Quiller v. State
Decision Date | 15 July 2016 |
Docket Number | A16A0114 |
Citation | 338 Ga.App. 206,789 S.E.2d 391 |
Parties | Quiller v. The State. |
Court | Georgia Court of Appeals |
Jason W. Swindle, Dane Michael Garland, Carrollton, for Appellant.
Monique Fouque Kirby, Peter J. Skandalakis, La Grange, Tracy Shannon Reeves Jr., for Appellee.
Boggs
, Judge.
A jury found Marcus Terrell Quiller guilty of aggravated assault, burglary, and possession of a firearm during the commission of a felony. Following the denial of his amended motion for new trial, Quiller appeals, asserting as his sole enumeration of error, that the trial court committed reversible error by improperly commenting on the evidence during preliminary instructions in violation of OCGA § 17–8–57
. We discern no reversible error and therefore affirm.
Quiller argues that during preliminary instructions to the jury, the trial court erred in stating the following:
(Emphasis supplied.) Quiller argues that the court's statement concerning fingerprint evidence “informed or intimated to the jury the trial court's opinion as to a critical element of the State's case, thereby potentially influencing jurors in their evaluation of whether the State has met its burden of proof at trial.” He asserts that there were points during trial where there was testimony concerning fingerprints at the scene.
Quiller was tried in 2009 and his motion for new trial was ruled upon in April 2015, during which time former OCGA § 17–8–57
provided:
It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused. Should any judge violate this Code section, the violation shall be held by the Supreme Court or Court of Appeals to be error and the decision in the case reversed, and a new trial granted in the court below with such directions as the Supreme Court or Court of Appeals may lawfully give.
This Code section was amended effective July 1, 2015 (Ga. L. 2015, p. 1050, § 1) (before the transfer of Quiller's appeal to this court from the Georgia Supreme Court) and now provides:
The purpose of this section is to keep the jury from being influenced by the judge's opinion, see Morton v. State , 132 Ga.App. 329, 330, 208 S.E.2d 134 (1974)
(citing former Ga. Code Ann. § 81–1104), and it applies to statements made by the judge during preliminary instructions. See Sales v. State , 296 Ga. 538, 541 (2) (a), 769 S.E.2d 374 (2015). Here, the trial court erred in expressly informing the jury, prior to the presentation of evidence, of its opinion of fact: that fingerprint testimony is rarely presented at trial and that fingerprint evidence is “very hard to get.” See id. Faced with this error, we must determine the proper standard for our appellate review.
Although Quiller was tried prior to the amendment to OCGA § 17–8–57
, the State argues that the newly amended version is nevertheless applicable here because it is a “procedural law” that should apply retroactively. The Georgia Supreme Court has alluded to such an application of subsection (b) of OCGA § 17–8–57. Pyatt v. State , 298 Ga. 742 (3) n. 9, 784 S.E.2d 759 (2016).1 Both the former and current versions of OCGA § 17–8–57 provide that it is error for the trial court to express or intimate his opinion about what has or has not been proved.2 Under the former version, however, such an error required an automatic reversal and a new trial. Under the newly revised Code section, in contrast, the trial court must provide a curative instruction or declare a mistrial only where the error has been objected to, OCGA § 17–8–57 (a) (2) ; and the failure to object to the error at trial precludes appellate review unless such violation constituted plain error. OCGA § 17–8–57 (b).
As the Georgia Supreme Court explained, the revised OCGA § 17–8–57
(Citations and punctuation omitted.) Id. The Supreme Court noted further that subsection (b) Id., citing United States v. Nunemacher , 362 F.3d 682, 686 (10th Cir. 2004)
(). Pyatt , supra, at 747 (3), n. 9, 784 S.E.2d 759. For this reason, we hold that subsection (b) of newly amended OCGA § 17–8–57 should be given retroactive effect.3
Furthermore, I disagree with the dissent's position that the new rule is aimed at regulating conduct at trial and that the relevant conduct to be analyzed is trial counsel's objection or the failure to object. As explained above, subsection (b) is not aimed at regulating any conduct at trial, but is rather aimed at our standard of review on appeal of an error already made at trial. Under the old rule or the new rule of subsection (b), the improper statement has already occurred, and the legislature has now determined that plain error is the proper after-the-fact review of the impact of such an improper statement.
Under subsection (b) then, we analyze whether, in the absence of an objection, the trial court's improper statement constitutes plain error. “Under that standard, we must determine whether there is an error that has not been affirmatively waived, is clear and obvious, affects the defendant's substantial rights, and seriously affects the fairness, integrity or public reputation of the judicial proceedings.” (Citation and punctuation omitted; emphasis supplied.) Carlson v. State , 329 Ga.App. 309, 311, 764 S.E.2d 890 (2014)
. But assuming without deciding that Quiller satisfied the other factors, he “cannot show that the court's instruction affected his substantial rights which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings.” Id. at 311 (2), 764 S.E.2d 890
; see Shaw v. State , 292 Ga. 871, 873, 742 S.E.2d 707 (2013).
After the trial court made the improper statements of fact, he properly instructed the jury that:
And the evidence showed that after Quiller entered the victims' home at gunpoint with two other men, the occupants of the home struggled with him and held him down until police arrived. So any fingerprint evidence would not have been vital to placing him at the scene of the crime. Moreover, the detective testified that the crime lab was unable to recover fingerprints from the weapon used in the crimes, and that “[i]t's actually few and far between that we are able to lift a fingerprint that we can use.”
Under these circumstances, Quiller has...
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