February 16, 2015
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 meaning of OCGA § 24-1-2 (b). We agree.
[296 Ga. 591] A party's ability to obtain a material witness certificate turns on the court's finding of certain facts. OCGA § 24-13-94 (a) requires a Georgia court asked to issue a material witness certificate to determine whether the person sought " is a material witness in a prosecution pending in a court of record in this state or in a grand jury investigation which has commenced or is about to commence."  The finding of materiality requires a determination of whether the witness " 'can testify about matters having some
logical connection with the consequential facts' " of the case at hand, Davenport v. State, 289 Ga. 399, 404 (711 S.E.2d 699) (2011) (citation omitted), which we have explained requires findings about the particular facts of the witness and the case. See Cronkite v. State, 293 Ga. 476, 477-478 (745 S.E.2d 591) (2013).
Accordingly, under OCGA § 24-1-2 (b), the rules of evidence apply to a proceeding for issuance of a material witness certificate under the out-of-state witness act unless one of the exceptions in OCGA § 24-1-2 (c) or (d) applies. We turn next to that question, which the Court of Appeals' opinion did not address.
3. Parker points us to two of the exceptions in OCGA § 24-1-2 (c) that he says exempt a proceeding for a material witness certificate from the rules of evidence and, in particular, from the hearsay rules.
(a) First, Parker invokes OCGA § 24-1-2 (c) (3), under which the rules of evidence, other than privileges, do not apply to " [p]roceedings for extradition or rendition." Parker acknowledges that a proceeding for a material witness certificate under the out-of-state witness act is not actually a proceeding for extradition or rendition, as material witness proceedings seek the production of witnesses to crimes, not the alleged criminals. See Black's Law Dictionary (9th ed. 2009) (defining " extradition" as " [t]he official surrender of an alleged criminal by one state or nation to another having jurisdiction over the crime charged; the return of a fugitive from justice, regardless of consent, by the authorities where the fugitive is found," and defining " rendition" in this context as " [t]he return of a fugitive from one state to the state where the fugitive is accused or was convicted of a crime" ). Nevertheless, Parker contends that it is enough that proceedings [296 Ga. 592] under the out-of-state witness act " closely resemble" extradition or rendition proceedings. Under Georgia's new Evidence Code, however, resemblance to one of the enumerated situations in which the evidence rules do not fully apply is not enough.
Our new Evidence Code was based in large part on the Federal Rules of Evidence. See Paul S. Milich, Georgia Rules of Evidence § 1:2, at 5 (2014-2015 ed.) (hereinafter " Milich" ). And where the new Georgia rules mirror their federal counterparts, it is clear that the General Assembly intended for Georgia courts to look to the federal rules and how federal appellate courts have interpreted those rules for guidance. Thus, the uncodified first section of the statute enacting the new Evidence Code explains:
It is the intent of the General Assembly in enacting this Act to adopt the Federal Rules of Evidence, as interpreted by the Supreme Court of the United States and the United States circuit courts of appeal as of January 1, 2013, to the extent that such interpretation is consistent with the Constitution of Georgia. Where conflicts were found to exist among the decisions of the various circuit courts of appeal interpreting the federal rules of evidence, the General Assembly considered the decisions of the 11th Circuit Court of Appeals. It is the intent of the General Assembly to revise, modernize, and reenact the general laws of this state relating to evidence while adopting, in large measure, the Federal Rules of Evidence.
See Ga. L. 2011, p. 99, § 1. Where a provision of the new Evidence Code differs in substance from the counterpart federal rule,
as interpreted by federal courts, we must correspondingly presume that the General Assembly meant the Georgia provision to be different.
[296 Ga. 593] Applying these interpretive principles here, we first recognize that OCGA § 24-1-2's counterpart in the federal rules is Federal Rule of Evidence 1101. The two provisions are similar in most respects, making the rules of evidence generally applicable to most court proceedings. See OCGA § 24-1-2 (a), (b); Fed.R.Evid. 1101 (a), (b). Both the Georgia and federal provisions then provide for exceptions, and most of the specified exceptions in the two rules overlap. But there is a significant difference in how the exceptions are introduced. The third exception set forth in the federal rule is for " miscellaneous proceedings such as " the six types of proceedings that are then listed. Fed.R.Evid. 1101 (d) (3) (emphasis added). Thus, the federal rule [296 Ga. 594] expressly authorizes federal courts to limit the application of the rules of evidence in situations that resemble the situations specified in the rule.
OCGA § 24-1-2 does not have a similar catch-all exception for " miscellaneous proceedings such as" followed by a list of illustrative examples. Instead, the Georgia statute enumerates in subsections (c) and (d) twelve situations, and only twelve, where the rules of evidence have limited application. The comprehensive and mandatory language of OCGA § 24-1-2 (a) and (b), coupled with the absence in OCGA § 24-1-2 (c) or (d) of a " miscellaneous proceedings such as" exception like the one found in the corresponding federal rule, indicates that the twelve statutorily enumerated exceptions constitute an exclusive list.
Leading commentators on the new Evidence Code agree with this conclusion and suggest why the Georgia provision differs from the federal model in this respect. Professors Ronald and Michael Carlson explain that the new Georgia Code was written to prevent courts from creating patchwork exceptions to the applicability of the rules of evidence, which had been a criticism of the old code.
Previous Georgia statutory law provided a broad and general statement of when the evidence rules applied. Particular proceedings were left to case-by-case development
and the gaps were filled in by sometimes inconsistent case law. OCGA [§ ] 24-1-2 establishes a much clearer definition for applicability of the evidence rules because, unlike the former rule, it provides far more particulars in terms of where Georgia's new evidence rules will and will not apply.
