               IN THE SUPREME COURT OF IOWA
                            No. 18 / 04-0058

                          Filed August 25, 2006


STATE OF IOWA,

      Appellee,

vs.

RODNEY NEIL HEEMSTRA,

      Appellant.


      Appeal from the Iowa District Court for Warren County, William H.

Joy, Judge.



      Defendant appeals from conviction of first-degree murder under Iowa

Code sections 707.1 and 707.2 (2001). REVERSED AND REMANDED.



      Paul Rosenberg of Paul Rosenberg & Associates, P.C., Des Moines, for

appellant.



      Thomas J. Miller, Attorney General, Darrel L. Mullins and Douglas D.

Hammerand, Assistant Attorneys General, and Gary Kendell, County

Attorney, for appellee.
                                       2

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.
                                      3

According to Heemstra, 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 Heemstra’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
                                      4

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 first 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
                                      5

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.
                                       6
             3. Tommy Ray Lyon sustained a serious injury.
             4. The defendant did not act with justification.

(Emphasis added.)

      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 “point[ing] a firearm . . . or display[ing] 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 “[i]ntentionally points any

firearm toward another, or displays in a threatening manner any dangerous

weapon toward another.”).
      V. 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.
                                       7

      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 “embrace[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, Heemstra 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
                                      8

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, 402 P.2d 130, 134 (Cal. 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.
                                      9

      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 murder 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.
             ....
             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
                                            10
       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 prosecutorial 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, 462 N.E.2d 92, 95 (Mass. 1984) (quoting Wayne R.

LaFave & Austin W. Scott, Jr., Criminal Law § 71, at 559 (1972)).

       1These    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.
                                     11

      This principle is illustrated by an interesting Massachusetts case,

Commonwealth v. Kilburn, 780 N.E.2d 1237 (Mass. 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,

      [a]bsent 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 Kilburn 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, 692 N.E.2d 515 (Mass.
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, 450 P.2d 580

(Cal. 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
                                     12
      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, 450 P.2d at 590 (quoting People v. Washington, 402 P.2d 130, 134

(Cal. 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, 415 P.2d 766, 767 (Or. 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.
                                        13

      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,

             [a]lthough 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, 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:
                                     14
      [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).
                                     15

      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
                                      16

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
                                      17

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).
                                     18
      [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.
                                     19

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,

      [r]eason 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.
                                     20

      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
                                      21

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.
                                        22

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
                                      23

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 ineffective-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.
                                            24
                                                    #18/04-0058, State v. Heemstra


CARTER, Justice (dissenting).

       I dissent. In deciding the case as it does, the majority of the court

disregards the plain meaning of the controlling statutes in order to obtain a

result that is more pleasing to its own sense of justice than the

interpretation of the statute that is plainly evinced by the wording of the

legislation and the legislative history.

       I. Felony Murder.

       The rule of statutory interpretation that is embodied in our rules of

appellate procedure insists that in determining the meaning of statutes “the

court searches for the legislative intent as shown by what the legislature

said, rather than what it should or might have said.” Iowa R. App. P.

6.14(6)(m). What the legislature has said in our felony-murder statute and

the other statutes bearing on that subject is not subject to dispute. The

basic felony-murder statute reads:

             A person commits murder in the first degree when the
       person commits murder under any of the following
       circumstances:
               ....
              2. The person kills another person while participating in
       a forcible felony.

Iowa Code § 707.2(2) (2001). A forcible felony is defined in our criminal

code as “any felonious child endangerment, assault, murder, sexual abuse,

kidnapping, robbery, arson in the first degree, or burglary in the first

degree.” Id. § 702.11 (emphasis added). 2

       2Certain  felonies that would otherwise fall within the foregoing definition are
excepted, including the class “D” felony version of willful injury. See Iowa Code
§ 702.11(2)(a). This is not significant in the present case, however, because the felony-
murder claim submitted to the jury was predicated on the contention that Heemstra
committed murder while participating in the class “C” felony version of willful injury, which
was the same offense on which a felony-murder conviction was predicated in State v.
Beeman, 315 N.W.2d 770, 776-77 (Iowa 1982).
                                      25

