297 Ga. 268
FINAL COPY

                     S15A0614. SMITH v. THE STATE.


      HUNSTEIN, Justice.

      Appellant Ronald Smith appeals his convictions for felony murder and

other crimes in connection with the shooting death of Genai Coleman.

Appellant’s sole contention is that the trial court improperly commented on the

credibility of a witness. We find no merit to this contention and affirm

appellant’s convictions and sentences, except for the conviction and sentence for

possession of a firearm during the commission of the aggravated assault of

Coleman, which must be vacated.1

      1
        The crimes occurred on July 18, 2008. On April 28, 2010, appellant was
indicted by a Gwinnett County grand jury for malice murder, felony murder,
aggravated assault, hijacking a motor vehicle, and three counts of possession of
a firearm during the commission of a felony. On October 30, 2012, the trial jury
found him guilty on all counts. That same day, the trial court sentenced
appellant to life in prison for malice murder, 20 consecutive years for hijacking,
five consecutive years on one firearm verdict, and five concurrent years on the
remaining two firearm verdicts. The felony murder verdict was vacated by
operation of law, and the aggravated assault verdict was merged for sentencing
purposes. On October 30, 2012, appellant filed a motion for new trial, which
he amended on December 9, 2013. The trial court denied the motion, as
amended, on July 15, 2014. Appellant then filed a timely notice of appeal. The
appeal was docketed to the January 2015 term of this Court and submitted for
decision on the briefs.
      1. Viewed in the light most favorable to the verdict, the evidence

presented at trial showed that, on the evening of July 18, 2008, Coleman parked

her car in a parking lot near Gwinnett Place Mall while waiting for her daughter

to finish her shift at work. Appellant, who had just purchased some beer and

cigarettes at a gas station located across the street from where the victim was

parked, approached her car. Appellant attempted to take Coleman’s car, and a

brief struggle ensued, during which Appellant shot the victim once in the chest,

killing her. He then drove off in her car. The victim’s car was later recovered

in Forest Park, Georgia, and DNA material recovered from a cigarette butt found

in the car matched appellant’s DNA. Appellant’s fingerprints were also found

on the car.

      (a) Although Appellant does not contest the sufficiency of the evidence,

we conclude that, viewed in the light most favorable to the verdict, the evidence

presented at trial and summarized above was sufficient to authorize a rational

jury to find Appellant guilty beyond a reasonable doubt of the crimes of which

he was convicted. See Jackson v. Virginia, 443 U. S. 307, 319 (99 SCt 2781,

61 LE2d 560) (1979).

      (b) We conclude, however, that the trial court erred in entering a judgment

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of conviction and sentence on the possession of a firearm verdict predicated on

aggravated assault.

      [W]here multiple crimes are committed together during the course
      of one continuous crime spree, a defendant may be convicted once
      for possession of a firearm during the commission of a crime as to
      every individual victim of the crime spree, as provided under
      OCGA § 16-11-106 (b) (1), and additionally once for firearm
      possession for every crime enumerated in subsections (b) (2)
      through (5).

State v. Marlowe, 277 Ga. 383, 386 (2) (c) (589 SE2d 69) (2003). In this case,

because the underlying crimes of murder and aggravated assault were committed

against one victim, the possession charge predicated on aggravated assault

merged with the possession charge predicated on murder. See Gibbs v. State,

295 Ga. 92 (2) (757 SE2d 842) (2014); Marlowe, 277 Ga. at 386-387. The trial

court properly entered a judgment of conviction and sentence on the possession

charge predicated on hijacking a motor vehicle, as that crime is enumerated in

subsection (b) (3) of OCGA § 16-11-106. See Marlowe, 277 Ga. at 387

(holding that a proper analysis of OCGA § 16-11-106 (b) “permitt[ed] three

possession charges based on the crimes committed against three separate

victims, and two possession charges based on the crimes of burglary and motor

vehicle hijacking”).

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      2. Appellant’s sole contention concerns the testimony of a witness who

saw the encounter between appellant and the victim. During cross-examination,

the witness became visibly upset. The trial court took a break in the trial for the

benefit of the witness and questioned the witness out of the jury’s presence

about the reason for her distress.

      THE WITNESS: I just got so much on my mind. They’re talking
      to me and I’m thinking about everything that’s going on with me
      this morning. I’m just trying to answer the questions as much as I
      can. But when you go to get a [sic] open head surgery and all that
      stuff, I really just can’t think.
      THE COURT: Okay, so you have something personal going with
      yourself, a medical problem that you’re having?
      THE WITNESS: Yes.
      THE COURT: I’m sorry about that. We’re not trying to upset you
      in any way, neither of the lawyers are.
      THE WITNESS: I’m trying to think about what they tell me, but I
      just have so much on my mind. I just came from the doctor.

When the court asked the witness if she wanted to take a break, she responded

that she wanted to “get it over” and “go home.” When the jury returned to the

courtroom, the trial court, with the witness’s permission, informed the jury that:

             [The witness] doesn’t feel well this morning. She’s having
      some personal medical issues. And she’s not upset with any of the
      lawyers, but she doesn’t feel well. But we’re going to try to finish
      asking her questions. But I just wanted y’all to know that the stress
      is not really related to this case. So we’re going to try to get her out
      of here as soon as we can.

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      Appellant contends that the trial court’s statement that the witness’s stress

was not related to the trial was an improper comment on her credibility and

violated OCGA § 17-8-57. We disagree.

