State Of Wash. v. Grenning

• Citation: 234 P.3d 169,169 Wash.2d 47
• Decision Date: 17 June 2010
• Docket Number: No. 81449-0.,81449-0.
• Court: United States State Supreme Court of Washington
• Parties: STATE of Washington, Respondent,v.Neil GRENNING, Petitioner.

169 Wash.2d 47

234 P.3d 169

STATE of Washington, Respondent,v.Neil GRENNING, Petitioner.

No. 81449-0.

Supreme Court of Washington En Banc.

Argued Sept. 15, 2009.

Decided June 17, 2010.

COPYRIGHT MATERIAL OMITTED

Rita Joan Griffith, Attorney at Law, Seattle, WA, for Petitioner.

Michelle Hyer, Pierce County Prosecutor's Office, Tacoma, WA, for Respondent.

CHAMBERS, J.

¶ 1 Neil Grenning was charged with 72 counts of child sex crimes, and his home computer was seized. Prior to trial, Grenning moved for mirror-image copies of the hard drives from that computer. The trial court granted only limited access. His defense team could access copies of the hard drives only in the County-City Building, only on government operating systems and software, and only during limited hours. Under these limitations, Grenning was unable to obtain an expert willing to examine the hard drives. A jury ultimately convicted him of 16 counts of first degree child rape, 26 counts of sexual exploitation of a minor, 6 counts of first degree child molestation, 20 counts of possession of depictions of minors engaged in sexually explicit conduct with sexual motivation, commonly referred to as possession of child pornography, among other crimes. He was sentenced to 117 years in prison.

¶ 2 The Court of Appeals largely affirmed, but it reversed Grenning's 20 counts of possession of child pornography, finding he was denied access to critical evidence to which he was entitled. We granted review and affirm.

FACTS

¶ 3 Police detectives found sexually explicit pictures, including pictures of Grenning's two victims, on his home computer. Long before trial, defense counsel retained experts and made a CrR 4.7 motion to compel discovery in the form of a mirror image of the hard drives that defense experts could analyze in their lab. The Pierce County Prosecuting Attorney's Office moved for a rigorous protective order, arguing the hard drives should only be viewed by the defense team at the police station and under limited conditions. Judge Worswick, concerned that the images of the victims could be released onto the Internet, largely granted the State's motion. Among other things, the protective order directed the investigating detective to copy the hard drives onto blank hard drives provided by the defense, to “provide a CPU [central process unit], monitor, keyboard, mouse and an operating system of [the expert's] choosing” to look at the material, and forbade any copying of the information. Clerk's Papers (CP) at 598. The order further limited the defense's access to the evidence both in time and location.¹

¶ 4 The original experts retained by defense counsel declined to work on the case under the conditions of the protective order and the defense had considerable difficulty finding experts who would. Seven months before trial, the defense found an attorney and computer expert, Robert Apgood, who was willing to review the computer files, but like the original experts, wanted a copy to take to his own lab. Apgood submitted a declaration explaining that he had the equipment to analyze the mirror image hard drives at his lab in Seattle and

forensic analysis of the copies of seized media is a detailed process entailing the use of specialized hardware and forensic software designed to allow bit-by-bit search and review of the media being studied. This analysis must be performed in a manner that ensures that the media is not changed in any way during that analysis.

CP at 602. He also declared that “[a] search conducted in a controlled environment, such as [the expert's] forensics lab, can be initiated and ‘left to process' unattended,” leaving the expert free to do other work and “not financially burden the public for his time.” Id. at 603. Among other things, Apgood informed the court that he was concerned about the sanctity of the attorney work-product doctrine if his work were “supervised” by the State, especially given that any work he did on government computers could be reviewed by the government by analyzing the computer after he was through. Id. at 603-04. Based on this declaration, the defense unsuccessfully moved to modify Judge Worswick's order before Judge Hogan. Judge Hogan noted that “I think that there is a balancing act ... in the very fundamental right for the defense to be prepared for trial” and the victims' interest in keeping the pictures off of the Internet. Verbatim Report of Proceedings (VRP) (Mar. 26, 2004) at 83-85. She was, however, somewhat willing to revisit the issue. “I want to know if [Judge Worswick's order] is unworkable. I don't think that it is.” Id. at 85. Apgood declined to examine the hard drives at the County-City Building and the defense, having lost two motions for access, did not make another.²

¶ 5 Three months later, Grenning went to trial without an expert witness who had examined the hard drives. Among other evidence, the jury was given 117 pictures from Grenning's computer. There was also considerable testimony and argument that the commercially produced images underlying the child pornography charges contained sexually explicit images of children, as opposed to images that had been manipulated into appearing as such or stills from a single movie. ³

