O.C.G.A. § 24-13-94 (2019)

Annotations

JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the statutory provisions, decisions under Ga. L. 1976, p. 1366, § 5 and former O.C.G.A. § 24-10-94 are included in the annotations for this Code section. Application of rules of evidence. - Under Georgia’s new Evidence Code, unless a fact-finding proceeding involves one of the 12 situations enumerated in O.C.G.A. § 24-1-2(c) and (d), the rules of evidence fully apply; similarity to one or more of the enumerated situations is insufficient to limit the applicability of the evidence rules. Parker v. State, 296 Ga. 586, 769 S.E.2d 329, 2015 Ga. LEXIS 133 (2015). No absolute right to witness. - Party requesting the presence of an outof-state witness did not have an absolute right to obtain the witness. Mafnas v. State, 149 Ga. App. 286, 254 S.E.2d 409, 1979 Ga. App. LEXIS 1820 (1979), overruled, Davenport v. State, 289 Ga. 399, 711 S.E.2d 699, 2011 Ga. LEXIS 502 (2011) (decided under Ga. L. 1976, p. 1366, § 5). Determination of whether witness was necessary and material. - Court of appeals erred in ruling that the trial court did not abuse the court’s discretion in denying the defendant’s motion under the former Uniform Act to Secure the Attendance of Witnesses from Without the State, former O.C.G.A. § 24-10-90 et seq. (see now O.C.G.A. § 24-13-90 et seq.), to obtain evidence possessed by a witness in Kentucky because the proper statute was not applied since the court of appeals stated that the defendant was required to

show that the out-of-state witness was necessary and material to the case; whether the witness was “necessary and material” was one of the determinations that must be made under the Act, former O.C.G.A. § 24-10-92(b) (see now O.C.G.A. § 24-13-92), by the judge in the county where the out-of-state witness was located, and the Georgia trial court evaluated the request under the Act, former O.C.G.A. § 24-10-94, and must determine only whether the out-of-state witness was a “material witness” in the Georgia criminal prosecution and whether it should issue the certificate requesting the out-ofstate court to order the out-of-state witness to attend the criminal proceeding in Georgia. Davenport v. State, 289 Ga. 399, 711 S.E.2d 699, 2011 Ga. LEXIS 502 (2011) (decided under former O.C.G.A. § 24-10-94). Error in applying hearsay rules in determining witness status. - Trial court erred in applying the hearsay rules to exclude the appellant’s proffered documents from the evidence the court considered in ruling on a motion for material witness certificates as to the Kentuckybased manufacturer of the breathalyzer because an exception under O.C.G.A. § 24-1-2(c)(1) applied. Parker v. State, 296 Ga. 586, 769 S.E.2d 329, 2015 Ga. LEXIS 133 (2015). Failure to determine if witness material. - Defendant was entitled to a new determination as to whether the defendant was entitled to subpoena an out-ofstate witness because the trial court weighed the safeguards protecting the va-

lidity of the test results and the trial process generally and essentially determined that the witness was not necessary rather than evaluating whether the outof-state witness was “material.” Spann v. State, 318 Ga. App. 740, 736 S.E.2d 749, 2012 Ga. App. LEXIS 986 (2012) (decided under former O.C.G.A. § 24-10-94). Judicial discretion. - As to out-ofstate witnesses to whom the court’s subpoena power was inapplicable, the decision whether to utilize the provisions of the former Uniform Act to Secure the Attendance of Witnesses from Without the State, former O.C.G.A. § 24-10-90 et seq. (see now O.C.G.A. § 24-13-90 et seq.), was purely discretionary. Ealy v. State, 251 Ga. 426, 306 S.E.2d 275, 1983 Ga. LEXIS 821 (1983) (decided under former O.C.G.A. § 24-10-94). Witness not material. - Trial court properly concluded that an out-of-state witness, who could have testified as to source codes for the breath testing device, was not “material” as the defendant presented no evidence mouth alcohol was present during a breath test such that an error message should have been generated that was not; the mere possibility that alcohol remained in the defendant’s mouth due to a surgical implant and retainer was not evidence pointing to actual existence of excess alcohol in the mouth. Cronkite v. State, 293 Ga. 476, 745 S.E.2d 591, 2013 Ga. LEXIS 593 (2013) (decided under former O.C.G.A. § 24-10-94). Defendant’s motion for certification of materiality of an out-of-state witness under the Uniform Act to Secure the Attendance of Witnesses from Without the State was properly denied as the only evidence the defendant submitted in support of the motion consisted of the notes from an intern with the Public Defender’s office, which simply summarized the contents of a conversation between the witness and the defendant’s former counsel, and the court was permitted to assign little or no weight to that hearsay evidence; and the police report apparently indicated that the witness was inside of the witness’s residence when the defendant attacked the defendant’s girlfriend outside, and the girlfriend’s trial testimony confirmed that fact. Bowman v.

