Moore v. State

FINAL COPY


                  S22A1005. MOORE v. THE STATE.


      PINSON, Justice.

      Jordy Moore was convicted of malice murder and other crimes

arising from what began as a group fistfight and ended with the

shooting death of Zyshonne Hindsman.1 On appeal, Moore contends



      1 The crimes occurred on July 4, 2017. On December 5, 2017, a Fulton

County grand jury indicted Moore along with Frankie Young. Count 1 charged
both defendants with the malice murder of Hindsman. Counts 2 through 6
charged the defendants with the felony murder of Hindsman, predicated
respectively on aggravated assaults with a deadly weapon as charged in
Counts 7 through 10 and on criminal damage to property as charged in Count
11. Each of Counts 7 through 10 specified a different victim of aggravated
assault—respectively, Hindsman, Broderick Dunn, Quintavius Marshall, and
Am’ir Benard. Count 12 charged the defendants with possessing a firearm
during the commission of a felony. Prior to trial, Young pled guilty to one count
of felony murder, one count of aggravated assault, criminal damage to
property, and possessing a firearm during the commission of a felony. Moore
was tried by a jury from August 13 to 20, 2018, and was convicted on all counts.
He was sentenced to life in prison for Count 1, 20 years in prison for each of
Counts 8 through 10, ten years in prison for Count 11, and five years in prison
for Count 12, all to be served consecutively, for a total sentence of life plus 75
years. The remaining counts merged for sentencing or were vacated by
operation of law. On September 18, 2018, Moore filed a motion for new trial,
which he amended through new counsel on July 19, 2020. Following a hearing,
the trial court denied the motion on May 3, 2022. Moore filed a timely notice of
appeal on May 4, 2022. The case was docketed to the August 2022 term of this
Court and submitted for a decision on the briefs.
that his trial counsel rendered ineffective assistance by failing to

conduct an adequate voir dire, making incorrect statements of fact

and law in his opening statement, failing to object to the testimony

of the victim’s grieving mother, and failing to adequately cross-

examine certain prosecution witnesses about their pending criminal

charges. He also contends that the trial court impermissibly

participated in Young’s decision to testify against Moore, and that

the court violated OCGA § 17-8-57, which prohibits a judge from

expressing or intimating to the jury the judge’s opinion as to

whether a fact at issue has or has not been proved or as to the guilt

of the accused.

     We affirm Moore’s convictions and sentence. First, Moore failed

to prove he received ineffective assistance of counsel. Trial counsel’s

voir dire was within the wide range of reasonable professional

assistance; trial counsel’s decision to avoid potentially antagonizing

the jury by objecting to the testimony of a grieving mother was not

an unreasonable strategy; it was reasonable for trial counsel not to

question the State’s witnesses further about their criminal charges

                                  2
given the testimony already elicited on that subject; and Moore

failed to prove that he was prejudiced by counsel’s misstatements of

the facts or law in his opening statement. Second, any error of the

trial court in influencing Young to testify was harmless, because

Young’s testimony was cumulative of other witnesses or even helpful

to Moore. Finally, the trial court did not violate OCGA § 17-8-57,

because one of the comments Moore takes issue with was made

outside the presence of the jury, and the other was a straightforward

exchange with the State about the admissibility of testimony about

an uncontested fact.

      1. We start with the pertinent evidence from Moore’s trial.2 On

the evening of July 4, 2017, Broderick Dunn was walking up the

street in his neighborhood when two cars pulled up next to him. In

the cars were Frankie Young, who had had a dispute with Dunn

online earlier that day, along with Moore and a few others. Young


      2 In light of the harmless-error analysis we undertake in Division 2 of

this opinion, “we review the record de novo, and we weigh the evidence as we
would expect reasonable jurors to have done so as opposed to viewing it all in
the light most favorable to the jury’s verdict.” Fletcher v. State, 

(II) (

) (2018) (citation and punctuation omitted).
                                        3
and Moore jumped out. Moore had a pistol tucked into his pants.

