In 2013, a Cobb County grand jury indicted Yonatan Yaffitt Bello for sexual exploitation of children, alleging that he unlawfully possessed video recordings that depict children engaged in sexually explicit conduct.
With respect to any books, papers, documents, photographs, tangible objects, audio and visual tapes, films and recordings, or copies or portions thereof which are within the possession, custody, or control of the state or prosecution and are intended for use by the prosecuting attorney as evidence in the prosecution’s case-in-chief or rebuttal at the trial of [a person accused of sexual exploitation of children], such evidence shall, no later than ten days prior to trial, or as otherwise ordered by the court, be allowed to be inspected by the defendant but shall not be allowed to be copied.
(Emphasis supplied.)
Bello continued to insist that he was entitled to copies of the video recordings and forensic report, and so, he filed motions to compel the State to produce copies of those materials. Bello claimed in his motions that OCGA § 17-16-4 (a) (3) (B) works a denial of due process, denies the effective assistance of counsel to persons accused of sexual exploitation of children, and is, therefore, unconstitutional, both facially and as applied in this case. In support of these claims, Bello argued that an opportunity to inspect suspected child pornography in a secure law enforcement facility is inadequate — in his case and in all cases — to afford the accused a meaningful opportunity to prepare
1. With respect to due process, our analysis begins with the settled principle that “[tjhere is no general constitutional right to discovery in a criminal case.”
Indeed, this Court has recognized that due process sometimes may require that the accused upon timely request be afforded a meaningful opportunity to have critical evidence against him examined by his own lawyers and experts. For instance, we held in Sabel v. State,
To the extent that due process requires the prosecution to disclose or make evidence available to the accused, it does not “necessarily require disclosure of evidence in a specific form or manner.” United States v. Sturm, 560 FSupp.2d 1021, 1029 (II) (B) (D. Colo. 2007) (citation omitted). And even when due process demands that the accused be afforded an opportunity before trial to have critical evidence tested by an expert of his choosing, it does not always require that the prosecution simply surrender the evidence to the custody and control of the accused and his defense team. Indeed, in Patterson, although we held that one accused of possessing marijuana may be constitutionally entitled to have the suspected marijuana examined by his own expert, we explained that “the defendant does not have an absolute, unqualified right to examine such evidence.”
Turning to the constitutionality of OCGA § 17-16-4 (a) (3) (B), we accept that the video recordings and forensic report are “critical evidence,” and we will assume for the purposes of this appeal that the constitutional guarantee of due process entitles Bello to have that evidence subjected to meaningful examination by counsel and a qualified expert of his choosing. Nothing in OCGA § 17-16-4 denies such
The statutory right to “inspect” evidence of the sexual exploitation of children is limited, of course, by the provision of OCGA § 17-16-4 (a) (3) (B) that the accused may not obtain copies of such evidence. There are, however, good reasons for such a limitation. To be sure, a request for copies of evidence (as opposed to a request for an original) ordinarily will not implicate serious concerns about the evidence being forever lost or having its integrity irreparably compromised, which were the sorts of concerns that justified the “appropriate safeguards” that we discussed in Sabel and Patterson. See, e.g., Patterson,
Bello contends that OCGA § 17-16-4 (a) (3) (B) is unconstitutional both facially and as applied in his case. A facial challenge “is, of course, the most difficult challenge to mount successfully,” United States v. Salerno,
As for the contention that OCGA § 17-16-4 (a) (3) (B) is unconstitutional as applied in this case, it is likewise without merit, at least based upon the current record. “An as-applied challenge addresses whether a statute is unconstitutional on the facts of a particular case or to a particular party.” Hertz v. Bennett,
