Attorneys for Appellant Attorneys for Appellee
David E. Mosley Steve Carter
Brad Jacobs Attorney General of Indiana
Jeffersonville, Indiana
Christopher C.T. Stephen
Deputy Attorney General
Indianapolis, Indiana
____________________________________________________________________________
__
In the
Indiana Supreme Court
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No. 59S01-0312-CR-608
Darrell Forbes,
Appellant (Defendant below),
v.
State of Indiana,
Appellee (Plaintiff below).
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Appeal from the Orange Circuit Court, No. 59C01-0009-CF-63
The Honorable Larry Blanton, Judge
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On Petition To Transfer from the Indiana Court of Appeals, No. 59A01-0210-
CR-416
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June 22, 2004
Boehm, Justice.
Darrell Forbes was transported to a hospital in Kentucky after a car
he was driving crashed in a single car accident in Indiana which resulted
in Michael Smith’s death. The State issued a subpoena to the hospital for
his blood alcohol content test results, but the subpoena was not issued in
full compliance with the Uniform Act to Secure the Attendance of Witnesses
from Without the State. Ind. Code § 35-37-5-1 (1998). Forbes was charged
in Indiana with operating while intoxicated and operating with a BAC of
.10% or more. We hold that the hospital’s compliance with the subpoena
despite its noncompliance with the Uniform Act renders the test admissible
in evidence in the Indiana court.
Factual and Procedural Background
Forbes was injured and Michael Smith was killed in a one car accident
in Orange County, in Southern Indiana. Indiana State Trooper Gregory Ashby
and emergency personnel arrived at the crash scene. Ashby requested a
blood alcohol content (“BAC”) test of Forbes, but Forbes’s injuries
prevented a test at the scene and Forbes was transported to the University
of Louisville Hospital in Louisville, Kentucky. At Ashby’s request,
relayed by the emergency personnel, the hospital conducted a BAC test.
Early the next morning, Ashby contacted the hospital and was told that
he would need a subpoena to obtain the test results. One week after the
crash, Ashby obtained an Indiana subpoena from the Orange County, Indiana
Circuit Court Clerk and drove with another trooper to meet with the judge
of the Jefferson Circuit Court in Louisville, Kentucky. The Kentucky judge
signed the Indiana subpoena, and Ashby then obtained a Kentucky subpoena
from the Jefferson County Circuit Court clerk and took both subpoenas to
the hospital which is in Jefferson County where he obtained the test
results. The hospital surrendered the test in response to the subpoena.
Ashby neither requested nor received any other medical records.
In a parallel effort to obtain the test results, the Orange County,
Indiana Prosecutor’s office contacted the Prosecutor’s office in Clark
County, Indiana, which is across the Ohio river from Louisville, Kentucky.
The Clark County Indiana prosecutor sent a Kentucky subpoena by certified
mail to the hospital. The hospital responded by sending the requested
documents to the Clark County Prosecutor’s office, and that office released
them to the Orange County Prosecutor.
Forbes was charged in Orange County, Indiana with 1) operating a
vehicle while intoxicated resulting in death, and 2) operating a vehicle
with a blood alcohol content of .10% or more resulting in death. The trial
court denied Forbes’s motion to suppress the BAC test results and certified
the order for an interlocutory appeal. The Court of Appeals reversed,
holding that the evidence must be suppressed because it was not secured
through procedures specified in the Uniform Act to Secure the Attendance of
Witnesses from Without the State. Ind. Code § 35-37-5-1 (1998). This Court
granted transfer. Forbes v. State, 804 N.E.2d 760 (Ind. 2003).
I. Effect of Noncompliance with the Uniform Act
The Uniform Act has been adopted by both Indiana and Kentucky. Ind.
Code § 35-37-5-1 et seq. (1998); Ky. Rev. Stat. Ann §§ 421.230-421.270
(1992). It is designed to provide a method of compelling attendance of
witnesses or documents from another state, and authorizes the issuance of
subpoenas to that end. See generally, Jay M. Zitter, Annotation,
Availability Under the Uniform Act to Secure the Attendance of Witnesses
from Without a State in Criminal Proceedings of Subpoena Duces Tecum, 7
A.L.R. 4th 836, 837 (1981). The Uniform Act does not provide any explicit
remedies for failure to follow its procedure and does not purport to be the
exclusive method for sharing information across state lines. The Indiana
version of the Uniform Act, in Indiana Code section 35-37-5-5, provides for
compelling a witness in another state to appear in Indiana. To invoke the
statute, a judge of the Indiana court is to issue a “certificate” reciting
that the person is sought as a material witness and specifying the number
of days attendance is required. The certificate is to be “presented” to a
judge in the county of the other state (in this case Kentucky) where the
witness is found. The Kentucky Uniform Act provides that upon
“presentation” of a certificate from another state under the Uniform Act,
the judge of a court in the county where the witness is found is to set a
hearing and issue a summons commanding attendance in the Indiana
proceeding. Ky. Rev. Stat. Ann. § 421.240.
The Court of Appeals took the view that the State was required to
follow the Uniform Act to obtain the test. If so, charges must be filed
against Forbes or a grand jury impaneled in Indiana in order to meet the
requirement of the statute that there be a pending proceeding. The judge
of the Indiana court would then issue a certificate stating the State had
charged Forbes. This certificate was to be presented to a judge in
Louisville (Jefferson County, Kentucky) who would set a hearing in which
the Kentucky law prerequisites for compelling attendance in another state
court could be heard. Forbes v. State, 793 N.E.2d 1112, 1118 (Ind. Ct. App.
2003).
