State v. Musser

Citation721 N.W.2d 734
Decision Date04 August 2006
Docket NumberNo. 04-0809.,04-0809.
PartiesSTATE of Iowa, Appellee, v. Adam Donald MUSSER, Appellant.
CourtUnited States State Supreme Court of Iowa

Linda Del Gallo, State Appellate Defender, and Stephan J. Japuntich, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Darrel Mullins and Cristen Douglass, Assistant Attorneys General, J. Patrick White, County Attorney, and Victoria Dominguez, Assistant County Attorney, for appellee.

TERNUS, Justice.

The defendant, Adam Donald Musser, appeals his conviction of criminal transmission of human immunodeficiency virus (HIV) in violation of Iowa Code section 709C.1(1)(a) (2001). Musser claims the statute violates the First Amendment, is vague and overbroad, and infringes his right of privacy.1 He also argues his twenty-five-year sentence constitutes cruel and unusual punishment. In addition to these constitutional claims, Musser challenges the admission of laboratory reports showing his HIV-positive status, asserting they lacked a proper foundation and contained inadmissible hearsay. Finally, the defendant raises a claim of ineffective assistance of counsel based on trial counsel's failure to object to the admission of the lab reports as a Confrontation Clause violation and failure to object to the prosecutor's opening statement and closing argument.2 We find no merit in any of the issues raised on appeal, and therefore, we affirm the judgment of conviction and sentence.

I. Factual Background and Prior Proceedings.

The jury could have found the following facts from the evidence introduced at trial. The defendant had unprotected sexual intercourse with the victim, R.D., on three occasions in late 2002. At this time, he was HIV positive and was receiving medical treatment for this condition. Musser did not, however, tell the victim that he was HIV positive.

In April 2003, R.D. learned the defendant was HIV positive and contacted the police. Musser was charged with criminal transmission of human immunodeficiency virus in violation of section 709C.1(1)(a). This statute states a crime is committed if a "person, knowing that the person's human immunodeficiency virus status is positive, . . . [e]ngages in intimate contact with another person." Iowa Code § 709C.1(1)(a). The other person's knowing consent to exposure to the virus is an affirmative defense under chapter 709C:

It is an affirmative defense that the person exposed to the human immunodeficiency virus knew that the infected person had a positive human immunodeficiency virus status at the time of the action of exposure, knew that the action of exposure could result in transmission of the human immunodeficiency virus, and consented to the action of exposure with that knowledge.

Id. § 709C.1(5).

The defendant filed a motion to dismiss challenging the constitutionality of section 709C.1(1), which was overruled by the district court. The case was subsequently tried to a jury, and the defendant was found guilty of criminal transmission of HIV. After his post-trial motions were overruled, Musser was sentenced to an indeterminate twenty-five-year prison term.3 See id. §§ 709C.3, 902.9(2).

II. Constitutional Challenges to Statute.

We first consider Musser's various constitutional challenges to section 709C.1(1)(a). Our review of these claims is de novo. State v. Seering, 701 N.W.2d 655, 661 (Iowa 2005).

We presume a statute is constitutional. Id. To overcome this presumption, a challenger must prove the unconstitutionality of the statute beyond a reasonable doubt. Id. This burden can be met only by refuting "`every reasonable basis upon which the statute could be found constitutional.'" Id. (citation omitted).

A. First Amendment. The defendant claims section 709C.1 offends the First Amendment to the United States Constitution because it "compels speech." Specifically, he argues an HIV-positive person engaging in intimate contact with another person can avoid criminal liability only by telling the potential victim that the person is HIV positive and educating the potential victim about the possible transmission of the virus. An infected person who has sexual relations with another without conveying this information is punished, he contends.

The legal principle upon which the defendant bases his argument is valid: the First Amendment safeguards not only "the right to speak freely," but also "the right to refrain from speaking at all." W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 645, 63 S.Ct. 1178, 1189, 87 L.Ed. 1628, 1641 (1943) (Murphy, J., concurring). Moreover, the right to refrain from speaking encompasses not only thoughts and opinions; it applies "equally to statements of fact the speaker would rather avoid." Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group, 515 U.S. 557, 573, 115 S.Ct. 2338, 2347, 132 L.Ed.2d 487, 503 (1995).

