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Nimety v. Commonwealth

Court of Appeals of Virginia

June 28, 2016

LEWIS DANIEL NIMETY
v.
COMMONWEALTH OF VIRGINIA

          FROM THE CIRCUIT COURT OF LEE COUNTY Tammy S. McElyea, Judge

          Charles L. Bledsoe (Patti P. Church; Gregory D. Edwards, on brief), for appellant.

          Victoria Johnson, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Judges Petty, Chafin and Decker Argued at Salem, Virginia

          OPINION

          MARLA GRAFF DECKER, JUDGE.

         Lewis Daniel Nimety appeals his 104 convictions for possession of child pornography in violation of Code § 18.2-374.1:1(A). On appeal, he contends that the trial court erred in denying his discovery motions for copies of the images upon which the Commonwealth intended to rely at trial. We hold that the trial court's rulings permitting the appellant's attorneys to have liberal access to the images in the office of the Commonwealth's Attorney while prohibiting them from obtaining copies of those images was not an abuse of discretion. Therefore, we affirm the appellant's convictions.

         I. BACKGROUND

         The Virginia Department of State Police investigated the appellant after receiving a complaint from the adult mother of two young girls for whom the appellant sometimes provided child care. As a result of that complaint, a warrant was obtained to search the appellant's home for child pornography. In the course of the search, agents seized a laptop computer, a separate computer hard drive, and various other digital storage devices. Forensic investigation of those devices led to the discovery of over 75, 000 digital images that "appeared [to depict] children under the age of 18 in sexual situations or posing in a provocative manner." The appellant was indicted and ultimately tried on 104 counts of possessing child pornography.

         Based on the number of charges, three attorneys were appointed to represent the appellant. Prior to trial, the appellant filed a motion seeking copies of the images that the prosecutor intended to introduce into evidence at trial. His attorneys argued that "[t]here [may be] . . . some additional motions that we need to file" and "just making [the] photographs available during [the prosecutor's] office hours is insufficient." They noted that the trial date was about six weeks away and that this was a relatively short time in which to prepare the large number of charges for trial. Counsel further pointed to an exception in the statute proscribing possession of child pornography, which permits the possession and use of such images for a judicial purpose by an attorney in the course of his professional duties. The appellant's attorneys argued that they were entitled to copies of the images subject to a protective order preventing further dissemination. The prosecutor argued against providing copies but assured the court that he would provide liberal access to counsel "at their convenience throughout the course of their trial preparation."

         The trial court ruled that, in this case, the appellant's attorneys "ha[d] an absolute . . . right [and] obligation to . . . inspect" the photographs but that they did not have a right to receive copies. The court instructed the Commonwealth to make the images available to the appellant's attorneys at their convenience, adding, "and that [may be] after hours and . . . on [the] weekend."

         About a week prior to trial, the appellant filed a motion for reconsideration of the discovery ruling. The appellant's attorneys indicated that they had been permitted to view only "contact sheets" on which each photo "was about the size of a postage stamp." They once again sought copies of the images to facilitate trial preparation. The court ruled that counsel had a right to inspect copies large enough to enable them to "actually see" each photograph's contents. It also concluded that arrangements would have to be made so that counsel were able to view the images in whatever digital or hard copy form the Commonwealth was planning to introduce at trial.[1] The court noted that copying the photographs increased the possibility of improper dissemination. Additionally, it indicated that if counsel concluded that "good grounds" existed to have an expert view the photographs, the court would conduct a hearing on that request and enter an appropriate order. Finally, the court granted a continuance to provide the appellant's counsel with more time to view the photos. Trial was rescheduled for January 5, 2015, giving counsel over three additional months to prepare.

         Pursuant to a later discovery motion filed by the Commonwealth, as well as the late production of a report prepared by an expert witness for the Commonwealth, the parties again discussed the photographs on the morning scheduled for trial. The court granted a recess to allow the appellant's attorneys to explore the possibility of requesting the appointment of an expert for the appellant. The attorneys concluded that the appellant did not need an expert, but they requested and received a twenty-four-hour continuance. During the hearing, two of the appellant's three attorneys stated that they had seen the photos twice and "on several occasions." Additionally, the record establishes that all three attorneys viewed the photos two more times, along with the appellant, during the two days before trial.

          Following a jury trial, the appellant was convicted of 104 counts of possessing child pornography. He was sentenced to five years for each ...


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