State v. Heemstra

721 N.W.2d 549, 2006 Iowa Sup. LEXIS 107, 2006 WL 2457438

• Court: Supreme Court of Iowa
• Decided: August 25, 2006
• Docket: 04-0058
• Status: Published

Opinions

LARSON, Justice.

Rodney Heemstra was convicted by a jury of first-degree murder under Iowa Code sections 707.1 and 707.2 (2001). He appealed, challenging the district court’s instructions to the jury, its refusal to order production of medical records, and its denial of his motion for new trial. We reverse and remand.

I. Facts and Prior Proceedings.

Rodney Heemstra and Tom Lyon were farmers in Warren County, Iowa. Since 1998 Lyon had rented a portion of land belonging to a Rodgers family. In July 2002 Heemstra purchased the land with a closing date set for March 10, 2003. As the renter in possession, Lyon was legally entitled to remain on the Rodgers farm until March 1, 2003. After Heemstra purchased the land, relations between Lyon and Heemstra became strained over who would have possession of it pending transfer of title. Lyon had hoped to purchase the farm, and he was upset that Heemstra bought it. Heemstra testified to incidents in which Lyon would swear at him and make threats. He also presented evidence of Lyon’s temper, including a scuffle between Lyon and another person and heated statements by Lyon regarding the sale of the farm. On one occasion, Lyon was upset that waterers used by his cows on the land had been switched off, presumably by Heemstra. One time, Lyon asked a deputy sheriff, “what happens if I beat the little son-of-a-bitch up?” One witness testified that he heard Lyon say to himself that he ought to shoot some unidentified person. Another witness testified that he had been assaulted by Lyon in 1998 over a grain bin disagreement. Other witnesses had a different view of Lyon, testifying that they did not consider him to be a violent person.

On January 13, 2003, Heemstra and Lyon, both driving pickups, were traveling in the same direction on a county road near Lyon’s home. According to Heems-tra, he was driving behind Lyon, who stopped his truck and angled it to block the road. Both men left their trucks. Heemstra testified that Lyon was hostile, contorted with rage, saying he was going to make “goddamn sure that I did not end up with that farm.” Heemstra, feeling threatened, retrieved a rifle from his truck “to neutralize [the] situation,” according to him. Heemstra testified that, as he was getting the gun, Lyon shouted obscenities at him, saying “[I didn’t] have the balls to pull the trigger, and he lunged at me, and I shot him.” Lyon’s body was later recovered in a cistern located on land farmed by Heemstra about a quarter of a mile from Lyon’s abandoned truck. Lyon had sustained a single gunshot to the head, as well as other injuries resulting from being dragged behind Heemstra’s truck to the cistern. The medical examiner could not determine whether these injuries occurred before or after Lyon died.

The following day, officers went to Heemstra’s home. They had heard that Lyon and Heemstra had been having problems and that a truck similar to Heems-tra’s was seen in the area where Lyon’s truck was found. When questioned, Heemstra initially denied knowledge of any harm to Lyon and said he had not seen him for several days. Heemstra consented to the officers searching his truck, where they found what they thought were blood and hair. Heemstra then admitted he had been present at Lyon’s death and finally confessed to shooting him. When he was asked by the officers whether Lyon had anything in his hands, Heemstra said, “no, I shot a defenseless man.” Heemstra took officers to a field where he had thrown the murder weapon, and after recovery of the weapon, he was arrested.

At trial, Heemstra claimed self-defense. He introduced evidence that Lyon had talked about harming or killing Heemstra and that Lyon could be a violent person. Evidence was also presented that suggested Lyon may have had mental health problems. In the year before his death, he had consulted with Dr. Barbara Ohnemus and Dr. Sandra Duncan concerning his anxiety and depression. Heemstra’s attorney attempted to obtain records of these consultations, hoping to bolster his self-defense theory, but was unsuccessful.

II.The Issues.

On Heemstra’s appeal, he complains that the trial court erred in (1) instructing the jury on felony murder, (2) quashing his request to obtain the victim’s medical records, and (3) denying his motion for new trial based on alleged jury misconduct. He also alleges ineffective assistance of counsel by failing to file a motion to suppress Heemstra’s statement to officers and failing to make a timely request for Lyon’s medical records.

