Smith v

State, 236 Ga. App. 122, 511 S.E.2d 223 (1999). Trial court did not err in allowing the state a recess to review a point of law and by offering to allow a recess for the state to subpoena a missing file as the scope of O.C.G.A. § 17-8-57 is confined to matters occurring before the jury; here, outside of the presence of the jury, the trial court impartially offered both sides opportunities to present their evidence in a manner that would best give legally admissible, efficient, and comprehensible testimony to the jury. Ingram v. State, 286 Ga. App. 662, 650 S.E.2d 743 (2007), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020). Trial judge’s comments about venue and an open-container charge did not violate O.C.G.A. § 17-8-57 because the comments were made outside the jury’s presence, the case was reopened without any reference to the judge’s opinion, and the questions were then presented to the jury. Thus, there was no indication that the judge’s comments in any way influenced, or even could have influenced, the jury. Davenport v. State, 308 Ga. App. 140, 706 S.E.2d 757 (2011). Appellant’s plea counsel’s failure to object to comments made by the trial judge during the plea hearing, comments which the appellant argued violated O.C.G.A. § 17-8-57, was not ineffective assistance; such an objection would have been meritless because § 17-8-57 only applied if a jury was present. Rhodes v. State, 296 Ga. 418, 768 S.E.2d 445 (2015), overruled on other grounds by Collier v. State, 834 S.E.2d 769, 2019 Ga. LEXIS 708 (Ga. 2019). Trial court’s comments on the evidence did not violate O.C.G.A. § 17-8-57 be- 792 cause it was made outside the presence of the jury. Powell v. State, 352 Ga. App. 14, 833 S.E.2d 602 (2019). Comments four years after verdict. — Judge’s comment on the latent fingerprint cards, four years after the verdict, was not an opinion on guilt in violation of O.C.G.A. § 17-8-57. Moore v. State, 293 Ga. 676, 748 S.E.2d 419 (2013). When § 17-8-57 violated. — O.C.G.A. § 17-8-57 is only violated when the court’s charge assumes certain things as facts and intimates to the jury what the judge believes the evidence to be. Mullinax v. State, 255 Ga. 442, 339 S.E.2d 704 (1986); Williams v. State, 257 Ga. 788, 364 S.E.2d 569 (1988); Stephens v. State, 185 Ga. App. 825, 366 S.E.2d 211 (1988), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020); Turner v. State, 259 Ga. 873, 388 S.E.2d 857 (1990); Fletcher v. State, 197 Ga. App. 112, 397 S.E.2d 605 (1990); Blackmon v. State, 197 Ga. App. 133, 397 S.E.2d 728 (1990). When a habeas court found the trial court violated O.C.G.A. § 17-8-57 and that appellate counsel was ineffective for failing to raise the issue on appeal, it was error for the habeas court to order that the defendant was entitled to a new appeal as: (1) this violated the rule that a criminal defendant was not entitled to a second appeal; (2) wasted judicial resources as an appeal required the appellate court to engage in the same analysis the habeas court had just performed; and (3) created the possibility, realized in this case, that an appellate court would be presented with a matter outside of the court’s jurisdiction, as appeals of decisions of a habeas court were the sole province of the Georgia Supreme Court. Milliken v. Stewart, 276 Ga. 712, 583 S.E.2d 30 (2003). On appeal from an aggravated assault conviction, because the trial judge improperly commented on the evidence in violation of O.C.G.A. § 17-8-57 by telling the jury that the parties agreed that there was no gun involved in the incident, the comment amounted to reversible error entitling the defendant to a new trial. Brimidge v. State, 287 Ga. App. 23, 651 S.E.2d 344 (2007). O.C.G.A. § 17-8-57 is violated only when a court’s charge assumes certain 17-8-57 things as facts and intimates to the jury what the judge believes the evidence to be. Hargett v. State, 285 Ga. 82, 674 S.E.2d 261 (2009), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020). Violation of either the letter or spirit of O.C.G.A. § 17-8-57 constitutes reversible error. Stinson v. State, 151 Ga. App. 533, 260 S.E.2d 407 (1979). It is error to violate even the spirit of this section. A violation thereof is a mandatory cause for a new trial. Crawford v. State, 139 Ga. App. 347, 228 S.E.2d 371 (1976). No violation of the statute. — Defendant’s conviction was affirmed because the trial court’s questioning the conviction did not cross the line and violate O.C.G.A. § 17-8-57, but rather was interposed for the purposes of developing the truth in the case and of clarifying the witnesses’ testimony. Littlejohn v. State, 320 Ga. App. 197, 739 S.E.2d 682 (2013). Trial court did not violate O.C.G.A. § 17-8-57 when the court announced to a panel of the jury venire during preliminary instructions that the indicted offense of malice murder occurred in the subject county as the court was merely explaining what was alleged in the indictment against the defendant, not what had been proven. Lindsey v. State, 295 Ga. 343, 760 S.E.2d 170 (2014). Trial counsel was not ineffective in failing to object to the court’s ruling that the court’s finding of criminal contempt could not be used to impeach the second victim’s testimony because allowing the jury to be informed that the court had found the second victim to have testified falsely would have directly violated the principle that it was error for a judge in any criminal case to express or intimate the judge’s opinion as to what had or had not been proved or as to the guilt of the accused. Green v. State, 299 Ga. 337, 788 S.E.2d 380 (2016). Trial court’s comment to potential jurors that the defendant was charged with the murder of the defendant’s wife did not violate O.C.G.A. § 17-8-57 as the judge was explaining the nature of the case to help jurors determine if the jurors had been exposed to extensive media coverage. 793 General Consideration (Cont’d) Smart v. State, 299 Ga. 414, 788 S.E.2d 442 (2016). Trial court did not commit plain error or violate O.C.G.A. § 17-8-57 when the court reminded a victim during direct examination that the victim was ‘‘in the room’’ when a co-defendant uttered a threat as the trial court’s restatement of what the victim had testified to and its immediately following question were designed not to express an improper opinion as to what had or had not been proved, but to elucidate the issues before the jury. Carter v. State, 343 Ga. App. 853, 805 S.E.2d 924 (2017), cert. denied, No. S18C0568, 2018 Ga. LEXIS 519 (Ga. 2018). Defendant failed to show that any of the trial court’s comments violated O.C.G.A. § 17-8-57 because the defendant’s statement that it was taking a recess to provide the state an opportunity to talk with the witness was an exercise of the court’s discretion to control the trial proceedings and not an expression of the court’s opinion of the witness’s credibility, the overall import of the trial court’s statements about an officer’s testimony was to explain to counsel why counsel had exhausted a particular line of question and why the court was directing counsel to move on to a different topic, and the judge’s comments were meant to clarify the prior testimony of the sergeant. Thompson v. State, 349 Ga. App. 1, 825 S.E.2d 413 (2019). Defendant was not entitled to a new trial because the trial court did not violate O.C.G.A. § 17-8-57 as the trial court’s statement was a permissible clarification of a procedure that did not address the credibility of witnesses or any fact at issue in the trial and the defendant could not establish plain error. Elrod v. State, 354 Ga. App. 177, 840 S.E.2d 658 (2020). Instruction on alternative defenses. — When the defendant also pursued the alternative defense that the defendant did not cause the gun to fire, the jury charge as given did not violate O.C.G.A. § 17-8-57 because it would not have been error for the trial court to directly tell the jury that the defendant admitted the shooting for purposes of the 17-8-57 defenses of justification and accident. McLean v. State, 297 Ga. 81, 772 S.E.2d 685 (2015). Rule inapplicable. — Trial court’s admission of testimony from a victim of a prior aggravated assault and armed robbery was not subject to plain error review as the instant prosecution was not a death penalty case or action in which the trial judge expressed or intimated the judge’s opinion as to the guilt of the accused or as to what had or had not been proved in violation of O.C.G.A. § 17-8-57. Brooks v. State, 281 Ga. 514, 640 S.E.2d 280 (2007). Prejudicial character of remarks. — It is the prejudicial character of the remarks which constitutes the error. Morton v. State, 132 Ga. App. 329, 208 S.E.2d 134 (1974). Fact must be material for this section to apply. Jones v. State, 65 Ga. 621 (1880). Failure to identify comment with particularity. — Defendants failed to show a violation of O.C.G.A. § 17-8-57, when the defendants failed to identify the challenged comment with any particularity. Gorman v. State, 318 Ga. App. 535, 734 S.E.2d 263 (2012). When expression of opinion