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People ex rel. E.G.

Supreme Court of Colorado, En Banc

April 18, 2016

People of the State of Colorado, In the Interest of E.G, Petitioner Respondent

          Certiorari to the Colorado Court of Appeals. Court of Appeals Case No. 13CA1900.


         The supreme court considers whether a trial court may order a third party to allow a criminal defendant discovery access to the third party's home. The court discusses, first, the historical underpinnings of criminal discovery, noting that there is no common-law right to discovery in a criminal case. The court then analyzes the possible sources of authority by which a trial court could grant a defendant's discovery request for access to a private home. Finding no constitutional provision mandating such discovery, and failing to locate any authority to grant such a discovery request in Crim. P. 16 or Crim. P. 17, the supreme court concludes that the trial court lacked the authority to order the third party to allow access to her private home.

         For Petitioner: Cynthia H. Coffman, Attorney General, Jacob R. Lofgren, Assistant Attorney General, Denver, Colorado.

         For Respondent: Douglas K. Wilson, Public Defender, Ryann S. Hardman, Deputy Public Defender, Denver, Colorado.

         CHIEF JUSTICE RICE delivered the Opinion of the Court. JUSTICE GABRIEL concurs in the judgment.


Page 947


          [¶1] In this case we must decide whether a trial court has the authority to grant a defendant's discovery motion seeking access to the private residence of a third party. The defendant, E.G., was convicted of two counts of sexual assault on a child as part of a pattern of sexual abuse. Before trial, he filed a motion requesting court-ordered access to his grandmother's basement--the scene of the crime. The trial court concluded that it had no authority to order such access and denied the motion.

          [¶2] The court of appeals disagreed with the trial court's reasoning, though not its result. People in the Interest of E.G., 2015 COA 18, ¶ 6, ___ P.3d ___. It held that a trial court does indeed have authority to order defense access to a third-party residence. Id. It nevertheless affirmed the denial of the motion for access because it concluded that E.G. had " failed to demonstrate" that inspection of the crime scene was " necessary to present his defense." Id. at ¶ 17. We granted the People's petition for certiorari to determine under what circumstances--if any--a trial court has authority to grant a defendant access to a private residence.[1] We conclude

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that the trial court lacked authority to order such access and therefore affirm on alternate grounds.

         I. Facts and Procedural History

          [¶3] E.G. was charged as an aggravated juvenile offender, and a jury found him guilty of two counts of sex assault on a child as part of a pattern of abuse. See § § 18-3-405(1), (2)(d); 19-2-601, C.R.S. (2015). The victims were twelve-year-old twin brothers who disclosed to their father that their older cousin, E.G., had repeatedly raped them several years earlier in the basement of their mutual grandmother's house.

          [¶4] Prior to trial, E.G. moved the court to order the victims' grandmother " to allow Defense Counsel and [her investigator] to have access to the residence" so that counsel could " view and photograph the crime scene." [2] As grounds for his motion, E.G. cited authority from other jurisdictions suggesting that such access was necessary under principles of fundamental fairness and due process of law. The court denied the motion, reasoning that it could not " order a private entity to open up their private residence." The court explained that it had not seen " any Colorado law, statutory or case law that indicate[d]" that the court had any authority to order the requested access. The trial went forward, and E.G. was convicted.

          [¶5] On appeal, E.G. challenged the denial of his motion for access to the home, and the court of appeals held that the trial court erred when it held that it did not have the authority to order defense access to the private property of a non-party. E.G., ¶ 15. According to the court of appeals, the trial court's authority stemmed from the defendant's " constitutional right to present evidence on his behalf and to confront adverse witnesses" and the right to " compel material evidence from private third parties." Id. at ¶ 8. To obtain such access, the court explained, a defendant " must demonstrate that the evidence 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." Id. at ¶ 15. After creating this test, the court of appeals subsequently concluded that E.G. failed to satisfy it. Id. at ¶ 17. Thus, the court of appeals affirmed the trial court's denial of the motion for access on alternate grounds. Id. at ¶ ¶ 23-24. We granted the People's petition for certiorari.

         II. Standard of Review

          [¶6] Generally speaking, appellate courts will review a trial court's discovery order in a criminal case for abuse of discretion. See Crim. P. 16(I)(d)(1); People ex rel. Shinn v. Dist. Ct., 172 Colo. 23, 469 P.2d 732, 733-34 (Colo. 1970). However, a trial court abuses its discretion if it exceeds the bounds of its legal authority. See Spahmer v. Gullette, 113 P.3d 158, 164 (Colo. 2005). Thus, the precise question we are faced with today--whether a trial court has the authority to order a third party to open her home to the defendant--presents a legal question that we will review de novo. See Stackhouse v. People, 2015 CO 48, ¶ 4, ___ P.3d ___.

