IN THE COURT OF APPEALS OF IOWA
No. 13-0272 Filed May 29, 2014
STATE OF IOWA, Plaintiff-Appellee,
vs.
JAMES RANDELL TYSON, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Mills County, Mark J. Eveloff
(confidential records hearing), Kathleen A. Kilnoski (pretrial motions and first
trial), and Richard H. Davidson (pretrial motions and second trial), Judges.
James Randell Tyson appeals from his conviction of second-degree
sexual abuse. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Douglas D.
Hammerand, and Becky Goettsch, Assistant Attorneys General, and Eric
Hansen, County Attorney, for appellee.
Heard by Danilson, C.J., and Potterfield and McDonald, JJ. 2
POTTERFIELD, J.
James Randell Tyson appeals from his conviction of second-degree
sexual abuse.1 He argues the district court erred in failing to conduct an in
camera review of the victim’s scholastic, therapy, and medical records. He also
maintains the court abused its discretion in excluding evidence of the victim’s
nickname and ADHD medication. Finally, Tyson contends his trial counsel was
ineffective in failing to object to inadmissible hearsay. Tyson failed to establish
the threshold requirement for an in camera review of the privileged documents.
The trial court did not abuse its discretion in its evidentiary rulings. We preserve
the claims of ineffective assistance of counsel for possible postconviction
proceedings. We affirm the conviction.
I. Background Facts and Proceedings.
Tyson was charged with lascivious acts with a child and second-degree
sexual abuse of nine-year-old D.B. stemming from events occurring on March 13,
2010.
Prior to trial, Tyson filed a motion to produce D.B.’s scholastic, therapy,
and medical records.2 The motion contended that deposition testimony of adult
witnesses indicated D.B. had been “rightly or wrongly diagnosed and treated for
ADHD” and “treated with V[y]vanse.” The motion also asserted Vyvanse is
“known to produce side effects that can include delusions and other
psychological conditions that are relevant to the alleged victim’s credibility and or
1 Tyson’s first trial—held in December 2011—ended in a hung jury and a mistrial. This appeal follows the second trial, which began on November 27, 2012. 2 The motion was filed June 20, 2011; he requested records dating back to 2008. 3
competency to testify.” A hearing was held on the motion, after which the court
concluded:
Iowa Code section 622.10[(4)(a)(2)] [(2011 Supp.)] states that a criminal Defendant seeking access to privileged records must demonstrate 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 this case. In this case, the Court cannot find the Defendant has met the initial threshold set out in Cashen or Iowa Code section 622.I0[(4)(a)]. Hallucinating or believing things that are not true are just two of over thirty potential side effects [of Vyvanse] set out in Defendant’s brief in support of his Motion to Produce. There is no showing in the record that the alleged victim has suffered any of the side effects set out in said document. Particularly, the Court notes there is nothing in the record to show the alleged victim was ever delusional or hallucinating.
At trial, D.B. testified that on March 12, 2010, she was spending the night
with her best friend, Ashley. Ashley lived in a house with her mother, sister, and
Tyson, but Ashley’s mother and sister did not stay there that night. D.B. testified
that Tyson asked the girls on Friday night if they knew what the “F” word meant.
On Saturday morning, D.B. and Ashley were in the kitchen cooking eggs for
themselves. Tyson walked into the kitchen. When D.B. got up from the stool she
was sitting on, Tyson grabbed her by the belt loop and took her to the floor. He
put his hand inside her pants and inserted his finger in D.B.’s vagina. D.B. told
him to stop. When she was able to get up, D.B. told Ashley, “Let’s go.” The girls
went to a nearby park. D.B. attempted to call her mother, Morgia, who did not
answer the phone. D.B. called her again and asked if she could stay overnight.
D.B. testified she stayed overnight again “because [she] didn’t want to leave 4
Ashley there alone.” When the girls returned to Ashley’s house, Tyson was
gone.
D.B. testified further that Tyson came back later and took the girls for a
drive in his truck. The truck had a bench seat; Ashley sat in the middle nearest
Tyson, D.B. sat next to the passenger door. During the drive, Ashley sat on
Tyson’s lap and steered the truck. Ashley told D.B. it was fun and encouraged
D.B. to try it. D.B. testified that when she sat on Tyson’s lap and steered the
truck, he placed one hand on the steering wheel and placed his other hand under
her buttocks and rubbed her vaginal region.
