This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






State of Minnesota,


Joel Leslie Wells,


Filed September 25, 2007

Certified question answered in the negative and remanded

Parker, Judge*


Dakota County District Court

File No. K8-05-1901


Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


James C. Backstrom, Dakota County Attorney, Lawrence F. Clark, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for plaintiff)


Rick E. Mattox, 16670 Franklin Trail S.E., Suite 250, Prior Lake, MN 55372 (for defendant)


            Considered and decided by Shumaker, Presiding Judge; Wright, Judge; and Parker, Judge.

U N P U B L I S H E D  O P I N I O N




            Defendant was charged with dissemination of child pornography and possession of child pornography.  During discovery, defendant moved to compel the state to provide copies of all electronic media and a forensic copy of the hard drive containing the alleged images of child pornography.  The district court denied the motion to compel and certified the following question to this court:

Is the state compelled to provide copies of seized images and computer hard drive(s) containing alleged child pornography to the defense, where the state has provided and will provide the defense counsel and/or expert(s) with reasonable opportunity(s) to view and inspect the aforementioned images and hard drive (and forensic analysis thereof) at the office of the law enforcement agency that has custody of these items?




            In December 2004, defendant Joel Leslie Wells was charged with dissemination of child pornography and possession of child pornography.  The Eagan Police Department was informed of Wells’s purported involvement in dissemination of pornographic images of minors by a New Jersey police department.  The police then executed a search warrant at Wells’s residence in the City of Eagan.  During the search, police seized a computer hard drive, and through forensic examination found that it contained a number of pornographic images of minors.

            During discovery, Wells demanded that the state produce copies of all images he allegedly downloaded, as well as a copy of the computer hard drive and other hardware containing the alleged pornographic images.  The state declined to produce copies of the photographs or the hard drive.  Instead, the state offered defense counsel the opportunity to inspect the computer images at the Eagan Police Department, with the assistance of the detective who conducted the forensic analysis of the computer.  The state also indicated that Wells’s counsel and any defense experts could view the images or conduct forensic computer analysis at any time by contacting the police department to make appropriate arrangements.

            Wells moved for an order compelling the state to provide the requested copies.  The district court denied the motion and ordered the state to provide defense counsel and any experts with reasonable opportunities to view and inspect the images and hard drive (and conduct forensic analysis thereof) at the Eagan Police Department.  On August 2, 2006, at the request of defense counsel and with the acquiescence of the state, the district court agreed to certify the question presented here to the Minnesota Court of Appeals as an “important and doubtful” question.



            This court may hear on appeal a question of law which the district court certifies as “so important and doubtful as to require a decision of the court of appeals.”  Minn. R. Crim. P. 28.03.  A certified question is a question of law that this court reviews de novo.  Larson v. Wasemiller, 718 N.W.2d 461, 464 (Minn. App. 2006), rev’d on other grounds, Larson v. Wasemiller, ___ N.W.2d ___ (Minn. 2007).  Before certifying a question, the district court must specify the precise legal question to be answered.  Id.

            The question presented here is important because it has statewide impact on discovery in child pornography cases.  See, e.g., State v. Larivee, 644 N.W.2d 100, 104 (Minn. App. 2002) (stating that the importance of an issue “increases with the probability that resolution of the issue will have statewide impact and the probability of reversal”) (quotation omitted), aff’d, 656 N.W.2d 226 (Minn. 2003).  The question is also doubtful because there is no controlling precedent.  See id. (“An issue is doubtful if there is no controlling precedent, or if there is a question of first impression with substantial ground for difference of opinion.”) (other citation omitted).

            Minnesota appellate courts have yet to address whether production of evidence must be compelled where the state offers a reasonable place to view and inspect the images and computer hard drive.  Other jurisdictions, however, have addressed this issue with varying results.[1]  In United States v. Kimbrough, 69 F.3d 723, 731 (5th Cir. 1995), the court held that child pornography is contraband and declined to require that such contraband be distributed to or copied by the defense.  The court further found that the government’s offer to make such materials available for inspection was sufficient under the rules of discovery.  Id.  Additionally, in United States v. Horn, 187 F.3d 781, 792 (8th Cir. 1999), the court upheld the district court’s refusal to allow the copying of videotapes containing child pornography, stating that the tapes were contraband.  The court also concluded that the offer to have the tapes available for viewing by defendant’s expert accomplished the purpose for which the defendant sought the tapes.  Id.  Further, in United States v. Husband, 246 F. Supp. 2d 467, 469 (E.D.Va. 2003), the court found that “the government [ ] met its obligations under Rule 16 of the Federal Rules of Criminal Procedure by allowing access to the tape [containing alleged pornography].”

