Opinion
April 4, 2005.
Present: Williams, P.J., and Welsh, J.
Practice, Civil, Motions for payment by commonwealth of the costs of service of subpoenas duces tecum.
Opinion vacating order denying defendant's motions. Motions heard in the Fall River Division by Dunn, J.
Karen Augeni Benson for the defendant.
Kevin Connelly for the commonwealth.
This is an appeal under G.L.c. 261, § 27D, as amended by St. 2004, c. 252, § 20, of the denial of the defendant's G.L.c. 261, § 27C motions for payment by the Commonwealth of the costs of service of two subpoenas duces tecum.
The defendant was determined by the court to be indigent. Section 27C(4) of G.L.c. 261 provides that if a court finds a party is indigent, it shall not deny any request for state payment of "normal fees and costs." It is only with respect to "extra fees and costs" that the court is required by the statute to determine whether the requested expenditure of public funds is "reasonably necessary."
The costs of service of the two subpoenas in question are "normal fees and expenses." See G.L.c. 261, § 27A. It was error, therefore, to deny the defendant's motion on the basis that the costs of service of the subpoenas were not "reasonably necessary." Any concern as to the relevance of the documents subpoenaed and as to privilege are issues for the trial judge or for a motion judge acting on a motion to quash or a motion in limine.
As to the Commonwealth's opposition to the motion herein, we note that a prosecutor has no role in the court's determination of motions pursuant to G.L.c. 261, §§ 27A-27G except in those cases in which the court requests or invites such involvement. Commonwealth v. Dotson, 402 Mass. 186, 187 (1988).
The order denying the defendant's requests for funds for service of the two subpoenas is vacated, and a new order allowing the motions shall enter.
So ordered.