State v. Sanders

623 N.W.2d 858, 2001 Iowa Sup. LEXIS 51, 2001 WL 273879

• Court: Supreme Court of Iowa
• Decided: March 21, 2001
• Docket: 00-704
• Status: Published

Opinions

TERNUS, Justice.

The defendant, Terry Sanders, sought discretionary review of a district court order permitting the State to subpoena his medical records. Upon our review of the record and the governing legal principles, we hold that the subpoena should have been quashed. Therefore, we reverse and remand.

I. Background Facts and Proceedings.

On July 7, 1999, Sanders was involved in a two-vehicle accident that resulted in the death of the occupant of the other car. His blood was tested for alcohol content pursuant to Iowa’s implied consent law. In addition, a separate blood test was done by the hospital where he was taken for purposes of treating his injuries.

On August 2, 1999, the State charged Sanders with vehicular homicide in violation of Iowa Code section 707.6A(1) (1999). This statute makes it a class “B” felony to “unintentionally cause [ ] the death of another by operating a motor vehicle while intoxicated.” Iowa Code § 707.6A(1). Several months after commencement of the criminal prosecution the prosecuting attorney obtained a subpoena directed to the hospital commanding it to produce Sanders’ medical records from July 7 and July 8,1999.

Sanders filed a motion to quash. The district court ruled that the records fell within the physician/patient privilege but were not protected from discovery by Iowa Code section 622.10 because the subpoena did not seek testimony. See Chidester v. Needles, 353 N.W.2d 849, 852 (Iowa 1984) (holding that section 622.10 did not prevent a county attorney from obtaining a precharge subpoena for medical records because the subpoena did not require the disclosure of “privileged communications by the giving of testimony”); Iowa Code § 622.10 (prohibiting a physician “in giving testimony” from disclosing “any confidential communication”). The court also rejected the defendant’s contention that the county attorney could not use his subpoena power pursuant to Iowa Rule of Criminal Procedure 5(6) in a postindictment context. We granted the defendant’s request for discretionary review.

II. Scope of Review and Issues.

The district court’s ruling rested on its interpretation of relevant rules and statutes. Therefore, we review for the correction of errors of law. See State v. McCoy, 618 N.W.2d 324, 325 (Iowa 2000) (reviewing interpretation and application of statute for correction of legal error); cf. Hasselman v. Hasselman, 596 N.W.2d 541, 543 (Iowa 1999) (reviewing district court’s interpretation of rules of civil procedure for correction of errors of law). Because we conclude that the rules of criminal procedure do not allow the county attorney to use a rule 5(6) subpoena in the situation under consideration here, we do not consider the impact of section 622.10 on the matter before us.

III. Discussion.

Iowa Rule of Criminal Procedure 5(6) provides for the issuance of a subpoena duces tecum upon the request of a prosecuting attorney:

The clerk of the district court, on written application of the prosecuting attorney and the approval of the court, shall issue subpoenas including subpoenas duces tecum for such witnesses as the prosecuting attorney may require in investigating an offense, and in such subpoenas shall direct the appearance of said witnesses before the prosecuting attorney at a specified time and place. Such application and judicial order of approval shall be maintained by the clerk in a confidential file until a charge is filed, in which event disclosure shall be made, unless the court in an in-camera hearing orders that it be kept confidential.

Iowa R.Crim. P. 5(6). At first blush, the references in this rule to the investigation of an offense and the maintenance of confidentiality “until a charge is filed” suggest that a rule 5(6) subpoena is solely a prein-dictment tool. In fact, in Chidester, our court noted that a rule 5(6) subpoena “is part of a county attorney’s general investigatory power for use in lieu of a grand jury proceeding.” 353 N.W.2d at 852. Reading this rule in the context of the entire rules of criminal procedure leads us to the conclusion, however, that a rule 5(6) subpoena is not limited to the precharge phase of a criminal prosecution.

Rule 13(1) pertains to discovery in a criminal case and more particularly to “witnesses examined by the prosecuting attorney.” This rule states:

When a witness subpoenaed by the prosecuting attorney pursuant to R.Cr.P.5 is summoned by the prosecuting attorney after complaint, indictment or information, the defendant shall have a right to be present and have the opportunity to cross-examine any witnesses whose appearance before the county attorney is required by this rule.

Iowa R.Crim. P. 13(1) (emphasis added). The reference in rule 13(1) to the use of a rule 5(6) subpoena “after complaint, indictment or information” indicates that our rules contemplate that a rule 5(6) subpoena can be used after a charge has been filed against the defendant. It is also clear, however, that rule 13(1) qualifies the county attorney’s rule 5(6) subpoena power when that power is exercised postin-dictment. That brings us to the determinative issue in this case: Does the remainder of rule 13 governing discovery in a criminal case likewise limit the scope of a rule 5(6) subpoena when used in conjunction with a pending criminal action? We turn now to that issue.

