Summary
The Supreme Court of Georgia held that a trial court's direction to the prosecution to prove venue, followed by a question about whether venue had been proven, did not violate OCGA § 17-8-57 because it did not express or intimate an opinion about what had been proved. The court also clarified that an alleged violation of OCGA § 17-8-57 is not waived by failure to object at trial, but reversed the Court of Appeals because no statutory violation occurred.
Topics
Practice areas
Questions Presented
- Whether failure to object at trial waived the alleged violation of OCGA § 17-8-57.
- Whether the trial court's statements directing the State to prove venue and asking whether venue had been proven expressed or intimated an opinion about what had been proved in violation of OCGA § 17-8-57.
- Whether the Court of Appeals properly reversed Gardner's convictions on that basis.
Holdings
- A violation of OCGA § 17-8-57 always constitutes plain error, so failure to object at trial does not waive the issue on appeal; the appellate question is simply whether a statutory violation occurred.
- The trial court did not violate OCGA § 17-8-57 because its direction to prove venue was immediately followed by a question asking whether venue had been proven and therefore did not express or intimate an opinion about what had or had not been proved.
Key quotations
“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.” (165)
“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.” (166)
Factual background
Marquez Gardner was tried for armed robbery arising from the robbery of a beauty salon. After the State's first witness identified Gardner, the trial court instructed the State to prove venue and asked whether venue had been proven; the witness then testified that the salon was in Muscogee County. Gardner was convicted on three armed-robbery counts and sentenced to three concurrent 20-year terms, with 12 years to serve.
Procedural history
Gardner was convicted in the trial court of three counts of armed robbery and received three concurrent 20-year sentences, with 12 years to serve. The Georgia Court of Appeals reversed, concluding that the trial court's direction to prove venue constituted an impermissible comment on the evidence under OCGA § 17-8-57. The Supreme Court of Georgia granted certiorari and reversed the Court of Appeals.