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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 sonof-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, premeditation kills another person. and with

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). 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. The marshaling

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 firstdegree 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. 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 Heemstra's trial counsel

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 77677. 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

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