as to what has been proved is error. — It is error for the trial court to give an opinion as to what has been proved if the opinion goes to the essential question of guilt or innocence or if, although undisputed, it may be the subject of contrary inferences, and it is error to instruct the jury that there is no contention to the contrary even as to uncontradicted evidence when the defendant, by the defendant’s plea of not guilty, has placed every material fact in issue. McFarland v. State, 109 Ga. App. 688, 137 S.E.2d 308 (1964). Court of appeals did not err by finding that the trial court violated O.C.G.A. § 17-8-57 by expressing an opinion as to whether venue had been proven because following the prosecutor’s attempt to elicit testimony from a salesperson as to the salesperson’s store’s location, the trial court asked the state if venue was established and commented that there had been some confusion since a salesperson had worked at one store and was working in another one, and that the court just 794 wanted to make sure; the comment ‘‘I just wanted to make sure,’’ following the trial court’s questioning of the salesperson, constituted an expression of opinion that venue had in fact been proven, and the plain language of § 17-8-57 provided for reversal of the entire case, not a portion thereof. State v. Anderson, 287 Ga. 159, 695 S.E.2d 26 (2010). Comment on where crime occurred not improper. — It was not an impermissible statement by the trial court that the crime actually happened in a specific county or that the state properly indicted the defendant therein. Mitchell v. State, 337 Ga. App. 841, 789 S.E.2d 797 (2016), cert. denied, No. S17C0012, 2017 Ga. LEXIS 211 (Ga. 2017). Although it was unusual and unnecessary for the trial court to explain an accomplice’s plea deal to the potential jurors, the explanations were not a comment on the defendant’s guilt, nor were the explanations comments on whether a fact had or had not been proved. The court summarized the terms of the accomplice’s plea deal, the court did not tell the jury that the accomplice’s testimony would be truthful, but rather stated accurately that the state’s sentencing recommendation would depend on whether the accomplice’s testimony was truthful in the state’s opinion. Barboza v. State, No. S20A0404, 2020 Ga. LEXIS 470 ( June 29, 2020). Presumption of injury from erroneous opinion of proof or guilt. — Law conclusively presumes injury from the error of expressing an opinion as to proof or guilt, and the mandatory provisions of this section require reversal of the judgment of the trial court on proper assignment of error. Allen v. State, 194 Ga. 178, 21 S.E.2d 73, answer conformed to, 67 Ga. App. 607, 21 S.E.2d 280 (1942), overruled on other grounds, Pulliam v. State, 196 Ga. 782, 28 S.E.2d 139 (1943). Expression of opinion as to an uncontested and undisputed fact is not cause for reversal. Dixon v. State, 196 Ga. App. 15, 395 S.E.2d 577 (1990). Trial court judge did not violate O.C.G.A. § 17-8-57 by questioning the defendant about a prior guilty plea that the defendant entered as the questioning in- 17-8-57 volved matters that were not disputed; there was similarly no violation by the judge’s questioning of the defendant’s roommate as to why the defendant signed an affidavit indicating that cocaine found in their apartment belonged to the roommate, as the questioning only served to assist the defendant, and counsel’s failure to object thereto indicated a lack of prejudice to the defendant. Branscomb v. State, 272 Ga. App. 700, 613 S.E.2d 222 (2005). Trial court’s statement to the jury in the defendant’s felony murder and cruelty to children trial regarding the child victim’s teething did not violate O.C.G.A. § 17-8-57 since the fact of the child’s teething was undisputed; defendant testified that the defendant was told that the child was teething, and another witness testified that they were using medication to alleviate the child’s teething discomfort. Sauerwein v. State, 280 Ga. 438, 629 S.E.2d 235 (2006). Fact that an item seized from the defendant’s person was cocaine was not contradicted at trial, and the defendant personally referred to the substance as cocaine. Therefore, the trial court’s comment that Exhibit 1 ‘‘is the cocaine’’ as the court collected the evidence was not an improper comment on the evidence contrary to O.C.G.A. § 17-8-57, and any error was cured by an instruction to the jury that whether or not the substance was cocaine was for the jury to determine. Nelson v. State, 305 Ga. App. 65, 699 S.E.2d 66 (2010). Expression of opinion on issue of fact is not harmless. — Provisions of this section are mandatory, and a charge which discloses the court’s opinion on an issue of fact cannot be treated as harmless. Mitchell v. State, 89 Ga. App. 80, 78 S.E.2d 563 (1953). Trial court violated O.C.G.A. § 17-8-57, requiring a reversal of the defendant’s convictions, even though defense counsel did not object to the trial court’s comments because a violation of § 17-8-57 was always ‘‘plain error.’’ Murphy v. State, 290 Ga. 459, 722 S.E.2d 51 (2012). Defendant was entitled to a new trial because by stating to the jury venire that the crime happened in Taylor County, Georgia, the trial court judge expressed or 795 General Consideration (Cont’d) intimated the court’s opinion as to a disputed issue of fact and thus violated O.C.G.A. § 17-8-57. Sales v. State, 296 Ga. 538, 769 S.E.2d 374 (2015). An expression of opinion by the court with regard to what had or had not been proved cannot be deemed harmless. Crawford v. State, 139 Ga. App. 347, 228 S.E.2d 371 (1976). Terms of O.C.G.A. § 17-8-57 are mandatory. — This section forbids a trial judge to express or intimate the judge’s opinion as to what has or has not been proved, and declares that should the judge violate this section, the reversal of the case is mandatory. Demonia v. State, 69 Ga. App. 862, 27 S.E.2d 101 (1943). There can be no finding of harmless error if a trial court violates O.C.G.A. § 17-8-57; thus, the law is well-established that instructions given to a jury by a trial court cannot cure a violation of § 17-8-57 and the Georgia Supreme Court disapproves any case law language intimating the contrary. Patel v. State, 282 Ga. 412, 651 S.E.2d 55 (2007). Absolute guarantee of new trial. — Section gives to one accused of crime the absolute guarantee of a new trial in the event the accused is deprived of a fair and impartial trial because of error under that section committed by the judge before whom the accused is convicted. Allen v. State, 194 Ga. 178, 21 S.E.2d 73, answer conformed to, 67 Ga. App. 607, 21 S.E.2d 280 (1942), overruled on other grounds, Pulliam v. State, 196 Ga. 782, 28 S.E.2d 139 (1943). If O.C.G.A. § 17-8-57 is violated, even in clear case of guilt, new trial must be granted. — Even in a clear case of guilt, an appellate court has no other alternative, and the court desires no other, than to grant a new trial when the court comes to the conclusion that the right of the defendant to have the fact of the defendant’s guilt or innocence determined exclusively by the jury has been in the slightest degree infringed by judicial intimation or expression. Cook v. State, 40 Ga. App. 125, 149 S.E. 79 (1929). Regardless of correctness of verdict. — When a defendant has been de- 17-8-57 prived of a fair and impartial trial, the grant of a new trial is imperative, without reference to the correctness of the verdict. Cook v. State, 40 Ga. App. 125, 149 S.E. 79 (1929). Expression of opinion on facts renders the grant of a new trial imperative, without reference to the correctness of the verdict. Golden v. State, 45 Ga. App. 501, 165 S.E. 299 (1932). Disregard of this section on the part of a trial judge renders the grant of a new trial imperative, without reference to the correctness of the verdict. Allen v. State, 194 Ga. 178, 21 S.E.2d 73, answer conformed to, 67 Ga. App. 607, 21 S.E.2d 280 (1942), overruled on other grounds, Pulliam v. State, 196 Ga. 782, 28 S.E.2d 139 (1943). Remedy when jurors are prejudiced by remarks by officers of the court. — If the defendant is of the opinion that any remarks made by officers of the court might prejudice the jurors, the defendant’s remedy is to purge the jury on the trial of the case. Robinson v. State, 86 Ga. App. 375, 71 S.E.2d 677 (1952). Comments on scheduling and procedure. — Judge’s comments at the outset of the trial that the judge would keep breaks as brief as possible and that, if the jury had not begun deliberations by Friday, it was possible the jury would have to return the following week were not intended to hurry the trial to a conclusion and did not indicate an opinion that the defendant was guilty. Johnson v. State, 222 Ga. App. 722, 475 S.E.2d 918 (1996). Comments on venue. — Trial court’s statement to the venire that the crime took place in Muscogee County expressed or intimated the court’s opinion as to a disputed issue of fact at trial in violation of O.C.G.A. § 17-8-57, and entitled the defendant to a new trial. Rouse v. State, 296 Ga. 213, 765 S.E.2d 879 (2014). Comments regarding pretrial procedure. — Although the trial court’s comments to the jury venire three weeks prior to their service may have come close to commenting on the defendant’s guilt or innocence, the comments were made to explain the procedure leading up to the jurors’ service and, thus, did not necessitate a new trial. Hicks v. State, 326 Ga. App. 46, 755 S.E.2d 855 (2014). 