State of Tennessee v. Andy F. Nunez - Concurring

08/14/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs July 15, 2020
STATE OF TENNESSEE v. ANDY F. NUNEZ
Appeal from the Criminal Court for Davidson County
No. 2016-D-1972 Steve R. Dozier, Judge
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No. M2019-00473-CCA-R3-CD
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THOMAS T. WOODALL, J., concurring.
I concur in the results reached by the majority opinion. I write separately to
express my opinion that the trial court erred by ruling that the evidence sought by
Defendant via the subpoena would be irrelevant. The proposed evidence was never
submitted at the pre-trial hearing. Thus, the trial court could only speculate as to what
any evidence would reveal. However, any error was harmless in my opinion.
By statute, each District Attorney General is given the mandatory power and duty
to “prosecute in the courts of the [judicial] district all violations of the state criminal
statutes and perform all prosecutorial functions attendant thereto . . . .” Tenn. Code Ann.
§ 8-7-103(1). (emphasis added). Therefore, the District Attorney General (DAG) and the
DAG’s assistant district attorney’s general, Id. at (7) are for all purposes a law firm that
represents only one client, the State, regarding all violations of the criminal statutes in the
DAG’s judicial district.
Defendant’s subpoena was directed to the “Custodian of Records for the Davidson
County District Attorney’s Office,” the law firm that represents one of the parties in a
criminal case in the trial courts of the 20th Judicial District. In my opinion, any subpoena
directed to a law firm representing either the State or the defendant, to produce evidence
to be used against the party represented by the law firm, in the case for which the
subpoena was issued, should generally fall into the category where “compliance would be
unreasonable or oppressive.” Tenn. R. Crim. P. 17(d)(2). There is no doubt that
exceptions to this premise could exist. However, there is nothing in the record of this
case that shows any exception should apply here. Accordingly, I agree the judgment
should be affirmed.
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THOMAS T. WOODALL, JUDGE