State v. Bray

281 Or.App. 584

383 P.3d 883

State of Oregon, Plaintiff–Respondent,

v.Thomas Harry Bray, Defendant–Appellant.

A153162

Court of Appeals of Oregon.

Argued and submitted December 19, 2014.

October 12, 2016

Kendra M. Matthews, Portland, argued the cause for appellant. With her on the opening brief were Marc D. Blackman and Ransom Blackman LLP. With her on the reply brief was Ransom Blackman LLP.

Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before DeVore, Presiding Judge, and Garrett, Judge, and Schuman, Senior Judge.^*

SCHUMAN, S.J.

Defendant was convicted of two counts of first-degree rape, two counts of first-degree sodomy, and one count each of strangulation and fourth-degree assault. On appeal, he argues that he was unlawfully denied the right to present material evidence, namely, information regarding internet searches made by the complaining witness, J. In particular, he argues that the trial court erred in refusing to compel the prosecution to obtain, and turn over to him, electronic data in the possession of Google that federal law permitted Google to release to the prosecution but not defendant. He also maintains that the court erred in denying his motion to compel J to comply with a subpoena duces tecum requiring her to turn over her computer (or a clone of its hard drive) for an in camerainspection for relevant evidence, and in denying his motion to dismiss based on prosecutorial misconduct. We hold that the court erred in denying defendant's motion to compel J to comply with the subpoena duces tecum , but otherwise we affirm. We therefore vacate the judgment of the circuit court and remand for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

Defendant, an anesthesiologist and part-time instructor at Central Oregon Community College in Bend, and J, a research chemist, met through an internet dating service. On their first and only encounter, they had drinks together and then walked to defendant's apartment. Some five hours later, J left, having sustained injuries to her jaw, eye, neck, shoulder, upper back, and vaginal area. According to defendant, these injuries resulted from consensual “rough sex.” According to J, there was nothing resembling consent; rather, defendant repeatedly spit in her face, slapped her, choked her into unconsciousness, pulled out some of her hair, and raped her vaginally and anally.

After leaving defendant's apartment, J went home, where she sent a text to a friend stating, “[R]emember how I told you about that doctor? I think he raped me last night.” She also conducted Google research regarding Oregon criminal law in order to determine whether “what happened between [defendant] and myself counted as rape or not,” given that she went to his apartment willingly.¹ Then she called the police to report defendant, who was subsequently arrested.

Before trial, defendant sought access to Google records regarding J's search history—the queries that she had entered and the websites that she had visited—for purposes of impeaching her testimony about the internet activity and, consequently, undermining J's credibility. Among other things, defendant suggested that she searched the internet to determine whether defendant was in fact a physician and therefore wealthy enough to falsely sue for rape.² He sent a subpoena duces tecum to Google requesting J's email from February 22, 2011 to March 31, 2011, as well as “all internet activity and searches conducted by [J], * * * including IP addresses, web searches requested, results, and sites viewed.” Google refused, citing the Electronic Communications Privacy Act (the ECPA), 18 USC § 2702(a)(1), which prohibits Google from disclosing the information:

“[A] person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service[.]”

The ECPA has several exceptions, however, including one that allows disclosure to “a law enforcement agency * * * if the contents * * * appear to pertain to the commission of a crime.” 18 USC § 2702(b)(7)(A)(ii). Citing that exception, defendant filed a motion asking the court to issue an order compelling the state to obtain the data from Google. After a hearing on that motion, the court concluded that the information defendant was seeking was exculpatory and material.³ Instead of issuing the order that defendant had requested, however, the court asked the prosecutor to determine whether J would consent to the data's release. See 18 USC § 2702(c)(2) (permitting disclosure “with the lawful consent of the customer or subscriber”). When J refused, defendant renewed his motion. The state objected, relying on (among other things) Article I, section 42(1)(c), of the Oregon Constitution, the so-called Crime Victims' Bill of Rights (CVBR), which guarantees to the victim of a crime

“[t]he right to refuse an interview, deposition or other discovery request by the criminal defendant or other person acting on behalf of the criminal defendant provided, however, that nothing in this paragraph shall restrict any other constitutional right of the defendant to discovery against the state.”

The court rejected that argument and issued an order compelling the state to obtain the data from Google and turn it over to defendant within 10 days.

At that point, December 20, 2011, the state began what it later called a protracted “resistance” to the court order. First, at a subsequent hearing on January 24, 2012, the state attempted to convince the court to reconsider the December 20 order. By that time, the judge who issued the order had retired. The new judge declined to revisit the original judge's decision. The state then informed the court that it could not obtain the information from Google without J's internet protocol (IP) address, and that obtaining that address would be costly and inconvenient, although not impossible.⁴ The court was not sympathetic and declined to change its decision. It once again ordered the state to obtain and turn over to defendant the Google information, taking whatever measures were necessary to do so.

At a hearing two weeks later, the state, having taken no action as directed by the court's order, told the court that it had not complied with the order because it had learned that attempting to obtain the information would be futile. In support of that assertion, the state produced an “expert” who testified that Google did not retain information for longer than 28 days. The expert was a Bend police officer. His information about Google's policy came from a conversation he had with another police officer, who, in turn, had heard it from one of Google's attorneys, whose name he could not remember.⁵

During a recess shortly thereafter, however, defendant accessed Google's website and discovered that, in fact, Google's policy was to keep data for at least nine months. Either this discovery or something else prompted the court to chastise the state:

“I'll tell you what I'm really tired of, and I have only been on this case for about a month, but the [c]ourt issued an order, and then when we find out what compliance there's been with the order, I'm just hearing more reasons why you don't want to comply with the order.

“* * * * *

“* * * You want to come into court and say, ‘It doesn't matter what Judge Tiktin ordered’; you just don't think it's going to be useful so you're just not going to comply with the order.

“* * * * *

“* * * [I]t's causing me some concern at this point why your office has done nothing.

“* * * * *“And to be quite honest with you, you may be putting this entire case in jeopardy by the way you're handling this.

“* * * * *

“At [a forthcoming] hearing on April 27[, 2012], the [s]tate will be required to be in complete compliance with all court orders relating to the alleged victim's Google search history or to show cause why the Deputy District Attorney responsible for this case * * * should not be held in contempt of court for any willful violation of the court orders.

“* * * * *

“* * * [W]e've reached the finish on your office just simply saying you're not going to comply with court orders because you don't agree with them. * * * [Y]ou can't just defy a court order.”

The court ordered the state to determine J's IP address, without which Google could not provide J's search history. The state refused, so the court ordered the defense to obtain the information and ordered the state to cooperate. The court also ordered the state to send Google a subpoena duces tecum and a letter requesting preservation of data.

After another five weeks passed, at another hearing on the Google matter, defendant informed the court that he had discovered J's IP address, and also that the state had been in possession of that address for nearly a year. The defense also pointed out that, after having received the IP address from defendant, the state still had not sent Google a subpoena or preservation letter with that address. The court ordered the state to do so forthwith. Realizing that Google might no longer have the information or refuse to provide it, defendant, as a backup, also asked the court to compel the state to secure J's computer and give it to the court for an in camera inspection to determine if it contained relevant evidence. Defendant noted that this request was urgent, because the defense had information derived from J's civil case against defendant indicating that J had either given away the computer, destroyed it, or attempted to delete all relevant information. The court nonetheless denied defendant's request. Subsequently, the state sent Google the subpoena and preservation letter, complete with J's IP address.

At another hearing two weeks later, the state reported that it had heard nothing from Google. At the same hearing, the court ruled on a motion by J,...