NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: December 20, 2022
S22A1005. MOORE v. THE STATE.
PINSON, Justice.
Jordy Moore was convicted of malice murder and other crimes
arising from what began as a group fistfight and ended with the
shooting death of Zyshonne Hindsman. 1 On appeal, Moore contends
1The crimes occurred on July 4, 2017. On December 5, 2017, a Fulton
County grand jury indicted Moore along with Frankie Young. Count 1 charged
both defendants with the malice murder of Hindsman. Counts 2 through 6
charged the defendants with the felony murder of Hindsman, predicated
respectively on aggravated assaults with a deadly weapon as charged in
Counts 7 through 10 and on criminal damage to property as charged in Count
11. Each of Counts 7 through 10 specified a different victim of aggravated
assault—respectively, Hindsman, Broderick Dunn, Quintavius Marshall, and
Am’ir Benard. Count 12 charged the defendants with possessing a firearm
during the commission of a felony. Prior to trial, Young pled guilty to one count
of felony murder, one count of aggravated assault, criminal damage to
property, and possessing a firearm during the commission of a felony. Moore
was tried by a jury from August 13 to 20, 2018, and was convicted on all counts.
He was sentenced to life in prison for Count 1, 20 years in prison for each of
Counts 8 through 10, 10 years in prison for Count 11, and 5 years in prison for
Count 12, all to be served consecutively, for a total sentence of life plus 75
years. The remaining counts merged for sentencing or were vacated by
operation of law. On September 18, 2018, Moore filed a motion for new trial,
that his trial counsel rendered ineffective assistance by failing to
conduct an adequate voir dire, making incorrect statements of fact
and law in his opening statement, failing to object to the testimony
of the victim’s grieving mother, and failing to adequately cross-
examine certain prosecution witnesses about their pending criminal
charges. He also contends that the trial court impermissibly
participated in Young’s decision to testify against Moore, and that
the court violated OCGA § 17-8-57, which prohibits a judge from
expressing or intimating 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.
We affirm Moore’s convictions and sentence. First, Moore failed
to prove he received ineffective assistance of counsel. Trial counsel’s
voir dire was within the wide range of reasonable professional
assistance; trial counsel’s decision to avoid potentially antagonizing
which he amended through new counsel on July 19, 2020. Following a hearing,
the trial court denied the motion on May 3, 2022. Moore filed a timely notice of
appeal on May 4, 2022. The case was docketed to the August 2022 term of this
Court and submitted for a decision on the briefs.
2
the jury by objecting to the testimony of a grieving mother was not
an unreasonable strategy; it was reasonable for trial counsel not to
question the State’s witnesses further about their criminal charges
given the testimony already elicited on that subject; and Moore
failed to prove that he was prejudiced by counsel’s misstatements of
the facts or law in his opening statement. Second, any error of the
trial court in influencing Young to testify was harmless, because
Young’s testimony was cumulative of other witnesses or even helpful
to Moore. Finally, the trial court did not violate OCGA § 17-8-57,
because one of the comments Moore takes issue with was made
outside the presence of the jury, and the other was a straightforward
exchange with the State about the admissibility of testimony about
an uncontested fact.
1. We start with the pertinent evidence from Moore’s trial. 2 On
the evening of July 4, 2017, Broderick Dunn was walking up the
2 In light of the harmless-error analysis we undertake in Division 2 of
this opinion, “we review the record de novo, and we weigh the evidence as we
would expect reasonable jurors to have done so as opposed to viewing it all in
the light most favorable to the jury’s verdict.” Fletcher v. State, 303 Ga. 43, 47
(II) (810 SE2d 101) (2018) (citation and punctuation omitted).
3
street in his neighborhood when two cars pulled up next to him. In
the cars were Frankie Young, who had had a dispute with Dunn
online earlier that day, along with Moore and a few others. Young
and Moore jumped out. Moore had a pistol tucked into his pants.