III. The Statutes.

Under Iowa Code section 707.2:

A person commits murder in the first degree when the person commits murder under any of the following circumstances:

1. The person willfully, deliberately, and with premeditation kills another person.

2. The person kills another person while participating in a forcible felony.

A “forcible felony” is defined by section 702.11 as “any felonious child endangerment, assault, murder, sexual abuse, kidnapping, robbery, arson in the first degree, or burglary in the fust degree.” The combination of sections 707.2(2) and 702.11 constitute what is commonly known as the “felony murder” rule.

IV. The Court’s Instructions.

The district court instructed on both alternatives for first-degree murder: willful, deliberate, and premeditated murder under section 707.2(1) and felony murder under section 707.2(2). The marshaling instruction on first-degree murder advised the jury:

The State must prove all of the following elements of Murder in the First Degree:

1. On or about the 13th day of January, 2003, the defendant shot Tommy Ray Lyon.

2. Tommy Ray Lyon died as a result of being shot.

3. The defendant acted with malice aforethought.

4. Either

a. The defendant was participating in Willful Injury as defined in Instruction No. 26 [felony murder],

or

b. The defendant acted willfully, deliberately, premeditatedly, and with specific intent to kill Tommy Ray Lyon.

5. The defendant was not justified.

(Emphasis added.)

“Willful injury,” as referred to in the felony-murder instruction, is defined by Iowa Code section 708.4:

Any person who does an act which is not justified and which is intended to cause serious injury to another commits the following:

1. A class “C” felony, if the person causes serious injury to another.

2. A class “D” felony, if the person causes bodily injury to another.

The court’s explanation of willful injury, found in Instruction No. 26, stated:

The offense of Willful Injury contains the following four elements:

1. On or about the 13th day of January, 2003, the defendant intentionally pointed a firearm, at Tommy Ray Lyon or displayed a dangerous weapon in a threatening manner.

2. The defendant specifically intended to cause a serious injury to Tommy Ray Lyon.

3. Tommy Ray Lyon sustained a serious injury.

4. The defendant did not act with justification.

The State argues that the pointing of the gun or displaying it in a dangerous manner constituted willful injury. There is no dispute that Heemstra pointed the gun at Lyon and did so intentionally; he admits that. He argues, however, that the act of “pointing] a firearm ... or displaying] a dangerous weapon in a threatening manner” does not fit the statutory definition of willful injury and cannot provide the basis for felony murder. In fact, Instruction No. 26 does not describe a felony at all, according to him, but an aggravated misdemeanor under Iowa Code section 708.1(3) (A person commits misdemeanor assault when he “[intentionally points any firearm toward another, or displays in a threatening manner any dangerous weapon toward another.”).

Y. The Defendant’s Challenge to the Instructions.

A. Standard of review. We review challenges to jury instructions for correction of errors at law. State v. Breitbach, 488 N.W.2d 444, 449 (Iowa 1992). To the extent that error is based on constitutional grounds, our review is de novo. State v. Ortiz, 618 N.W.2d 556, 558-59 (Iowa 2000).

B. Preservation of error. On appeal Heemstra claims that, if the jury found he had committed willful injury, it would be permitted to find first-degree murder under the felony-murder instruction without finding the elements of deliberation, premeditation, and specific intent to kill. He further argues that, while forcible felonies may infer such elements under the felony-murder rule, that was not the case here because the act specified in the court’s felony-murder instruction was not a forcible felony, as defined by section 702.11.

The State counters that Heemstra failed to preserve error on his argument that pointing a gun at a person cannot be considered willful injury under the felony-murder instruction. Heemstra’s trial counsel objected to the instruction by stating:

By submitting willful injury as the predicate felony, it plainly permits the jury to find the defendant guilty of murder in the first degree without proof of deliberation, premeditation and specific intent to kill, and additionally, by permitting the jury to infer malice from the commission of the offense of willful injury permits the jury to find the defendant guilty of first-degree murder without proof of malice.

We believe this objection was sufficient to alert the court to the problem inherent in the felony-murder instruction, i.e., if the jury found Heemstra pointed the gun at Lyon intending to cause serious injury and that serious injury resulted, it could find felony murder, despite the fact that the gun pointing was not a forcible felony for purposes of felony murder and without proof of willfulness, deliberation, and premeditation.

The State argues that, even if the willful injury under Instruction No. 26 “embraee[d] both misdemeanor and felonious assault, the error is harmless. Heemstra has always acknowledged he shot Lyon.” We disagree with the conclusion that any confusion was harmless. While Heemstra admits he shot Lyon, he does not admit he shot him willfully, deliberately, and with premeditation as required to constitute first-degree murder under section 707.2(1). Further, Heems-tra does not admit he shot Lyon while participating in a forcible felony under section 707.2(2) for felony-murder purposes.

