Certiorari to the Court of Appeals of Georgia -- 326 Ga.App. 217.
Judgment reversed in part, and case remanded with direction. All the Justices concur.
Head, Thomas, Webb & Willis, Gregory A. Willis, for appellant.
Dennis C. Sanders, District Attorney, William P. Doupé, Assistant District Attorney, for appellee.
NAHMIAS, Justice. All the Justices concur.
We granted certiorari in this case to decide whether, under Georgia's new Evidence Code, hearsay evidence is admissible in determining whether an out-of-state person is a material witness to a Georgia criminal proceeding under our State's Uniform Act to Secure the Attendance of Witnesses from Without the State, OCGA § 24-13-90 et seq. (the " out-of-state witness act" ). As explained below, we hold that a proceeding on a
motion for issuance of a material witness certificate is a fact-finding proceeding to which the new evidence rules apply under OCGA § 24-1-2 (b), unless an exception applies -- but an exception does apply. Under OCGA § 24-1-2 (c) (1), the hearsay and other rules of evidence, aside from privileges, do not apply to " [t]he determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under Code Section 24-1-104." And determining whether a [296 Ga. 587] particular out-of-state person can offer testimony that is material to the particular Georgia criminal proceeding involves " [p]reliminary questions concerning the qualification of [the] person to be a witness" in the case under OCGA § 24-1-104 (a).
The trial court therefore erred in applying the hearsay rules to exclude appellant Jason Parker's proffered documents from the evidence the court considered in ruling on his motion for material witness certificates, and the Court of Appeals erred in Division 1 of its opinion in affirming the trial court's order denying Parker's motion. See Parker v. State, 326 Ga.App. 217, 218-219 (756 S.E.2d 300) (2014). Accordingly, we reverse the Court of Appeals' judgment in part and remand the case for further proceedings consistent with this opinion.
1. The parties have stipulated to the following facts. On April 5, 2012, at about 9:28 p.m., a Georgia State Patrol trooper conducted a traffic stop of Parker, who was driving his SUV at 72 miles per hour on Route 10 in Wilkes County where the posted speed limit was 55 mph. The trooper detected a moderate odor of alcohol coming from inside the SUV and smelled a faint odor of alcohol on Parker's breath. Parker initially denied drinking but later admitted that he had consumed alcohol earlier that day. After administering field sobriety tests, which Parker failed, the trooper arrested Parker for driving under the influence (" DUI" ). The trooper then read Parker the implied consent warnings, and he agreed to submit to breath tests to determine his alcohol concentration. The trooper transported Parker to the local sheriff's office, where he was tested on a properly functioning Intoxilyzer 5000 machine that produced readings of 0.158 and 0.157 and generated a printout card documenting those results.
On August 16, 2012, the State filed an accusation charging Parker with driving with an alcohol concentration of 0.08 grams or more (" DUI per se" ), driving while under the influence of alcohol to the extent that it was less safe for him to drive (" DUI less safe" ), and speeding. On December 10, 2012, Parker filed a motion under the out-of-state witness act asking the trial court to issue material witness certificates -- the first step in the two-step process for compelling an out-of-state witness to testify or otherwise provide evidence in a criminal proceeding in Georgia. The motion sought [296 Ga. 588] certificates designating CMI, Inc., the Kentucky-based manufacturer of the Intoxilyzer 5000, and five named agents or employees of CMI as material witnesses, in order to secure their appearance in Georgia with the source code for the machine. Parker noted that the
Intoxilyzer 5000 printout card showing the results of his breath tests was sufficient evidence to convict him of DUI per se and argued that he was unable to challenge the reliability and accuracy of these results without access to the machine's source code.
Georgia's new Evidence Code took effect on January 1, 2013. See Ga. L. 2011, p. 99, § 101 (" This Act shall become effective on January 1, 2013, and shall apply to any motion made or hearing or trial commenced on or after such date." ). Although not statutorily required to do so, the trial court elected to hold an evidentiary hearing on Parker's motion on February 6, 2013. Parker called no witnesses, proffering only documents for the court to consider in deciding [296 Ga. 589] whether to issue the material witness certificates. The State did not object when Parker proffered the Intoxilyzer 5000 printout card with the results of his breath tests. The State objected on the ground of hearsay, however, when Parker proffered a transcript of testimony that his expert witness on computer source code, Thomas E. Workman, Jr., had given in another case, two affidavits from Workman that were submitted in other cases, and two published articles and a report from the National Safety Council concerning the Intoxilyzer 5000 and breath alcohol testing in general. In response to the objection, Parker argued that the new rules of evidence, including the hearsay rules, do not apply to hearings on a motion for a material witness certificate. The court allowed the proffered documents to be entered into the record but reserved a ruling on the hearsay objection. On February 14, 2013, the court entered an order sustaining the State's hearsay objection and therefore denying Parker's motion for failure to prove the materiality of the witnesses requested.
On May 22, 2013, the trial court held a bench trial on stipulated facts, which included a stipulation that the breath test results were admissible except for Parker's objection based on the denial of his motion for material witness certificates and, in particular, the court's refusal to consider his proffered documents. The court overruled Parker's objection, admitted the breath test results, and found him guilty as charged. The court sentenced Parker to concurrent terms of 12 months in the county jail for DUI per se and speeding, with the first 72 hours to be served in confinement and the remainder to be served on probation.
Parker then appealed, but the Court of Appeals affirmed his convictions. See Parker, 326 Ga.App. at 220. Division 1 of its opinion held that a hearing under the out-of-state witness act is a " fact-finding proceeding" within the meaning of OCGA § 24-1-2 (b) to which the rules of evidence, including the hearsay rules, apply. Parker, 326 Ga.App. at 219. And because Parker presented only hearsay
evidence as to materiality during the hearing on his motion, the Court of Appeals affirmed the trial court's order denying Parker's motion for material witness certificates. See id.
We granted Parker's petition for certiorari to review this evidentiary issue.
[296 Ga. 590] 2. (a) OCGA § 24-1-2 governs the applicability of the new Evidence Code to proceedings in Georgia courts after the new Code's effective date of January 1, 2013. Subsection (a) says that the rules of evidence shall apply in all jury trials, and subsection (b) says that the rules " shall apply generally to all nonjury trials and other fact-finding proceedings ... subject to the limitations set forth in subsections (c) and (d)." Subsection (c) then lists eight situations where " [t]he rules of evidence, except those with respect to privileges, shall not apply," and subsection (d) lists four additional situations where the rules do not or may not apply fully.
(b) The Court of Appeals held that the trial court's determination of a requested witness's materiality under the out-of-state witness act was a " fact-finding proceeding[ ]" within the ...