State of Minnesota, Appellant, vs. Steven James Kandel, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-266

 

State of Minnesota,

Appellant,

 

vs.

 

Steven James Kandel,

Respondent.

 

Filed August 10, 2004

Affirmed

Halbrooks, Judge

 

 

Isanti County District Court

File No. K0-03-691

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Jeffrey Edblad, Isanti County Attorney, Thad N. Tudor, Assistant County Attorney, 555 18th Avenue Southwest, Cambridge, MN 55008 (for appellant)

 

David J. Sjoberg, Kenneth M. Wasche, P.A., 14735 Highway 65 Northeast, Suite 300, Ham Lake, MN 55304 (for respondent)

 

 

            Considered and decided by Schumacher, Presiding Judge, Halbrooks, Judge, and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

The state challenges the district court's pretrial order granting respondent's motion to suppress all evidence and dismiss the case against him as a sanction for discovery violations.  The state contends that its discovery violations (1) were justified; (2) did not prejudice respondent; and (3) could have been properly rectified by a continuance rather than dismissal.  We affirm.

FACTS

By complaint filed on June 5, 2003, the state charged respondent Steven James Kandel with one count of felony possession of child pornography in violation of Minn. Stat. § 617.247, subd. 4 (2002).  The complaint alleged the following facts.  On May 13, Deborah Hogquist-Schmidtke, whose 15-year-old daughter was respondent's girlfriend at the time, informed the Isanti County Sheriff's Department that she was in possession of a computer belonging to respondent and had discovered pornographic images of children on respondent's computer, which respondent age 18 at the time had left in the home Hogquist-Schmidtke shared with her daughter.  Hogquist-Schmidtke subsequently delivered the computer to the police, who discovered approximately 60 images of nude young children on the hard drive.  The complaint further alleged that in the course of a subsequent interview with police, respondent stated that he had left the computer at his girlfriend's house for her to use and that he had not created the pornographic images himself, but had downloaded them from the Internet. 

On June 11, respondent served a request for discovery disclosures pursuant to Minn. R. Crim. P. 9.01, subd. 1, which provides that on request of defense counsel, the prosecuting attorney "shall" without a court order and before the scheduled omnibus hearing "allow access . . . to all matters within the prosecuting attorney's possession or control which relate to the case."  Rule 9.01, subd. 1(3), provides that "[t]he prosecuting attorney shall disclose and permit defense counsel to inspect and reproduce . . . photographs and tangible objects which relate to the case."  Rule 9.01, subd. 1(4), provides that "[i]f a scientific test or experiment of any matter . . . may preclude any further tests or experiments, the prosecuting attorney shall give the defendant reasonable notice and an opportunity to have a qualified expert observe the test or experiment."

Respondent specifically requested copies of all photographs alleged to have been downloaded by respondent, results and documentation related to any tests performed on the computer, and Internet account information, including the names of people who had access to the computer and the physical location of the computer when it was used to access the Internet.

On July 2, defense counsel served a supplemental demand for disclosures, specifically requesting a "forensically sound Image Copy of the hard-drive of the computer containing the alleged pornographic images, and all digital storage media including but not limited to Zip Discs, Jaz Discs, CD Rom, Tapes, Floppy Discs and any other storage media."  On July 28, defense counsel sent another letter requesting "[d]iscovery . . . as soon as possible" and naming the expert witness the defense intended to call to inspect the disclosures. 

When the state did not produce the requested disclosures by the time of the scheduled August 15 omnibus hearing, the matter was continued to September 25.  The record indicates that during the first week of September, defense counsel again contacted the prosecutor regarding the disclosure and learned that respondent's computer had been delivered to the Bureau of Criminal Apprehension (BCA) weeks earlier.  

On September 16, respondent moved to suppress all evidence arising from the computer which constituted the only evidence in the case and dismiss the matter as a sanction for the state's discovery violations.  The record indicates that on the same day, the state disclosed to respondent photocopied images and a photocopied list of pornographic Internet site addresses ("cookies") that the state claimed had been found in respondent's computer.  The district court denied respondent's motion without prejudice in order to give the state more time to comply with respondent's discovery requests.  

By letter dated November 12, the prosecutor requested that defense counsel disclose the name of respondent's computer expert in order to make arrangements for the expert to inspect the computer.  On December 12, respondent requested that the state provide him with a copy of the computer's hard drive, and on December 19, respondent requested that the state give his expert access to the computer.  The state did not provide a copy or access. 

