Opinion
A17-0543
03-05-2018
State of Minnesota, Respondent, v. Blair Bruce Lee, Appellant.
Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Kelly O'Neill Moller, Assistant County Attorney, Minneapolis, Minnesota (for respondent) Frederick J. Goetz, Goetz & Eckland P.A., Minneapolis, Minnesota (for appellant) Joshua S. London, Brockton D. Hunter, P.A., Minneapolis, Minnesota (for amicus curiae Minnesota Association of Criminal Defense Lawyers) Caroline S. Palmer, Noelle Volin, St. Paul, Minnesota (for amicus curiae Minnesota Coalition Against Sexual Assault) Liz Richards, St. Paul, Minnesota (for amicus curiae Minnesota Coalition for Battered Women) Rana Alexander, Minneapolis, Minnesota (for amicus curiae Standpoint)
This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (2016). Affirmed
Bjorkman, Judge
Concurring specially, Rodenberg, Judge Hennepin County District Court
File No. 27-CR-16-18160 Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Kelly O'Neill Moller, Assistant County Attorney, Minneapolis, Minnesota (for respondent) Frederick J. Goetz, Goetz & Eckland P.A., Minneapolis, Minnesota (for appellant) Joshua S. London, Brockton D. Hunter, P.A., Minneapolis, Minnesota (for amicus curiae Minnesota Association of Criminal Defense Lawyers) Caroline S. Palmer, Noelle Volin, St. Paul, Minnesota (for amicus curiae Minnesota Coalition Against Sexual Assault) Liz Richards, St. Paul, Minnesota (for amicus curiae Minnesota Coalition for Battered Women) Rana Alexander, Minneapolis, Minnesota (for amicus curiae Standpoint) Considered and decided by Bjorkman, Presiding Judge; Rodenberg, Judge; and Smith, Tracy M., Judge.
UNPUBLISHED OPINION
BJORKMAN, Judge
Appellant challenges his convictions of first-degree criminal sexual conduct and domestic assault by strangulation, arguing that the district court's denial of his discovery motion to inspect and photograph the residential crime scene violates Minn. R. Crim. P. 9.01, Minnesota caselaw, and his constitutional rights to due process and effective assistance of counsel. We affirm.
FACTS
Appellant Blair Lee lived in Minneapolis with his wife, their three children, and wife's son from a prior relationship. The couple had a "tumultuous" relationship, which eventually became violent. In March 2015, Lee head-butted wife and broke her nose, resulting in a criminal conviction. After that, the violence became "progressively worse in intensity."
The record suggests, and public records confirm, that Lee pleaded guilty to misdemeanor domestic assault.
On the evening of Friday, June 24, 2016, after the children were asleep and as wife was falling asleep next to the youngest child, Lee came into the bedroom and repeatedly poured water on wife to get her out of bed. Wife came out to the living room and saw Lee refilling the water container in the kitchen, only to pour it out and come toward her and grab her. Wife struggled, but Lee, who is eight inches taller and approximately 80 pounds heavier than wife, "got [her] to the ground" with her arms pinned under her. He bit her on the breasts three or four times through her shirt. Then he pulled her shorts down and forcibly, "like a punching," inserted his fingers into her anus between five and eight times, alternating fingers and saying, "[Y]eah, yeah," as he did so. It was painful, and wife tried to scream out for help, hoping the windows were open and the landlord next door would hear. Lee covered her mouth with his hand, then grabbed a towel, balled it up, and pushed it down over her mouth and nose. He held it in place, saying, "Die, die." Wife could not breathe and thought she was going to die. But after approximately 20 seconds, Lee released her.
Wife weighed 145 to 150 pounds and is five feet, four inches tall. Lee weighed 215 to 230 pounds and is six feet tall.
Lee and wife both stood up. As they faced each other, Lee punched wife repeatedly in the chest and ribs and kicked her in the leg. Wife was knocked to the ground but got back up, and Lee resumed punching her. At some point, wife's phone fell out of her pocket. Lee picked it up, ran out of the house, and drove away in his truck. Wife returned to her bed and dozed off.