It is clear that the process prescribed by the statute was not met
here. Both the subpoenas served by the trooper in person and the subpoena
mailed by the Clark County prosecutor’s office were issued without a
hearing. Neither subpoena was based on a certificate signed by the judge
of an Indiana court and reciting the matters required by the statute. But
the issue is whether the Uniform Act affords the exclusive procedure to
obtain a witness from another jurisdiction. We hold, consistent with
precedent in other states, that it is not.
As was held in the early days of statutory authority for compulsion of
witnesses across state lines, the Uniform Act is permissive legislation.
It is not the exclusive method to share information. See, e.g., People v.
Dozier, 45 Cal. Rptr. 770, 777 (Cal. Ct. App. 1965) (“The existence of
permissive legislation to obtain the presence of witnesses from out of
state is not a requirement that the machinery thus provided be used in
every instance.”). The procedure contemplated by the Kentucky law is for
the benefit of the witness, not the parties. The issues to be heard in the
receiving state (Kentucky) relate to the burden on the witness of
testifying in another state, not concern for the parties.[1] The witness
remains free to waive the requirement of a hearing in the receiving state
and agree to any means of presenting testimony or producing their documents
in another state that are acceptable to them and comply with the Rules of
Evidence. The hospital chose to surrender the documents in response to the
subpoenas it received. Nothing prohibits a witness from voluntarily
responding to a request to cross the state line to testify. The witness
may require a subpoena, as the hospital did here. If so, that imposes the
protections and conditions afforded by Kentucky law under its version of
the Uniform Act, but the parties to the Indiana proceeding have no basis to
complain if the witness chooses to waive its requirements and testify or
supply documents voluntarily. The same is true if, as here, the documents
are supplied in response to a subpoena that resulted from proceedings other
than those provided by the Uniform Act.
II. Court Approval of the Subpoenas
In Oman v. State, 737 N.E.2d 1131, 1148 (Ind. 2000), discussed below,
this Court established a framework for Indiana prosecutors to obtain
private records: (1) “a prosecutor acting without a grand jury must seek
leave of court before issuing a subpoena duces tecum for the production of
documentary evidence maintained by a third party,” and (2) “the trial judge
or magistrate will review the subpoena for reasonableness using the three-
factor City of Seattle test.”
Oman was handed down on September 26, 2000. The University of
Louisville Hospital complied with Jefferson County’s subpoena on September
18, and the Clark County subpoena on September 29, pursuant to a process
the State had initiated before September 26. Oman itself made clear that
its requirements apply only to processes initiated after that date. 737
N.E.2d at 1138. Accordingly, the requirements announced in Oman are
inapplicable here.
Although the leave of court requirement established in Oman does not
apply to these subpoenas, they must still meet the reasonableness
requirement of the Fourth Amendment to the United States Constitution.
Pursuant to See v. City of Seattle, 387 U.S. 541 (1967), a subpoena duces
tecum is reasonable if it is: 1) sufficiently limited in scope, 2) relevant
in purpose, and 3) specific in directive so that compliance will not be
unreasonably burdensome. See also Oman, 737 N.E.2d at 1141. Forbes
contends that the first subpoena was not sufficiently limited because on
its face it was not limited to blood alcohol tests and gave the troopers
unbridled discretion as to the records to be taken. The subpoena served by
the troopers sought “Medical Records of Darrell Lee Forbes, SSN [deleted],
DOB [deleted].” There is no suggestion that Forbes had in fact been at the
Louisville hospital on any prior occasion. However, at least
theoretically, the subpoena could have called for Forbes’s psychiatric
records or other private information irrelevant to any pending charges. We
agree that the subpoena was facially overbroad, but do not agree that the
BAC test results must be suppressed for that reason. Had the hospital or
Forbes objected to the subpoena at the time Trooper Ashby served the
subpoena, we would be faced with a different case. However, the hospital
in supplying the information did not object to the breadth of the subpoena
and Trooper Ashby in serving it asked for only the BAC test results. To
the extent Forbes has a right to keep other medical information private,
that right to privacy is not implicated here because no protected
information was sought or obtained. To be sure, the request for “medical
records” might have been quashed as “overbroad” if the issue were raised
before the hospital complied. But because only BAC results were produced,
no interest would be furthered by requiring the State to obtain a more
specific subpoena duces tecum and repeat the drill. In any event, Forbes
concedes that the subpoena from Clark County was sufficiently specific in
its request for “Certified copies of any and all medical records showing
result of Blood Alcohol Content Test performed on DARRELL LEE FORBES, DOB
[deleted], SS# [deleted], for [sic] on September 10, 2000”.
Finally, Forbes contends that the subpoena was defective because there
was “little or no evidence that alcohol was involved” in the accident, thus
rendering the subpoena irrelevant. We disagree. Trooper Ashby’s affidavit
establishing probable cause indicated that Forbes was driving at a high
rate of speed and drove in a reckless manner. The officer noticed a stench
of alcohol at the crash scene and alcoholic containers within plain view.
Witnesses reported Forbes throwing beer cans out the window. Given these
circumstances, Trooper Ashby’s actions were relevant to and were
appropriate responses during the course of a reasonable investigation.
Conclusion
The trial court’s ruling denying Forbes’s motion to suppress is
affirmed. This case is remanded to the trial court for further
proceedings.
Shepard, C.J., and Dickson, Sullivan and Rucker, JJ., concur.
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[1] The Kentucky statute requires the judge to determine that 1) the
witness is material and necessary, 2) it will not cause undue hardship to
the witness to be compelled to attend in the other state, and 3) the laws
of the requesting state give the person protection from arrest and the
service of civil and criminal process. Ky. Rev. Stat. Ann. 421.240.