Young approached Dunn aggressively, and the two started fighting.
A little ways up the street, Dunn’s friends—Hindsman,
Quintavius Marshall, and Am’ir Benard—heard the commotion and
ran to Dunn’s aid. Young’s other friends got out of their cars to help
him. A four-on-four brawl broke out. After a few minutes, the fight
turned against Young’s side, and that group began to retreat back
to their cars.
As Young was running toward the cars, he shouted for Moore
to give him the gun that Moore had brought. The main dispute at
trial concerned what happened next. Young testified that he
“snatched” the gun from Moore while Moore was waiting by an open
car door and “screaming” at Young and his friends that “it’s time to
go . . . just let it go. Everybody let it go. Come on. Let’s go.” But Dunn
and another witness, Gabrielle Carson, testified that Moore “passed”
4
the gun to Young, and Benard testified that someone handed the gun
to Young, though he could not say who. However the gun changed
hands, witnesses agreed that Moore said to Young, “[D]o what you
do.”
Young opened fire. Hindsman, Marshall, Benard, and Dunn all
fled, but Hindsman was fatally shot as he ran. Other bullets
damaged the garage doors of a nearby home and a car that was
parked inside. After firing, Young gave the gun back to Moore.
Moore later tried to get rid of it by giving it to a friend.
2. Moore contends that his trial counsel rendered ineffective
assistance in a number of ways.
To succeed on a claim of ineffective assistance, a defendant
must establish both that his counsel’s performance was deficient
and that he was prejudiced as a result of that deficient performance.
See Washington v. State, 313 Ga. 771, 773 (3) (873 SE2d 132) (2022)
(citing Strickland v. Washington, 466 U.S. 668, 687 (III) (104 SCt
2052, 80 LE2d 674) (1984)).
Counsel’s performance is deficient if he “performed his duties
5
in an objectively unreasonable way, considering all the
circumstances and in the light of prevailing professional norms.”
Washington, 313 Ga. at 773 (3) (citation and punctuation omitted).
The law starts with a “strong presumption” that counsel performed
reasonably, and to overcome it, the defendant must show that “no
reasonable lawyer would have done what his lawyer did, or would
have failed to do what his lawyer did not.” Id. (citation omitted). And
counsel’s decisions about trial tactics and strategy in particular may
not form the basis of an ineffectiveness claim unless those decisions
were “so patently unreasonable that no competent attorney would
have followed such a course.” Id. (citation omitted).
As for prejudice, a defendant must establish that there is a
“reasonable probability that, but for counsel’s deficiency, the result
of the trial would have been different.” Washington, 313 Ga. at 773
(3). A reasonable probability is a probability “sufficient to undermine
confidence in the outcome” of the trial. Neal v. State, 313 Ga. 746,
751 (3) (873 SE2d 209) (2022) (citation and punctuation omitted).
If the defendant fails to satisfy either part of the
6
Strickland test, his claim fails, and we need not address the other
part. See Washington, 313 Ga. at 773 (3). Finally, when reviewing
ineffective-assistance claims, we accept the trial court’s factual
findings unless clearly erroneous, but we independently apply legal
principles to the facts. See Lyons v. State, 309 Ga. 15, 25 (8) (843
SE2d 825) (2020).
(a) Moore first contends that his counsel failed to conduct an
adequate voir dire of the jury.
During voir dire, trial counsel asked one general question of
the prospective jurors: whether Moore having been accused of crimes
caused them to believe he was guilty already. He also asked a
number of questions to individual prospective jurors based on their
responses to the general questions or to the State’s questions. One
prospective juror was excused when trial counsel elicited that the
juror believed that “both sides” had a burden of persuasion at trial.
Trial counsel asked other prospective jurors about standing firm in
their opinions, persuading others to change their minds, or
disbelieving someone’s story.