      If we interpret this statute according to its plain meaning, it is

obvious that the adjective “felonious” modifies all of the offenses thereafter

identified, including, among the others, the word “assault.” A standard

legal dictionary defines “felonious assault” as “[a]n assault that is of

sufficient severity to be classified and punished as a felony.” Black’s Law

Dictionary 110 (7th ed. 1999). The class “C” felony version of willful injury

was, at the time of Lyon’s killing, a felonious assault because it was

classified by law as a felony, see Iowa Code § 708.4(1), and the elements of

the crime, i.e., an act intended to cause injury, satisfied the definition of

assault embodied in Iowa Code section 708.1(1). The jury could certainly

have found from the evidence that in killing Lyon defendant performed an

act with the intent to cause him serious injury. In order to trigger the

felony-murder doctrine, it was not necessary for the State to show that

intent was realized. Iowa Code § 702.13 (A person is participating in a

public offense during the entire period commencing with the first act done

directly toward the commission of the offense and is participating whether

the person is successful or unsuccessful in committing the offense.).

      The willful-injury offense upon which felony murder was predicated in

State v. Beeman, 315 N.W.2d 770 (Iowa 1982), was identical with the
present class “C” felony version of that crime. Because that crime fell

within the statutory definition of forcible felony and because a person

commits murder in the first degree when he or she kills another person

while participating in a forcible felony, this court held in Beeman that willful

injury could serve as a basis for a felony-murder conviction under Iowa

Code section 707.2(2). Beeman, 315 N.W.2d at 777.

      In upholding a felony-murder conviction based on willful injury,

Beeman did not ignore the merger argument that the majority now opts to

adopt. That case discussed the court’s earlier consideration of that doctrine
                                         26

in State v. Hinkle, 229 N.W.2d 744, 750-51 (Iowa 1975). Beeman, 315

N.W.2d at 777.         Although in Hinkle this court held that the merger

argument had not been preserved for consideration, it discussed the

doctrine, as considered by other courts, and stated:

               Other jurisdictions confronted with a properly-presented
         “felony merger” issue have demonstrated a reluctance to allow
         the State to bootstrap a higher degree of murder solely on the
         basis of a felonious assault . . . . Among courts considering the
         doctrine it has gained widespread acceptance.

Hinkle, 229 N.W.2d at 750 (citation omitted).

         After considering the merger doctrine as approved in other

jurisdictions, the court stated in Beeman:

         We conclude that the inclusion, by the legislature, of “felonious
         assault” in sections 707.2(2) and 702.11, indicates that it
         intended that felonious assaults, including willful injury under
         section 708.4, be felonies that may serve as the basis of a
         felony-murder and that the merger doctrine discussed in
         Hinkle not apply to such assaults.

315 N.W.2d at 777.          This result was compelled by the unambiguous

wording of the controlling statutes and the long-standing judicial

recognition that the legislature is aware of the meaning of all related

statutory provisions and does not enact inconsistent provisions without
expressly recognizing the inconsistency. State v. McSorley, 549 N.W.2d 807,

809 (Iowa 1996). In the present situation, the legislature is presumed to

have knowledge of those offenses constituting forcible felonies when it used

the unqualified term “forcible felony” in the enactment of the felony-murder

provision. The idea that in including willful injury among those offenses

giving     rise   to   felony   murder   the   legislature   had   in   mind   a

compartmentalization of assaultive conduct with the conclusion of an

earlier assault prior to the act that does the victim in is absurd. The felony-

murder doctrine does not depend on the completion of any forcible felony,
                                      27

but only the initiation of an act done directly toward the commission of the

offense. Iowa Code § 702.13.

      Not only is the result obtained in Beeman compelled by the plain

language of the controlling statutes, it is also supported by the fact that, in

adopting a felony-murder component for all forcible felonies, the legislature

rejected a proposal of the Criminal Code Review Study Committee, which it

had appointed, providing that homicide and assaults would not be a basis

for felony murder.      See John J. Yeager, Crimes Against the Person:

Homicide, Assault, Sexual Abuse and Kidnapping in the Proposed Iowa

Criminal Code, 60 Iowa L. Rev. 503, 510-11 (1975) [hereinafter Yeager]. The

Criminal Code Review Study Committee employed Professor John J. Yeager

of Drake Law School and Professor Ronald Carlson of the University of Iowa

College of Law as its drafting consultants. See Mark E. Schantz, Objectives

of Criminal Code Revision: Guidelines to Evaluation, 60 Iowa L. Rev. 430,

432 (1975) (discussing background of 1976 criminal code review). The

Criminal   Code    Review    Study    Committee     submitted    a   proposed

comprehensive revision of the criminal code to the 1974 legislative session.

