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State v. Bray

Supreme Court of Oregon

July 5, 2018

STATE OF OREGON, Petitioner on Review,
v.
THOMAS HARRY BRAY, Respondent on Review. STATE OF OREGON, Respondent on Review,
v.
THOMAS HARRY BRAY, Petitioner on Review.

          Argued and submitted November 7, 2017.

          On review from the Court of Appeals. (CC 11FE1078) (CA A153162). [*]

          Jennifer S. Lloyd, Assistant Attorney General, Salem, argued the cause and fled the briefs for petitioner on review/ respondent on review State of Oregon. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Kendra M. Matthews, Boise Matthews LLP, Portland, argued the cause and fled the briefs for petitioner on review/ respondent on review Thomas Harry Bray.

          Margaret Garvin and Amy C. Liu, National Crime Victim Law Institute at Lewis & Clark Law School, Erin K. Olson, Law Office of Erin K. Olson, P.C., and Rosemary W. Brewer, Oregon Crime Victims Law Center, Portland, fled the brief on behalf of amici curiae Crime Victim J.B. and the Oregon Crime Victims Law Center.

         [363 Or. 227] Before Walters, Chief Justice, and Balmer, Kistler, Nakamoto, Flynn, Duncan, and Nelson, Justices. [**]

         The decision of the Court of Appeals is affirmed. The judgment of the circuit court is vacated, and the case is remanded to the circuit court for further proceedings.

         Case Summary: Defendant was charged with various sex-related crimes following a sexual encounter with the victim (J). Before defendant's trial, defendant sought the production of J's Google information because, following her encounter with defendant, she searched the internet to determine whether what defendant had done constituted rape. The trial court ordered the state to take whatever measures it could under the Stored Communications Act to obtain the information, but, after Google rejected the state's subpoena and claimed that a search warrant was required, the court did not order the state to take further action to obtain J's internet records. The trial court also denied defendant's motion to dismiss for prosecutorial misconduct and defendant's motion to compel J to comply with defendant's subpoena requiring her to bring her computer to trial. The Court of Appeals held that it was an error for the trial court to not enforce defendant's subpoena but otherwise affirmed. Held: The trial court did not err in not requiring the state to take further action to obtain J's Google information because that information was not in the "possession or control" of the state under ORS 135.815(1)(a) and because, under the circumstances, due process did not require the court to order the state to take further action to obtain it. The trial court also did not err in denying defendant's motion to dismiss for prosecutorial misconduct because defendant did not demonstrate that J's Google information was irretrievably lost or that the state's delay in trying to obtain it caused it to be lost. However, the trial court did err in denying defendant's motion to compel J to comply with defendant's subpoena requiring her to bring her computer to trial because defendant demonstrated that J's computer could contain digital information that had a potential use in her cross-examination.

         Therefore, the decision of the Court of Appeals is affirmed. The judgment of the circuit court is vacated, and the case is remanded to the circuit court for further proceedings.

         [363 Or. 228] WALTERS, C. J.

         In this criminal case, the factual issue at trial was whether, as the state contended, defendant forcibly raped, sodomized, strangled and assaulted J, or, as defendant claimed, J's injuries resulted from consensual "rough sex." A preliminary legal issue was whether defendant could compel the production of evidence that he viewed as supportive of his position. After the encounter with defendant, J had used her computer to conduct a Google search and make journal entries about defendant and the encounter. Defendant sought to compel the production of that digital data: Defendant filed a motion to compel the state to use its authority under the federal Stored Communications Act (the SCA)to obtain J's records from Google, and he issued a subpoena duces tecum requiring J to appear at trial and bring her computer with her.

         The trial court granted defendant's motion to compel, and, after some time and a number of hearings, the state eventually sent Google a subpoena for the records. Google did not comply; it took the position that a search warrant was required. Defendant, frustrated with what he viewed as the state's defiance of the court's order and refusal to do what was necessary to get the Google information, filed a motion to dismiss the charges against him. The court, unhappy with the state's delay and "resistance or reluctance" to comply with its order, but satisfied that the state had done all that the court could direct it to do, informed the parties that it would not require the state to obtain a search warrant and denied defendant's motion to dismiss.

         The court then conducted a bench trial. J testified, but she did not produce her computer in response to defendant's subpoena. On cross-examination, J told the court that she had "flattened" her computer and that it therefore no longer contained digital information. The court denied defendant's motion for an order requiring J to bring the computer to court for a forensic examination and, at the trial's completion, found defendant guilty.