7
A significant number of prospective jurors reported that they
or someone they knew had been victims of a crime. The State elicited
detailed information from these people about their prior
experiences. Most stated that they were capable of rendering an
impartial verdict and were not dismissed. Trial counsel asked some
of these people follow-up questions about keeping an open mind,
listening to the evidence, or the State’s burden of proof, but he did
not follow up about the specifics of their prior experiences with
crime. At the motion-for-new-trial hearing, trial counsel testified
that he based his questioning in part on how the prospective jurors
responded to the State’s questions, and that he would not have
wanted to repeat questions asked by the State.
Moore has failed to establish that trial counsel’s performance
during voir dire was deficient. The content of trial counsel’s voir dire
“can be a matter of trial strategy and, if within the broad range of
reasonable professional assistance, will not sustain a claim that
counsel was constitutionally ineffective.” Taylor v. State, 302 Ga.
176, 178 (2) (805 SE2d 851) (2017). Accord Cade v. State, 289 Ga.
8
805, 808 (4) (716 SE2d 196) (2011). Likewise, trial counsel’s
determination of which jurors to strike “is a strategic decision that,
if reasonable, will not support” a claim of ineffective assistance.
Taylor, 302 Ga. at 178 (2). Here, trial counsel asked many questions
of the prospective jurors about their ability to weigh evidence and
apply the presumption of innocence. He did not ask prospective
jurors detailed questions about their experiences as crime victims,
but the State did ask those questions, and trial counsel could have
reasonably concluded that the State’s questions covered what he
would want to know. It was also reasonable for trial counsel to avoid
asking potential jurors redundant questions about their prior
traumatic experiences. See Cade, 289 Ga. at 808-809 (4) (no deficient
performance when counsel testified she would listen to the State’s
questions during voir dire “before making the strategic decision of
whether further questioning was in her client’s best interest and
that she would not do anything to pollute or taint the rest of the jury
pool”).
Moore has also failed to show how counsel’s voir dire prejudiced
9
him. The transcript does not reveal that any potential jurors had a
fixed and definite opinion regarding Moore’s guilt or innocence or
that they were unable to decide the case based on the evidence. To
the contrary, the jurors who were empaneled said they could decide
the case impartially. See Cade, 289 Ga. at 809 (4) (defendant not
prejudiced by trial counsel’s failure to strike juror when there was
no indication juror was unable to be impartial). Because Moore has
shown neither deficient performance nor prejudice, his claim of
ineffective assistance on this ground fails.
(b) Moore next contends that trial counsel rendered ineffective
assistance by making misstatements of both law and fact in his
opening statement. Moore raises two alleged errors. First, trial
counsel said several times that Moore was charged with “actually
shooting” Hindsman, and that the jury should find him not guilty
“because there will be no evidence on all of these charges that he
shot anyone”—all of which, Moore argues, failed to address the
State’s theory that Young was the shooter and Moore was guilty as
a party to the crime. And trial counsel also told the jury, incorrectly,
10
that it was Young, not Moore, who said “do what you do” before
Young fired at the victims.
Even assuming that trial counsel erred in these ways and that
he rendered deficient performance, Moore has not shown that these
misstatements caused him prejudice. To begin with, the jury was
instructed that opening statements are not evidence, but rather are
“a preview or outline of what [counsel] expects the evidence to be.”
And trial counsel mitigated the effect of any misstatements in his
opening statement through his conduct over the balance of trial.
Although counsel’s opening statement failed to address Moore’s
potential party-to-a-crime culpability, his cross-examination and
closing argument focused on precisely that issue. Trial counsel
extensively cross-examined Young about his testimony that he
“snatched” the gun from Moore. During his cross-examination,
Young agreed that when he “snatched” the gun, “it was such a quick
movement [that Moore] had no time to even think about it.” Trial
counsel further elicited from Young that Moore never encouraged
him to shoot anyone and that he and Moore never discussed bringing
11
a gun to the fistfight. Trial counsel later returned to the “snatching”
question with two other witnesses. And in his closing argument,
trial counsel emphasized Young’s “snatching” testimony yet again.