On January 12, 2004, respondent again moved to suppress the evidence and dismiss the charges.  Although respondent's counsel stated at the motion hearing that the state had made the computer "available" two days earlier, the state nonetheless asserted its ongoing refusal to allow respondent to access the allegedly pornographic images, arguing that (1) federal law prohibits the dissemination of the images, even to defense counsel or respondent's expert and (2) technical difficulties precluded allowing respondent to access the computer files containing the images.  The state further contended that its prior partial compliance the disclosure of photocopied images and a list of "cookies" satisfied respondent's discovery requests.  The district court granted respondent's motion and dismissed the case.  This appeal follows.

D E C I S I O N

"The imposition of sanctions for violations of discovery rules and orders is a matter particularly suited to the judgment and discretion of the [district] court," and the choice of sanctions will not be overturned "absent a clear abuse of discretion."  State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979).  In determining whether sanctions for discovery violations are appropriate, the district court should consider "(1) the reason why disclosure was not made; (2) the extent of prejudice to the opposing party; (3) the feasibility of rectifying that prejudice by a continuance; and (4) any other relevant factors."  Id.  As a sanction for discovery violations in felony cases, the district court may compel discovery, "grant a continuance, or enter such order as it deems just in the circumstances."  Minn. R. Crim. P. 9.03, subd. 8.  Despite the district court's broad discretion when imposing sanctions for discovery violations, "[p]reclusion of evidence is a severe sanction which should not be lightly invoked."  Lindsey,284 N.W.2d at 374.

            The state argues first that its failure to allow respondent access to the computer was justified because respondent initially requested only a "forensically sound Image Copy of the hard-drive of the computer" and only requested physical access to the actual computer in December 2003.  But respondent specifically referenced Minn. R. Crim. P. 9.01 in his discovery request filed less than one week after the charge was brought.  That rule provides that without a court order and before the scheduled omnibus hearing, the prosecuting attorney "shall . . . allow access . . . to all matters within the prosecuting attorney's possession or control which relate to the case."  Minn. R. Crim. P. 9.01, subd. 1.  When the state did not provide discovery by the first omnibus hearing, the district court continued the matter to give it time to do so.  We also observe that, even setting aside the issue of physical access, the record contains no evidence that the state ever complied with respondent's request for a copy of the hard drive.   

            The state next argues that it did not give respondent access to the computer because "if the computer [is] turned on, it [will] lose all forensic value as a piece of evidence."  The record demonstrates that since respondent last had access to the computer, it had been turned on, at a minimum, by respondent's girlfriend's mother, the Isanti County Sheriff's Department, and the BCA.  The state does not attempt to explain why the evidence was not harmed in those instances but will be lost if the computer is turned on one more time. 

At the hearing on respondent's motion, the state simply asserted that, according to its experts, turning on the computer will damage the evidence.  The district court observed that "given the technical nature of the evidence at issue . . . expert testimony" might have helped to clarify the potential harm of turning on the computer.  The state now contends that it was denied the opportunity to present expert testimony because the hearing at which respondent's motion was heard was a pretrial hearing and not a contested omnibus hearing at which it could present expert testimony.  But the state made no effort to submit any such testimony at either of the two omnibus hearings or to seek a protective order. 

The record further demonstrates that the state did not raise the destruction-of-evidence theory prior to the hearing on respondent's motion.  And the state, by allowing the BCA to turn on the computer and retrieve images without allowing respondent's expert to observe the process, violated Minn. R. Crim. P. 9.01, subd. 1(4), and, by the terms of its own argument, may have irremediably corrupted the evidence.

The state next argues that it is prohibited from disseminating copies of pornographic images of children to anyone, including defense counsel, by operation of federal law.  In support, the state relies on United States v. Kimbrough, 69 F.3d 723, 731 (5th Cir. 1995), which held that Fed. R. Civ. P. 16(a)(1)(C) the federal analogue to Minn. R. Crim. P. 9.01, subd. 1(3) does not permit "contraband" such as child pornography to be distributed to or copied by the defense.  The state's reliance on Kimbrough is misplaced for at least two reasons.  First, in Kimbrough, the court specifically provided that allowing child pornography to be distributed to or copied by the defense was inappropriate when the state made the evidence available for the defense's inspection, which the state here failed to do.  See Kimbrough, 69 F.3d at 731.  Second, Minn. Stat. § 617.247, subd. 5 (2002), specifically provides that the law prohibiting the possession of pornographic work involving minors "does not apply to the performance of official duties by peace officers, court personnel, or attorneys."  We further observe that if the state's argument on this issue is correct, it broke the applicable law by possessing the images itself and by distributing copies of selected images to the defense.   

