
    Ex parte SUMMIT MEDICAL CENTER OF MONTGOMERY, INC., an Alabama corporation d/b/a Beacon’s Women’s Center. (In re State of Alabama v. Bernetta L. Willis).
    CR-01-2300.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 2002.
    Opinion Issuing Writ of Mandamus on Return to Remand Jan. 7, 2003.
    
      Stephen R. Glassroth, Montgomery, for petitioner.
    C. Franklin Snowden III, Montgomery, for respondent.
   PER CURIAM.

The petitioner, Summit Medical Center of Montgomery, Inc., d/b/a Beacon’s Women’s Center (hereinafter referred to as “Beacon’s”), filed this petition for a writ of mandamus directing Judge Charles Price to quash a subpoena duces tecum directed to Beacon’s. The subpoena was issued as a result of criminal charges filed against Bernetta L. Willis; Willis was charged with theft of property in the second degree for allegedly stealing the contents of a handbag that was in a bathroom at Beacon’s clinic on March 27, 2001. Before trial, Willis moved for a subpoena duces tecum to be issued to Beacon’s requesting the names of all individuals who were in the building on March 27, 2001, between the hours of 4 p.m. and 6:30 p.m., the period during which the contents of the handbag were stolen. The subpoena also requested a complete list of all receipts for moneys paid to Beacon’s by Willis and her codefendant on March 27, 2001. Beacon’s failed to deliver the requested materials; Willis filed a motion to compel. Beacon’s then filed a motion to quash the subpoena. After a hearing on the motions, Judge Price modified the subpoena as to the production of the receipts, but he denied the motion to quash. Beacon’s then filed this petition for a writ of mandamus. Willis’s trial was scheduled for August 21, 2002. We stayed all action in the circuit court pending the resolution of this mandamus petition.

Initially, we must determine if a mandamus petition is the appropriate method by which to obtain review of Judge Price’s ruling denying the motion to quash the subpoena duces tecum. Although Beacon’s is not a party to the criminal action against Willis, a mandamus petition may be used to review rulings on motions to quash subpoenas from parties and nonparties. In Ex parte Thackston, 275 Ala. 424, 426, 155 So.2d 526 (1963), the Alabama Supreme Court stated, “[t]his court has reviewed the issuance of a subpoena duces tecum, both as to parties and nonparties, or witnesses, on a petition for mandamus.” See also State v. Reynolds, 819 So.2d 72 (Ala.Crim.App.1999).

Beacon’s argues that Judge Price erred in denying the motion to quash the subpoena duces tecum because, it says, the subpoena was being used for discovery purposes — a purpose prohibited by law. It further argues that the subpoena should be quashed pursuant to Rule 17.3(c), Ala. R.Crim.P.„ because, it argues, compliance with the subpoena would be “unreasonable, oppressive, or unlawful.”

Willis responds that she has complied with all of the prerequisites of United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); therefore, she argues, she is entitled to the requested documents. Willis further asserts that the trial court failed to make findings of facts concerning the four factors used in Nixon to determine whether the requested documents should be produced; and she argues that we should direct the trial court to comply with our holding in Reynolds, supra, requiring the trial court to address the Nixon factors.

This ease is similar to Reynolds. In Reynolds, the State filed a petition for a writ of mandamus directing the trial court to quash the subpoena duces tecum issued to the Green Bottle Grill restaurant. The accused, Jacqueline Reynolds, had been employed at the Green Bottle Grill as a bookkeeper. Reynolds was accused of stealing approximately $12,000 from the Green Bottle Grill. Reynolds served a subpoena duces tecum on the Green Bottle Grill, seeking numerous records and financial documents that were created before Reynolds’s employment with the company. We wrote:

