In re Adams

• Decision Date: 18 March 2013
• Docket Number: No. S12A1949.,S12A1949.
• Citation: 292 Ga. 617,740 S.E.2d 134
• Parties: In re Herbert ADAMS.
• Court: Georgia Supreme Court

292 Ga. 617

740 S.E.2d 134

In re Herbert ADAMS.

No. S12A1949.

Supreme Court of Georgia.

March 18, 2013.

Brian Steel, Atlanta, for appellant.

Robert D. James, Jr., Dist. Atty., Leonora Grant, Asst. Dist. Atty., for appellee.

BENHAM, Justice.

Appellant Herbert Adams is an attorney who was held in wilful contempt of court while representing Michael Blaine in a criminal prosecution for murder in the Superior Court of DeKalb County. On the third morning of Blaine's July 2011 trial, Judge Mark Anthony Scott, upon hearing subpoenaed testimony from the attorney representing the State's material witness Walter Landers and upon questioning appellant directly, decided to continue Blaine's trial and institute contempt proceedings against appellant on the basis that appellant was not prepared for the specially set trial. After the contempt hearing was held, Judge Scott issued an order finding appellant to be in wilful contempt for being unprepared for trial and ordering appellant to pay a $500 fine. Appellant now seeks this Court's review of the judgment of contempt. For reasons set forth below, we affirm.

1. Appellant alleges Judge Scott was required to recuse himself sua sponte from the contempt proceedings. We disagree. It is undisputed that appellant did not file a motion to recuse Judge Scott from the contempt proceedings. See Uniform Superior Court Rule 25.1; Mayor & Aldermen of City of Savannah v. Batson–Cook Co., 291 Ga. 114, 728 S.E.2d 189 (2012). Since appellant did not timely file a motion for Judge Scott to recuse himself, the matter of recusal is waived. Hampton v. State, 289 Ga. 621(4), 713 S.E.2d 851 (2011); Butts v. State, 273 Ga. 760, 546 S.E.2d 472 (2001).¹

2. Appellant alleges the evidence was insufficient to hold him in contempt. On appeal, the standard of review for a criminal contempt is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. In re Irvin, 254 Ga. 251, 256, 328 S.E.2d 215 (1985); In re Fitts, 259 Ga.App. 462, 576 S.E.2d 920 (2003); In re Longino, 254 Ga.App. 366, 368, 562 S.E.2d 761 (2002). The record on appeal shows that appellant began representing Blaine in November 2010 and received discovery from the State in February 2011. Blaine's trial was specially set to commence Monday, July 11, 2011. On June 6, 2011, appellant asked for a continuance which Judge Scott denied. Appellant again moved for a continuance on July 11, 2011 and Judge Scott took the motion under advisement instructing appellant to work with the prosecutor in facilitating interviews with some of the State's witnesses and then revisit the motion for a continuance if more time was needed with any particular witness. Jury selection started that same day and was finished by Wednesday, July 13. On that Wednesday, which was the day the parties would have made opening statements and the State would have begun calling witnesses, appellant did not have his entire case file with him; appellant could not advise the court as to when he or his investigators had talked to or had made attempts to talk to Landers who was considered to be a material witness for the State; and appellant admittedly had not obtained any certified copies of convictions despite the fact that a significant number of the State's witnesses, including Landers, had prior felony convictions and despite the fact that appellant had no knowledge of what order the State would call its witnesses.

At the subsequent contempt hearing in August 2011, the lead prosecutor for Blaine's case testified that because a key witness had been murdered on the eve of a 2007 trial involving Blaine, contact information was withheld for a number of State witnesses involved in the 2011 trial; however, throughout the pre-trial proceedings, the prosecutor said he made announcements to all defense attorneys,² including appellant, that the district attorney's office would help facilitate contacting the witnesses for interviews. Indeed, the transcript from a May 20, 2011, motions hearing confirms that the prosecutor made an announcement about facilitating witness interviews and that appellant was present when the announcement was made. Appellant testified that he first met with his investigator in June 2011. At the contempt hearing, appellant's investigator testified that appellant did not make her aware of the prosecutor's offer to facilitate witness interviews; that appellant initially requested the criminal histories of four witnesses; and that three days before trial, appellant asked her to obtain the criminal histories of over 30 witnesses. The contempt hearing record also shows that appellant e-mailed the prosecutor on Friday, July 8, 2011, just three days before the trial commenced, and requested assistance with interviewing fourteen lay witnesses, two police officers, the investigator for the district attorney's office, and eight former co-defendants. Appellant's e-mail reflects that he did not know whether any of the eight co-defendants listed therein, including Landers, was incarcerated in the DeKalb County jail.³ The prosecutor testified that most of the witnesses his office was able to contact that Friday on appellant's behalf had no desire to speak with the defense. In conjunction...