Wife later awoke to Lee shining a light in her face. She asked him where her phone was, and he replied, "It's not on me." She assumed it was in the truck and went to look for it. Lee followed her outside and said, "[Y]ou know, I can kill you out here, and no one would know." Wife ran away. When she heard Lee leave shortly thereafter, she returned to the residence. As she began to soothe her youngest child, she heard Lee return, and she ran into the kitchen to hide. Lee entered the kitchen, saw wife, and told her to take care of the child. She walked past him, and he followed, saying, "[T]he reason why you ran is because you knew I was going to kill you. I was going to kill you, and put you in one of those dumpsters back there. It would have been a clean kill." Lee then went out to the living room and eventually fell asleep on the couch.
The following morning, wife took the children to the library, as they typically did on Saturdays. She used the library phone to call her mother, who picked them up. Wife found an emergency shelter for herself and the children.
The following Monday morning, wife reported the assault to Minneapolis police. The officer who took wife's initial statement referred her for a sexual-assault examination. Wife went to the hospital that afternoon, where she described the incident to a sexual-assault nurse and submitted to a comprehensive physical examination. The sexual-assault nurse documented wife's injuries: jaw and neck pain; a swollen lip; a triangular abrasion on her back; a ten-centimeter bruise on her right upper chest; a three-centimeter bruise at the base of her neck; ten smaller bruises across her arms and legs; a U-shaped "pattern injury" on her right shoulder; a broken middle finger; a one-centimeter red line between her vagina and her anus, consistent with but not definitively caused by a fingernail; and a hematoma on the anal wall, consistent with either chronic constipation, though wife indicated no history of constipation, or the forceful digital penetration wife reported. The nurse also collected clothing wife had been wearing since the assault.
On July 7, a police investigator interviewed wife and had the forensic lab photograph her injuries. Scientific testing on the chest area of wife's shirt revealed two areas of amylase, which is indicative of saliva, as well as DNA evidence to which Lee and wife could be contributors but 99.97% of the population could not.
The state charged Lee with first-degree criminal sexual conduct and domestic assault by strangulation. At Lee's initial appearance, the district court issued a domestic-abuse no-contact order (DANCO), requiring Lee to stay away from wife and their residence. With the DANCO in place, wife returned to the residence with the children.
On September 16, Lee moved the district court for an order granting defense counsel access to the residence. Lee cited Minn. R. Crim. P. 9.01 and State v. Lee, 461 N.W.2d 245 (Minn. App. 1990), in which this court held that the district court abused its discretion by denying the murder defendant access to the crime scene—the victims' residence—after the state completed its investigation and returned the residence to the victims' family. After a hearing, the district court denied Lee's motion largely because the residence was not and never had been in the state's possession or control.
Lee petitioned this court for a writ of prohibition, arguing that Minn. R. Crim. P. 9.01 affords a defendant the right to inspect and photograph locations relevant to his case, and that language in the rule limiting access to material in the prosecutor's possession or control does not, under this court's 1990 Lee decision, apply to locations. A special-term panel of this court concluded that the prior Lee decision is controlling authority and the district court's order denying Lee's motion to inspect the residence is "contrary to Lee and is therefore unauthorized by law." State v. Lee, No. A16-1597 (Minn. App. Nov. 1, 2016) (order). But this court denied the petition because Lee failed to demonstrate that the ordinary remedy of an appeal from judgment was inadequate.
Lee immediately renewed his motion in district court, relying on rule 9.01, Lee, and this court's order denying prohibition. After a hearing, the district court acknowledged this court's order but again denied Lee's motion, distinguishing Lee and weighing public policy and constitutional considerations regarding a victim's right to privacy in her own home.
At Lee's jury trial, wife testified in detail about the events of the evening in question, her report to police and sexual-assault examination, and the violent history of her relationship with Lee. The state also presented the testimony of those to whom wife reported the assault—the officer at the police station on June 27, the sexual-assault nurse, and the investigator who interviewed wife on July 7—as well as numerous photographs of wife's injuries and the scientific evidence linking Lee to probable saliva on the shirt wife was wearing at the time of the assault.
Wife testified to numerous prior instances of domestic assault and harassment: Lee head-butted her and broke her nose in 2015 (which he admitted at trial); he subsequently acquired a recording of wife's report of that incident and would play it back to her, laughing and telling her that "there's more where that came from"; he locked her out of the house and periodically took her phone, so she began keeping her phone on her and pinning a house key to her bra; at one point, he hit her with a child gate, breaking her hand; he told wife he would tie her up in the basement, use chloroform on her, and rape her; he told wife that if he ever got in trouble for his actions, he would convince people that wife had been molesting the children or physically abusing them; and he encouraged the children to call her derogatory names or think of her routine care of them (e.g., combing hair, checking injuries) as abusive or inappropriate.