Young approached Dunn aggressively, and the two started fighting.

     A little ways up the street, Dunn’s friends—Hindsman,

Quintavius Marshall, and Am’ir Benard—heard the commotion and

ran to Dunn’s aid. Young’s other friends got out of their cars to help

him. A four-on-four brawl broke out. After a few minutes, the fight

turned against Young’s side, and that group began to retreat back

to their cars.

     As Young was running toward the cars, he shouted for Moore

to give him the gun that Moore had brought. The main dispute at

trial concerned what happened next. Young testified that he

“snatched” the gun from Moore while Moore was waiting by an open

car door and “screaming” at Young and his friends that “it’s time to

go . . . just let it go. Everybody let it go. Come on. Let’s go.” But Dunn

and another witness, Gabrielle Carson, testified that Moore “passed”

the gun to Young, and Benard testified that someone handed the gun

to Young, though he could not say who. However the gun changed

hands, witnesses agreed that Moore said to Young, “[D]o what you

                                    4
do.”

       Young opened fire. Hindsman, Dunn, Marshall, and Benard all

fled, but Hindsman was fatally shot as he ran. Other bullets

damaged the garage doors of a nearby home and a car that was

parked inside. After firing, Young gave the gun back to Moore.

Moore later tried to get rid of it by giving it to a friend.

       2. Moore contends that his trial counsel rendered ineffective

assistance in a number of ways.

       To succeed on a claim of ineffective assistance, a defendant

must establish both that his counsel’s performance was deficient

and that he was prejudiced as a result of that deficient performance.

See Washington v. State, 

 (3) (

) (2022)

(citing Strickland v. Washington, 

 (III) (

, 80 LE2d 674) (1984)).

       Counsel’s performance is deficient if he “performed his duties

in     an   objectively   unreasonable   way,    considering   all   the

circumstances and in the light of prevailing professional norms.”

Washington, 

 (3) (citation and punctuation omitted).

                                    5
The law starts with a “strong presumption” that counsel performed

reasonably, and to overcome it, the defendant must show that “no

reasonable lawyer would have done what his lawyer did, or would

have failed to do what his lawyer did not.” 

 (citation and

punctuation omitted). And counsel’s decisions about trial tactics and

strategy in particular may not form the basis of an ineffectiveness

claim unless those decisions were “so patently unreasonable that no

competent attorney would have followed such a course.” 

 (citation

and punctuation omitted).

     As for prejudice, a defendant must establish that there is a

“reasonable probability that, but for counsel’s deficiency, the result

of the trial would have been different.” Washington, 

(3). A reasonable probability is a probability “sufficient to undermine

confidence in the outcome” of the trial. Neal v. State, 

 (3) (

) (2022) (citation and punctuation omitted).

     If the defendant fails to satisfy either part of the

Strickland test, his claim fails, and we need not address the other

part. See Washington, 

 (3). Finally, when reviewing

                                  6
ineffective-assistance claims, we accept the trial court’s factual

findings unless clearly erroneous, but we independently apply legal

principles to the facts. See Lyons v. State, 

 (8) (

) (2020).

     (a) Moore first contends that his counsel failed to conduct an

adequate voir dire of the jury.

     During voir dire, trial counsel asked one general question of

the prospective jurors: whether Moore having been accused of crimes

caused them to believe he was guilty already. He also asked a

number of questions to individual prospective jurors based on their

responses to the general questions or to the State’s questions. One

prospective juror was excused when trial counsel elicited that the

juror believed that “both sides” had a burden of persuasion at trial.

Trial counsel asked other prospective jurors about standing firm in

their opinions, persuading others to change their minds, or

disbelieving someone’s story.

