State v. Rolfe

• Decision Date: 09 January 2013
• Docket Number: No. 26096.,26096.
• Citation: 2013 S.D. 2,825 N.W.2d 901
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. John A. ROLFE, Defendant and Appellant.
• Court: South Dakota Supreme Court

825 N.W.2d 901

2013 S.D. 2

STATE of South Dakota, Plaintiff and Appellee,

v.John A. ROLFE, Defendant and Appellant.

No. 26096.

Supreme Court of South Dakota.

Argued Oct. 1, 2012.

Decided Jan. 9, 2013.

Marty J. Jackley, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Ellery Grey, Rapid City, South Dakota, Attorney for defendant and appellant.

SEVERSON, Justice.

[¶ 1.] John A. Rolfe was convicted of three counts of first-degree rape of a minor and 12 counts of possessing, manufacturing, or distributing child pornography. The trial court sentenced Rolfe to three concurrent life sentences without parole and 12 consecutive 10–year sentences in the South Dakota State Penitentiary. Rolfe appeals, raising two issues. First, Rolfe argues that the trial court violated his right to a public trial because it excluded the general public from the courtroom when the child victim testified about sexual abuse. Second, Rolfe argues that the State lacked legal authority to issue subpoenas to Midcontinent Communications prior to his indictment. Regarding the right to a public trial, we remand the case to the trial court to supplement the record with the facts and reasons for the closure of the courtroom during the victim's testimony. Further, we hold that Rolfe has no privacy interest in the information obtained by subpoenas issued to Midcontinent Communications.

BACKGROUND

[¶ 2.] In May 2009, the Pennington County Internet Crimes Division conducted an undercover investigation, looking for persons distributing or possessing child pornography. By using special software to conduct the investigation, law enforcement officers found a person who appeared to possess child pornography at a specific IP address. The person that officers suspected of possessing child pornography used LimeWire, a person-to-person file sharing program, to share files. Investigators used the software program to locate and download three shared files containing child pornography.

[¶ 3.] In June 2010, using the same software, Pennington County investigators again made contact with a person using the same IP address. Investigators located and downloaded additional shared files containing child pornography. They also determined that the IP address was assigned to a Midcontinent subscriber.

[¶ 4.] Also in June 2010, Pennington County investigators briefed a deputy state's attorney on their investigation. The deputy state's attorney issued subpoenas to Midcontinent, requesting the email address and personal information of the subscriber associated with the IP address where officers found child pornography.

[¶ 5.] Shortly after receiving the subpoenas, Midcontinent contacted investigators and provided them with a phone number and email address for an account in Rapid City. Using the phone number provided, investigators found that the number was registered to John A. Rolfe, who resided at the address provided by Midcontinent that was associated with the specific IP address. The deputy state's attorney issued another subpoena, directing Midcontinent to provide information on any other owners of accounts associated with the original account.

[¶ 6.] On July 19, 2010, the trial court granted a search warrant for Rolfe's residence in Rapid City. Investigators conducted the search on July 20 and seized cell phones, letters, cameras, memory flashcards, and two laptop computers. Investigators conducted a forensic analysis of these items. On the laptop found in Rolfe's bedroom, investigators discovered child pornography involving A.F., the 12–year–old daughter of Rolfe's son's live-in girlfriend. A.F. later told investigators that Rolfe had drugged, sexually assaulted, and photographed her over several years at his home and on trips around the state. In addition, A.F. told investigators that Rolfe filmed her changing out of her clothing on one trip outside of the state.

[¶ 7.] On August 19, 2010, a Pennington County grand jury indicted Rolfe on three counts of first-degree rape and 12 counts of possessing, manufacturing, or distributing child pornography.

[¶ 8.] Prior to trial, Rolfe filed a motion to suppress the evidence found in this case through the search of Rolfe's home and computer. Rolfe argued that the subpoenas ordering Midcontinent to release the name and contact information associated with the IP address were issued in violation of the law. Rolfe further argued that information collected as a result of the improper subpoenas was used to obtain search warrants and collect evidence at Rolfe's home. Thus, the evidence collected was “fruit of the poisonous tree” and should be excluded from use at trial.

