APOIAN v. State

723 S.E.2d 35, 313 Ga. App. 800, 2012 Fulton County D. Rep. 414, 2012 WL 255412, 2012 Ga. App. LEXIS 79

• Court: Court of Appeals of Georgia
• Decided: January 30, 2012
• Docket: A11A2122
• Status: Published

Opinions

Adams, Judge.

Patrick Apoian, an Atlanta police officer, appeals from an order of the Superior Court of Fulton County finding him in contempt.

The relevant facts are as follows: Apoian had been subpoenaed, apparently through a procedure established between the Fulton County District Attorney’s Office and the Atlanta Police Department, to testify in the case of State v. Alfonzo Phillips. The day before trial, Apoian was contacted by someone from the DA’s office and told that he would be needed in court the following morning, probably around 9:00 a.m. Further, because Apoian represented that he would be in his office by 8:00 a.m. and that it would only take him a few minutes to travel from his office to the courthouse, it was agreed that he would be contacted when his testimony was needed and he would immediately proceed to the courthouse. However, on the morning of trial, Apoian called in sick to work and was not in his office when attempts were made to reach him there. Apoian was informed by a supervisor that he needed to appear in court even if he was sick, and the prosecutor was notified that Apoian had called in sick and would be arriving late.

The proceedings against Alfonzo Phillips commenced at about 9:59 a.m., at which time the prosecutor informed the trial judge that Apoian, and another officer who was also under subpoena, had not yet arrived and that Apoian was estimated to arrive in approximately one hour. Further, the prosecutor stated that the officers’ testimony was material to the State’s case, and indicated that Apoian’s testimony was necessary to proceed with both the hearing on a motion to suppress and the trial. The trial judge, however, noting that she had dealt with “officers . . . who believe that summonses are invitations ...” indicated that she was unwilling to wait for Apoian to arrive and dismissed the case for want of prosecution.

The trial court also asked the prosecutor if the State would be taking action regarding Apoian’s failure to appear in response to the subpoena and indicated she was ready to have a hearing when he arrived. The prosecutor stated he would leave that to the discretion of the court, but added “I would say yes.”¹ Apoian arrived at about 12:15 p.m., and a contempt hearing was held that same afternoon. Prior to Apoian’s testimony, the trial judge stated that her “concern quite candidly is that there are instances where members of the Atlanta Police Department in particular seem to confuse the issu-anee of a subpoena with an invitation to some kind of affair.” Apoian then testified that he did not know if he had actually been subpoenaed,² but that he knew he was supposed to be in court that morning, and that his understanding was that the prosecutor would notify him when his testimony was needed. Apoian testified, however, that he had been up all night sick and called and asked his office to inform the court that he was sick and to request that the trial be postponed. However, after his office contacted the prosecutor, his office called him back to inform him he needed to be in court, and Apoian tried to call the number he was given to tell the prosecutor he was on his way and then proceeded to get ready and travel to the courthouse from his home, arriving, as stated above, at about 12:15 p.m. The trial judge, after noting that she appreciated the fact that Apoian was “feeling a bit under the weather,” stated further that it seemed that Apoian could have taken additional steps to notify the prosecutor that he would not be able to come to court as directed by the subpoena and thus found Apoian in contempt. Further, although the trial court declined to impose any jail time, Apoian was fined the maximum of $500 and ordered to write a letter of apology to the alleged victim of the crime explaining that the trial could not go forward because he did not “acknowledge” the subpoena. This order was subsequently reduced to writing but was not filed until May 19, 2011 “nunc pro tunc” to February 2, 2011, the day the contempt hearing was held. In that order the trial court made the additional finding that the dismissal of the case against Phillips for want of prosecution was “partly due” to the State’s failure to move for a continuance once it was notified that Apoian was unavailable to testify, or, alternatively, to seek a Writ of Attachment. Nevertheless, the court further stated that the dismissal was “in larger part” due to Apoian’s failure to appear and testify in response to the subpoena, and, in keeping with her verbal ruling following the hearing, fined him $500 and ordered him to write the letter of apology to the victim. It is from this order that Apoian now appeals.

1. Apoian first contends that the trial court erred by holding him in contempt because he was not afforded due process. We agree. This Court has previously held that failure to respond to a subpoena is not the type of conduct subject to summary contempt proceedings. Moody v. State, 131 Ga. App. 355, 359 (2) (206 SE2d 79) (1974). Thus, as Apoian correctly urges, he was entitled to reasonable notice of the charges, the opportunity to call witnesses and present evidence, and the opportunity to retain counsel of his own choosing and adequately prepare his defense. E.g., Ramirez v. State, 279 Ga. 13 (608 SE2d 645) (2005); Hayes v. State, 298 Ga. App. 419, 423 (2) (680 SE2d 508) (2009); In re Hasty, 215 Ga. App. 349 (450 SE2d 848) (1994). Here, the trial judge announced that the contempt hearing would be conducted when Apoian arrived at the courthouse. Apoian was not given reasonable notice of the charge of contempt and did not have an opportunity to retain counsel or otherwise adequately prepare his defense. The contempt proceedings in this case clearly did not comply with due process, and the trial court’s finding of contempt must be vacated and the case remanded for further proceedings. E.g., Newton v. Golden Grove Pecan Farm, 309 Ga. App. 764, 768-769 (1) (711 SE2d 351) (2011).

2. Apoian also contends the trial judge should have recused herself, sua sponte, from the contempt proceedings, citing to the statements the judge made which he contends could indicate that she held him in contempt because she was angry with the Atlanta Police Department because of prior instances when subpoenaed officers from the APD did not appear in court. Pretermitting whether these remarks warrant recusal,³ upon remand Apoian shall be afforded the opportunity to raise the issue of whether the contempt hearing should be conducted by another judge.

3. Because we have vacated the finding of contempt, we find it unnecessary to address Apoian’s remaining enumerations of error, concerning the timeliness within which the trial court filed the written contempt order and challenging the sufficiency of the evidence. E.g., In re Hatfield, 290 Ga. App. 134, 139 (3) (658 SE2d 871) (2008).

Judgment vacated and case remanded.

Barnes, P. J., concurs. Blackwell, J., concurs fully and specially.

1 We note that on appeal the district attorney’s office has communicated to this Court that it is aligned with Apoian’s position in this case.

2 The subpoena was introduced into evidence at the hearing, and it appears that a representative from the Atlanta Police Department signed on behalf of Apoian and a number of other officers.

3 [I]n indirect contempt actions, the trial judge who was presiding over the triad during which the alleged contumacious conduct occurred may preside over the contempt hearing if the “contumacious conduct was not directed toward the judge” and “the judge did not react to the contumacious conduct in such manner as to become involved in the controversy.”

Ramirez, 279 Ga. at 15 (2).