State v. Retterath
| Decision Date | 06 May 2022 |
| Docket Number | 19-2075 |
| Citation | 974 N.W.2d 93 |
| Parties | STATE of Iowa, Appellant, v. Mark Bernard RETTERATH, Appellee. |
| Court | Iowa Supreme Court |
Thomas J. Miller, Attorney General, and Louis S. Sloven (argued), Assistant Attorney General, for appellant.
Jessica Donels (argued), Alfredo Parrish, and Gina Messamer of Parrish Kruidenier Dunn Gentry Brown Bergmann & Messamer L.L.P., Des Moines, for appellee.
McDermott, J., delivered the opinion of the court, in which all participating justices joined. Waterman, J., took no part in the consideration or decision of the case.
A jury convicted Mark Retterath of solicitation to commit murder. Before his trial, Retterath sought to obtain the privileged counseling records of two of the State's key witnesses on the basis that these records might contain critical exculpatory information for his defense. The district court denied his requests. The court of appeals overturned this ruling and remanded for the district court to review the counseling records to determine whether they in fact contained exculpatory information and, if so, whether Retterath should receive a new trial.
But the statute that establishes the process for this type of review doesn't explain how the court is to acquire the records in the first place. The documents that the defendant seeks are confidential medical records; the court doesn't have them, the State doesn't have them, and the defendant obviously doesn't have them. In this case, one of the two witnesses refused to waive his privilege and voluntarily permit the release of his records. The district court ordered the State to procure the records. The State subpoenaed two federal agencies believed to have the records. But these agencies, citing limitations on disclosing patient health records under federal law, refused to turn them over.
With the State's subpoenas having hit an apparent dead end, the State and Retterath deemed the records unobtainable. The district court, finding itself without any medical records to review, presumed that the records contained exculpatory information and granted Retterath a new trial at which the key witness associated with the missing records would be barred from testifying.
The State appealed. The court of appeals reversed the district court's ruling, holding that the unavailability of the records didn't entitle Retterath to a retrial. We granted Retterath's request for further review.
The peculiar facts of this case bear some resemblance—intentionally so, apparently—to those seen in fictional television dramas. Retterath was charged in 2015 with sex abuse in the third degree for sexually abusing his neighbor, C.L. (whom, to avoid repeated use of initials, we'll refer to as "Cal," although that's not his real name). While out on bail, Retterath allegedly then formed a plot to kill Cal with two other men, Aaron Sellers and J.R. (whom we'll similarly refer to as "Junior"). According to Sellers, the method of murder developed as a copycat to a surreptitious poisoning technique employed in the acclaimed television show Breaking Bad. It involved acquiring castor beans, extracting the deadly toxin ricin from the beans, mixing the ricin with recreational drugs, and leaving the drugs for Cal to find and ingest. Cal's death from the poison, it was hoped, would appear to be an accidental drug overdose.
At trial, as to the murder plot, Sellers testified that Retterath at one point discussed paying a hitman (apparently with silver bullion as the form of payment) to shoot Cal. Sellers also testified about Retterath's pursuit of the ricin-from-castor-beans plan, and that Retterath even showed him castor beans that he'd purchased online. Sellers stated that Retterath asked him to write down a list of items needed to carry out the murder plot. The list (offered as an exhibit) included "6 big rolls of wide duct tape," "50 or 60 large heavy duty Hefty bags" without drawstrings, a "SawsAll" (a type of powered reciprocating saw) with "3 new blades ... 6 inches long," a power cord, "25 gallon containers gasoline," large sections of "Vi[s]queen" (a type of polyethylene plastic sheet) or tarps, and "vacuum sealer (food saver)" bags, along with $220 cash that Retterath owed Sellers. Sellers testified that he ultimately told Retterath he wasn't interested in being part of the murder plot. When Retterath purportedly asked if Sellers knew anyone else who might be, Sellers responded that he'd look into it but never intended to and never did.
On cross-examination, Sellers admitted that Retterath sometimes appeared simply to be "venting" about Cal and that Sellers had told police that the plans to kill Cal were at least somewhat "fantastical" and "dude was just talking." Sellers admitted that he didn't have any knowledge that Retterath had actually put ricin-laced drugs out for Cal to consume or that he'd hired a hitman to shoot Cal. Retterath's lawyer didn't ask Sellers about his mental health on cross-examination.