The State contends these principles are inapplicable here, however, because section 709C.1 does not compel speech. It points out the Iowa statute, unlike statutes from other states, does not expressly require an infected person to tell a potential victim that the person is HIV positive. See, e.g., Mich. Comp. Laws Ann. § 333.5210 (2006) (making it a felony for an HIV-infected person to "engage[ ] in sexual penetration with another person without having first informed the other person that he or she ... is HIV infected"). The State asserts the victim "could learn of the HIV status from any source."

Even though section 709C.1 does not explicitly require disclosure by the defendant, we think the practical effect of the Iowa statute is the same as those statutes mandating disclosure. To avoid violating section 709C.1, a defendant must rely on the consent defense set out in section 709C.1(5). Realistically, the only way a defendant can be assured the victim knowingly consents to exposure is for the defendant to tell the victim of the defendant's HIV status. The unlikelihood of the victim obtaining this knowledge in any other way is underscored by the confidential nature of this medical information. See Iowa Code § 141A.9(1) ("Any information, including reports and records, obtained, submitted, and maintained pursuant to this chapter [Acquired Immune Deficiency Syndrome (AIDS) ] is strictly confidential medical information."); see also id. § 622.10 (preventing medical professional from disclosing confidential communications). In other words, the only way a potential victim will know the defendant is HIV positive is if the defendant discloses this fact or otherwise waives the privilege protecting this fact from disclosure by his treatment providers.4 For this reason, we conclude the statute compels speech.5 Cf. People v. Jensen, 231 Mich.App. 439, 586 N.W.2d 748, 758 (1998) (concluding Michigan statute compelled speech).

This conclusion brings us to the critical issue: Does the statute's impact constitute an unconstitutional infringement of the defendant's free speech rights? See Consol. Edison Co. of N.Y., Inc. v. Pub. Serv. Comm'n, 447 U.S. 530, 535, 100 S.Ct. 2326, 2332, 65 L.Ed.2d 319, 326 (1980) (stating not every limitation on speech violates the Constitution). In testing the constitutionality of section 709C.1 under the First Amendment, we choose the appropriate level of scrutiny based on "the nature of the speech taken as a whole and the effect of the compelled statement thereon." Riley v. Nat'l Fed'n of the Blind of North Carolina, Inc., 487 U.S. 781, 796, 108 S.Ct. 2667, 2677, 101 L.Ed.2d 669, 689 (1988). If the affected speech is commercial speech or if the regulation is content neutral, an intermediate level of scrutiny applies. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642, 114 S.Ct. 2445, 2459, 129 L.Ed.2d 497, 517 (1994) (stating "regulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny"); Cent. Hudson Gas & Elec. v. Pub. Serv. Comm'n, 447 U.S. 557, 566, 100 S.Ct. 2343, 2351, 65 L.Ed.2d 341, 351 (1980) (holding regulation of commercial speech is subject to an intermediate level of review).

The nature of the speech at issue here is clearly noncommercial. Commercial speech is "expression related solely to the economic interests of the speaker and its audience." Cent. Hudson Gas & Elec., 447 U.S. at 561, 100 S.Ct. at 2349, 65 L.Ed.2d at 348. The interests at stake in the intimate relationship providing the context for the speech regulated by section 709C.1 are plainly not economic.

In deciding whether the statute regulates speech on the basis of content, we find guidance in the following observations of the Supreme Court:

[T]he "principal inquiry in determining content neutrality ... is whether the government has adopted a regulation of speech because of [agreement or] disagreement with the message it conveys." . . . But while a content-based purpose may be sufficient in certain circumstances to show that a regulation is content based, it is not necessary to such a showing in all cases. Nor will the mere assertion of a content-neutral purpose be enough to save a law which, on its face, discriminates based on content.

As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based. By contrast, laws that confer benefits or impose burdens on speech without reference to the ideas or views expressed are in most instances content neutral.

Turner Broad. Sys., Inc., 512 U.S. at 642-43, 114 S.Ct. at 2459, 129 L.Ed.2d at 517-18 (citations omitted). An example of a content-neutral regulation is one that addresses "only the time, place, or manner of speech." Consol. Edison Co. of N.Y., Inc., 447 U.S. at 536, 100 S.Ct. at 2332, 65 L.Ed.2d at 327. "[T]he essence of time, place, or manner regulation lies in the recognition that...

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