Rule 13(3) governs the disclosure of evidence by the defendant. It provides in pertinent part:

a. Documents and Tangible Objects. If the court grants the relief sought by the defendant under subsection 2, paragraph “b”, subparagraph (1), of this rule,¹ the court may, upon motion of the state, order the defendant to permit the state to inspect and copy books, papers, documents, statements other than those of the accused, photographs or tangible objects which are not privileged and are within the possession, custody or control of the defendant and which the defendant intends to introduce in evidence at trial.

b. Reports of Examinations and Tests. If the court grants [the] relief sought by the defendant under subsection 2, paragraph “b”, subparagraph (2),² of this rule, the court may, upon motion of the state, order the defendant to permit the state to inspect and copy the results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession or control of the defendant and which the defendant intends to introduce in evidence at the trial or which were prepared by a witness whom the defendant intends to call at the trial when such results or reports relate to his or her testimony.

Iowa R.Crim. P. 13(3)(a), (b) (emphasis added). As is evident from this rule, the State’s discovery of materials under the defendant’s control is limited once a criminal charge has been filed. Thus, the first question we must answer is whether the records at issue here fall within rule 13(3).

We think that the requested medical records are within the scope of rule 13(3)(b). Release of the defendant’s hospital records is subject to “the medical profession’s self-imposed standard of conduct, originating in the Hippocratic oath, that a physician not disclose a patient’s confidences without the patient’s consent.” Roosevelt Hotel Ltd. P’ship v. Sweeney, 394 N.W.2d 353, 355 (Iowa 1986) (emphasis added) (refusing to compel the plaintiff/patient to execute a waiver of the physician-patient privilege to allow the defendant’s counsel to talk privately with plaintiffs physicians and obtain plaintiffs hospital records).³ By virtue of this consent requirement, the defendant, subject to statutory law and court order, controls the release of his medical records. Because the records are within the control of the defendant, their discovery by the State is subject to the conditions set forth in rule 13(3)(b). There is nothing in the record to show that these conditions have been met here. Therefore, the State would not be entitled to a court order pursuant to rule 13(3)(b) requiring the defendant to allow the State to inspect and copy these records.

Our conclusion that the defendant’s medical records would not ordinarily be discoverable by the State in this criminal proceeding brings us to the pivotal question in this case: Can the county attorney use his rule 5(6) subpoena power to avoid the restrictions on discovery imposed by rule 13(3) when a criminal prosecution has already been initiated? We think he may not. To hold otherwise would virtually gut rule 13(3). Any time the State wanted to discover materials in the defendant’s possession, custody, or control, the prosecuting attorney could simply obtain a rule 5(6) subpoena and bypass the requirements of rule 13(3). This result should not be permitted. We hold, therefore, that when the State seeks materials falling within the scope of rule 13(3) in a pending criminal prosecution, the State must comply with the prerequisites of that rule.

Based on our interpretation of the rules of criminal procedure, we conclude the district court erred in refusing to grant the defendant’s motion to quash. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

All justices concur except CARTER, J., who concurs specially, and SNELL, J., who concurs specially in a separate opinion, and NEUMAN, J.,who joins in this special concurrence.

1 . Rule 13(2)(b)(l) allows the court, upon the defendant's motion, "to permit the defendant to inspect ... items seized by the State in connection with the alleged crime." The court may also allow the defendant "to inspect and copy books, papers, documents, statements, photographs or tangible objects which are within the possession, custody or control of the state,” provided that such items are material to the defendant's preparation of his defense or "are intended for use by the state as evidence at the trial, or were obtained from or belong to the defendant.” Iowa R.Crim. P. 13(2)(b)(l).

2 . Rule 13(2)(b)(2) allows the court, upon the defendant’s motion, to order the State "to permit the defendant to inspect and copy ... any results or reports of physical or mental examinations, and of scientific tests or experiments” if such items were "made in connection with the particular case” and are "within the possession, custody or control of the state.”

3 . The State argues that the defendant has waived the physician-patient privilege by his alleged intent to introduce expert testimony rebutting the State's evidence of the defendant’s intoxication. The defendant responds that his expert does not intend to rely on the medical records at issue here in giving his opinions. Although the State’s waiver argument is addressed to the applicability of section 622.10, an issue we do not address, we consider the State's argument anyway because it is also relevant to the issue of whether the defendant has waived his right to control the release of his medical records. We think it is clear that the defendant's action in rebutting the State's evidence would not serve to waive the statutory privilege. See Chung v. Legacy Corp., 548 N.W.2d 147, 150 (Iowa 1996) (holding that "[t]he denial of an element or factor of one’s opponent’s case” does not operate as a waiver of the section 622.10 privilege). Similarly, we hold that the defendant’s anticipated expert testimony with respect to his alleged intoxication does not waive the confidentiality of his medical records under the circumstances of this case where the expert has not used or relied on the records in reaching his opinion.