### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE September 19,

2000 Session

STATE OF TENNESSEE v. CONNIE E ASTERLY

Extraordinary Appeal by Permission from the Circuit Court for Sequatchie County

No. 3879 Robert Steven Bebb, Special Judge

No. M2000-00077-CCA-R10-CO - Filed March 1, 2001

In this case, we gra

nte d the State’s application for extraordinary appeal to determine whether the Sequatchie

County Circuit Court erred in denying the State’s motion to quash subpoenas issued by the appellee, Connie Easterly, in defense of an indictment charg ing her with five counts of official misconduct

and five counts of forgery. The di sput ed subpoenas require the attendance and testimony of Michael C. Greene, the Commissioner of the Tennessee Department of Safety, a nd John Morgan, the Com ptr oll er of the Trea sur y, at the appellee’s trial. Following a thorough review of the record and the parties’ briefs, we affirm and modify in part and re verse in part the trial court’s order.

Tenn. R. App. P. 10 Ext raordinary Appeal by

Permission; J

udgment of the Circ

uit Court is Affirmed and Modified in Part and Reversed in Part.

N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which D AVID H. W ELLES and J OE G. R ILEY , JJ., joined.

Paul G. Summers, Attorney General and Reporter, David M. Himmelreich, Deputy Attorney General, William C. Bright, Assistant Attorney General, an d James Michael Taylor, District Attorney General, for the appellant, State of Tennessee.

Charles J. Gearhiser and Sam D. Elliott, Chattanooga, Tennessee, for the app ell ee, C onn ie E ast erl y.

OPINION

I. Factual Backgr

ound On Ma rch 3 , 1998, Terry Thomas, an investigator with the Criminal Investig ation Division of

the Tennessee Department of Safety, discovered that someone ha d altered title records pertaining to his 1979 Ford truck. Thomas reported the al terations to the Division of Title and Registration of the Department of Safety. Martha Irwin, the Di rector of the Division of Title and Registration, in turn communicated the complaint to the Division of State Audit of the Office of the Comptroller

of the Treasury. The Office of the Comptroller of the Treasury investigated Th

omas’ complaint and, in Februar

y 1999, submitt

ed a “Spe cial Report” to Governor Don Sundquist, the-2-

Tennessee Dep art men t of Saf ety, the Offi ce of the Att orn ey Gene ral and Reporter, and the Office of the District Atto

rney Gene

ral for the Twelf

th Judicial District.

Accordin g to the “Special Report,” computer trans action data rela

ting to the title records of Thomas’ 1979 Ford truck ref lected that, on F

ebruary 1 9, 1998, someone ha d improperly listed the vehicle as stolen and that, on February 28, 1998, someone had altered the recor d of the vehicle’s former license plate number from “LHL382" to “666DVL.” More over, co mputer transaction data relating t o the title records of a state-owned Chevrolet Blazer assigned to Thomas for use during undercover operations reflected that the owner’s name had bee n changed

on March 14, 199 8, from Ro nald Baker to Ar nold Baker and o

n March 21, 1998, f

rom Arnold Bake

r to Benedict Arnold. Investigators traced the alterations to the computer ide n tification number and password assigned to the appellee, Connie Easterly, who was then the Sequa tchie County Clerk.

The authors of the report conceded that anyone with a ccess to t he Tennessee Department

of Safety’ s title and regist ration computer d

ata base could have acquired the

appellee’s computer identification nu mber and password, and, therefore, the alterations could not “be tied

con clu siv ely” to the appellee. They also noted, however, that the appellee was “the only

person with the ability, access, and incentive to improperly c hange . . . Thom as’ title records.” This latter conclusion was based, in part, upon a May 22, 1998 interview betwe en Thomas and inve

stigators. During this interview, Tho mas stated that,

until December 1997, he had been a close friend of the appell ee and had also enjoyed a good professional relationship with her. Subsequently , however, Thomas’ personal and professional relationship with the appellee de teriorate d, and the appellee began engaging in

a pattern of “harassing behavior,” including leaving copious telephone messages

on Thomas’ state-assigned pager. Additionally, in January 1998, the app elle e threatened to r uin Thomas “personally, professionally, and politically.” Due to this threat and an earlier comment by the appellee concerning

her ability t

o alter title reco

rds, Thomas revie

wed title record

s pertaining to his 1979 Ford truc

k, thereby discovering the

alterations.

