Lead Opinion
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.
The Sixth Amendment to the U. S. Constitution
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.,
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[,] . . .”
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,
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,
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,
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,
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.
Notes
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,
The right to compulsory process guaranteed by the Sixth Amendment is applicable to the states through the Fourteenth Amendment. Washington v. Texas,
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.
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,
Dissenting Opinion
concurring.
I join fully in the majority opinion and note that it may have two salutary effects. First, in Lattarulo v. State,
Second, by applying the correct “material witness” standard, trial courts may alleviate the due process concerns that may otherwise exist (but are not well presented in this appeal) when the State enacts a statutory scheme in which: (1) evidence usually determinative of the defendant’s guilt (e.g., blood alcohol content in a per se DUI prosecution) is tested and reported, not by forensic experts who testify and face cross-examination on the reliability of their methods and the accuracy of their results, but rather by a machine (e.g., the Intoxilyzer 5000) that takes in a specimen from the defendant and, through internal mechanisms and computer code, generates a test report; (2) the machine’s computer code is unavailable to the defendant through discovery or compulsory process because the State avoids possessing it in Georgia; (3) the machine’s test result is admissible at trial through a witness who can say that he was qualified to operate the machine and it operated as designed (see,
Dissenting Opinion
dissenting.
I respectfully dissent because the opinion of the majority upturns well-founded Georgia precedent, and ignores obvious legislative intent, common sense, and the facts of this case.
As noted by the majority, this Court granted certiorari to the Court of Appeals in Davenport v. State,
On October 12, 2007, Davenport was arrested for driving under the influence of alcohol, taken into custody, and given a breath-alcohol test on the 1-5000. The 1-5000 registered Davenport’s blood-alcohol content at 0.156 grams. She was then charged with driving under the influence of alcohol and failure to maintain her lane. Davenport moved to require the State to produce the I-5000’s computer source code, but the State did not have the source code in its possession or control. She sought to discover the source code by requesting an order authorizing the issuance of a subpoena to the Kentucky company that manufactured the 1-5000. Davenport claimed that she had suffered from asthma since she was a young child, and she sought the source code in an attempt to prove that the 1-5000 did not accurately register the blood-alcohol content of individuals with respiratory illnesses like hers; more specifically, she sought to compel the attendance of an out-of-state witness who worked for the manufacturer. Citing Hills v. State, supra, the trial court denied Davenport’s motion, concluding that the source code was not discoverable. Following a bench trial, at which Davenport stipulated to the evidence, she was found guilty of driving with an illegal concentration of alcohol in violation of OCGA § 40-6-391 (a) (5). Davenport appealed to the Court of Appeals, raising the sole issue of whether the trial court abused its discretion in denying her
The Court of Appeals was expressly and properly assessing the sufficiency of Davenport’s showing before the trial court under the provisions of OCGA § 24-10-94 (a), which is plainly the subsection of the Act by which an out-of-state witness can be compelled to attend and testify at a criminal proceeding in Georgia. Yet, the majority, citing as its support the statutory law of a foreign state, concludes that whether the sought witness is “necessary and material” is the test solely under OCGA § 24-10-92 (b), which addresses the circumstance of a Georgia witness summoned to testify in a criminal proceeding in another state. It then accuses the Court of Appeals of repeatedly “misreading” the statutory scheme, and concludes that a Georgia trial judge presented with a request for a certificate under the Act is to decide only whether the sought out-of-state witness is a “material witness.” But, such a conclusion is, at best, specious.
Focusing on “necessity and materiality” versus “materiality” is a distinction without a difference; if evidence is not necessary, it is not material. Indeed, tellingly and ironically, the majority advocates the express adoption of a 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’ ” (Emphasis supplied.) Thus, by the majority’s endorsed definition a “material witness” in this context is a witness that is “necessary” to the prosecution. Furthermore, even assuming arguendo that a showing of “necessity and materiality” is different and a greater burden than that of solely “materiality,” it defies logic and flies in the face of judicial economy that the General Assembly intended that the threshold showing, i.e., that before the Georgia court, be lesser than that before the court in the foreign jurisdiction. To find otherwise permits a petitioner to utilize the judicial time and resources of two jurisdictions when the petitioner cannot initially prevail, and allows “necessity” to be decided solely by a court other
Certainly, under the Sixth Amendment to the United States Constitution and Article I, Section I, Paragraph XIV of the 1983 Georgia Constitution, a Georgia defendant facing criminal charges has the right to compulsory process for obtaining witnesses to be used in mounting a defense to the charges. And without question, the Act provides a process for obtaining a court order for the production of the out-of-state witness. However, it does not provide an absolute right to the presence of the out-of-state witness; the petitioner has the burden of presenting sufficient facts to enable the courts in both the demanding and receiving states to determine whether the witness should be compelled to travel to the foreign jurisdiction. Thus, as a matter of law and practicality, such determinations must be made at the trial level on a case-by-case basis and upon the evidence presented to the trial court. And, it follows that the decision whether to grant the process must be within the sound discretion of the trial court. Not only does this standard comport with the required evidentiary showing, but it reflects the plain statutory language of OCGA § 24-10-94 (a), which provides that the trial court may issue the sought certificate. In such a context, “may” is unquestionably a term of permissiveness, which authorizes the trial court to act in its discretion in determining whether to grant the certificate. McCorquodale v. State,
Davenport’s evidentiary showing fell short of requiring the finding that any adjustments made in the 1-5000 source code for asthma sufferers were material to her criminal prosecution. As outlined by the Court of Appeals, there was evidence that Davenport had not recently been treated for asthma; she did not recall the results of medical tests taken years before to measure her “vital capacity”; she claimed her asthma generally flared up following exercise or her being upset and that she became upset after she was arrested and handcuffed and realized that she was going to jail; she was upset and crying when she took the breath test, but any symptoms of respiratory distress by then had lessened; and that she had not used a prescribed inhaler on the date that she was arrested for driving under the influence of alcohol and administered the
Also, there is no merit to Davenport’s assertion that the trial court’s ruling denies her constitutional rights to compulsory process, confrontation, due process of law, and a fair trial. The contention is based upon the premise that the 1-5000 is Davenport’s accuser, invoking the constitutional right of confrontation. However, as noted by the State, the 1-5000 is simply a tool used by law enforcement to determine the breath-alcohol content of a driver who is suspected of driving under the influence. Davenport was adjudged guilty by the trial court on the basis of evidence, to which Davenport stipulated, some of which was reported by the 1-5000 after it was certified to be fully operational. In the context of a challenge to the admission into evidence of an inspection certificate for the Intoxilyzer, this Court has determined that there is no violation of the right of confrontation. Rackoff v. State,
In sum, the majority splits semantic hairs in order to undermine long-standing precedent which logically and reasonably construes OCGA § 24-10-94 (a), effectuates the legislative intent, and comports with the practical application of the Act. Unfortunately, the facts of this case well demonstrate the fallacy of the majority’s holding. Both the Court of Appeals and the trial court have already rightly assessed the failure of this criminal defendant’s evidence under the correct standard. Nonetheless, each will be forced to parse such evidence for mere “materiality,” which neither will find in the absence of “necessity.” Permitting Davenport to yet again present her meritless argument to multiple tribunals, in what has become the latest round in the DUI defendants’ arsenal to attempt to discredit the alcohol-
The judgment of the Court of Appeals should stand.
I am authorized to state that Presiding Justice Carley joins in this dissent.