         Defendant appealed his judgement of conviction. State v. Bray, 281 Or.App. 584, 586, 383 P.3d 883 (2016). [363 Or. 229] The Court of Appeals affirmed the trial court's denial of "defendant's motion to compel the state to obtain J's internet information" and its denial of defendant's motion to dismiss. Id. at 595. However, it determined that the trial court erred in denying defendant's motion to enforce the subpoena duces tecum, vacated defendant's convictions, and remanded to the trial court for further proceedings. Id. at 617-18.

         Defendant filed a petition for review in this court, challenging the Court of Appeals' rulings with respect to the Google records and the state's failure to obtain them. The state also filed a petition for review, challenging the Court of Appeals' ruling with respect to defendant's subpoena and its conclusion that defendant's convictions must be vacated and the case remanded. We allowed both petitions, and, for the reasons that follow, we affirm the decision of the Court of Appeals.

         I. DEFENDANT'S ISSUES ON REVIEW

         A. Whether the trial court erred in refusing to order the state to take further action to obtain J's internet information from Google

         We begin with the issues that defendant raises on review and, in particular, his argument that the trial court erred in refusing to order the state to take further action to obtain J's internet information from Google. To address that issue, a rudimentary understanding of the provisions of the SCA is necessary.

         The SCA is a federal law that was enacted in 1986 as part of the Electronic Communications Privacy Act to address the privacy of stored internet communications. See Or in S. Kerr, A User's Guide to the Stored Communications Act, and a Legislator's Guide to Amending It, 72 Geo Wash L Rev 1208, 1208-13 (2004) (discussing purpose of the SCA). In simplified terms and subject to exceptions, section 2702 of the SCA prohibits providers of remote computing service, such as Google, from knowingly divulging to any person or entity the contents of any communication carried [363 Or. 230] or maintained in that service. 18 USC § 2702(a)(2).[1] The exception that is relevant here is the exception that permits a provider to divulge the contents of a communication as authorized in section 2703. 18 USC § 2702(b)(2). Pursuant to section 2703, governmental entities may require the disclosure of such communication by specified means. 18 USC § 2703(b)(1).[2] Those means include (with conditions) a warrant, an administrative, grand jury, or trial subpoena, or, under subsection (d), a court order for disclosure. 18 USC § 2703(b)(1). A subsection (d) order for disclosure (SCA order) may be issued "only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the" information sought is [363 Or. 231] "relevant and material to an ongoing criminal investigation." 18 USC § 2703(d). A person like defendant, who is a non-governmental entity, cannot require a remote computing service, such as Google, to divulge the contents of communications. See 18 USC § 2703(b) (providing government authority to require disclosure but not providing similar authority to non-governmental entity).

         When defendant began his efforts to obtain J's Google records, he was apparently unaware of the SCA and its privacy protections. Defendant sent his own subpoena duces tecum to Google, but Google refused to honor it, citing the SCA. Defendant then sought the court's assistance. Defendant argued that, although Google had rebuffed his subpoena for the records of J's search, it would be required to produce that information if the state sought it. Defendant filed a motion to compel, asking the court to order the state to do what he could not. On December 20, 2011, after a hearing, the court determined that J's Google searches were potentially exculpatory and ordered the state to "make whatever effort the federal statute allows them to make" to obtain them (December 20 order). The court's thinking was that the state "has little interest in ignoring or avoiding exculpatory evidence" which might affect the result in the case, and that it was appropriate "for this court to order the State of Oregon to use its power under [the] federal statute to obtain the information."

         After significant delay, the state issued its own subpoena.[3] Google again demurred. Google informed the state [363 Or. 232] that it would not produce the records that the state sought without a search warrant requiring their production, and, some weeks later, the state so informed defendant and the court. By that time, trial was fast approaching, and defendant told the court that he would be filing a motion to dismiss the charges against him based on prosecutorial misconduct. Defendant took the position that, to comply with the court's December 20 order, the state was required to apply to the court for a search warrant or an SCA order. The state took the position that it could not and would not make the averments necessary for such an application and that the court could not and should not force it to do so. The court indicated that it would issue a search warrant if the state applied for one, but it did not enter an order requiring the state to take that action.

         When defendant did in fact file a motion to dismiss, the trial court denied it, giving two interrelated reasons for its decision. First, the court explained, the state may have done all that the court could require it to do when it issued a subpoena for J's Google records. Although the court disagreed with the district attorney's position that, to apply for a search warrant, he would have to aver that he had probable cause to believe that a search would produce "evidence of a crime"- explaining that "a search warrant can be issued for evidence or information concerning the commission of a crime"-the court was not convinced that it could order the district attorney to make averments that he was not willing to make.

