State v. Gardner, 690 S.E.2d 164 (Ga. 2010). · Go Syfert
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State v. Gardner, 690 S.E.2d 164 (Ga. 2010). Cases Citing This Book View Copy Cite
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cited 4× by 2 distinct cases · …files on a computer are less likely than other types of contraband to disappear over time
176 citation events (176 in the last 25 years) across 2 distinct courts.
Strongest positive: Alexander Sean Gerbert v. State (gactapp, 2016-10-28)
Treatment trajectory · 2010 → 2026 · click a year to view as-of
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Top citers, strongest first. 50 distinct citers.
examined Cited as authority (verbatim quote) Alexander Sean Gerbert v. State (2×) also: Cited as authority (quoted)
Ga. Ct. App. · 2016 · signal: see · quote attribution · 2 verbatim quotes · confidence high
files on a computer are less likely than other types of contraband to disappear over time
examined Cited as authority (verbatim quote) Gerbert v. State (2×) also: Cited as authority (quoted)
Ga. Ct. App. · 2016 · signal: see · quote attribution · 2 verbatim quotes · confidence high
files on a computer are less likely than other types of contraband to disappear over time
examined Cited as authority (rule) Moore v. State (4×)
Ga. · 2022 · confidence medium
Based on Moore’s briefing, we construe this as an argument that the trial court violated OCGA § 17-8-57 (a) (1), which deems it “error for any judge, during any phase of any criminal case, to express or intimate to the jury the judge’s opinion as to whether a fact at issue has or has not been proved or as to the guilt of the accused.”4 To violate this statute, “the trial court’s comments must pertain to a disputed issue of fact.” State v. Gardner, 286 Ga. 633, 634-635 (690 SE2d 164) (2010).
cited Cited as authority (rule) Richard Gregory v. State
Ga. Ct. App. · 2017 · confidence medium
State v. Gardner, 286 Ga. 633, 634 ( 690 SE2d 164 ) (2010).
cited Cited as authority (rule) Gregory v. the State
Ga. Ct. App. · 2017 · confidence medium
State v. Gardner, 286 Ga. 633, 634 ( 690 SE2d 164 ) (2010).
discussed Cited as authority (rule) Frey v. the State (2×) also: Cited "see"
Ga. Ct. App. · 2016 · confidence medium
“On appeal, the issue is simply whether there was such a violation.” State v. Gardner, 286 Ga. 633, 634 ( 690 SE2d 164 ) (2010).
discussed Cited as authority (rule) Quiller v. the State (2×)
Ga. Ct. App. · 2016 · confidence medium
Chumley, supra. As our Supreme Court has clarified, “a violation of [former] OCGA § 17-8-57 will always constitute ‘plain error,’ meaning that the failure to object at trial will not waive the issue on appeal.” State v. Gardner, 286 Ga. 633, 634 ( 690 SE2d 164 ) (2010) (citation omitted, emphasis in original).
discussed Cited as authority (rule) Scott v. the State
Ga. Ct. App. · 2015 · confidence medium
Scott next contends that her conviction should be reversed because the trial court expressed an opinion and exhibited overall bias in violation of OCGA § 17-8-57. 3 For a new trial to be required under this section, “the trial court’s comments must pertain to a disputed issue of fact.” State v. Gardner, 286 Ga. 633, 634-635 ( 690 SE2d 164 ) (2010).
discussed Cited as authority (rule) Allen v. State
Ga. · 2015 · confidence medium