     A significant number of prospective jurors reported that they

or someone they knew had been victims of a crime. The State elicited

                                  7
detailed   information    from   these   people   about    their   prior

experiences. Most stated that they were capable of rendering an

impartial verdict and were not dismissed. Trial counsel asked some

of these people follow-up questions about keeping an open mind,

listening to the evidence, or the State’s burden of proof, but he did

not follow up about the specifics of their prior experiences with

crime. At the motion-for-new-trial hearing, trial counsel testified

that he based his questioning in part on how the prospective jurors

responded to the State’s questions, and that he would not have

wanted to repeat questions asked by the State.

     Moore has failed to establish that trial counsel’s performance

during voir dire was deficient. The content of trial counsel’s voir dire

“can be a matter of trial strategy and, if within the broad range of

reasonable professional assistance, will not sustain a claim that

counsel was constitutionally ineffective.” Taylor v. State, 

 (2) (

) (2017). Accord Cade v. State, 

 (4) (

) (2011). Likewise, trial counsel’s

determination of which jurors to strike “is a strategic decision that,

                                   8
if reasonable, will not support” a claim of ineffective assistance.

Taylor, 

 (2). Here, trial counsel asked many questions

of the prospective jurors about their ability to weigh evidence and

apply the presumption of innocence. He did not ask prospective

jurors detailed questions about their experiences as crime victims,

but the State did ask those questions, and trial counsel could have

reasonably concluded that the State’s questions covered what he

would want to know. It was also reasonable for trial counsel to avoid

asking potential jurors redundant questions about their prior

traumatic experiences. See Cade, 

 (4) (no deficient

performance when counsel testified she would listen to the State’s

questions during voir dire “before making the strategic decision of

whether further questioning was in her client’s best interest and

that she would not do anything to pollute or taint the rest of the jury

pool”).

     Moore has also failed to show how counsel’s voir dire prejudiced

him. The transcript does not reveal that any potential jurors had a

fixed and definite opinion regarding Moore’s guilt or innocence or

                                  9
that they were unable to decide the case based on the evidence. To

the contrary, the jurors who were empaneled said they could decide

the case impartially. See Cade, 

 (4) (defendant not

prejudiced by trial counsel’s failure to strike juror when there was

no indication juror was unable to be impartial). Because Moore has

shown neither deficient performance nor prejudice, his claim of

ineffective assistance on this ground fails.

     (b) Moore next contends that trial counsel rendered ineffective

assistance by making misstatements of both law and fact in his

opening statement. Moore raises two alleged errors. First, trial

counsel said several times that Moore was charged with “actually

shooting” Hindsman, and that the jury should find him not guilty

“because there will be no evidence on all of these charges that he

shot anyone”—all of which, Moore argues, failed to address the

State’s theory that Young was the shooter and Moore was guilty as

a party to the crime. And trial counsel also told the jury, incorrectly,

that it was Young, not Moore, who said “do what you do” before

Young fired at the victims.

                                  10
     Even assuming that trial counsel erred in these ways and that

he rendered deficient performance, Moore has not shown that these

misstatements caused him prejudice. To begin with, the jury was

instructed that opening statements are not evidence, but rather are

“a preview or outline of what [counsel] expect[s] the evidence to be.”

And trial counsel mitigated the effect of any misstatements in his

opening statement through his conduct over the balance of the trial.

Although counsel’s opening statement failed to address Moore’s

potential party-to-a-crime culpability, his cross-examination and

closing argument focused on precisely that issue. Trial counsel

extensively cross-examined Young about his testimony that he

“snatched” the gun from Moore. During his cross-examination,

Young agreed that when he “snatched” the gun, “it was such a quick

movement [that Moore] had no time to even think about [it].” Trial

counsel further elicited from Young that Moore never encouraged

him to shoot anyone and that he and Moore never discussed bringing

a gun to the fistfight. Trial counsel later returned to the “snatching”

question with two other witnesses. And in his closing argument,

                                  11
trial counsel emphasized Young’s “snatching” testimony yet again.

