Wollesen v. State

• Decision Date: 10 February 2000
• Docket Number: No. A00A0083.,A00A0083.
• Citation: 242 Ga. App. 317,529 S.E.2d 630
• Parties: WOLLESEN v. STATE of Georgia.
• Court: Georgia Court of Appeals

529 S.E.2d 630
242 Ga. App. 317

WOLLESEN
v.
STATE of Georgia

No. A00A0083.

Court of Appeals of Georgia.

February 10, 2000.

Charles S. Hunter, Marietta, for appellant.

Patrick H. Head, District Attorney, Debra H. Bernes, Maria B. Golick, Assistant District Attorneys, for appellee.

McMURRAY, Presiding Judge.

In this case we must determine the sufficiency of a certificate issued by a court in a foreign state seeking to compel the appearance of a Georgia witness before a grand jury in the foreign state, as contemplated by the Uniform Act to Secure the Attendance of Witnesses from Without the State ("Uniform Act"), OCGA § 24-10-92. The Act provides in pertinent part:

(a) If a judge of a court of record in any state which by its laws has made provision for commanding persons within that state to attend and testify in this state certifies under the seal of such court ... that a grand jury investigation has commenced or is about to commence, that a person within this state is a material witness in such ... grand jury investigation, and that his presence

529 S.E.2d 631

will be required for a specified number of days, upon presentation of such certificate to any judge of a court of record in the county in which the person is found, such judge shall fix a time and place for a hearing and shall make an order directing the witness to [242 Ga. App. 318] appear at a time and place certain for the hearing. The witness shall at all times be entitled to counsel.

(b) If at a hearing the judge determines that the witness is material and necessary, that it will not cause undue hardship to the witness to be compelled to attend and testify in ... the other state, and the laws of the state in which the ... grand jury investigation has commenced or is about to commence, will give to him protection from arrest and the service of civil and criminal process, he shall issue a summons, with a copy of the certificate attached, directing the witness to attend and testify in the court where ... a grand jury investigation has commenced or is about to commence, at a time and place specified in the summons. In any such hearing the certificate shall be prima-facie evidence of all the facts stated therein.

(Emphasis supplied.)

The statute also requires that the witness receive compensation for travel to the foreign state. Pursuant to Maryland's reciprocal act,¹ the Circuit Court for Montgomery County, Maryland, issued an order on July 7, 1999, requesting that the Superior Court of Cobb County order Leona M. Wollesen to appear before a grand jury in Maryland on July 22, 1999. Appended to the order was the state's motion for an order certifying Wollesen as a material witness, a supporting affidavit of the state's attorney, a subpoena duces tecum directing Wollesen to produce evidence of her financial transactions with her son, Woodrow D. Wollesen, from 1995 through 1998, and a certificate issued by the judge. The affidavit averred that Wollesen was an essential witness for the state.

In the certificate, the Maryland judge made a finding that Wollesen was a material witness in the grand jury investigation of her son. The certificate also provided for the witness's compensation and for her protection from all service of process while traveling to the court.

On July 9, 1999, the assistant state's attorney executed a supplemental affidavit, which was not appended to the certificate, setting forth the factual basis for Maryland's request to compel Wollesen's testimony and production of documents. The affidavit indicated as follows: Wollesen's son had been held in contempt in Maryland for failure to pay child support and had been ordered to pay his ex-wife proceeds of an individual retirement account ("IRA") totaling 16,000. Instead of complying with the order, Woodrow Wollesen [242 Ga. App. 319] remitted the funds to his attorney, who deposited them in the registry of the State Court of Cobb County. Leona Wollesen sued her son, and the proceeds were disbursed to her. Woodrow Wollesen had testified at the contempt proceeding in Maryland that he owed his mother 85,000. According to the affidavit, Leona Wollesen's testimony is needed to determine the validity of any loans she may have made to her son and whether she directed him to send the IRA proceeds to Georgia.

On behalf of the State of Maryland, the Cobb County District Attorney filed a motion for a hearing pursuant to OCGA § 24-10-92(b). The supplemental affidavit was filed in the Superior Court of Cobb County as an amendment to the motion. The superior court considered the certificate, the amendment and argument of counsel. Leona Wollesen did not testify, and no evidence was presented on her behalf. The superior court granted the state's motion, finding that Leona Wollesen was a material and necessary witness and that it would not cause her undue hardship to be compelled to attend, testify and produce evidence before the Maryland grand jury. Wollesen...