Outside the presence of the jury, Allen sought to exclude certain autopsy photographs, and the court noted that they would be admissible if they assisted the medical examiner in his testimony, and stated that the court would consider them on a “case by case basis.” In the presence of the jury, when the State sought to have nine autopsy photographs admitted, the trial court stated: “Before I’m going to admit them over the defendant’s objection I’m going to need for [the witness] to say that these will assist, whether they will or will not assist, in his testimony and explanation of …
discussed Cited as authority (rule) Allen v. State
Ga. · 2015 · confidence medium
Outside the presence of the jury, Allen sought to exclude certain autopsy photographs, and the court noted that they would be admissible if they assisted the medical examiner in his testimony, and stated that the court would consider them on a “case by case basis.” In the presence of the jury, when the State sought to have nine autopsy photographs admitted, the trial court stated: “Before I’m going to admit them over the defendant’s objection I’m going to need for [the witness] to say that these will assist, whether they will or will not assist, in his testimony and explanation of …
discussed Cited as authority (rule) Sales v. State
Ga. · 2015 · confidence medium
See Murphy v. State, 290 Ga. 459, 461 ( 722 SE2d 51 ) (2012); State v. Gardner, 286 Ga. 633, 634 ( 690 SE2d 164 ) (2010). (a) Appellant first contends that the trial court violated OCGA § 17-8-57 during jury selection by improperly expressing its opinion to the venire that venue was proper in Taylor County.
discussed Cited as authority (rule) Sales v. State
Ga. · 2015 · confidence medium
See Murphy v. State, 290 Ga. 459, 461 ( 722 SE2d 51 ) (2012); State v. Gardner, 286 Ga. 633, 634 ( 690 SE2d 164 ) (2010). (a) Appellant first contends that the trial court violated OCGA § 17-8-57 during jury selection by improperly expressing its opinion to the venire that venue was proper in Taylor County.
discussed Cited as authority (rule) Michael Scott Shirley v. State
Ga. Ct. App. · 2014 · confidence medium
We have specifically held as to a warrant that sought a “computer, computer parts and hard drives containing media and images of sexually explicit material . . . or stored files which may be found on a computer[,]” that “the 11 items sought here were not perishable, consumable, or disposable, and therefore were unlikely to be affected by the passage of time.” (Punctuation and footnotes omitted) Birkbeck v. State, 292 Ga. App. 424, 433-434 (6) ( 665 SE2d 354 ) (2008), disapproved on other grounds by State v. Gardner, 286 Ga. 633, 634 ( 690 SE2d 164 ) (2010).
discussed Cited as authority (rule) Shirley v. State
Ga. Ct. App. · 2014 · confidence medium
We have specifically held as to a warrant that sought a “computer, computer parts and hard drives containing media and images of sexually explicit material... or stored files which may be found on a computer[,]” that “the items sought here were not perishable, consumable, or disposable, and therefore were unlikely to be affected by the passage of time.” (Punctuation and footnotes omitted.) Birkbeck v. State, 292 Ga. App. 424, 433-434 (6) ( 665 SE2d 354 ) (2008), disapproved on other grounds by State v. Gardner, 286 Ga. 633, 634 ( 690 SE2d 164 ) (2010).
examined Cited as authority (rule) Rouse v. State (4×)