796 Colloquy regarding expanding the indictment due to additional evidence. — Trial judge’s explanation to a defendant’s counsel that based on the counsel’s questioning of an investigator regarding the defendant’s statement to the investigator that the defendant lived in Florida, the judge was going to expand the indictment to include falsifying or concealing a material fact, which was one possible violation of O.C.G.A. § 16-10-20, when the defendant had only been charged with making a false statement, did not constitute an improper remark under O.C.G.A. § 17-8-57 because it was a colloquy with counsel regarding possible jury charges and did not express an opinion on what had or had not been proved. Adams v. State, 312 Ga. App. 570, 718 S.E.2d 899 (2011), cert. denied, No. S12C0500, 2012 Ga. LEXIS 263 (Ga. 2012). Comments about control and preventing a disturbance. — Court found no violation of O.C.G.A. § 17-8-57 because: (1) the trial court’s comment, made in an effort to keep the proceedings under control and to prevent a disturbance, warning the defendant outside the presence of the jury that the defendant would be removed from the courtroom if the defendant could not stay under control, was not improper; and (2) the remaining comments were limited to a clarification of procedures and did not address the credibility of witnesses or any fact at issue in the trial, and thus, did not constitute a basis for reversal. Linson v. State, 287 Ga. 881, 700 S.E.2d 394 (2010). Trial judge’s comment, after excusing for cause a jury panel member who was a sworn police officer, that the judge had no discretion in the matter because of a prior appellate ruling, and that the judge disagreed with that ruling, did not constitute a statement of opinion either as to proof or as to guilt, and thus did not impermissibly bolster any witness’s credibility. Najmaister v. State, 196 Ga. App. 345, 396 S.E.2d 71 (1990). Judge’s comments about defendant’s desire to question all jurors. — When the record shows that the defendant’s election to question all the jurors on the panel before starting to strike a jury 17-8-57 prompted the trial court to comment to the jury, ‘‘Do not let it prejudice your minds against the defendant in any way whatsoever,’’ nothing in the record showed that the defendant was in any way prejudiced by this remark. Davis v. State, 204 Ga. App. 657, 420 S.E.2d 349 (1992). Court’s statements regarding defendant’s choice to proceed pro se were not improper. — None of the trial court’s statements to the jury was an improper comment on the evidence because the record showed that the trial court explained to the jury that the defendant chose not to be present during jury selection, that the trial would proceed in the defendant’s absence, that the defendant would have an opportunity to participate if the defendant changed the defendant’s mind, that the defendant had been offered an attorney, and that the trial court had advised the defendant to accept the offer but the defendant had chosen self representation. Caldwell v. State, 273 Ga. App. 135, 614 S.E.2d 246 (2005). Indirect reference to appellate process did not violate rule. — Trial judge’s statement that the judge would ‘‘get reversed probably’’ if the judge failed to read the jury charge did not violate O.C.G.A. § 17-8-57(a)(1) because the statement did not suggest the judge believed the defendant would be found guilty and appeal but merely stressed the importance of the jury charge. DeLoach v. State, 308 Ga. 283, 840 S.E.2d 396 (2020). Trial court’s inadvertent statements that the allegations in the indictment were facts, that the indictment was evidence, that the jurors had to base the jurors’ decision on what the attorneys said, and that the jurors were to report any evidence the jurors heard outside the courtroom did not constitute comments on the evidence. Atkins v. State, 253 Ga. App. 169, 558 S.E.2d 755 (2002). Trial court’s joking comment. — As the record showed that the trial court’s joking comment was directed at a juror, and not the defendant, and defense counsel did not object to the statement, there was no violation of O.C.G.A. § 17-8-57. Abernathy v. State, 278 Ga. App. 574, 630 S.E.2d 421 (2006). Trial court’s rebuke of counsel. — No abuse of discretion resulted from the 797 General Consideration (Cont’d) trial court’s refusal to declare a mistrial after the court advised defense counsel to refrain from inappropriately interrupting the testimony of the medical examiner; moreover, the defendant failed to show by the record that the court’s purportedly damaging rebuke constituted an expression of opinion on the case, especially when the court reminded the jury of the court’s previous instruction not to consider any actions, comments, or opinions of the court in reaching a verdict. Buttram v. State, 280 Ga. 595, 631 S.E.2d 642 (2006). Trial court’s use of word ‘‘honey’’. — Trial court judge’s use of the word ‘‘honey’’ to refer to an eight-year-old child victim while the victim was testifying was not an opinion of the victim’s credibility and did not seriously affect the fairness, integrity, and public reputation of the judicial proceedings. Moore v. State, 319 Ga. App. 766, 738 S.E.2d 348 (2013). Distinction between evidence and proof. — There is a difference between evidence and proof: evidence tends to establish or disprove an alleged matter of fact in issue; proof is the effect of evidence, while evidence is merely the means of making proof. A fact is not proved unless it is established. Jackson v. State, 177 Ga. 264, 170 S.E. 26 (1933). Statement that there is no dispute about a fact in evidence does not express an opinion. McCloud v. State, 166 Ga. 436, 143 S.E. 558 (1928). If there is no conflict in the evidence on a certain point the trial court may take the fact to have been admitted or proved as the case may be. McFarland v. State, 109 Ga. App. 688, 137 S.E.2d 308 (1964). Trial court did not err under O.C.G.A. § 17-8-57 by referring to the composition of exhibits which contained cocaine and ecstasy because there was never any dispute at trial as to the composition of the exhibits. Foster v. State, 314 Ga. App. 642, 725 S.E.2d 777 (2012). Court intimating opinion upon uncontested fact. — That the trial court intimates an opinion upon an uncontested and undisputed fact is not cause for a new 17-8-57 trial as being in violation of this section. Abbott v. State, 91 Ga. App. 380, 85 S.E.2d 615 (1955). O.C.G.A. § 17-8-57 inapplicable to facts conceded by both parties. — This section refers to the expression or intimation of an opinion touching some fact at issue involved in the case, and not to something that is conceded by both parties. Thomas v. State, 27 Ga. App. 38, 107 S.E. 418 (1921). Assumption that fact is true when only one possible inference from evidence. — While the trial court may not under this section express an opinion as to what has been proved in the case, when only one inference is possible from the evidence it is not improper for the court to assume the fact to be true. Green v. State, 129 Ga. App. 27, 198 S.E.2d 343 (1973); Lyle v. State, 131 Ga. App. 8, 205 S.E.2d 126 (1974). Stating an admitted fact does not constitute an expression or intimation of opinion. Swain v. State, 162 Ga. 777, 135 S.E. 187 (1926). Comments by the court not plain error. — Since the fact that the victim’s home was burglarized was not an issue in the case because the defendant put forth an alibi defense readily agreeing that the home had been burglarized, the court’s comment about the home being ‘‘burglarized’’ did not constitute plain error. Archie v. State, 248 Ga. App. 56, 545 S.E.2d 179 (2001). Defendant’s claim that the trial court’s comments on the credibility of the co-defendant failed as any error did not amount to plain error because the defendant failed to establish that the error affected the defendant’s substantial rights given the strong evidence of guilt against the defendant, including the defendant’s admission to being present for the shooting and admission to a fellow gang member that the defendant shot the victim. Harris v. State, 302 Ga. 832, 809 S.E.2d 723 (2018). Instruction to counsel to keep closing argument relevant not improper. — In a defendant’s trial for aggravated assault and other charges arising out of a road rage incident, the trial court did not violate O.C.G.A. § 17-8-57 by interrupt- 798 ing defense counsel’s closing argument to request that counsel not stray into matters that were not relevant; the instruction that the arguments raised by defense counsel were not relevant was neither an expression of opinion nor a comment on the evidence. Adams