C. Comparison of murder alternatives. First-degree murder under Iowa Code section 707.2(1) requires proof that the murder was committed “willfully, deliberately, and with premeditation.” In contrast, first-degree murder based on the felony-murder rule under section 707.2(2) does not require' proof of any of these elements; they are presumed to exist if the State proves participation in the underlying forcible felony. See State v. Williams, 285 N.W.2d 248, 270 (Iowa 1979) (“[A] showing that- the murder occurred in the perpetration of a felony is merely a particular statutorily prescribed method for showing the mental elements of deliberation and premeditation.”).

The rationale of the felony-murder rule is that certain crimes are so inherently dangerous that proof of participating in these crimes may obviate the need for showing all of the elements normally required for first-degree murder. This reduced quantum of proof in establishing first-degree murder has caused the felony-murder doctrine to be called “[o]ne of the most controversial doctrines in the field of criminal law .... ” Erwin S. Barbre, Annotation, What Felonies Are Inherently or Foreseeably Dangerous to Human Life for Purposes of Felony-Murder Doctrine, 50 A.L.R.3d 397, 399 (1973). The California Supreme Court has observed that:

The felony-murder rule has been criticized on the grounds that in almost all cases in which it is applied it is unnecessary and that it erodes the relation between criminal liability and moral culpability. Although it is the law in this state, it should not be extended beyond any rational function that it is designed to serve.

People v. Washington, 62 Cal.2d 777, 44 Cal.Rptr. 442, 402 P.2d 130, 134 (1965) (citations omitted). Because violence is the sine qua non of felony murder under Iowa’s statute, as well as at common law, the felony-murder statute limits itself to felonies involving violence.

Even if the acts of the defendant were considered to be willful injury, as the State argues, the question remains whether willful injury may be considered a predicate for felony murder under the facts of this case. A long line of Iowa cases have answered that question in the affirmative, but we believe we must revisit the issue and reach a contrary conclusion.

Beginning with State v. Beeman, 315 N.W.2d 770 (Iowa 1982), we have held that willful injury could serve as the predicate felony for felony murder because willful injury is, by statute, a “forcible felony.” Id. at 776-77. We discussed that theory further in State v. Ragland, 420 N.W.2d 791, 793 (Iowa 1988):

Murder is committed when “a person kills another person with malice aforethought.” Iowa Code § 707.1. A murder becomes first-degree múrder when it is committed under any of four sets of circumstances. Id. § 707.2. Pertinent to this case, a murder is in the first degree when committed “while participating in a forcible felony.” Id. § 707.2(2). There is no suggestion in our statutes that “forcible felony” was not intended to include the crime of willful injury.

One writer, critical of the Beeman line of cases, has observed:

The result of [Beeman] continued since the court’s decision in 1982 with mixed reviews. The use of willful injury as a basis for a felony murder charge relieves the State of its obligation to prove the murder was premeditated, deliberated, and specific intent was formed to kill. However, the other felonies must be committed independently. A murder in the first degree under the theory of premeditation, deliberation, and specific intent to kill cannot be committed without also committing the offense of willful injury. Because malice may be permissibly inferred from the underlying felony ... conviction of murder in the first degree becomes a virtual certainty. Other jurisdictions have not followed the approach adopted by the Iowa Supreme Court in Beeman.

[[Image here]]

The legislature can, unintentionally, expand the felony murder doctrine by creating new criminal statutes that are felonious assaults. An example is a recent amendment to the assault chapter of the Iowa Code [ (Iowa Code section 702.11(2), which provided that less serious, class “D,” versions of willful injury would not be considered as forcible felonies) ].

Had the legislature not classified the amendment as a non-forcible felony and the courts applied the Beeman analysis, an assault resulting in a death would be classified murder in the first degree. Death is obviously a bodily injury. Premeditation, deliberation and specific intent to kill are not elements. Since assault is a general intent crime, no specific intent demonstrating an evil purpose is required. Coupled with an instruction that malice may be inferred from the commission of an assault, the application of Beeman creates an ever expanding felony murder rule. It is doubtful the legislature ever intended such a result, and one must question the court’s reasoning in Beeman.