Instead, Bello just insists that he ought to have copies, and the refusal of the prosecuting attorneys to make copies for him, he says, is a denial of due process. But as we have explained in connection with the facial challenge, such a refusal is not unconstitutional if the accused nevertheless has a meaningful opportunity to examine the evidence and prepare his defense. In the absence of a record to show that an inspection permitted by OCGA § 17-16-4 (a) (3) (B) would not be adequate to permit Bello to meaningfully prepare a defense, he cannot establish that a refusal of copies works a denial of due process. Accordingly, Bello has not demonstrated that the requirements of OCGA § 17-16-4 (a) (3) (B) “are inadequate to ensure due process in this case, so his as-applied challenge fails.” Sturm, 560 FSupp.2d at 1028 (II) (B) (“Sturm’s argument boils down to an equation: reasonable availability equals possession of a bit-by-bit copy . . . [T]he Due Process Clause does not direct that result.”). See also Boland,
2. As for the claim that OCGA § 17-16-4 (a) (3) (B) denies the effective assistance of counsel, it fails for the same reasons as the due process claim. To begin, we note that some federal courts addressing constitutional challenges to the federal statute that limits defense access to materials containing child pornography have essentially conflated the due process and assistance of counsel inquiries. See, e.g., Spivack, 528 FSupp.2d at 105 (III); United States v. Battaglia,
3. As an alternative ground for their refusal to provide copies of the video recordings and forensic report to Bello, the prosecuting attorneys noted that the possession of material that depicts minor children engaged in sexually explicit acts is a crime, see OCGA § 16-12-100 (b) (8), and although there is a limited exception that permits prosecutors and law enforcement personnel to handle such materials in connection with criminal investigations and prosecutions, see OCGA § 16-12-100 (d) (1), there is no similar exception for defense lawyers. In his motions to compel, Bello also contended that the absence of a statutory exception permitting defense lawyers to possess child pornography is unconstitutional. This claim fails, however, for the same reasons that his claim about the constitutionality of OCGA § 17-16-4 (a) (3) (B) fails. If the Constitution allows the government to insist that materials containing child pornography remain in the custody and control of government agents, forbidding non-government lawyers from taking custody and control of child pornography is equally permissible.
4. The trial court properly denied the motions to compel, and its judgment is affirmed.
Judgment affirmed.
Notes
See OCGA § 16-12-100 (b) (8) (“It is unlawful for any person knowingly to possess or control any material which depicts a minor or a portion of a minor’s body engaged in any sexually explicit conduct.”).
The trial court certified its denial of the motions for immediate review, and Bello filed an application for leave to take an interlocutory appeal, which we granted. See OCGA § 5-6-34 (b). This Court properly has jurisdiction of the subject matter of the appeal because it concerns the constitutionality of a statute. See Ga. Const. of 1983, Art. VI, Sec. VI, Par. II (1). The State argues, however, that this appeal does not implicate our constitutional question jurisdiction because the trial court did not explicitly address the constitutionality of the statute in its order denying the motions to compel. We disagree. “Although the trial court’s order does not . . . substantively discuss the constitutional issues raised in [Bello’s] motion[s], the trial court clearly ruled on the constitutional issues inasmuch as those issues were the only issues raised in the motion[s].” In the Interest of K. R. S.,
The constitutional guarantee of due process does require the State to turn over evidence in its possession that is material to guilt or punishment and is favorable to the accused. See Brady v. Maryland,
Sabel was overruled on other grounds in Rower v. State,
In federal prosecutions involving child pornography, evidence that constitutes child pornography ordinarily must “remain in the care, custody, and control of either the Government or the court.” 18 USC § 3509 (m) (1). The accused is not entitled to copies of such evidence “so long as the Government makes the property or material reasonably available to the defendant,” 18 USC § 3509 (m) (2) (A), and the evidence is deemed to be “reasonably available to the defendant” “if the Government provides ample opportunity for inspection, viewing, and examination at a Government facility” by the defendant, his counsel, or a defense expert. 18 USC § 3509 (m) (2) (B). The federal courts have repeatedly upheld the constitutionality of 18 USC § 3509 (m). See United States v. Spivack, 528 FSupp.2d 103, 105 (III) (A) (E.D. N.Y. 2007) (citing cases).
The State does not take the position that OCGA § 16-12-100 forbids defense lawyers or experts to handle materials containing child pornography within the confines of a secure law enforcement facility, in which the government maintains custody and control of the materials at all times.