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Callaham v. State

The trial court's question and comment made after the defendant's cross-examination violated O.C.G.A. § 17-8-57 and mandated a new trial.

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After a jury trial, Anthony Callaham was convicted of aggravated assault and possession of a firearm during the commission of a felony. Callaham appeals, asserting that the trial court violated OCGA § 17-8-57 by expressing its opinion about the credibility of a witness. The assertion is correct, and therefore Callaham is entitled to a new trial. 1. The central issue at trial was the identity of the person who shot the victim, Kenneth Threats. During the state’s case-in-chief, Threats and his neighbor identified Callaham as the shooter. For the defense, Callaham elicited testimony from Threats’ wife that in statements to the police and at a preliminary hearing she had not identified him as the shooter. Callaham also testified, denying that he was the shooter and identifying another man as the person who shot Threats.

After the state’s attorney finished cross-examining Callaham, the trial court asked, “Mr. Callaham, do you know why the neighbor that lives across the street would come in here and say you’re the one that shot He’s not related to anybody.” Defense counsel objected and moved for a mistrial on the ground that the trial court’s question and comment that the neighbor is not related to anyone bolstered the credibility of the witness. The trial court denied the motion, but at the state’s suggestion it gave a curative instruction, telling the jurors that they determine the credibility of witnesses and should disregard any implication from the court’s question.

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