CRAFT v. THE STATE, 274 Ga. App. 410

Phipps, Judge. Rodney Craft was tried by a jury and convicted of two counts of child molestation. He was sentenced to forty years, ten in confinement and thirty on probation. On appeal, he claims that the trial court erred in its questioning of two witnesses and in refusing to allow his trial counsel to introduce evidence of the victims’ academic records. Craft also charges his trial counsel with ineffective assistance. We conclude that the trial court violated OCGA § 17-8-57 by its questioning of one witness.

We further conclude that the statutory violation, coupled with the trial court’s failure to allow Craft a thorough and sifting cross-examination, constituted plain error. Therefore, we reverse. Because the evidence was sufficient to support the verdict under the standard of Jackson v. Virginia, the case can be retried. The evidence showed that C. W. and T. J., both 15 years old, were walking to school in Columbus on August 26, 2002. As they walked by Craft’s house, Craft said to C. W, “Hey, look over here.” C. W. looked in that direction and saw Craft standing naked at his door, masturbating. C. W. told T.

J. to look, and T. J. also saw Craft naked and masturbating. They ran the rest of the way to school and reported the incident to the assistant principal, Senobia Moore. After investigation by Columbus police officers, Craft was arrested. 1. Craft claims that the trial court erred by asking Moore questions about the character of the victims in such a manner as to cause the jury to believe that the court had formed or expressed an opinion about the veracity of the victims, in violation of OCGA § 17-8-57. The following exchange is at issue: THE COURT: Ms. Moore, I just have a couple of questions for you.

Do you know what kind of students these two girls are? THE WITNESS: Yes. They are very good students. Actually, one is a cheerleader and they are very mannerable, very poli[t]e young ladies. And, again, knowing that they are not ones that are real wild and real, you know, loud in the halls and everything, the way that I saw them that day, you know, caused my attention to go to them. THE COURT: Are the cheerleaders at [your school] required to make a certain grade-point average? THE WITNESS: Yes, well, we follow the State, the code that goes with athletes, and if you — THE COURT: So that’s the same requirement?

THE WITNESS: Yes, it is. And if you fail two classes, you cannot participate. So it’s the fail-no-participate rule. However, our students are still monitored. All of our athletes are monitored; and if their grades begin to fall low, they can be pulled from a game or pulled from participating for a period of time. THE COURT: Based on the individual school policy? THE WITNESS: Yes. Craft did not object to the court’s questioning during trial and has therefore waived his right to pursue the issue on appeal.

Despite counsel’s failure to preserve this issue, we must consider whether the trial court’s actions violated OCGA § 17-8-57 and, if so, whether that violation constituted plain error. “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.” The purpose of this limitation 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 and standing of the witness is an issuable fact in every case — a most material fact. 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.” This case was based almost entirely on the testimony of the victims. As a result, their credibility was the most important issue in the case.

The testimony elicited by the trial court bolstered the credibility of the victims, which had not previously been challenged. By its actions, the court stepped over the line between developing the truth of the case and intimating its opinion on an issue that was in the sole province of the jury, thereby violating OCGA § 17-8-57. Focused on what it calls the court’s “leeway” in posing questions during a criminal trial, the dissent misses the point. We do not challenge the trial court’s right to “occasional and cautious” questioning of witnesses to develop the truth of a case.

Instead, we hold that the specific questioning in this case constituted a violation of OCGA § 17-8-57. Contrary to the dissent’s argument, we are not breaking new ground or establishing a new rule in holding that a trial court violates OCGA § 17-8-57 when it intimates its opinion as to the credibility of a witness — an issue within the sole province of the jury. We are merely applying existing case law to the specific facts of this case — a task performed daily by judges at the trial and appellate levels. We do not conclude that the trial court’s improper questioning, standing alone, constituted plain error.

Instead, we consider the issue of plain error in connection with Craft’s next claim. 2. After the court asked Moore questions about the victims’ school performance, Craft sought to question her about their academic history and disciplinary history. Craft asked Moore what kind of student C. W. was, Moore admitted that even polite students get into minor trouble and, at Craft’s request, Moore explained “administrative detention.” The state objected to the line of questioning at that point.

Craft’s counsel responded that he had documents that contradicted some of Moore’s testimony about the victims’ school performance and conduct. The court refused to allow Craft to pursue the matter further, stating “you’re not going to make these victims look bad.” Although this statement was made during a bench conference, it demonstrated that the trial court had reached the conclusion that the state had already proven that the girls were victims. Further, that conclusion likely formed the basis for the trial court’s decision to shut down Craft’s cross-examination.

