State v. Leedom

Decision Date24 January 2020
Docket NumberNo. 18-1947,18-1947
Citation938 N.W.2d 177
Parties STATE of Iowa, Appellee, v. Richard Wayne LEEDOM, Appellant.
CourtIowa Supreme Court

Robert P. Montgomery and Brandon Brown of Parrish Kruidenier Dunn Gribble Gentry Brown & Bergmann, L.L.P., Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Darrel Mullins, Susan Krisko, and Thomas J. Ogden, Assistant Attorneys General, for appellee.

WATERMAN, Justice.

In this appeal, we must decide whether the district court erred by denying the defendant’s motion for an in camera review of the victim’s mental health records, among other issues. The defendant was charged with sexually abusing his granddaughter, and her credibility was a key fighting issue. Her parents were in a bitter child custody modification proceeding, and the granddaughter strongly preferred to live with her father. To improve her father’s custody claim, she admittedly lied about a car accident he caused that put her at risk. She also told an investigator that her mother physically abused her and did nothing when told of the maternal grandfather’s sexual abuse. The granddaughter testified in her deposition that she had disclosed the defendant’s abuse to her therapist, a mandatory reporter. The defendant, noting that the therapist had not reported the alleged abuse, argued the records likely contained exculpatory impeachment evidence and filed a motion pursuant to Iowa Code section 622.10(4) (2018) for the court’s in camera inspection. The district court twice denied the motion and the defendant’s request for an ex parte hearing. The case proceeded to a jury trial in which the defendant was convicted on all counts. The defendant appealed raising multiple grounds for a new trial. We retained the case.

For the reasons explained below, we hold the district court properly denied the defendant’s motion for an ex parte hearing but erred by failing to conduct an in camera inspection of the victim’s mental health records. We determine the defendant’s other grounds for a new trial lack merit. Accordingly, we conditionally affirm his convictions, but we remand the case for the in camera inspection consistent with this opinion.

I. Background Facts and Proceedings.

On April 29, 2016, a fourteen-year-old girl, H.M., disclosed to an investigator for the Iowa Department of Human Services (DHS) that she had been sexually abused by her maternal grandfather, Richard Wayne Leedom, who she refers to as "Papa." At that time, the DHS was investigating H.M.’s claims that her mother, Teah Leedom, had choked her and called her derogatory terms. H.M.’s parents were engaged in a contested child custody modification proceeding, and H.M. strongly preferred to spend more time with her father. H.M. told the DHS investigator that "one of the reasons [H.M.] was so upset with [Teah] was that when [she] told [Teah] what Papa had done, [Teah] didn't do anything about it." H.M. reported three instances of sexual abuse, all of which occurred at Leedom’s home in Lake Ponderosa where H.M. and her older brother often spent the night.

The first two instances happened when H.M. was about nine or ten years old.

While H.M. was sleeping in Leedom’s bed with him, she awakened with her pajamas unzipped and Leedom’s finger running from her vagina to the small of her back. H.M. left the bed for the bathroom. When she returned, Leedom kept calling her "Susan," the name of his then-girlfriend, later wife. When H.M. told Teah, she was told it would stop, but it happened again.

The second time occurred while H.M. slept on the outside of the bed, with Leedom in the middle, and Susan on his other side against the wall. Leedom touched H.M.’s vagina while she faced him. H.M. again left for the bathroom afterwards, then went to sleep in a different room on the couch. Leedom came out and asked H.M. if she was okay with what had happened before returning to his room. H.M. did not tell Teah or Susan at that time.

The third instance occurred when H.M. was eleven or twelve years old. This time, H.M. refused to sleep in Leedom’s bed, but he told her there was no room in the living room for her to sleep, so she laid on a cushion on the bedroom floor next to his bed. When Leedom kneeled next to the bed to pray, he reached over and rubbed and squeezed H.M.’s buttocks over her clothes. She moved, and Leedom jumped and stopped touching her. A few days later, H.M. wrote about what had happened the second and third times on the "Notes" app in her iPad and showed Teah. No investigation began at that time.

This criminal case arose out of the DHS investigation commenced in 2016. On August 2 of that year, Leedom was charged with three counts of second-degree sexual abuse in violation of Iowa Code sections 709.1 and 709.3(1)(b ) and one count of indecent contact with a child in violation of section 709.12(1)(b ). On July 17, 2017, one count of second-degree sexual abuse was dropped.