Trial counsel told the jury, “[I]f you think [Moore] gave him the gun
to shoot that young man, then he’s guilty. On the flip side, . . . if you
believe, like [Young] said, I snatched it from him, then he is not
guilty of murder because that was done solely without his knowledge
and [in] a quick, brief second.”
Given that trial counsel’s cross-examination and closing
argument focused on showing that Moore was not a party to the
crime, Moore has not established a reasonable probability that
counsel’s failure to bring up party-to-the-crime culpability in his
opening statement affected the outcome of trial. See Williams v.
State, 292 Ga. 844, 848-849 (3) (b) (742 SE2d 445) (2013) (no
prejudice from trial counsel’s mistake of fact in opening statement
when trial court instructed jury that opening statements are not
evidence).
As to trial counsel’s misattribution to Young of the phrase “do
12
what you do,” the trial testimony established that Moore was in fact
the one who spoke the phrase. Moore has not shown that counsel’s
momentary misattribution in his opening statement was reasonably
likely to have affected the outcome of trial, especially given the trial
court’s jury instruction that opening statements are not evidence.
Moore’s claim of ineffective assistance on this ground fails. See
Williams, 292 Ga. at 848-849 (3) (b).
(c) Moore contends that trial counsel was ineffective by failing
to object to the testimony of Hindsman’s grieving mother. In her
testimony, the mother, Latisha Calhoun, identified a photo of
Hindsman. She went on to describe how she learned of Hindsman’s
death, how devastated she was, how Hindsman was a “good kid” and
a good older brother, and how a candlelight vigil was held in his
honor. Moore argues that all of this testimony other than the
identification was irrelevant and an attempt to gain the jury’s
sympathy.
Moore has not shown that trial counsel’s failure to object to
Calhoun’s testimony was deficient performance. At the motion-for-
13
new-trial hearing, trial counsel testified that he generally would not
object to a family member testifying that she was overcome with
grief, “because that’s normally most cases,” but that he would object
if a witness started crying on the stand, to minimize prejudice to his
client. Striking that balance falls within the bounds of reasonable
strategy. See Kilpatrick v. State, 276 Ga. 151, 153 (2) (575 SE2d 478)
(2003) (noting that the “danger” of having a family member identify
the photograph of the decedent “is the risk of a family member’s
emotional outburst during trial”). And trial counsel might very well
have wanted to avoid the appearance of attacking a grief-stricken
witness. See id. at 152-153 (2) (reasonable strategy to “avoid
appearing insensitive to the mother, who was a sympathetic
witness”). So Moore’s claim of ineffective assistance on this ground
also fails.
(d) Moore also contends that his trial counsel was ineffective in
failing to adequately cross-examine three witnesses for the State—
victims Marshall and Benard, as well as Young—about the pending
criminal charges they faced. Marshall was charged with possession
14
of marijuana with intent to distribute, Benard had at least three
open felony indictments for marijuana possession and distribution,
and Young was charged with Hindsman’s murder and related
crimes. All three testified about their charges at trial. Marshall and
Benard both stated—Marshall on direct examination, and Benard
on cross—that no one had promised them anything in exchange for
their testimony. And Young testified that he had pleaded guilty, and
that as part of his plea deal he would be sentenced to 35 years, to
serve 30, in exchange for his truthful testimony. Marshall and
Benard did not say what sentences they faced, but Young testified
that his charges carried a maximum sentence of life plus 75 years.
Moore now contends that trial counsel should have impeached
these witnesses by pressing them further about their pending
charges. He argues that trial counsel should have asked Marshall
and Benard about their possible sentences. And he contends that
trial counsel should have elicited that Young actually faced a
sentence of life without parole—not life plus 75 years—and that
Young was therefore underrepresenting the benefit he received by
15
testifying.