Invest iga tors also interviewed the appellee, who denied altering the title records pertaining to Thomas’ ve hicl es. Moreover, the appellee provided the investigators a list of individuals

who knew her computer identification number and password. She further remarked that she w as typically

th e first person to arrive at her office every mor ning and, therefore, used her computer identification number and password to c onnect all the computers in her office to the Tennessee Department

of Safety’s title and registration computer data base. The a ppellee asserted that, therefore, all

title transaction

s conducted by

her staff would

be trac eable to her computer identification number and password.

The appellee did not in

itially include Thomas in h

er list of individuals who knew her computer identification num

ber and password

, nor did she otherwise identify Thomas as a suspect. Nevertheless,

sometime later during the course of the investigation, the appellee expressed her belief that Thomas had himself altered the title records. The ap pellee explained t

hat she had previ

ously contacted Art Quarles,

Thomas’ supervisor, and submitted complaints concerning improper sexual-3-

advances that Thomas had made towa rd her. According

to the appellee, s

he had successf

ully requ est ed t hat Tho mas be as sign ed t o an oth er co unt y.

Investigators interviewed the i ndividuals listed by

the appellee as kn owing her compute r identification num

ber and password

. These individual

s uniformly d

enied ma king the illici t alterations to the title records, and some also denied any knowledge of the app el lee’s computer identification num ber a nd p ass wor d. S imi lar ly, investigators interviewed the appellee’s staff, who, contrary to the appellee’s assertions, stated that the appellee was ty pically the last person to arrive at the office and

rarely, if ever, used her computer identification number and pa ssword to connect the computers in the office to the pertinent data base.

A s to Thomas’ supervisor, Quarles denied that the appellee had ever submitted a complaint to him concerning

improper sexual ad

vances made by

Thomas to wa rd the appellee. Rather, Quarles recalled that the appellee h ad submitted a complaint to him on February 5, 1998, concerning Thomas’ confiscation of a vehicle. Upon investigation, Quarles had determined that the confiscation was proper and within the scope of Thomas’ job responsibilities. The appellee had additionally

submitted a secondcomplaint concerning Thomas’ confiscation of another vehicle, and the complaint had ag

ain proved to be un

founded. Finally

, the appellee ha

d complained to

Quarles that Thomas had driven his child to school in a state-owned vehicle. On the occasion of this complaint, Thomas had acknowledged the truth of the appellee’s allegation. Accordingly, Quarles had issued a w a rning to Thomas and reported the incident to Sam Nelson, the Director of the Cri min al In ves tig ati on D ivi sio n of the Dep art men t ofSaf ety.

Quarles confirmed that Thomas was ultimatel y tra nsf erre d to ano the r cou nty. However, Quarles noted that the transfer stemmed from the appellee’ s apparently vindictive behav ior towardThomas and not from any request by the appellee. Indeed, according to Quarles, the appellee

con tac ted him fol low ing t he t rans fer a nd a ske d th at T hom as b e rea ssi gned to S equ atc hie Cou nty.

On Aug ust 18, 1999, following th e Comptroller’s su

bmission of the “Spe

cial Report” to the Office of the District Attorney General for the

Twelfth Judicial Dis

trict, a Sequatchie Coun

ty Grand Jury indicted the appellee for five counts of

official miscondu

ct and five counts

of f orge ry. In defense of

the indictment and in preparation for trial, the appellee issued subpoenas requiring the attendanceand testimony of Michael C. Greene, the Commissioner of th e Department of S afety (hereinafter “the Commissioner”), and John Morgan, the Comptroller of the Treasury (hereinafter “the Comptroller”), a

t her trial. I

n response, the Sta

te submitted a motion

to quash the subpoe

nas, arguing that the Commissioner and the Comptroller are statutorily exempt from subpoena to trial. Moreover, the State asserted that the appellee had fai led to e stablish that the testimonies of the Commissionerand the Comptroller were either material or relevant to her defense, thereby warranting sub

poenas to depositio

ns.