Lee elected to testify. He agreed that he and wife engaged in a late-night physical altercation but denied assaulting or threatening her. Rather, he stated that wife was the aggressor, and he was unable to defend himself due to pain and limited mobility from a herniated disk. He testified that wife chest-bumped him, kicked him in the back, and pinned him down while she attempted to claw his face and grabbed his genitals. Lee stated that wife's bruises must have come from his efforts to block her blows and the times she banged her back and knee into a hutch in the living room while attacking him. Her broken finger he attributed to the bathroom door banging shut on it as he sought to hide from her. And he related wife's anal hematoma to a history of constipation.
Lee was in a wheelchair at the time of trial and stated that in June 2016 he alternated between using a cane and a walker to aid his movement. Wife disputed that he used a walker or regularly used a cane. The state presented a photograph Lee sent to wife two days after the assault, which shows him standing upright with no visible aid.
The jury found Lee guilty on both counts, and the district court sentenced Lee to 360 months' imprisonment. Lee appeals.
DECISION
During discovery, a prosecutor must allow the defendant access to "all matters within the prosecutor's possession or control that relate to the case," and disclose certain material or information, including the location of buildings and places related to the case. Minn. R. Crim. P. 9.01, subd. 1. And a prosecutor must allow the defendant "to inspect and photograph any object, place, or building required to be disclosed under this rule." Id., subd. 1a. A district court may issue orders to enforce these discovery obligations. Minn. R. Crim. P. 9.03, subd. 8.
We review a district court's discovery order for abuse of discretion. State v. Underdahl, 767 N.W.2d 677, 684 (Minn. 2009). A district court abuses its discretion if it disregards applicable law. State v. Peter, 825 N.W.2d 126, 129 (Minn. App. 2012), review denied (Minn. Feb. 27, 2013). We will reverse a conviction only if the appellant demonstrates both an abuse of discretion and resulting prejudice. State v. Jackson, 770 N.W.2d 470, 479 (Minn. 2009).
Our analysis begins with Lee's first challenge to the district court's denial of his motion for access to the residence—the prohibition appeal. A special-term panel of this court determined that denial of Lee's motion to inspect the residence was "contrary to Lee and is, therefore, unauthorized by law." But the panel concluded Lee was not entitled to the extraordinary appellate relief because he had a posttrial appellate remedy. Denial of prohibition does not alter the special-term panel's determination that Lee was entitled to have counsel inspect the residence. That determination was not mere dicta but "the product of thorough research, careful consideration, and deliberate decision-making," addressing part of the actual dispute before this court. See State v. Soukop, 656 N.W.2d 424, 430 (Minn. App. 2003) (defining dicta). And while not binding on district courts in other cases, it plainly established the law of this case—that controlling law requires defense counsel to have reasonable access to the residence. See State v. Miller, 849 N.W.2d 94, 98 (Minn. App. 2014) (stating that law-of-the-case doctrine "provides that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case" (quotation omitted)). The district court abused its discretion by disregarding that determination.
The decision of the special-term panel established the law of this case. We observe that in another case, given different circumstances and legal arguments, another panel may have analyzed the issue differently.
We therefore turn our focus to the issue of prejudice. Lee bears the burden of demonstrating that the district court's error prejudiced his defense. Jackson, 770 N.W.2d at 479. To establish prejudice under Minn. R. Crim. P. 9.01, an appellant must show a reasonable probability that, had he been afforded access to the evidence in question, the outcome of the trial would have been different. State v. Radke, 821 N.W.2d 316, 326 (Minn. 2012).
Lee first argues that he suffered prejudice because defense counsel was "unable to show the jury where the furniture was in the living room, where this room was in relation to the bedrooms, where the windows were in this room and their relationship to the houses next door." He contends defense counsel's inability to make this showing prevented him from effectively challenging the plausibility of wife's testimony about the events that occurred in the living room. This argument is unavailing for two reasons.