Again Moore has not shown deficient performance. The scope
of an attorney’s cross-examination is “grounded in trial tactics and
strategy, and will rarely constitute ineffective assistance of counsel.”
McCoy v. State, 303 Ga. 141, 143 (2) (810 SE2d 487) (2018) (citation
and punctuation omitted). See also Watts v. State, 308 Ga. 455, 460-
461 (2) (841 SE2d 686) (2020) (reasonable strategy not to impeach
witness with variation in testimony when other avenue of cross-
examination could have been more effective); Lakes v. State, 266 Ga.
389, 389 (2) (467 SE2d 566) (1996) (reasonable strategy not to
impeach witnesses on prior convictions to avoid emphasis on drug
activity as a motive for murder). Here, Marshall, Benard, and Young
all testified about the “relevant issue”: whether they “entertained
any belief of personal benefit from testifying favorably for the
prosecution.” State v. Vogleson, 275 Ga. 637, 639 (1) (571 SE2d 752)
(2002). As to Marshall and Benard, once it was established that they
received no benefit in exchange for their testimony, trial counsel
could reasonably have decided not to get into the specific sentences
16
they faced, especially given that the trial court could have prohibited
that line of questioning. See Redding v. State, 307 Ga. 722, 727 (2)
(a) (838 SE2d 282) (2020) (within trial court’s discretion to prohibit
questions about witness’s possible sentence when witness has no
plea deal with State that requires his testimony). And as for Young,
trial counsel could have reasonably determined that there was no
material difference between a sentence of life without parole and a
sentence of life plus 75 years when compared with 35 years with 30
to serve, and so Young did not materially underrepresent the benefit
he received by testifying. See, e.g., Benton v. Hines, 306 Ga. 722, 725
(2) (832 SE2d 801) (2019) (counsel’s failure to elicit witness’s
maximum possible sentence did not prejudice defendant because
“the marginal value of additional impeachment” based on that
sentence would not “have made a difference in the jury’s assessment
of [the witness’s] credibility”).
Because Moore has not shown that trial counsel performed
deficiently by failing to further cross-examine these witnesses, his
17
claim of ineffective assistance on this ground fails. 3
3. Moore next contends that the trial court deprived him of due
process by intimidating Young into testifying for the State, which
Moore characterizes as a violation of Webb v. Texas, 409 U.S. 95 (93
SCt 351, 34 LE2d 330) (1972).
(a) Before trial, Young had agreed to plead guilty and testify
against Moore. But just before opening statements, the trial court
reported that Young had decided not to testify and that his plea deal
was therefore void. Then, in an unrecorded bench conference on the
third day of trial, Young explained that he still wanted to plead
guilty, but that he did not want to testify because of threats from
other inmates in the jail. The next day, Young was brought into
court, outside the presence of the jury, and his counsel said that
3 We also reject Moore’s argument that he was prejudiced by the
cumulative effect of trial counsel’s deficient performance. “Assessing
cumulative prejudice is necessary only when multiple errors have been shown.”
Scott v. State, 309 Ga. 764, 771 (3) (d) (848 SE2d 448) (2020). Moore has not
established multiple instances of deficiency. Of the four claims of ineffective
assistance that he raises, we have concluded that in three of them—trial
counsel’s conduct of voir dire, failure to object to the testimony of the victim’s
mother, and failure to further cross-examine State witnesses about their
pending charges—he failed to show that trial counsel’s performance was
deficient.
18
Young had changed his mind again and that he did want to testify.
The trial court said that it would reinstate the plea deal if Young
testified. At that point the State suggested that the deal was no
longer “on the table.” But the trial court told Young that if he
testified, he would get the benefit of the deal, even over the State’s
objection. Young ultimately agreed to testify, and after he testified,
the trial court found that he had complied with the plea deal and
reinstated it.
