Williams v. Russo

¶1This appeal stems from the superior court’s dismissal of Mario Williams’s warrant application for a probable-cause hearing to consider criminal offenses that he alleges were committed by Andrew Russo, a Georgia Correctional Officer. Williams appeals, arguing that the trial court erred in dismissing the warrant application and, further, in quashing a subpoena that he served upon the Georgia Department of Corrections (the “Department”). For the reasons set forth infra, we vacate the trial court’s dismissal of the warrant application and remand the case for further proceedings consistent with this opinion, but we affirm the trial court’s quashing of the subpoena served upon the Department.

¶2The facts pertinent to this appeal are essentially undisputed. Mario Williams, a practicing attorney, represents several inmates housed at the Georgia Diagnostic and Classification Prison in Jackson, Georgia. Williams alleges that Russo, an employee of the prison, intentionally opened, read, and/or took without returning attorney-client privileged mail from at least one of his imprisoned clients.

¶3As a result of the foregoing, Williams filed a warrant application setting forth his allegations against Russo and moving the superior court to conduct a probable-cause hearing. Williams also served a subpoena on the Department, requesting that it produce for the hearing, inter alia, video surveillance from the prison, copies of the Department’s standard operating procedures and policies related to the searching of inmate mail, and any complaints made by Department employees or inmates against Russo in the last three years. The Department moved to quash this subpoena on the grounds that it was improperly served in that it (1) was not accompanied by the tender of a witness fee and mileage expenses, (2) sought irrelevant information and was unreasonable and oppressive, and (3) sought documents for a proceeding that was being pursued in an improper forum.

¶4The trial court scheduled a hearing to consider the foregoing matters and, at the commencement of the hearing, Russo argued that, in light of the procedural safeguards afforded peace officers pursuant to OCGA §§ 17-7-521 and 45-11-4,2 it was improper for the *655superior court to conduct a probable-cause hearing as to the merits of Williams’s application. Specifically, Russo asserted that Williams was statutorily mandated to present his complaint to the district attorney, who would then determine whether to pursue a warrant and, if so, present the case to a grand jury in accordance with the statutory scheme outlined by OCGA §§ 17-7-52 and 45-11-4. The Department, in turn, argued that the subpoena should be quashed for the reasons noted supra.

¶5Following the hearing, the trial court dismissed the warrant application, holding that, “it appears this matter should proceed as contemplated by OCGA § 17-7-52 et seq.” Additionally, the trial court quashed the subpoena as invalid for failing to include the statutorily mandated witness fee and mileage expenses. This appeal follows.

¶61. Williams asserts that the trial court erred in dismissing the warrant application on the grounds stated in its opinion. We agree.

¶7Our analysis must begin by acknowledging that, under the laws of Georgia, arrest warrants may be procured not only by law-enforcement officials, but also by private citizens.3 The relevant statutory scheme (i.e., OCGA § 17-4-40 et seq.), however, includes safeguards to protect against abuse of this privilege by our citizens. Thus, pursuant to OCGA § 17-4-40 (b) (1), upon receipt of a warrant application by a person other than a peace officer or law-enforcement officer, the judge, magistrate, or municipal officer (“judicial officer”)4 may deny the warrant without a hearing or any other action if “the application form and any testimony from the affiant provided at the time of the application do not demonstrate probable cause for *656issuing a warrant.”5 Otherwise, barring special circumstances, the judicial officer must hold a probable-cause hearing and attempt to notify the person whose arrest is sought as to the date, time, and location of the scheduled hearing.6 The person whose arrest is sought may then attend the hearing, cross-examine the warrant applicant and any other witnesses testifying in support of the application, and present evidence showing that no probable cause for arrest exists.7 Additionally, the judge presiding over the probable-cause hearing “shall have the right to limit the presentation of evidence and the cross-examination of witnesses to the issue of probable cause.”8 Should the judicial officer find probable cause to arrest at the conclusion of the hearing, he or she may issue a warrant instanter.9 If not, of course, the warrant application must be denied.