            In contrast, the court in Westerfield v. Superior Court, 121 Cal. Rptr. 2d 402, 405 (May 8, 2002), found that the mere right of inspection by the defense was not sufficient to protect the defendant’s constitutional rights.  Moreover, in State v. Boyd, 158 P.3d 54, 63 (Wash. 2007), the court held that “[w]ith a restrictive protective order, copies [of child pornography] can be maintained in a manner that protects the interests of the victims while ensuring defense counsel the opportunity to adequately prepare.”  Because the issue presented here is not well settled, we conclude the question is important and doubtful.


            A.        Constitutional challenges

            Wells argues that the state’s failure to comply with Wells’s discovery requests effectively prevents Wells from preparing a defense or confirming the source of the images, and that this violates Wells’s right to effective assistance of counsel and due process of law.  A reviewing court will not overturn the district court’s decision concerning a discovery violation unless there was a clear abuse of discretion.  State v. Bailey, 677 N.W.2d 380, 397 (Minn. 2004).  However, when due process issues are involved in matters of pretrial procedure, this court reviews the district court’s decision de novo.  See State v. Heath, 685 N.W.2d 48, 55 (Minn. App. 2004) (reviewing ruling on the prosecution’s alleged failure to preserve potentially useful evidence).

            If a party fails to comply with a discovery rule, the district court has the discretion to order disclosure, grant a continuance, or enter any order it deems just.  Minn. R. Crim. P. 9.03, subd. 8.  Criminal defendants have a broad right to discovery and to prepare and present their defense.  State v. Paradee, 403 N.W.2d 640, 642 (Minn. 1987).  The Due Process Clause requires that criminal defendants be afforded a meaningful opportunity to present a complete defense, which includes the right to receive evidence from the state that is relevant to the defendant’s guilt or punishment.  California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 2532 (1984).  The Sixth Amendment right to effective assistance of counsel advances the Fifth Amendment right to a fair trial.  See Strickland v. Washington, 466 U.S. 668, 684, 104 S. Ct. 2052, 2063 (1984).  Moreover, under Minnesota law, a prosecuting attorney is required to “disclose and permit defense counsel to inspect and reproduce . . . tangible objects which relate to the case.”  Minn. R. Crim. P. 9.01, subd. 1(3).  The rule also requires the prosecutor to share any test results, to permit the defense to conduct reasonable tests, or should the state’s tests preclude further testing, to allow a qualified defense expert to observe the test.  Minn. R. Crim. P. 9.01, subd. 1(4).

            Wells argues that nothing in the child pornography statute prohibits copying of the images for use by the defense in preparing for trial.  Minn. Stat. § 617.247, subd. 5 (2004) (allowing peace officers, court personnel, or attorneys to possess or disseminate child pornography when performing their official duties).  Wells also asserts that discovery requires he be given the same opportunity to view and investigate the alleged child pornography as the state is given.  See State v. Traylor, 656 N.W.2d 885, 899 (Minn. 2003).  The district court concluded that Wells did not demonstrate that any significant prejudice will accrue to him if he is denied copies of the images and hard drive, when the images and hard drive can be reasonably accessed and reviewed by the defense in another manner.  Taking note of persuasive precedent from other jurisdictions, the district court determined that the state’s actions were sufficient for discovery purposes.  Because nothing in the rules of criminal procedure indicates that every piece of evidence must be copied and provided to the defense, we conclude that the district court did not abuse its discretion.

            B.        Public policy


            The district court concluded that public policy weighs against unnecessary dissemination of child pornography when reasonable alternatives are available.  Wells argues, however, that if there is any public policy concern about dissemination of the materials, a protective order requiring defense counsel’s agents to use the materials solely for the case and to return them to the state would be sufficient.  In the alternative, Wells argues that as in Paradee, the district court should conduct an in-camera review and, if necessary, a redacted version of the materials could be offered to the defense.  403 N.W.2d at 642.

            “The function of the court of appeals is limited to identifying errors and then correcting them.”  Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).  The district court has wide discretion in ruling on discovery and the admission of evidence.  State v. Wildenberg, 573 N.W.2d 692, 696 (Minn. 1998).  Additionally, however, Minn. R. Crim. P. 9.01, subd. 6, provides that “[u]pon application of any party . . . the trial court upon a showing of good cause therefor may permit any showing of cause for denial or regulation of discovery, or portion of such showing, to be made in camera.”  Based on the record before us and the rules of criminal procedure, we answer the certified question in the negative and remand the case to the district court for an in-camera review.

            Certified question answered in the negative and remanded.


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

[1] We note that federal law, under the Walsh Act, prohibits the federal government from releasing child pornography to defendants charged with child pornography offenses, so long as the government makes the evidence reasonably available for inspection and examination by the defendant’s lawyers and experts at a government facility.  18 U.S.C.A. § 3509(m) (West Supp. 2007).