Request By:
Mr. G. Stephen Manning
Attorney at Law
227 Sutton Street
Maysville, Kentucky 41056
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
On behalf of Mason County Sheriff, Robert Case, you request an opinion on the following question:
"Is a sheriff entitled to any fee for service of subpoenas in criminal cases issued pursuant to RCr 7.02?"
Your analysis was written as follows:
"KRS 64.090 allows a sheriff to charge and collect a $10.00 fee for executing and returning process and a $2.00 fee for summoning of witnesses. Also, KRS 24A.170 authorizes a $10.00 fee for service of process in a civil case in District Court and KRS 23A.200 permits a similar fee in civil cases in Circuit Court. It is my opinion that the above referenced statutes are not applicable in criminal cases and that the sheriff is not entitled to a fee for service of subpoenas in criminal cases in view of the right of an accused in a criminal prosecution 'to have complusory service of process for obtaining witnesses in his favor', as guaranteed under Section 11 of the Constitution of Kentucky and the U.S. Constitution."
The basic nature and function of a subpoena are reflected in RCr 7.02(1), (2) and (3):
"(1) A subpoena shall be issued by the clerk. It shall state the name of the court and title, if any, of the proceeding, and shall command each person to whom it is directed to attend and give testimony at the time and place specified therein. The clerk shall issue a subpoena, signed but otherwise in blank, to a party requesting it, who shall fill in the blanks before it is served.
"(2) A subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive. The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys.
"(3) A subpoena may be served by any officer by whom a summons might be served. It may also be served by any person eighteen years of age or over, and his affidavit endorsed thereon shall be proof of service or the witness may acknowledge service in writing on the subpoena. Service of the subpoena shall be made by delivering or offering to deliver a copy thereof to the person to whom it is directed."
The present RCr 7.02 was formerly made up of former rules RCr 7.02, 7.04, and 7.08, spelling out procedures which had formerly been incorporated from the civil rules. See 70 K.L.J. 395.
Thus a subpoena is a court process designed to compel the attendance of witnesses in court at a hearing or trial and to produce books, papers, documents, etc., in the court suit. The subpoena requiring a witness to appear and give testimony is called a subpoena and testificandum. The subpoena duces tecum is a writ which must include a clause requiring the witness to bring with him and produce to the court books, papers, etc., in his hands tending to elucidate the matter in issue.
E. H. Taylor, Jr. & Sons v. Thornton, 178 Ky. 463, 199 S.W. 40 (1917) 43.
KRS 421.230, which is a part of the "Uniform Act to secure the attendance of witnesses from within or without a state in criminal proceedings", defines, in Subsection (3) thereof, the word "summons" as including a subpoena, order or other notice requiring the appearance of a witness.
KRS 64.090
KRS 64.090 provides that a sheriff may charge and collect for enumerated services certain fees. The fee for executing and returning "process" is $10.00. The fee for "summoning a witness" is $2.00. The term process under CR 4.01 involves the issuance of a summons to bring the civil defendants before the court upon the filing of a complaint. In earlier history, a "process" was defined to be a writ or summons issued in the course of judicial proceedings.
Gowdy v. Sanders, 88 Ky. 346, 11 S.W. 82 (1889). In Yeager v. Groves, 78 K.R. 278 (1879), the court described process as the command of the court, out of which it issues, commanding the person or officer to whom it is directed to do certain acts. The process runs in the name of the state government, i.e, "The Commonwealth of Kentucky." See § 123, Kentucky Constitution. In modern practice the summons is used as a means of notifying the defendant of the suit and ordering him to appear in court.
Prewitt v. Caudill, 250 Ky. 698, 63 S.W.2d 954 (1933).
Thus the fee for summoning a witness, regardless of whether the suit is a civil case or a criminal case, is $2.00 under KRS 64.090. The specific designation "summoning each witness" governs over the more general term "process".
City of Bowling Green v. Board of Education, Ky., 443 S.W.2d 243 (1969).
Since there is nothing in the schedule suggesting that the fee for summoning a witness relates to civil cases only, we believe that the fee for serving a subpoena in criminal cases is $2.00 under KRS 64.090. If the defendant is convicted (see KRS 453.020), he is responsible for paying such cost unless he is permitted by the court to proceed in forma pauperis under KRS 453.190. If he is not convicted, then under KRS 64.340 and 453.020 the fee cannot be collected. See
Bell County v. Minton, 239 Ky. 840, 40 S.W.2d 379 (1931). The Commonwealth is not liable for costs in criminal actions. KRS 453.010. This immunity from costs, except where a statute requires the county to pay, applies to counties as well as to the state.
Commonwealth v. Allen, 235 Ky. 728, 32 S.W.2d 42 (1930) 43.
Under KRS 64.095 (now repealed) , each sheriff was entitled to a mileage fee for serving subpoenas at the rate per mile paid state employees for official travel. Under subsection (4) of the old statute, the mileage did not apply to subpoenas served for the Commonwealth.
OTHER STATUTES
KRS 64.095 was repealed, and we can find no substitute for it. KRS 24A.170 and 23A.200 relate to fees and costs in civil cases only.
SECTION 11, CONSTITUTION
It is your view that § 11 of the Kentucky Constitution prohibits the payment of a fee by the defendant to the sheriff for serving a subpoena in criminal cases. The section provides in part that a person accused of crime has the right to have compulsory process for obtaining witnesses in his favor. However, it is our view that the fact that the defendant is required to pay this fee for serving a subpoena on a witness in a criminal case, provided the defendant is convicted and provided he is not found by the court to be indigent, in no way militates against the defendant's right under the constitution to have compulsory process for obtaining a witness for himself.
As pointed out in
Hancock v. Parker, 100 Ky. 143, 37 S.W. 594 (1896), under Section 11 of the Kentucky Constitution the person charged with crime has the right not only to meet the witness face to face, but also to have compulsory process for obtaining witnesses in his favor. Further, it was pointed out in
Ross v. Commonwealth, Ky.App., 577 S.W.2d 6 (1978) 10, that such defendant is entitled to have his own witnesses in court, if they can be reached by the compulsory process of the law, and to coerce their attendance whenever they may reside in the state. In order to do this, it is not required that the defendant shall tender to his witnesses any compensation for expenses before resorting to process to compel them to attend.
It should be kept in mind that the payment of the sheriff's fee for serving the subpoena on a witness in a criminal case does not come about until after the trial and upon final conviction, if he is convicted. If the defendant is not convicted, he does not have to pay the fee. Thus we do not believe the payment of the fee, where he is finally convicted, in any way militates against his rights involving compulsory process for obtaining a defendant witness. See
Washington v. Texas, 388 U.S. 14, 18 L. Ed. 2d 1019, 87 S. Ct. 1920 (1967), holding that the right of a criminally accused to have compulsory process for obtaining witnesses in his favor is guaranteed by the Sixth Amendment of the United States Constitution made applicable to the states through the due process clause of the Fourteenth Amendment.
CONCLUSIONS
(1) A sheriff is entitled to a fee of $2.00 for serving a subpoena on a witness in a criminal case, provided the defendant is finally convicted of a crime and is not found to be indigent by the court.
(2) The payment of such fee under the conditions outlined in (1), above, in no way militates against the right of the defendant to have compulsory process to obtain witnesses for himself pursuant to § 11, Kentucky Constitution.