¶ 6 Grenning was convicted on 71 counts and sentenced to 117 years in prison. He was sentenced to one year on each of the possession of child pornography charges, to be served concurrently. While his case was on direct appeal, this court announced State v. Boyd, 160 Wash.2d 424, 158 P.3d 54 (2007). Boyd held that the defense was entitled to a mirror image copy of the defendant's computer hard drives. Id. at 441, 158 P.3d 54. The Court of Appeals affirmed all conviction except the 20 counts of possession of sexually explicit pictures of children under former RCW 9.68A.070 (2006).⁴State v. Grenning, 142 Wash.App. 518, 536, 174 P.3d 706 (2008). Those charges were reversed and remanded. Id. Grenning petitioned for review and the State cross-petitioned on the reversed charges. We denied Grenning's petition and granted the State's cross-petition.⁵ State v. Grenning, 164 Wash.2d 1026, 196 P.3d 137 (2008).

ANALYSIS

Boyd

¶ 7 The State argues the Court of Appeals erred and our decision in Boyd does not apply because of the different procedural postures of the two cases. Whether Boyd applies is a question of law that we review de novo. Dreiling v. Jain, 151 Wash.2d 900, 908, 93 P.3d 861 (2004) (citing Rivett v. City of Tacoma, 123 Wash.2d 573, 578, 870 P.2d 299 (1994)). In both Boyd and its consolidated companion case Giles, the defendants were charged with child pornography offenses. Boyd, 160 Wash.2d at 429, 158 P.3d 54. Boyd's computer was seized; pictures and videotapes were seized from Giles. Both defendants, like Grenning, moved for copies of the evidence against them. Id. at 435-36, 158 P.3d 54. In Boyd, the motion was denied; in Giles, it was granted. Before trial was held in either case, this court granted interlocutory review of the discovery orders themselves. Therefore, in Boyd, this court was not reviewing a conviction, but rather the defendants' right to compel discovery.

¶ 8 First, we held that the mandatory disclosure provisions of CrR 4.7(a), rather than the discretionary provisions of CrR 4.7(e), applied. Id. at 432, 158 P.3d 54. CrR 4.7 states in relevant part:

(a) Prosecutor's Obligations.

(1) Except as otherwise provided by protective orders or as to matters not subject to disclosure the prosecuting attorney shall disclose to the defendant the following material and information within the prosecuting attorney's possession or control no later than the omnibus hearing:

(v) any books, papers, documents photographs, or tangible objects, which the prosecuting attorney intends to use in the hearing or trial or which were obtained from or belonged to the defendant.

CrR 4.7 (emphasis added). Since CrR 4.7(a)(1)(v) applied, the State had a duty to disclose the evidence. See

Boyd, 160 Wash.2d at 432, 158 P.3d 54. Next, the court rejected the State's argument that it need not provide the defense with actual copies of the material, as opposed to simply “acknowledging the existence of seized evidence.” Id. at 433, 158 P.3d 54. We explained:

The principles underlying CrR 4.7 require meaningful access to copies based on fairness and the right to adequate representation. The discovery rules “are designed to enhance the search for truth” and their application by the trial court should “insure a fair trial to all concerned, neither according to one part an unfair advantage not placing the other at a disadvantage.” Under CrR 4.7(a) the burden is on the State to establish, not merely claim or allege, the need for appropriate restrictions. The defendant does not have to establish that effective representation merits a copy of the very evidence supporting the crime charged. To adopt the State's position is to restrict the defendant's right to potentially exculpatory evidence on the State's mere allegation that the evidence involves contraband.

Id. at 433-34, 158 P.3d 54 (quoting State v. Boehme, 71 Wash.2d 621, 632-33, 430 P.2d 527 (1967)) (footnote omitted). Neither in Boyd nor in the case before us has the State offered any more than mere allegations that the evidence might be improperly disseminated by the defense team. Boyd, 160 Wash.2d at 434, 158 P.3d 54. In Boyd, we weighed the State's concern that the defense team might disseminate the images against the critical nature of such hard drives in child pornography cases and the potentially exculpatory nature of the evidence. Id. at 436-37, 158 P.3d 54. We concluded that there is minimal risk of improper dissemination of such images because of defense attorneys' professional responsibilities as officers of the court. Id. at 438, 158 P.3d 54.

¶ 9 We also concluded that denying defense counsel such potentially critical exculpatory evidence went beyond merely violating the court rule and had constitutional...