Ga. · 2014 · confidence medium
See also Collier v. State, 288 Ga. 756, 763 ( 707 SE2d 102 ) (2011) (Nahmias, J., specially concurring) (if violation of OCGA § 17-8-57 is found, “conviction will be reversed without further consideration of the effect of the error on the defendant’s substantial rights or the fairness and integrity of the proceeding”); State v. Gardner, 286 Ga. 633, 634 (690 SE2d164) (2010) (because violation of OCGA § 17-8-57 will always constitute plain error, failure to object does not waive issue on appeal).
discussed Cited as authority (rule) Rakeen Rayneil Hicks v. State
Ga. Ct. App. · 2014 · confidence medium
See also Edmonds v. State, 196 Ga. App. 190, 194 (1) ( 395 SE2d 566 ) (1990). 13 See Ledford v. State, 289 Ga. 70, 85 (14) ( 709 SE2d 239 ) (2011) (disapproving again cases in which waiver of OCGA § 17-8-57 was found for failure to object); State v. Gardner, 286 Ga. 633, 634 ( 690 SE2d 164 ) (2010). 7 Georgia has “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.
discussed Cited as authority (rule) Hicks v. State
Ga. Ct. App. · 2014 · confidence medium
See Ledford v. State, 289 Ga. 70, 85 (14) ( 709 SE2d 239 ) (2011) (disapproving again oases in which waiver of OCGA § 17-8-57 was found for failure to object); State v. Gardner, 286 Ga. 633, 634 ( 690 SE2d 164 ) (2010).
discussed Cited as authority (rule) Williams v. State
Ga. · 2012 · confidence medium
Appellant suggests that these evidentiary issues are subject to review on appeal for “plain error.” However, in criminal cases, plain error review currently is limited to appellate review of alleged errors in the sentencing phase of a trial resulting in the death penalty, see Sharp v. State, 286 Ga. 799, 801 ( 692 SE2d 325 ) (2010); to alleged violations of OCGA § 17-8-57, see State v. Gardner, 286 Ga. 633, 634 ( 690 SE2d 164 ) (2010); and, since July 1, 2007, to properly asserted errors in jury instructions, see OCGA § 17-8-58 (b); State v. Kelly, 290 Ga. 29, 32 ( 718 SE2d 232 ) (2011).
cited Cited as authority (rule) Bush v. State
Ga. Ct. App. · 2012 · confidence medium
State v. Gardner, 286 Ga. 633, 634 ( 690 SE2d 164 ) (2010).
cited Cited as authority (rule) Antione Bush v. State
Ga. Ct. App. · 2012 · confidence medium
State v. Gardner, 286 Ga. 633, 644 ( 690 SE2d 164 ) (2010).
discussed Cited as authority (rule) Sims v. State
Ga. Ct. App. · 2012 · confidence medium
In State v. Gardner, 286 Ga. 633, 634 ( 690 SE2d 164 ) (2010), our Supreme Court disapproved of this Court’s articulation, in Sims I and other cases, of the “plain error rule” in the context of an alleged violation of OCGA § 17-8-57.
examined Cited as authority (rule) White v. State (3×) also: Cited "see"
Ga. Ct. App. · 2012 · confidence medium
State v. Gardner, 286 Ga. 633, 635 ( 690 SE2d 164 ) (2010).
cited Cited as authority (rule) Murphy v. State
Ga. · 2012 · confidence medium
State v. Gardner, 286 Ga. 633, 634 ( 690 SE2d 164 ) (2010).
cited Cited as authority (rule) Reese v. State
Ga. · 2011 · confidence medium
State v. Gardner, 286 Ga. 633, 634 ( 690 SE2d 164 ) (2010).
discussed Cited as authority (rule) Steed v. State
Ga. Ct. App. · 2011 · confidence medium
