State v, Butler, No. E2004-00359-CCA-R9-CD (TN 3/30/2005)
| Decision Date | 30 March 2005 |
| Docket Number | No. E2004-00359-CCA-R9-CD.,E2004-00359-CCA-R9-CD. |
| Parties | STATE OF TENNESSEE v. RICHARD ALLEN BUTLER and STATE OF TENNESSEE v. RE'LICKA DAJUAN ALLEN. |
| Court | Supreme Court of Tennessee |
Gregory P. Isaacs, Knoxville, Tennessee, for the appellant, Richard Allen Butler.
James A.H. Bell, Joan M. Stallard, and Richard L. Gaines, Knoxville, Tennessee, for the appellee, Re'Licka Dajuan Allen.
Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Kevin Allen, Assistant District Attorney General, for the appellee/appellant, State of Tennessee.
Alan E. Glenn, J., delivered the opinion of the court, in which Jerry L. Smith and J. C. McLin, JJ., joined.
The issues presented by these consolidated Rule 9 interlocutory appeals are whether Tennessee's sexual exploitation of a minor statute is constitutional in light of Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S. Ct. 1389 (2002), and whether the trial court may require the State to provide the defense with a copy of the alleged child pornography that forms the basis for the prosecution's case. As to these questions, the trial courts ruled that the State had to provide the defense with copies of the alleged pornographic materials and that while a portion of the statute is unconstitutional, the remainder is not. Following our review, we affirm the rulings of the trial courts.
On April 8, 2003, Richard Allen Butler was charged by the Knox County Grand Jury with one count of sexual exploitation of a minor for possessing materials that included a minor engaged in sexual activity, in violation of Tennessee Code Annotated section 39-17-1003. In a separate case, Re'Licka Dajuan Allen was charged by the Knox County Grand Jury on June 17, 2003, with one count of sexual exploitation of a minor for possessing materials that included a minor engaged in sexual activity, and with two counts of aggravated sexual exploitation of a minor for possessing, with the intent to transport and with the intent to distribute, materials that included a minor engaged in sexual activity, in violation of Tennessee Code Annotated section 39-17-1004. Both cases involved material located on the defendants' computers. In Allen's case, the material was originally discovered by a computer repair technician at a store where Allen had taken his computer for repair. The technician informed his manager of his discovery, and the manager in turn contacted Knox County law enforcement.
Counsel for both defendants filed motions for discovery, including requests that the State provide them with copies of the computer hard drives and "other computer materials" for their independent examination and review. The State refused, offering to make the material available for examination by defense counsel and defense computer experts at the sheriff's department, but contending that it would constitute a violation of the sexual exploitation statute for the material to be removed from the custody and control of the sheriff's department. In response, counsel for both defendants filed motions to compel the production of the evidence. In addition, counsel for Butler filed a motion to dismiss, arguing that under a post-Free Speech Coalition analysis, the statute was "unconstitutionally overbroad and vague" and "chill[ed] a substantial amount of protected speech under the First Amendment." Counsel for Allen also filed a "Notice to Challenge of Constitutionality of Statute," indicating his intention of raising a challenge to the statute's constitutionality in future motions or pleadings.
On September 19, 2003, the Butler trial court entered an order granting Butler's Rule 16(a)(1)(C), Tennessee Rules of Criminal Procedure, motion to copy evidence. The court ordered the State to provide Butler with a copy of his computer hard drive, along with copies of any alleged pornographic images of minors which had been seized from him; that Butler's counsel keep the material in a secure location accessible only to counsel; that the material be viewed only by counsel, counsel's employees and agents; and that the material be returned upon the completion of the matter.
On December 9, 2003, the Butler trial court entered a "Memorandum Opinion and Order" in which it concluded that subsection (b) of the sexual exploitation of a minor statute was unconstitutional under Free Speech Coalition because it could apply to material in which an actual minor was not used. The court further concluded, however, that the remaining subsections of the statute were constitutional and could be severed from the unconstitutional subsection and enforced under the doctrine of elision. Accordingly, the trial court denied the defendant's motion to dismiss and ordered that the State be allowed to amend the indictment to eliminate any reference to the unconstitutional portion of the statute.
Butler subsequently sought permission to file an interlocutory appeal of the trial court's ruling on the constitutionality of the statute, and the State sought permission to appeal the rulings on both the constitutionality and discovery issues. On February 5, 2004, the trial court granted both parties' motions to file an interlocutory appeal, and on March 22, 2004, this court granted the parties' applications for interlocutory review pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure.
In Allen's case, a hearing on his motion to compel was held at which the State presented one witness, Carlton Bryant, an attorney employed at the Knox County Sheriff's Department. Bryant testified that his understanding of the law was that the sheriff's department could not allow counsel to take a copy of the computer hard drive from the department because the sexual exploitation statute did not contain any exemption for defense counsel to be given child pornography. He said they would, however, accommodate counsel and counsel's computer experts by mirror-imaging the hard drive and allowing them to examine the copy while it remained in the "custody and control" of the department. He testified that they contemplated setting aside a conference room for that purpose and would arrange a schedule that was convenient for counsel and his experts.
Herbert Mack, Allen's expert computer witness, described in detail the various programs and viruses by which material can be both deliberately and inadvertently downloaded into a computer and estimated that it would take him approximately one week of intensive twelve- to fourteen-hour days to complete an examination of Allen's computer hard drive. He testified he would probably require the assistance of support personnel from his office and, in addition, would need to consult regularly with counsel with respect to whether any sexually explicit files he found on the computer qualified as child pornography. He said that, given the large number of images allegedly contained on the computer, he would not be able to remember the specifics of the information without taking the computer hard drive from the sheriff's department.
Mack expressed concern about working from a "mirror image" rather than the hard drive itself, testifying that the computer programs in existence did not create true mirror images:
A Well, the question — what I heard before was providing me with a mirror image. Okay. If we're talking about me working on the original computer, no, I don't need another computer as long as I can, you know, load my tools and take my tools off. If what you're going to give me is a mirror image, my concern there is that I'm not getting all of the data that's there.
Q And why is that? If it's a mirror image wouldn't you just get everything that's in the mirror?
A No, sir.
Q Why not?
A A mirror image is a misnomer, okay. The computer programs that you have right now, okay, are for the purpose of recovering good data. Okay. So if a file has been ordered damaged or erased it's not going to be on the image.
Mack conceded that his examination of the actual hard drive would entail reconnecting the original personal computer equipment, turning the computer on, and loading his software file-searching tools, and he agreed that in the process of booting up the Windows operating system the contents of the hard drive would be changed. However, according to his testimony, booting the computer would not alter either the file creation date or last accessed date of the images in question. Mack testified he was familiar with "EnCase," a forensic examination software utility available exclusively to law enforcement, but he was not aware that it had been approved by several federal district and appellate courts as a "non-invasive forensic examination tool."
The Allen trial court granted Allen's Rule 16(a)(1)(C), Tennessee Rules of Criminal Procedure, motion to compel and copy evidence, entering protective orders on December 9, 2003, and on January 5, 2004, which required the State to provide Allen's counsel with a mirror image copy of the computer hard drive rather than the actual hard drive itself. On February 23, 2004, the trial court granted the State's motion for an interlocutory appeal of the discovery ruling, and on March 30, 2004, this court granted the State's application for interlocutory review and consolidated the two cases for appeal. We will review these rulings.
Tennessee Code Annotated section 39-17-1003 provides as follows:
(a) It is unlawful for any person to knowingly possess material that includes a minor engaged in:
(1) Sexual activity; or
(2) Simulated sexual activity that is...
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