The People Of The State Of Colo. v. Spykstra, 09SA91.

• Decision Date: 21 June 2010
• Docket Number: No. 09SA91.,09SA91.
• Citation: 234 P.3d 662
• Parties: The PEOPLE of the State of Colorado, Plaintiffv.Malinda E. SPYKSTRA, Defendant.
• Court: Colorado Supreme Court

234 P.3d 662

The PEOPLE of the State of Colorado, Plaintiffv.Malinda E. SPYKSTRA, Defendant.

No. 09SA91.

Supreme Court of Colorado,

En Banc.

June 21, 2010.

Thom K. LeDoux, District Attorney for the Eleventh Judicial District, Kathleen M. O'Brien, Deputy District Attorney, Fairplay, Colorado, Attorneys for Plaintiff.

Pearson, Horowitz & Burnett, P.C., Sean P. Paris, Denver, Colorado, Attorneys for Defendant.

Douglas K. Wilson, Colorado State Public Defender, Ann M. Roan, Deputy State Public Defender, Denver, Colorado, Attorneys for Amicus Curiae Office of the Colorado State Public Defender.

Scott W. Storey, District Attorney, First Judicial District and President of the Colorado District Attorneys' Council, Donna Skinner Reed, Chief Appellate Deputy District Attorney, Golden, Colorado, Attorneys for Amicus Curiae Colorado District Attorneys' Council.

John W. Suthers, Attorney General, Catherine P. Adkisson, Assistant Solicitor General, Denver, Colorado, Attorneys for Amicus Curiae Colorado Attorney General.

Hutchinson Black and Cook, LLC, Kimberly M. Hult, Boulder, Colorado, Attorneys for Amicus Curiae The National Crime Victim Law Institute.

Victim Justice, P.C., John C. Clune, Denver, Colorado, Attorneys for Amici Curiae the Subpoenees and Parents of Victim of Child Sexual Assault and the Victim.

Chief Justice MULLARKEY delivered the Opinion of the Court.

I. Introduction

At issue in this original proceeding is a trial court ruling denying the District Attorney's motion to quash two subpoenas duces tecum served by Malinda Spykstra, the defendant in a pending child sexual assault case, on the parents of B.G., the victim. In denying the motion to quash, the trial court ordered the parents to permit a defense expert to search their home computer and retrieve emails written by B.G.

As a preliminary matter, we uphold the trial court's finding that the District Attorney has standing to challenge the subpoenas issued to the parents. On the merits, however, we reverse the trial court's denial of the District Attorney's motion to quash. The trial court erred in ordering enforcement of the subpoenas by allowing Spykstra's computer forensic expert into the home of B.G.'s parents to search their computer because such a procedure effectively converted the subpoenas into search warrants. The trial court also erred in enforcing the subpoenas despite the lack of a sufficient factual basis to support them. We order the trial court to quash the subpoenas as unreasonable and oppressive.

II. Facts and Procedural History

In this child sexual assault case, Spykstra was charged with subjecting a child, B.G., to sexual contact between December 1, 2003, and December 1, 2005. The record before us provides no additional details of the facts underlying the charges.

Shortly after charges were filed, on March 24, 2009, pursuant to Rule 17(c) of the Colorado Rules of Criminal Procedure, Spykstra issued two subpoenas duces tecum to B.G.'s parents commanding each of them to produce in court on a certain date before trial every electronic device in their possession:

1. All computers, including, but not limited to: desktop computers, laptop computers, and cell phones, now in your possession from which you receive, have received, or expect to receive electronic communications, including but not limited to: instant messages, chat communications, e-mails, and web log (“Blog”) communications, not otherwise privileged during the period of 2003 through April 6, 2009.

2. All hard drives, or other electronic storage devices, including but not limited to: cell phones, jump drives, thumb drives, internal hard drives, and external hard drives, now in your possession from which you receive, had received, or expect to receive electronic communications, including but not limited to: instant messages, chat communications, e-mails, and web log (“Blog”) communications, not otherwise privileged during the period of 2003 through April 6, 2009.¹

The District Attorney moved to quash the defendant's pretrial subpoenas as unreasonable and oppressive, contending that they amounted to an impermissible fishing expedition. The prosecution's motion asserted that compliance with the subpoenas would expose irrelevant personal information, impede the mother's ability to conduct her real estate business, and disclose the father's privileged communications made in his capacity as a minister. More specifically, the motion explained that the parents' computer contained business records; tax returns; personal medical information; correspondence involving the father's worship team at church; and the personal information of the mother's clients, including social security numbers, tax returns, and pay stubs.

