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People ex rel. E.G.

Court of Appeals of Colorado, Sixth Division

February 26, 2015

The People of the State of Colorado, Petitioner-Appellee, In the Interest of E.G., Juvenile-Appellant.

Weld County District Court No. 12JD631 Honorable Thomas J. Quammen, Judge.

Cynthia H. Coffman, Attorney General, Jacob R. Lofgren, Assistant Attorney General, Denver, Colorado, for Petitioner-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Kathryn Crampton, Deputy Public Defender, Greeley, Colorado, for Juvenile-Appellant.

OPINION

FOX, JUDGE.

¶ 1 The defendant, E.G., appeals his judgment of conviction, entered on jury verdicts, for two counts of sexual assault on a child and two counts of sexual assault – pattern of abuse. We affirm and remand for sentencing.

I. Relevant Background

¶ 2 E.G. was charged with two counts of sexual assault on a child and two pattern of abuse sentence enhancers for sexually assaulting his younger cousins over a two-year period in the home of their mutual grandmother. Because E.G. was a juvenile, his case originated in juvenile court. E.G. was later charged as an aggravated juvenile offender under section 19-2-602, C.R.S. 2014, and his case was transferred to district court.

¶ 3 Before trial, E.G. filed a motion requesting court-ordered access to the crime scene in the basement of his grandmother's home. E.G. did not serve the motion on his grandmother, but he informally asked her permission and she denied him access. At the motions hearing, the prosecution argued that the court did not have authority to order a private person to open her residence to the defense. The court agreed and denied E.G.'s motion for access to the crime scene.

¶ 4 A jury convicted E.G. as charged, and the court sentenced him, at the age of twenty-two, directly to Department of Corrections' (DOC) custody for five years.

¶ 5 On appeal, E.G. contends that the trial court erred when it (1) denied him access to the crime scene inside his grandmother's home; (2) impermissibly curtailed his cross-examination of the forensic interviewer; and (3) improperly sentenced him directly to DOC custody. We address each contention below.

II. Access to the Crime Scene

¶ 6 E.G. asserts that the trial court erred when it denied, based on lack of authority, his motion requesting court-ordered access to the crime scene in the basement of his grandmother's home. We conclude that a trial court has the authority to allow discovery of a crime scene to the defense, even if the discovery implicates constitutionally-protected privacy rights of a non-party, provided that the defendant's justification for the information, which derives from his constitutional rights to due process and to present a defense, outweighs the privacy interests. However, because we also conclude that E.G. - who previously lived at the home and was provided photographs of the crime scene before trial - failed to meet this standard, we affirm the trial court's denial of E.G.'s motion.

A. Standards of Review

¶ 7 Whether a trial court has the legal authority to grant a discovery motion is a question of law we review de novo. People v. Jones, 222 P.3d 377, 379-80 (Colo. 2009). A trial court's denial of a defendant's discovery motion, however, is reviewed for an abuse of discretion. People ex rel. S.G., 91 P.3d 443, 450 (Colo. 2004). An abuse of discretion occurs when the trial court's decision is manifestly arbitrary, unreasonable, or unfair. Id.

B. Legal Standards

¶ 8 Although there is no general constitutional right to discovery in a criminal case, People v. Dist. Court, 790 P.2d 332, 338 (Colo. 1990), a defendant has a constitutional right to present evidence on his behalf and to confront adverse witnesses, United States v. Nixon, 418 U.S. 683, 771 (1974); Chambers v. Mississippi, 410 U.S. 284, 294 (1973); People v. Chard, 808 P.2d 351, 353 (Colo. 1991). The United States Supreme Court has construed these rights as granting a defendant the right to compel material evidence from private third parties, subject to certain limitations. Washington v. Texas, 388 U.S. 14, 19 (1967).