v. State, 282 Ga. App. 819, 640 S.E.2d 329 (2006). To assume state’s evidence is the truth violates law. — To assume in a criminal case that the testimony for the state is the truth, though such testimony is not contradicted by evidence for the defendant, and to charge the jury that such testimony is the truth and that there is no contention to the contrary, is violative of this section and demands a new trial. Golden v. State, 45 Ga. App. 501, 165 S.E. 299 (1932). Assumption by court that a crime has been committed. — If there is nothing in the evidence or in the defendant’s statement to dispute the fact that the alleged crime was committed, and the defendant’s defense rests solely upon the contention that the defendant did not participate in the offense, the court does not violate this section in assuming that a crime has been committed. Pruitt v. State, 36 Ga. App. 736, 138 S.E. 251 (1927). Assumption that facts have been admitted, when plea of not guilty entered. — Plea of not guilty, by one accused of crime, is an express contention on the accused’s part antagonistic to every fact necessary to be proved by the state in order to establish the accused’s guilt. Unless the accused admits one or more of the facts which it devolves upon the state to prove, such facts must be established by evidence. To assume that an important fact in the case on trial has been admitted, and to so instruct the jury when no such admission has been made, is error requiring a new trial. Duke v. State, 43 Ga. App. 428, 158 S.E. 919 (1931). Stressing the contentions of one party at the expense of an adversary may amount to such an intimation of opinion as to demand the grant of a new trial. Screven v. State, 169 Ga. 384, 150 S.E. 558 (1929). Discussion of case between judge and counsel. — Question put by the judge in a colloquy between the judge and 17-8-57 counsel on a question of the admissibility of certain evidence is not error. Davis v. State, 72 Ga. App. 631, 34 S.E.2d 672 (1945). It is not reversible error for the judge, in discussing with counsel the admissibility of testimony, the propriety of a nonsuit, the direction of a verdict, or similar matters in the progress of the trial, or in explaining the judge’s rulings upon questions of this nature, to refer to the evidence or to the statements of witnesses, provided the judge does not go out of the line of legitimate discussion upon the point presented, or use such language as to indicate apparent or actual judicial approval or disparagement of any witness or of any part of the testimony. Miller v. State, 122 Ga. App. 553, 177 S.E.2d 838 (1970); Jones v. State, 159 Ga. App. 634, 284 S.E.2d 651 (1981). Inhibition against an expression or intimation of opinion by the trial judge as to the facts of the case does not extend to colloquies between the judge and counsel as to the admissibility of certain evidence, especially if the judge is ruling upon a point made by counsel for the accused. Bradley v. State, 137 Ga. App. 670, 224 S.E.2d 778, cert. denied, 429 U.S. 918, 97 S. Ct. 310, 50 L. Ed. 2d 284 (1976); Fletcher v. State, 157 Ga. App. 707, 278 S.E.2d 444 (1981); Troutman v. State, 178 Ga. App. 314, 342 S.E.2d 785 (1986). Trial court’s reference to a witness’s testimony during colloquy with counsel respecting an evidentiary ruling was not an impermissible expression of opinion. Mooney v. State, 221 Ga. App. 420, 471 S.E.2d 904 (1996). Trial court simply admonishing defense counsel for questioning a witness about what the witness was asked in the witness’s plea did not rise to the level of an expression or intimation of opinion by the judge as to matters proved or as to the guilt of the accused. Wooten v. State, 240 Ga. App. 725, 524 S.E.2d 776 (1999). Discussion of evidence with counsel. — Statutory inhibition against an expression or intimation of opinion by the trial court as to the facts of the case does not generally extend to colloquies between the judge and counsel regarding the admissibility of evidence. Havard v. State, 799 General Consideration (Cont’d) 175 Ga. App. 798, 334 S.E.2d 381 (1985); Smith v. State, 189 Ga. App. 27, 375 S.E.2d 69 (1988); Whitt v. State, 215 Ga. App. 704, 452 S.E.2d 125 (1994); Aman v. State, 223 Ga. App. 309, 477 S.E.2d 431 (1996); Williams v. State, 244 Ga. App. 692, 536 S.E.2d 572 (2000). Mere colloquies between counsel and the trial court regarding evidentiary issues do not violate O.C.G.A. § 17-8-57. Bryant v. State, 268 Ga. 664, 492 S.E.2d 868 (1997); Loveless v. State, 245 Ga. App. 555, 538 S.E.2d 464 (2000). Trial court did not violate O.C.G.A. § 17-8-57 in explaining the basis for an evidentiary ruling outside the presence of the jury. Singleton v. State, 240 Ga. App. 240, 522 S.E.2d 734 (1999). Trial court did not violate O.C.G.A. § 17-8-57 by qualifying an expert witness in the presence of the jury since the court later charged the jurors that it was the jury’s function to determine the credibility or believability of the witnesses and that the court had not intended, by any ruling or comment made during the progress of the trial, to express any opinion upon the credibility of the witnesses. Davitt v. State, 257 Ga. App. 384, 571 S.E.2d 427 (2002). Explanation of evidence. — Trial court’s explanation of certain evidence given at trial as being an example of direct testimony or evidence did not amount to an improper comment by the trial court or an intimation of the court’s opinion as to the defendant’s guilt. Ridgeway v. State, 174 Ga. App. 663, 330 S.E.2d 916 (1985). If the jury asked a question regarding specific evidence, it was proper for the trial court to instruct the jury that the jury must remember the evidence. Nealy v. State, 230 Ga. App. 747, 498 S.E.2d 119 (1998). Comment on defendant’s testimony. — Trial court’s statement to the jury that the defendant ‘‘is about to testify as to I believe some bases for his change in testimony which you may have observed yesterday,’’ followed with an instruction that the testimony should be considered solely for the purpose of explaining the change did not violate O.C.G.A. § 17-8-57. Nealy 17-8-57 v. State, 239 Ga. App. 651, 522 S.E.2d 34 (1999). Comment intimating court’s opinion on credibility of witness. — Defendant was entitled to a new trial because the trial court erred in asking a witness whether the witness was lying or being truthful, intimating the court’s opinion regarding the credibility of the witness’s testimony. Williams v. State, 329 Ga. App. 706, 766 S.E.2d 474 (2014). Comment’s on witness’s expertise. — Trial court’s statement that a witness was an expert and was a frequent witness did not amount to plain error because the defendant failed to show a violation of O.C.G.A. § 17-8-57, much less an obvious error, as the comment indicated nothing about the defendant’s guilt and did not likely affect the outcome of the trial. Hightower v. State, 304 Ga. 755, 822 S.E.2d 273 (2018). Expression of opinion about witness’s credibility. — Trial court violated O.C.G.A. § 17-8-57 by expressing the court’s opinion about the credibility of a neighbor, who testified for the state at the defendant’s trial, because the trial court’s question and comment about the neighbor’s testimony intimated the court’s opinion that the testimony was believable since the neighbor was an independent witness, unrelated to any of the parties involved in the case; any reasonable juror, having heard the trial court’s comments, could construe the comments as an expression of opinion on the neighbor’s credibility, and the trial court’s purported curative instruction did not eradicate the court’s inappropriate comments. Callaham v. State, 305 Ga. App. 626, 700 S.E.2d 624 (2010). Trial court violated O.C.G.A. § 17-8-57, requiring a reversal of the defendant’s convictions because: (1) the jury could have interpreted the court calling a witness a ‘‘good detective’’ as expressing a favorable opinion of the witness’s abilities and thus bolstering the witness’s credibility; and (2) it was impossible to say the jurors were not influenced to some extent. Murphy v. State, 290 Ga. 459, 722 S.E.2d 51 (2012). Trial court violated O.C.G.A. § 17-8-57, requiring a reversal of the defendant’s 800 convictions because: (1) the jury could have construed the court’s comments on an officer’s use of a written document and the officer’s ‘‘best efforts’’ as expressing an opinion that the officer’s recollection of the defendant’s statement was reliable or credible; and (2) it was impossible to say the jurors were not influenced to some extent. Murphy v. State, 290 Ga. 459, 722 S.E.2d 51 (2012). Trial court’s admonition to defense counsel and instructions to the jury to disregard defense counsel’s challenge to an officer’s credibility clearly intimated the court’s opinion that the officer’s testimony was believable and violated O.C.G.A. § 17-8-57, and the purported curative instruction did not eradicate the trial court’s inappropriate comments. Wilson v. State, 325 Ga. App. 859, 755 S.E.2d 253 (2014). Remarks not opinion. — Comment was clearly a preliminary