4 Robert R. Rigg, Iowa Practice Criminal Law (I) § 3:16, at _ (2006) (footnotes omitted).

A law review note poses several scenarios that, in the absence of sound prosecuto-rial discretion, could test the outer constitutional parameters of our felony-murder law under the Beeman line of cases:

A woman strikes her friend intending to cause serious injury, but death results instead. A father leaves his young child alone at home knowing that the child may be at risk, and the child accidentally dies. Can the criminal justice system treat these crimes the same as willful, deliberate, and premeditated murders? In Iowa, the answer may be yes. These individuals could be guilty of first degree felony murder and face life imprisonment without possibility of parole.

Kristy L. Albrecht, Iowa’s Felony-Murder Statute: Eroding Malice and Rejecting the Merger Doctrine, 79 Iowa L.Rev. 941, 941 (1994) (footnotes omitted).¹

Ordinarily in felony murder based on assault, the assault causing death is considered to be merged into the murder and cannot be used as an independent felony for felony-murder purposes. As stated by the Massachusetts Supreme Court,

in felony-murder the conduct which constitutes the felony must be “separate from the acts of personal violence which constitute a necessary part of the homicide itself. Thus, although rape, arson, robbery and burglary are sufficiently independent of the homicide, ... aggravated battery toward the deceased will not do for felony murder .... ”

Commw. v. Quigley, 391 Mass. 461, 462 N.E.2d 92, 95 (1984) (quoting Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law § 71, at 559 (1972)).

This principle is illustrated by an interesting Massachusetts case, Commonwealth v. Kilburn, 438 Mass. 356, 780 N.E.2d 1237 (2003). In that case, the defendant committed two assaults with a weapon: the first was committed by brandishing the gun in the face of the victim and, at a later time, by actually shooting and killing the victim. The court held the second assault, the one that caused the victim’s death, could not be considered a predicate felony because it was merged into the murder itself. The first assault did constitute a basis for felony murder. The rationale was that,

[ajbsent this requirement, the assault that precedes every killing would serve as the predicate for felony-murder in the first degree, and the distinction between degrees of murder would be lost.

Kilburn, 780 N.E.2d at 1240.

The court in Kilbum said:

While the act of shooting [the victim] clearly caused the homicide in this case, the gunman’s brandishing of a pistol with the intention of arousing fear in [the victim] did not. [The victim] died of a gunshot wound; he did not die of fright. Applying the causation test for merger ..., we conclude that, while the second of the two assaults on [the victim] merged with the murder, the first did not.

Id. at 1241. Similarly, in Commonwealth v. Gunter, 427 Mass. 259, 692 N.E.2d 515 (1998), assaults by the defendant against other occupants of an apartment were independent felonies that could support felony murder, but the assault against the occupant who was killed could not because it was not an independent felony. Gunter, 692 N.E.2d at 526.

The California Supreme Court reversed a felony-murder conviction under facts similar to the present case in People v. Ireland, 70 Cal.2d 522, 75 Cal.Rptr. 188, 450 P.2d 580 (1969). In that case, the State attempted to use the act causing the death to establish the predicate felony. The court stated:

We have concluded that the utilization of the felony-murder rule in circumstances such as those before us extends the operation of that rule “beyond any rational function that it is designed to serve.” To allow such use of the felony-murder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault — a category which includes the great majority of all homicides. This kind of bootstrapping finds support neither in logic nor in law.

Ireland, 75 Cal.Rptr. 188, 450 P.2d at 590 (quoting People v. Washington, 62 Cal.2d 777, 44 Cal.Rptr. 442, 402 P.2d 130, 134 (1965)). According to the Oregon court,

[i]n order to preserve the distinctions between the degrees of murder and manslaughter, courts in other states have held that where the only felony committed (apart from the murder itself) was the assault upon the victim which resulted in the death of the victim, the assault merged with the killing and could not be relied upon by the state as an ingredient of a “felony murder.”

State v. Branch, 244 Or. 97, 415 P.2d 766, 767 (1966).

VI. Analysis of the Iowa Rule.

We explained the rationale for our view of willful injury in felony-murder cases in Beeman:

Section 707.1, The Code, provides: “A person who kills another person with malice aforethought either express or implied commits murder.” Section 707.2(2) provides: “A person commits murder in the first degree when he or she commits murder under any of the following circumstances: ... The person kills another person while participating in a forcible felony.” “Forcible felony” is defined as “any felonious assault, murder, sexual abuse, kidnapping, robbery, arson in the first degree, or burglary in the first degree.” § 702.11. Willful injury is a felonious assault, section 708.4, and thus, like sexual abuse, may serve as the underlying felony in a felony-murder instruction.