Id. This was introduced as S.F. 1150. While this was pending, Professor

Yeager, in the article previously cited, discussed the approach of the

proposed code revision in regard to felony murder:

      The present first degree murder statute [pre-1978 law] refers to
      only five of the dangerous felonies. If a homicide occurs in the
      course of the commission of some felony other than the five
      listed, under present law a first degree murder conviction will
      depend upon a showing of “premeditation and deliberation.”
      The Proposed Code classifies as first degree homicide any
      killing which results when one engaged in a felony of any
      nature (other than homicide or assault) intentionally resorts to
      personal violence.
                                      28

Yeager, 60 Iowa L. Rev. at 510-11 (emphasis added) (footnotes omitted).

The section of S.F. 1150 to which the Yeager article refers was chapter 1,

section 703, which read as follows:

          A person commits homicide in the first degree when he
      commits criminal homicide under the following circumstances:
             1. He intentionally commits a homicide, provided that
      none of the mitigating circumstances as stated in sections
      seven hundred four (704) and seven hundred five (705) of this
      division exist.
            2. While participating in a felony other than homicide or
      assault, or while escaping or attempting to escape from lawful
      custody, he directs violence toward any person which causes
      the death of such person or another person.
            3. He participates in a forcible felony other than homicide
      or assault and thereby causes the death of some person.

(Emphasis added.)

      Contrary to the recommendation of the Criminal Code Review Study

Committee, the felony-murder rule adopted by the legislature included all

forcible felonies, including felonious assaults. See 1976 Iowa Acts ch. 1245,

§§ 211, 702.2. This was a clear rejection of the view that felonious assaults

may not provide a basis for applying the felony-murder doctrine. We have

recognized that, when a statute is passed leaving out qualifying words that

had been contained in proposed legislation, the statute should not be
interpreted in a manner that would invoke the omitted qualification.

Builders Land Co. v. Martens, 255 Iowa 231, 236, 122 N.W.2d 189, 191-92

(1963).

      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 our legislature. As a result, this court is not free to

invoke those considerations no matter how valid we find them to be. As the

majority has noted, this court has stood strong on this issue in the years
                                       29

following Beeman, and we have reaffirmed that decision on no less than four

occasions. This chain of authority presents yet another reason why the

result reached in Beeman should not now be altered. We have recognized

that stare decisis is particularly applicable “where the construction placed

on a statute by previous decisions has been long acquiesced in by the

legislature, by its continued use or failure to change the language of the

statute so construed, the power to change the law as interpreted being

regarded, in such circumstances, as one to be exercised solely by the

legislature.” Cover v. Craemer, 258 Iowa 29, 34-35, 137 N.W.2d 595, 599

(1965) (quoting 21 C.J.S. Courts § 214 (1959) (currently contained in 21

C.J.S. Courts § 167 (1990))). That principle of law has been previously

invoked by this court in our consideration of the Beeman line of cases. See

State v. Rhomberg, 516 N.W.2d 803, 805 (Iowa 1994) (“A proposed change in

the law, if desired, is in the province of the legislature.”).

      The majority attempts to justify its clear disregard of the legislature’s

approach to felony murder by suggesting that applying the interpretation

approved in Beeman tests the outer constitutional parameters of the felony-

murder doctrine. There is no basis for such a suggestion. The acceptance

of willful injury as a basis for felony murder was challenged on both due-
process and equal-protection grounds in State v. Ragland, 420 N.W.2d 791

(Iowa 1988). In rejecting the due-process challenge, we observed that our

felony-murder statute did not relieve the state of the burden to prove all of

the elements of the basic crime of murder. It only affected the degree of

guilt based on the culpability of those acts that constitute the crime of

willful injury. Ragland, 420 N.W.2d at 794. Those acts require, with regard

to the class “C” felony, that the defendant intends to cause serious injury to

the victim. Serious injury includes bodily injury that creates a substantial

risk of death. See Iowa Code § 702.18(1)(b)(1).
                                           30

