Improper Judicial Comment Leads to Reversal in GA Drug Case

Atlanta police officers found the defendant in his vehicle with a bag of marijuana, more than five hits of crack cocaine, two hundred dollars in cash, and plastic baggies. According to the officers, when they asked him what he was doing, he responded that he was “just trying to make some money to feed his family.” The officers stated that when they asked him what he meant, the defendant said that he was selling drugs.

During closing argument, defense counsel said “It’s not okay for police officers to lie…it’s not ok for them to cover things up.” The judge stopped the attorney, saying “Ma’am, I’ve cautioned you. Ladies and gentlemen, you are to disregard the comments from this attorney about lying or covering up.” The judge then told defense counsel she “would be told to sit down” if she did it again. The jury proceeded to find the defendant guilty.

Under Georgia law, O.C.G.A. § 17-8-57 provides that it is reversible 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.” The Court of Appeals has held that a trial court’s comment is improper if it expresses an opinion about whether the evidence has established a material issue, whether a witness was credible, or whether the defendant was guilty.

The Court stated that the purpose of the rule is to keep the judge’s opinion from influencing the jury, who is solely responsible for weighing the credibility of witnesses. The Court reasoned that jurors, and in fact human beings in general, are affected by their mental impressions, and it is difficult to keep these impressions separate from the evidence.

The Court held that the trial court’s instructions to the jury to disregard defense counsel’s questioning of the officer’s credibility “intimated the court’s opinion that [Officer Mercado’s] testimony was believable.” The jury could have interpreted this comment as expressing a favorable opinion of the officer, thus the jurors could have been influenced by that opinion. Citing a recent Georgia Supreme Court decision, the Court concluded that the trial court’s error requires the granting of a new trial.