“The view adopted by the Alabama Supreme Court in Rule 17.3(d), [Ala. R.Crim.P.] was previously expressed by the United States Supreme Court in United States v. Nixon, 418 U.S. 683, 698-700, 94 SiCt. 3090, 41 L.Ed.2d 1039 (1974). In Nixon, the United States Supreme Court stated:
“ ‘A subpoena for documents may be quashed if their production would be “unreasonable or oppressive,” but not otherwise. The leading case in this Court interpreting this standard is Bowman Dairy Co. v. United States, 341 U.S. 214, 71 S.Ct. 675, 95 L.Ed. 879 (1951). This case recognized certain fundamental characteristics of the subpoena duces tecum in criminal cases: (1) it was not intended to provide a means of discovery for criminal cases, id., at 220; (2) its chief innovation was to expedite the trial by providing a time and place before trial for the inspection of subpoenaed materials; ibid. As both parties agree, cases decided in the wake of Bowman have generally followed Judge Weinfeld’s formulation in United States v. Iozia, 13 F.R.D. 335, 338 (S.D.N.Y.1952), as to the required showing. Under this test, in order to require production prior to trial, the moving party must show: (1) that the documents are evi-dentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general “fishing expedition.” ’
“(Footnotes omitted; emphasis added.) This Court has embraced the standard of review set out in United States v. Nixon. See Sale [v. State, 570 So.2d 862 (Ala.Crim.App.1990) ], and Williams v. State, 489 So.2d 4 (Ala.Cr.App.1986).
“Our analysis of the validity of Judge Williams’s ruling is hampered by the fact that he failed to make findings of fact as to the four factors set out in United States v. Nixon.”

819 So.2d at 75-76. In Reynolds, we ordered the circuit court to make specific findings concerning the four factors articulated by the United States Supreme Court in United States v. Nixon.

In compliance with our holding in Reynolds, we direct the Circuit Court of Montgomery County to address the four factors in United States v. Nixon. Specifically, the court is directed to address (1) whether the documents requested by Willis are evidentiary and relevant; (2) whether they are not otherwise procurable reasonably in advance of trial by the exercise of due diligence; (3) whether Willis can prepare for trial without the production and inspection of the requested documents in advance of trial and whether the failure to inspect the documents may tend unreasonably to delay the trial; and (4) whether the application for the subpoena was made in good faith and not as a general “fishing expedition.” See United States v. Nixon. The trial court is directed to file its findings with this Court no later than 42 days from the date of this opinion.

ORDER ISSUED.

McMILLAN, P.J., and COBB, BASCHAB, SHAW, and WISE, JJ., concur.

On Return

PER CURIAM.

The petitioner, Summit Medical Center of Montgomery, Inc., d/b/a Beacon’s Women’s Center (hereinafter referred to as “Beacon’s”), filed a petition for a writ of mandamus directing Judge Charles Price to quash the subpoena duces tecum issued to Beacon’s. We directed the trial court to make written findings of fact consistent with the United States Supreme Court’s holding in United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). See Ex parte Summit Med. Ctr. of Montgomery, Inc., 854 So.2d 614 (Ala. Crim.App.2002). Specifically, we directed the trial court to make findings addressing the four prongs in Nixon, i.e., (1) whether the documents requested by Willis are evi-dentiary and relevant; (2) whether they are not otherwise procurable reasonably in advance of trial by the exercise of due diligence; (3) whether Willis can prepare for trial without inspecting the requested documents in advance of trial and whether the 'failure to inspect the documents may tend unreasonably to delay the trial; and (4) whether the application for the subpoena was made in good faith and not as a general “fishing expedition.”

The trial court has filed its findings with this Court. Those findings state as follows:

“First, this is a criminal case; Bernet-ta L. Willis is charged and indicted for the offense of Theft of Property in the Second Degree. One indicted has a fundamental right to search for witnesses that may aid in his/her defense. Thus, this Court finds that: (1) the information requested by the defendant and, as modified, granted by the Court is evi-dentiary and relevant; (2) the information cannot be procured by the defendant in advance of trial from any other source by exercise of due diligence; (3) the defendant cannot fairly or justly prepare for trial without the information ordered by the Court; and (4) the application for the subpoena was made in good faith and not as a general ‘fishing expedition.’ United States v. Nixon, 418 U.S. 683 (1974).”

