Bradley Grandquest v. State of Alabama ( 2023 )

REL: March 24, 2023
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
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Alabama Court of Criminal Appeals
OCTOBER TERM, 2022-2023
_________________________
CR-2022-1067
_________________________
Bradley Grandquest
v.
State of Alabama
Appeal from Mobile Circuit Court
(CC-19-2584.40)
KELLUM, Judge.
The appellant, Bradley Grandquest, a former Mobile County
sheriff's deputy, was convicted of constructive criminal contempt of court,
see Rule 33.3, Ala. R. Crim. P., for his failure to appear and testify in the
trial of Thomas Ray Carter. Grandquest was fined $100. He appealed to
this Court.
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The record shows that on February 10, 2022, Assistant District
Attorney Jessica Catlin sent Grandquest an e-mail with an attachment
entitled "Criminal Witness Request and Order to Appear." The
attachment to the e-mail, a pdf file, was a subpoena to appear and testify
on February 15, 2022, at Carter's trial. The attachment also indicated
that the subpoena was being served personally. Grandquest replied by
sending an e-mail that read "Email received."
On February 15, 2022, Grandquest failed to appear and law-
enforcement officers were sent to his home after a writ of attachment was
issued. (C. 23.) Grandquest was brought to the courthouse, and a
hearing was held before the circuit judge presiding over Carter's case.
Grandquest informed the court that he had received an e-mail telling him
to appear to testify, that he had indicated to personnel at the prosecutor's
office that he would be coming to testify, and that on the morning of
February 15 he was sick and failed to notify anyone that he was ill and
would not be attending. (R. 4.) When Grandquest was a sheriff deputy
he had interviewed the victim in the Carter case.
In April 2022, a contempt hearing was held, at which Grandquest
was represented by counsel. At the hearing, Grandquest's attorney
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moved to dismiss the contempt charge because, he argued, the subpoena
that formed the basis of the charge had never been properly served on
Grandquest. The State argued that the e-mail with the attached
subpoena constituted proper service under Alabama law. (R. 28-29.) The
State further argued that Grandquest acknowledged receiving the
subpoena when he responded with an e-mail that read "Email received,"
and thus, that proper service was waived according to § 12-21-180(e), Ala.
Code 1975. (R. 30.) Grandquest's attorney responded: "He says simply,
'e-mail received.' He doesn't say, 'I accept service.' He doesn't say, 'I
acknowledge the subpoena.' He doesn't say anything except, 'e-mail
received.' That is not proper service under this." (R. 32.) The prosecutor
then stated:
"We regularly serve our subpoenas in that manner. Your
Honor, if your Honor would just think back perhaps to a
criminal docket that the Court had this week, there is -- the
Sheriff's Department is physically not capable of serving
personally every subpoena for cases that are set for trial in
just one courtroom currently much less all eight. We routinely
serve law enforcement, former law enforcement members via
e-mail. They acknowledge they receive the e-mail and they
come to court."
(R. 33.) The circuit court indicated that it was satisfied that § 12-21-
180(e), Ala. Code 1975, had been complied with when serving the
subpoena.
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After the hearing, the circuit court issued an order finding
Grandquest guilty of constructive criminal contempt for his failure to
appear in court to testify and directed Grandquest pay a fine of $100.
This appeal followed. See Rule 33.6, Ala. R. Crim. P.
On appeal, Grandquest argues that the circuit court erred in
finding him guilty of constructive criminal contempt because, he says, he
was never lawfully served with a subpoena. Specifically, Grandquest
argues that the State failed to comply with the service requirements of
Rule 17.4, Ala. R. Crim. P., because, he says, an e-mail is not recognized
as a proper method for serving a subpoena. It is undisputed that certified
mail was not used in Grandquest's case and that a subpoena was sent to
Grandquest as an attachment to the e-mail sent by the assistant district
attorney working on the Carter case.
Grandquest was found guilty of contempt as set out in Rule 33.3,
Ala. R. Crim. P. This Rule states, in part, that criminal contempt is the
"(2) [w]illful disobedience or resistance of any person to a
court's lawful writ, subpoena, process, order, rule, decree, or
command where the dominant purpose of the contempt is to
punish the contemnor."
(Emphasis added.) According to Rule 33.1, Ala. R. Crim. P., there must
be a lawfully issued subpoena before a person may be found guilty of
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contempt for failure to comply with that subpoena. "[I]t was early
recognized in the United States that the power of a court to enforce the
attendance of witnesses by body attachment is available against all
persons. It is necessary however that before the power is exercised, a
strict compliance with the rules for the service of subpoenas must be
proved in the manner provided by law." See United States v. Davenport,
312 F. 2d 303, 307 (7th Cir. 1963). See also State v. Black, 232 N.C. 154,
157, 59 S.E.2d 621, 623 (1950) ("But a process or order not 'lawfully
issued' may not be the basis on which to f[ind] a proceeding for
contempt."). "An improperly served subpoena provides a witness with a
valid defense in a contempt proceeding." Jones v. Schlender, 102 Idaho
776, 778, 640 P.2d 1177, 1179 (1982).
