296 Ga. 538
FINAL COPY
                          S14A1478. SALES v. THE STATE.


       THOMPSON, Chief Justice.

       Appellant Courtney Sales was found guilty of felony murder, armed

robbery, and possession of a firearm during the commission of a crime in

connection with the shooting death of Jamal Cooper.1 His motion for new trial

in which he asserted, inter alia, that the trial court erred by commenting on the

evidence in violation of OCGA § 17-8-57 was denied, and he appeals. Based

on our review of the record, we agree that by stating to the venire in reference

to the crimes committed that “[t]his happened in Taylor County” the trial court

expressed or intimated its opinion as to a disputed issue of fact at trial and


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          The crimes occurred on December 17, 2005. Appellant was indicted by a Taylor County
grand jury on June 12, 2006, on charges of malice murder, felony murder (two counts), armed
robbery, aggravated assault and possession of a firearm during the commission of a crime (two
counts). Following a jury trial from November 6-15, 2006, appellant was found guilty on November
15, 2006, of felony murder based on the underlying felony of armed robbery, armed robbery and one
count of possession of a firearm during the commission of a crime. That same day appellant was
sentenced to life for the felony murder conviction, twenty years concurrent without parole for armed
robbery and five years consecutive for possession of a firearm during the commission of a crime.
Appellant filed a motion for new trial on December 11, 2006 and, thereafter, filed amendments to
his motion on January 22, 2013, April 16, 2013, July 22, 2013 and September 10, 2013. Following
a hearing held December 27, 2013, the trial court entered an order January 16, 2014 vacating
appellant’s sentence on the armed robbery count finding this conviction had merged into his
conviction for felony murder. See Malcolm v. State, 263 Ga. 369 (434 SE2d 479) (1993).
Thereafter, on January 21, 2014, the trial court denied appellant’s motion for new trial. Appellant
filed a notice of appeal on February 5, 2014, and the appeal was docketed in this Court for the
September 2014 term and submitted for a decision on the briefs.
violated OCGA § 17-8-57. See Rouse v. State, 296 Ga. 213 (765 SE2d 879)

(2014). Accordingly, we reverse the judgment of the trial court.

      1. Viewed in the light most favorable to the jury’s verdict, the evidence

presented at trial revealed that appellant drove from New Jersey to Americus,

Georgia, with Jamal Cooper in December 2005 to purchase cheap firearms for

resale. Appellant made arrangements for the sale through an acquaintance,

Kenneth Dupree. Appellant, Cooper, Dupree and three of Dupree’s cousins

agreed to meet an individual named “Sham” on a dirt road to complete the

transaction. Sham never arrived. Later that night, police responded to a call

from a gas station where they found appellant lying on the ground, shot multiple

times. Appellant told the officers that he was involved in a transaction that went

wrong and his friend, Cooper, had been shot. From appellant’s description, it

was unclear whether Cooper’s body was located in Taylor County. Eventually,

police found Cooper’s body lying on a dirt road in south Taylor County.

      Although originally confirming appellant’s account, Dupree and other

witnesses eventually revealed to police that appellant made the trip from New

Jersey to rob Cooper because appellant believed Cooper had not given him his

fair share of profits from an earlier deal. Pursuant to plea deals, members of the

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group testified that appellant shot Cooper in the back of the head then asked one

of the group to take the gun and shoot appellant to make it look like he was the

victim.

      We conclude the evidence was sufficient to enable a rational trier of fact

to find appellant guilty beyond a reasonable doubt of the crimes for which he

was convicted. See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d

560) (1979).

      2. Appellant enumerates as error three separate comments made by the

trial court during the proceedings which appellant contends violated OCGA §

17-8-57. This statute 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. Should any judge violate this Code section, the
      violation shall be held by the Supreme Court or Court of Appeals
      to be error and the decision in the case reversed, and a new trial
      granted in the court below with such directions as the Supreme
      Court or Court of Appeals may lawfully give.