The State attached

to its motion affidavits completed by both the Commissioner and the Comptroller. Th

e Commissioner’s a

ffidavit stated, i

n relevant part:-4- I am currently the Commissioner fo r the T ennessee Department of Safety

. . . . My responsibilities include managing, supervision and pr[e]scribing under the la w the guidelines and policies of the Ten nes see D epar tme nt o f Sa fet y.

. . . I have met Connie Easterly on a few oc casions. T o my knowledge, I met wi th h er on April 3, 1995, April 27, 1995, and August 14, 1997. On a fe w occasions, Ms. Easterly made unscheduledvisits to my off ice. On these

occasions our conversation revolvedaround the general operations of the Division of Title and Registration, its working oper ations a nd re lation with the various county cler

ks offices.

. . . I do not have any direct knowledge of the facts or c ircumstances concerning the allegations con tained in the State ’s case again st Ms. Eas ter ly.

. . . My office received three letters from individuals concer ning Ms. Easter lywhic h I have atta ched to my af

fidavit. I do n

ot personally remember

seeing these letters. A member of m y support staff sent themto the Crim inal Investi ga ti on Division and Internal Affairs Division of my office. Attached to the Commissioner’ s affidavit were five letters, app

arently wr

itte n by citizens of Sequatchie

County and addressed to Governor Sund q uist. The letters were received by the Governor’s office in April and May of 1998 and immediately forwa rded to the Commissioner. The letters essent ially expre ssed appreciation for the appellee’s performance of her duties as the Sequatchie

County Clerk and expressed concern that the Director of the Division of Title and Registration of the Departmen t of Safety a

nd an investigato

r wit h the Criminal Investigation Division were “trying to make this fine clerk look bad.”

The Comptroller’s

affidavit stated

in relevant part: I am currently Comptroller of the Treasury . My responsibilities include managin

g, su pervision and pr[e]scribing under the law the guidelines and p

olicies of the Dep

artment of Audit.

. . . To my knowledge, I do no t know and have never m et Connie Eas ter ly.

. . . I do not have any direct knowledg e of the facts or circumstances concerning the allegations contained in the State’s case

against Ms. Eas ter ly. Upon information and belief, the Divi sio n of State Audit didinvestigate the ci rcum stances concer ning this case. T

his investigation was conducted by Glen McKay, Assistant Director, and1 The State effectively conceded at the hearing t hat, in fact, t

he Commissioner had received such a complaint and communicated the complaint to Irwin.

2 Tenn. R . Crim. P. 15 (a) provid es that,

[w]hene ver du e to except ional ci rcumstan

ces of t he case i

t is i n the in terest of justice that the testimony o f a prospec tive witness of a party be taken and preserved (continued ...)

-5- Tommy Sneed, an Audit Investigator. I reviewed a report submitted by them and signed the report as our office’s official repor t concerning these events. I have never talked to Ms. Easter ly. The only knowledge that I

possess of this case is

the information which I reviewed in the r

eport of this incide

nt.

On January 11, 20 00, the tri al court con ducted a hear ing o n th e State’s motion to quash the subpoenas of the Commissioner and the Comptroller. At the hearing, the appellee initi

ally clarified that she was willing to take the testimonies of the Commissioner andthe Comptroller by deposi tion. Moreover, the appellee disputed the State’s assertion that the testimonies of the Commissionerand the Comptroller were immaterial and irrelevant to her defense. She explained that she ex pected th e Commissioner to testify concerning his office’s transmission of the aforementioned

letters to the Crimin

al Investig

ati on Divi sion. According to the appellee, t

his testimonywould be relevant to possible prejudice on the part of Thomas, a

principal witness for the State. Additionally, she expected the Commissioner to testify concerning his receipt of a complaint about Martha Irwin, the

Director of the Division of Title and Registr

ation, from the ap

pellee and his

commun ication of that complaint to Irwin. The a

ppellee argue

d that this testimony

would b e relevant to possible prejudi

ce on the part of I

rwin, another wit

ness f or the State. 1 As to the Comptroller, the appellee expected him to testify that, following an investigation by his office, the appellee could n

ot be tied conclusi

vely to the ill

icit alterations to

the title records

.