            At the motion hearing, the state argued that it made sufficient disclosure when it provided respondent with photocopies of images it claimed were retrieved from respondent's computer as well as the list of "cookies."  As the complaint charged appellant with the possession of approximately 60 pornographic images, the disclosure represented only a fraction of the evidence the state allegedly possessed.  The list of "cookies" is undated and its origin is impossible to establish without examining the materials respondent first requested in June 2003.  Therefore, we conclude that the state's partial compliance was insufficient.

            Finally, the state argues that it made an effort to "facilitate discovery" when it contacted respondent's counsel in November 2003 to request the name of respondent's expert.  But respondent had provided his expert's name in a letter sent the previous July; we cannot agree with the state that respondent's failure to answer the state's November letter indicates an intent to obstruct discovery.

            The district court determined that respondent was prejudiced as a matter of law by the state's continuing failure eight months after the charge to allow him to prepare a defense by inspecting the evidence against him and because his "release [was] restricted and freedoms limited."  The state blames the delay in part on the district court, which had respondent's first motion to dismiss for discovery violations under advisement for approximately two months.  But respondent did not file that motion until more than three months after the complaint was filed and more than one month after the first omnibus hearing, which was continued due to the state's failure to comply with discovery.  And although the state argues that respondent contributed to the delay by failing to respond to its November 2003 request for the name of his expert, as we noted, respondent had furnished the name in July.

            The state's failure to comply with respondent's discovery requests or allow respondent's expert to learn of or observe the BCA examination of respondent's computer effectively prevented respondent from preparing a defense or even confirming the provenance of the images from which the charge arose.  The state argues that respondent was not prejudiced because "[e]very piece of evidence the State ever intended to use against [respondent] still exists in exactly the same condition it was in when the State took possession" of it.  But the state's failure to make the requisite disclosures prevented respondent from establishing the condition of the computer at the time the state received it, particularly in light of the undisputed fact that the computer was not, and had not recently been, in respondent's possession when the state acquired it.  On this record, we conclude that respondent was prejudiced by the state's discovery violations.

            The state argues thatany prejudice respondent may have suffered could have been rectified by a continuance.  We disagree.  First, the district court both continued the August 2003 scheduled omnibus hearing and dismissed as premature respondent's September 2003 motion to suppress evidence in order to give the state more time to comply with discovery.  By the time of the hearing on respondent's second motion to dismiss, approximately seven months had passed since the charge.  Second, granting a continuance now cannot rectify the state's failure to give respondent notice and an opportunity to have his expert present while the computer was tested by the state.

            The state argues that the district court's choice of sanction was inappropriate because respondent never moved for a speedy trial and because the state did not intentionally withhold discovery.  But respondent requested discovery three separate times in the two months following the charge, and in the third request specifically asked for compliance "as soon as possible . . . [because] [t]here is a lot of investigation that needs to be completed."  The state provides no authority for the proposition that a defendant must move for a speedy trial in order to obtain discovery consistent with the rules.  Nor does the record support the state's argument that it did not intentionally withhold disclosure or that it attempted to "facilitate discovery."  Respondent made at least five unfulfilled requests for discovery; in the meantime, the state allowed the BCA to take possession of the computer and access the allegedly incriminating evidence within, without notifying respondent.

Despite the state's emotionally charged argument that "[t]he district court's [o]rder, if allowed to stand, would be lauded by pedophiles everywhere," the issue before the district court was unrelated to the substantive charges against respondent; rather, the issue was whether the state's violations of the discovery rules were sufficient to warrant the sanction imposed by the court.  Although dismissal is an extreme sanction, "[t]he values sought to be achieved through reciprocal discovery will be attained only if the rules are properly observed, and to this end the trial courts must have the ability to make those obligations meaningful."  Lindsey, 284 N.W.2d at 374.  Under the circumstances of this case, and, in particular, because of the state's persistent recalcitrance in obeying the rules governing discovery and failure to avail itself of the repeated extensions and continuances offered by the district court, we conclude that the dismissal of the charge against respondent was a proper exercise of the district court's discretion.

            Affirmed. 

*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.