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Gregg v. State

Court of Appeals of Georgia

March 30, 2015

GREGG
v.
THE STATE

Cert. applied for.

Subpoena duces tecum. Walker Superior Court. Before Judge Van Pelt.

McCracken Poston, for appellant.

Herbert E. Franklin, Jr., District Attorney, Kay Baker, Assistant District Attorney, for appellee.

OPINION

McFadden, Judge.

We granted Sharon Diane Gregg's application for interlocutory appeal challenging an order entered by the Superior Court of Walker County denying her pretrial motion to compel concerning a subpoena duces tecum. Because the subpoena sought evidence relevant to Gregg's sole defense, the trial court erred in denying the motion and we therefore reverse.

A Walker County prosecuting attorney entered an accusation against Gregg for one count of theft by taking (OCGA § 16-8-2). The state alleged that Gregg, a pharmacy employee, repeatedly removed currency from the pharmacy's cash register for her personal benefit. Gregg contends that the owner of the pharmacy instructed her to remove funds from the cash register in order to pay visiting pharmacists and to conduct other business of the pharmacy, including the purchase of employee lunches. As part of her defense, Gregg issued a subpoenas duces tecum that sought

any and all federal and state tax records for [the pharmacy] indicating employees; FICA; copies of W-2's for all employees;

Page 487

1099 forms for pharmacists and clerks; any and all papers for reconciliation of cash register accounting; lists of employees by salary, hourly and accounting of all cash disbursements for the payment of pharmacists and employees; [and] accounting for all cash not deposited or accounted for with federal and state tax authorities.

The state moved to quash this subpoena, and the trial court held a hearing at which the production of Internal Revenue Form 1099 records was discussed. The trial court took the issue of the production of 1099 forms under advisement.

Subsequently, Gregg issued another subpoena duces tecum that [331 Ga.App. 834] sought

[d]ocuments listing any and all employees, both " on books" and " off books," at [the pharmacy] for the years 2009 and 2010; any and all full names and addresses of any individual paid as a taxed employee and any and all full names and addresses of any individual paid in cash.

Following a partial response to this subpoena, Gregg filed a motion to compel compliance with it. The ...


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