Trial counsel told the jury, “[I]f you think [Moore] gave him the gun

to shoot that young man, then he’s guilty. On the flip side, . . . if you

believe, like [Young] said, I snatched it from him, then he is not

guilty of murder because that was done solely without his knowledge

and [in] a quick, brief second.”

     Given that trial counsel’s cross-examination and closing

argument focused on showing that Moore was not a party to the

crime, Moore has not established a reasonable probability that

counsel’s failure to bring up party-to-the-crime culpability in his

opening statement affected the outcome of trial. See Williams v.

State, 

 (3) (b) (

) (2013) (no

prejudice from trial counsel’s mistake of fact in opening statement

when trial court instructed jury that opening statements are not

evidence).

     As to trial counsel’s misattribution to Young of the phrase “do

what you do,” the trial testimony established that Moore was in fact

the one who spoke the phrase. Moore has not shown that counsel’s

                                   12
momentary misattribution in his opening statement was reasonably

likely to have affected the outcome of trial, especially given the trial

court’s jury instruction that opening statements are not evidence.

Moore’s claim of ineffective assistance on this ground fails. See

Williams, 

 (3) (b).

     (c) Moore contends that trial counsel was ineffective by failing

to object to the testimony of Hindsman’s grieving mother. In her

testimony, the mother, Latisha Calhoun, identified a photo of

Hindsman. She went on to describe how she learned of Hindsman’s

death, how devastated she was, how Hindsman was a “good kid” and

a good older brother, and how a candlelight vigil was held in his

honor. Moore argues that all of this testimony other than the

identification was irrelevant and an attempt to gain the jury’s

sympathy.

     Moore has not shown that trial counsel’s failure to object to

Calhoun’s testimony was deficient performance. At the motion-for-

new-trial hearing, trial counsel testified that he generally would not

object to a family member testifying that she was overcome with

                                  13
grief, “because that’s normally most cases,” but that he would object

if a witness started crying on the stand, to minimize prejudice to his

client. Striking that balance falls within the bounds of reasonable

strategy. See Kilpatrick v. State, 

 (2) (

)

(2003) (noting that the “danger” of having a family member identify

the photograph of the decedent “is the risk of a family member’s

emotional outburst during trial”). And trial counsel might very well

have wanted to avoid the appearance of attacking a grief-stricken

witness. See 

 (2) (reasonable strategy to “avoid

appearing insensitive to the mother, who was a sympathetic

witness”). So Moore’s claim of ineffective assistance on this ground

also fails.

      (d) Moore also contends that his trial counsel was ineffective in

failing to adequately cross-examine three witnesses for the State—

victims Marshall and Benard, as well as Young—about the pending

criminal charges they faced. Marshall was charged with possession

of marijuana with intent to distribute, Benard had at least three

open felony indictments for marijuana possession and distribution,

                                  14
and Young was charged with Hindsman’s murder and related

crimes. All three testified about their charges at trial. Marshall and

Benard both stated—Marshall on direct examination, and Benard

on cross—that no one had promised them anything in exchange for

their testimony. And Young testified that he had pleaded guilty, and

that as part of his plea deal he would be sentenced to 35 years, to

serve 30, in exchange for his truthful testimony. Marshall and

Benard did not say what sentences they faced, but Young testified

that his charges carried a maximum sentence of life plus 75 years.

     Moore now contends that trial counsel should have impeached

these witnesses by pressing them further about their pending

charges. He argues that trial counsel should have asked Marshall

and Benard about their possible sentences. And he contends that

trial counsel should have elicited that Young actually faced a

sentence of life without parole—not life plus 75 years—and that

Young was therefore underrepresenting the benefit he received by

testifying.

     Again Moore has not shown deficient performance. The scope

                                 15
of an attorney’s cross-examination is “grounded in trial tactics and

strategy, and will rarely constitute ineffective assistance of counsel.”

