IN RE THE DETENTION OF JAMES BABCOCK, JAMES BABCOCK, Respondent-Appellant.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 9-488 / 08-1644
Filed August 6, 2009
IN RE THE DETENTION OF
JAMES BABCOCK,
JAMES BABCOCK,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Kellyann M.
Lekar, Judge (motion for order prohibiting counsel from attending psychiatric
evaluation); George L. Stigler, Judge (trial).
James Babcock appeals from an order prohibiting counsel from attending
his compelled psychiatric evaluation in this sexually violent predator proceeding.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and Michael H. Adams,
Assistant Public Defender, for appellant.
Thomas J. Miller, Attorney General, and Cristen Douglass and Virginia
Barchman, Assistant Attorneys General, and Thomas J. Ferguson, County
Attorney, for appellee.
Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.
2
POTTERFIELD, J.
James Babcock appeals from an order prohibiting counsel from attending
his compelled psychiatric evaluation in this sexually violent predator proceeding.
We affirm.
I. Background Facts and Proceedings.
On August 8, 2007, the State filed a petition under Iowa Code chapter
229A (2007) seeking to have Babcock committed as a sexually violent predator
(SVP). Following a probable cause hearing held on August 21, the court found
probable cause existed to believe that Babcock was an SVP and ordered him
evaluated by the State pursuant to section 229A.5(5).
On October 11 Babcock’s counsel filed a notice of intent to be present
during the State’s psychological evaluation. The State filed a motion for an order
prohibiting counsel from attending the evaluation. Babcock resisted, asserting
the examination was a critical state of proceedings under chapter 229A for which
he had a right to counsel and his right against self-incrimination. An unreported
telephone hearing was held. On November 7 the district court entered a ruling
granting the State’s motion. The court concluded:
[A]ny potentially incriminating statements will be used in a
proceeding already determined by our Supreme court to be civil.
In considering a Kansas statute that has been determined to be
similar to the Iowa statute, the Supreme Court of Kansas
determined that submission to a psychological evaluation did not
violate the right against self incrimination due to the fact the statute
was civil in nature. In re Hay, 953 P.2d 666 (Kan. 1998). The
same argument applies here in the context of the right to presence
of counsel to guard against self incrimination.
Babcock’s request for interlocutory appeal was denied.
3
Babcock was evaluated by State psychologist Anna Salter, who
apparently testified at the SVP bench trial held on April 29, 2008. Babcock has
not provided us a transcript of the hearing. On September 16, 2008, the district
court entered a ruling finding Babcock was an SVP and ordering him committed
to the custody of the director of the department of human services for control,
care, and treatment until such time as it is safe to place him in a transitional
release program.
Babcock appeals.
He contends the district court’s ruling denying his
counsel’s presence at the evaluation denied Babcock of his right to be free from
self-incrimination and his right to counsel.
II. Scope and Standard of Review.
Our review of SVP proceedings is for correction of errors at law. Iowa
Code § 229A.7(4) (noting Iowa rules of evidence and civil procedure apply to
these civil commitment proceedings); Iowa R. App. P. 6.4. Constitutional issues
are reviewed de novo. In re Detention of Garren, 620 N.W.2d 275, 278 (Iowa
2000).
III. Analysis.
Babcock asks this court to reverse the order of the district court denying
counsel’s presence at the psychological evaluation to protect his Fifth
Amendment privilege. However, Babcock has provided no record of the hearing
or even any suggestion what incriminating information was “gathered through the
uncounseled interview.” The district court ruling contains only one reference to
Babcock’s interview with the State’s evaluator, clinical psychologist Dr. Anna
Salter: “[Babcock] has shown an aptitude for deceitfulness, i.e. involvement in
4
forgery, attempted enticement and an attempt to mislead Dr. Salter when she
interviewed him, i.e. his denial of a juvenile history when he has an extensive
juvenile history.”
Pursuant to the Fifth Amendment, no person “shall be
compelled in any criminal case to be a witness against himself.”
This privilege against self-incrimination applies equally to allow a
person not to answer official questions put to him in any other
proceeding, civil or criminal, formal or informal, where the answers
might incriminate him in future criminal proceedings. The State
cannot compel testimony by threatening to inflict potent sanctions
unless the constitutional privilege is surrendered without violating
the Fifth Amendment.
State v. Seering, 701 N.W.2d 655, 669 (Iowa 2005) (internal quotations and
citations omitted).
Babcock recognizes the SVP proceeding at which his statements to Salter
were used against him is a civil proceeding.
His claim is he had a right to
counsel’s help during the evaluation to allow him to claim his Fifth Amendment
privilege not to answer questions that might incriminate him in future criminal
proceedings—that is to say, new prosecutions for alleged crimes about which he
may have made admissions to Salter. See Allen v. Illinois, 478 U.S. 364, 368,
106 S. Ct. 2988, 2991, 92 L. Ed. 2d 296, 304 (1986) (noting the Illinois Supreme
Court had ruled that a person compelled to submit to a psychological evaluation
under the sexually dangerous persons act is protected under the Fifth
Amendment from use of his compelled answers in a subsequent criminal case).
We agree with the State that the record is inadequate and the issue is not
ripe for determination of Babcock’s claim. It is Babcock’s duty to provide this
court with a sufficient record to address and resolve the issue presented on
appeal.
5
Without the benefit of a full record of the lower court’s proceedings,
it is improvident for us to exercise appellate review. Meier v.
Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). [Iowa Rule of
Appellate Procedure] 6.10(3) allows an appellant the chance to
have a record on appeal when the lower court does not report or
record the proceedings. [Appellant’s] failure to comply with rule
6.10(3) precludes him from seeking relief on appeal. Therefore, we
must affirm the decision of the district court because [appellant] has
failed to present a proper record on appeal.
In re F.W.S., 698 N.W.2d 134, 135-36 (Iowa 2005). We are not given a record of
Babcock’s statements to Salter.
Nor are we informed that the State expects to use any of those statements
in a subsequent criminal prosecution. It has repeatedly been held that we neither
have a duty nor the authority to render advisory opinions. Hartford-Carlisle Sav.
Bank v. Shivers, 566 N.W.2d 877, 884 (Iowa 1997).
An issue is ripe for
adjudication “when it presents an actual, present controversy, as opposed to one
that is merely hypothetical or speculative.” State v. Iowa Dist. Ct., 616 N.W.2d
575, 578 (Iowa 2000).
Lacking both an adequate record and a justiciable issue, we affirm.
AFFIRMED.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.