Davenport v. the State.

• Citation: 289 Ga. 399,711 S.E.2d 699
• Decision Date: 20 June 2011
• Docket Number: No. S10G1355.,S10G1355.
• Parties: DAVENPORTv.The STATE.
• Court: Supreme Court of Georgia

289 Ga. 399

711 S.E.2d 699

11 FCDR 1816

DAVENPORT

v.The STATE.

No. S10G1355.

Supreme Court of Georgia.

June 20, 2011.

Head, Thomas, Webb & Willis, William C. Head, Atlanta, for appellant.Barry Edward Morgan, Solicitor–General, Joseph W. Hudson, Assistant Solicitor–General, for appellee.Charles Callison Olson, Tasha Monique Mosley, amici curiae.BENHAM, Justice.

After the trial court denied appellant Emily Davenport's motion, filed under the Uniform Act to Secure the Attendance of Witnesses from Without the State, OCGA § 24–10–90 et seq. (“the Uniform Act”), to obtain evidence purportedly possessed by a specified person in Kentucky, she was convicted in a bench trial of driving under the influence of alcohol per se based on evidence from the Intoxilyzer 5000 that her blood alcohol content was 0.156 grams, over the legal limit of 0.08 grams. OCGA § 40–6–391(a)(5). The evidence Davenport unsuccessfully sought was the source code of the Intoxilyzer 5000, which is manufactured by the Kentucky corporation which employed the individual Davenport sought to have summoned to Georgia. On appeal, Davenport cited the trial court's refusal to issue an order requesting issuance of a summons to the Kentucky resident.¹ The Court of Appeals ruled that the trial court had not abused its discretion in declining to issue the order because Davenport had not carried her burden of showing that the out-of-state person was “a necessary and material witness to the case.” Davenport v. State, 303 Ga.App. 401, 402, 693 S.E.2d 510 (2010). We granted Davenport's petition for a writ of certiorari to the Court of Appeals, asking the parties whether the Court of Appeals had erred in finding that Davenport had failed to make a showing sufficient under the Uniform Act.

The Sixth Amendment to the U.S. Constitution ² and Article I, Sec. I, Par. XIV of the Georgia Constitution guarantee a Georgia criminal defendant the right to compulsory process for obtaining witnesses in his defense. “[C]riminal defendants have the right to the government's assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury evidence that might influence the determination of guilt.” Pennsylvania v. Ritchie, 480 U.S. 39, 56, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). A Georgia court has authority to compel the attendance at a Georgia criminal trial of persons anywhere within Georgia ( OCGA §§ 24–10–21, 17–7–191); however, process issued by Georgia courts does not have extraterritorial power. See Hughes v. State, 228 Ga. 593(3), 187 S.E.2d 135 (1972) (Georgia's constitutional provision to a criminal defendant of “compulsory process to obtain the testimony of his own witnesses ... is of no benefit when the witnesses reside beyond the jurisdiction of the courts of this State.”). See also Pennoyer v. Neff, 95 U.S. 714, 722, 24 L.Ed. 565 (1877), overruled in part by Shaffer v.Heitner, 433 U.S. 186, 212 n. 39, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977), which states “no State can exercise direct jurisdiction and authority over persons ... without its territory.”

The Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Proceedings, approved by the National Conference of Commissioners on Uniform State Laws in 1931 and amended in 1936, “is intended to provide a means for state courts to compel the attendance of out-of-state witnesses at criminal proceedings.” Availability under Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings of Subpoena Duces Tecum, 7 ALR 4th 836, § 1. Relying on the principles of comity in the absence of unilateral power to compel the appearance of a witness located out of state, the Uniform Act has been enacted by all 50 states. Studnicki and Apol, Witness Detention and Intimidation: The History and Future of Material Witness Law, 76 St. John's L.Rev. 483, 532 (2002); Wasserman, The Subpoena Power: Pennoyer's Last Vestige, 74 Minn. L.Rev. 37, 88 (1989).

Georgia's version of the Uniform Act, OCGA § 24–10–90 et seq., ³ is the statutory means by which a witness living in a state other than Georgia can be compelled to attend and testify at a criminal proceeding in Georgia ( OCGA § 24–10–94(a)), and a witness living in Georgia can be compelled to attend and testify at a criminal proceeding in another state. OCGA § 24–10–92. While the statute speaks only to securing the attendance of an out-of-state witness, the scope of the statute has been construed in Georgia and several other states to authorize issuance of a summons that requires the out-of-state witness to bring items or documents with the witness. Wollesen v. State of Ga., 242 Ga.App. 317, 529 S.E.2d 630 (2000) ( “[T]he power to order a witness to travel to a foreign state for the purpose of testifying [in a criminal proceeding] implicitly encompasses the power to order the witness to produce relevant documents.”). See French v. State, 288 Ga.App. 775, 655 S.E.2d 224 (2007); Wyman v. State, 125 Nev. 46, 217 P.3d 572 (2009); State v. Bastos, 985 So.2d 37 (Fla. 3rd Dist.Ct.App.2008); Ex parte Simmons, 668 So.2d 901 (Ala.Crim.App.1995); In the Matter of Rhode Island Grand Jury Subpoena, 414 Mass. 104, 605 N.E.2d 840 (1993); In the Matter of State of Calif., etc., Grand Jury Investigation, 298 Md. 243, 469 A.2d 452 (1983) later proceeding, 57 Md.App. 804, 471 A.2d 1141 (1989); In the Matter of State of Washington, 198 N.Y.S.2d 897, 10 A.D.2d 691 (1960); In the Matter of Saperstein, 30 N.J.Super. 373, 104 A.2d 842 (1954).