(b) Assuming without deciding that the trial court’s
involvement in Young’s decision to testify violated Moore’s due
process rights, the error was harmless to Moore. A constitutional
error is harmless “if the State can prove beyond a reasonable doubt
that the error did not contribute to the verdict, such as when the
evidence at issue is cumulative of other properly-admitted evidence
or when the evidence against the defendant is overwhelming.”
Renfro v. State, 313 Ga. 608, 613 (2) (872 SE2d 283) (2022) (citation
and punctuation omitted). An error can also be harmless if it is
“beneficial to the defendant.” Lindsey v. State, 282 Ga. 447, 450 (2)
19
(651 SE2d 66) (2007) (citation omitted). When applying harmless-
error analysis, we “review the evidence de novo and weigh it as a
reasonable juror would, rather than reviewing it in a light most
favorable to upholding the jury’s verdicts of guilty.” Hamilton v.
State, 309 Ga. 1, 10 (3) (843 SE2d 840) (2020) (citation and
punctuation omitted).
Here, it is beyond a reasonable doubt that Young’s testimony
did not contribute to the verdict. Most of Young’s testimony about
Moore merely restated facts that were already established and
undisputed: that Moore was present at the scene, that Moore had a
gun, and that Young used that gun to shoot Hindsman. Young’s
testimony on these points was cumulative of similar testimony from,
among others, Dunn and Carson. See Renfro, 313 Ga. at 613-614 (2)
(harmless error to admit statements that defendant made to police
before he was given Miranda warnings, when those statements were
cumulative of other evidence). As for Young’s testimony about the
main contested issue—whether Moore was a party to the crime
(because he gave the gun to Young) or merely present (because
20
Young took the gun without his permission)—his testimony was, if
anything, helpful to Moore. As discussed in Division 1 (b), Young
testified that he “snatched” the gun from Moore, and that he did so
quickly and without Moore’s knowledge. Young also testified that
when he shouted to Moore to give him the gun, Moore was standing
by the open door of the car, “screaming” at Young and his friends
that “it’s time to go . . . just let it go. Everybody let it go. Come on.
Let’s go.” To a reasonable juror, that testimony would have tended
to minimize Moore’s involvement in the crime. Indeed, Moore made
Young’s testimony about “snatching” the gun a centerpiece of his
defense that he was not guilty as a party to the crime. Because
Young’s testimony was at worst cumulative of other evidence, and
was in many ways favorable to Moore, any error in the trial court’s
involvement in Young’s plea negotiations was harmless beyond a
reasonable doubt. See Renfro, 313 Ga. at 613 (2).
4. Finally, Moore contends that the trial court improperly
“sided with the State” on two occasions at trial—a pre-voir dire
attempt to persuade Moore to plead guilty, and a brief comment at
21
trial made after sustaining Moore’s hearsay objection. 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).
When we review alleged violations of OCGA § 17-8-57, our
standard of review depends on the type of violation. If the trial court
expresses an opinion as to the ultimate guilt of the accused, it is
reversible error, and the defendant is entitled to a new trial. See
4 We address this claim as an alleged violation of OCGA § 17-8-57 (a)
because the single case Moore cites in support of this argument, State v.
Anderson, 287 Ga. 159 (695 SE2d 26) (2010), addresses that statute. Moore
also states at the end of the section of his brief on this argument that his “right
to due process was denied,” but he makes no further or specific argument on
this point and cites no authority in support of a due process argument, so we
deem any such claim abandoned. See Supreme Court Rule 22. We also express
no opinion about whether the trial court’s statements may have violated any
other legal requirement.
22
OCGA § 17-8-57 (c). But if the trial court merely expresses an
opinion as to whether a fact at issue has been proven, then the
complaining party must make a timely objection. See id. § 17-8-57
(a) (2) and (b). Absent a timely objection—and there was no objection
here—we review only for plain error. Id. § 17-8-57 (b). To show plain
error, an appellant must show that (1) the alleged error was not
affirmatively waived, (2) it was obvious beyond reasonable dispute,
and (3) it affected the appellant’s substantial rights, which
ordinarily means showing that it affected the outcome of the trial.