Ashley testified she saw Tyson put his hand down D.B.’s pants while they
were in the kitchen, though Ashley could not remember if she was sitting in the
kitchen or the living room when this occurred. Ashley testified both she and D.B.
did sit on Tyson’s lap to drive the truck. She did not see Tyson touch D.B.
inappropriately in the truck. She also testified she did not want D.B. to tell
anyone what at happened, “[b]ecause I didn’t want my dog, Buddy, to be t[a]ken
away.”
Lisa Johnson is a registered nurse, nurse practitioner, and certified
pediatric sexual assault nurse examiner at the medical clinic of Project Harmony.
Johnson testified, “[W]e do a medical exam for the purpose of assessing,
identifying, diagnosing, and treating the children that are seen through Project
Harmony Child Advocacy Center.”3 She stated, “The interviews we do are
medically directed. The questions I ask the children are questions that will
3 She also testified Project Harmony has a “forensic interview part as well where they’re specially trained interviewers that interview the child.” 5
directly affect the medical care that I’m going to provide.” Johnson testified she
examined D.B. on March 22, 2010. During her examination, D.B. told her “Jim
. . . touched her private parts.” D.B. stated he touched her “under the clothes”
and “in the front two times.” Johnson testified the examination found no evidence
of trauma and no evidence of scarring.
D.B.’s mother, Morgia, testified that D.B. called her on Saturday March 13
and asked to stay another night with Ashley. On Sunday March 14, D.B. called
her to say Ashley’s mom was taking Ashley and her half-siblings away; D.B.
asked her mother to come get her because she would be there alone. When
Morgia picked D.B. up, D.B. stated she never wanted to go back there because
Tyson “gave her the creeps.” Morgia explained that D.B. did not want to talk to
her anymore about the statement until the following day when D.B. stated Tyson
had “touched her in her privates.” Morgia called police and Ashley’s mother.
Morgia testified she brought Ashley and her half-sister to Morgia’s house and
they ended up staying with Morgia for a while; Ashley was upset with D.B. for
telling. When Tyson was arrested, Ashley’s half-sister went to live with her
father, Tyson’s dog Ashley cared about was taken away, and Ashley moved.
Noopur (Suzie) Mistry, a child interview specialist at Project Harmony also
testified she interviewed D.B. prior to the physical examination. Mistry testified
she was a “forensic interviewer” and she talked to children whenever there was
an allegation of abuse “to get a good accurate account of what was going on.”
Mistry described D.B.’s statements during the interview. D.B. told Mistry that
Tyson “put his hand inside her underwear pants and touched her directly on her
skin of her private part.” D.B. said this happened once at lunchtime and once in 6
the truck. Employing a doll, D.B. indicated the “private part” was the vaginal
area.
Tyson testified. He explained that it was the girls who were using the “F”
word, chanting a line from a movie. He stated that he asked them, “Do you know
what that word means?” He testified D.B. “knew quite a lot. She was very well
versed.” Tyson testified he drove with D.B. and Ashley on Saturday to get food
at a fast food restaurant. He denied touching D.B. inappropriately.
The jury convicted Tyson of the second-degree sexual abuse charge
(related to his placing his finger in D.B.’s vagina while they were in the kitchen).
The jury found Tyson not guilty of lascivious acts with a child (in connection with
the charge related to the alleged assault while in the truck).
On appeal, Tyson contends the district court erred in failing to conduct an
in camera review of D.B.’s scholastic, therapy, and medical records. He also
asserts the court abused its discretion in excluding evidence of D.B.’s medication
and nickname. Finally, he argued trial counsel was ineffective in failing to object
to hearsay testimony by Mistry and in eliciting hearsay testimony by Kimberly
Clark.
II. Scope and Standard of Review.
Discovery rulings challenged on constitutional grounds are reviewed de
novo. State v. Thompson, 836 N.W.2d 470, 476 (Iowa 2013); State v. Cashen,
789 N.W.2d 400, 405 (Iowa 2010) (“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 and
evidentiary rulings are reviewed for an abuse of discretion. Thompson, 836 7
N.W.2d at 476 (discovery); In re Det. of Blaise, 830 N.W.2d 310, 315 (Iowa 2013)
(evidentiary). We review claims of ineffective assistance of counsel de novo.
Blaise, 830 N.W.2d at 315.