At the conclus ion of the h earing, the trial court noted that “the issuing of subpoenas in this case

and the seeking of depositions go to somewhat of a fishing expediti

on.” Neverthele

ss, the trial court denied the State’s motion. Moreover, the trial court indicated that it would not grant

an interlocutory appeal pursuant to Tenn. R. A pp. P. 9. Accordingly, the State sought an

e xtraordinary

appeal in this cour

t pursuant to Tenn.

R. App. P. 10. This cou

rt grante d the State’ s application on February 3, 2000, to determine whether the Sequatchie County Circuit Cou rt erred in denying the State’s motion to quash the subpoenas to trial of the Commissioner and the Comptroller.

II. Analysis

In reviewing the

trial court’s decisionto enforce the su bpoenas to trial of

the two state officers,we initially note the app e llee’s acknowledgment of Tenn. Code Ann. § 24-9-101 (2000), which statutory provision states that “[a]n officer of this state” is “exempt from subpoena to trial but subject to sub poen a to a deposition.” We further note that there exists no absolute procedural or evidentiary

bar to the appellee’s use of such depositions at trial. 2 Finally, we note that, as in the trial2 (...continue d) for use at trial, the cou rt m ay upon m otio n of such party and notice to t

he parties order that testimony of such wit ness be taken by deposition. Subsecti on (e) of Rul

e 15 furt her indi cates t hat such depositi on s may be us ed as substantive evidence at tri al if the witness is unava ilable in that he is ab sent from the tria l and immun e from pro cess. Cf. Tenn. R. Evid. 804(a) & (b).

-6- court, the appellee offers no objection on appeal to taking the state officers’ testimonies by deposition. Accordingly

, we must conclu

de th at, at a minimum, the trial court erre

d in failing to modify the su

bpoenas to requir

e the officers’ attendance at de positions.

That h aving been said, the State als o disputes that the o

fficers were s

ubject to subpoenas to depositions. In addressing the propriety o

f subpoenas to dep

ositions in

this case, it is useful to identify

the parameters of both a defendant’s right to compulsory process and a trial court’s authority to control a defendant’s utilization of its subpoena power. The Sixth Amendment to the United States Constitution grants an accused a right to compulsory proce ss for obtaining witnesses in her favor. Faretta v. Calif ornia , 422 U.S. 806, 816, 95 S. Ct. 2525, 2532 (1975). Moreover, because the rights guaranteed by

the Sixth Amendment, including the right to compulsory process, “are basic to our adversary system of criminal justice, they are part of the ‘due process of law’ that is guaranteed by

the Fourteenth A

mendment to defen

dants in the crimina

l courts of the States.” Faretta
, 422 U.S. at 818, 95 S. Ct

. at 2532; see also Washington v. Texas , 388 U.S. 14, 18-19, 87 S. Ct. 1920, 1922-1923 (1967). In Washi ngton , the Supreme Court explained the integral role of a defendant’s right to compulsory process in securing justice:

The righ t to offer the test imony of witne

sses, and to compe

l their

a ttendance, if necessary, is in plain terms the right to p resent a defen se, the right to present the defendant’s version of the fact s a s wellas the prosecutio

n’s to the jury

so it may dec

ide where the tru

th lies. Just as an accusedhas the right to confront the prosecution’s wi tnesses for the purpose of challenging their testimony, he has the right to present his own w

itnesses to establi

sh a defense. This right is a fundamental element of due process of law.

388 U.S. at 19, 87 S. Ct.

at 1923. However, a criminal defendant’s rig

ht to compulsory

process is notabsolute; rather, the United States Constitution only prohibits a state from denying a defendant the ability to present testimony that is “‘relevant and

material, and . . . vital to the defense.’” United States v. Valenzuela-Bernal , 458 U.S. 858, 867, 10 2 S. Ct. 3440, 3446 (1982 )(quoting Washington
, 388 U.S. at 16, 87 S. Ct. at 1922)); see also, e. g. , United States v. Williamson , 202 F.3d 974, 979 (7 th Cir. 2000); United States v. Soape , 169 F.3d 257, 268 (5 th Cir.), cert. denied , 527 U.S. 1011, 119 S. Ct. 2353 (1999); Richmond v. Embry , 122 F.3d 866, 872 (10 th Cir. 1997); United States v. Nor th
, 910 F.2d 843, 889 (D.C.