¶8And while the foregoing statutory safeguards protect any person who is the subject of a warrant application by a private citizen, a warrant sought by a private citizen against “a peace officer, law enforcement officer, teacher, or school administrator” may be issued “only by a judge of a superior court, a judge of the state court, or a judge of the probate court.”10 This requirement ostensibly provides even greater protection to law-enforcement officers like Officer Russo.

¶9Thus, while OCGA § 17-4-40 (c) specifies that arrest warrants for peace officers or law-enforcement officers “may be issued only by a judge of a superior court, a judge of a state court, or a judge of a probate court” (as opposed to a magistrate or other municipal officer), it otherwise in no way limits the applicability of the statute to those officers.11 Rather, it clearly contemplates the statute’s application to peace officers and law-enforcement officers by mandating who may issue warrants for their arrest.12

¶10*657In contrast, OCGA §§ 17-7-52 and 45-11-4, the statutory scheme advanced by Russo and relied upon by the trial court, sets forth procedural safeguards for peace officers facing indictment.13 Suffice it to say, there is nothing in the text or structure of OCGA §§ 17-7-52 or 45-11-4 remotely suggesting that this statutory scheme in any way supplants or limits OCGA § 17-4-40 et seq.14 To put it plainly, these are two separate and distinct statutory schemes, and the trial court erred in concluding that the case sub judice is governed by OCGA §§ 17-7-52 and 45-11-4 rather than OCGA § 17-4-40 et seq.

¶11And because the superior court dismissed Williams’s warrant application under the mistaken belief that it “should proceed as contemplated by OCGA § 17-7-52,” we vacate that portion of its order and remand this case to the trial court to determine whether, pursuant to OCGA § 17-4-40 (b) (1), a probable-cause hearing is appropriate and, if so, whether probable cause to arrest Russo exists.15

¶122. Williams further argues that the trial court erred in quashing the subpoena for the production of evidence served upon the Department because the subpoena failed to include a witness fee and mileage expenses. Specifically, Williams asserts that the payment of said costs is not a prerequisite to the production of documents and, further, that the Department had the burden of submitting to the trial court reasonable costs incurred by such production and only then could the court order payment by Williams or quash the subpoena if Williams failed to pay.

¶13Williams’s argument misses the mark. It is certainly true that, pursuant to OCGA § 24-10-22,16 one issuing a subpoena may command the person to whom it is directed to produce certain designated *658documents and/or other tangible evidence17 and, upon a written motion to quash by the subpoenaed witness, the trial court may condition a grant of the motion on the payment of reasonable costs associated with producing the requested evidence.18

¶14The subpoena in the case sub judice, however, was not quashed due to Williams’s failure to pay costs associated with the production of the evidence requested in the subpoena. Rather, the trial court quashed the subpoena because it was not accompanied by a witness fee and mileage expenses for the person upon whom it was served. Indeed, pursuant to OCGA § 24-10-24, service of a subpoena upon a witness who resides outside of the county in which he or she is being summoned is only valid when it is “accompanied by tender of the fee for one day’s attendance plus mileage of 20¢ per mile for traveling expenses for going from and returning to his or her place of residence by the nearest practical route.”19 And here, it is undisputed that the Department is located outside of the county in which the hearing was to be held and that the subpoena served upon the Department was not accompanied by a witness fee or mileage expenses.

¶15Williams nonetheless argues that he did not command the attendance of a witness at the hearing and instead sought only the production of documentary and other tangible evidence. But the subpoena and accompanying letter served upon the Department’s legal counsel instructed that “[y]ou are hereby required to be and appear” at the hearing, and further listed the documentary and other evidence that the Department was directed to “bring to the subject hearing.” It follows then, that the attendant witness fee and mileage expenses were required to accompany the subpoena for its service to be valid.20 Had Williams sought only to compel production of evidence but not desired the attendance of a witness at the hearing, he had other tools at his disposal to accomplish that task.21 Accordingly, we conclude that the trial court did not err in quashing the subpoena.

¶16Judgment affirmed in part and vacated in part, and case remanded.