FOURTH DIVISION DOYLE, P. J., MCFADDEN and BOGGS, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/

February 28, 2014

In the Court of Appeals of Georgia A13A2031. WILSON v. THE STATE. DO-076 DOYLE , Presiding Judge. Arthur Lee Wilson was convicted of possession of cocaine with intent to distribute1 and possession of marijuana.^[2] He appeals the subsequent denial of his motion for new trial, arguing that the trial court erred by making improper comments regarding the credibility of a witness in violation of OCGA § 17-8-57, and by denying his motion to suppress his custodial statements. We reverse for the reasons that follow.

more than five crack cocaine rocks on the mirror. Officer Mercado also found two hundred dollars in various denominations, including ones and fives, and plastic baggies in the Camry.

Wilson filed a motion to suppress his statements to the officers, and the trial court denied the motion. At the conclusion of the trial, the jury found Wilson guilty of possession of marijuana and possession of cocaine with intent to distribute. Wilson subsequently filed a motion for new trial, and the trial court denied the motion. This appeal followed.

1. Wilson argues that the trial court made an improper comment on the evidence in violation of OCGA § 17-8-57. We agree.

During closing argument, defense counsel argued, “It’s not okay for police officers to lie. It’s not okay for them to overlook things[,] and it’s not okay for them to get the details wrong. Their job is to investigate. When they don’t, it’s not okay. It’s not okay for them to cover things up. It’s not okay for them to – .”4 The trial court interjected, “Ma’am, I’ve cautioned you. Ladies and gentlemen, you are to disregard the comments from this attorney about any witness lying or covering up.” The trial court then instructed defense counsel that she would “be told to sit down if [she did] that again.”

OCGA § 17-8-57 provides: “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.” “To constitute an improper comment under OCGA § 17-8-57, the trial court’s statement must express an opinion about whether the evidence has proven a material issue in the case, whether a witness was credible, or whether the defendant was guilty.”5 “Even if defense counsel fails to raise an objection, if the trial court violates this statutory provision, we are required to order a new trial, and there can be no finding of harmless error.” 6

The purpose of this statute, at least in part, is to prevent the jury from being influenced by any disclosure of the judge’s opinion regarding a witness’s credibility. The credibility of a witness is a material fact in every case, and any questions of credibility are for the jury to decide. Therefore, anything which tends to uphold, to support, to disparage, or to lower the character and the resulting credibility of the witness is vitally connected with the facts of the case.7

Here, the trial court’s admonition to defense counsel and instructions to the jury to disregard defense counsel’s challenge to Officer Mercado’s credibility “clearly intimated the court’s opinion that [Officer Mercado’s] testimony was believable. . . .”8

[J]urors, like other human beings, are unconsciously too much affected by strong mental impressions for these impressions to be nicely segregated from the mass of evidence. The jury could have interpreted the trial court’s [admonitions and instructions] as expressing a favorable

6 (Punctuation omitted.) Booker v. State, 322 Ga. App. 257, 259 (1) (744 SE2d 429) (2013). 7 (Footnotes and punctuation omitted.) Callaham v. State, 305 Ga. App. 626, 627 (1) (700 SE2d 624) (2010).

opinion on [Officer Mercado’s] abilities and thus bolstering that witness’s credibility. . . . It is impossible to say that, after hearing the trial court’s statements, the jurors were not influenced to some extent. Therefore, the trial court erred in making statements that could have been interpreted as offering an opinion on [Officer Mercado’s] credibility.9

“Moreover, the trial court’s purported curative instruction did not eradicate its inappropriate comments. The law is well-established that instructions given to the jury by the trial court cannot cure a violation of OCGA § 17-8-57.”10

As the Supreme Court of Georgia has explained, the trial court’s compliance with the statutory language of OCGA § 17- 8-57 is mandatory[,] and . . . a violation of its mandate requires a new trial. In light of the mandatory nature of the statute and the case law interpreting the statute, we must reverse [Wilson’s] conviction[s] and remand the case to the trial court for a new trial.11

9 (Citation and punctuation omitted.) Murphy v. State, 290 Ga. 459, 461 (2) (722 SE2d 51) (2012).

2. Wilson also contends that the trial court erred by denying his motion to suppress his statements to the officers, arguing that he was in custody when Officer Mercado questioned him without giving the warnings required by Miranda v. Arizona.12

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.13

“The Fifth Amendment requires the exclusion of any statement made by an accused during custodial interrogation, unless he has been advised of his rights and has voluntarily waived those rights.”14

12 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966). 13 (Punctuation omitted.) Brown v. State, 293 Ga. 787, 808 (3) (b) (2) (750 SE2d 148) (2013), quoting Miller v. State, 288 Ga. 286 (702 SE2d 888) (2010).

A person is in custody for Miranda purposes if he has been formally arrested or restrained to the degree associated with a formal arrest. The test for determining whether a detainee is in custody for Miranda purposes is whether a reasonable person in the detainee’s position would have thought the detention would not be temporary. The subjective views of the detainee and the officer are not dispositive to the determination. . . . The issue of whether one is in custody for Miranda purposes is a mixed question of law and fact, and the trial court’s determination will not be disturbed unless it is clearly erroneous.15

Here, Wilson’s statements to the officers “were not subject to suppression because they were not the product of an interrogation or its functional equivalent. . . . [Officer Mercado’s] inquiry . . . as to ‘what was going on’ . . . [did not amount] to a ‘custodial interrogation’ requiring the administration of Miranda warnings.”16 Thus, the trial court’s determination that Wilson was not in custody until after he made his statements to the officers and placed under arrest was not clearly erroneous, and the trial court did not err by denying his motion to suppress.

Judgment reversed. McFadden and Boggs, JJ., concur.

15 (Citations and punctuation omitted.) Waters v. State, 306 Ga. App. 114, 116 (1) (701 SE2d 550) (2010). 16 (Footnote omitted). Jones, 258 Ga. App. at 230, citing Metts v. State, 270 Ga. 481, 483-484 (3) (511 SE2d 508) (1999).