[¶ 9.] The trial court denied Rolfe's motion to suppress. The court found that an IP address is a unique number that identifies a computer and its location in connection to the Internet. The court determined that Rolfe had no Fourth Amendment expectation of privacy in his IP address subscriber information because he publicly disseminated the information. Finally, the court concluded that even if the method of subpoenaing the IP address and records from Midcontinent was invalid, the court would not sanction the State by suppressing the evidence in the case.

[¶ 10.] The court held a jury trial in this case from April 18 through 21, 2011. At the beginning of the third day of trial, the State invoked SDCL 23A–24–6, a statute that authorizes the closure of a courtroom when a child testifies about a sexual offense committed against that child or another child. The statute allows the court to exclude the general public except the parties' attorneys, victim or witness assistant, the victim's parents or guardians, officers of the court, and representatives of the media. Rolfe objected to the closure as a violation of his Sixth Amendment right to a public trial. The trial court overruled the objection and allowed the courtroom to be closed during A.F.'s testimony.¹

[¶ 11.] The jury found Rolfe guilty of three counts of first-degree rape of A.F. and 12 counts of possessing, manufacturing, or distributing child pornography. The trial court sentenced Rolfe to three concurrent life sentences without parole and 12 consecutive 10–year sentences in the South Dakota State Penitentiary.

[¶ 12.] Rolfe appeals, raising two issues. First, Rolfe argues that the trial court violated his right to a public trial when it excluded the general public from the courtroom during A.F.'s testimony. Second, Rolfe argues that the State lacked legal authority to issue subpoenas to Midcontinent Communications prior to his indictment.

STANDARD OF REVIEW

[¶ 13.] “Constitutional interpretation is a question of law reviewable de novo.” Steinkruger v. Miller, 2000 S.D. 83, ¶ 8, 612 N.W.2d 591, 595 (citing State v. Beck, 1996 S.D. 30, ¶ 6, 545 N.W.2d 811, 812). Statutes are presumed to be constitutional and the challenger has the “burden to prove beyond a reasonable doubt that a statute violates a constitutional provision.” Id. (citing Kyllo v. Panzer, 535 N.W.2d 896, 898 (S.D.1995)). “[W]e review the constitutionality of a statute only when it is necessary to resolve the specific matter before us, and then only to first decide if the statute can be reasonably construed to avoid an unconstitutional interpretation.” Id. (citing City of Chamberlain v. R.E. Lien, Inc., 521 N.W.2d 130, 131 (S.D.1994)).

[¶ 14.] A violation of the right to a public trial is a “structural defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302 (1991). See also Waller v. Georgia, 467 U.S. 39, 49 n. 9, 104 S.Ct. 2210, 2217 n. 9, 81 L.Ed.2d 31 (1984). “ ‘Without these basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.’ ” Fulminante, 499 U.S. at 310, 111 S.Ct. at 1265 (quoting Rose v. Clark, 478 U.S. 570, 577–78, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460 (1986)).

[¶ 15.] “Statutory interpretation is also a question of law reviewed under the de novo standard.” State v. Wilson, 2004 S.D. 33, ¶ 9, 678 N.W.2d 176, 180 (citing Steinberg v. S.D. Dept. of Military & Veterans Affairs, 2000 S.D. 36, ¶ 6, 607 N.W.2d 596, 599). We review the trial court's “application of the law de novo, and the ultimate decision to close a [court] proceeding for an abuse of discretion.” Rapid City Journal v. Delaney, 2011 S.D. 55, ¶ 9, 804 N.W.2d 388, 392.

DISCUSSION

[¶ 16.] 1. Whether Rolfe's right to a public trial was violated.

[¶ 17.] Rolfe argues that his Sixth Amendment right to a public trial was violated when the trial court excluded the general public during A.F.'s testimony. The Sixth Amendment provides, in part, “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed....” U.S. Const. amend. VI. See alsoS.D. Const. art. VI, § 7 (“In all criminal prosecutions the accused shall have the right to ... a speedy public trial....”). In general, courts conduct public trials “ ‘for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions.’ ” Waller, 467 U.S. at 46, 104 S.Ct. at 2215 (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 380, 99 S.Ct. 2898, 2906, 61 L.Ed.2d 608 (1979)). Recently, the United States Supreme Court reinforced the importance of public trials in Presley v. Georgia, where it stated that “[t]he public has a right to be present whether or not any party has asserted the right.” 558 U.S. 209, ––––, 130 S.Ct. 721, 724–25, 175 L.Ed.2d 675 (2010).

[¶ 18.] The...