Ex parte Fitch
Decision Date | 12 November 1997 |
Docket Number | CR-96-2413 |
Citation | 715 So.2d 873 |
Parties | Ex parte Jerry T. FITCH, Sr., et al. (In re STATE of Alabama v. Jerry T. FITCH, Sr.; Jerry T. Fitch, Jr.; and Harry G. Edwards). |
Court | Alabama Court of Criminal Appeals |
Bill Pryor, atty. gen., and Hense R. Ellis II, asst. atty. gen., for respondent.
The petitioners, Jerry T. Fitch, Sr., Jerry T. Fitch, Jr., and Harry G. Edwards, filed this petition for a writ of mandamus directing Judge James Moore, circuit judge for the twenty-fourth judicial circuit, to quash the subpoenas duces tecum issued to them by the district attorney's office for Pickens County. 1
The petitioners were indicted for violating the competitive bid law, using their offices for personal financial gain, and theft of property. Petitioner Fitch, Sr., was a county commissioner for Pickens County and petitioner Edwards was employed by the County as a road foreman. The district attorney for Pickens County issued subpoenas duces tecum for the three petitioners, directing them to deliver their personal bank records to the district attorney's office. The petitioners moved to quash the subpoenas. After a hearing, Fitch, Sr., and Edward's motions were denied and the court directed the petitioners to produce their bank records within 14 days. No ruling was made on Fitch, Jr.'s motion. The trial is scheduled to begin on November 17, 1997. This Court granted a stay on the production of the bank records until we issued a ruling on this mandamus. 2
Initially, we must determine whether mandamus is the appropriate method by which to review Judge Moore's denial of the motions to quash the subpoenas. As the Alabama Supreme Court stated in Ex parte Thackston, 275 Ala. 424, 426, 155 So.2d 526, 528 (1963):
(Emphasis added.)
Judge Moore, in his order denying the motions, stated:
(Emphasis in original.)
The petitioners initially contend that the trial court abused its discretion in not quashing the subpoenas because there is no statute or rule in Alabama that allows a district attorney to issue a subpoena duces tecum to a defendant in a criminal case.
Brown v. State, 686 So.2d 385, 405-06 (Ala.Cr.App.1995), aff'd, 686 So.2d 409 (Ala.1996).
Rule 17.3, Ala.R.Crim.P., governs the issuance of subpoenas duces tecum. 3 It is clear from the wording of Rule 17.3 that that rule relates to the issuance of a subpoenas duces tecum to nonparties. Rule 17.3(b) states in part: "Upon their production, the court may permit the parties and their attorneys to inspect them, or portions thereof." (Emphasis added.) Cf. Thackston, 275 Ala. at 427, 155 So.2d at 529, Title 7, § 426, Code of Alabama 1940, which dealt with the issuance of subpoenas duces tecum for the production of documents, and holding that it applied to "persons not parties to the action."
The state contends in its answer that the subpoenas are duly authorized by Rules 17.1 and 17.3, Ala.R.Crim.P., because they do not involve "parties." They contend that each subpoena clearly shows that it was issued for a codefendant's case. However, the petitioners assert, and exhibits support their assertion, that the cases involving the three petitioners have been consolidated for purposes of trial. Clearly, each is now a party to the criminal action. The state's assertion on this ground has no merit.
The district attorney had no authority to issue the subpoenas in this case. It is clear from the subpoenas, which ordered the petitioners to "deliver the following records to the District Attorney's Office," that the subpoenas were issued strictly for purposes of obtaining the documents. The law does not sanction such action. Brown, 686 So.2d at 406. In fact, the trial court stated in its order denying the motion to quash that "the district attorney has obtained copies of the records from the bank and requests the originals from defendants as a portion of the bank records are illegible." As this Court stated in Sale v. State, 570 So.2d 862, 863 (Ala.Cr.App.1990):
The trial court erred in not quashing the subpoenas on this ground.
The petitioners further argue that even if the subpoenas were lawfully issued they should still be quashed because their Fifth Amendment rights are being violated. The Fifth Amendment to the United States Constitution states:
"No person shall be held to answer for a capital, or otherwise infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
(Emphasis added.) This same protection is afforded by the Alabama Constitution. Art. I, § 6, Alabama Constitution of 1901.
The United States Supreme Court in 1886 first articulated the significance of compelling an accused to produce evidence that would ultimately be used against him. In Boyd v. United States, 116 U.S. 616, 630-32, 6 S.Ct. 524, 532-33, 29 L.Ed. 746 (1886), the United States Supreme Court stated:
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...Initially, we note that mandamus may be used to review a lower court's ruling on a motion to quash a subpoena. See Ex parte Fitch, 715 So.2d 873 (Ala. Crim.App.1997). Lankford argues that he has a clear legal right to subpoena witnesses for his preliminary hearing and that the district cour......
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