First, the record demonstrates that the state provided the jury most of the information that Lee complains was lacking. The prosecutor had wife draw and explain a diagram of the residence depicting all rooms and doorways. During cross-examination by the prosecutor, Lee confirmed that wife's diagram "very roughly shows an accurate layout" of the residence. And the prosecutor invited Lee to liberally modify and add furniture to the diagram, drawing upon his own knowledge of what had been their shared residence. Defense counsel had ample opportunity to cross-examine wife about the diagram (but did not) and to challenge the plausibility and consistency of her description of the assault. Defense counsel also highlighted for the jury that any evidentiary shortfalls regarding the residence are attributable to wife, noting at least six times during her cross-examination that she had neither permitted defense counsel to inspect and photograph the residence nor provided any photographs of the residence.
Second, the layout of the living room, and the residence generally and its proximity to neighboring residences, had no more than minimal bearing on the relative credibility of wife's testimony and Lee's testimony. The two presented the jury dramatically different versions of the incident, but both testified that the physical altercation occurred principally in the living room. The key elements of their respective testimony did not turn on a precise location in the residence but on the relative size and physical ability of Lee and wife, and their relative positioning during the altercation. Because the differences between wife's account and Lee's account had little to do with the layout of the house or the location of furniture, additional evidence on those matters was of little evidentiary value.
In sum, the lack of access to the residence did not prevent defense counsel from thoroughly challenging wife's credibility. See Jackson, 770 N.W.2d at 480 (noting that defendant was able to attack witness's credibility even without erroneously undisclosed evidence, indicating lack of prejudice).
Lee next contends that he suffered prejudice because defense counsel was unable to inspect the scene for favorable evidence. We are not persuaded. Lee asserts for the first time in this appeal that there are specific items of evidence he would have photographed in support of his defense—the hutch in the living room, his walker, and any Metamucil that may have been in the home. But a photograph of the hutch, on which Lee claims wife injured her back while attacking him, would have had no bearing on the majority of wife's numerous physical injuries. It also would have done little to counter the sexual-assault nurse's testimony that the injury to wife's back was actually an abrasion like a carpet burn. Likewise, evidence that there was a walker in the residence would have corroborated Lee's testimony that he suffered a back injury and experienced some mobility limitations, but such corroboration would have afforded him little benefit as it was undisputed that he had sustained a back injury, continued to take medication, and had previously used a cane, though was not wheelchair-bound in June 2016, as he was at trial. And evidence that there was Metamucil in the home, while possibly consistent with Lee's claim that wife suffered from constipation, was also consistent with other circumstances, such as use by other family members, availing him little.
Moreover, any benefit to Lee from accessing his former residence was overcome by the state's extremely strong evidence against him. Id. at 481 (stating that state's "strong" evidence against the defendant weighed against determination of prejudice). Wife presented extensive, detailed, consistent testimony about the assault, which was consistent with all three statements she gave to law enforcement and the sexual-assault nurse in the days and weeks immediately following the assault. Her description of the events also was corroborated in numerous ways. She exhibited numerous and substantial physical injuries consistent with her description of the assault; Lee undisputedly had no visible injuries. Scientific test results from her shirt specifically corroborated her description of the assault. And the jury was presented with compelling context for weighing the credibility of Lee's and wife's testimonies—Lee's extensive history of violence and harassment toward wife.
On this record, we conclude there is no reasonable probability that the outcome of the trial would have been different if the district court had granted Lee's motion for access to the residence. Accordingly, Lee is not entitled to relief based on the district court's denial of the motion.
Affirmed. RODENBERG, Judge (concurring specially)
I concur, but I would affirm the district court by reaching the question of whether our decision in State v. Lee, 461 N.W.2d 245 (Minn. App. 1990), is applicable to the factual situation presented here. And, to the extent that Lee could be applied here, I would expressly limit or overrule it.
As a preliminary matter, I am unconvinced that the law-of-the-case doctrine precludes reexamination of our special-term order of November 1, 2016. State v. Lee, No. A16-1597 (Minn. App. Nov. 1, 2016) (order). While we ordinarily do not revisit earlier legal determinations made in a case in a subsequent appeal, the law-of-the-case doctrine is "a rule of practice, not of substantive law." Braunwarth v. Control Data Corp., 483 N.W.2d 476, 476 n.1 (Minn. 1992). The doctrine only "expresses the practice of courts generally to refuse to reopen what has been decided." Messenger v. Anderson, 225 U.S. 436, 444, 32 S. Ct. 739, 740 (1912). It is a flexible doctrine, United States v. Todd, 920 F.2d 399, 403 n. 1 (6th Cir. 1990), and does not provide a substantive "limit to [a court's] power," Messenger, 225 U.S. at 444, 32 S. Ct. at 740. Accordingly, the doctrine does not limit a court's "power to revisit prior decisions of its own." Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817, 108 S. Ct. 2166, 2178 (1988).
