Apoian v. State

The trial court erred in holding an officer in contempt for failure to appear under a witness subpoena without affording the officer due process, including reasonable notice of the charges, the opportunity to call witnesses and present evidence, and the opportunity to retain counsel and prepare his offense.

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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 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 the 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.

Apoian v. State

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