Davenport v. State

711 S.E.2d 699, 289 Ga. 399, 2011 Fulton County D. Rep. 1816, 2011 Ga. LEXIS 502

• Court: Supreme Court of Georgia
• Decided: June 20, 2011
• Docket: S10G1355
• Status: Published

Opinions

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 SE2d 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. Constitution² 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 SC 989, 94 LE2d 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 SE2d 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 LE 565) (1877), overruled in part by Shaffer v. Heitner, 433 U. S. 186, 212, n. 39 (97 SC 2569, 53 LE2d 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 ALR4th 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 SE2d 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 SE2d 224) (2007); Wyman v. State, 125 Nev. 46 (217 P3d 572) (2009); State v. Bastos, 985 So2d 37 (Fla. 3rd Dist. Ct. App. 2008); Ex parte Simmons, 668 So2d 901 (Ala. Crim. App. 1995); In the Matter of Rhode Island Grand Jury Subpoena, 414 Mass. 104 (605 NE2d 840) (1993); In re State of Calif. &c. Grand Jury Investigation, 298 Md. 243 (469 A2d 452) (1983) later proceeding, 57 Md. App. 804 (421 A2d 1141) (1984); In the Matter of State of Washington, 198 NYS2d 897 (10 AD2d 691) (1960); In the Matter of Saperstein, 30 NJ 373 (104 A2d 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 SE2d 589) (1983) and Mafnas v. State, 149 Ga. App, 286 (1) (254 SE2d 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. 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; Chesser v. State, supra, 168 Ga. App. at 196 (citing Mafnas); Holowiak v. State, 308 Ga. App. 887 (709 SE2d 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 SE2d 22) (1992) (physical precedent only, citing Mafnas and Chesser); Baines v. State, 201 Ga. App. 354 (5) (411 SE2d 95) (1991) (citing Mafnas). But see Yeary v. State, 302 Ga. App. 535, 537 (690 SE2d 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 SE2d 694) (2011); French v. State, 288 Ga. App. 775, 776 (655 SE2d 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 the witness is located “to determine whether there should be compliance with the request”). We disapprove the Court of Appeals’s repeated misreading of the statutory scheme. It is the out-of-state judge who must decide whether the sought-after witness is necessary and material, not the requesting court in Georgia. OCGA § 24-10-92 (b); Ky. Rev. Stat. Ann. § 421.240 (1). The Georgia trial judge presented with a request for a certificate is charged with deciding whether the sought-after witness is a “material witness.” OCGA § 24-10-94 (a).

The question then becomes one of determining what is the appropriate standard by which a Georgia trial court should decide whether an out-of-state witness is a “material witness.” While OCGA § 24-10-94 (a) sets out “material witness” as the appropriate standard, neither the Uniform Act nor the Georgia version of the Act defines the term. Each only defines “witness” as “a person whose testimony is desired ... in a criminal action, prosecution, or proceeding held by the prosecution or the defense. .. .” OCGA § 24-10-91 (4); Sec. 3 of the Uniform Act. Faced with the task of construing the term “material witness” as found in OCGA § 24-10-94 (a), we “look diligently for the intention of the General Assembly” (OCGA § 1-3-1 (a)), applying “the ordinary signification” to all words that are not terms of art or connected to a particular trade. OCGA § 1-3-1 (b). In its enactment of the Uniform Act, the General Assembly gave additional insight with regard to its intent: “This article shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of the states which enact it. . ..” OCGA § 24-10-97. In light of the legislative statement of intent that Georgia’s version of the Uniform Act be construed uniformly with that of the other states, we give great weight to the statutory construction of our sister states where they are well-reasoned and legally sound. See Delit v. State, 583 So2d 1083, 1086 (Fla. App. 4th Dist. 1991); State v. Ivory, 609 SW2d 217 (Mo. App. 1980) (construing their version of OCGA § 24-10-97).

After recognizing the lack of a definition of “material witness” in its version of the Uniform Act, the Florida Court of Appeals endorsed use of the definition of “material witness” found in Black’s Law Dictionary (8th ed. 2004): “a material witness is ‘(a) witness who can testify about matters having some logical connection with the consequential facts, esp. if few others, if any, know about these matters.’ ” State v. Bastos, 985 So2d 37, 41 (Fla. 3rd Dist. Ct. App. 2008). The Supreme Court of Nevada, faced with the same question in Wyman v. State, 125 Nev. 46 (217 P3d 572, 583) (2009), followed the lead of the Florida appellate court and determined that the Nevada Legislature, in enacting Nevada’s version of OCGA § 24-10-94 (a), intended that the term “material” be used according to its ordinary meaning as defined by dictionaries. The Nevada Supreme Court held that “material,” as used in Nevada’s version of the Uniform Act, connotes “that [which] is logically connected with the facts of consequence or the issues in the case.” See also Ricketson v. Blair, 171 Ga. App. 714, 716 (320 SE2d 788) (1984) (where the Court of Appeals adopted the definition of “material witness” found in Black’s Law Dictionary (5th ed. 1979) when faced with the task of construing the phrase “a witness whose testimony is material” found in OCGA § 9-10-160).

In light of OCGA § 24-10-97, this Court, as have the Nevada and Florida appellate courts, construes “material witness” as “a witness who can testify about matters having some logical connection with the consequential facts, esp. if few others, if any, know about these matters.” Black’s Law Dictionary (8th ed. 2004). Since the proper statute was not applied to this case, the judgment of the Court of Appeals is vacated and the case remanded to that court for proceedings not inconsistent v/ith this opinion.

Judgment vacated and case remanded with direction.

All the Justices concur.; except Carley, P. J., and Hines, J., who dissent.

1 Davenport did not contest on appeal the trial court’s ruling that the source code was not discoverable from the State since it was established that the State was not in possession, custody or control of the source code. Hills v. State, 291 Ga. App. 873 (663 SE2d 265) (2008).

2 The right to compulsory process guaranteed by the Sixth Amendment is applicable to the states through the Fourteenth Amendment. Washington v. Texas, 388 U. S. 14 (87 SC 1920, 18 LE2d 1019) (1967).

3 With an effective date of March 31, 1976, Georgia’s version of the uniform law is one of the more-recently enacted versions of the 1931 uniform act.

4 When the Uniform Act was enacted in Georgia in 1976, the phrase “in this state” was set off by commas, which resulted in the statute requiring the state in which the material witness was located to have enacted laws providing for commanding persons within its borders to attend and testify in criminal matters in Georgia. In the re-codification of Georgia’s Code in 1982, the second comma was omitted. That omission signaled that “in this state” modified the phrase that followed it rather than the phrase that preceded it. Since enactment of the re-codification “was not intended to alter the substantive law in existence on the effective date of [the re-codification],” we apply the law as it was enacted in 1976 by re-installing the comma after “in this state.” OCGA § 1-1-2. See Sheriff v. State, 277 Ga. 182 (1) (587 SE2d 27) (2003).