         Second, the court explained, it considered the Google searches to be important and exculpatory, but it did not consider them to be the "heart of the case." The "heart of the case," in the court's view, was the "physical evidence, [J]'s statements to the police, [J]'s testimony, which is subject to cross-examination, and * * * defendant's testimony or other evidence if he chooses to testify or present it." Moreover, [363 Or. 233] the court expanded, the evidence that J conducted a Google search would be presented, and J could be thoroughly cross-examined about it. The court opined that that evidence was "probably more damning or more critical than the exact content of the search itself." The court concluded that the unavailability of the Google searches themselves was "not the sort of thing that would require the Court-or justify the Court in dismissing the case."

         On appeal, the Court of Appeals described the trial court's decision as a combination of rulings, including a denial of defendant's "motion to compel the state to obtain J's internet information." Bray, 281 Or.App. at 595. As noted, the Court of Appeals affirmed that denial. Id. The court reasoned that ordering the state to obtain J's Google searches would exceed the court's statutory and constitutional authority, and it did not distinguish between the trial court's initial order requiring the state to take steps permitted by the SCA and the trial court's later retreat from that order. Id. at 595-607 (discussing motion to compel Google information issue).

         That distinction is, however, essential to our analysis. The trial court effectively entered two different orders with respect to the Google searches-an initial order granting defendant's motion to compel, and a second order, reconsidering, retreating from, or reversing that initial order. The state did not challenge the court's initial order by seeking a writ of mandamus or by cross-assigning it as error on appeal to the Court of Appeals. On review in this court, it is defendant who brings a challenge, and that challenge is not to the court's initial order, but to its retreat from it. Thus, the issue before us is not whether the trial court had authority to enter its December 20 order; the issue is whether the trial court had an obligation to enforce that order by requiring the state to take further action deemed necessary to obtain the Google records-to apply for a search warrant or an SCA order.[4]

         [363 Or. 234] Defendant argues that the trial court was obligated to order that assistance and begins his argument with the Oregon statute that requires the state to disclose exculpatory evidence in its "possession or control." ORS 135.815. Defendant contends that the SCA places J's internet information within the state's "possession or control," and, therefore, that the state was required to obtain and disclose it, and the trial court had a duty to compel its compliance.

         The Court of Appeals considered ORS 135.815(1)(g) to be the applicable statute. Bray, 281 Or.App. at 595-96. But, as the state points out, that statute was not enacted until 2013, after the trial court proceedings in this case were complete. Or Laws 2013, ch 525, § 1. Instead, as defendant recognizes, the applicable statute is ORS 135.815(1)(a). That statute requires the district attorney to disclose the "relevant written or recorded statements or memoranda of any oral statements" of any witness the state intends to call to testify at trial, if the materials are in the district attorney's "possession or control." ORS 135.815(1)(a).[5]

         This court construed that statute in State v. Warren, 304 Or. 428, 746 P.2d 711 (1987).[6] In that case, the defendant made a motion to compel Children's Services Division (CSD) to disclose witness statements that were included in CSD files. Id. at 430. The trial court denied the motion, but this court held that ORS 135.815(1) required the disclosure. Id. Responding to the state's arguments that those files are made confidential by statute and therefore are not within the "control" of the district attorney, we explained that, although Oregon law precludes CSD from releasing its files to the public, it permits CSD to disclose them to the police and the district attorney. Id. at 432. We noted that the police have "access to information in CSD files to investigate charges of child abuse," and concluded that, just as [363 Or. 235] the prosecutor is "responsible for evidence in the possession of the police[, ] *** information that the prosecutor may obtain directly is within the prosecutor's 'control[.]'" Id. at 433 (emphasis added). Such information, we said, must be disclosed to the defendant, subject to the court's in camera review. Id. at 433-35.

         From Warren, defendant argues that any information that a prosecutor may obtain directly is within the prosecutor's "control," as that term is used in ORS 135.815(1), and a court must order the state to obtain and produce it. The state does not read Warren as expansively. The state observes that when Warren was decided, CSD was effectively an investigative arm of the state comparable to the police, and argues that Warren and ORS 135.815 require the state to produce documents only when they are held by state agencies with comparable investigative authority.[7]

         The parties' arguments hinge on the meaning of the statutory term "control." The relevant definition of that term set out in Webster's Dictionary is "to have power over: Rule." Webster's Third New Int'l Dictionary 496 (unabridged ed 2002). Given that definition, we do not agree with either party's argument in toto. We do not agree with the state that it does not have control over documents held by third parties lacking statutorily imposed investigative duties. When the state has the authority to obtain documents in the hands of third parties on request, it has the power to obtain those documents on its own volition and without other outside assistance and thereby has "control" over them; that is true even if those third parties do not themselves have investigatory responsibilities. Under Warren, the state may obtain such documents "directly" and, at least when a defendant makes a specific request for them, must obtain and disclose [363 Or. 236] them.[8] However, we also disagree with defendant in part. We do not agree with defendant that the state has power to obtain documents held by third parties when it cannot obtain those documents on request but must issue process to do so. When the state cannot obtain documents without judicial assistance, it cannot be said to have power over them. The state may have authority to seek the documents, but the third party may oppose production and seek to quash the state's efforts. The state therefore does not have power over those documents, cannot obtain them "directly," and does not have "control" over them. ORS 135.815(1)(a) does not impose a duty on district attorneys to obtain and produce such materials, nor does it require trial courts to order district attorneys to do so.

