concurring in part and dissenting in part.
I concur fully in Division 1 of the majority opinion, but I respectfully dissent from Division 2.1 agree with the majority that “a party is not permitted to explain the failure of an absent witness to testify.” I do not agree, however, that the prosecutor’s statement to the jury explaining Emil Hall’s failure to testify was harmless error.
A nonconstitutional error in a criminal case is harmless only if it is highly probable that the error did not contribute to the judgment.21 “Under that test, a reversal is not required if the evidence of guilt is overwhelming in that there is no reasonable probability that the verdict of the jury would have been different in the absence of this error.”22
The evidence of Clemons’s guilt was far from overwhelming. The only evidence that she participated in the robbery — as opposed to merely being present when it occurred — was the testimony of her *834alleged accomplice, Aaron Hall. He testified that Clemons was in the room while he and his brother planned the crime and that she drove his car to and from the convenience store. Aaron Hall admitted during cross-examination, however, that he had pled guilty to two counts of armed robbery and had received a more favorable sentence in exchange for agreeing to testify against Clemons. The jurors obviously felt that the case was close, as they found Clemons guilty of robbing one person inside the store, but not guilty of robbing the other.
During his opening statement, the prosecutor told the jury not only that Emil Hall would take the stand, but that he would testify that Clemons had given him the gun used in the robbery. Evidence that Clemons had procured the gun would have tied her more closely to the robberies. But Emil Hall did not testify, and the evidence linking Clemons to the gun was tenuous. Aaron Hall testified that when he returned to his apartment on the morning of the robbery after having taken some friends home, “they” — meaning Clemons and his brother — had the gun, but he later explained that he never saw Clemons holding the gun, that she made no statements indicating that she owned it, and that he (Aaron Hall) stashed it in her purse after the robbery because his brother told him to do so.
When the prosecutor told the jury that Emil Hall had declined to testify after consulting with counsel, the jury was permitted to infer that if Emil Hall had taken the stand, he would have testified as the prosecutor had promised — that Clemons provided the gun. In effect, the state was able to establish a critical fact in its case without having a witness testify to that fact. The prosecutor obviously recognized that Emil Hall’s testimony was critical. A number of other witnesses who appeared on the state’s witness list ultimately did not testify at trial — yet the only witness whose absence the prosecutor sought to explain was Emil Hall.
Because the evidence of Clemons’s guilt was not overwhelming, the inference that she supplied the gun could have tipped the balance in the minds of the jurors. Thus, I cannot say that it is highly probable that the error did not affect the judgment.23 Clemons’s conviction should be reversed.
The majority complains that in finding harmful error, I have improperly considered Aaron Hall’s credibility. While the factfinder alone decides whether to believe any witness, it is widely recognized that evidence that an accomplice has agreed to testify for the state in *835exchange for leniency may tend to discredit his testimony.24 Deciding whether the evidence against Clemons was overwhelming — which is the heart of the harmless error inquiry — demands analysis of the weight of the state’s evidence. Evidence that the principal prosecution witness potentially harbored a bias must be part of that analysis. As discussed above, however, Aaron Hall’s potential bias is not the only basis for my conclusion that the error here was harmful. Even if there had been no evidence that Aaron Hall had made a deal with the state, the case against Clemons, though legally sufficient, was not overwhelming.
Decided February 5, 2004 Reconsideration denied February 25, 2004 Axam, Adams & Secret, Tony L. Axam, for appellant. David McDade, District Attorney, Christopher R. Johnson, Assistant District Attorney, for appellee.Felder v. State, 266 Ga. 574, 576 (2) (468 SE2d 769) (1996).
(Citation and punctuation omitted.) Id.
See, e.g., State v. Vogleson, 275 Ga. 637, 639 (1) (571 SE2d 752) (2002); Byrd v. Owen, 272 Ga. 807, 811 (1) (536 SE2d 736) (2000); see also Suggested Pattern Jury Instructions, Vol. II, Section 1.31.80, p. 17 (3rd ed. 2003).
See Johnson v. State, 238 Ga. 59, 60 (230 SE2d 869) (1976) (finding harmful error where prosecutor told jury that state had not called witness because “she was too terrified to come in and testify against the defendant”).