Cir. 1990), withdrawn and superceded in part on other grounds by United States v. North , 920 F.2d 940 (D.C. Cir. 1990).

The Tennessee Constit

ution similarly

affords a defe

ndant facing c

riminal prosecuti

o n the right “to have c

ompulsory pr

ocess for obtaini

ng witnesses in

[her] favor.” T ENN

. C ONST

. art. I,-7-

§ 9. Moreover, like th

e United States Cons

titution, our state c

onstitution only

extends to

a defendant a right to compuls

ory proce ss [i]f a prospective witness i s or probably will be a material one . . . . The matter turns on whether the issuance of process would in fact be

an abuse of process, and, if the Court finds such is the case the Court has power to prevent such abuse. Baconv. State , 385 S.W.2d 107, 109 (T enn. 1964); see also State v. Smith , 639 S.W.2d 677, 680 (Tenn. Crim. App. 1982)(“ ‘[T]he constitutiona l right to compulso

ry process

requires such pr

ocess for, and only for

, competent, mate

rial, and reside

nt witnesse s whose expected testimony will be admissible.’”).

Our

legislature has also created a statutory ri

ght to compulsory

process that is coextensive with the right guaranteed by our constitution. Tenn. Code Ann. § 40-17-105 (1997) states: As provided by the Co nstitu tion of Tennessee , the accused, in

all criminal prosecutions, has a right . . . to have compulsory process for obtaining witnesses in the accused’s favor. Co nsisten twith this right, Tenn. Code Ann. § 40-17-107(a) (1997) generally dir ects the clerks of courts in which criminal cases are pending to issue subpoenas “at any time, to any part of the state, for such witnesses as either the district attorney general or the de fendant may require.” Moreover, Tenn. Code Ann. § 40-17- 122 (1997) specif ically desig

nates Tenn. R. Crim. P. 17 as the mec hanism by which a de

fendant may

realize his constit

utional and statuto

ry right to compulsory p

rocess.
Tenn. R. Crim. P. 17 pr

ovides: (a) For Attenda

nce of Witnesses;

Form; Issuance. - Every subpoena shallbe issue d b y the clerk or other authorize

d officer of the

court. It shall state the name of the court and the title of the proceeding, and it shall c omm and each person to whom it is directed to attend and give testimonyat t he time and place and for the party specified therein. The clerk

or other authorized officer shall issue a subpoena,

or a subpoena for theproduction of documentary evidence, signed but otherwise in blank to a party requesting it, who shall fill in the blanks before it is served.

(b) Defendants Una

ble to Pay. - The court shall order at any time that

a subpoena be issued for service on a named witness

upon an ex parte application of a defendant upon a satisfactory showing that the defendant is financially unable to pay the fee s of the witness

and that the pres ence o f the witness is necessary to an adequate defense. . . .

(c) For Production of Documentary Evidence and of Objects. - A subpoena may also comm and a person to wh om it is directed to produce the books, papers, documents, or tangible things designated-8- therein. The court, upon motion made promptly and in any event by the time specified in t

he su b poena for compliance therewith, may quash or modify the

subpoena if

compliance would be unreaso nable or oppressive.

In sum, a defendant possesses a constitution al and statutory right to compulsory processwhen the desired testimony is “‘relevant and material, and . . . vital to the defense .’” Valenzuela-Bernal
, 458 U.S. at 867, 102 S. Ct. at 3446; see also Bacon
, 385 S.W.2d at 109; Tenn. Code Ann. § 40-17-105. Howeve r, “a court has the power and the duty to preve

nt abuse of its processby abati

ng subpo enas for witnesses whose testimony would be immaterial.” State v. Womack
, 591 S.W.2d 437, 443 (Tenn. App. 1979); see also Bacon
, 385 S.W .2d at 1 09. Obv iou sly, this power and duty extends to pro ceedings involv ing all defenda

nts, although Ten

n. R. Crim. P. 17(b) places the initial burden of demonstrating materiality upon indigent defendants. Cf. United States v. Moore , 917 F.2d 215, 231 (6 th Cir. 1990)(interp reting Fed. R. Cr

im. P. 17 and observing that “[n]either rich nor poor defendants have an unfettered right to subpoenas without discretionary review by the [trial] c

ourt”); United States v. Be nnett , 675 F.2 d 596, 598 (4 th Cir. 1982)(asserting the identical proposition). In the case of non-indigent defendants,

when a motion is made to quash a subpoena issued at theinstance of

an accused . . . , the burden is upon the movent to ma

ke a prima facie showing by acceptable evidence t hat the issuance of the subpoena

was an abuse of t

he processes of the

court because th

e witness is without information as to any material issue in the case.

