A jury found Joel Simpson guilty of armed robbery, aggravated assault, and resisting, obstructing, or opposing a law enforcement officer. Simpson appeals, alleging the trial judge improperly testified and expressed his opinion contrary to OCGA § 17-8-57 four separate times during an address to the jury. We disagree and affirm Simpson’s convictions. OCGA § 17-8-57 provides as follows: 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. Should any judge violate this Code section, the violation shall be held by the Supreme Court or Court of Appeals to be error and the decision of the case reversed, and a new trial granted in the court below with such directions as the Supreme Court or Court of Appeals may lawfully give. However, in order to constitute an improper comment under OCGA § 17-8-57, “the trial court’s statement must express an opinion about whether the evidence had proven a material issue in the case, whether a witness was credible, or whether the defendant was guilty.”1
Simpson argues the trial judge violated OCGA § 17-8-57 during his statement to the jury immediately following the state’s opening. During its opening statement, the state told the jury: “The defendant in this case is Mr. Joel Simpson. He is accused of two separate armed robberies, one on October 4th of 2008, at the China Inn Restaurant on Wynnton Road at the 2100 block of Wynnton.” The state subsequently stated, “And then the principal case, what I would call the principal case is —happened on October 18th of 2008, and this was an armed robbery which took place at Dinglewood Package Store.” Immediately following the state’s opening, the trial judge addressed the jury: The indictment may look a little dysfunctional because the dates jump back and forth, but I’m going to go over this indictment with you briefly. The first count in this indictment accuses Mr. Simpson, the defendant, of armed robbery in that the accused in the State of Georgia, in the County of Muscogee, in sic the D. A. has to prove all these elements, on the 18th day of October 2008, did unlawfully with intent to commit a theft take property, United States currency from the immediate presence of the liquor store owner. And it’s not listed in there, but by what the D. A. said, that’s the Dinglewood Package Store robbery , by the use of an offensive weapon, to wit, a handgun, contrary to the laws of said State of Georgia, the good order, peace and dignity thereof. Count two then goes to a different date. It says the 4th day of October armed robbery. And that evidently according to the indictment did unlawfully with intent to commit theft take property from the immediate presence of a different victim by use of an offensive weapon, the handgun, and that’ll be the China Inn case . That’s count two of the indictment. And then count three goes back to the 18th of October, Joel Simpson, with the offense of aggravated assault in that the accused in the State of Georgia, County of Muscogee on the 18th day of October, 2008, did unlawfully make an assault upon the person of the liquor store owner with a handgun, a deadly weapon contrary to the laws of said state and the dignity thereof. Count four of this indictment, ladies and gentlemen, accuses Joel Simpson of the offense of resisting, obstructing or opposing law enforcement officers for the accused in the State of Georgia, County of Muscogee, on the 12th day of December, 2008 . . . Those are the charges that you will be deciding, and these will be decided individually. It’s not an all or nothing indictment. You could find him not guilty on all those counts. You could find him guilty on part of them and not all of them. That’s up to you to determine which ones, and you’ll take them individually. That’s why I thought it might be good because the dates jump around to make sure we stay in sequence on the facts of each one of these robberies . Simpson objected to the underlined portions of the trial judge’s statement, asked that the jury be excused, and moved for a mistrial based on the trial judge’s statement to the jury.
