State v. Gardner
Decision Date | 01 February 2010 |
Docket Number | No. S09G1210.,S09G1210. |
Citation | 690 S.E.2d 164,286 Ga. 633 |
Parties | The STATE v. GARDNER. |
Court | Georgia Supreme Court |
Julia Anne F. Slater, Dist. Atty., William D. Kelly, Jr., Asst. Dist. Atty., for appellant.
Kathryn E. Rhodes, Columbus, for appellee.
This case involves an alleged violation of OCGA § 17-8-57.1 Marquez Gardner was tried on charges arising from the armed robbery of a beauty salon. As the State concluded the direct examination of its first witness, the following exchange took place:
Gardner was convicted on three counts of armed robbery and sentenced to three concurrent 20-year terms with 12 years to serve. He appealed and the Court of Appeals reversed, holding that the exchange quoted above constituted a comment on the evidence by the trial court in violation of OCGA § 17-8-57. Gardner v. State, 296 Ga. App. 792(2), 676 S.E.2d 258 (2009). We granted certiorari to consider whether the Court of Appeals erred in reversing Gardner's convictions on this basis, and hold that it did so err.
As an initial matter, we assess the analytical framework set forth by the Court of Appeals to evaluate whether Gardner's failure to object at trial to the exchange in question has waived the issue on appeal. Specifically, it stated that where there is no objection at trial: (1) a claim alleging a violation of OCGA § 17-8-57 is not waived if such violation was plain error; and (2) the violation was plain error if it was obvious or it otherwise seriously affected the fairness, integrity or public reputation of the judicial proceeding. Gardner, supra, 296 Ga.App. at 793(2), 676 S.E.2d 258. However, we have clarified that a violation of OCGA § 17-8-57 will always constitute "plain error," meaning that the failure to object at trial will not waive the issue on appeal. Chumley v. State, 282 Ga. 855, 858(2), 655 S.E.2d 813 (2008). On appeal, the issue is simply whether there was such a violation. If so, Patel v. State, 282 Ga. 412, 414(2), 651 S.E.2d 55 (2007). To the extent the "plain error rule" has been articulated otherwise in the context of an alleged violation of OCGA § 17-8-57, such cases are hereby disapproved. See, e.g., Lopez v. State, 297 Ga.App. 618, 625(4), 677 S.E.2d 776 (2009) ( ); Sims v. State, 296 Ga.App. 368, 369-370(1), 674 S.E.2d 392 (2009) ( ); Birkbeck v. State, 292 Ga.App. 424, 434-435(8), 665 S.E.2d 354 (2008) ( ).2
The Court of Appeals correctly stated that in order to violate OCGA § 17-8-57, the trial court's comments must pertain to a disputed issue of fact. Gardner, supra, 296 Ga.App. at 793(2), 676 S.E.2d 258; see Berry v. State, 267 Ga. 476(4)(f), 480 S.E.2d 32 (1997). Assuming, arguendo, that the issue of venue was disputed in this case,3 we hold that the trial court did not violate OCGA § 17-8-57. Although we strongly discourage the giving of direction or the use of language that could create the appearance of alignment between the trial court and either the prosecution or defense, the trial court did not "express or intimate [its] opinion as to what has or has not been proved," OCGA § 17-8-57, because its directive to "[p]rove venue" was immediately followed by a question as to whether venue had been proven. Compare Patel, supra, 282 Ga. at 413(2), 651 S.E.2d 55 ( ). As there was no violation of OCGA § 17-8-57, the Court of Appeals erred by reversing Gardner's convictions. Accordingly, we reverse.
Judgment reversed.
All the Justices concur, except THOMPSON and HINES, JJ., who dissent.
1. OCGA § 17-8-57 provides:
It is error for any judge in any criminal case ... 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.
2. We note that the plain error analysis set forth by the Court of Appeals in Gardner's case was not actually utilized in rendering its decision.
3. Gardner's act of pleading not guilty to the charges in the indictment constituted a challenge to the allegation of venue therein. See Patel, supra, 282 Ga. at 414(2), 651 S.E.2d 55. However, the trial court stated during its charge to the jury that ; both the prosecutor and defense counsel agreed that it was. The record does not establish the point at which venue became uncontested, i.e., whether it occurred before or after the exchange regarding venue at issue here.
HINES, Justice, dissenting.
As the majority does not abide by the clear requirements of OCGA § 17-8-57, I must respectfully...
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