McCoy v. State, 

 (2) (

) (2018) (citation

and punctuation omitted). See also Watts v. State, 

, 460-

461 (2) (

) (2020) (reasonable strategy not to impeach

witness with variation in testimony when other avenue of cross-

examination could have been more effective); Lakes v. State, 

 (2) (

) (1996) (reasonable strategy not to

impeach witnesses on prior convictions to avoid emphasis on drug

activity as a motive for murder). Here, Marshall, Benard, and Young

all testified about the “relevant issue”: whether they “entertained

any belief of personal benefit from testifying favorably for the

prosecution.” State v. Vogleson, 

 (1) (

)

(2002). As to Marshall and Benard, once it was established that they

received no benefit in exchange for their testimony, trial counsel

could reasonably have decided not to get into the specific sentences

they faced, especially given that the trial court could have prohibited

that line of questioning. See Redding v. State, 

 (2)

                                  16
(a) (

) (2020) (within trial court’s discretion to prohibit

questions about witness’s possible sentence when witness has no

plea deal with State that requires his testimony). And as for Young,

trial counsel could have reasonably determined that there was no

material difference between a sentence of life without parole and a

sentence of life plus 75 years when compared with 35 years with 30

to serve, and so Young did not materially underrepresent the benefit

he received by testifying. See, e.g., Benton v. Hines, 

(2) (

) (2019) (counsel’s failure to elicit witness’s

maximum possible sentence did not prejudice defendant because

“the marginal value of additional impeachment” based on that

sentence would not “have made a difference in the jury’s assessment

of [the witness’s] credibility”).

     Because Moore has not shown that trial counsel performed

deficiently by failing to further cross-examine these witnesses, his

claim of ineffective assistance on this ground fails.3


     3 We also reject Moore’s argument that he was prejudiced by the
cumulative effect of trial counsel’s deficient performance. “Assessing

                                    17
      3. Moore next contends that the trial court deprived him of due

process by intimidating Young into testifying for the State, which

Moore characterizes as a violation of Webb v. Texas, 

 (

, 34 LE2d 330) (1972).

      (a) Before trial, Young had agreed to plead guilty and testify

against Moore. But just before opening statements, the trial court

reported that Young had decided not to testify and that his plea deal

was therefore void. Then, in an unrecorded bench conference on the

third day of trial, Young explained that he still wanted to plead

guilty, but that he did not want to testify because of threats from

other inmates in the jail. The next day, Young was brought into

court, outside the presence of the jury, and his counsel said that

Young had changed his mind again and that he did want to testify.

The trial court said that it would reinstate the plea deal if Young


cumulative prejudice is necessary only when multiple errors have been shown.”
Scott v. State, 

 (3) (d) (

) (2020). Moore has not
established multiple instances of deficiency. Of the four claims of ineffective
assistance that he raises, we have concluded that in three of them—trial
counsel’s conduct of voir dire, failure to object to the testimony of the victim’s
mother, and failure to further cross-examine State witnesses about their
pending charges—he failed to show that trial counsel’s performance was
deficient.
                                       18
testified. At that point the State suggested that the deal was no

longer “on the table.” But the trial court told Young that if he

testified, he would get the benefit of the deal, even over the State’s

objection. Young ultimately agreed to testify, and after he testified,

the trial court found that he had complied with the plea deal and

reinstated it.

     (b)   Assuming without      deciding that the      trial court’s

involvement in Young’s decision to testify violated Moore’s due

process rights, the error was harmless to Moore. A constitutional

error is harmless “if the State can prove beyond a reasonable doubt

that the error did not contribute to the verdict, such as when the

evidence at issue is cumulative of other properly-admitted evidence

or when the evidence against the defendant is overwhelming.”

Renfro v. State, 

 (2) (

) (2022) (citation

and punctuation omitted). An error can also be harmless if it is

“beneficial to the defendant.” Lindsey v. State, 

 (2)

(

) (2007) (citation and punctuation omitted). When

applying harmless-error analysis, we “review the evidence de novo

                                 19
and weigh it as a reasonable juror would, rather than reviewing it

in a light most favorable to upholding the jury’s verdicts of guilty.”