Smith, P. J., and Dillard, J., concur. 1 Steed also represented himself at his trial. 2 OCGA § 40-6-391 (a) (1). 3 OCGA § 40-5-121 (a). 4 OCGA § 40-6-123 (a). 5 OCGA § 40-6-253 (b) (1) (B). 6 (Citation, punctuation and footnote omitted.) Boring v. State, 303 Ga. App. 576, 577 (1) ( 694 SE2d 157 ) (2010). 7 While watching the dash camera video during trial, Miller noticed Steed wobble slightly on the one legged stand, which would be one clue. 8 (Citation and punctuation omitted.) Jones v. State, 270 Ga. 25, 29 (8) ( 505 SE2d 749 ) (1998). 9 Heard v. State, 257 Ga. App. 505, 507 (2) ( 571 SE…
cited Cited as authority (rule) Ledford v. State
Ga. · 2011 · confidence medium
Patel v. State, supra. See also State v. Gardner, 286 Ga. 633, 634 ( 690 SE2d 164 ) (2010); Paul v. State, 272 Ga. 845, 848-849 (3) ( 537 SE2d 58 ) (2000) (applying the plain error standard).
discussed Cited as authority (rule) Paul v. State (2×)
Ga. Ct. App. · 2011 · confidence medium
Dunlap, Assistant District Attorney, for appellee. 1 Paul was also indicted for aggravated assault in connection with this incident, but the jury acquitted him of that charge. 2 OCGA § 17-8-57 states that “ [i]t 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.” 3 Johnston also testified that the Harris County jail is where people in Harris County go to wait for their trial or go after they are sentenced. 4 Quoting Moore v. State, 176 Ga.…
discussed Cited as authority (rule) Smith v. State (2×) also: Cited "see"
Ga. Ct. App. · 2010 · confidence medium
The trial court recalled that it was only after this bench conference that Smith raised questions about venue. 3 Although Smith’s trial attorney did not raise an objection at trial, the Supreme Court of Georgia has “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.” (Emphasis in original.) State v. Gardner, 286 Ga. 633, 634 ( 690 SE2d 164 ) (2010), citing Chumley v. State, 282 Ga. 855, 858 (2) ( 655 SE2d 813 ) (2008). 4 The trial court did not make an inquiry into whether…
cited Cited as authority (rule) Linson v. State
Ga. · 2010 · confidence medium
(Cits.)” [Cit.] State v. Gardner, 286 Ga. 633, 634 ( 690 SE2d 164 ) (2010).
discussed Cited as authority (rule) Ward v. State
Ga. Ct. App. · 2010 · confidence medium
Even so, Ward is entitled to a new trial if the judge’s comments violated OCGA § 17-8-57, *277 because such a violation always constitutes plain error as a matter of law. 6 State v. Gardner, 286 Ga. 633, 634 ( 690 SE2d 164 ) (2010).
cited Cited as authority (rule) Vergara v. State
Ga. · 2010 · confidence medium
State v. Gardner, 286 Ga. 633, 634 ( 690 SE2d 164 ) (2010).
discussed Cited "see" Brown v. State (2×)
Ga. · 2017 · signal: see · confidence high
See State v. Gardner, 286 Ga. 633, 634-635 ( 690 SE2d 164 ) (2010).
discussed Cited "see" Brown v. State (2×)
Ga. · 2017 · signal: see · confidence high
See State v. Gardner, 286 Ga. 633, 634-635 ( 690 SE2d 164 ) (2010).
examined Cited "see" Green v. State (3×)
Ga. · 2017 · signal: see · confidence high
See State v. Gardner, 286 Ga. 633, 634 ( 690 SE2d 164 ) (2010).
examined Cited "see" Green v. State (3×)
Ga. · 2017 · signal: see · confidence high
See State v. Gardner, 286 Ga. 633, 634 ( 690 SE2d 164 ) 8 But even if the issue had been preserved, we would find no reversible error.
discussed Cited "see" Person v. the State (2×)
Ga. Ct. App. · 2017 · signal: see · confidence high
See State v. Gardner, 286 Ga. 633, 634 ( 690 SE2d 164 ) (2010).
examined Cited "see" Palmer v. the State (3×)
Ga. Ct. App. · 2015 · signal: see · confidence high