reference to what the jury could expect to hear once the evidence began, and was not an unauthorized expression of an opinion by the trial court as to what actually had been proven in the case. Cammon v. State, 269 Ga. 470, 500 S.E.2d 329 (1998). In defendant’s shoplifting case, when the judge explained that the judge had directed a verdict on certain items because no evidence was presented that the items were stolen, the judge’s explanation was not an expression of opinion on the remainder of the evidence in the case. Smith v. State, 275 Ga. App. 60, 619 S.E.2d 694 (2005). Court of appeals erred by reversing the defendant’s convictions for armed robbery because the trial court did not violate O.C.G.A. § 17-8-57 when the court did not express or intimate the court’s opinion as to what had or had not been proved since the court’s directive to prove venue was followed by a question as to whether venue had been proven; in order to violate § 17-8-57, the trial court’s comments must pertain to a disputed issue of fact. State v. Gardner, 286 Ga. 633, 690 S.E.2d 164 (2010). Trial court did not improperly express the court’s opinion of the case in front of the jury in violation of O.C.G.A. § 17-8-57 because, although the trial judge told the 17-8-57 prosecution that the prosecution needed another witness after venue was put into question, the only possible inference was that venue had not been proven. Furthermore, the trial court was within the court’s discretion to limit the scope of the testimony of the following witness to the issue of venue as the prosecution had already rested the prosecutor’s case; the trial court had discretion to propound the court’s own questions to the witness; and the trial court never stated that the alleged crime took place in the county where the trial occurred and never expressed the court’s opinion or commented on what had been proven. Smith v. State, 306 Ga. App. 693, 703 S.E.2d 329 (2010). Trial court did not err when the court charged the jury by intimating the court’s opinion as to the defendant’s credibility, in violation of O.C.G.A. § 17-8-57, because, when the charge on impeachment was considered in context, no reasonable juror could have construed the charge as an expression of the trial court’s own opinion that the defendant had been impeached or committed the alleged crimes. Moreover, the jury was instructed that the jury alone would decide whether the defendant was guilty of a crime. Pullen v. State, 315 Ga. App. 125, 726 S.E.2d 621 (2012). Trial court did not intimate an opinion on any facts or any of the evidence in violation of O.C.G.A. § 17-8-57 because the court’s comments to the jury were limited to a clarification of procedures and did not address the credibility of witnesses or any fact at issue. Ingram v. State, 290 Ga. 500, 722 S.E.2d 714 (2012). Judge’s friendly exchange with the assistant district attorney and a witness did not amount to an impermissible comment on the witness’s credibility. Griffin v. State, 331 Ga. App. 550, 769 S.E.2d 514 (2015). Court’s comment on the obvious confusion between the prosecutor and a witness regarding the insurer’s decision to cover the loss as opposed to its consent to the fire was not an opinion about what had or had not been proven. Frey v. State, 338 Ga. App. 583, 790 S.E.2d 835 (2016). Judge’s commenting on the materiality of certain evidence, questioning defense counsel about the purpose of a 801 General Consideration (Cont’d) cross-examination, and observing that the case was ‘‘sloppily run’’ did not harm the defendant’s right to a fair trial. Boyd v. State, 267 Ga. 453, 479 S.E.2d 724 (1997). Judge’s comments regarding appellate process violated statute. — Trial court violated O.C.G.A. § 17-8-57 by responding to the jury’s request for ‘‘all of the evidence’’ that if the court gave the jury other items ‘‘it would be reversible error’’ and ‘‘we would have to try the case all over again’’; these statements improperly referred to the availability of appellate review, intimating that the defendant was guilty and would need to appeal. Gibson v. State, 288 Ga. 617, 706 S.E.2d 412 (2011). Remark assuming truth of controverted fact. — There was reversible error when the court’s remark assuming the truth of a fact stated therein controverted a central theme of the defense. Sweat v. State, 173 Ga. App. 441, 326 S.E.2d 809 (1985). Explanation as to delay of witness not expression of opinion. — Trial court’s explanation to the jury that the delay of the witness was not willful and that the witness had been sent for but not arrested, thereby causing an early noon recess, did not constitute an expression of an opinion as to what had been proved or as to the guilt of the accused. Hendricks v. State, 157 Ga. App. 715, 278 S.E.2d 453 (1981). When the trial court instructed the jury immediately after sending a witness out to listen to a tape recording of the witness’s interview with the police, instructed the jury in the court’s general charge that nothing the court said was to be construed as a comment on the evidence or the guilt or innocence of the defendant, and also instructed the jury that the purpose in postponing the examination of the witness was to control the progress of the trial and ‘‘make the orderly presentation of the case go a little bit faster,’’ the instructions were proper and demonstrated that no comment made in the jury’s presence was directed toward a material issue or relevant evidence in the case. Smith v. State, 236 Ga. App. 122, 511 S.E.2d 223 (1999). 17-8-57 Judge explaining ruling. — Remarks by judge assigning a reason for a ruling are neither an improper expression of opinion nor a comment on the evidence. McClain v. State, 267 Ga. 378, 477 S.E.2d 814 (1996), cert. denied, 521 U.S. 1106, 118 S. Ct. 2485, 138 L. Ed. 2d 993 (1997). There was no violation of O.C.G.A. § 17-8-57 because the comment was explanatory of the trial court’s ruling on the objection to the admission of testimony. Cammon v. State, 269 Ga. 470, 500 S.E.2d 329 (1998). Trial court did not improperly comment upon the evidence at trial because the court’s statements were clearly intended to explain the court’s ruling on the state’s objection to defense counsel’s closing argument. Williams v. State, 303 Ga. App. 222, 692 S.E.2d 820 (2010). Trial court did not state an opinion on an expert’s testimony in violation of O.C.G.A. § 17-8-57 because the trial court exercised the court’s judgment and discretion by stopping the testimony and explaining the court’s evidentiary ruling to trial counsel. Ridley v. State, 290 Ga. 798, 725 S.E.2d 223 (2012). Court limiting defendant’s movement in courtroom. — Court could not conclude that a judge’s brief explanation that the judge restricted the defendant’s movement around the courtroom during trial amounted to a ‘‘continuing’’ or ‘‘constant’’ reminder that the defendant was detained at the time of trial; evidence that an accused was confined in jail for the offense at issue in a criminal trial did not place the defendant’s character in evidence. Walker v. State, 259 Ga. App. 83, 576 S.E.2d 62 (2003). Court’s explanation to jury of purpose of Jackson-Denno hearing. — Trial court’s explanation to the jury out of the presence of defense counsel regarding the purpose of a Jackson-Denno hearing did not constitute an expression of the court’s opinion as to the the voluntariness of the defendant’s statement. Harper v. State, 171 Ga. App. 57, 318 S.E.2d 787 (1984). Ministerial comment. — Judge’s comment to the jury that the case ‘‘should be very straightforward ... once we get the trial underway’’ was not an expression of 802 opinion regarding facts. Bradford v. State, 221 Ga. App. 232, 471 S.E.2d 248 (1996). Judge’s comments regarding pro se defendant’s behavior in the courtroom were not comments directed toward a material issue or relevant evidence in the case. Flantroy v. State, 231 Ga. App. 744, 501 S.E.2d 10 (1998). Judge’s explanation that defendant absent due to disruptive behavior. — Trial court’s statement explaining the defendant’s absence from the courtroom because of disruptive behavior did not constitute an expression or intimation of the court’s opinion as to the guilt of the accused. Williams v. State, 183 Ga. App. 373, 358 S.E.2d 914 (1987). Court directing defendant to testify from counsel’s table. — Trial court does not err in directing the defendant to testify from defense counsel’s table, if the trial court does not express an opinion as to what has or has not been proved or as to the guilt of the defendant, as the conduct of the trial, especially matters of courtroom security, are matters within the discretion of the trial court. Lee v. State, 166 Ga. App. 644, 305 S.E.2d 175 (1983). Judge’s comments about defendant’s cross-examination techniques proper. — Judge’s informing a defendant in the defendant’s capacity as cocounsel in defendant’s own defense that the defendant could not make speeches while ostensibly cross-examining a state’s witness and that the defendant should limit the defendant’s remarks to asking