These principles seem especially noteworthy in the context of our special-term order in appellant's earlier appeal, which denied appellant's petition for a writ of prohibition not because of our application of Lee to the case, but because appellant failed to demonstrate entitlement to the extraordinary relief he sought. Lee, No. A16-1597 at 4 (Minn. App. Nov. 1, 2016) (order). To be sure, the special-term order stated that the district court's initial denial of appellant's motion to enter the victim's home to inspect it and its contents was "contrary to this court's holding in Lee." Id. at 3. But that statement did not form the basis of the disposition of the case. In order to obtain the extraordinary relief he sought, appellant was required to show both that the district court's order was unauthorized by law and that the district court's unauthorized order would "result in injury for which there is no adequate remedy." State v. Turner, 550 N.W.2d 622, 625 (Minn. 1996) (quotation omitted). We denied the petition for a writ of prohibition because appellant failed to demonstrate that the "ordinary remedy of an appeal from judgment" would not provide him an adequate remedy. Lee, No. A16-1597 at 4 (Minn. App. Nov. 1, 2016) (order).
In other words, the comments concerning Lee in the special-term order can be fairly categorized as "mere dicta." See State v. Soukup, 656 N.W.2d 424, 430 (Minn. App. 2003) (defining dicta as "a statement that reaches beyond the actual dispute before the court"), review denied (Minn. Apr. 29, 2003). Our discussion concerning the application of Lee to the case was not necessary to our ultimate decision denying relief. In fact, and recognizing as much, our special-term order expressly noted that appellant "can challenge a discovery ruling in an appeal from final judgment of conviction." Lee, No. A16-1597 at 4 (Minn. App. Nov. 1, 2016) (order). Given that this court denied appellant's earlier petition because he failed to demonstrate that a later direct-appeal challenge to the district court's discovery order would not provide appellant an adequate remedy, I fail to see how we should now apply the law-of-the-case doctrine to the very direct-appeal challenge that we earlier stated could provide appellant with an adequate remedy.
Therefore, I would reach the merits of the question concerning the district court's denial of appellant's discovery request.
Appellant argues now that Lee requires the district court in this circumstance to permit appellant's lawyers or investigators to enter the victim's house to see for themselves the layout of the house, where furniture is located, the distances between rooms, and even the contents of the victim's medicine cabinet. For two reasons, I would hold that appellant is not entitled to that relief. First, the situation here is unlike that which this court faced in the 1990 Lee case. Second, our decision in Lee should be reexamined and either overruled or limited in light of current understandings of the dynamics of domestic violence.
To the first point, Lee arose in the context of charges of premeditated murder and attempted murder, where police and prosecutors "sealed the home [where the crime occurred] as a crime scene, took photographs and videotapes and sketched a layout of the house," eventually returning control of the house to "the victim's family, who redecorated it" some 47 days after the crime. 461 N.W.2d at 246. The defendant in Lee was indicted two days before law enforcement released the house. Id. It was in this context that the defendant moved to inspect the house. Id. We held that "possession or control" under the then-current version of Minn. R. Crim. P. 9.01 "should not be so narrowly construed as to limit defense access to premises which the prosecution has processed for evidence of crime and to which it may arrange similar access for the defense." Id. at 247. We determined that the district court's denial of the defense request was an abuse of discretion, and remanded for an "appropriate order restricting the time, place and manner of discovery." Id.
This case is nothing like that one. Here, there is nothing in the record to indicate that police ever took control of the victim's house after the assault. There is nothing in the record to suggest that any "redecoration" or other substantial modification of the house was undertaken or even contemplated after the assault. Moreover, and significantly in my view, the house sought to be inspected is one in which appellant himself had been living until this assault. I do not read Lee as affording any defendant, charged with any crime, in any home, under any circumstances, an unqualified right to inspect the crime scene, subject only to time, place, and manner limitations. Here, and unlike in Lee, there was no "sealing" or processing of the crime scene by police. At no time did the state or law enforcement have control over the house. Although the last names of the defendants in each case are the same, the cases do not have much else in common. I believe that Lee is distinguishable and does not control here, despite the dicta to the contrary in our earlier special-term order.