The Alabama Supreme Court has adopted specific rules that govern
the issuance, service, and delivery of a subpoena in a criminal case.1 See
Rule 17.4, Ala. R. Crim. P. 2 Rule 17.4(a), states: "Subpoenas may be
1Pursuant to the § 150, Alabama Constitution of 2022, now a § of
Const. under Recomp., the Alabama Supreme Court has authority to
"make and promulgate rules governing the administration of all courts
and rules governing practice and procedure in all courts."
2Rule 17, Fed. R. Crim. P., is the comparable federal rule that
governs subpoenas in criminal cases.
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served by mail as provided in section (c). If personal service of a subpoena
is requested, service shall be as provided in section (d)." (Emphasis
added.) "Our supreme court has consistently held that the word 'shall' is
mandatory when used in a rule promulgated by that court." Martin v.
Martin, 637 So. 2d 901, 902 (Ala. Civ. App. 1994). Rule 17.4(d)
specifically states:
"(d) Delivery by Personal Service.
"(1) By Whom. When a subpoena issued from any court
subject to the provisions of these rules is to be delivered
personally, a subpoena may be served by the sheriff of the
county in which the party to be served resides or may be
found, by the sheriff's deputy, or by any other person who is
not a party to the action to which the subpoena relates and
who is 21 years of age or older.
"(2) How Served and Returned. Service of the subpoena
may be executed upon the witness either personally or by
leaving a copy at the witness's dwelling house or usual place
of abode with some person of suitable age and discretion then
residing therein. When the copy of the subpoena has been
delivered, the person serving the subpoena shall endorse that
fact on the subpoena and return it to the clerk, who shall
make the appropriate entry on the case action summary
sheet. The return of the subpoena in the manner described
herein shall be prima facie evidence of service of the
subpoena."3
3Section 12-21-180(c)(2), Ala. Code 1975, also provides that when
the case involves a misdemeanor, under certain conditions the subpoena
may be sent by first-class mail.
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First, as stated above, the State argued at the contempt hearing
that, according to § 12-21-180(e), Grandquest acknowledged service,
thereby waiving personal service or consenting to e-mail service, when
he sent an e-mail that read "Email received." Section 12-21-180(e), Ala.
Code 1975, provides: "A witness may acknowledge service of a subpoena
by endorsing acceptance thereof on the subpoena, in writing, in which
event service by the sheriff shall not be required."
The Alabama Supreme Court has stated that "[w]hen the language
of a statute is plain and unambiguous, as in this case, courts must enforce
the statute as written by giving the words of the statute their ordinary
plain meaning -- they must interpret that language to mean exactly what
it says and thus give effect to the apparent intent of the Legislature."
See Ex parte T.B., 698 So. 2d 127, 130 (Ala. 1997). We question whether
§ 12-21-180(e) has any application to the subpoena involved in this case
because the subpoena was issued electronically. The statute reads that
the actual subpoena be endorsed, in writing, to waive proper service by a
sheriff.
The State has cited no case, and this Court can locate no case, that
holds that a defendant's acknowledgment of a subpoena constitutes a
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waiver of any challenge to proper service of that subpoena. 4 The question
before us is whether Grandquest's e-mail response was sufficient to
establish a waiver that would foreclose him from challenging the proper
service of the subpoena. In the context of a civil case, our neighboring
State of Mississippi has stated:
"Although [Baptist Memorial Hospital – North Mississippi]
acknowledged receipt of service, we have found no authority
to show where acknowledgment of receipt of process would
constitute a waiver of deficient service, nor has Lucas
provided us with any such authority. In addition, other
jurisdictions have not found this to be sufficient to constitute
a waiver. 'Acknowledgment of service, without an express
waiver of process, does not constitute a waiver of valid service
of process.' Bailey v. Hall, 199 Ga. App. 602, 405 S.E.2d 579,
582 (1991) (citing Edison Provision Co. v. Armour & Co., 51
Ga. App. 213, 179 S.E. 829, 830 (1935))."
Lucas v. Baptist Memorial Hospital – North Mississippi, Inc., 997 So. 2d
226, 231 (Miss. App. 2008). Also, "if a witness appears in response to
defective process and fails to interpose any objections to the form or
service of the process, the witness waives any right to be heard at a later
date on those matters." State v. Tsavaris, 382 So. 2d 56, 67 (Fla. 2d
4One federal court case has referred to an improper-service-of-
subpoena claim as a "jurisdictional claim" in addressing civil subpoenas.