III. Analysis.
A. Tyson has not made a threshold showing entitling him to an in camera
review. “[A] criminal defendant has a due process right to present evidence to a
jury that might influence the jury’s determination of guilty.” Cashen, 789 N.W.2d
at 407. However, “a defendant is not entitled to engage in a fishing expedition
when seeking a victim’s mental health records.” Id. at 408.
In Cashen, our supreme court recognized patients have a qualified, rather
than an absolute, “constitutional right to privacy in their medical records.” Id. at
406. The court also 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. The court adopted a protocol it determined appropriately balanced the
defendant’s rights with the victim’s. Id. at 408-10. If the defendant could
demonstrate “some good faith factual basis indicating how the records are
relevant to the defendant’s innocence,” the district court was to hold a hearing “to
determine if a reasonable probability exists that the records contain exculpatory
evidence tending to create a reasonable doubt as the defendant’s guilt”; if so, the
court would “issue a subpoena for the records to be produced under seal to the
court.” Id. at 408.
In response to the Cashen opinion, our legislature amended Iowa Code
section 622.10. See Thompson, 836 N.W.2d at 481. Section 622.10(4)(b) now
provides that “privileged information obtained by any means other than as 8
provided in paragraph ‘a’ shall not be admissible in any criminal action.”
Paragraph “a” reads as follows:
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 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 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.
Iowa Code § 622.10(4)(a) (emphasis added). Our supreme court in Thompson,
836 N.W.2d at 482, observed “the statute requires a stronger threshold showing 9
to obtain mental health records for an in camera inspection” than enunciated in
Cashen.4
Tyson argues the district court erred in not conducting an in camera
review of D.B.’s scholastic, therapy, and medical records. On our de novo
review, we must determine whether Tyson has established “a reasonable
probability that the information sought is likely to contain exculpatory information
. . . 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). The term “reasonable probability”
means “a substantial, not just conceivable, likelihood.” Thompson, 836 N.W.2d
at 484 (citations and internal quotation marks omitted). And the term “likely”
means “probable or reasonably to be expected.” Id. (citations and internal
quotation marks omitted).
Tyson argues he was entitled to have the district court conduct an in
camera review of D.B.’s records for exculpatory evidence because, during her
deposition, Morgia noted D.B. was experiencing behavioral problems in first or
second grade, which led to a diagnosis—or misdiagnosis—of attention deficit
hyperactivity disorder (ADHD), which then led to D.B. being prescribed a drug for
ADHD, Vyvanse.5 Tyson urges some of the possible side effects of the drug are
hallucinations and delusions, which, if D.B. experienced the side effects, would
affect her credibility. We are not persuaded this is sufficient to establish a
substantial likelihood that the privileged records contain exculpatory evidence.
See, e.g., State v. Neiderbach, 837 N.W.2d 180, 196-97 (Iowa 2013) (finding
4 The Thompson court found the provision facially constitutional. 836 N.W.2d at 485. 5 A brand name of lisdexamfetamine “used as part of a treatment program to control symptoms of attention deficit hyperactivity disorder”. 10
court erred in not conducting an in-camera inspection where defendant’s trial
strategy included raising reasonable doubt whether certain injuries were caused
by the co-defendant, and co-defendant displayed strange behavior following
arrest and subsequently pled guilty to child endangerment).
Tyson argues D.B. was misdiagnosed with ADHD and thus the
prescription for Vyvanse was unwarranted. In her deposition—upon which Tyson
relies—Morgia stated D.B. was diagnosed with ADHD by a doctor after a teacher
encouraged Morgia to seek medical assistance. Morgia, however, stated she
believed D.B. had “hereditary anxiety, which I have,” but not ADHD. Morgia
stated that D.B. lost weight while taking the drug prescribed for ADHD. Morgia
also stated that when D.B.’s dosage was reduced (after the incidents at issue),
D.B. “started getting angry.” Nothing in D.B.’s mother’s testimony suggests D.B.
experienced side effects that might have affected her perception or credibility.
We conclude Tyson’s claim that a possible side effect of a drug D.B. was
prescribed may have affected D.B.’s credibility does not meet the threshold
requirement of a “reasonable probability that the information sought is likely to
contain exculpatory information.” We find no error in the trial court’s refusal to
conduct an in camera review of D.B.’s scholastic, therapy, and medical records.
B. The trial court did not abuse its discretion in excluding evidence of
D.B.’s medication and her nickname. The State moved in limine to exclude any
evidence of D.B.’s medication and to exclude the use of D.B.’s nickname, “Devil
Child.” The trial court concluded the mother’s statements as to D.B.’s diagnosis
were inadmissible hearsay. The court ruled, “Defendant has not shown any 11
evidence that the child’s diagnosis, misdiagnosis, or medication affected her
perception or credibility” and excluded such evidence.
