dissenting.
Because I disagree with the majority’s conclusion in Division 3 that the trial court’s error in instructing the jury using the language of OCGA § 24-3-36 was harmless, I must respectfully dissent. By *153charging the jury that “acquiescence or silence when the circumstances require an answer, a denial, or other conduct, may amount to an admission,” the trial court commented on Ruiz’s silence in violation of his right against self-incrimination under the Georgia Constitution.4 See Ga. Const, of 1983, Art. I, Sec. I, Par. XVI. This Court has long maintained a “bright-line evidentiary rule” that in criminal cases a comment on a defendant’s silence or failure to come forward is not permitted because the prejudice resulting therefrom is “indisputable.” Reynolds v. State, 285 Ga. 70, 71 (673 SE2d 854) (2009), discussing Mallory v. State, 261 Ga. 625 (5) (409 SE2d 839) (1991). The comment here was especially prejudicial because it “was made not by the State’s counsel, who could have been reprimanded, or by a witness, whose testimony could have been excluded from evidence, but by the trial judge himself, who, as the impartial arbiter, was in a unique, powerful position to influence jurors.” Wright v. State, 287 Ga. App. 593, 595 (651 SE2d 852) (2007) (reversing conviction where trial court elicited evidence of and commented on defendant’s decision to remain silent upon arrest). Accordingly, I would recognize that erroneously instructing the jury on the language of OCGA § 24-3-36 in the context of a criminal trial cannot be considered harmless.
Decided November 9, 2009. Brian Steel, for appellant. Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Bettie-anne C. Hart, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Benjamin H. Pierman, Assistant Attorney General, for appellee.I am authorized to state that Justice Hines joins in this dissent.
The transcript of the charge conference contains no discussion of this particular charge. Although the general pattern jury instructions for civil trials include a charge on OCGA § 24-3-36, see Suggested Pattern Jury Instructions, Vol. I: Civil Cases (5th ed.), § 02.171, this charge is properly not a part of the pattern jury instructions for criminal trials. See Suggested Pattern Jury Instructions, Yol. II: Criminal Cases (4th ed.).