Appeal from the Iowa District Court for Scott County, Marlita A. Greve, Judge.
The opinion of the court was delivered by: Miller, S.J.
Respondent appeals a district court's order committing him as a sexually violent predator under Iowa Code chapter 229A (2007). AFFIRMED.
Considered by Potterfield, P.J., Doyle, J., and Miller, S.J.* Tabor, J., takes no part. Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
I. Background Facts & Proceedings
Respondent Marvin Mead was previously convicted of deviant sexual assault in Illinois in 1973. He was also convicted in Iowa in 1986 of burglary in the first degree and two counts of sexual abuse in the third degree. Mead has been diagnosed with paraphilia with sadistic features and an antisocial personality disorder.
On September 24, 2008, the State filed a petition claiming Mead was a sexually violent predator (SVP) as defined in Iowa Code chapter 229A (2007), and that he should be committed to the care of the Iowa Department of Human Services. The State submitted a statement of probable cause, which reviewed Mead's past criminal offenses and the preliminary findings of Dr. Canton Roberts, a psychologist. Mead had been interviewed by Dr. Roberts on September 22, 2008.
A probable cause hearing, as required by section 229A.5(2), was held on September 29, 2008. The district court found probable cause existed to believe that Mead was a SVP.
On November 21, 2008, Mead filed a pro se motion to dismiss, claiming that Dr. Roberts should have informed him of his right to counsel prior to conducting an interview with him. Mead's counsel then filed a supplemental motion to dismiss, claiming Mead had the right to counsel under the Iowa constitution and chapter 229A. The district court determined the evidence obtained from the interview by Dr. Roberts should be stricken. The court concluded that without such evidence there was not probable cause to find Mead was a SVP, and vacated the previous order finding there was probable cause. The matter was set for a second probable cause hearing.
The State filed an amended petition. It also filed an amended statement of probable cause that cited an evaluation of Mead's records by Dr. Amy Phenix, a psychologist. Mead was evaluated by Dr. Phenix on March 2, 2009, and interviewed by her on March 26, 2009.
The second probable cause hearing was held on April 9, 2009. Dr. Phenix testified, but the district court noted, "in her hearing testimony she restricted her opinions to those developed from her review of the Respondent's criminal, correctional, treatment and associated records." Mead made an oral motion to dismiss, and this was denied by the district court. The court concluded there was probable cause to find Mead was a SVP.
Mead filed a request for interlocutory appeal, which was granted by the Iowa Supreme Court. The court determined Mead should have been informed of his right to counsel prior to his interview with Dr. Roberts. In re Detention of Mead, 790 N.W.2d 104, 109-10 (Iowa 2010). The court concluded Mead's statutory right to counsel under section 229A.5A had been violated, and the results of the interview by Dr. Roberts were inadmissible. Id. at 110. The court concluded, however, that there was sufficient other evidence in the record to support a reasonable belief at the time of the first probable cause hearing that Mead was a SVP. Id. at 113. The court held "the evidence provided at the first probable cause hearing was sufficient to find that probable cause existed and hold Mead pending trial." Id. The court did not address issues Mead raised concerning the second probable cause hearing, finding it was not necessary. Id. The case was remanded to the district court for further proceedings. Id.
Mead filed a motion for rehearing before the Iowa Supreme Court, and this was denied on December 10, 2010. The case again proceeded in the district court.
On January 3, 2011, Mead filed a motion to strike the evaluation by Dr. Phenix and her testimony, claiming he had been prematurely interviewed by her under the provisions of section 229A.5A. He also claimed he had been denied due process because his interview with Dr. Phenix was not recorded and he had not been advised of his right to an attorney or his right against self-incrimination. The district court denied the motion to strike, finding Mead's arguments went more to the weight of the evaluation, as opposed to its admissibility.
On April 21, 2011, Mead filed a motion to enforce, claiming that under the Iowa Supreme Court's ruling, the evaluation by Dr. Phenix should be dismissed as a violation of his due process rights. Mead filed another motion, on May 27, 2011, seeking to dismiss the finding of probable cause based on his claim that his participation in a sex offender treatment program violated his right against self-incrimination in the present proceedings. On the same date he filed a motion to dismiss his ...