Yeary v. the State.

• Decision Date: 20 June 2011
• Docket Number: No. S10G1085.,S10G1085.
• Citation: 289 Ga. 394,711 S.E.2d 694
• Parties: YEARYv.The STATE.
• Court: Georgia Supreme Court

289 Ga. 394

711 S.E.2d 694

11 FCDR 1821

YEARY

v.The STATE.

No. S10G1085.

Supreme Court of Georgia.

June 20, 2011.

Head, Thomas, Webb & Willis, Gregory Allen Willis, Atlanta, for appellant.Rosanna M. Szabo, Solicitor–General, Richard Carter Armond, Joelle M. Nazaire, Assistant Solicitors–General, for appellee.Charles Callison Olson, Tasha Monique Mosley, amici curiae.BENHAM, Justice.

After the trial court denied her motion to obtain evidence possessed by a Kentucky corporation by means of the Uniform Act to Secure the Attendance of Witnesses from Without the State, OCGA § 24–10–90 et seq. (“Uniform Act”), appellant Lisa Yeary was convicted in a bench trial of driving under the influence per se based on evidence that the Intoxilyzer 5000 recorded her blood alcohol concentration as 0.179 grams, a result over the legal limit of 0.08 grams. See OCGA § 40–6–391(a)(5). Before the Court of Appeals, Yeary argued that the trial court erred when it denied her pre-trial motion and found that the evidence she had sought from the out-of-state corporation, the source code for the Intoxilyzer 5000, was neither material nor relevant. The Court of Appeals upheld the trial court's ruling under the “right for any reason rule” and affirmed the judgment of conviction, holding that the Uniform Act could be used to obtain the presence and testimony of an out-of-state witness and evidence in the possession of the witness, but it could not be used to request only the production of evidence located in another state. Yeary v. State, 302 Ga.App. 535, 537, 690 S.E.2d 901 (2010). Citing French v. State, 288 Ga.App. 775, 776, 655 S.E.2d 224 (2007), the Court of Appeals concluded that “a request for documents and like things under the Act must be made ancillary to a request for testimony from an out-of-state witness” ( Yeary v. State, supra, 302 Ga.App. at 537, 690 S.E.2d 901), and affirmed the trial court's denial of the motion because “[t]here is nothing in the record showing that Yeary identified or sought to obtain testimony from a witness who should be compelled to produce the evidence.” Id. We granted Yeary's petition for a writ of certiorari to the Court of Appeals.

The Sixth Amendment to the United States Constitution ¹ 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 A.L.R.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 fifty 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.,² 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(3), 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(1), 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 re 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 (1984); In the Matter of State of Washington, 10 A.D.2d 691, 198 N.Y.S.2d 897 (1960); In the Matter of Saperstein, 30 N.J.Super. 373, 104 A.2d 842 (1954).

The question before us is whether the Uniform Act authorizes a party in a criminal proceeding to seek purportedly material evidence from an out-of-state corporate entity without naming a person within the corporation as the witness to be summoned to Georgia. The Uniform Act provides that a Georgia judge may issue a certificate that “a person” located outside Georgia is a “material witness” in a pending Georgia prosecution (OCGA § 24–10–94(a)), and the Georgia court is also authorized to issue a certificate that the witness is in possession of evidence material to the pending prosecution. See Wollesen v. State of Ga., supra, 242 Ga.App. 317(3), 529 S.E.2d 630. A corporation is an artificial person ( Eckles v. Atlanta Technology Group, 267 Ga. 801, 803, 485 S.E.2d 22 (1997)), and its corporate existence “ ‘implies amenability to legal process .... Possessing the privileges of a legal entity, and having records, books, and paper, it is under a duty to produce them when they may properly be required in the administration of justice.’ ” Jones v. State of Ga., 99 Ga.App. 858, 109 S.E.2d 859 (1959), quoting Wilson v. United States, 221 U.S. 361, 374, 31 S.Ct. 538, 55 L.Ed. 771 (1911). Thus, an out-of-state corporation may be “a person” that is a material witness under the Uniform Act and may be determined to be in possession of material evidence.

A corporation “ ‘can act, and does act, alone and through agents. It deals with other corporations and with natural persons by its agents; it can deal with the world in no other way.’ [Cit.]” Eckles v. Atlanta Technology Group, supra, 267 Ga. at 803, 485 S.E.2d 22. Since the corporation must act through human agents, the question then becomes whether the party requesting the certificate of witness-and-evidence materiality is required by the Uniform Act to identify the corporate agent through whom the out-of-state corporation will act in providing the purportedly material evidence, or whether the out-of-state corporation should designate its human agent. A subpoena can be directed to the corporation itself rather than a specified human agent ( Jones v. State of Ga., supra, 99 Ga.App. at 861, 109 S.E.2d 859) and, in discovery issues governed by the Civil Practice Act, when a deposition notice or subpoena is directed to a corporation and describes the matters for examination, it is the corporation which designates persons to testify on its behalf. OCGA § 9–11–30(b)(6) and Rule 30(b)(6), Federal Rules of Civil Procedure. We believe the more expedient course is to permit a party to request that a corporation, rather than its human agent, be found to be a material witness under the Uniform Act and leave the issue of designation of its human agent to the corporation. Said designation need not occur until after a certificate of materiality has been issued by the Georgia trial court and the court in the county in which the out-of-state corporation is located conducts a hearing which the corporation has been ordered to attend, on the request for issuance of a summons to appear at the Georgia trial with the material evidence purportedly in the corporation's possession. See OCGA § 24–10–92(a).

In reaching its conclusion to the contrary, the Court of Appeals cited French v. State, supra, 288 Ga.App. at 776, 655 S.E.2d 224. In French, the Court of Appeals ruled that a defendant failed to carry his burden of presenting enough facts for a Georgia court to issue a requesting certificate when the defendant failed to “identify any specific person, entity, agency, or records custodian who should be directed to produce the requested [school, juvenile, and child welfare agency] records [maintained in...