See State v. Gardner, 286 Ga. 633, 634 ( 690 SE2d 164 ) (2010); Sauerwein v. State, 280 Ga. 438, 439 (2) ( 629 SE2d 235 ) (2006).
discussed Cited "see" Jemal David Coleman v. State (2×)
Ga. Ct. App. · 2014 · signal: see · confidence high
See State v. Gardner, 286 Ga. 633, 634 ( 690 SE2d 164 ) (2010); Sauerwein v. State, 280 Ga. 438, 439 (2) ( 629 SE2d 235 ) (2006).
discussed Cited "see" Coleman v. State (2×)
Ga. Ct. App. · 2014 · signal: see · confidence high
See State v. Gardner, 286 Ga. 633, 634 ( 690 SE2d 164 ) (2010); Sauerwein v. State, 280 Ga. 438, 439 (2) ( 629 SE2d 235 ) (2006).
examined Cited "see" Haymer v. State (3×)
Ga. Ct. App. · 2013 · signal: see · confidence high
See State v. Gardner, 286 Ga. 633, 634 ( 690 SE2d 164 ) (2010); Sauerwein v. State, 280 Ga. 438, 439 (2) ( 629 SE2d 235 ) (2006).
examined Cited "see" Glenn Elliott Haymer v. State (3×)
Ga. Ct. App. · 2013 · signal: see · confidence high
See State v. Gardner, 286 Ga. 633, 634 ( 690 SE2d 164 ) (2010); Sauerwein v. State, 280 Ga. 438, 439 (2) ( 629 SE2d 235 ) (2006).
discussed Cited "see" Patrick Booker v. State (2×)
Ga. Ct. App. · 2013 · signal: see · confidence high
See State v. Gardner, 286 Ga. 633, 634 ( 690 SE2d 164 ) (2010).
discussed Cited "see" Booker v. State (2×)
Ga. Ct. App. · 2013 · signal: see · confidence high
See State v. Gardner, 286 Ga. 633, 634 ( 690 SE2d 164 ) (2010).
discussed Cited "see" Clifton C. Harrell v. State (2×)
Ga. Ct. App. · 2013 · signal: see · confidence high
See State v. Gardner, 286 Ga. 633, 634 ( 690 SE2d 164 ) (2010).
discussed Cited "see" Harrell v. State (2×)
Ga. Ct. App. · 2013 · signal: see · confidence high
See State v. Gardner, 286 Ga. 633, 634 ( 690 SE2d 164 ) (2010).
discussed Cited "see" Keno Rolland v. State (2×)
Ga. Ct. App. · 2013 · signal: see · confidence high
See State v. Gardner, 286 Ga. 633, 634 ( 690 SE2d 164 ) (2010).
discussed Cited "see" Rolland v. State (2×)
Ga. Ct. App. · 2013 · signal: see · confidence high
See State v. Gardner, 286 Ga. 633, 634 ( 690 SE2d 164 ) (2010).
discussed Cited "see" Melissa Smith v. State (2×)
Ga. Ct. App. · 2012 · signal: see · confidence high
See State v. Gardner, 286 Ga. 633, 634 ( 690 SE2d 164 ) (2010).
discussed Cited "see" Smith v. State (2×)
Ga. Ct. App. · 2012 · signal: see · confidence high
See State v. Gardner, 286 Ga. 633, 634 ( 690 SE2d 164 ) (2010).
discussed Cited "see" Thomas Sims v. State (2×)
Ga. Ct. App. · 2012 · signal: see · confidence high
See Sims v. State, 296 Ga. App. 368, 371-372 (3) ( 674 SE2d 392 ) (2009) (“Sims I”).2 On remand, the trial court, after 1 Sims was charged with three counts of child molestation, but the State requested and obtained entry of a nolle prosequi on one of the counts. 2 In State v. Gardner, 286 Ga. 633, 634 ( 690 SE2d 164 ) (2010), our Supreme Court disapproved of this Court’s articulation, in Sims I and other cases, of the “plain error rule” in the context of an alleged violation of OCGA § 17-8-57.
The State
v.
Gardner
S09G1210.
Supreme Court of Georgia.
Feb 1, 2010.
690 S.E.2d 164
Julia A. Slater, District Attorney, William D. Kelly, Jr., Assistant District Attorney, for appellant., Kathryn E. Rhodes, for appellee.
Hunstein, Thompson, Hines.
Cited by 73 opinions  |  Published
1 passages pin-cited by 2 cases
Pinpoint authority: bottom 67%
Citer courts: Court of Appeals of Georgia (2)