¶ 9 Colorado courts also authorize the discovery of information that implicates non-party privacy rights. For example, in Chard, 808 P.2d at 353-56, our supreme court held that a trial court, in its discretion, may order a victim in a sexual assault case to undergo an involuntary psychological or physical examination, provided that the defendant's need to discover the information outweighs the victim's privacy interests. See also People v. Estorga, 200 Colo. 78, 81-82, 612 P.2d 520, 523-24 (1980); People v. King, 41 Colo.App. 177, 179, 581 P.2d 739, 741 (1978).

¶ 10 Similarly, in People v. Wittrein, 221 P.3d 1076, 1085 (Colo. 2009), the supreme court held that a child's and parent's privacy rights to the non-disclosure of the child's educational records can be outweighed by an adequate showing of the defendant's need for the evidence. See also People v. Bachofer, 192 P.3d 454, 460 (Colo. 2008) (holding that a court may order the release of confidential school records to a defendant in a criminal case upon a proper showing of need).

¶ 11 Also, in People v. Spykstra, 234 P.3d 662, 670 (Colo. 2010), the court acknowledged that pretrial discovery subpoenas may be issued for materials implicating privilege, confidentiality, or privacy rights of a third party, provided that there is a balancing of interests and the defendant makes a sufficient showing of need for the disclosure of material information.

¶ 12 Our supreme court has similarly weighed the defendant's right to discover evidence against non-party privacy rights in other contexts. See, e.g., Williams v. Dist. Court, 866 P.2d 908, 912-13 (Colo. 1993) (balancing a defendant's interest in obtaining sufficient evidence to present his case against a non-party's privacy right to keep information regarding past intimate relationships confidential); Belle Bonfils Mem'l Blood Ctr. v. Dist. Court, 763 P.2d 1003, 1011-13 (Colo. 1988) (recognizing that disclosure of third-party blood donors' records implicates rights to privacy, but allowing disclosure pursuant to a limited discovery procedure that protects donors' privacy).

¶ 13 While informative, these Colorado cases do not address the right of a defendant to access real estate that cannot be brought into court, such as a crime scene inside a non-party's private residence. Courts in other jurisdictions, however, have specifically held that a defendant's constitutional rights to due process and to present evidence in his defense may include the right to access a crime scene in a private residence. In Commonwealth v. Matis, 915 N.E.2d 212, 213 (Mass. 2006), the Supreme Judicial Court of Massachusetts concluded that a court may order access to a crime scene in a private residence if the defendant demonstrates that the information obtainable at the scene is material and relevant. Likewise, a New York court has held that "[t]he constitutional right to compulsory process gives a defendant a right to compel discovery from a private third party [including the right to access a private residence] if justification exists which would outweigh the rights and legitimate interests of the third party." People v. Nicholas, 599 N.Y.S.2d 779, 780 (N.Y. Sup. Ct. 1993) (citing Chambers, 410 U.S. 284).

¶ 14 In Bullen v. Superior Court of Sacramento, 251 Cal.Rptr. 32, 33 (Cal.Ct.App. 1988), a California appellate court held that a court may grant a defendant's motion to discover a crime scene within a private residence if the defendant provides a "plausible justification" and demonstrates an "adequate showing of need" that is "more than speculative" and that outweighs the legitimate interests of others. And finally, the North Carolina Supreme Court, in State v. Brown, 293 S.E.2d 569, 578 ( N.C. 1982), held that a defendant has the right to view a crime scene in a private residence when the lack of such evidence denies the defendant the fundamental fairness to which he is entitled as a matter of due process.

