Mitchell v. State , 293 Ga. 1 ( 2013 )

NAHMIAS, Justice,

concurring.

I join the majority opinion in full, but with respect to Division 3, I note my continued belief that Gibson v. State, 288 Ga. 617 (706 SE2d 412) (2011), was wrongly decided. See id. at 620 (Nahmias, J., dissenting). At one point during the closing arguments in this case, the trial court said that the jury’s decision was “not necessarily irreversible” — an accurate statement made in the context of explaining why the court was sustaining the State’s objection to the legally inaccurate argument by appellant’s counsel that the jury’s verdict was irreversible. The court’s comment cannot reasonably be construed as “expressing] or intimat[ing] [the court’s] opinion as to what has or has not been proved or as to the guilt of the accused,” OCGA § 17-8-57, although Gibson’s convoluted rationale gives appellant the foothold to argue otherwise. Relying on “subtle” distinctions, the Court today moves further down the road toward limiting Gibson to its particular facts. See Majority Op. at 4. See also State v. Clements, 289 Ga. 640, 648-649 (715 SE2d 59) (2011); id. at 650 (Nahmias, J., concurring specially in part). The better course would be simply to overrule Gibson.

Decided April 29, 2013 Reconsideration denied May 20, 2013. August F. Siemon III, Brian Steel, for appellant. Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Joshua D. Morrison, Assistant District Attorneys, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Rochelle W. Gordon, Assistant Attorney General, for appellee.

I am authorized to state that Justice Blackwell joins in this concurrence.