Hamilton v. State, 

 (3) (

) (2020) (citation

and punctuation omitted).

     Here, it is beyond a reasonable doubt that Young’s testimony

did not contribute to the verdict. Most of Young’s testimony about

Moore merely restated facts that were already established and

undisputed: that Moore was present at the scene, that Moore had a

gun, and that Young used that gun to shoot Hindsman. Young’s

testimony on these points was cumulative of similar testimony from,

among others, Dunn and Carson. See Renfro, 

 (2)

(harmless error to admit statements that defendant made to police

before he was given Miranda warnings, when those statements were

cumulative of other evidence). As for Young’s testimony about the

main contested issue—whether Moore was a party to the crime

(because he gave the gun to Young) or merely present (because

Young took the gun without his permission)—his testimony was, if

anything, helpful to Moore. As discussed in Division 1 (b), Young

                                 20
testified that he “snatched” the gun from Moore, and that he did so

quickly and without Moore’s knowledge. Young also testified that

when he shouted to Moore to give him the gun, Moore was standing

by the open door of the car, “screaming” at Young and his friends

that “it’s time to go . . . just let it go. Everybody let it go. Come on.

Let’s go.” To a reasonable juror, that testimony would have tended

to minimize Moore’s involvement in the crime. Indeed, Moore made

Young’s testimony about “snatching” the gun a centerpiece of his

defense that he was not guilty as a party to the crime. Because

Young’s testimony was at worst cumulative of other evidence, and

was in many ways favorable to Moore, any error in the trial court’s

involvement in Young’s plea negotiations was harmless beyond a

reasonable doubt. See Renfro, 

 (2).

     4. Finally, Moore contends that the trial court improperly

“sided with the State” on two occasions at trial—a pre-voir dire

attempt to persuade Moore to plead guilty, and a brief comment at

trial made after sustaining Moore’s hearsay objection. Based on

Moore’s briefing, we construe this as an argument that the trial

                                   21
court violated OCGA § 17-8-57 (a) (1), which deems it “error for any

judge, during any phase of any criminal case, to express or intimate

to the jury the judge’s opinion as to whether a fact at issue has or

has not been proved or as to the guilt of the accused.”4 To violate

this statute, “the trial court’s comments must pertain to a disputed

issue of fact.” State v. Gardner, 

 (

)

(2010).

      When we review alleged violations of OCGA § 17-8-57, our

standard of review depends on the type of violation. If the trial court

expresses an opinion as to the ultimate guilt of the accused, it is

reversible error, and the defendant is entitled to a new trial. See

OCGA § 17-8-57 (c). But if the trial court merely expresses an

opinion as to whether a fact at issue has been proven, then the



      4 We address this claim as an alleged violation of OCGA § 17-8-57 (a)

because the single case Moore cites in support of this argument, State v.
Anderson, 

 (

) (2010), addresses that statute. Moore
also states at the end of the section of his brief on this argument that his “right
to due process was denied,” but he makes no further or specific argument on
this point and cites no authority in support of a due process argument, so we
deem any such claim abandoned. See Supreme Court Rule 22. We also express
no opinion about whether the trial court’s statements may have violated any
other legal requirement.
                                        22
complaining party must make a timely objection. See OCGA § 17-8-

57 (a) (2) and (b). Absent a timely objection—and there was no

objection here—we review only for plain error. OCGA § 17-8-57 (b).

To show plain error, an appellant must show that (1) the alleged

error was not affirmatively waived, (2) it was obvious beyond

reasonable dispute, and (3) it affected the appellant’s substantial

rights, which ordinarily means showing that it affected the outcome

of the trial. See Hawkins v. State, 

 (3) (

) (2018). Finally, if those three prongs are satisfied, the appellate

court has the discretion to remedy the error only if the error

“seriously affect[ed] the fairness, integrity, or public reputation of

judicial proceedings.” 