315 N.W.2d at 775. Briefly stated, felony murder may be based on the commission of a forcible felony under Iowa Code section 707.2(2), and willful injury is a forcible felony under Iowa Code section 702.11, as it constitutes a “felonious assault” under Iowa Code section 708.4. Because a forcible felony may be the basis of murder under section 707.2(2), the Beeman court reasoned that willful injury qualifies as a predicate offense.

On further reflection, we adhere to the view that willful injury is a forcible felony under Iowa Code section 702.11 and, in some circumstances, may serve as a predicate for felony-murder purposes. For example, if the defendant assaulted the victim twice, first without killing him and second with fatal results, the former could be considered as a predicate felony, but the second could not because it would be merged with the murder. See Kilburn, 780 N.E.2d at 1243. Otherwise, all assaults that immediately precede a killing would bootstrap the killing into first-degree murder, and all distinctions between first-degree and second-degree murder would be eliminated.

It is argued in this case that,

[although the reasoning of those courts and commentators that reject the use of felonious assaults as crimes for which felony murder may be established is based on sound policy considerations, those considerations have been rejected by [the Iowa] legislature. As a result, this court is not free to invoke those considerations no matter how valid we find them to be.

This is simply not true. The legislature has never considered the issue of whether, when the act causing willful injury is the same as that causing death, the two acts should be deemed merged.

In a similar case from New York, People v. Moran, 246 N.Y. 100, 158 N.E. 35 (1927), the defendant was charged with felony murder based on his felonious assault on the victim. The court, writing through Chief Judge Cardozo, described the New York statute:

Homicide is murder in the first degree when perpetrated with a deliberate and premeditated design to kill, or, without such design, while engaged in the commission of a felony.

Moran, 158 N.E. at 36. In Moran the defendant had been convicted on the basis that he had committed a felonious assault; however, the court reversed, stating:

[I]t is not enough to show that the homicide was felonious, or that there was a felonious assault which culminated in homicide. Such a holding would mean that every homicide, not justifiable or excusable, would occur in the commission of a felony, with the result that intent to kill and deliberation and premeditation would never be essential. The felony that eliminates the quality of the intent must be one that is independent of the homicide and of the assault merged therein, as, e.g., robbery or larceny or burglary or rape.

Id.

Although the State argues that merger principles should not apply to these facts, nothing in any of the statutes relied upon to support that argument suggests that the legislature had any intent to abolish the principle of merger under the circumstances of this case. Furthermore, we should not defer to the legislature for a signal for us to adopt a legal principle that is the responsibility of the court and within the power of the court to apply, based on legal precedent, common sense, and fairness.

We now hold that, if the act causing willful injury is the same act that causes the victim’s death, the former is merged into the murder and therefore cannot serve as the predicate felony for felony-murder purposes. In reaching this conclusion, we agree that we should not attribute to the legislature an intent to “create[ ] an ever-expanding felony murder rule” by characterizing every willful injury as a forcible felony for felony-murder purposes. See Rigg § 3:16, at_We realize that this view is inconsistent with our prior cases, including Beeman and its progeny. We therefore overrule those cases, insofar as they hold that the act constituting willful injury and also causing the victim’s death may serve as a predicate felony for felony-murder purposes. Those cases include Beeman, 315 N.W.2d at 777. We also overrule the cases that followed it: State v. Anderson, 517 N.W.2d 208, 214 (Iowa 1994); State v. Rhomberg, 516 N.W.2d 803, 805 (Iowa 1994); Ragland, 420 N.W.2d at 793; and State v. Mayberry, 411 N.W.2d 677, 682-83 (Iowa 1987).

The rule of law announced in this case regarding the use of willful injury as a predicate felony for felony-murder purposes shall be applicable only to the present case and those cases not finally resolved on direct appeal in which the issue has been raised in the district court.

VII. The Prejudice Issue.

When a general verdict does not reveal the basis for a guilty verdict, reversal is required. State v. Martens, 569 N.W.2d 482, 485 (Iowa 1997) (“[T]he validity of a verdict based on facts legally supporting one theory for conviction of a defendant does not negate the possibility of a wrongful conviction of a defendant under a theory containing legal error.”); State v. Hogrefe, 557 N.W.2d 871, 881 (Iowa 1996) (“With a general verdict of guilty, we have no way of determining which theory the jury accepted.”).

Because we have no indication as to which basis of guilt the jury accepted, we must reverse and remand for a new trial.

