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,
GRAFF DECKER, JUDGE.
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
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.
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."
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]
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. 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.
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 ...