                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-1235
                             Filed August 17, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JONAS DORIAN NEIDERBACH,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Douglas F. Staskal,

Judge.



      Jonas Neiderbach appeals the district court’s order on remand denying

him inspection of his co-defendant’s medical and mental health records.

AFFIRMED.




      Gary Dickey of Dickey & Campbell Law Firm, P.L.C., Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.



      Considered by Vogel, P.J., and Doyle and Bower, JJ.
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BOWER, Judge.

       Jonas Neiderbach appeals the district court’s order on remand denying

him inspection of his co-defendant’s medical and mental health records.        He

claims he is entitled to a new trial because the records showed his co-defendant

suffered depression and anxiety while she was in jail and the records were

exculpatory and material to his defense. He also claims the in camera process

used by the district court violated his due process and confrontation clause

rights. We affirm the district court.

       This is the second appeal arising from the proceedings initiated after

Neiderbach and his co-defendant, Jherica Richardson, were arrested in 2009 for

eight counts of child endangerment. The facts surrounding Neiderbach’s arrest

and conviction are set forth in the Iowa Supreme Court’s opinion, State v.

Neiderbach, 837 N.W.2d 180, 187–88 (Iowa 2013) (Neiderbach I). We find it

unnecessary to repeat the background facts herein.

       In Neiderbach I, and relevant to this appeal, Neiderbach claimed the

district court erred in failing to conduct an in camera inspection of Richardson’s

medical records. Our supreme court agreed and found the district court should

have conducted an in camera inspection of Richardson’s mental health records,

reasoning:

              The district court denied his motion in part because it found
       Jonas failed to show that “the information is not available from any
       other source,” as required under the statute.             Iowa Code
       § 622.10(4)(a)(2)(a) [(2009)]. Specifically, the district court found
       Jonas failed to meet this requirement because he failed to depose
       Jherica. Under the circumstances of this case, we disagree that his
       failure to depose Jherica was fatal to his motion to obtain her
       mental health records. Jherica may have made admissions to a
       mental health counselor that she would forget or deny in an
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      adversarial interrogation. Statements memorialized by a neutral
      therapist would likely be more credible than Jherica’s self-serving
      assertions as a hostile witness. Indeed, noted commentators have
      recognized that “[e]ven the taking of a deposition from a hostile
      witness may not provide the substantial equivalent of the
      information the witness has given to a party to whom he or she is
      not hostile.” Charles Alan Wright, Arthur R. Miller & Richard L.
      Marcus, 8 Federal Practice and Procedure § 2025, at 544 & n.23
      (3d ed. 2010) (citing Fed. R. Civ. P. 26(b)(3) advisory committee’s
      note). Her records may very well have enabled defense counsel to
      more effectively cross-examine her at trial or assisted counsel’s
      preparation for her deposition.
             Accordingly, we reverse the district court’s ruling denying
      Jonas’s motion for an in camera review of Jherica’s mental health
      records and remand the case for the district court to conduct that
      review pursuant to section 622.10(4)(a)(2). If the district court finds
      no exculpatory evidence on that review, Jonas’s remaining
      convictions shall remain affirmed. If exculpatory evidence is found,
      the district court shall proceed as directed in section
      622.10(4)(a)(2)(c) and (d) and determine whether Jonas is entitled
      to a new trial.

Neiderbach I, 837 N.W.2d at 197–98.

      On remand, the district court followed the Iowa Supreme Court’s

instruction and conducted an in camera inspection of Jherica’s mental health

records. The court made the following conclusions:

             1. There is no evidence in the records that Richardson
      suffered at the time of the crimes from any mental illness.
             2. There is no evidence in the records that Richardson
      suffered at any time from a mental illness that affected her ability to
      perceive, her ability to remember, her ability to narrate, or her
      credibility in general. This is true unless having a mental health
      diagnosis is, in and of itself with nothing more, to be regarded as
      probative of a person’s ability to perceive, remember, narrate or of
      her credibility in general. The records establish exactly what the
      defendant’s offer of proof during cross-examination of Richardson
      established—that she suffered depression and anxiety while jailed
      and took medication for those conditions. Thus, if the evidence
      revealed in the offer of proof was exculpatory, then there is
      exculpatory evidence in the records. However, even if regarded as
      exculpatory, the presentation of that evidence would not “probably
      have changed the outcome of the trial.”
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              3. There is no evidence in the records of statements made
       by Richardson that inculpate her or which exculpate the defendant
       or that are inconsistent with testimony or statements she gave or
       made.

The district court affirmed Neiderbach’s convictions. Neiderbach now appeals.

       “Discovery rulings challenged on constitutional grounds are reviewed de

novo. Nonconstitutional challenges to discovery rulings are reviewed for abuse

of discretion.” State v. Thompson, 836 N.W.2d 470, 476 (Iowa 2013).

       Upon our de novo review, we find the district court properly implemented

the Iowa Supreme Court’s mandate in Neiderbach I by applying Iowa Code

section 622.10 on remand. We affirm the district court’s ruling following its in

camera review of the mental health records.

       Concerning Neiderbach’s claim on the constitutionality of the district

court’s in camera review, we find the ruling in Thompson, 836 N.W.2d at 486–90,

is clearly dispositive of this claim.1

       We affirm the district court’s ruling without further opinion pursuant to Iowa

Court Rule 21.26(1)(c) and (e).

       AFFIRMED.




1
  In Thompson the Iowa Supreme Court found the in camera review process described
in section 622.10(4)(a)(2)(b) was constitutional. 836 N.W.2d at 486.