¶ 15 Consistent with these cases, we agree that a defendant's right to inspect an alleged crime scene clearly implicates concepts of fundamental fairness and due process. See Chambers, 410 U.S. at 294; Washington, 388 U.S. at 19. We therefore hold that a trial court may authorize access to a crime scene to the defense, even if such access implicates constitutionally-protected privacy rights of a non-party, provided that the defendant's justification for the information outweighs any privacy interests. See Chambers, 410 U.S. at 294; Washington, 388 U.S. at 19. To obtain access, the defendant must demonstrate that the evidence desired is relevant, material, and necessary to his defense, and the court must balance the defendant's proffered justification with the rights and legitimate interests of the non-party resident. See Wittrein, 221 P.3d at 1085; Nicholas, 599 N.Y.S.2d at 783 (requiring defense counsel to make a prima facie showing that his proposed inspection "would yield relevant material evidence, not already provided, necessary for the preparation of the defense case"); see also State in Interest of A.B., 99 A.3d 782, 793 (N.J. 2014) (disapproving discovery requests that have the objective of "causing intimidation, harassment, or abuse").

¶ 16 We now consider whether access to the crime scene was warranted here. See, e.g., Miller v. Alabama, 567 U.S. __, 132 S.Ct. 2455, 2461-62, 2475 (2012) (applying a new rule to the case before the court); Wittrein, 221 P.3d at 1084-85 (developing a balancing test to weigh a defendant's need to discover information with the privacy rights of the non-party possessor of that information and applying the test to the case before the court); King, 41 Colo.App. at 179, 581 P.2d at 741 (applying a "compelling need" test to a defendant's discovery request for the first time).

C. Analysis

¶ 17 As noted, we conclude that the trial court erred in stating that it lacked authority to allow access to the crime scene. However, because E.G. failed to meet the standard above, the court properly denied his request for access. E.G.'s motion for access and his arguments at the motions hearing failed to demonstrate that his inspection of the crime scene would yield relevant material evidence necessary to present his defense, especially given that he previously lived in the residence and that photographs of the scene were later produced to him and he did not renew or otherwise supplement his previous request.

¶ 18 E.G.'s motion requested permission to "view and photograph the location of the incidents" and "photograph the physical space where the alleged incident occurred." At the motions hearing, E.G.'s counsel similarly stated that E.G. needed to "get a sense of the physical space . . . where it is that [the crime] is alleged to have occurred." E.G.'s counsel argued that the scene constituted material evidence simply by virtue of the fact that "it is the alleged crime scene."

¶ 19 E.G.'s counsel, however, failed to demonstrate specifically how accessing the crime scene would produce material and relevant evidence not otherwise provided to him. He referenced no specific evidentiary purpose for which he needed this evidence to present his defense at trial. Likewise, he failed to elaborate as to why viewing, photographing, or sensing the crime scene - where E.G. had previously lived - was essential to the defense trial strategy. See Wittrein, 221 P.3d at 1085 (a defendant must articulate a specific need for the information requested to outweigh privacy interests). Rather, his request was general and speculative and therefore insufficient to overcome the grandmother's privacy interests. See Chard, 808 P.2d at 356 (speculative evidence insufficient to overcome privacy rights); see also State v. Muscari, 807 A.2d 407, 417-18 (Vt. 2002) (a defendant must make some showing that the requested intrusion is relevant and material to the defense to demonstrate his need for access to a crime scene controlled by a private third party).

¶ 20 E.G. now asserts that, with access to the crime scene, he could have explored sound dynamics in the house, examined the specific layout of the rooms in relation to the basement, and potentially impeached witnesses' testimony at trial using that evidence. Although these reasons are more specific and arguably more compelling than those referenced in his original motion, see Jefferson Cnty. Sch. Dist. R-1 v. Justus, 725 P.2d 767, 773 (Colo. 1986), E.G. did not alert the trial court to these reasons before or during trial, and we cannot consider them for the first time on appeal. See People v. Greer, 262 P.3d 920, 929 (Colo.App. 2011).

¶ 21 Moreover, the People delivered, as requested in E.G.'s motion, photographs of the crime scene to him before trial, diminishing his need for access. After receiving the photos, E.G.'s counsel never argued to the court that they were insufficient, nor did he renew his request for access to the crime scene following their disclosure. He made no assertions regarding any additional relevant information that could be obtained only by entry into the grandmother's home. See Nicholas, 599 N.Y.S.2d at 780 (denying the defendant's request for access to the ...


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