Because appellant Davenport, a defendant in a case to be tried in Georgia, sought the issuance of a certificate requesting the attendance in Georgia of an out-of-state witness and evidence purportedly in that witness's custody and control, this case falls under OCGA § 24–10–94(a). When faced with a motion by a litigant in a Georgia criminal proceeding for the attendance of a witness located outside Georgia, a Georgia trial court is required by OCGA § 24–10–94(a) to determine whether the person sought to be summoned to the Georgia trial “is a material witness in a prosecution pending in a court of record in [Georgia,]” and whether the state in which the out-of-state witness is located has laws “for commanding persons within its borders to attend and testify in criminal prosecutions ... in this state[,] ...” ⁴ If those criteria are satisfied, the Georgia trial judge “may issue a certificate under seal” that is then presented to a judge of a court of record in the out-of-state county in which the witness is found. Id. Upon presentation of the certificate, the out-of-state judge holds a hearing at which the witness has been ordered to appear, to determine whether to issue a summons directing the witness to attend and testify in the Georgia criminal proceeding. OCGA § 24–10–92(a); Ky.Rev.Stat. Ann. § 421.240(1). The summons requiring the out-of-state witness to attend the Georgia criminal proceeding shall be issued by the out-of-state judge if that judge determines that the witness is material and necessary to the Georgia criminal proceeding, that compelling the witness to attend the Georgia proceeding and testify would not cause an undue hardship to the witness, and that Georgia will give the witness protection from arrest and the service of civil or criminal process. OCGA § 24–10–92(b); Ky.Rev.Stat. Ann. § 421.240(2).

The trial court in the case before us was presented with the question whether the out-of-state witness was “a material witness in a prosecution pending in a court of record in this state....” OCGA § 24–10–94(a). The Court of Appeals, citing Chesser v. State, 168 Ga.App. 195, 196, 308 S.E.2d 589 (1983) and Mafnas v. State, 149 Ga.App., 286(1), 254 S.E.2d 409 (1979), stated that Davenport was required to make a showing that the out-of-state witness was “a necessary and material witness to the case.” Davenport v. State, supra, 303 Ga.App. at 402, 693 S.E.2d 510. However, whether the witness is “necessary and material” is one of the determinations that must be made under OCGA § 24–10–92(b) by the judge in the county where the out-of-state witness is located. It is not the statutory scheme to be employed in this case in its current posture; rather, the Georgia trial court evaluates the request under OCGA § 24–10–94 and must determine only whether the out-of-state witness is a “material witness” in the Georgia criminal prosecution and whether it should issue the certificate requesting the out-of-state court to order the out-of-state witness to attend the criminal proceeding in Georgia.

Several appellate decisions, including the decisions in Chesser v. State and Mafnas cited by the Court of Appeals, state that a Georgia trial court faced with a request for issuance of a certificate “must set out and certify a showing of necessity and materiality for presentment to a judge [where the out-of-state] witness is found.” Mafnas v. State, supra, 149 Ga.App. at 287, 254 S.E.2d 409; Chesser v. State, supra, 168 Ga.App. at 196, 308 S.E.2d 589 (citing Mafnas ); Holowiak v. State, 308 Ga.App. 887, 709 S.E.2d 39 (2011) (cert. pending, S11C1190) (citing Davenport, the case currently before us); Davenport v. State, supra, 303 Ga.App. at 402 (citing Chesser and Mafnas ); Welch v. State, 207 Ga.App. 27(8), 427 S.E.2d 22 (1992) (physical precedent only, citing Mafnas and Chesser ); Baines v. State, 201 Ga.App. 354(5), 411 S.E.2d 95 (1991) (citing Mafnas ). But see Yeary v. State, 302 Ga.App. 535, 537, 690 S.E.2d 901 (2010) (“the judge in this state must make certain findings under the Uniform Act, including a finding that the out-of-state witness is a material witness in the prosecution pending in this state”), cert. granted, Yeary v. State, 289 Ga. 394, 711 S.E.2d 694 (2011); French v. State, 288 Ga.App. 775, 776, 655 S.E.2d 224 (2007) (the requesting party must present sufficient facts to enable the court in which the request is made and the out-of-state court in which...