       In rejecting the equal-protection challenge lodged in Ragland, we

found that there was a rational basis for concluding that the crime of willful

injury posed a greater risk to the victim than other crimes for which felony

murder may not be invoked. Ragland, 420 N.W.2d at 794.                         A similar

rejection of these constitutional arguments was made by the United States

Court of Appeals in a federal habeas corpus case in which that court

concluded

       “[defendant’s constitutional] argument that “second degree
       murder . . . cannot be enhanced by ‘participating’ in an act
       which is also an element of murder,” simply lacks a
       constitutional basis. [The] argument is, at base, an argument
       against the merger doctrine, which some states apply to
       prevent felonies that are an integral part of homicide, such as
       assault, from being used to support a felony murder charge.
       The Supreme Court of Iowa has specifically rejected the merger
       doctrine as it applies to forcible felonies . . . .

Heaton v. Nix, 924 F.2d 130, 134 (8th Cir. 1991) (citations omitted).

       The cases from other jurisdictions on which the majority relies are

inapposite because in none of those cases did the court reject as a basis for

felony murder a crime embedded by definition in the controlling statutory

law. The California and Oregon statutes involved in People v. Ireland, 450

P.2d 580 (Cal. 1969), People v. Washington, 402 P.2d 130 (Cal. 1965), and

State v. Branch, 415 P.2d 766 (Or. 1966), were not degree-of-guilt statutes,

but rather employed felony murder as an alternative to killing with malice

aforethought. 3 A separate-degree-of-guilt statute in those states contained


       3The  California statutory scheme for felony murder is described as follows by that
state’s highest court:

               The felony-murder rule operates (1) to posit the existence of malice
       aforethought in homicides which are the direct causal result of the
       perpetration or attempted perpetration of all felonies inherently dangerous
       to human life, and (2) to posit the existence of malice aforethought and to
       classify the offense as murder of the first degree in homicides which are the
       direct causal result of those six felonies specifically enumerated . . . .
                                            31

a felony-murder theory for establishing first-degree murder, but those

statutes did not include felonious assaults among the felonies from which

first-degree murder might be determined. 4
       In Massachusetts, where the Kilburn and Gunter cases discussed by

the majority were decided, felony murder is a common-law doctrine not

governed by statute. See Commw. v. Claudio, 634 N.E.2d 902, 906 (Mass.

1994) (“The felony-murder rule in Massachusetts ‘is defined by common

law.’ ” (Citations omitted.)). For this reason, the Massachusetts appellate

court was free to adopt a felony-murder rule of its own choosing. Because

the felony-murder doctrine in Iowa is statutory and the predicate offenses

are determined by statutory designation, this court does not enjoy that

freedom.

       II. Alleged Inadequacy of the Willful-Injury Instruction.

       Defendant contends and the majority suggests that the elements of

the willful-injury instruction are inadequate because they only refer to

intentionally pointing a firearm or displaying a dangerous weapon in a

threatening manner, actions that do not constitute the class “C” felony

version of willful injury. This is not a valid contention.

       The court’s instructions must be considered as a whole in
determining whether the correct rules of law were imparted to the jury.

People v. Ireland, 450 P.2d 580, 589 (Cal. 1969). The Oregon felony-murder scheme has
been described as follows by that state’s highest court:

               The purpose of the felony-murder rule is to relieve the state of the
       burden of proving premeditation or malice whenever the victim’s death is
       caused by the killer while the killer is committing another felony. Since a
       malignant purpose is established by proof of the defendant’s other felony,
       malice is redundant with reference to the killing. If the collateral felony is
       one of those named in [designated statute] the murder is first degree. If the
       collateral felony is any other felony, the murder is second degree.

State v. Branch, 415 P.2d 766, 767 (Or. 1966).
       4See   footnote 2.
                                      32

Gremmel v. Junnie’s Lounge, 397 N.W.2d 717, 722 (Iowa 1986). The court’s

instruction on willful injury not only required the jury to find the pointing of

a gun or the displaying of a dangerous weapon in a threatening manner but

also to find that in so doing defendant intended to cause a serious injury to

Lyon and did in fact cause a serious injury to him. This instruction alone

includes all of the basic elements of the class “C” felony version of willful

injury, but the instructions as a whole go further.         The willful-injury

instruction is employed as an expansion on the marshaling instruction for

first-degree murder. The matters required to be proved by that instruction

must be considered in connection with the willful-injury instruction in

determining what the jury was required to find. The first-degree murder

marshaling instruction required the jury to find that “the defendant shot

Tommy Ray Lyon,” “Tommy Ray Lyon died as a result of being shot,” and

“the defendant acted with malice aforethought.”          In combination, the

instructions state all of the necessary elements for a finding of first-degree

murder using willful injury as the predicate felony on a felony-murder

theory.