With respect to the child’s nickname, the court determined the prejudicial
effect outweighed any probative value.
The Court is unaware of the origin of the name and its true meaning, and as such, it may be misinterpreted by a reasonable juror or certainly, confusing. Obviously, the defendant is free to make inquiry through the State’s witnesses or their own concerning the child’s behavior or demeanor, and the Court has discussed with counsel in previous off the record discussions, I’m not clear whether this nickname was given to the child because she was a rambunctious two-year-old or an—some hateful nine-year-old or something in the middle. And different family members may have a different connotation to the nickname. And for all those reasons, I think it would be confusing and certainly prejudicial.
Tyson challenges these rulings.
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). We review evidentiary rulings for an abuse of discretion. State v. Huston,
825 N.W.2d 531, 536 (Iowa 2013). “Under this standard, we reverse only if the
district court exercised its discretion on clearly untenable or unreasonable
grounds.” In re Det. of Stenzel, 827 N.W.2d 690, 697 (Iowa 2013).
1. ADHD Medication. On appeal, Tyson argues the trial court
abused its discretion in disallowing evidence of D.B.’s use of medication. He
argues “the fact that D.B. was on medication at the time of the alleged offense is
relevant to D.B.’s credibility” and a “party is entitled to try to impeach a witness’s
credibility as it is reflected in her ability to observe, remember, or recount.”
Just prior to trial, defense counsel made the following “offer of proof”: 12
If called to testify, Jim Tyson would testify that on Saturday morning, the mother’s paramour, live-in boyfriend, whatever you call him, came to the house about 8 o’clock with [D.B.’s] medication, that is the Vyvanse, the amphetamines, that he brought two tablets of those amphetamines with her—with him that day about 8 o’clock in the morning and that he has personal knowledge that the child took both capsules Saturday morning, which is the day in question. So that would be not only an abuse of the pharmaceutical, of a prescription, but would imply that the child was abusing these amphetamine drugs. And to corroborate that, you take the competent testimony, but they stayed up all night Friday night, they stayed up and stayed up 2 until 3 the following night, which is in my opinion, at least an inference that she was on this amphetamine. We don’t know if it’s a pediatric dose. We don’t know an adult dose. We don’t know how many of these things she’s ingested over a period of time.
The district court concluded,
even if there is some relevance to this, what it serves to do is confuse the fact finders, and that, I think, ultimately is the issue. And I don’t want to rehash the Cashen hearings all over again, but that’s one of the biggest problems is that all it does is create perhaps a[n in]ference and nothing more that under [Iowa Rule of Evidence 5.403] this Court finds it’s just not probative when balanced against the prejudicial.
Iowa Rule of Evidence 5.403 provides: “Although relevant, evidence may
be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” Tyson claims he was entitled to ask D.B. about her “drug
use,” because “if D.B. was taking a prescribed medication which was
unnecessary, the effect of the drug may compromise her perception or memory.”
The trial court’s determination—that allowing evidence D.B. was on ADHD
medication would confuse the issues and was more prejudicial than probative—is
not clearly unreasonable. Tyson’s offer of proof involved his proposed testimony 13
that he observed D.B. take two pills on the Saturday morning the events
occurred. The proposed testimony did not include—since Tyson did not know—
the kind of medication or its purpose, and was inadequate to resolve the
confusion and speculation that would have resulted from the information about
the pills. We conclude the trial court acted within its discretion in rejecting
Tyson’s tenuous argument for relevancy and admissibility of the ADHD
medication.
In any event, defense counsel was able to cross-examine D.B. to test her
memory and perceptions. Morgia and Ashley, too, were cross-examined at
length. Defense counsel also questioned Noopur Mistry about whether a child’s
mental health issues, including ADHD, affected her findings. Under the
circumstances presented, we find no abuse of the trial court’s discretion.