 (citation and punctuation omitted).

     We see no error, let alone plain error, in the two trial court

statements that Moore calls out, because neither of them violates

OCGA § 17-8-57 (a) (1). The first statement, in which the trial court

recounted some of the alleged circumstances of the crime and

explained the potential sentence Moore faced if convicted, took place



                                  23
before voir dire and without any potential jurors in the courtroom.5

We must reject Moore’s argument as to this statement on that basis

alone: OCGA § 17-8-57 (a) (1) forbids judges from expressing or

intimating their opinions about whether facts have been proved “to

the jury,” so it does not apply to comments made outside the

presence of the jury. See Dugar v. State, 

 (1) (c) (

) (2022).

      The second statement that Moore highlights did not violate

OCGA § 17-8-57 (a) (1), either. During the direct examination of



      5 At that time, the trial court asked Moore whether he still intended to

have a jury trial. The trial court said, “I’m not trying to scare you. I’m just
trying to tell you the real deal.” The trial court then reviewed some of the
evidence against Moore, and said:
             I’ve tried 175 felony jury trial[s] and probably 140 of those
      were murders, and I have had less than five[,] maybe three at the
      most[,] not-guilty verdicts. And that’s when all the tears flow
      because right now you have your fate in your own hands and
      tomorrow you put your fate in the hands of 12 strangers. Now, you
      may not have fired the gun, but under Georgia’s party to a crime
      [law], you handed him the gun and saying do what you got to do
      and you taking the gun back from him, makes you just as guilty
      under the law as if you had fired the shots under party to a crime.
      Now, you have two fine lawyers with fine reputations. But if you
      get convicted of felony murder, it’s an automatic life sentence and
      you have to serve 30 years before you can be paroled and they
      parole about 5 percent a year. Now, maybe the State will give you
      an offer that’s better than they gave the actual shooter.
                                      24
Calhoun, the victim’s mother, trial counsel made a hearsay objection

when the witness was describing how she learned of Hindsman’s

death. The trial court said, “All right. I think it is hearsay. Let’s see

if we can figure a way around it.” OCGA § 17-8-57 (a) (1) “does not

generally extend to colloquies between the judge and counsel

regarding the admissibility of evidence.” Pyatt v. State, 

 (3) (

) (2016) (citation and punctuation omitted)

(addressing former version of statute with materially similar

language). Moore contends, however, that this remark shows that

the trial court “was trying to help the State present evidence with

its witnesses.” That strikes us as an over-reading of this remark.

Even assuming the court’s use of the pronoun “we” suggested the

court was “on the State’s side,” but see Gardner, 

(no violation of OCGA § 17-8-57 (a) (1) when the trial court asked

the State whether it had proven venue, the State replied that it had

not, and the trial court said, “Why don’t we go ahead and do that

before we forget it[?]”), the court gave no direction about how the

State should present Calhoun’s testimony, and the court said

                                   25
nothing further on the subject. And in any event, Moore does not

explain how this remark “pertain[ed] to a disputed issue of fact,” id.

at 634-635, or intimated “the judge’s opinion as to whether a fact at

issue has or has not been proved or as to the guilt of the accused,”

OCGA § 17-8-57 (a) (1).

     Because neither of the trial court’s statements expressed or

intimated to the jury the court’s opinions as to whether any facts in

issue had been proved or as to Moore’s guilt, his claim of error on

this ground fails.

     Judgment affirmed. All the Justices concur.




                                 26
                    Decided December 20, 2022.

     Murder. Fulton Superior Court. Before Judge Schwall.

     Zell & Zell, Rodney S. Zell, for appellant.

     Fani T. Willis, District Attorney, Lyndsey H. Rudder, Kevin C.

Armstrong, Juliana Y. Sleeper, Assistant District Attorneys;

Christopher M. Carr, Attorney General, Patricia B. Attaway Burton,

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

General, Emily R. Polk, Assistant Attorney General, for appellee.




                                 27