State v. Boyd

• Decision Date: 17 May 2007
• Docket Number: No. 79339-5.,No. 79371-9.,79371-9.,79339-5.
• Citation: 158 P.3d 54,160 Wn.2d 424
• Parties: STATE of Washington, Respondent, v. Michael Allen BOYD, Petitioner. State of Washington, Petitioner, v. Lee William Giles and Maureen Elizabeth Wear, Respondents.
• Court: Washington Supreme Court

158 P.3d 54

160 Wn.2d 424

STATE of Washington, Respondent, v. Michael Allen BOYD, Petitioner.

State of Washington, Petitioner, v. Lee William Giles and Maureen Elizabeth Wear, Respondents.

No. 79371-9.

No. 79339-5.

Supreme Court of Washington, En Banc.

Argued March 13, 2007.

Decided May 17, 2007.

Barbara L. Corey, Kathleen Proctor, Pierce County Prosecuting Atty. Office, Tacoma, WA, for Petitioner.

Hugh Kirk Birgenheier, Kathleen Proctor, Pierce County Prosecuting Attorneys Office, Michael Edward Schwartz, Law Offices of Michael Schwartz, Mary Katherine Young High, Tacoma, WA, for Respondents.

Sheryl Gordon McCloud, Law Offices of Sheryl Gordon McCloud, Laura E. Mate, Federal Public Defender's Office, Seattle, Colin Fieman, Tacoma, for Amicus Curiae-National Association of Criminal Defense Lawyers and Washington Association of Criminal Defense Lawyers.

Seth Aaron Fine, Snohomish County Prosecutor's Office, Everett, Margaret M. Zimmer, The National Center for Missing & Exploited Children, Alexandria, Amicus Curiae-National Center for Missing & Exploited Children.

Pamela Beth Loginsky, Washington Association of Prosecuting Attorneys, Olympia, Amicus Curiae-Washington Association of Prosecuting Attorneys.

C. JOHNSON, J.

¶ 1 This case involves the extent to which defense discovery of child pornography evidence may be restricted under Criminal Rule (CrR) 4.7 in child sex offense prosecutions. These consolidated cases involve direct review of discovery orders by two Pierce County Superior Court judges. In neither case does the State argue that access to the images should be denied; its claim is that the defendants' attorneys are not entitled to copies of the evidence. In State v. Boyd, the trial court denied the request for copies, with the State retaining sole possession of a computer hard drive and other photos and evidence and permitting access only at a state facility at times convenient to the State. In State v. Giles and State v. Wear, the trial court granted the defendants' request for copies, subject to protective orders. We reverse the order in Boyd, and affirm the orders in Giles and Wear.¹

FACTS

State v. Boyd

¶ 2 The Pierce County prosecutor charged Michael Boyd with 28 crimes involving five victims. Some of these victims are allegedly depicted in hundreds of images seized by the State. In addition, the State claims to possess, on a computer hard drive, tens of thousands of "commercial" images of unidentified minors engaged in sexually explicit conduct; images that were recovered from a computer or storage devices allegedly owned by Boyd. 10/10/06 Report of Proceedings (RP) at 40. At least 11 of the counts are supported by this evidence, stored on the computer hard drive. Supp. Br. of Pet'r, App.; Supp. Decl. for Determination of Probable Cause. Boyd's defense counsel moved to compel the State to provide a "mirror image" of the hard drive to enable independent testing by a defense expert.

¶ 3 Judge Larkin denied the motion, reasoning that Boyd had "no right to unlimited access to evidence," as would presumably result from a copy, only "reasonable access." The trial judge suggested the request was not material, stating that the defense was "asking for everything ... because we don't know what the evidence is going to show." 10/10/06 RP at 36-37. Judge Larkin entered an order allowing defense counsel to access a mirror image of Boyd's hard drive, but only in a State facility, during two sessions, and only through the State's operating system and software. State's Consolidated Supp. Br., App. B-C. Under the terms of the order, defense counsel, the defense investigator, a defense expert, and Boyd would be permitted "a substantial amount of time" to view the images, after which the drive would be returned to the State. State's Consolidated Supp. Br., App. C.

