Cronkite v. State

Doyle, Presiding Judge,

dissenting.

Because I believe the trial court abused its discretion in this case, I respectfully dissent.

As stated by the majority, Davenport v. State 5 a similar case addressing an attempt to review the source code of the Intoxilyzer 5000, established the following definition of a “material witness”: one “who can testify about matters having some logical connection with the consequential facts, especially] if few others, if any, know about these matters.”6

Here, the trial judge stated on the record that he was “impressed” with Malhiot’s testimony, that his testimony was “very credible,” and that Cronkite had presented “good evidence.” This testimony explained in detail how certain parameters included in the source code directly affect the Intoxilyzer’s ability to calibrate itself, to detect and to identify errors in the test, and to return accurate readings. And it is undisputed that few, if any, witnesses other than the one sought by Cronkite can testify as to the content of the source code. Therefore, based on the uncontroverted evidence deemed credible by the trial court at the hearing, the court abused its discretion by concluding that the source code had no logical connection with the consequential facts of this case.

Although the State and majority are correct that Cronkite presented no evidence of actual inaccuracies in the blood alcohol readings either due to calibration errors or Cronkite’s dental implants, requiring a criminal defendant to demonstrate errors in the source code without allowing him to examine it frustrates entirely his rights *62under the United States and Georgia Constitutions to compulsory process for obtaining witnesses in his defense.7 As noted by the concurrence in Davenport, the material witness standard alleviates due process concerns that can exist

when the State enacts a statutory scheme in which: (1) evidence usually determinative of the defendant’s guilt (e.g., blood alcohol content in a per se DUI prosecution) is tested and reported, not by forensic experts who testify and face cross-examination on the reliability of their methods and the accuracy of their results, but rather by a machine (e.g., the Intoxilyzer 5000) that takes in a specimen from the defendant and, through internal mechanisms and computer code, generates a test report; (2) the machine’s computer code is unavailable to the defendant through discovery or compulsory process because the State avoids possessing it in Georgia; (3) the machine’s test result is admissible at trial through a witness who can say that he was qualified to operate the machine and it operated as designed (see, e.g., OCGA § 40-6-392 (a)), but who has no knowledge about whether the machine was in fact designed to produce reliable and accurate results under the circumstances presented; and (4) the machine uses up the specimen, with nothing maintained for later confirmation or independent testing.8

Further, if, as explained by Cronkite’s witness, the source code’s parameters were flawed, the blood alcohol readings returned by the Intoxilyzer would not be reliable despite the lack of evidence of error. Thus, the materiality of the source code is demonstrated by the fact that the sole evidence of Cronkite’s specific blood alcohol concentration depends on the accuracy and function of the source code’s parameters.9

*63Moreover, the majority appears to overlook the limited nature of the inquiry at this stage of the proceedings. As explained by our Supreme Court in Davenport, the first level of inquiry when a motion is filed under OCGA § 24-10-94 (a) is whether the person is a material witness in a pending prosecution in a Georgia court of record and whether the other state has laws for commanding persons within its borders to attend and testify in criminal prosecutions in Georgia.10 What is not at issue at this stage is whether that witness is necessary to the pending prosecution. That question is reserved for the out-of-state court, if the Georgia court issues a certificate of materiality. The out-of-state court must make its own determinations as to whether “the witness is material and necessary to the Georgia criminal proceeding, [whether] compelling the witness to attend the Georgia proceeding and testify would . . . cause an undue hardship to the witness, and [whether] Georgia will give the witness protection from arrest and the service of civil or criminal process.”11 Indeed, in Davenport, the Supreme Court of Georgia held that it was improper for the Georgia court to weigh whether the witness was necessary; what matters here is only whether the witness is material:

the Georgia trial court evaluates the request under OCGA § 24-10-94 and must 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.12

Thus, under Davenport, the case before us presents only the question of whether the out-of-state witness can testify about matters with some logical connection to the consequential facts of this case.

I am cognizant of the potential for abuse of this process. But this case is controlled by the statutory scheme established by the General Assembly and the precedent of the Supreme Court of Georgia interpreting that scheme. In light of the trial court’s explicit findings of credibility and the relatively low threshold for materiality established by the Supreme Court in Davenport, I conclude that the trial court abused its discretion by determining that the Intoxilyzer’s source code was not material to this case.

*64Decided July 16, 2012 Mcllhinney & Sessions, Daniel B. Sessions, for appellant. Rosanna M. Szabo, Solicitor-General, Meredith L. Chafin, Assistant Solicitor-General, for appellee.

I am authorized to state that Presiding Judge Barnes and Presiding Judge Phipps join in this dissent.

289 Ga. 399, 404 (711 SE2d 699) (2011).

(Punctuation omitted.) Id. at 404. Davenport did not reach the question of whether the witness was a material witness.

See id. at 399 (“The Sixth Amendment to the U. S. Constitution and Article I, Sec. I, Par. XTV of the Georgia Constitution guarantee a Georgia criminal defendant the right to compulsory process for obtaining witnesses in his defense.”).

Davenport, 289 Ga. at 404-405 (Nahmias, J., concurring).

The majority characterizes the expert’s testimony as wholly speculative and therefore without probative value. But this ignores the nonspeculative testimony as to how the source code controls the Intoxilyzer 5000 and how the software influences the outcome of the analysis. Such testimony must be seen to have some logical connection to the consequential facts. As more fully explained by Layfield v. Dept. ofTransp., 280 Ga. 848, 850 (1) (632 SE2d 135) (2006), cited by the majority, “the appropriate standard for assessing the admissibility of the opinion of [an] expert is not whether it is speculative or conjectural to some degree, but whether it is wholly so.” But even this argument is premature, because what is at stake in this case is materiality, not admissibility.

See id. at 401. Whether the foreign state has laws for commanding persons to testify in Georgia is not at issue in this case.

Id. at 401.

(Emphasis supplied.) Id. at 402.