Lead Opinion

HUNSTEIN, Chief Justice.

This case involves an alleged violation of OCGA § 17-8-57.[1] Marquez Gardner was tried on charges arising from the armed robbery of a beauty salon. As the State concluded the direct examination of its first witness, the following exchange took place:

Q: [H]e is the person who came in and robbed you?
A: Yes, sir.
STATE: That’s all we have, Judge.
A: Either he got a twin.
THE COURT: Prove venue. Did you prove venue?
STATE: I have not as of yet.
THE COURT: Why don’t we go ahead and do that before we forget it.
Q: The Stylistic Beauty Shop, is that within Muscogee County?
A: Oh, yes, sir.
STATE: All right.
THE COURT: [Defense Counsel.]
DEFENSE: Thank you, sir.

[*634] Gardner was convicted on three counts of armed robbery and sentenced to three concurrent 20-year terms with 12 years to serve. He appealed and the Court of Appeals reversed, holding that the exchange quoted above constituted a comment on the evidence by the trial court in violation of OCGA § 17-8-57. Gardner u. State, 296 Ga. App. 792 (2) (676 SE2d 258) (2009). We granted certiorari to consider whether the Court of Appeals erred in reversing Gardner’s convictions on this basis, and hold that it did so err.

As an initial matter, we assess the analytical framework set forth by the Court of Appeals to evaluate whether Gardner’s failure to object at trial to the exchange in question has waived the issue on appeal. Specifically, it stated that where there is no objection at trial: (1) a claim alleging a violation of OCGA § 17-8-57 is not waived if such violation was plain error; and (2) the violation was plain error if it was obvious or it otherwise seriously affected the fairness, integrity or public reputation of the judicial proceeding. Gardner, supra, 296 Ga. App. at 793 (2). However, 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. Chumley v. State, 282 Ga. 855, 858 (2) (655 SE2d 813) (2008). On appeal, the issue is simply whether there was such a violation. If so, “[i]t is well established that th[e] statutory language is mandatory and that a violation of OCGA § 17-8-57 requires a new trial. [Cits.]” Patel v. State, 282 Ga. 412, 414 (2) (651 SE2d 55) (2007). To the extent the “plain error rule” has been articulated otherwise in the context of an alleged violation of OCGA § 17-8-57, such cases are hereby disapproved. See, e.g., Lopez v. State, 297 Ga. App. 618, 625 (4) (677 SE2d 776) (2009) (where violation of OCGA § 17-8-57 alleged, “absent plain error, an objection or motion for mistrial must be made in order to preserve the issue for appeal”); Sims v. State, 296 Ga. App. 368, 369-370 (1) (674 SE2d 392) (2009) (appellate court “must consider whether the trial court’s actions violated OCGA § 17-8-57, and if so, whether that violation constituted plain error”); Birkbeck v. State, 292 Ga. App. 424, 434-435 (8) (665 SE2d 354) (2008) (alleged OCGA § 17-8-57 violation reviewed under plain error standard, which requires appellant to show error “which is so clearly erroneous as to result in a likelihood of a grave miscarriage of justice or which seriously affects the fairness, integrity or public reputation of a judicial proceeding”).[2]

The Court of Appeals correctly stated that in order to violate OCGA § 17-8-57, the trial court’s comments must pertain to a[*635] disputed issue of fact. Gardner, supra, 296 Ga. App. at 793 (2); see Berry v. State, 267 Ga. 476 (4) (f) (480 SE2d 32) (1997). Assuming, arguendo, that the issue of venue was disputed in this case,[3] we hold that the trial court did not violate OCGA § 17-8-57. 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. Compare Patel, supra, 282 Ga. at 413 (2) (reversal required where trial court stated that “[v]enue is proper in [this county] or we wouldn’t be here right now”). As there was no violation of OCGA § 17-8-57, the Court of Appeals erred by reversing Gardner’s convictions. Accordingly, we reverse.

Judgment reversed.

All the Justices concur, except Thompson and Hines, JJ., who dissent.
1

OCGA § 17-8-57 provides:

It is error for any judge in any criminal case ... 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 in 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.

2

We note that the plain error analysis set forth by the Court of Appeals in Gardner’s case was not actually utilized in rendering its decision.

3

Gardner’s act of pleading not guilty to the charges in the indictment constituted a challenge to the allegation of venue therein. See Patel, supra, 282 Ga. at 414 (2). However, the trial court stated during its charge to the jury that “I believe the only uncontested matter in this case is that venue properly lies in Muscogee County. Is that accurate?”; both the prosecutor and defense counsel agreed that it was. The record does not establish the point at which venue became uncontested, i.e., whether it occurred before or after the exchange regarding venue at issue here.

Dissent

HINES, Justice,

dissenting.

As the majority does not abide by the clear requirements of OCGA § 17-8-57, I must respectfully dissent.

The majority correctly notes that the issue of venue was joined when Gardner pled not guilty to the indictment. See Maj. Op. p. 635, n. 3. And, “[v]enue is a jurisdictional fact, and is an essential element in proving that one is guilty of the crime charged. Like every other material allegation in the indictment, venue must be proved by the prosecution beyond a reasonable doubt.” Patel v. State, 282 Ga. 412, 414 (2) (651 SE2d 55) (2007) (citation and punctuation omitted). Further, as the majority states, a violation of OCGA § 17-8-57 “will always constitute ‘plain error,’ ” requiring a new trial. Maj. Op. at p. 634.

Despite recognizing these precepts, the majority fails to uphold them. The trial court’s colloquy regarding venue clearly shows that the court expressed its opinion that venue had not been proved. That opinion was the basis of the court’s interjection. Expressing such an opinion is a readily apparent violation of OCGA § 17-8-57. By the very language of this statute, “[s]hould any judge violate this Code[*636] section, the violation shall be held by the Supreme Court or Court of Appeals to be error and the decision in 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.” OCGA § 17-8-57. (Emphasis supplied.) Accordingly, a new trial must be ordered.

Decided February 1, 2010 Reconsideration denied March 15, 2010. Julia A. Slater, District Attorney, William D. Kelly, Jr., Assistant District Attorney, for appellant. Kathryn E. Rhodes, for appellee.

I am authorized to state that Justice Thompson joins in this dissent.