OCGA § 17-8-57. Given the mandatory language of the statute, “any violation

of OCGA § 17-8-57 requires a new trial regardless of whether there has been

any showing of actual prejudice to the defendant.” Rouse, supra, 296 Ga. at 214


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(citations omitted). See also Patel v. State, 282 Ga. 412, 415 (651 SE2d 55)

(2007). Further, appellant’s failure to contemporaneously object to the trial

court’s alleged violations of this statute does not preclude appellate review. See

Murphy v. State, 290 Ga. 459, 461 (722 SE2d 51) (2012); State v. Gardner, 286

Ga. 633, 634 (690 SE2d 164) (2010).

      (a) Appellant first contends that the trial court violated OCGA § 17-8-57

during jury selection by improperly expressing its opinion to the venire that

venue was proper in Taylor County. Venue is a jurisdictional fact which must

be proved by the prosecution beyond a reasonable doubt in every criminal case.

See Patel, supra, 282 Ga. at 414. Whenever a criminal defendant pleads not

guilty, he or she has challenged venue. See Jones v. State, 272 Ga. 900, 902

(537 SE2d 80) (2000). Here, the record reveals that during voir dire, while

instructing prospective jurors to consider whether they might have heard

something about the case or know any of the parties involved, the trial court

stated:

            This happened in Taylor County. So if anybody knows any
      of the parties, we would respectfully ask you to let us know now.

We find that this statement made by the trial court clearly, unambiguously and


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erroneously suggested to jurors that venue in Taylor County had been

established or was not in dispute in this case.

      In a case with facts virtually identical to those presented here, this Court

recently observed:

            [W]hen . . . a trial judge makes a statement to jurors, however
      inadvertent or unintentional, informing them that a crime occurred
      in a particular county, i.e., a particular venue, the making of the
      statement violates OCGA § 17-8-57 because it could be construed
      as a comment regarding a required element of the State’s case.

Rouse, supra, 296 Ga. at 215. In Rouse, the trial court stated, “you will be

hearing about a case . . . that happened in Muscogee County,” while giving

preliminary instructions to the venire. Id. at 215. Finding it “beyond dispute

that voir dire is part of the ‘progress’ of a case,” we held that this comment

violated OCGA § 17-8-57 because it “affirmatively establish[ed] a disputed

element which the state [had] the burden of proving at trial.” Id. Moreover, this

Court concluded it could not “surmise whether [the Rouse court’s comment]

may have caused actual prejudice to the defendant.” Id. at 215, citing Murphy

v. State, 290 Ga. 459, 461 (722 SE2d 51) (2012) (trial court’s comments about

witness violated OCGA § 17-8-57 because it is impossible to determine that

jurors were not influenced).

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         We find no discernable differences between the trial court’s statement in

Rouse and the statement at issue in this case. Considered in context, neither

statement could reasonably be construed as a mere comment on the evidence

jurors could expect to hear or as a comment on what the State was expected to

prove at trial. Accordingly, we conclude that by stating to the venire in this case

that the crime happened in Taylor county, the trial court “expressed or intimated

the court’s opinion as to a disputed issue of fact” and thus violated OCGA § 17-

8-57. Rouse, supra, 296 at 218. Accordingly, appellant must be granted a new

trial.

         (b) Having determined that appellant is entitled to a new trial, we need

not address appellant’s claims alleging additional comments by the trial court

violated OCGA § 17-8-57 as such matters are not likely to recur on retrial. See

Patel, supra at 416; Willingham v. State, 279 Ga. 886, 889 (622 SE2d 343)

(2005).

         Judgment reversed.     All the Justices concur, except Nahmias and

Blackwell, JJ., who concur in judgment only.




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                         Decided February 16, 2015.

      Murder. Taylor Superior Court. Before Judge Peters.

      James C. Bonner, Jr., Tyler R. Conklin, for appellant.

      Julia Fessenden Slater, District Attorney, Robert B. Bickerstaff II,

Assistant District Attorney, Samuel S. Olens, Attorney General, Patricia B.

Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant

Attorney General, Christian A. Fuller, Assistant Attorney General, for appellee.




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