EX PARTE STATE

• Decision Date: 06 October 1999
• Citation: 819 So.2d 72
• Court: Alabama Court of Criminal Appeals
• Parties: Ex parte State of Alabama. (In re STATE of Alabama v. Jacqueline Rhea REYNOLDS).

819 So.2d 72

Ex parte State of Alabama.

(In re STATE of Alabama v. Jacqueline Rhea REYNOLDS).

CR-98-2015.

Court of Criminal Appeals of Alabama.

October 6, 1999.

Opinion on Return December 3, 1999.

Bill Pryor, atty. gen., and R.L. Dill, asst. district atty., Huntsville, for petitioner.

Derek W. Simpson, Huntsville, for respondent.

LONG, Presiding Judge.

The State of Alabama filed this petition for a writ of mandamus requesting that we direct the Honorable Bruce E. Williams, circuit judge for the Twenty-third Judicial Circuit, to quash the subpoena duces tecum issued in this case to the Green Bottle Grill restaurant. In October 1998, Reynolds, a former bookkeeper for Green Bottle Grill, was indicted for theft of property in the first degree for stealing $11,198.12 from Green Bottle Grill by altering point of sale reports and deposit slips. After the State furnished Reynolds with the discovery materials requested pursuant to Rule 16.1, Ala.R.Crim.P., Reynolds served a subpoena duces tecum on Green Bottle Grill, ordering the restaurant to produce numerous records and financial documents that date back to 1996, prior to Reynolds's employment with the company. The State moved to quash the subpoena. After a hearing, Judge Williams denied the motion, and this petition followed. This Court stayed the enforcement of the subpoena until this mandamus petition could be resolved.

Initially, we must determine if a petition for a writ of mandamus is the appropriate method to challenge Judge Williams's ruling. The ruling in this case will not support an appeal, because there is no final judgment. As the Alabama Supreme Court stated in Ex parte Thackston, 275 Ala. 424, 426, 155 So.2d 526 (1963), "this court has reviewed the issuance of a subpoena duces tecum, both as to parties and non-parties, or witnesses, on a petition for mandamus." See also Ex parte Fitch, 715 So.2d 873 (Ala.Cr.App. 1997).

The subpoena in this case directed the Green Bottle Grill to furnish the following documents:

"(1) all server tickets from December 1996 through February 1998; Copies of all server daily micro cash reports from December 1996 through February 1998; Copies of all deposit books or deposit slips from December 1996 through February 1998; Copies of all 15Z reports from December 1996 through February 1998; Copies of all 9Z reports from December 1996 through February 1998; copies of all employee work schedules from December 1996 through February 1998; copies of all account audit reports from December 1996 through February 1998; copies of all 16Z reports from December 1996 through February 1998; copies of all financial statements and records from December 1996 through February 1998."

Reynolds was charged with theft for conduct that occurred between October 1997 and February 1998. It is not disputed that Reynolds has already received, though discovery, all of the records from the Green Bottle Grill that the State intends to introduce at trial.

The State argues that Judge Williams abused his discretion in denying the motion to quash the subpoena because, it argues, Reynolds failed to show that the requested materials were necessary and material. It cites the case of Sale v. State, 570 So.2d 862 (Ala.Cr.App.1990), for the following proposition: "Without an affidavit of necessity and materiality, a subpoena duces tecum requested at or before trial cannot be sustained." Reynolds argues that it was within Judge Williams's discretion to grant the subpoena duces tecum and cites the Alabama Supreme Court's opinion in Ex parte Land, 775 So.2d 847 (Ala.2000).

The statement in Sale cited by the State applies to subpoenas duces tecum issued to parties; the language in that case tracks the language of § 12-21-3, Code of Alabama 1975, which states:

"The court may, upon affidavit of their necessity and materiality, upon motion, compel, by order, either party to produce, at or before the trial, any book, paper or document in his possession or power. The order may be made upon the application of either party, upon reasonable notice to the adverse party or his attorney. If not produced, parol evidence may be given of its contents."

The Green Bottle Grill is not a "party" to the criminal prosecution—it is the victim. Nettles v. State, 435 So.2d 146 (Ala.Cr. App.), aff'd, 435 So.2d 151 (Ala.1983). Section 12-21-2 governs subpoenas duces tecum issued to nonparties.