State, 363 Ga. App. 711, 872 S.E.2d 485, 2022 Ga. App. LEXIS 211 (2022). Unlocated witness. - Neither the Georgia nor the United States Constitution obligated the state to compel the attendance of witnesses who cannot be located within the state’s jurisdiction. Mafnas v. State, 149 Ga. App. 286, 254 S.E.2d 409, 1979 Ga. App. LEXIS 1820 (1979), overruled, Davenport v. State, 289 Ga. 399, 711 S.E.2d 699, 2011 Ga. LEXIS 502 (2011) (decided under Ga. L. 1976, p. 1366, § 5). Trial counsel was not ineffective for failing to take the steps necessary to try to secure an alibi witness, after counsel made attempts to locate the witness, and based on the testimony of both of defendant’s accomplices, and the evidence corroborating that testimony, it was unlikely that the trial would have been different had this alleged alibi witness been found, specially subpoenaed, and testified. Ziegler v. State, 270 Ga. App. 787, 608 S.E.2d 230, 2004 Ga. App. LEXIS 1365 (2004), cert. dismissed, No. S05C0721, 2005 Ga. LEXIS 340 (Ga. Apr. 26, 2005), cert. denied, 546 U.S. 1019, 126 S. Ct. 656, 163 L. Ed. 2d 532, 2005 U.S. LEXIS 8440 (2005) (decided under former O.C.G.A. § 24-1094). Out-of-state corporation. - Court of appeals erred when the court concluded that a request under the former Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Proceedings, former O.C.G.A. § 24-10-90 et seq. (see now O.C.G.A. § 24-13-90 et seq.), that an out-of-state corporation be required to produce purportedly material evidence in the corporation’s possession had to be accompanied by the identification as a material witness of the corporate agent through which the corporation was to act because if the certificate of materiality was issued by the Georgia court, it was for the Kentucky corporation to identify the human agent through whom the corporation would act, perhaps in conjunction with the hearing that would be held in Kentucky upon receipt of the Georgia certificate of materiality. Yeary v. State, 289 Ga. 394, 711 S.E.2d 694, 2011 Ga. LEXIS 501 (2011) (decided under former O.C.G.A. § 24-10-94).

Out-of-state corporation could be “a person” that was a material witness under the former Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Proceedings, former O.C.G.A. § 24-10-90 et seq. (see now O.C.G.A. § 24-13-90 et seq.), and could be determined to be in possession of material evidence, and the expedient course was to permit a party to request that a corporation, rather than the corporation’s human agent, be found to be a material witness under the Uniform Act and leave the issue of designation of the corporation’s human agent to the corporation; the designation need not occur until after a certificate of materiality had been issued by the Georgia trial court and the court in the county in which the out-of-state corporation was located conducted a hearing which the corporation had 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 under former O.C.G.A. § 24-10-92(a). Yeary v. State, 289 Ga. 394, 711 S.E.2d 694, 2011 Ga. LEXIS 501 (2011) (decided under former O.C.G.A. § 24-10-94). In 10 driving under the influence cases, because the defendants failed to present any evidence of facts supporting the existence of an error in their breath test results as required by case law, the trial court did not abuse the court’s discretion when the court determined that the defendants failed to show that the machine’s manufacturer was a material witness under the Uniform Act to Secure Attendance of an Out-of-State Witness, O.C.G.A. § 24-13-94(a). Young v. State, 324 Ga. App. 127, 749 S.E.2d 423, 2013 Ga. App. LEXIS 807 (2013), cert. denied, No. S14C0243, 2014 Ga. LEXIS 361 (Ga. May 5, 2014), cert. denied, No. S14C0249, 2014 Ga. LEXIS 364 (Ga. May 5, 2014). Continuance of case properly denied. - Trial court did not abuse the court’s discretion by denying the defendant’s request for a continuance because the court had granted a certificate pursu-

ant to O.C.G.A. § 24-13-94 to permit the defense an opportunity to obtain the information and witnesses from the breathalyzer manufacturer set the case with enough time for the defense to do so, and, after the Kentucky court issued an order denying the request, which order was entitled to full faith and credit, required the defendant to proceed to trial. Phillips v. State, 324 Ga. App. 728, 751 S.E.2d 526, 2013 Ga. App. LEXIS 923 (2013), cert. denied, No. S14C0457, 2014 Ga. LEXIS 370 (Ga. May 5, 2014). Trial court did not err by denying the defendant’s motion. - Trial court did not abuse the court’s discretion in denying the defendant’s motion for a certificate of need for testimony because the testimony of the expert the defendant presented did not establish the materiality of the evidence sought pursuant to the Uniform Act to Secure the Attendance of Witnesses from Without the State, former O.C.G.A. § 24-10-94(a), which must be supported by admissible and probative evidence; the expert was required to testify to some fact indicating the possibility of an error in the case, but the expert was only able to speculate. Cronkite v. State, 317 Ga. App. 57, 730 S.E.2d 694, 2012 Ga. App. LEXIS 687 (2012), aff’d, 293 Ga. 476, 745 S.E.2d 591, 2013 Ga. LEXIS 593 (2013) (decided under former O.C.G.A. § 24-10-94). Full faith and credit given to out-ofstate order. - Trial court did not err by requiring defendant to proceed to trial without the source code and other requested information because it had granted a certificate pursuant to O.C.G.A. § 24-13-94 to permit the defense an opportunity to obtain the information from the manufacturer located in Kentucky, set the case with enough time to do so, and, after the Kentucky court issued an order denying the request, which order was entitled to full faith and credit, required defendant to proceed to trial. Phillips v. State, 324 Ga. App. 728, 751 S.E.2d 526, 2013 Ga. App. LEXIS 923 (2013), cert. denied, No. S14C0457, 2014 Ga. LEXIS 370 (Ga. May 5, 2014).

RESEARCH REFERENCES Am. Jur. 2d. 38A Am. Jur. 2d, Grand Jury, § 38. 81 Am. Jur. 2d, Witnesses, §§ 4, 6, 10, 34, 35, 39, 66, 68.

C.J.S. 38A C.J.S., Grand Juries, § 41. 98 C.J.S. (Rev), Witnesses, §§ 20 et seq., 32 et seq., 119, 121, 203, 226.