      III. The Medical Privilege Issue.

      In considering the court’s conclusion requiring in camera examination
of privileged medical records, I do not face the same issue as the majority.

The majority opinion has determined that the case should be reversed on

the felony-murder issues and thus does not need to find prejudice in order

to invoke its view on the availability of the privileged medical records for

purposes of a retrial. I, on the other hand, find no other basis for reversing

defendant’s conviction and will not vote to reverse on the medical-privilege

issue unless I am able to conclude that demonstrable prejudice to

defendant occurred from the trial court’s ruling upholding the privilege.

Approaching the issue in this manner, I am satisfied that sufficient
                                      33

prejudice has not been demonstrated to warrant a reversal of defendant’s

conviction. Defendant was able to present substantial evidence to the jury

concerning Lyon’s violent temper directed at both defendant and third

parties on prior occasions. The issue that the jury was required to decide

was Lyon’s conduct immediately prior to the time of his killing. Neither past

conduct nor medical history gives rise to more than an educated guess as to

that circumstance. Consequently, I do not find that the absence of the

medical evidence warrants a reversal. I would affirm defendant’s conviction

in all respects.

      Cady, J., joins this dissent.
                                     34

                                           #18/04-0058, State v. Heemstra

CADY, Justice (dissenting).

      I respectfully dissent for the same reasons articulated by Justice

Carter. I write to elaborate on those reasons.

      The majority first concludes that the act constituting willful injury

may not also serve as the predicate felony under the felony-murder rule.

This holding is not only contrary to established precedents of this court, but

it is contrary to the manner our legislature has chosen for the felony-

murder rule to operate in Iowa. Under fundamental principles of judicial

decision making we are obligated to follow our precedents absent compelling

reasons. See Channon v. United Parcel Serv., Inc., 629 N.W.2d 835, 857

(Iowa 2001) (“[U]nder the doctrine of stare decisis there is a preference for

upholding prior decisions of this court.”); Miller v. Westfield Ins. Co., 606

N.W.2d 301, 306 (Iowa 2000) (noting holdings should be overruled only

“when error is manifest”). There are no compelling reasons in this case to

overrule our prior holdings, especially since these holdings are based on the

judgment of our legislature as reflected in our statutes. Under our limited

role in government, it is not for us to chart a different course from the

legislature absent a conflict with our constitution. There is no such conflict

in this case.

      I also believe the opinion by the majority has inflicted harm to the

longstanding protections and sound policies of the physician-patient

privilege. Regrettably, the damage to this centuries-old doctrine comes from

a factual claim by Heemstra that could best be described as a red herring.

It is important to understand that Heemstra knew of Lyon's propensity

towards violence, or his quick temper, and has no compelling need to

examine medical records, which until today, were safely protected under the

physician-patient privilege.
                                     35

      Perhaps facts of a case could be envisioned that would support the

exception carved from this historic doctrine by the majority, but this case

does not come close to presenting those facts. Courts have an obligation to

carry forward our bedrock principles of law, such as the physician-patient

privilege, so as to provide the same protections for society as in the past.

The physician-patient privilege has now been seriously compromised based

upon a dubious justification that will mean victims of crimes in the future

will be required to open their private, confidential communications with

their doctors based upon the same assertions of self-defense. This is an

unnecessary invasion of privacy, and could ultimately have a chilling effect

on the willingness of patients to openly disclose critical personal

information to a physician.

      I acknowledge the rights of criminal defendants to a fair trial can, and

should, carry significant weight in the balancing process with the rights of

others. The rights of a criminal defendant, however, should not tip the

scale when prejudice to the defendant will not result. Heemstra did not

suffer any prejudice at the hands of the physician-patient privilege in this

case, and there is no reason to create an exception to a rule that has served

society so well for so long. No arm of government should be entitled to
invade private, sensitive communications between citizens made by them

under the belief that the communications would remain private, absent the

most compelling reasons. There are no compelling reasons in this case, and

courts should be quick to protect and preserve the legitimate privacy of

individuals from intrusion, not open the door.

      I would affirm the district court decision.
