld under Iowa Code section 622.10(4), courts should apply the

materiality standard to resolve whether a defendant is entitled to a new trial. Id. at

313. Under this standard, the court asks whether there exists “a reasonable
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probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different.” Id. (citation omitted). The majority found

the district court erred in applying too strict a standard in determining whether

Barrett was entitled to a new trial.1 Id. at 314. Notably, the Barrett decision

highlighted that the court was “mindful, particularly in light of the balancing test,

required under Iowa Code section 622.10(4)(a), not to judicially readjust the

increased consideration given to confidentially interest in the legislature’s

enactment of section 622.10(4).” Id. at 313. We do not find that Barrett alters the

considerations mandated by the legislature in 622.10(4).

The district court found H.M.’s confidential mental-health records

concerning the custody dispute between her parents had only marginal

impeachment value. The information about the custody dispute was already in the

record, as well as evidence concerning H.M.’s desire to live with her father. See

Leedom, 938 N.W.2d at 184 (“Defense counsel cross-examined H.M. at trial about

how she had lied to improve her father’s position in the custody modification so

she could spend more time with him.”). The mental-health records contain limited

information concerning H.M.’s attitude towards her parents. The limited

impeachment information is not outweighed by H.M.’s privacy interest in her

mental-health records. We determine the district court did not abuse its discretion.

We affirm the decision of the district court.

AFFIRMED.

1The decision noted that the district court did not have the benefit of State v.
Barrett when it analyzed Barrett’s motion for a new trial.