Wright v. State , 287 Ga. App. 593 ( 2007 )

RUFFIN, Judge,

concurring and concurring specially.

I fully concur in the result reached by the majority opinion, as well as the reasoning the majority employs. I write separately only to clarify that in appropriate circumstances, a trial judge is free to question witnesses during trial. As noted by our Supreme Court, “[i]t has long been part of Georgia jurisprudence that a trial judge may propound questions to any witness for the purpose of developing fully the truth of the case, and the extent of such an examination is a matter for the trial court’s discretion.”⁸ But a trial court may not question a witness in a manner that “expresses or intimates an opinion on the facts of the case or as to what has or has not been proved.”⁹ And the court cannot argue with a witness.¹⁰

I agree with the majority that by eliciting testimony regarding Wright’s post-arrest silence — and by then rephrasing and further highlighting that testimony—the trial court weakened Wright’s case and raised implications regarding his guilt.¹¹ Moreover, “[t]he jury easily could have interpreted the trial judge’s remarks as an expression of opinion on the issues to be decided in the case.”¹² Under these circumstances, the trial court’s conduct “crossed the line” of proper questioning and seriously affected the fairness of the proceedings, requiring reversal.¹³

8 Mullins v. State, 269 Ga. 157, 158-159 (3) (496 SE2d 252) (1998).

9 Id.; see also OCGA § 17-8-57 (“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.”).

10 See id.

11 See Gibbs v. State, 217 Ga. App. 614, 615-616 (458 SE2d 407) (1995).

12 Paul v. State, 272 Ga. 845, 848 (1) (537 SE2d 58) (2000).

13 Id. at 848, 849 (3).