State v. Giles and State v. Wear

¶ 4 Lee Giles and Maureen Wear are charged as codefendants. Each is charged with many crimes including possession of child pornography. The State alleges that 21 videotapes belonging to Giles and Wear depict them engaged in criminal acts against children. At least 12 of the counts charged against Wear are allegedly supported by evidence in seven videos. Clerk's Papers (CP) at 105-06. At least 16 of the counts against Giles are allegedly supported by video evidence. CP at 60-61. The tapes are not in digital format and some were allegedly created by Giles and Wear. There is no suggestion that the videos ever existed in digital form on a computer. Police also recovered photographs and magazines that support charges of possession of child pornography. Among the evidence was child pornography that Giles, a former Pierce County police officer, apparently obtained from the sheriff department's evidence locker.

¶ 5 Giles moved under CrR 4.7(a)(1)(v) to compel the prosecutor to provide copies of photographs and videos the State intended to use at trial. Wear joined in this motion. The State offered to provide defense counsel with an opportunity to view the tapes, to allow the defendant to be present, and to enable counsel to speak privately with the defendant during viewings. The State provided a detailed narrative of the videotapes' contents in discovery. The court granted the motion, subject to a protective order, which the State appealed.

ANALYSIS

¶ 6 The first issue in dispute is which section of CrR 4.7 applies under these circumstances. The defense argues that CrR 4.7(a) controls, and under that section, they are entitled to copies of the evidence that supports the criminal charges. The argument is based on the claim that the evidence is necessary to effectively represent the clients and prepare a defense.

¶ 7 CrR 4.7(a), in relevant part, provides as follows:

(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;

¶ 8 The State argues that CrR 4.7(e) should guide our analysis here. It reasons that any obligation to provide copies is a product of judicial discretion under CrR 4.7(e). CrR 4.7(e) provides:

(e) Discretionary Disclosures.

(1) Upon a showing of materiality to the preparation of the defense, and if the request is reasonable, the court in its discretion may require disclosure to the defendant of the relevant material and information not covered by sections (a) [Prosecutor's Obligations], (c) [Additional Disclosures Upon Request and Specification] and (d) [Material Held by Others].²

CrR 4.7(e) deals with disclosure of material and information under circumstances other than those described in CrR 4.7(a)(1), namely, where the prosecutor does not intend to use the material or information in the hearing or trial and where the evidence was not obtained from or does not belong to the defendant. Significantly, it places the burden of showing reasonableness and materiality on the defendant.

¶ 9 CrR 4.7(a)(1)(v) identifies what material and information must be disclosed. The rule, at the very least, requires disclosure of "any books, papers, documents, photographs, or tangible objects" which the prosecutor intends to use at trial. CrR 4.7(a)(1)(v). This rule could not be any clearer in establishing what the State must disclose, and this is precisely the type of evidence involved in these cases. The evident purpose of the disclosure requirement is to protect the defendant's interests in getting meaningful access to evidence supporting the criminal charges in order to effectively prepare for trial and provide adequate representation. The evidence is offered to substantiate the criminal charges. We hold that CrR 4.7(a) controls the issue raised in these cases.

¶ 10 Having addressed CrR 4.7(a)'s applicability, we come to the State's argument that it need not make copies. The State argues that even if CrR 4.7(a) controls, that rule does not require prosecutors to duplicate every single item they intend to use at trial and provide a copy to the defense. State's Consolidated Supp. Br. at 9-10. It argues that disclosure means only acknowledging the existence of seized evidence. State's Consolidated Supp. Br. at 10 (citing State v. Penn, 23 Wash.App. 202, 596 P.2d 1341 (1979)).³ The State supports its argument by asserting that withholding copies advances the child's interests by limiting the risk of victimization through further dissemination of the sexual crimes depicted in the evidence.

¶ 11 CrR 4.7 does not define "disclose." But the general usage of "disclose," the policies underlying the rules, and the provisions of CrR 4.7 indicate that "disclose" includes making copies of certain kinds of evidence.

¶ 12 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 party an unfair advantage nor placing the other at a disadvantage." State v. Boehme, 71 Wash.2d 621, 632-33, 430 P.2d 527 (1967). Under CrR 4.7(a) the burden is on the State to establish, not merely claim or allege, the need for appropriate restrictions.⁴ 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.

¶ 13 We have recognized the policies underlying CrR 4.7 and indicated what...