. . . .
Until abuse

of process has been

shown [f]actually, there is no ground for quashing a properly issued and executed subpoena. Womack , 591 S.W.2d at 443-444.

In reviewing a trial court’s exercise of its power and duty to prevent the abuse of its process, appellate court

s in Tennessee ha

ve generally

applied an abuse of discretion standard. See, e.g. , State v. Burrus , 693 S.W.2d 926, 929 (Tenn. Crim. App. 1985)( finding no abuse

of discretion in the trial court’s denial of an indigent defendant’smotion to subpoena and advance costs for four prospective defense witnesses); Womack , 591 S.W.2d at 446 (“The abuse of the privilege of calling witnesses . . . is familiar to all participants [ in our judicial system], and its restraint must depend upon the integrity

, common sense

and discretion of lawyers and judges all within the bounds of due process.”); State v. Quinton Cage , No. 01C01-9605-CC -00179, 1999 WL 3 0595, at *9 (Tenn. Crim. App. at Nashville, January 26, 1999)(finding no abuse of discretion in trial court’s order quashing the defendant’s subpoena duces tecum for materials in the possession of the State’s DNA expert); State v. Tony

Click , No. 162, 1991 WL 188882, at *2 (Tenn. Crim. App. at Knoxville, September 26, 1991)(“W

here ther e is no rec

ord showin

g that tes timony would hav

e been he

lpful to [a defenda nt], there is no abuse of discretion in denying a motion to subpoena defense witnesses.” ). The application of an abus e of discretion standard by appellate courts is, perhaps, an acknowledg ment tha t the trial court ha s “‘first-hand e

xposure to the witnes ses and evidence as a-9-

whole, and . . . [is] familiar[] with the case and ab[le] to gauge the likely impa ct of the [p

roposed tes tim ony] in the context of the entire proceeding.’” Uni ted Sta tes v. Ll oyd , 71 F.3d 1256, 1268 (7 th Cir. 1995); but cf. Soape , 169 F.3d at 267 (emphasizing that discretion is afforded only “‘within the limits imposed by the Constitution,’” and that the specific question of whether a trial court’s refusal to subpoena a witness violates a defendant’s right to compulsory process is a question of law, which an appellate cou

rt reviews de nov

o); cf. also Bacon , 385 S.W.2d at 109.

Upon reviewing the record before this court, we conclude that the trial court abused its discretion in

denying the State’s motion to quash the appellee’s subpoena of the Comptroller but correctly denied the State’s motion with respect to the Commissioner. In reaching this conclusion,

we note our agree

ment with the obser

vation of the fede

ral district cour

t of the District of

Columbia that, [ i]f

the h ead of a gover

nment agency

were subject to h

aving his deposition taken concerning any litigation affecting his agency . . . , we would find that the heads of government dep

artments. . . would be spe nding t heir time giving depositions and would have no opportunity t

o perform their f

unctions. Capitol Vending Co. v. Baker, 36 F.R.D. 45, 46 (D.D.C. 1964). Thus, as a matter of public policy

we agree with the State that a trial court should take particular care in ensuring that the proposed testimonyof high-rankin

g government o

fficials subpoenaed by a criminal defendant is or pr

obably will be material to the defendant’s case. Cf. United States v. P oindexter , 73 2 F. Supp. 142, 147 (D.D.C. 1990).