VIII. The Medical Privilege Issue.

On retrial an additional issue is certain to be raised — whether the defense is entitled to obtain the medical records of the deceased victim. Prior to trial, Heemstra obtained a subpoena duces tecum for Lyon’s medical records to bolster his self-defense claim based on possible threats by the victim. Dr. Duncan and the victim’s estate moved to quash the subpoenas, and Heemstra resisted. These records were provided to the court in response to the subpoena. The court did not reveal the records to the defendant or the State, but it did review them in camera for two limited purposes: (1) to determine if any direct threats were made by the victim regarding Heemstra and (2) to determine if statements made by the victim revealed the existence of potential witnesses who may shed light on Lyon’s relationship with Heemstra. After the court reviewed the records, it found they contained no evidence concerning the two areas that the court had identified. The defendant’s attorney asked the court to expand the scope of its in camera review, stating:

I think that the defendant’s due process rights and his Sixth Amendment rights to confront his accusers and to compel the production of information that would be relevant and helpful to his defense, is broader than those two areas and we can, of course, only trust the court to be sensitive to those due process and Sixth Amendment rights to compulsory process and to confront his accusers.

The court denied Heemstra’s request for disclosure and ordered the records to be sealed.

Iowa Code section 622.10(1) provides:

A practicing attorney, counselor, physician, surgeon, ... mental health professional, ... who obtains information by reason of the person’s employment, or a member of the clergy 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.

A statute dealing specifically with mental health professionals, including psychologists, provides:

Except as specifically authorized in [provisions not applicable here], a mental health professional, data collector, or employee or agent of a mental health professional, of a data collector, or of or for a mental health facility shall not disclose or permit the disclosure of mental health information.

Iowa Code § 228.2(1). This section is broader than the general privilege statute, Iowa Code § 622.10, because it is not limited to “testimony” by the psychologist.

Heemstra contends that Lyon’s medical records will show that Lyon had character traits of “unmanageable anger, aggression and violence and that he sought and received medical treatment for those problems within months of his death.” He argues that he should be entitled to receive these records on three grounds: (1) the records are essential to his ability to receive effective assistance of counsel and due process, (2) the statutory provisions of Iowa Code sections 228.2 and 622.10 do not expressly prohibit their disclosure, and (3) the disclosure of the medical records by the victim’s estate in its wrongful death suit against Heemstra constitutes a waiver of any claim of confidentiality. We first address the waiver issue.

IX. The Waiver Issue.

Heemstra argues that, even if the evidence he seeks is protected by the psychotherapist-patient privilege, the privilege was waived by the victim’s estate by filing a wrongful-death claim against Heemstra. In the civil case, Tom Lyon’s medical records were furnished to Heemstra’s civil attorney under a protective order that prohibited the attorney from furnishing the records to Heemstra or Heemstra’s criminal defense lawyer.

In this appeal, Heemstra argues that the Lyon estate’s authorization for release of the psychotherapists’ records “constitutes at least a partial waiver of any claim of confidentiality” in the criminal case. We reject this argument. We believe a right as valuable as a psychotherapist privilege should not be deemed to be waived by implication except under the clearest of circumstances. In any event, waiver in one proceeding is not a valid waiver in another, even if we were to accept Heemstra’s invitation to take judicial notice of the civil file. See United States v. Goodman, 289 F.2d 256, 259 (4th Cir.), vacated and remanded on other grounds, 368 U.S. 14, 82 S.Ct. 127, 7 L.Ed.2d 75 (1961); 8 Wigmore on Evidence § 2276, at 470-72 (McNaughton rev. 1961). We conclude that Lyon’s estate did not waive the psychotherapist-patient privilege for purposes of the present case.

X. Scope of the Privilege.

The wording of section 622.10 appears to limit the privilege to testimony. See In re Marriage of Hutchinson, 588 N.W.2d 442, 446 (Iowa 1999).

[T]he section 622.10 privilege includes declarations by a witness in court or in a deposition. On the other hand, the privilege does not prohibit a physician in a nontestimonial setting from disclosing any confidential communications. Only the physician’s ethical obligation prohibits the physician from making the disclosure without the patient’s consent.

