Davenport v. State

PHIPPS, Presiding Judge. Emily Davenport was convicted of driving under the influence of alcohol. In Davenport v. State, 1 she appealed from the conviction, challenging the trial court’s denial of her motion for an order authorizing the issuance of a subpoena to an out-of-state witness. 2 In denying Davenport’s motion, the trial court determined that the out-of-state witness’s testimony was not necessary and material to the case. 3 We affirmed the judgment. 4 The Supreme Court of Georgia vacated our judgment and remanded the case to us with direction. 5 The Court held that we erred in stating that Davenport was required to make a showing that the out-of-state witness was a “necessary and material” witness. 6 The Court explained that, under OCGA § 24-10-94, the Georgia trial court is required to “determine only whether the out-of-state witness is a ‘material witness’ in the Georgia criminal prosecution and whether it should issue the certificate requesting the out-of-state court to order the out-of-state witness to attend the criminal proceeding in Georgia.” 7 Whether the witness is “necessary and material,” the Court further explained, “is one of the determinations that must be made under OCGA § 24-10-92 (b) by the judge in the county where the out-of-state witness is located.” 8 Because the court below did not apply the proper statute in this case, 9 we remand the case for the court to apply the correct statute and revisit Davenport’s motion for an order authorizing the issuance of the out-of-state subpoena. 10 If the trial court determines that the witness is a material witness, then it must consider whether it should have issued a certificate in this case and, if so, whether Davenport is entitled to a new trial or a new trial conditioned on the issuance by the out-of-state court of a subpoena to compel the appearance of the witness in Georgia. 11 If the trial court determines *746 that no new trial is warranted, the judgment of conviction will stand affirmed, provided that Davenport may file a timely appeal from that determination. 12 Decided January 27, 2012. Head, Thomas, Webb & Willis, William C. Head, for appellant. Barry E. Morgan, Solicitor-General, Joseph W. Hudson, Assistant Solicitor-General, for appellee. Judgment affirmed on condition and case remanded with direction. Dillard and Boggs, JJ., concur. Footnotes [1] 303 Ga. App. 401 (693 SE2d 510) (2010). [2] Id. [3] The trial court expressly incorporated the reasoning and legal analysis set forth in the order in another case pending below, which order included the “necessary and material” statutory language. [4] Davenport, supra at 403. [5] Davenport v. State, 289 Ga. 399, 404 (711 SE2d 699) (2011). [6] Id. at 402. [7] Id. [8] Id. [9] See id. at 404. [10] See Spann v. State, 310 Ga. App. 575, 576 (1) (713 SE2d 722) (2011). [11] Id.; DiMauro v. State, 310 Ga. App. 526, 529 (2) (714 SE2d 105) (2011). [12] See Spann, supra; DiMauro, supra.