Craft claims that the trial court’s refusal to allow further cross-examination constituted an abuse of the court’s discretion. As noted previously, the testimony elicited by the trial court bolstered the credibility of the victims, which had not previously been challenged. After opening the door to this line of questioning and allowing Moore to testify that the victims were very good students who were well-behaved, the trial court refused to allow Craft to rebut this testimony. Craft had documents showing that C.

W. had been disciplined for disrespect and had been placed in administrative detention on two occasions, along with one showing that T. J. had been cited for screaming in the hallway and subjected to in-school suspension. Other documents showed that both victims had failed at least two classes.

The dissent argues that it was sufficient to allow Craft to ask four questions that “inferred to the jury that the two students fell short of perfection.” But the limited questioning allowed by the court clearly was not adequate to rebut the critical testimony the court had elicited and did not provide Craft the thorough and sifting cross-examination to which he was entitled.

The right of cross examination is a substantial right, the preservation of which is essential to the proper administration of justice and extends to all matters within the knowledge of the witness, the disclosure of which is material to the controversy. This right should not be abridged. Here, not only did the court refuse to allow Craft further questioning of the witness; it refused to allow Craft to introduce the documentary evidence that would have specifically rebutted Moore’s testimony regarding the behavior and academic standing of the victims.

We conclude that the trial court’s improper bolstering of the victims’ credibility, compounded by its refusal to allow Craft to rebut this critical testimony, “seriously affected the fairness, integrity, and public reputation of these judicial proceedings.” Therefore, we reverse Craft’s conviction. We disagree with the dissent’s implication that the focus should be on the number of questions asked by the trial court instead of the impact of those questions on the judicial proceedings.

The dissent also seems to misunderstand our ultimate conclusion — when the trial court’s improper questioning was compounded with the court’s refusal to allow Craft to rebut the testimony the court had elicited, it “seriously affected the fairness, integrity, and public reputation” of the judicial proceedings. 3. Because it is possible that the situation could occur on retrial, we address Craft’s claim that the trial court erred when it asked T. J. the following: THE COURT: Did you have any trouble seeing through the screen door on any of the occasions that you saw him standing behind the screen door?

THE WITNESS: No, ma’am. THE COURT: Could you be mistaken about what he was doing? THE WITNESS: No, ma’am. THE COURT: On any of the times that you saw him? THE WITNESS: No, ma’am. Craft argues that the questioning bolstered T. J.’s credibility and revealed a clear bias toward the prosecution, in violation of OCGA § 17-8-57. During direct examination by the state, T. J. testified that she had seen Craft in his boxer shorts on August 19, while she was walking to school. She testified that when she saw him on August 26, he was standing behind a screen door and a light was on behind him.

On cross-examination, Craft’s counsel asked T. J. numerous questions about what she could and could not see through Craft’s screen door. Because Craft raised no objection to the questioning, he waived his right to assert the issue on appeal. Even if Craft had objected, we find that no error occurred because the trial court merely sought to clarify T. J.’s testimony. The trial court may propound questions to any witness to develop the truth of the case. 4. Craft’s remaining claims are moot. Judgment reversed. Barnes, J., concurs. Ruffin, C. J., and Blackburn, P. J., concur specially. Andrews, P. J., Johnson, P.

J., andMikell, J., dissent. 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Lively v. State, 262 Ga. 510, 512 (3) (421 SE2d 528) (1992). Both victims testified that they were cheerleaders. See Putman v. State, 270 Ga. App. 45, 46 (4) (606 SE2d 50) (2004). See Paul v. State, 272 Ga. 845,848-849 (3) (537 SE2d 58) (2000); Seidenfaden v. State, 249 Ga. App. 314, 318 (2) (547 SE2d 578) (2001). OCGA§ 17-8-57. O’Hara v. State, 241 Ga. App. 855, 859 (3) (528 SE2d 296) (2000). Jones v. State, 189 Ga. App. 232, 233 (1) (375 SE2d 648) (1988) (citation and punctuation omitted). See id. See id.; see also Starr v.

State, 269 Ga. App. 466, 468 (1) (604 SE2d 297) (2004) (OCGA § 17-8-57 violated when trial court gave jury instruction that expressed an opinion, at least impliedly, as to the veracity of the child molestation victim). See OCGA§ 24-9-64. James v. State, 260 Ga. App. 536, 536-537 (1) (580 SE2d 334) (2003) (citation omitted). Paul, 272 Ga. at 849 (3) (citation and punctuation omitted). See id. See Putman, supra. See id. at 46-47; see also Goodrum v. State, 269 Ga. App. 397, 400 (1) (604 SE2d 251) (2004). Eubanks v. State, 240 Ga. 544,547 (2) (242 SE2d 41) (1978); see also Shields v.

State, 272 Ga. 32, 34-35 (5) (526 SE2d 845) (2000).