Call of the Wild Movie, LLC v. Does 1-1, 062, 770 F. Supp. 2d 332, 362
(D.D.C. 2011).
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D.C.A. 1980). "A general appearance operates to waive, or dispense with,
issuance of service of process." State v. Snavely, 514 A.2d 1148, 1149, n.3
(Del. 1986). We cannot say that Grandquest's response, "Email received"
was an affirmative or clear waiver of personal service or consent to
service by e-mail.
Moreover, our research has revealed no Alabama case in which a
court has held that e-mail was a proper means of serving a subpoena for
a witness to testify in a criminal case. Indeed, our research revealed no
Alabama case that held that service or delivery of a subpoena was proper
by any means except those provided in Rule 17.4. Other courts have held
that e-mail is not a proper method of serving a subpoena in a criminal
case. See United States v. Simmons, 515 F. Supp. 3d 1359, 1362 (M.D.
Ga. 2021) ("The Federal Rules of Criminal Procedure require that
subpoenas be served personally, and Rule 17 provides no exceptions."5);
Smith v. State, 308 Ga. 81, 90, 839 S.E.2d 630, 639 (2020) ("Indeed, e-
mail is not a proper means of serving a subpoena under OCGA § 24-13-
5Rule 17, Fed. R. Crim. P. Rule 17(d), states, in pertinent part: "A
marshal, a deputy marshal, or any nonparty who is at least 18 years old
may serve a subpoena. The server must deliver a copy of the subpoena
to the witness and must tender to the witness one day's witness-
attendance fee and the legal mileage allowance."
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24. …" 6). Compare United States v. Venecia, 172 F.R.D. 438, 439 (U.S.
D.C. Oregon 1997) ("Service by fax is not authorized by Rule 17(d) of the
Federal Rules of Criminal Procedure.").
"The Federal Rules of Criminal Procedure require that
subpoenas be served personally, and Rule 17 provides no
exceptions. Although the Eleventh Circuit has not addressed
whether service can be made in other formats, other courts in
this district have concluded that service must be made in-
person. See, e.g., United States v. Scott, No. CR417-050, 2018
… (S.D. Ga. May 9, 2018) ('[I]t is clear that service by email is
ineffective.'); United States v. Johnson, No. 06-0049, … (S.D.
Ala. June 28, 2006) ('Rule 17 requires personal service of a
criminal subpoena.... There is no provision for service by
certified mail in the criminal rules.')."
Simmons, 515 F. Supp. 3d at 1362.
We note that federal courts have approved the use of alternative
service of subpoenas when those subpoenas are related to a civil case and
are served pursuant to Rule 45, Fed. R. Civ. P.
'The majority of lower courts also have held that Rule 45
requires personal service. Heilman v. Lyons, No. 09–cv–2721,
… (E.D.Cal. Jan. 11, 2011) (Newman, Mag. J.); Mahar v. U.S.
Xpress, Inc., No. 06–cv–1297, … (N.D.N.Y. Oct. 28, 2010);
6Section 24-13-24, Ga. Code Ann., states: "A subpoena may be
served by any sheriff, by his or her deputy, or by any other person not
less than 18 years of age. Proof may be shown by return or certificate
endorsed on a copy of the subpoena. Subpoenas may also be served by
registered or certified mail or statutory overnight delivery, and the
return receipt shall constitute prima-facie proof of service. Service upon
party may be made by serving his or her counsel of record."
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Nunn v. State Farm Mut. Auto. Ins. Co., No. 3:08–cv–1486, …
(N.D. Tex. Oct. 21, 2010); Taylor v. Countrywide Home Loans,
No. 08–13258, … (E.D.Mich. June 30, 2009) (Hluchaniuk,
Mag. J.); McClendon v. TelOhio Credit Union, Inc., No. 2:05–
CV–1160, … (S.D.Ohio Aug. 14, 2006) (Kemp, Mag. J.); Hall
v. Sullivan, 229 F.R.D. 501, 502 (D.Md. 2005) (Grimm, Mag.
J.) (recognizing that a majority of courts requires personal
service of subpoenas under Rule 45). 'The longstanding
interpretation of Rule 45 has been that personal service of
subpoenas is required.' 9A Charles A. Wright & Arthur R.
Miller, Federal Practice and Procedure § 2454, at 397 (3d ed.
2008); see also 5A Jeremy C. Moore et al., Moore's Federal
Practice ¶ 45.06, at 45–49 (1994).
'There is no consensus on that point, however. A number
of courts 'have permitted service by certified mail and other
means if the method of service is made in a manner designed
to reasonably insure actual receipt of the subpoena by the
witness.' Franklin v. State Farm Fire & Cas. Co., …
(E.D.Mich.2009) (Majzoub, Mag. J.) (citing Halawani v.