To the extent that the admittedly broad language in Lee were construed to cover the current situation, I would revisit Lee. I agree with the district court's well-reasoned order denying appellant's motion after our denial of his petition for prohibition.
First, the victim is not a party to this case. The district court lacks personal jurisdiction over one who is not a party to the proceeding before it. In re Marriage of Sammons, 642 N.W.2d 450, 457 (Minn. App. 2002). Regardless of appellant's arguments in favor of inspection, the district court lacks jurisdiction to order a nonparty victim to permit the defense to enter and inspect her home. As the district court correctly noted, at most it could order the state to allow the defense entry to the home. Such an order would not be binding on the victim, however, and would not abrogate the victim's fundamental property right to exclude unwanted persons from her home. See Edina Cmty. Lutheran Church v. State, 745 N.W.2d 194, 207 (Minn. App. 2008) ("[O]ne of the fundamental elements of property rights is the right to exclude others."), review denied (Minn. Apr. 29, 2008). The victim has a legitimate right to privacy within her own home that the district court should not invade for what amounts to a mere "fishing expedition." Cf. State v. Touri, 101 Minn. 370, 373, 112 N.W. 422, 424 (1907) (recognizing that the home "is sacred for the protection of [one's] family").
Appellant resided in the home until he was arrested. In addition to setting release conditions that included a requirement that appellant "stay away from a three-block radius" of the victim's residence, the district court on July 11, 2016, in a separate Domestic Abuse No Contact Order (DANCO), ordered that appellant "have no contact [with the victim] directly, indirectly or through others, in person, by telephone, in writing, electronically or by any other means." The DANCO prohibited appellant from going to the victim's home. The release conditions and DANCO provided the victim special protection from appellant directly or indirectly invading her private space.
Rule 9 relates to the prosecution's obligations concerning discovery. It requires that the prosecutor "allow access at any reasonable time to all matters within the prosecutor's possession or control that relate to the case" and disclosure of photographs and "the location of buildings and places" related to the case. Minn. R. Crim. P. 9.01, subd. 1(3)(b), (e). The scope of the prosecutor's obligations under rule 9 extends only to "material and information in the possession or control of members of the prosecution staff," those who participated in investigating the case, or those who report to the prosecutor's office. Minn. R. Crim. P. 9.01, subd. 1a(1). The prosecutor must also allow a defendant "to inspect and reproduce any information . . . [and] to inspect and photograph any object, place, or building required to be disclosed under" that rule. Minn. R. Crim. P. 9.01, subd. 1a(2).
In Lee, as noted, this court stated that rule 9 "should not be so narrowly construed as to limit defense access to premises which the prosecution has processed for evidence of crime and to which it may arrange similar access for the defense." 641 N.W.2d at 247. Here, and unlike the situation in the earlier Lee case, the prosecution did not process the home for evidence nor could it arrange access for the defendant or his attorneys. The prosecution never had, and certainly did not have at the time of the motion to inspect, control of the premises sought to be entered and inspected. Moreover, neither the police nor the prosecution ever went to the home, nor did they ever inspect, photograph, or enter the home that appellant sought to inspect. The victim is not required to open her home to the defense under rule 9, and this rule cannot be read as obligating the prosecutor or the district court to force a nonparty victim to permit entry to her home.
Even in cases where the prosecution itself wishes to enter a home over the objections of its residents, probable cause must be shown to a neutral and detached magistrate, and a search warrant authorizing entry secured from the magistrate. See Kentucky v. King, 563 U.S. 452, 459, 131 S. Ct. 1849, 1856 (2011) (providing that a warrant, supported by probable cause, must "generally be secured" before law enforcement may search a private residence); Welsh v. Wisconsin, 466 U.S. 740, 749, 104 S. Ct. 2091, 2097 (1984) ("[T]he physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed. And a principal protection against unnecessary intrusions into private dwellings is the warrant requirement imposed by the Fourth Amendment on agents of the government who seek to enter the home for purposes of a search or arrest." (internal quotation omitted)); Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367, 368-69 (1948) (emphasizing that, barring exceptional circumstances, the Fourth Amendment requires a "neutral and detached magistrate" to decide whether to issue a search warrant for law enforcement to enter a private home).