         III. Analysis

          [¶7] Defendant argues that the trial court erred when it denied his motion for investigatory access to a non-party's private home. The threshold question we must answer--and a question we address in conjunction with a related case, also issued today, In re People v. Chavez, 2016 CO 20, 368 P.3d 943--is whether a trial court has any authority to issue such an order in the first place. We analyze the potential sources of authority and conclude that nothing authorized the trial court to grant the defendant's request for access to a private home. Because we hold

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that the trial court's original ruling was correct--it did not have authority to order the access--we now affirm the court of appeals on alternate grounds.

         A. The Right to be Free From Unreasonable Intrusion Into One's Home

          [¶8] The Fourth Amendment to the United States Constitution provides that " the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." The Colorado Constitution contains a nearly identical provision. See Colo. Const. art. II, § 7 (" The people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures . . . ." ). " The clearest right is to be free from unreasonable governmental intrusion into one's home." People v. O'Hearn, 931 P.2d 1168, 1172-73 (Colo. 1997). A court order forcing an individual to open her private home to strangers is certainly government intrusion.

          [¶9] Under these circumstances, (1) the deprivation would be " caused by the exercise of some right or privilege created by the State" (namely, a court order) and (2) E.G., the " party charged with the deprivation," would qualify as a state actor " because he [would have] acted together with or . . . obtained significant aid from state officials" --in this case, the district court judge. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); cf. Walter v. United States, 447 U.S. 649, 662, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980) (Blackmun, J., dissenting) (" [T]he Fourth Amendment proscribes only governmental action, and does not apply to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any government official." ); Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 65 L.Ed. 1048 (1921) (holding that there was no Fourth Amendment violation where " no official of the . . . government had anything to do with the wrongful seizure" ). Accordingly, E.G.'s grandmother had a constitutional right to be free from an unreasonable search of her home conducted by the defense.

          [¶10] Against this backdrop, we must analyze whether E.G.'s own constitutional rights granted him the ability to obtain access to the home. Thus, this case directly confronts the tension between the constitutional rights of an innocent third party who had the misfortune of seeing her home become the scene of a crime and the constitutional rights of the criminal defendant charged with that crime.

         B. Development of Criminal Discovery

          [¶11] " The right of discovery in criminal cases is not recognized at common law." Walker v. People, 126 Colo. 135, 248 P.2d 287, 302 (Colo. 1952); see also Michael Moore, Criminal Discovery, 19 Hastings L.J. 865, 865 (1968) (" It is an often-cited proposition that at common law the defendant in a criminal trial had no right to discover any of the prosecution's case against him." ). Early American courts, with some exceptions, adopted the common-law doctrine that they lacked the power, absent authorizing legislation, to order the prosecutor to provide discovery to a defendant. Moore, supra, at 866. In the ensuing years, however, many courts left the common-law doctrine behind. See id. at 867-69 (explaining that in almost all states, criminal discovery is in the discretion of the trial judge). The twentieth century saw many changes to the law of criminal pretrial disclosure. In 1963, the seminal case of Brady v. Maryland established a constitutional right to the disclosure of exculpatory information in the prosecutor's possession. 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Around the same time, states and legislatures began to expand criminal discovery rights through statute and through the rules of criminal procedure. See, e.g., Crim. P. 16; Utah R. Crim. P. 16.

          [¶12] Despite, or perhaps as a result of, the wide expansion of discovery rights through statutes and court rules, Colorado remains one of the few states that has never deviated from the traditional doctrine holding that courts lack power to grant discovery outside of those statutes or rules. See Walker, 248 P.2d at 302. In Walker, a defendant had requested and was denied pretrial access to

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certain physical evidence specimens upon which he wished to conduct " chemical experiments." Id. This court rejected his assignment of error, explaining that the trial court properly denied his request because it had no authority to do otherwise: " [T]he doctrine of discovery is . . . a complete and utter stranger to criminal procedure, unless introduced by appropriate legislation." Id.

          [¶13] Because Colorado law establishes that a trial court has no freestanding authority to grant criminal discovery beyond what is authorized by the Constitution, the rules, or by statute,[3] we must scrutinize those sources to determine whether the trial court had the ability to grant E.G. access to his grandmother's private home.

         C. Rule 16 of the Colorado Rules of Criminal Procedure

          [¶14] Crim. P. 16 ensures that a defendant has access to material and information in the government's possession or control, but it does not address a defendant's ability to access material and information held by private third parties. It thus cannot provide a source of authority for a court to order access to a private third party's home.

          [¶15] In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Supreme Court first recognized that " the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment." See also United States v. Bagley,473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (holding that regardless of whether the defense makes a request, constitutional error results from government suppression of favorable evidence). Crim. P. 16 prevents the prosecution from committing such a violation. Under Crim. P. 16(I)(a)(2), the prosecutor is required to " disclose to the defense any material or information within his or her possession or control which tends to negate the guilt of the accused as to the offense charged or would tend to reduce the punishment therefor." (Emphasis added.) The rule also goes further and lists many other types of material and information " within the possession or control of the prosecuting attorney" (or " other governmental personnel" ) that the prosecutor must " make available" to the defense. Crim. P. 16(I)(a)(1) (emphasis added).[4] However nothing in Crim. P. 16(I)(a)(1)--(c) grants the trial court authority to order access to a ...

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