Fulton County Superior Court
***EFILED***ET
Date: 7/23/2024 5:12 PM
Che Alexander, Clerk
IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA
STATE OF GEORGIA, )
)
v. ) INDICTMENT NO. 22SC183572
)
QUAMARVIOUS NICHOLS, )
Defendant. )
MOTION FOR MISTRIAL and OBJECTION TO MIDTRIAL
SUBSTITUTION of the TRIAL JUDGE
COMES NOW the Defendant, Quamarvious Nichols, by and
through undersigned counsel, and files this Motion for Mistrial in the
above-captioned case. In support of this motion, Mr. Nichols shows the
Court as follows:
Mr. Nichols adopts all motions and arguments for a mistrial as filed
by co-defendants. If such motions are denied, Nichols further moves for
mistrial and objects to midtrial substitution for the following reasons.
1. Mr. Nichols moves for a mistrial and objects to midtrial
substitution of the trial judge because here, for a judge to be
substituted after nineteen months of trial, including six months
of testimony and the admission of evidence prejudices the
Defendant’s right to a fair trial under the 6th and 14th
Amendments to the United States Constitution, as well as the
concomitant provisions of the Constitution of the State of
Georgia.
2. Further, Mr. Nichols moves for mistrial and objects to midtrial
substitution of the trial judge because the current presiding
judge was not the judge during the last 19 months of trial. When,
for example, Mr. Nichols moves for directed verdict, this Court
will be unable to adequately evaluate the entirety of the prior
proceedings in order to rule on the request. Of the 19 months of
trial, over six months has been testimony for which this Court
was not present and therefore cannot base its decision on what
has occurred during trial.
3. Additionally, Mr. Nichols moves for mistrial and objects to
midtrial substitution of the trial judge because on Friday, July
18, 2024, this Court advised the parties that she was unfamiliar
with the previous trial proceedings that have occurred over the
last year and a half. During the trial, before this Court became
the presiding court, Judge Glanville made several contingent
decisions noting that he would revisit his rulings as trial
proceeded. These contingent rulings covered several aspects of
the tentative admissibility of evidence. Given the fact that the
current Court is unfamiliar with over six months’ worth of
testimony, arguments by the parties, motions by the parties and
contingent rulings, this Court could not possibly make decisions
based on what has occurred which the Court was not privy to
nor has reviewed the record.
4. Mr. Nichols further moves for a mistrial and objects to midtrial
substitution of the trial judge because Nichols specifically on
several occasions during trial moved the court to give curative
Rule 105 instructions. The court denied each request to give
such instruction at the time, but indicated it may be necessary
to give at a later time or at the end of trial. Mr. Nichols also
moved the court for severance on multiple occasions, which the
court denied at the time, but agreed that a time may come that
the issue would need to be revisited. This Court would now
need the benefit of the six months’ worth of previous testimony
to adequately and fairly make decisions regarding whether an
instruction and or a severance is warranted. Given the Court is
unfamiliar with the trial proceedings and has indicated that it
did not intend on familiarizing itself with the trial proceedings1
Mr. Nichols’ constitutional rights are violated because this
Court cannot make informed rulings based on the record. Trials
evolve and decisions are made by the court based in part on the
way the trial and evidence play out over time. This Court has
missed crucial proceedings necessary to make fair and well-
founded rulings and to properly instruct the jury both during and
at the conclusion of trial.
5. Nichols moves for mistrial and objects to midtrial substitution
of the trial judge because this Court has indicated that it does
not intend on reviewing the complete record including trial
proceedings and litigation that have already occurred. For this
Court to step into a 19-month ongoing trial in which over 100
witnesses have already testified means that this Court is
proceeding with trial and unable to assess core trial functions
such as the credibility of the witnesses that have already
testified. The lack of a trial court being personally familiar with
the record but presiding over the continuation of this trial,
making decisions regarding trial and instructing the jury
1
Nichols would contend that such a task would be impossible at this point.
violates Nichols’ right to due process and a fair trial as
guaranteed by our Constitution.
6. Mr. Nichols further moves for mistrial and objects to midtrial
substitution of the trial judge because even if this Court
attempted to read the transcripts of the past six months’ worth
of trial, that would not be an adequate substitute for the Court
observing live testimony. Even if this Court attempted to watch
six months’ worth of trial proceedings via media recordings
from afar, that would not be an adequate substitute for the
court’s personal and direct observations. If there was an
argument to the contrary, Nichols notes that the media was not
allowed to film several witnesses and at times were not
recording due to technical difficulties.
7. Nichols moves for mistrial and objects to midtrial substitution
of the trial judge because trial has been “suspended” for over a
month and jurors cannot reasonably be expected to just pick up
where they left off with their memories and observations intact.
Furthermore, a midtrial substituted judge cannot adequately
instruct the jury regarding previous proceedings which the
judge is unfamiliar with.
8. Further, Nichols reiterates and realleges his request for a
severance and incorporates his previous arguments that an
enormous amount of prejudicial spillover has already
occurred and no jury could be expected to compartmentalize the
evidence as it relates to the separate defendants and charges.
WHEREFORE, the Defendant moves this Court for a Hearing on
this Motion for Mistrial and Objection to the Substitution of the Trial
Judge.
This 23rd day of July 2024.
Respectfully submitted,
/s/ Bruce Harvey
Bruce S. Harvey
Georgia Bar No. 335175
Counsel for Defendant
Law Office of Bruce S. Harvey
146 Nassau Street
Atlanta, Georgia 30303
(404) 659-4628
Email: bruce@bharveylawfirm.com
/s/ Nicole Westmoreland
Nicole Westmoreland
Georgia Bar No. 231709
Counsel for Defendant
Westmoreland Law, LLC.
132 Cone Street NW Suite A
Atlanta, GA 30303-2106
(404) 446-2620
Email: nw@westmorelandlawgroup.com
IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA
STATE OF GEORGIA, )
)
v. ) INDICTMENT NO. 22SC183572
)
QUAMARVIOUS NICHOLS, )
Defendant. )
CERTIFICATE OF SERVICE
I certify that I served a copy of the foregoing MOTION FOR
MISTRIAL and OBJECTION TO MIDTRIAL SUBSTITUTION
of the TRIAL JUDGE on opposing counsel by electronic delivery
addressed as follows:
Clerk of Superior Court of Fulton County
136 Pryor Street SW
Atlanta, GA 30303
Fulton County District Attorney's Office
136 Pryor Street SW
Atlanta, GA 30303