H.M. was deposed on November 8, 2017. During her deposition, H.M. testified that she told her therapist, Jessica Schmidt, about the sexual abuse in approximately August 2015. H.M. claimed she told Schmidt that she had already informed someone else so Schmidt did not need to report it. Specifically, H.M. stated,

I did tell Jessica. I forgot to mention that.
....
Q. Had you yet at that time shared with Jessica, your therapist, anything about your accusations against your Grandpa Rick? A. I think so.
....
Q. Did you get a promise from Jessica not to reveal that to anyone also? A. Well, I kind of told her that I had already told somebody so she wouldn't tell.
Q. Excuse me? A. I told her that I had told somebody because I didn't want her to tell because people don't really understand it. It’s not just somebody out on the street that did this to me, it’s somebody that I actually care about and somebody that I don't want to see suffer.
....
Q. And did your therapist tell you she could agree not to share it with anyone? A. I mean she said if it was being taken care of, then she didn't have to get into it.
Q. Well, did you tell the therapist the truth that you had shared it with somebody or is that a lie you had shared it with somebody? A. I had told my mom, but I didn't tell, like, DHS or anybody.
Q. Do you specifically remember telling Jessica? A. Yeah.
Q. You do? A. I remember telling her, yeah.
.... Q. Did Jessica ask you who you had shared it with? A. No.

On January 4, 2018, Leedom filed a motion to release privileged records, specifically those of Schmidt, and requested the court’s in camera review of those records. Leedom argued that there was a reasonable probability that the records contained exculpatory information. His theory was that as H.M.’s therapist, Schmidt was a mandatory reporter yet no report had been made to the authorities, raising an inference that the records would rebut H.M.’s testimony that she had disclosed the allegations to Schmidt. Alternatively, if H.M. had reported the abuse, inconsistencies in her versions of what happened could help defense counsel impeach her at trial.

At a hearing on the motion, Dr. Veronica Lestina, a clinical psychologist and licensed mental health counselor, was called by the State to testify in support of its resistance to the motion. Dr. Lestina testified that she would be required to report if a patient twelve years old or younger told her about sexual abuse, but it turns into a "may report it" situation for a child over twelve. As the State argued, "The important portion of [Dr. Lestina’s testimony] is that a review of [H.M.’s therapist records] is not going to be conclusive on the issue of whether or not she did or did not disclose." Defense counsel pointed out that Dr. Lestina testified that she would still report in a situation with a child a few years older than twelve and the conversation with the child would be in her records.

On April 3, the district court issued a ruling denying the motion, concluding that Leedom had not showed a compelling need outweighing H.M.’s right to confidentiality. Leedom subsequently filed a motion to reconsider, asserting a need for an in camera review of H.M.’s records and requesting an ex parte hearing to educate the court on the need to review the records without revealing his defense strategy to the State. Leedom also filed an offer of proof to support the request for the confidential records.

On May 7, 2018, Schmidt testified during a hearing on this motion. She confirmed that she is a mandatory reporter.

[MR. MONTGOMERY:] As a licensed mental health counselor in Iowa, are you a general mandatory reporter? A. Yes.
....
Q. So there are more mandatory reporting obligations with juveniles or children than with adults, correct? A. There’s mandatory reporting for children and dependent adults.
....
Q. For children, who do you consider a child under the law? A. Anyone under the age of 18.
....
Q. And have you had some mandatory reports, reports of sexual abuse that were conveyed to you by a patient during a therapy session? ... A. Yes. As a mandatory reporter, we report if someone disclosed alleged sexual abuse.

Additionally, Schmidt stated that she documents every session.

Q. So without regard to any particular individual or any substance, is there a protocol for note-taking with clients who are children under the age of 18? A. We document -- we have to document after every session, we write a progress note.
Q. And does the protocol include, without regard to any identity or any substance, documenting specifically -- protocol specifically involve documenting any reports of sexual abuse? A. We document what’s shared in the session, and then if we make a report, we report that to the State.

Schmidt elaborated on what she considered as an incident subject to mandatory reporting.

[MR. MONTGOMERY:] If someone under the age of 18 reports to you in a therapy session that they have been sexually abused, is that a mandatory reporting incident? [The Court permitted the witness to answer after objections and a voir dire examination.] A. Yes.
MR.
...

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