Material testimony co nsists of “importan

t information dire

ctly relate d to the charges in the indictment and to [the defendant’s] anticipated defenses to th[o]se charges.” Id. at 14 9. In other words, “materia

l [testimony] is th

at which is

exculpatory - - evidence that if admitted would create reasonable doubt that did not exist without the evidence.” Richmond , 122 F.3 d a t 872. Gen eral ly, such testimony must “comply with established rules of evide nce and procedure as required by the state ‘to assure both fairness and reliability in the ascertainment of guilt an d innocence.’” Id. at 871-872; cf. State v. Brown , 29 S.W.3d 427, 432-436 (Tenn.), cert. denied
, __ U.S. __, 121 S. Ct. 275 (2000). Testimony will not be material if merely cumulative or re petitive of other evidencein the case. United States v. Bertoli, 854 F. Supp. 975, 1083-1084 (D. N.J. 1994), vacated in part on other grounds by United States v. Be rtoli , 40 F.3d 1384 (3d Cir. 1994).

As conceded by the appellee at the January 11, 2000 hearing, the sole testimony that the Comptroller could proffer at a deposition wou

ld comprise his

confirmation that he had read and approved the “Special Report” prepared by Glen McKay , the AssistantDirector of theDivision of StateAudit, and T omm y Sneed, an Audit Investigator, and that the report indicated that the alterations to Thomas’ vehicle titlerecords coul d not be “tied conclusively” to the appellee. The Statenoted at the hearing that both McKay and Sneed had b een subpoenaed to testify at the appellee’s trial. Accordingly, as sumin g that the Comptrol ler’s testimony

would be otherwise material and admissible at the appellee’s trial, the tes tim ony w ould be purely cumulative, and the subpoena to deposi

tion of the Comptrolle

r is an abuse of pr

ocess.-10- As to the Commissioner, testimony concerning possible bias or prejudice on the part of key S tat e wi tne sse s ma y, in deed , co nst itu te “ mat eri al” tes tim ony, i.e., “evidence that if admitted would create reasonable doubt that did not exist without the evidence.” Richmond , 122 F.3d at 872 ; cf. State v. Caughron
, 855 S.W.2d 526, 547-548 (Tenn. 1993)(o bserving that,

in the dist

inct conte xt of a violation of the rule announced in Brady v. Maryland , 373 U.S. 83, 83 S. Ct. 1194 (1963), evidence impeachin g a

government witn

ess’ credibility

may be mate

rial). Moreover

, Tenn. R. Evid. 616 permits a party

to “offer evide

nce by cross-examination, extr insic evidence, o

r both, that a witness is biased in favor

of or prejudiced against a party or another witness.” In this case, however, it is unclear to this court how the transmission by the Commissioner’s office to the Criminal Investigation

Division of letters written by va rious citizens of Seq

uatchie County

and addressed to the Governor

would prejudice Thomas against the appellee. Even assuming that Thomas read the letters at issue, the letters merely commended the appellee for her performance of her duties as the Sequatchie

County Clerk and expressed concern about, and disbelief of, any accusations made by both Thomas and Irwin.

Nevertheless,

the Commissioner’s c

ommunication to

Irwin of a complaint made by the appellee concerning Irwin’s job performance could certainly have inspired prejudice on the part of Irwin. Moreover, as noted earlier, the record indicates that I rwin first requested the investigation by the Division of State

Audit of the alter

ations to Thomas’ vehicle title records. The record also suggests that Irwin would testify at the appellee’s trial conce rning the appellee’s access to computer transaction codes necessary to make the illicit alterations. The State did not indicate at the January 11, 2000 hearing whether or not Irwin could testify concerning the Commissioner’s communication to her of the compla

int at issue. Final

ly, contrar

y to the State ’s argu ment on appeal, the Commissioner’s testimony concerning his communication of the complaint to Irwin would not constitute hearsay, as the appellee would be proffer ing t he testimony in order to demonstrate the effect of the communicat

ion upon Irwin

, regardless o

f the truth of the c

ommunication or the

truth of the complaint. Tenn. R. Evid. 801(c). Accordingly, the record fails to establish that a subpoena to deposition of the

Commissioner would c

onstitute an abuse

of process.

III. Conclusion For the foregoing reasons, we affirm the order of the trial c ourt denying the State’s

mo tion with respect to the Commissioner and modify the order to require the Commissioner’s attendanceat a deposition . However, we reverse the order of the trial court denying the State’s motion to quash the subpoena of the Comptroller.

___________________________________ NORMA McGEE OGLE, JUDGE