Reynolds's argument ignores the fact that Land involved discovery in a postconviction proceeding. The Land court held that a postconviction petitioner requesting discovery of documents must show good cause for disclosure of the documents. That case has no application to the present case. This case involves the issuance of a subpoena duces tecum.

The use of subpoenas duces tecum in criminal cases is specifically authorized by Rule 17.3, Ala.R.Crim.P., and by § 12-21-2. Rule 17.3 states, in part:

"(a) Production of Books, Papers, etc. A subpoena may command the person to whom it is directed to produce the books, papers, documents, or other objects which may be designated therein.

"(b) Production Prior to Trial and for Inspection. The court may direct that books, papers, documents, or other objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence. Upon their production, the court may permit the parties and their attorneys to inspect them, or portions thereof."

Section 12-21-2(a) states:

"(a) When any deed, writing or other document which it may be necessary to use as testimony in any case may be in the possession of any person resident in this state who is not a party to the case, the clerk of the court in which the case is pending shall, upon application of the party or his attorney desirous of using such testimony, issue a subpoena duces tecum directed to the person having such book or other document in his possession, requiring him to appear and bring with him into court the paper desired to be used as testimony. Service shall be by a sheriff, constable or some private person, and the official return of the sheriff or constable or the affidavit of such private person shall be sufficient evidence that the same was duly served; but, in all cases, the judge may require the summary production of any book or document by subpoena duces tecum where the witness is able to produce it and where the ends of justice require such summary production."

Rule 17.3(c), states that "[t]he court, on motion made promptly, may dismiss or modify a subpoena duces tecum if compliance therewith would be unreasonable, oppressive, or unlawful."

The view adopted by the Alabama Supreme Court in Rule 17.3(d), was previously expressed by the United State Supreme Court in United States v. Nixon, 418 U.S. 683, 698-700, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). In Nixon, the United States Supreme Court stated:

"A subpoena for documents may be quashed if their production would be `unreasonable or oppressive,' but not otherwise. The leading case in this Court interpreting this standard is Bowman Dairy Co. v. United States, 341 U.S. 214, 71 S.Ct. 675, 95 L.Ed. 879 (1951). This case recognized certain fundamental characteristics of the subpoena duces tecum in criminal cases: (1) it was not intended to provide a means of discovery for criminal cases, id., at 220, 71 S.Ct. 675; (2) its chief innovation was to expedite the trial by providing a time and place before trial for the inspection of subpoenaed materials, ibid. As both parties agree, cases decided in the wake of Bowman have generally followed Judge Weinfeld's formulation in United States v. Iozia, 13 F.R.D. 335, 338 (S.D.N.Y.1952), as to the required showing. Under this test, in order to require production prior to trial, the moving party must show: (1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general `fishing expedition.'"

(Footnotes omitted; emphasis added.) This Court has embraced the standard of review set out in United States v. Nixon. See Sale, supra, and Williams v. State, 489 So.2d 4 (Ala.Cr.App.1986).

Our analysis of the validity of Judge Williams's ruling is hampered by the fact that he failed to make findings of fact as to the four factors set out in United States v. Nixon. The Circuit Court for Madison County is directed to make specific findings of fact concerning the four factors articulated by the United States Supreme Court in United States v. Nixon. Specifically, Judge Williams is directed to address his findings to (1) whether the requested documents are evidentiary and relevant; (2) whether they are not otherwise procurable reasonably in advance of trial by the exercise of due diligence; (3) whether Reynolds can prepare for trial without the production and inspection in advance of trial and whether the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) whether application for the subpoena was made in good faith and not as a general "fishing expedition." See United States v. Nixon. Due return should be filed with this Court no later than 28 days from the date of this opinion.

ORDER ISSUED.

McMILLAN, COBB, BASCHAB, and FRY, JJ., concur.

On Return

LONG, Presiding Judge.

The State of Alabama filed a petition for a writ of mandamus directing the Honorable Bruce E. Williams, circuit judge for the Twenty-third Judicial Circuit, to quash the subpoena duces tecum issued in this case to the Green Bottle Grill restaurant. On October 6, 1999, we directed the trial court to make findings of fact as to the following four factors articulated by the...