Id. (citations omitted); see also McMaster v. Iowa Bd. of Psychology Exam’rs, 509 N.W.2d 754, 757 (Iowa 1993) (privilege limited to disclosure of communications by giving testimony); Roosevelt Hotel Ltd. P’ship v. Sweeney, 394 N.W.2d 353, 355 (Iowa 1986) (“Section 622.10 applies only to the testimonial use of privileged information ... because it comes into play ‘in giving testimony.’ ”); Chidester v. Needles, 353 N.W.2d 849, 852 (Iowa 1984) (subpoena does not require disclosure of privileged communications because it does not involve the giving of testimony). However, recent cases show a more expansive view of the medical privilege under section 622.10. For example, we have held that “[t]he privilege extends to medical records that contain information which would be inadmissible at trial as oral testimony from the physician.” State v. Eldrenkamp, 541 N.W.2d 877, 881 (Iowa 1995); see also State v. Demaray, 704 N.W.2d 60, 64-65 (Iowa 2005) (stating that medical records containing the results of Demaray’s blood test were covered by the physician/patient privilege). This more liberal interpretation of section 622.10 is logical because the privilege would be virtually meaningless if it prohibited testimony but did not protect the very records upon which such testimony would be based.

Our procedural rules and cases applying section 622.10 have shown great solicitude for the physician-patient privilege. Under rule of civil procedure 1.503(1), privileged information is generally not even discoverable. In addition, we have said that the

physician-patient privilege is intended to promote free and full communication between a patient and his doctor so that the doctor will have the information necessary to competently diagnose and treat the patient.

State v. Deases, 518 N.W.2d 784, 787 (Iowa 1994), and that we “construe the statute liberally to carry out its manifest purpose.” Eldrenkamp, 541 N.W.2d at 881.

Sound public policy supports a more protective treatment for mental health records than those in other doctor-patient situations. As the seventh circuit has observed, concerning recognition of a psychotherapist-patient privilege,

[rjeason tells us that psychotherapists and patients share a unique relationship, in which the patient’s ability to communicate freely without the fear of public disclosure is the key to successful treatment. ...

Moreover, communications with a psychotherapist often involve highly personal matters, the disclosure of which “would frequently be embarrassing to the point of mortification for the patient.” Indeed, courts and commentators have focused on an individual’s right of privacy, “a fundamental tenet of the American legal tradition,” to justify the psychotherapist/patient privilege.

Jaffee v. Redmond, 51 F.3d 1346, 1355-56 (7th Cir.1995) (quoting In re Doe, 964 F.2d 1325, 1328 (2d Cir.1992)), cert. granted, 516 U.S. 930, 116 S.Ct. 334, 133 L.Ed.2d 234 (1995); accord Chung v. Legacy Corp., 548 N.W.2d 147, 149 (Iowa 1996) (suggesting certain patient-physician communications may fall within a protected zone of privacy).

Heemstra argues that he needs the records, not for the purpose of admitting them as evidence, but to further investigate Lyon’s propensity toward violence. He claims his constitutional right to confront witnesses, compulsory process, and right to present a defense were all impaired by the court’s denial of access to Lyon’s medical records. He argues that we should adopt a “balancing” test under which a court weighs the patient’s need for privacy and confidentiality against the defendant’s need for the information to effectively defend his case.

In a civil case regarding the psychotherapist-patient privilege, the United States Supreme Court, in Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996), recognized the existence of the psychotherapist privilege, but rejected the argument that a “balancing” test should be used.

We part company with the Court of Appeals on a separate point. We reject the balancing component of the privilege implemented by that court and a small number of States. Making the promise of confidentiality contingent upon a trial judge’s later evaluation of the relative importance of the patient’s interest in privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the privilege. As we explained in Upjohn [Co. v. United States, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981)], if the purpose of the privilege is to be served, the participants in the confidential conversation “must be able to predict with some degree of certainty whether particular discussions will be protected. An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all.” 449 U.S. at 393, 101 S.Ct. at 684[, 66 L.Ed.2d at 593].

Id. at 17-18, 116 S.Ct. at 1932, 135 L.Ed.2d at 349-50 (footnote omitted).

While advocating the importance of the psychotherapist privilege, the Court also acknowledged that it was not absolute, leaving open the possibility that subsequent courts may adopt exceptions. It stated:

Although it would be premature to speculate about most future developments in the federal psychotherapist privilege, we do not doubt that there are situations in which the privilege must give way, for example, if a serious threat of harm to the patient or to others can be averted only by means of a disclosure by the therapist.

Id. at 18 n. 19, 116 S.Ct. at 1932 n. 19, 135 L.Ed.2d at 349-50 n. 19.

