State v. Johnson, E2015–02486–CCA–R9–CD
| Citation | 538 S.W.3d 32 |
| Decision Date | 12 April 2017 |
| Docket Number | No. E2015–02486–CCA–R9–CD,E2015–02486–CCA–R9–CD |
| Parties | STATE of Tennessee v. Alexander JOHNSON and Michael F. Williams |
| Court | Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee |
Stephen Ross Johnson and W. Thomas Dillard, Knoxville, Tennessee, for the appellant, Alexander Johnson.
David Eldridge and Loretta G. Cravens, Knoxville, Tennessee, for the appellant, Michael F. Williams.
Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Assistant Attorney General; Charme P. Allen, District Attorney General; and Leslie Nassios and Kyle Hixson, Assistant District Attorneys General, for the appellee, State of Tennessee.
In this interlocutory appeal, the defendants, Alexander Johnson and Michael F. Williams, challenge the ruling of the Knox County Criminal Court granting the State's motion to quash subpoenas duces tecum issued to four State's witnesses. The State challenges that portion of the court's ruling denying its motion to quash subpoenas duces tecum issued to various electronic communications service providers. Because the State lacks standing to challenge any of the subpoenas issued in this case, we reverse that portion of the court's ruling granting the State's motion to quash the subpoenas issued to the witnesses. We affirm that portion of the trial court's ruling that the State lacks standing to challenge the subpoenas issued to the service providers. In the interest of judicial economy and to facilitate further appellate review, we have examined the preempted issues related to the subpoenas duces tecum issued in this case and have concluded that: (1) although nothing prevents the defendants in this case, generally, from obtaining the type of electronic communications at issue via a subpoena issued under the terms of Tennessee Rule of Criminal Procedure 17 to the witnesses themselves, the defendants have failed to establish entitlement to all of the requested communications as discussed more fully below; and (2) under the terms of the Stored Communications Act, see 18 U.S.C. §§ 2701 – 2703, the defendants cannot obtain the contents of the electronic communications from any of the service providers via a Rule 17 subpoena duces tecum. Accordingly, the trial court's November 3, 2015 order relative to the subpoenas duces tecum issued in this case is affirmed in part and reversed in part. The case is remanded to the trial court for proceedings consistent with this opinion.
On February 12, 2015, the Knox County Grand Jury charged both of the defendants with two counts each of the November 2014 aggravated rape of C.C.1 As is relevant to this appeal, the presentment lists as witnesses C.C., Bridget Boland, and cellular telephone service providers New Cingular Wireless/AT & T Wireless and Sprint/Nextel Communications. Witnesses Anna Lawn and Natalie Tavares were later added to the presentment by order. The case proceeded, and discovery materials were exchanged by the parties.
On August 21, 2015, Mr. Johnson moved the trial court for an order to accompany subpoenas duces tecum for the production and pretrial inspection of "specified cellular telephone and social media communications and information."2 He argued that the "requested communications are evidentiary and relevant," that the communications were "not otherwise reasonably procurable in advance of trial by due diligence," that he could not prepare for trial in the absence of this information, and that the motion was "made in good faith" and was "not intended as any general 'fishing expedition.' " In support of his motion, Mr. Johnson alleged that discovery materials already provided by the State "confirm[ed] the existence of social media information and communications material and relevant to the events at issue." He stated that interviews with several of the State's witnesses indicated that many of those witnesses, including C.C., had communicated with both of the defendants and with each other via text message, iMessage,3 and social media before and after the alleged offenses occurred. According to Mr. Johnson, Ms. Lawn indicated to the police that she " 'immediately' " began texting C.C.'s roommates after Ms. Lawn left Mr. Johnson's bedroom, leaving C.C. in the company of both defendants. Mr. Johnson also alleged that interviews with the police indicated that the police "may have even instructed, advised, or at the very least insinuated to" C.C. and other State's witnesses that they should remove social media information "from public view" and should refrain from communicating about the offenses via social media. Mr. Johnson indicated that he had learned from the State that the police had searched, but had not preserved, any social media communications. He also noted that the police had preserved all the data from Mr. Johnson's cellular telephone but had preserved none from cellular telephones belonging to C.C. or any other State witness.
At the August 24, 2015 hearing on the defendants' motion, counsel for Mr. Johnson indicated that after learning that the Knoxville Police Department ("KPD") had "sent preservation letters under the Electronic Stored Communications Act to communication providers to preserve information from certain witnesses, namely, [C.C.] and Ms. Lawn," the defendants sent a specific discovery request for that information. In its response to the specific discovery motion, the State related that the KPD "did not, in fact, obtain the messaging information of its witnesses." Counsel insisted that the information was necessary to ensure that Mr. Johnson received a fair trial and moved the court to provide an order "that compels, along with the subpoenas that will be issued, the various service providers to provide the ... data communications" to the trial court under seal.
The State opposed the motion on grounds that the motion, which was filed on the Friday before the first trial was set to begin,4 was untimely, noting that the State had "incurred a large expense ... in preparing for this trial" and that several of the State's witnesses had obligations related to their status as student athletes that presented scheduling difficulties. The State also argued that the defendants had failed to allege specific facts to support the issuance of the subpoenas, describing the subpoena request as "nothing more than an 11th–hour fishing expedition." The State observed that the defendants had also failed to identify any particular piece of admissible evidence that would be uncovered.
With regard to timing, counsel for Mr. Johnson stated that the State had provided them with Mr. Johnson's cellular telephone data in the week before trial and that he had only learned two days before filing the motion that the State had not obtained any electronic communications from anyone other than Mr. Johnson. Citing United States v. Nixon , 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), counsel argued that Mr. Johnson need only "establish that there could be information that's material and relevant on there." He observed that the discovery materials were replete with information that "there was a lot of text messaging and social media communications that were going on about this party that night" and that, Ms. Lawn in particular, participated in social media and text messaging communications immediately after leaving C.C. in Mr. Johnson's bedroom in the company of the defendants. Counsel also pointed to KPD interviews where C.C. and other witnesses discussed with KPD detectives "about whether or not they should have their social media taken down."
The State argued that the defendants had failed to satisfy the Nixon standard and argued that the information sought by the defendants qualified as witness statements, which would not be discoverable prior to trial under the terms of Tennessee Rule of Criminal Procedure 26.2. The defendants countered that the information could not be covered by Rule 26.2 because that rule, by its terms, is restricted to information in possession of the parties.
At the conclusion of the hearing, the court granted the motion, stating that it felt "compelled to give the defendant[s] a full opportunity to gain any information that may be helpful to their case." The court ordered that the materials be returned to chambers by September 8, 2015. In the written order, the court found "that specific and articulable facts establish[ed] reasonable grounds to believe that records and information pertaining to designated cellular telephone and social media communications are relevant and material to a pending criminal matter." On that same day, the court entered a protective order that provided that "all materials produced to the court subject to the said Order and subpoenas duces tecum are to be filed under seal and made a part of the technical record in this matter." The protective order also provided for "[e]xact duplicates of all materials ... to be provided in their entirety to counsel for the parties."
Immediately following the hearing, the defendant issued and served 21 subpoenas duces tecum:
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