2. Nickname. Tyson contends he should have been allowed to
present evidence that D.B.’s nickname was Devil Child because it showed “how
she was perceived by her family and friends.” Again, we find no abuse of the trial
court’s discretion in its ruling that the nickname was more prejudicial than
probative. Contrary to Tyson’s claim that exclusion of the evidence foreclosed
any attempt to show D.B.’s behavior, the district court quite clearly observed,
“Obviously, the defendant is free to make inquiry through the State’s witnesses or
their own concerning the child’s behavior or demeanor.” The inability to refer to
D.B. as Devil Child was not an abuse of discretion. Cf. United States v. Yuot, CR
07-4091-MWB, 2008 WL 2857144, at *5 (N.D. Iowa July 23, 2008) (discussing
Eighth Circuit Court of Appeals cases dealing with use of an alias and quoting
United States v. Delpit, 94 F.3d 1134, 1146 (8th Cir.1996) (“In some cases, the 14
use of a defendant’s irrelevant nickname to suggest his bad character or
unsavory proclivities may be prejudicial.”)).
C. Ineffective-assistance-of-counsel claims preserved for possible
postconviction proceedings. Tyson maintains his trial counsel was ineffective in
failing to object to hearsay testimony from Mistry, the child interview specialist at
Project Harmony, and in eliciting hearsay testimony from Kimberly Clark, a
sergeant at the Mills County Sheriff’s Office.
A defendant claiming ineffective assistance of counsel must show both
that his trial counsel breached an essential duty and prejudice resulted.
Strickland v. Washington, 466 U.S. 668, 687-88 (1984). “Unless a defendant
makes both showings, it cannot be said that the conviction resulted from a
breakdown in the adversary process that renders the result unreliable.” State v.
Clay, 824 N.W.2d 488, 495 (Iowa 2012) (internal quotation marks and corrections
omitted).
We ordinarily preserve such claims for possible postconviction relief
proceedings. State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002). “That is
particularly true where the challenged actions of counsel implicate trial tactics or
strategy which might be explained in a record fully developed to address those
issues.” State v. Rubino, 602 N.W.2d 558, 563 (Iowa 1999).
1. Failure to object to Mistry’s testimony. Tyson argues Mistry’s
testimony regarding D.B.’s statements was not admissible because those
statements were not made for purposes of medical diagnosis or treatment. The
State argues Mistry’s testimony as to D.B.’s statements were admissible under
principles enunciated in State v. Hildreth, 582 N.W.2d 167, 169-70 (Iowa 1998) 15
(concluding statements made by child sex abuse victim to experienced and
specially trained social workers qualified as statements made for the purpose of
diagnosis and treatment, which are admissible under rule of evidence 5.803(4)).
Statements made for purposes of diagnosis and treatment are admissible
if they fit within the two-part test this court has adopted. The two- part test requires the proponent of the statement to show: (1) the declarant’s motive in making the statement is consistent with the purposes of promoting treatment, and (2) the content of the statement must be such as is reasonably relied on by a physician in treatment or diagnosis.
State v. Hanes, 790 N.W.2d 545, 553 (Iowa 2010) (citing Hildreth, 582 N.W.2d at
169-70). Mistry is a forensic examiner. She testified she had specialized training
in interviewing children referred to Project Harmony because there has been an
allegation the child has been subject to abuse or had witnessed a crime.
Because D.B.’s statements to Mistry do not clearly qualify under the two-part test
noted in Hanes, defense counsel will be afforded an opportunity to explain why
no objection was made to this testimony.
2. Eliciting testimony from Clark. Tyson’s trial counsel called
Kimberly Clark as a witness. Clark then testified about statements made by D.B.
We preserve the issue of trial counsel’s competence with respect to his
failure to object to Mistry’s testimony and his questioning of Clark for possible
postconviction proceedings. See Clay, 824 N.W.2d at 500 (“In regards to Clay’s
claim that his counsel was ineffective for failing to object to these out-of-court
statements, the first prong of the Strickland test requires us to decide if trial
counsel failed to perform an essential duty by not objecting. If the challenged
actions of counsel implicate trial tactics or strategy, we will not address the issue 16
until the record is fully developed.”); State v. Ondayog, 722 N.W.2d 778, 786
(Iowa 2006) (“Because ‘[i]mprovident trial strategy, miscalculated tactics, and
mistakes in judgment do not necessarily amount to ineffective assistance of
counsel,’ State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992), postconviction
proceedings are often necessary to discern the difference between improvident
trial strategy and ineffective assistance.”).
IV. Conclusion.
Tyson failed to establish the threshold requirement for an in camera
review of the privileged documents. The trial court did not abuse its discretion in
its evidentiary rulings. We preserve the claims of ineffective assistance of
counsel for possible postconviction proceedings. We therefore affirm the
conviction.
AFFIRMED.