Courts in some criminal cases have recognized that, despite their solicitude for various testimonial privileges, these privileges must be tempered by defendants’ constitutional right to present a defense. The defendant points to Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), in urging this court to engage in a balancing test. Davis involved an Alaska statute that provided for confidentiality of a juvenile’s offense record. The Supreme Court held that the rights of a criminal defendant who sought to introduce a juvenile witness’s record could override the statutory confidentiality in order to effectively cross-examine the juvenile. The Court stated that:

We do not and need not challenge the State’s interest as a matter of its own policy in the administration of criminal justice to seek to preserve the anonymity of a juvenile offender.... Serious damage to the strength of the State’s case would have been a real possibility had petitioner been allowed to pursue this line of inquiry. In this setting we conclude that the right of confrontation is paramount to the State’s policy of protecting a juvenile offender. Whatever temporary embarrassment might result to [the witness] or his family by disclosure of his juvenile record ... is outweighed by petitioner’s right to probe into the influence of possible bias in the testimony of a crucial identification witness.

... [W]e conclude that the State’s desire that [the witness] fulfill his public duty to testify free from embarrassment and with his reputation unblemished must fall before the right of petitioner to seek out the truth in the process of defending himself.

The State’s policy interest in protecting the confidentiality of a juvenile offender’s record cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness.

Davis, 415 U.S. at 319-20, 94 S.Ct. at 1112, 39 L.Ed.2d at 355-56 (citation omitted).

In United States v. Hansen, 955 F.Supp. 1225 (D.Mont.1997), the defense subpoenaed a psychiatrist’s treatment records of a deceased victim. That court noted the public’s interest in a psychotherapist-patient privilege and weighed it against the defendant’s constitutional right to a fair trial. Without detailed discussion, the court simply stated, “I find that the defendant’s need for the privileged material outweighs this interest.” In reaching this conclusion, the court noted that the patient was deceased. Hansen, 955 F.Supp. at 1226. Also, in United States v. Alperin, 128 F.Supp.2d 1251 (N.D.Cal.2001), a federal magistrate rejected the victim’s argument that the psychotherapist-patient privilege barred production of the records. The court found that the victim’s mental health could be material to the defendant’s self-defense claim and that this evidentiary benefit outweighed the victim’s “strong interest in keeping her communications with her psychiatrist confidential.” Alperin, 128 F.Supp.2d at 1255.

Although Iowa’s privilege statutes generally prevent disclosure of medical records, a court

can ... require the disclosure of information that would otherwise be privileged. For example, it has long been recognized that the criminal defendant’s Sixth Amendment right to confront the witnesses against him means that the government cannot simultaneously prosecute an individual and assert privileges that would inhibit his defense.

23 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure § 5436, at 887 (1980) (footnotes omitted).

In McMaster we recognized a right to privacy in medical records, but suggested the use of a balancing test to determine whether a “compelling need” existed to obtain the evidence. We said:

“The privacy interest must always be weighed against such public interests as the societal need for information, and a compelling need for information may override the privacy interest.”

McMaster, 509 N.W.2d at 759 (quoting Chidester, 353 N.W.2d at 853).

We believe the present case presents a bona fide claim of compelling interest sufficient to require a limited disclosure of the privileged information, based on the unique facts presented. In contrast to cases such as Jaffee, which rejected disclosure, this is a criminal case — one in fact that carries the most severe penalty provided by our law. The subject of the privilege is deceased and at least some of the information is presently in the public domain in the civil suit. Most importantly, the information sought might reasonably bear on the defendant’s possibility of success in supporting his claim of self-defense. Specifically, he might be able to use this evidence, if it shows an explosive disposition on Lyon’s part, to cross-examine Lyon’s widow, who stated that Lyon sought medical treatment only for depression.

We conclude that a limited disclosure of the medical records should be ordered in this case. In doing so, the medical privilege is neither abridged nor waived. We provide only for an in camera examination of the records, as the trial judge previously provided, except that the records shall be made available to defense and prosecution counsel, to aid in the weighing process, under a protective order prohibiting any further dissemination without court order. The records, after copies are provided to counsel, shall be retained by the clerk as confidential records.

XI. Conclusion.

We hold it was error to submit felony murder based on willful injury and to refuse defense counsel access to Lyon’s psychotherapy records. We need not discuss Heemstra’s new-trial issues or meffective-assistance-of-counsel claims because we assume these issues will not arise on retrial. We reverse and remand for a new trial.

REVERSED AND REMANDED.

All justices concur except CARTER and CADY, JJ., who dissent.

1 . These results are possible because the woman's striking of her friend could constitute willful injury under Iowa Code section 708.4, and the negligent father could be found guilty of child endangerment under Iowa Code section 726.6. Both crimes could qualify as forcible felonies under section 702.11 and, therefore, serve as predicate offenses for felony-murder purposes.