Wolfen Barger, No. 07–15483, … (E.D. Mich. Dec. 10, 2008)
(service of a subpoena by certified mail may assure proper
delivery) and Cartier v. Geneve Collections, Inc., No. CV
2007–0201, … (E.D.N.Y. Feb. 27, 2008) (alternative service is
authorized under Rule 45 if it is designed to reasonably insure
the actual receipt of the subpoena by the witness); see also
Powell v. Time Warner Cable, Inc., No. 09–00600, …
(S.D.Ohio Dec. 30, 2010) (Preston Deavers, Mag. J.); King v.
Crown Plastering Corp., 170 F.R.D. 355, 356 (E.D.N.Y.1997);
Hinds v. Bodie, No. 84 CV 4450, … (E.D.N.Y. Mar. 22, 1988);
First Nationwide Bank v. Shur (In re Shur), 184 B.R. 640, 642
(Bankr.E.D.N.Y.1995). 'Courts that have sanctioned
alternative means of service under Rule 45 often have done so
only after the party requesting the accommodation diligently
attempted to effectuate personal service.' Franklin, [supra]."
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Oceanfirst Bank v. Hartford Fire Ins. Co., 794 F. Supp. 2d 752, 753-54
(E.D. Mich. 2011).
The circumstances presented in this case are similar to those
presented to the Georgia Court of Appeals in Edenfield v. State, 147 Ga.
App. 502, 249 S.E.2d 316 (1978). The Georgia Court stated:
"This is a contempt based upon a defaulting witness.
The facts show that appellant was a Georgia State Trooper.
He was subpoenaed to appear as a witness. In accordance
with custom, all subpoenas for pending trials in the Superior
Court of White County were sent to the sheriff for service. In
accordance with this custom, the sheriff carried all the
subpoenas and delivered them to a single officer or clerk in
the patrol station. The subpoenas were then distributed by
clerical assistants by placing each respective subpoena in the
mail cubicle of the subpoenaed officer. Trooper Edenfield
answered his subpoena on the day demanded. The case was
continued over to another day and on that day, Edenfield was
late for the trial proceedings. Edenfield subsequently
appeared without counsel and following an evidentiary
hearing was found in contempt and fined and ordered
incarcerated. This appeal followed. Held:
"Though five enumerations of error are asserted, only
the first will be considered as it is dispositive of the case. It is
undisputed that Trooper Edenfield was not personally served
nor was service obtained by registered mail. Appellee argues
that the manner of service was in accordance with established
practice and is the only practicable method. Thus, appellee
argues convenience as the criteria for service. However, Ga.L.
1966, p. 502 (Code Ann. § 38-801(c)) governs the only legally
permissible modes of serving subpoenas. That statute
provides: 'A subpoena may be served by any sheriff, by his
deputy or by any other person not less than 18 years of age.
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Proof may be shown by return or certificate indorsed on a copy
of the subpoena. Subpoenas may also be served by registered
or certified mail, and the return receipt shall constitute prima
facie proof of service. Service upon a party may be made by
serving his counsel of record.' In construing that statute, the
Supreme Court held in Heard v. Hopper, 233 Ga. 617, 618,
212 S.E.2d 797, 798 [(1975)]: 'With respect to pleadings and
other matters which must be served upon an adversary party,
it has been uniformly held that it is immaterial that the party
actually received the pleading or other matter where service
was otherwise improper. (Cits.) No reason appears why the
same rule should not apply with respect to service of
subpoenas. In the instant case service of the subpoenas was
not effected either by Personal service or by Certified mail,
the only two modes authorized by Code Ann. § 38-801(c).'
(Emphasis supplied.) The lack of personal service invalidated
the legal force and effect of the subpoena; therefore, the
subpoena could not serve as the basis for a conviction as a
defaulting witness."
147 Ga. App. at 503, 249 S.E.2d at 317.
Given that the question of serving a subpoena via e-mail is not
provided for in either the procedural rules of court adopted by the
Alabama Supreme Court or statutes governing subpoenas, this Court
cannot say that the subpoena that formed the basis of the contempt
charge was a "lawfully" served subpoena. Nor can we say that
Grandquest's e-mail response was sufficient to constitute a clear waiver
of proper service of that subpoena. Accordingly, there was no lawfully
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issued subpoena that could form the basis for the contempt charges under
Rule 33.3, Ala. R. Crim. P.
For the foregoing reasons, the judgment is hereby reversed and the
case remanded to the Mobile Circuit Court for that court to set aside its
finding that Grandquest was in constructive criminal contempt of court
and the sentence imposed for that violation.
REVERSED AND REMANDED.
McCool, Cole, and Minor, JJ., concur. Windom, P.J., recuses herself.
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