questions was not violative of O.C.G.A. § 17-8-57. Powers v. State, 168 Ga. App. 642, 310 S.E.2d 260 (1983). Although, in a criminal trial, a trial judge agreed with the prosecution that defense counsel’s question mischaracterized a witness’s plea bargain, the judge did not violate O.C.G.A. § 17-8-57 because: (1) the remark did not state or imply an opinion as to what had or had not been proved or as to a defendant’s guilt; and (2) the remark merely exercised the judge’s duty to manage the trial proceedings. White v. State, 315 Ga. App. 54, 726 S.E.2d 548 (2012). Comment on demonstration by defense counsel. — Statements and questions by the court merely clarifying the 17-8-57 nature of a demonstration by defense counsel and enunciating a correct statement of the law were not improper comments on the evidence. Rowe v. State, 266 Ga. 136, 464 S.E.2d 811 (1996). Remark to jury about continuing deliberations. — Judge’s statement to the jury ‘‘[a] lot of times when you sleep on it, things have a way of coming together’’ did not constitute an impermissible comment as to what had been proved or as to how the jury should find. Schwerdtfeger v. State, 167 Ga. App. 19, 305 S.E.2d 834 (1983). Remarks as to introduction of evidence. — There was no error in a charge to the jury that ‘‘the state will introduce evidence in support of the charges contained in the indictment,’’ since such statement did not predict that the state’s evidence would establish the charges. Cook v. State, 255 Ga. 565, 340 S.E.2d 843, cert. denied, 479 U.S. 871, 107 S. Ct. 241, 93 L. Ed. 2d 166 (1986). Statement by the court as to what a witness has testified has been construed to be an intimation or expression of opinion as to what has been proven. Golden v. State, 45 Ga. App. 501, 165 S.E. 299 (1932). Judge may state recollection as to what has been testified. — It is permissible for the trial judge to state the judge’s recollection of what has been testified when in doing this the judge does not intimate any opinion. Saffold v. State, 11 Ga. App. 329, 75 S.E. 338 (1912). Stating what witness testified to, when testimony material and prejudicial to accused. — Statement by the court to the jury as to what a witness has testified, when such testimony is material and prejudicial to the accused, is reversible error. Edwards v. State, 4 Ga. App. 167, 60 S.E. 1033 (1908). Remarks tending to compliment or disparage witness. — Trial judge should not, in the hearing of the jury, make any remark tending to compliment or disparage a witness. Cole v. State, 6 Ga. App. 798, 65 S.E. 839 (1909). Comment thanking officer not improper. — While the trial court’s casual colloquy with witnesses should have been minimized in front of the jury, the trial 803 General Consideration (Cont’d) court’s merely thanking a law enforcement witness, as a courtesy, for the officer’s service as a witness did not rise to the level of improperly intimating an opinion about the testimony of the witness. Foster v. State, 314 Ga. App. 642, 725 S.E.2d 777 (2012). Statements of judge’s own knowledge tending to exculpate witness. — It is reversible error for the judge to state facts of the judge’s own knowledge, or as of the judge’s own knowledge, tending to exculpate the witness from an offense charged against the witness, or tending to show that there were mitigating circumstances connected with the offense. Cole v. State, 6 Ga. App. 798, 65 S.E. 839 (1909). Remark as to manner of cross-examination. — Statement of judge that certain evidence might be admissible on the idea of impeachment cannot be construed as expressing the opinion of the judge that the witness in question had been impeached by the evidence, particularly if the charge of the court did not contain any instructions upon the subject of the impeachment of witnesses. Cole v. State, 63 Ga. App. 418, 11 S.E.2d 239 (1940). Judge’s remark in regard to the cross-examination by counsel for the defendant of an alleged accomplice of the defendant that, ‘‘you put him under a severe cross-examination,’’ is not an expression of opinion by the trial judge as to the severity of the cross-examination of the witness for the state. Gravitt v. State, 220 Ga. 781, 141 S.E.2d 893 (1965). Judge stating hypothesis. — It is not error for the trial judge to merely state an hypothesis if the judge does not intimate any opinion as to guilt or innocence of the accused, especially if the jury is properly instructed that nothing said or done by the judge should influence the verdict. Mays v. State, 237 Ga. 907, 230 S.E.2d 282 (1976). Comment on irrelevant evidence. — Statement that certain evidence, which is entirely irrelevant, has no probative value is not a violation of this section. Tanner v. State, 163 Ga. 121, 135 S.E. 917 (1926). Comments drawing attention to evidence. — Judge did not improperly com- 17-8-57 ment on evidence by referring to evidence that was introduced. The reference was not telling the jury what the evidence proved, but instead was merely drawing the jury’s attention to evidence which was relevant to the next charge to be given. Slaton v. State, 224 Ga. App. 422, 480 S.E.2d 872 (1997). Repetitive instructions by the trial court on four occasions, after defining charged offenses and lesser included offenses, as to the form of the verdict should the jury find the defendant guilty of an offense did not constitute an improper expression or intimation of guilt. Reid v. State, 232 Ga. App. 313, 501 S.E.2d 842 (1998). For comment by court on qualifications of expert witness, see Westbrook v. State, 242 Ga. 151, 249 S.E.2d 524 (1978), cert. denied, 439 U.S. 1102, 99 S. Ct. 881, 59 L. Ed. 2d 63 (1979). If a trial judge refers to a witness as the ‘‘victim,’’ and the defendant makes no objection to such comments at trial, the defendant is estopped from raising this issue on appeal. Brown v. State, 150 Ga. App. 289, 257 S.E.2d 359 (1979). Since the trial court did not impermissibly give an expression of an opinion concerning the evidence when the court used the word ‘‘victim,’’ the defendant could not show deficient performance on the part of counsel for failing to object. Morris v. State, 280 Ga. 184, 625 S.E.2d 391 (2006). References to witnesses as ‘‘young lady’’ or ‘‘little girls.’’ — Trial court’s references to the state’s witnesses in open court as ‘‘young lady’’ or as ‘‘little girls’’ in bench conferences with the attorneys did not express or intimate the court’s opinion as to the evidence or the guilt of the accused. Jennette v. State, 197 Ga. App. 580, 398 S.E.2d 734 (1990). Allowing a child-victim to sit on the mother’s lap during questioning did not amount to an intimation of the trial court’s opinion as to what had been proven or the accused’s guilt. Murchison v. State, 231 Ga. App. 769, 500 S.E.2d 651 (1998). Reference by the court to ‘‘the confession testified about’’ by a witness does not express or intimate an opinion that any confession has been proved. 804 Jackson v. State, 177 Ga. 264, 170 S.E. 26 (1933). If court remarks ‘‘he has answered that’’ in response to question posed to witness the court is not intimating or expressing an opinion as to what had been proved. Hamilton v. State, 91 Ga. App. 295, 85 S.E.2d 496 (1954). Remarks as to whether counsel will connect up certain evidence later. — Rulings on admissibility of evidence, consisting of remarks by the court as to whether counsel would connect up certain evidence later, and statement that the court would rule on the admissibility later, do not express an opinion on the facts of the case. Pierce v. State, 212 Ga. 88, 90 S.E.2d 417 (1955). Mere challenging by the court of question asked by the defendant of a witness for the state without challenging a like question asked by the state of the defendant cannot be taken as impliedly expressing an opinion as to the guilt or innocence of the accused. Williams v. State, 186 Ga. 251, 197 S.E. 838 (1938). Judge looking for quick verdict. — For inference from judge’s remarks that the judge is looking for a quick verdict, see Dyson v. State, 155 Ga. App. 297, 270 S.E.2d 711 (1980). References to witnesses or codefendants as accomplices. — If a witness is jointly indicted with the defendant on trial, and the witness and the accused are the only two alleged to be involved in the criminal transaction, and the court charges the jury that the witness, having been convicted, is an accomplice as a matter of law, this is an expression of an opinion by the trial judge upon a matter of fact as to what had been proved upon trial. Such an error renders the grant of a new trial imperative, without reference to the correctness of the verdict. Sellers v. State, 41 Ga. App. 572, 153 S.E. 782 (1930). Statement that the codefendants ‘‘appear in this case as accomplices’’ is error, and a reversal for such error is mandatory. Mitchell v. State, 89 Ga. App. 80, 78 S.E.2d 563 (1953). Judge allowing testimony, to hear ‘‘the truth about it.’’ — If, in response to an objection of the defendant’s counsel to a 17-8-57 question propounded by the solicitor to a witness, the court allows the question stating ‘‘we want the truth about it,’’ and it is contended that this statement is error because the court complimented the witness, and intimated and expressed an opinion in the presence of the jury that the witness would tell the truth, the remark deals with future testimony and not with facts which have been proved. Accordingly, it does not come within the inhibition of this section making it mandatory to reverse any case in which the court has expressed or intimated an opinion. Whether or not reversal would follow from the remark made would depend not only on whether it was error, but on whether the error was harmful to the movant. Hamilton v. State, 91 Ga. App. 299, 85 S.E.2d 557 (1954). Judge’s prejudicial remarks in hearing of the jurors. — When remark of the judge in answer to counsel is made in the hearing of the jurors and is prejudicial to the defendant, the defendant should either have moved to declare a mistrial or for postponement of the case that other jurors might be impaneled to try the defendant. Armstrong v. State, 181 Ga. 538, 183 S.E. 67 (1935). Failure to remove jury before ruling on motion for directed verdict. — Although merely ruling on a point of law raised by the parties in a case does not constitute an expression of opinion of the trial court under this section, even though the judge must refer to testimony in order to make the judge’s ruling intelligible, nevertheless, it is very possible that the jury, being laymen, might consider the fact that the court refused to direct a verdict for one of the parties as an implication that the judge was of the opinion that one party should not prevail. In such a case, it is not necessary for the movant to show that the court’s error in refusing to grant the motion to remove the jury actually entered into and influenced the jury’s verdict, but it is sufficient to show that the ruling would have been likely to produce that effect in order for it to constitute an abuse of discretion on the part of the trial court. Poole v. State, 100 Ga. App. 380, 111 S.E.2d 265 (1959). Court’s statement to counsel as to guilt out of hearing of jury. — Court’s 805 General Consideration (Cont’d) statement to counsel for the defendant, not made before a jury, that the court believes that the defendant is guilty, cannot be made the basis for legal error when it is not contended that the court so acted as to communicate this belief to the jury during the trial. Morton v. State, 132 Ga. App. 329, 208 S.E.2d 134 (1974). Direction that witness be arrested for perjury made in jury’s presence. — As a general rule, directions by the court, in the presence of the jury, that a witness who has testified on behalf of the defendant, or a witness for the state who has refused to testify to matters prejudicial to the defendant, be arrested for perjury, constitutes reversible error in that the statement is a comment upon, or expression of opinion as to, the credibility of such witness, and as to the guilt of the defendant, expressly prohibited by this section. Benton v. State, 58 Ga. App. 633, 199 S.E. 561 (1938). Arrest of evasive or unresponsive witnesses. — Distinction must be drawn between cases of this character and cases where the witness is ordered into custody because of persistent refusal to answer and evasion of questions propounded. The trial judge is given wide discretion in dealing with and controlling witnesses and in adjudging them in contempt, and as a general rule the judge’s action in placing a refractory witness under arrest for refusal to respond to questions propounded does not amount to an expression or intimation of opinion prohibited by this section. Benton v. State, 58 Ga. App. 633, 199 S.E. 561 (1938). Remarks made before trial. — This section relates only to statements made during the progress of the case or in the charge to the jury. It is not applicable to remarks made by the judge prior to the trial, though made in open court and in the presence of persons who afterwards served on the jury in the case. White v. State, 7 Ga. App. 20, 65 S.E. 1073 (1909). Remedies when judge makes prejudicial remarks in jury’s presence. — When remarks are made by the trial judge to counsel in a criminal case in the hearing of the jurors, which counsel contend 17-8-57 were of such a character as to prejudice the minds of the jurors hearing the remarks against the cause of their client, counsel should either move for a postponement of the hearing in order that other jurors may be impaneled than those present when the remark is made, or, if the jurors have actually been selected and impaneled to try the particular case, a motion should be made to have a mistrial declared. Counsel, having failed to make such motion and having proceeded without objection with the trial, cannot after conviction raise the question as to the prejudicial nature of the remarks complained of in a motion for a new trial. Navarra v. State, 51 Ga. App. 321, 180 S.E. 375 (1935). Objection or motion for mistrial required. — Question of whether O.C.G.A. § 17-8-57 has been violated is not reached unless objection or motion for mistrial is made. Smith v. State, 158 Ga. App. 330, 280 S.E.2d 162 (1981); Davitt v. State, 232 Ga. App. 427, 502 S.E.2d 300 (1998); Zehner v. State, 241 Ga. App. 345, 525 S.E.2d 416 (1999). Comment to keep clients under control due to laughing. — Trial court did not violate O.C.G.A. § 17-8-57 when the court warned trial counsel about keeping the clients under control based on the defendant’s inappropriate behavior in laughing as the comment was not directed toward a material issue nor was it an intimation on the defendant’s guilt or innocence during the defendant’s trial for aggravated assault and possession of a firearm during the commission of a crime. Wright v. State, 294 Ga. App. 20, 668 S.E.2d 505 (2008). No violation by judge. — Trial court did not undermine the integrity of the process or improperly enhance the credibility of the witness by engaging in a brief, friendly exchange with the witness to which defendant posed no objection at the time. O’Hara v. State, 241 Ga. App. 855, 528 S.E.2d 296 (2000). No error occurred regarding comments the trial court made during trial as the comments did not involve the trial court’s expression of opinion about what had or had not been proven concerning the defendant’s guilt. Mai v. State, 259 Ga. App. 471, 577 S.E.2d 288 (2003). 806 Trial court did not impermissibly comment on the evidence in violation of O.C.G.A. § 17-8-57 when the judge merely directed that the witness be allowed to finish the witness’s answer; the trial court did not assume any facts or intimate to the jury the judge’s opinion of the evidence. Patterson v. State, 259 Ga. App. 630, 577 S.E.2d 850 (2003). Defendant waived any error resulting from the trial court’s violation of O.C.G.A. § 17-8-57 by commenting on the length of the indictment as the defendant neither objected nor moved for a mistrial after the statement was made; further, the statement was not a violation of the statute as the statement was not a comment on the evidence or the guilt of the defendant, but only on the length of the indictment. Osterhout v. State, 266 Ga. App. 319, 596 S.E.2d 766 (2004). Trial judge did not breach the limitations of O.C.G.A. § 17-8-57 when the judge made it clear to the jury that the judge would not address the facts of the case and did not express any opinion as to what had been proven at trial. Copeny v. State, 316 Ga. App. 347, 729 S.E.2d 487 (2012). At defendant’s trial for drug possession and sale, O.C.G.A. § 17-8-57 was not violated when the trial judge commented on the sufficiency of the evidence because the purpose of § 17-8-57 is to prevent the jury from being influenced, and the jury was not present at the time of the remarks. Clowers v. State, 324 Ga. App. 264, 750 S.E.2d 169 (2013). Comment by the trial judge that a crime was no less punishable if committed against a bad person than a good person was not reversible error as the jury was instructed not to construe any comment by the trial court as an expression of opinion upon the facts or evidence, credibility of witnesses, or guilt or innocence of the accused. Murray v. State, 295 Ga. 289, 759 S.E.2d 525 (2014). Court’s statement requiring that the medical examiner state that the autopsy photographs would assist the medical examiner’s testimony did not express or intimate an opinion in alignment with the state. Allen v. State, 296 Ga. 785, 770 S.E.2d 824 (2015). 