Bello v. State
300 Ga. 682
| Ga. | 2017Background
- In 2013 Yonatan Yaffitt Bello was indicted in Cobb County for sexual exploitation of children based on video files and a law-enforcement forensic report taken from his computer.
- Under OCGA § 17-16-4(a)(3)(B) the State must allow a defendant to "inspect" such evidence before trial but may not allow copies to be made.
- Bello moved to compel copies of the videos and the forensic report, arguing the no-copy rule violated due process and the right to effective assistance of counsel (facial and as-applied challenges).
- Prosecutors offered inspection and expert review at a secure law-enforcement facility but refused to produce copies, citing both OCGA § 17-16-4(a)(3)(B) and the criminal prohibition on possessing child pornography (OCGA § 16-12-100).
- The trial court denied Bello’s motions; the Georgia Supreme Court granted interlocutory review and affirmed, holding the statute constitutional on its face and as applied given the existing record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OCGA § 17-16-4(a)(3)(B) facially violates due process by forbidding copies of alleged child pornography | Bello: statute prevents meaningful defense preparation in all or most cases; thus facially unconstitutional | State: statute permits inspection and testing under state control; protects compelling gov't interest in preventing dissemination | Held: facial challenge rejected — statute has a plainly legitimate sweep; inspection (without copying) can satisfy due process |
| Whether OCGA § 17-16-4(a)(3)(B) is unconstitutional as applied to Bello | Bello: in his case inspection at a secure facility is inadequate; he needs copies | State: offered secure-facility inspection and expert access; no record showing inspection would be inadequate | Held: as-applied challenge rejected — record lacks proof inspection is inadequate to prepare his defense |
| Whether the statute denying copies violates the right to effective assistance of counsel | Bello: inability to obtain copies prevents counsel from meaningfully testing evidence | State: same due-process analysis applies; inspection under supervision allows meaningful defense | Held: claim fails for same reasons as due process claims (facial and as applied) |
| Whether criminal prohibition on possession of child pornography unconstitutionally bars defense counsel from possessing evidence | Bello: absence of an exception for defense counsel is unconstitutional | State: constitution permits government to retain custody/control; forbidding private possession is permissible | Held: claim rejected — forbidding defense possession is consistent with gov't interest and the statute's scheme |
Key Cases Cited
- Weatherford v. Bursey, 429 U.S. 545 (recognizes no general constitutional right to pretrial discovery)
- Chambers v. Mississippi, 410 U.S. 284 (due process guarantees a meaningful opportunity to present a defense)
- Sabel v. State, 248 Ga. 10 (due process may require access to critical evidence for expert testing)
- Patterson v. State, 238 Ga. 204 (defendant may have expert testing but evidence can remain under state control with safeguards)
- United States v. Salerno, 481 U.S. 739 (facial-challenge standard; difficult to prevail)
- United States v. Shrake, 515 F.3d 743 (statutory limits on discovery not necessarily unconstitutional)
- Doe v. Boland, 630 F.3d 491 (reasonable limits on defense access to child pornography do not raise constitutional concerns)
- United States v. Spivack, 528 F. Supp. 2d 103 (inspection at government facility can satisfy defendant's needs)
- United States v. Johnson, 456 F. Supp. 2d 1016 (government has compelling interest in preventing distribution of child pornography used in prosecutions)