During the hearing on the motion to quash the subpoena duces tecum the following occurred:

“[Willis’s counsel]: Summit obviously is not going to volunteer information to me. This is the only way I can get a list of the people who were there, so I can at least ask them if they did see anything. If they didn’t, that’s fine. I’m not bothering them....
“[Beacon’s counsel]: Your Honor, this is precisely the kind of material that the Court of Criminal Appeals has said is a fishing expedition. If it were evidence that was known to be exculpatory, that’s one thing. But his is simply the—
“The Court: Well, he’s just trying to find some witnesses to see whether anybody saw anything.”

(Transcript of motion hearing, pp. 5-6.)

The United States Supreme Court in United States v. Nixon stated that the primary purpose of the subpoena duces tecum was to “expedite the trial by providing a time and place before trial for the inspection of subpoenaed materials.” 418 U.S. at 698-99, 94 S.Ct. 3090 (footnote omitted). The United States Supreme Court also stressed that a subpoena duces tecum was for the production of evidence not for informational discovery.

As the Oregon Court of Appeals stated in State v. Cartwright, 173 Or.App. 59, 67, 20 P.3d 223, 229 (2001), concerning the purpose of a subpoena:

“[A] subpoena compels the production of evidence. It is not a means of informational discovery, nor does it serve as an investigatory tool to enable a party to examine information or to interview a witness prior to trial to ascertain the existence of relevant evidence or testimony.”
This case' is virtually identical to the case of State v. Reynolds, 819 So.2d 72 (Ala.Crim.App.1999). As we did in Reynolds, we confine our decision to the fourth prong in United States v. Nixon. In Reynolds, 819 So.2d at 78 (opinion on return to remand), quoting People v. Morrison, 148 Misc.2d 61, 66-67, 559 N.Y.S.2d 1013, 1017-18 (City Crim.Ct.1990), we stated:
“ ‘A fundamental distinction exists between a defendant’s right to discovery ... and a defendant’s right to compel the production of evidence by subpoena ... The right to discovery is the right to receive information and documents from the prosecution and its agents concerning’ the case.' A. defendant’s right to discovery is governed and limited by statute [in Alabama, by rule].... The specific material that is required to be disclosed is specified in the statute and the timing of its disclosure is, likewise, governed by statute.
“ ‘The right to compulsory process, on the other hand, is the right to compel witnesses to come into court pursuant to subpoena and give testimony or produce documentary or other physical evidence. The right to compulsory process has its roots in constitutional principles which recognize that a defendant must be able to compel the production of evidence in the proceedings relating to the case in order to present a defense to the charges if he or she chooses to do so. However, based on constitutional analysis set forth above and decisional law, the right to compulsory process is not an unlimited and unrestricted right to compel the production of any documents sought by a defendant. Rather, it is a restricted right, the exercise of which must satisfy certain relevancy and evi-dentiary standards and which is subject to other procedures for obtaining the material sought.
“ ‘... The right to compel material pursuant to subpoena is, therefore, limited to the compulsion of “evidence” and is not a right to compel the production of documents that refer to evidence or that provide leads that unll assist in the identification of evidence or to ascertain the existence of witnesses or evidence.’”

(Emphasis added.)

It appears from the comments made by Willis’s attorney at the motion hearing that the sole purpose of the subpoena was to go on a “fishing expedition” to see if he could find any witness to what transpired at the clinic on the day of the theft. The trial court should have quashed the subpoena because Willis failed to satisfy the prerequisites of United States v. Nixon.

In issuing this writ and directing the trial court to quash the subpoena, we remind the State that it has a continuing obligation to disclose exculpatory information to Willis. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

For the foregoing reasons, this petition is due to be, and is hereby, granted.

PETITION GRANTED.

McMILLAN, P.J., and COBB, BASCHAB, SHAW, and WISE, JJ„ concur. 
      
      . At the hearing, Willis stated that the State had disclosed the names of two people who were present at the clinic at the time of the theft.
     