17-8-57 Because defense counsel in opening and closing remarks explained to the jury that the defendant fired the gun at the second victim in defense of another person, whom the defendant thought was in danger, two witnesses observed the defendant fire the gun at the second victim, and the defendant told police that the defendant fired the gun at the second victim, it was undisputed and never contradicted by any evidence that the defendant shot the second victim; thus, the trial court’s instruction to the jury regarding identity as to the robbery count, in which the trial court stated that the defendant admitted to shooting and firing the weapon at the second victim, did not constitute an impermissible comment on the evidence. McNeal v. State, 302 Ga. 222, 805 S.E.2d 820 (2017). Incident in which the trial judge gave an audible grunt, and tossed a pen down on the bench did not constitute a comment on the evidence because the second defendant had already left the witness stand when the incident took place; thus, the record did not support the second defendant’s contention that the incident intimated to the jury that the second defendant’s testimony was other than truthful and had to be taken by the jury as a derogatory remark on the second defendant’s credibility. Daniels v. State, 302 Ga. 90, 805 S.E.2d 80 (2017), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020). Trial judge’s comments during cross-examination of the victim, which arose during the colloquy between the trial court and defense counsel regarding the prosecution’s objection to defense counsel’s instruction to the victim not to assume, were the judge’s explanations of the judge’s reasons for rulings on evidentiary objections or concerned undisputed facts, so the comments did not violate O.C.G.A. § 17-8-57. Jenkins v. State, 354 Ga. App. 674, 839 S.E.2d 698 (2020). Comment that child witness would not testify not violation. — Although a trial court stated that a child witness would not testify at trial because the child kept crying, because the child was present and available to testify at trial, the child’s hearsay statements did not occur pursu- 807 General Consideration (Cont’d) ant to former O.C.G.A. § 24-3-16 (see O.C.G.A. § 24-8-820); the judge’s comment that the witness would not testify was not an improper comment on the evidence under O.C.G.A. § 17-8-57. Brock v. State, 270 Ga. App. 250, 605 S.E.2d 907 (2004). Defendant’s counsel was not ineffective in failing to object to comments or questions made by the trial court judge in the defendant’s criminal proceeding as the statements did not constitute improper judicial comment under O.C.G.A. § 17-8-57; the judge’s remarks included a correction of the attorney’s misstatement in cross-examination of a police officer, a clarification of a language communication problem, and a clarification of a term of art. Owens v. State, 271 Ga. App. 365, 609 S.E.2d 670 (2005). Trial court did not express an opinion in violation of O.C.G.A. § 17-8-57, an inmate’s rights to confrontation, or a fair and impartial jury when the court explained to those in the courtroom during jury deliberations that the court had received two notes from the jury describing a communication received by a juror that offered the juror a bribe in exchange for changing the juror’s vote to not guilty; the trial court’s comment did not suggest that the inmate had directed the bribery attempt because the court merely reviewed the jurors’ notes and did not go beyond the notes, and it added nothing to that which the jurors already knew. Greer v. Thompson, 281 Ga. 419, 637 S.E.2d 698 (2006). After a thorough review of the questioning by the trial court revealed that the court’s efforts were directed toward keeping the judicial proceedings in compliance with evidentiary rules, no comment or question posed by the court reflected upon either the evidence or the defendant in violation of O.C.G.A. § 17-8-57. Meeker v. State, 282 Ga. App. 77, 637 S.E.2d 806 (2006). Because the defendant failed to specifically cite to that part of the record relating to the trial judge’s alleged improper comment on the cross-examination of a witness, and in the only instance where the appellate court could find anything close 17-8-57 to a violation, such occurred after the verdict had already been rendered; thus, the defendant’s claim that the trial court violated O.C.G.A. § 17-8-57 lacked any factual basis. Robinson v. State, 288 Ga. App. 219, 653 S.E.2d 810 (2007). A 27-year-old rape victim was mentally retarded and had the mind of a ten-year-old. The trial court’s solicitous attitude and comments to the victim did not constitute an expression of the court’s opinion as to the defendant’s guilt under O.C.G.A. § 17-8-57, nor did the comment bolster the victim’s credibility. Kent v. State, 294 Ga. App. 134, 668 S.E.2d 442 (2008). Trial court did not violate O.C.G.A. § 17-8-57 when the court told the jury that the defendant’s absence from the second day of trial was unexplained and that it would proceed in the defendant’s absence. The statements did not express an opinion about whether the evidence had proven a material issue, whether a witness was credible, or whether the defendant was guilty; moreover, the statements were appropriate as the statements were intended to explain the defendant’s absence. Howard v. State, 298 Ga. App. 98, 679 S.E.2d 104 (2009). Trial judge’s comment to the jury while directing a verdict for a defendant on a count in the indictment that, ‘‘as the prosecutor explained in his opening statement, they were not going to bring a witness from Texas to testify as to that offense,’’ did not improperly suggest to the jury that the trial judge believed the defendant to be guilty. Dixon v. State, 300 Ga. App. 183, 684 S.E.2d 679 (2009). Trial court did not violate O.C.G.A. § 17-8-57 by commenting upon the intent and credibility of the state’s witness in its curative instructions because the trial court’s remarks did not express an opinion as to the credibility of the state’s witness but were responsive to the defendant’s objection to the witness’s testimony and only served to explain the rationale for the trial court’s decision to deny the defendant’s motion for mistrial. Kohler v. State, 300 Ga. App. 692, 686 S.E.2d 328 (2009). Effort to clarify testimony to ensure fair trial. — Trial judge did not violate O.C.G.A. § 17-8-57 by improperly 808 commenting on the evidence because the trial judge’s actions or remarks did not amount to an expression of opinion with regard to the defendant’s guilt or innocence or to what had or had not been proven at trial in violation of § 17-8-57; the statute does not prohibit the trial judge from taking such measures as necessary to ensure the orderly administration of the trial, and the trial judge may even propound questions to a witness to clarify testimony when necessary in order to enforce the court’s duty to ensure a fair trial. Moore v. State, 301 Ga. App. 220, 687 S.E.2d 259 (2009), cert. denied, No. S10C0544, 2010 Ga. LEXIS 333 (Ga. 2010), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020). Judge’s comment about pro se defendant’s opening statements. — During the defendant’s opening statement, the defendant in a DUI case, proceeding pro se, stated that the field sobriety tests had an accuracy rating of only 65 percent. The judge’s comment interrupting the defendant and stating that the defendant would not have evidence to substantiate the statement was not an inadmissible judicial comment under O.C.G.A. § 17-8-57 because the opening statement was supposed to give the jury an outline of the evidence to be presented. Steed v. State, 309 Ga. App. 546, 710 S.E.2d 696 (2011). Trial court’s comments to a prosecution witness did not improperly bolster that witness’s credibility because although some of the trial court’s comments seemed to suggest approval of the witness and should have been avoided to prevent even the slightest intimation of partiality, the remarks did not undermine the integrity of the process or improperly enhance the credibility of the witness or comment upon what was proved or the defendant’s guilt. Holland v. State, 310 Ga. App. 623, 714 S.E.2d 126 (2011). Trial court did not impermissibly comment on the evidence when the court granted a directed verdict on the count of the indictment charging the defendant with felony murder based on the underlying crime of fleeing and attempting to elude police because during the court’s 17-8-57 main charge to the jury, the trial court emphasized to the jury that the court had no opinion as to what had or had not been proved regarding the defendant’s guilt; the trial court’s statement regarding the existence of a scrivener’s error in the indictment referred only to the incomplete count and did not contain an expression or intimation regarding the remaining counts of the indictment. Johnson v. State, 289 Ga. 650, 715 S.E.2d 99 (2011). Isolated use of term ‘‘swearing’’ by judge. — Trial court’s single, isolated use of the term ‘‘swearing’’ was not impermissible under O.C.G.A. § 17-8-57 because, in the context of the testimony, the term referred to the sworn trial testimony, not the trial court’s opinion with regard to the facts at issue. Foster v. State, 314 Ga. App. 642, 725 S.E.2d 777 (2012). Trial court’s statement that the state would introduce evidence in support of the charges contained in the indictment did not violate O.C.G.A. § 17-8-57; judicial comments limited to a clarification of procedures and which do not address the credibility of witnesses or any fact at issue in the trial do not violate O.C.G.A. § 17-8-57. Foster v.