Emily Marie Davenport v. State

• Court: Court of Appeals of Georgia
• Decided: August 19, 2014
• Docket: A14A1095
• Status: Published

Opinion

FIRST DIVISION PHIPPS, C. J., ELLINGTON, P. J., and MCMILLIAN, J.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/

August 19, 2014

In the Court of Appeals of Georgia A14A1095. DAVENPORT v. THE STATE.

MCMILLIAN, Judge.

We briefly summarize the procedural and factual history in this case, which is

set out more fully in Davenport v. State, 313 Ga. App. 745 (722 SE2d 457) (2012)

(“Davenport III”) and Davenport v. State, 303 Ga. App. 401 (693 SE2d 510) (2010)

(“Davenport I”).

Following her conviction for driving under the influence of alcohol per se,

Davenport filed an appeal to this Court, arguing that the trial court erred by denying

her motion for an order authorizing the issuance of a subpoena to an out-of-state

witness under the provisions of the Uniform Act to Secure the Attendance of Witnesses From Without the State.1 We affirmed the trial court’s denial of

Davenport’s motion, finding no error in the trial court’s determination that the out-of-

state witness was not “a necessary and material witness to the case.” Davenport I, 303

Ga. App. at 402. However, our Supreme Court vacated our judgment and remanded

to this Court with direction in Davenport v. State, 289 Ga. 399, 404 (711 SE2d 799)

(2011) (“Davenport II”), and consistent with that opinion, we remanded Davenport’s

case to the trial court to “apply the correct statute and revisit Davenport’s motion for

an order authorizing the issuance of the out-of-state subpoena.” Davenport III, 313

Ga. App. at 745. Following a hearing at which it was agreed that the trial court would

render its decision based on the evidence previously admitted on this issue, the trial

court once again denied Davenport’s motion. Davenport filed a motion for

reconsideration, arguing that the trial court failed to consider the constitutional

challenges she raised in her original motion. The trial court denied Davenport’s

1 We note that at all relevant times here this section was codified at OCGA §§ 24-10-90 to 24-10-97, but effective January 2013, those provisions are now contained in OCGA §§ 24-13-90 to 24-13-97.

2 motion for reconsideration without elaboration, and Davenport timely filed the

present appeal.2 As more fully set forth below, we now affirm.

Davenport argues in her sole enumeration of error on appeal that “[t]he trial

court erred by ruling that [she failed to] make a sufficient factual showing to justify

the issuance of an out-of-state subpoena.” However, Davenport does not present any

argument in support of this enumeration and does not challenge the trial court’s

finding that the evidence Davenport presented to support a finding of materiality was

“speculative.” Thus, we deem this enumeration to be abandoned, and that portion of

the trial court’s order stands affirmed. See Court of Appeals Rule 25 (c) (2). Further,

she does not appear to reassert the contention urged in her motion for reconsideration

that the trial court in this case required a higher standard of proof than the standard

set out by the Supreme Court in Davenport II, 289 Ga. at 400, except to mention in

her “Statement of the Case” that she raised this issue in her motion for

reconsideration.

2 Davenport’s motion for reconsideration did not extend the time for filing her notice of appeal, but Davenport’s notice of appeal was timely because it was filed within 30 days of the trial court’s order denying her motion for a certificate of materiality. See OCGA § 5-6-38 (a); Davenport III, 313 Ga. App. at 745-746 (“If the trial court determines that no new trial is warranted, the judgment of conviction will stand affirmed, provided that Davenport may file a timely appeal from that determination.”); Bell v. Cohran, 244 Ga. App. 510, 511 (536 SE2d 187) (2000).

3 Instead, Davenport argues that the refusal of the trial court to grant her a

certificate of materiality violated her confrontation, due process and compulsory

process rights, thereby depriving her of her right to a fair trial. However, “[i]n light

of the fact that the trial court properly exercised its discretion under former OCGA

§ 24-10-94 (a) in finding that the out-of-state witness was not a ‘material witness,’

[Davenport]’s argument that [she] was denied [her] right to compulsory process is

entirely without merit.” Cronkite v. State, 293 Ga. 476, 479, n. 4 (745 SE2d 591)

(2013). See also Davenport II, 289 Ga. at 400-401; Phillips v. State, 324 Ga. App.

728, 732-733 (751 SE2d 526) (2013). Likewise, Davenport’s contention that her

Confrontation Clause rights have been violated has also been decided against her.

Phillips, 324 Ga. App. at 733. Further, to the extent this argument can be construed

as constituting an attack on the constitutionality of the Uniform Act, we are precluded

from reviewing this contention because the trial court did not specifically rule on this

issue. Young v. State, 324 Ga. App. 127, 132 (2) (749 SE2d 423) (2013).

Accordingly, the trial court’s order is affirmed.

Judgment affirmed. Phipps, C. J., and Ellington, P. J., concur.