Junior testified at trial that he was a drug addict but had been sober for roughly four months leading up to trial. Junior similarly testified that after Retterath's arrest for sexually abusing Cal, Retterath frequently talked about killing Cal, including the plot to put ricin in drugs for Cal to consume after Junior had described a similar ricin extraction and poisoning on an episode of Breaking Bad. The two apparently agreed that heroin would be the best drug to mix with the ricin because it was most similar in color. Junior described his role in the plot involved getting the drugs and placing them at Cal's house since Retterath had a no-contact order with Cal. Junior testified that Retterath had shown him the castor beans he'd purchased and printouts of how to build a machine to extract ricin from the castor beans.
On cross-examination, Junior admitted that he frequently talked about getting drugs with Cal and that on one occasion Cal paid Junior to get him drugs. He acknowledged that, in his deposition on Retterath's sex abuse charge, Retterath was often "venting" about being angry with Cal. Junior admitted to never seeing any actual ricin, only the intact castor beans. And Junior also admitted that during the time of the alleged plot he was still using drugs.
Sellers and Junior went to the police to report their concerns about Retterath's activities, which instigated an investigation that resulted in adding solicitation of murder and attempted murder charges against Retterath in addition to the pending sex abuse charges.
The parties had access to the transcript of a deposition taken of Sellers from April 2015 in an unrelated shooting case. Sellers in this 2015 deposition noted that his parole officer had described him as "one of the best liars they've ever dealt with." He admitted to lying both to his probation officers and to the police officers investigating the shooting case. Sellers stated that he'd been diagnosed with schizophrenia
and was taking medication for it. His symptoms included auditory hallucinations. Sellers also admitted to drinking while on his medication, describing the substances in combination as making him "loopier" and intensifying the intoxicative effect.
Sellers was also deposed in this case a year later—in April 2016. At that time, he testified to being on disability for post-traumatic stress disorder
(PTSD). He also indicated he was currently receiving mental health treatment. But when asked, "Are you willing to talk to me about your diagnosis that leads to your treatment that you had for the PTSD and the disability?", Sellers answered, "No." Retterath's lawyer didn't pursue that line of questioning further.
Retterath filed pretrial motions requesting that the district court review the confidential medical records under section 622.10(4) of Cal, Sellers, and Junior. The district court denied the motion as to Sellers and Junior. At trial, the jury heard testimony from Sellers, Junior, Retterath, and a collection of other witnesses. Retterath didn't ask Sellers about his mental health or try to introduce his deposition testimony regarding his schizophrenia
. The jury convicted Retterath of sex abuse in the third degree, solicitation to commit murder, and attempted murder.
Retterath appealed, arguing that the evidence was insufficient to support his convictions and that the district court erred in denying his pretrial motions seeking the court's review of Sellers's and Junior's privileged counseling records under Iowa Code section 622.10(4) (2018). The court of appeals agreed with Retterath that there was insufficient evidence to support the conviction on the attempted murder count because the State failed to prove that Retterath "assaulted" Cal by committing an overt act, and reversed his conviction as to that count. The court of appeals also determined that the district court erred in denying Retterath's requests to review Sellers's and Junior's mental health records since he'd made a "plausible showing" under Iowa Code section 622.10(4)(a )(2) that the records contained exculpatory information unavailable from another source.
The court of appeals in its remand order directed that if, after reviewing the records, the court found no exculpatory evidence, then it was to affirm the conviction for solicitation to commit murder. But if it found exculpatory evidence in the records, it was to perform the balancing test outlined in the statute to assess whether Retterath should receive a new trial on the conviction for solicitation to commit murder.
On remand, the district court entered an "Order for Production of Documents" that granted Retterath's earlier pretrial motions requesting that the district court review the confidential medical records of Sellers and Junior under section 622.10(4). The order specified: "The State shall produce the requested records to the undersigned without unreasonable delay and file a notice of compliance with the clerk identifying the facilities from...
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