      OCGA § 17-8-57 says that “[i]t 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. . . .” One

of the purposes of OCGA § 17-8-57 “is to prevent the jury from being

influenced by any disclosure of the trial court’s opinion regarding the credibility

of a witness.” Murphy v. State, 290 Ga. 459, 460 (2) (722 SE2d 51) (2012).

However, a trial court has considerable discretion to control the trial of the case

to ensure a fair trial and the orderly administration of justice. See Bonner v.

State, 295 Ga. 10 (3) (757 SE2d 118) (2014); Smith v. State, 292 Ga. 588 (2)

(740 SE2d 129) (2013). A trial court also has discretion to “propound questions

to a witness to develop the truth of the case or to clarify testimony.” Finley v.

State, 286 Ga. 47, 51-52 (9) (a) (685 SE2d 258) (2009).

      In exercising these powers, a trial court may not violate OCGA § 17-8-57,

and whether the trial court in this case did so depends on whether or not it


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improperly bolstered the witness’s credibility. See Smith, 292 Ga. at 589-590

(holding that, when the trial court curtailed what it thought were too many

questions regarding the layout of the crime scene, saying that the GBI agent who

was being questioned was a “very thorough investigator” and that it was not

necessary for him to testify about everything learned in investigating the crime,

the court did not violate OCGA § 17-8-57, because it properly exercised its

discretion to control the course of the trial and did not express an opinion that

bolstered the witness’s credibility); Murphy, 290 Ga. at 461 (holding that a trial

judge who called a witness a “good detective” and said that through “his good

efforts we’re going to find the truth of the matter” improperly “express[ed] a

favorable opinion on his abilities and thus bolster[ed] that witness’s

credibility”); John v. State, 282 Ga. 792 (3) (653 SE2d 435) (2007) (holding

that, when a state’s witness became confused about a previous first offender plea

with which defense counsel was attempting to impeach him and the trial court

interrupted and explained that the source of the witness’s confusion was

procedures that the trial court had implemented at the time of the witness’s plea,

the trial court did not improperly bolster the witness’s credibility); Hubbard v.

Hubbard, 277 Ga. 729, 730 (1) (594 SE2d 653) (2004) (saying that a trial judge

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“‘should not in the hearing of the jury make any remark tending to compliment

or disparage a witness’” and holding that, when the trial court stated its “high

opinion” of a witness, it improperly “bolstered her credibility” (citation

omitted)); Callaham v. State, 305 Ga. App. 626, 627 (1) (700 SE2d 624) (2010)

(holding that the trial court’s question to the defendant of whether he knew

“‘why the neighbor that lives across the street would come in here and say

you’re the one that shot? He’s not related to anybody’” violated OCGA § 17-8-

57, in that it “clearly intimated the court’s opinion that the testimony was

believable because the neighbor was an independent witness, unrelated to any

of the parties involved in the case”).

      Here, during the witness’s cross-examination, the trial court became

concerned about how upset the witness was and stopped the proceedings to

briefly question her about her well-being. In informing the jury of the source

of her discomfort, the court did not “express[ ] a favorable opinion on [her]

abilities,” Murphy, 290 Ga. at 461; did not compliment her or express a “high

opinion” of her, Hubbard, 277 Ga. at 730; and did not “clearly intimate[ ] the

court’s opinion that [her] testimony was believable,” Callaham, 305 Ga. App.

at 628. Instead, in an attempt to secure a fair trial and the orderly administration

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of justice by discovering the source of the witness’s distress, the court

objectively and matter-of-factly told the jury of the reason for the distress. The

trial court did not violate OCGA § 17-8-57 in doing so.

      Judgment affirmed in part and vacated in part. All the Justices concur,

except Melton, J., who dissents.




      MELTON, Justice, dissenting.

      Because I cannot agree that the trial court's comments in this case did not

improperly bolster the eyewitness's testimony in this case, I must respectfully

dissent. In its attempt to explain to the jury that the witness was not feeling well,

the trial court took a step too far when it stated, "I want you to know that the

[witness's] stress is not really related to this case." It is axiomatic that a jury, as

the arbiter of credibility, is entitled to consider the demeanor of a witness in

determining the truthfulness of his or her testimony. “Factors such as demeanor,

contradictory or inconsistent statements and evidence that a witness had ulterior

motives can all lead a trier of fact to disregard testimony.” (Citation and

punctuation omitted.) White v. State, 287 Ga. 713, 716 (1) (b) (699 SE2d 291)
(2010). While it is clear that the witness’s medical condition likely contributed

to her distress on the stand, it could be equally likely that the course of

examination added to her level of distress. Here, the trial court removed the

jury's ability to measure the truthfulness of this testimony by instructing them

that the witness's demeanor was not related to the case, only her illness. This

usurpation of the jury's fact-finding function was, therefore, a violation of

OCGA § 17-8-57. See, e.g., Murphy v. State, 290 Ga. 459 (722 SE2d 51)

(2012). It is important to note that this problem could have been avoided if the

trial court had simply allowed the lawyers to question the witness about her

medical condition on their own.

                            Decided June 1, 2015.

      Murder. Gwinnett Superior Court. Before Judge Conner.

      Lynn M. Kleinrock, for appellant.

      Daniel J. Porter, District Attorney, Christopher M. Quinn, Lisa A. Jones,

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

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

Attorney General, Meghan H. Hill, Assistant Attorney General, for appellee.



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