To the extent that Lee holds otherwise, I would overrule it. Decisions of other states are persuasive—much more so, in my judgment, than our Lee opinion. In People in Interest of E.G., the Colorado Supreme Court considered a defendant's request to inspect the basement of a home in which the state alleged he sexually assaulted a child. 368 P.3d 946, 947 (Colo. 2016). There, as here, neither the prosecutor nor any government agent had access to the home. Id. at 950. The Colorado Supreme Court held that the courts did not have the authority to order a third party to allow the defendant access to the home under the state's discovery rules, the Compulsory Process Clause of the Sixth Amendment, the state's subpoena power, the Due Process Clause, or the Confrontation Clause. Id. at 950-54. In so holding, the court recognized that "[t]he clearest right is to be free from unreasonable governmental intrusion into one's home" and that "[a] court order forcing an individual to open her private home to strangers is certainly government intrusion." Id. at 949 (quotation omitted). Because no source of authority allowed the court to order a third party to afford the defendant access to a location over which the government had no control, the Colorado Supreme Court affirmed the trial court's denial of the defense's motion. Id. at 954. E. G. is factually analogous to this case. And the Minnesota district courts likewise lack the authority to compel a nonparty victim to open her doors to her abuser and his counsel.
Cases in which courts of other states have allowed the defendant such access are factually distinct from this case. In all of those cases, the government had some occasion to enter, inspect, or photograph the crime scene while the defense was prevented from doing so. See, e.g., State v. Tetu, 386 P.3d 844, 855 (Haw. 2016) (concluding that the defendant was wrongly denied access to the private property where the crime occurred when the prosecutor had access); State v. Gonsalves, 661 So.2d 1281, 1281-82 (Fla. Dist. Ct. App. 1995) (affirming the trial court's order granting the defendant access to a private home when the victim had allowed the police to photograph her home); Henshaw v. Commonwealth, 451 S.E.2d 415, 420 (Va. Ct. App. 1994) (holding that the trial court erred in denying the defendant access to a private home when the prosecutor had photographs showing a limited view of the crime scene); State v. Brown, 293 S.E.2d 569, 578 (N.C. 1982) (holding that the defendant was entitled to inspect the crime scene, a private apartment, when the police preserved the scene for several months between the crime and trial). Unlike those cases, no state agents were permitted access to the victim's home here.
The situation here is one of extreme domestic violence, and appellant had lived in the very quarters he sought to enter. Without reentering the home, he was able to describe the relative location of things and confirm the accuracy of a map or diagram of the house. The request to reenter and inspect the home seems to me to have been an attempt at intimidation or, at least, a further invasion of the security of the domestic-violence victim. As noted in the state's brief, the justice system's failure to protect victim privacy diminishes victims' faith in the justice system and reduces the likelihood of future reporting. Our justice system has a special obligation to victims in light of the reported frequency of victim intimidation in domestic-violence and sexual-abuse cases. See Teresa M. Garvey, Witness Intimidation: Meeting the Challenge, Ó”QUITAS: THE PROSECUTORS' RESOURCE ON VIOLENCE AGAINST WOMEN 3 (2013), http://www.aequitasresource.org/Witness-Intimidation-Meeting-the-Challenge.pdf (last visited Feb. 20, 2018) ("Victims of domestic violence are routinely threatened and manipulated by their abusers to drop charges or to refuse to cooperate with law enforcement."). This court noted in Lee that "[a] brief inspection of the residence by defense investigators, regulated as to time, place and manner . . . could be less intrusive upon the victims' family than a defense effort to obtain equivalent information by compulsory process." 461 N.W.2d at 247. I disagree. Instead, I agree with the district court's thoughtful sentiment that "it is difficult to imagine a more intrusive process than ordering an alleged [domestic-violence] victim to permit strangers to enter, inspect and photograph the victim's home, including bedrooms and other private spaces."
The district court stated that appellant had "apparently . . . drawn a diagram of the residence." At points in the record, it appears that appellant may have reviewed and added to a diagram the victim drew. In any event, there was no need for appellant to re-enter the house or to see pictures or measurements taken by others. He lived there until this assault. --------
Therefore, I concur that appellant's conviction should be affirmed, but would favor overruling, or at least limiting, our decision in State v. Lee, 461 N.W.2d 245 (Minn. App. 1990). Under the circumstances present here, I see no good reason—nor any legitimate basis—for a district court to require a domestic-abuse victim to open her home to unwanted persons.