Carlson & Carlson, supra, at 7. See also Milich, supra, § 1:2, at 5 (" If a specific hearing is not addressed in subsections (c) or (d), then the rules of evidence apply to that hearing pursuant to new O.C.G.A. § 24-1-2 (b)." ).
In sum, under our new Evidence Code, unless a fact-finding proceeding involves one of the twelve situations enumerated in OCGA § 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. Accordingly, Parker's reliance on OCGA § 24-1-2 (c) (3) is misplaced.
(b) Parker also relies, however, on OCGA § 24-1-2 (c) (1), which says that the rules of evidence, other than privileges, shall 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." OCGA § 24-1-104 elaborates on what [296 Ga. 595] OCGA § 24-1-2 (c) (1) calls " questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court" as follows:
Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subsection (b) of this Code section. ...
OCGA § 24-1-104 (a). The rule then reiterates what is said in OCGA § 24-1-2 (c) (1): " In making its determination, the court shall not be bound by the rules of evidence except those with respect to privileges." 
As discussed above, obtaining production of a material witness under the out-of-state witness act requires proof of various facts pertaining to the particular witness and case. The party seeking a material witness certificate must show that the person sought is a " material witness" in the underlying criminal proceeding, OCGA § 24-13-94 (a), meaning that the person is capable of " 'testify[ing] about matters having some logical connection with the consequential facts' " of the case, Davenport, 289 Ga. at 404. And if a certificate is issued, the party must show the court in the receiving state that the witness is " material and necessary," among other things. OCGA § 24-13-92 (b). These are " [p]reliminary questions concerning the qualification of a person to be a witness" within the meaning of OCGA § 24-1-104 (a). [296 Ga. 596] See also OCGA § 24-6-602 (to be competent to testify to a matter, a lay witness must have " personal knowledge of the matter" ). And OCGA § § 24-1-2 (c) (1) and 24-1-104 (a) both state clearly that in this situation, the rules of evidence, other than privileges, do not apply; the inapplicable rules include the hearsay rules.
This conclusion is bolstered by the recognition that OCGA § 24-13-94 permits a court to decide a motion to issue a material witness certificate without holding an evidentiary hearing, see footnote 4 above, although the court still must find certain facts to make the decision; when no hearing is held at which live testimony can be given, the evidence the court considers in making its decision will often be hearsay. See OCGA § 24-8-801 (c) (" 'Hearsay' means a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." ). It is also worth noting that this conclusion appears to conform with traditional practice in Georgia and other states in allowing the use of hearsay evidence in out-of-state witness proceedings. See, e.g., Wollesen v. State, 242 Ga.App. 317, 318-321 (529 S.E.2d 630) (2000); In re California Grand Jury Investigation, 57 Md.App. 804, 471 A.2d 1141, 1143-1145 (Md. Ct. Spec. App. 1984).
4. For these reasons, the trial court erred in sustaining the State's hearsay objection to the evidence that Parker proffered in support of his motion for material witness certificates, and then in denying his motion for lack of evidence. Likewise, the Court of Appeals erred in Division 1 of its opinion in upholding the trial court's evidentiary ruling and affirming the denial of the material witness certificates on the ground that Parker " presented no admissible evidence during the hearing on his motion." Parker, 326 Ga.App. at 219. Instead, the Court of Appeals should have vacated Parker's convictions and the order denying his motion for material witness certificates, reversed the trial court's exclusion of Parker's proffered documents, and remanded the case to the trial court with direction to issue a new order on Parker's motion after considering his proffers, along with any other unprivileged evidence submitted by Parker and the State on remand.
The trial court should give the evidence presented " such weight as [the court's] judgment and experience counsel." United States v. Matlock, 415 U.S. 164, 175 (94 S.Ct. 988, 39 L.Ed.2d 242) (1974). " [C]ertainly there should be no automatic rule against the reception [296 Ga. 597] of hearsay evidence in such proceedings [where the judge alone is considering the admissibility of evidence]." Id. (applying Federal Rules of Evidence 104 (a) and 1101 (d) (1)). However, the trial court retains the prerogative as the fact-finder to determine the weight and credibility of the evidence submitted, and in making this determination, the court may consider the fact that evidence was presented in the form of hearsay rather than testimony subject to cross-examination or evidence bearing other indications of trustworthiness. See Milich, supra, § 1:7, at 7 (explaining that while hearsay statements should be considered by the court in determining preliminary questions under OCGA § 24-1-104 (a), the court " must decide whether their hearsay character so reduces their reliability that the facts are not proven by a preponderance of the evidence. In other words, the hearsay character of the evidence goes to weight, not admissibility." ); John Bourdeau et al., 12 Fed. Proc., L.Ed. § 33:36 (2010 ed.) (explaining that Federal Rule of Evidence 104 (a) recognizes " the ability of the court to receive all relevant evidence and to discount evidence that is inherently untrustworthy or suspicious," and that " even though the court may consider evidence which would normally be excluded at trial, the court still has a duty to weigh the evidence and discount that which is less reliable" ).
If the trial court on remand grants Parker's motion for material witness certificates in whole or in part, and Parker then succeeds in obtaining summonses for the witnesses from the Kentucky court, then a new trial will be necessary. If, on the other hand, the trial court denies the motion again, then the court should reenter the judgments of conviction against Parker, who could then take another appeal challenging the second ruling
on his motion and any related issues. Cf. Moore v. State, 290 Ga. 805, 809-810 (725 S.E.2d 290) (2012) (vacating the defendant's conviction and remanding the case to the trial court with direction to hold a similar transaction hearing and then either to enter the findings required to admit the evidence or, if the evidence was inadmissible, to order a new trial).
Judgment reversed in part, and case remanded with direction. All the Justices concur.