See Hawkins v. State, 304 Ga. 299, 302 (3) (818 SE2d 513) (2018).
Finally, if those three prongs are satisfied, the appellate court has
the discretion to remedy the error only if the error “seriously
affect[ed] the fairness, integrity, or public reputation of judicial
proceedings.” Id. (citation and punctuation omitted).
We see no error, let alone plain error, in the two trial court
statements that Moore calls out, because neither of them violates
OCGA § 17-8-57 (a) (1). The first statement, in which the trial court
recounted some of the alleged circumstances of the crime and
23
explained the potential sentence Moore faced if convicted, took place
before voir dire and without any potential jurors in the courtroom.5
We must reject Moore’s argument as to this statement on that basis
alone: OCGA § 17-8-57 (a) (1) forbids judges from expressing or
intimating their opinions about whether facts have been proved “to
the jury,” so it does not apply to comments made outside the
presence of the jury. See Dugar v. State, 314 Ga. 376, 382 (1) (c) (877
SE2d 213) (2022).
The second statement that Moore highlights did not violate
5 At that time, the trial court asked Moore whether he still intended to
have a jury trial. The trial court said, “I’m not trying to scare you. I’m just
trying to tell you the real deal.” The trial court then reviewed some of the
evidence against Moore, and said:
I’ve tried 175 felony jury trial[s] and probably 140 of those were
murders, and I have had less than five maybe three at the most
not-guilty verdicts. And that’s when all the tears flow because
right now you have your fate in your own hands and tomorrow you
put your fate in the hands of 12 strangers. Now, you may not have
fired the gun, but under Georgia’s party to a crime [law], you
handed him the gun and saying do what you got to do and you
taking the gun back from him, makes you just as guilty under the
law as if you had fired the shots under party to a crime. Now, you
have two fine lawyers with fine reputations. But if you get
convicted of felony murder, it’s an automatic life sentence and you
have to serve 30 years before you can be paroled and they parole
about 5 percent a year. Now, maybe the State will give you an offer
that’s better than they gave the actual shooter.
24
OCGA § 17-8-57 (a) (1), either. During the direct examination of
Calhoun, the victim’s mother, trial counsel made a hearsay objection
when the witness was describing how she learned of Hindsman’s
death. The trial court said, “All right. I think it is hearsay. Let’s see
if we can figure a way around it.” Code Section 17-8-57 (a) (1) “does
not generally extend to colloquies between the judge and counsel
regarding the admissibility of evidence.” Pyatt v. State, 298 Ga. 742,
748 (3) (784 SE2d 759) (2016) (citation and punctuation omitted)
(addressing former version of statute with materially similar
language). Moore contends, however, that this remark shows that
the trial court “was trying to help the State present evidence with
its witnesses.” That strikes us as an over-reading of this remark.
Even assuming the court’s use of the pronoun “we” suggested the
court was “on the State’s side,” but see Gardner, 286 Ga. at 633, 635
(no violation of OCGA § 17-8-57 (a) (1) when the trial court asked
the State whether it had proven venue, the State replied that it had
not, and the trial court said, “Why don’t we go ahead and do that
before we forget it[?]”), the court gave no direction about how the
25
State should present Calhoun’s testimony, and the court said
nothing further on the subject. And in any event, Moore does not
explain how this remark “pertain[ed] to a disputed issue of fact,” id.
at 634-635, or intimated “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,”
OCGA § 17-8-57 (a) (1).
Because neither of the trial court’s statements expressed or
intimated to the jury the court’s opinions as to whether any facts in
issue had been proved or as to Moore’s guilt, his claim of error on
this ground fails.
Judgment affirmed. All the Justices concur.
26