In response, Spykstra argued that the District Attorney lacked standing to bring the motion. Alternatively, Spykstra argued that the subpoenas were not unreasonable or oppressive, but she suggested that the subpoenas could instead be modified. She explained that the purpose for obtaining the electronic information was, “to the extent that the Defendant disputes the credibility of B.G. and the allegations she has made, the Defendant wants to uncover any communications that amount to inconsistent statements, and which may serve to impeach B.G.'s credibility.” In briefing and oral argument before this court, defense counsel indicated that Spykstra was seeking evidence that B.G. had recanted her story. However, Spykstra presented no evidence that such communications existed or that they would contain statements inconsistent with the victim's allegations. Indeed, defense counsel conceded in oral argument: “I can't point to anything in particular.”

The trial court declined to allow the parents or the parties' computer forensic experts to testify regarding the subpoenas and entertained no expert testimony as to how the information could or would be obtained from the parents' computer, which was the ultimate focus of the subpoenas.

In its written order, the trial court concluded that the District Attorney had standing to bring the motion to quash given the prosecutor's responsibilities under the Colorado Victim Rights Act. Although it found the subpoenas as initially written to be unreasonable and oppressive due to the impact on the parents' businesses, the court modified rather than quashed the subpoenas:

[I]n order to insure that the Defendant's rights to a fair trial are respected, the Court is exercising its authority to substantially restrict the provisions of the subpoena duces tecum. During oral argument the Defendant represented that the primary information being sought pertains to any email communications from the victim that may be recovered from her parents' computer. Therefore, it is the order of this Court that the victim's parents must reasonably cooperate with the Defendant's forensic expert to allow him to retrieve ONLY any email communications from the victim. In the event the victim's parents contend that any of such email communications are confidential and need to be protected, they may apply to the Court for an in camera review for a determination prior to their release to the Defendant.

The Defendant's forensic expert shall contact the victim's parents to make arrangement to come to their residence at a mutually convenient day and time to retrieve the email communications from the victim.

The method for retrieving the information was suggested by Spykstra at the motions hearing but strongly objected to by the District Attorney.

The true scope of information sought by the defendant has been a moving target. Spykstra's March 24, 2009 subpoenas initially sought to inspect every electronic storage device possessed by B.G.'s parents that could have received electronic communications from B.G. from 2003 to April 6, 2009, a time period including future communications not yet written. In her response to the motion to quash, she was willing to modify the request to “electronic communications by, to, and between B.G. and her parents related to the allegations of this case.” However, in briefing to this court, Spykstra concluded by asserting a right to review all communications “by, to and between B.G. and her mother.” The trial court's order ultimately required that a defense expert be permitted to search the parents' computer for emails from B.G., but the order did not limit the emails to the subject of the allegations in this case or modify the nearly six and one-half year time period defined in the subpoenas.

After the court issued its order, the parents did not comply and did not respond to calls from the defendant's computer forensic expert. The District Attorney subsequently filed this original proceeding, and the trial court stayed execution of its order pending resolution of this case.

III. Jurisdiction and Standard of Review

We decided to exercise our original jurisdiction because there is no other adequate appellate remedy. C.A.R. 21(a)(1). Should the parents be wrongfully compelled to produce protected information and to produce it in an impermissible manner, the harm would not be curable on appeal. See Cantrell v. Cameron, 195 P.3d 659, 660 (Colo.2008); Bond v. Dist. Ct., 682 P.2d 33, 36 (Colo.1984).

In this case, we review the District Attorney's standing to object to the parents' subpoenas and the propriety of the trial court's order enforcing those subpoenas. “Because standing is a question of law, we review the issue de novo.” Ainscough v. Owens, 90 P.3d 851, 856 (Colo.2004). We review for abuse of discretion the trial court's order modifying and enforcing the subpoenas. Losavio v. Robb, 195 Colo. 533, 537, 540, 579 P.2d 1152, 1155, 1157 (1978); Crim. P. 17(c).

IV. Analysis

This case involves the interpretation and the application of Rule 17(c) of the Colorado Rules of Criminal Procedure. Like many states, our rule is patterned after the federal rule. See Fed.R.Crim.P. 17(c); see, e.g., Commonwealth v. Lampron, 441 Mass. 265, 806 N.E.2d 72, 76 (2004) (...