         In this case, the SCA makes internet information confidential and does not permit Google to disclose it to district attorneys on request. Issuance of process, such as a subpoena, search warrant, or SCA order, is required.[9]Therefore, in this case, ORS 135.815(1)(a) did not require the state to obtain, or the trial court to order the state to obtain, J's internet searches.

         Defendant's next argument is that, even if ORS 138.815(1)(a) did not require that assistance, due process did. Due process undoubtedly requires the government to turn over evidence in its possession that is both favorable to the accused and material to guilt or punishment. United States v. Agurs, 427 U.S. 97, 104 n 10, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). However, defendant argues, citing Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), due process also requires a court to assist defendants in obtaining documents held by third parties in additional circumstances.

         [363 Or. 237] In Ritchie, the defendant had been accused of child abuse and had subpoenaed information from a state protective service agency, Children and Youth Services (CYS). Id. at 43. CYS refused to comply with the defendant's subpoena, and the trial court refused to order it to do so. Id. at 43-44. The Supreme Court began by reciting the due process principle that "the government has the obligation to turn over evidence in its possession that is both favorable to the accused and material to guilt or punishment," but it then considered whether the trial court was required to assist the defendant in obtaining records that were not in the prosecution's possession. Id. at 57-58 (emphases added). The Court answered that question affirmatively, concluding that the defendant's right to a fair trial entitled him to "know whether the CYS file contains information that may have changed the outcome of his trial [.]" Id. at 61. The Court recognized that, because the defendant had not yet reviewed the CYS records, it was not possible to say, with certainty, that they would contain material information and that requiring disclosure to make that determination arguably would intrude on the state's interest in confidentiality. Id. at 57. However, the Court also noted that a Pennsylvania statute permitted CYS to disclose otherwise confidential information when required to do so by court order, and determined that the trial court's in camera review would provide sufficient privacy protection. Id. at 58-61.

         From Ritchie, defendant argues that due process requires a court to assist a defendant in obtaining potentially exculpatory evidence, including by requiring a prosecutor to employ legal process to obtain such material. The state responds that Ritchie may require a court to enforce a defendant's subpoena, but it does not require or permit a court to compel a prosecutor to issue process to obtain evidence that is held by a third party and that the prosecutor has no constitutional duty to produce.

         We agree that, on its facts, Ritchie does not go as far as defendant suggests. In Ritchie, the Supreme Court ordered the trial court to assist the defendant by enforcing his own subpoena. But that does not mean that due process and the right to adduce evidence necessary to a fair trial [363 Or. 238] may not also require judicial or prosecutorial assistance in other circumstances. After all, courts must ensure that justice be done; a prosecutor is the "'servant of the law'" and always must be faithful to that mandate. Agurs, 427 U.S. at 110-11 (quoting Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935)). For reasons articulated below, however, we need not step through that open door or precisely describe its measurements.

         In this case, the trial court issued an order requiring the district attorney to take action permitted by the SCA to obtain J's internet searches, and the validity of that order is not before us. As noted, the state did not seek a writ of mandamus contesting the order, and the district attorney responded by issuing a subpoena that Google rebuffed. The question before us is whether, when defendant sought the court's assistance in compelling the district attorney to take further action, such as applying to the court for a search warrant or an SCA order, due process required the court to provide that particular assistance. It did not. Although the internet searches may have been sufficiently important and exculpatory to justify the trial court's initial order, there are two reasons that, together, persuade us that the need for the evidence was not so great that the court's failure to order the district attorney to issue process to Google deprived him of a fair trial. First, even if defendant could not prove the precise search terms that J used to search the internet without the searches themselves, he could prove that J had consulted the internet to determine whether what happened to her counted as rape. And second, issuance of process to Google was not the only means available to defendant to obtain evidence of the searches that J conducted. As more fully discussed below, J's computer may contain that evidence. Given those alternative means of informing the jury that J may have had doubts about whether she had been raped, we are not convinced that the Supreme Court would hold that the trial court's failure to order the district attorney to issue process to obtain that information from Google constituted a due process violation. The Court has been clear that, to prove a ...


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