State v. Nickerson

749 S.E.2d 768, 324 Ga. App. 576, 2013 Fulton County D. Rep. 3173, 2013 WL 5543577, 2013 Ga. App. LEXIS 815
CourtCourt of Appeals of Georgia
DecidedOctober 9, 2013
DocketA13A1257
StatusPublished
Cited by3 cases

This text of 749 S.E.2d 768 (State v. Nickerson) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Nickerson, 749 S.E.2d 768, 324 Ga. App. 576, 2013 Fulton County D. Rep. 3173, 2013 WL 5543577, 2013 Ga. App. LEXIS 815 (Ga. Ct. App. 2013).

Opinion

ELLINGTON, Presiding Judge.

A Muscogee County jury found Hendrick Nickerson guilty beyond a reasonable doubt of voluntary manslaughter, OCGA § 16-5-2 (a); and possession of a firearm during the commission of a crime against the person of another, OCGA § 16-11-106 (b) (1). The Superior Court of Muscogee County1 granted Nickerson’s motion for new trial based upon its finding that the judge who presided over the trial had impermissibly commented on the evidence, in violation of OCGA § 17-8-57, when he posed two questions to Nickerson during his testimony in the jury’s presence. The State appeals,2 arguing that the presiding judge’s questions did not violate OCGA § 17-8-57, and, as a result, Nickerson was not entitled to a new trial. After conducting a de novo [577]*577review of the record and the superior court’s ruling,3 we conclude that the superior court erred and, thus, reverse the order granting Nickerson a new trial.

Viewed in favor of the jury’s verdict,4 the evidence showed that, on March 22, 2007, Nickerson was at his girlfriend’s house when she and the victim’s girlfriend began arguing. When the argument was over, Nickerson left the house and started walking toward his aunt’s house about two blocks away. Before he got there, however, the victim drove up and parked near him, exited the car, and walked toward Nickerson while holding a handgun. Nickerson, who had a handgun in his back pocket, backed away from the victim, who continued to walk toward him, while the two men argued loudly and cursed at one another. Shortly thereafter, as the victim turned away from Nicker-son and appeared to be walking back to his car, Nickerson fired two shots toward the victim. One of the bullets hit the victim in the middle of his back, grazed his spinal column, esophagus, and aorta, and lodged in his heart; he later died as a result of the wound. When Nickerson realized that he had shot the victim, he approached him and repeatedly apologized to him before leaving the scene. According to a bystander, before police officers arrived, an unidentified man approached the victim, picked up the handgun that was on the ground near the victim’s hand, and ran away with it.5

Nickerson turned himself in to the police the next day, and the State charged him with murder, felony murder, voluntary manslaughter, and possession of a firearm during the commission of a crime. At trial, the State called an eyewitness to the entire encounter who testified that the victim’s back was turned toward Nickerson and that Nickerson was facing the victim when he (Nickerson) raised his arm and shot the victim. She testified that the victim never pointed his handgun at Nickerson or fired it. The State also showed that police officers found a “live” .380 bullet (i.e., one that had not been fired) next to the victim’s car, where the victim had collapsed after being wounded; two empty .380 shell casings that had been ejected from a semiautomatic handgun thirty-five to forty feet from the car; and another “live” .380 bullet about five or six feet from the empty casings.

Nickerson testified at trial and admitted that he shot and killed the victim, but he claimed that he did so in self-defense. According to [578]*578Nickerson, the victim walked toward him with a handgun while threatening to kill him. While Nickerson backed away, the victim raised his arm and pointed his gun at him. The gun must have malfunctioned, however, because Nickerson heard a “clicking” sound and saw the victim turn to his side and try to fix his gun. Nickerson then turned around to leave the scene, but, as he did so, he saw the victim turning back toward him and was afraid that the victim was going to shoot him. As a result, while he was still facing away from the victim, Nickerson pointed his gun over his shoulder and fired behind him, toward the victim.

1. On appeal from the superior court’s grant of Nickerson’s motion for new trial, the State argues that the presiding judge did not violate OCGA § 17-8-57 when he asked Nickerson to repeat a physical demonstration showing how he had fired the gun and when he asked Nickerson how many times he shot the gun.

Under OCGA § 17-8-57, “[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.” The statute also states that,

[s]hould 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.

Thus,

a violation of OCGA § 17-8-57 will always constitute “plain error,” meaning that the failure to object at trial will not waive the issue on appeal. On appeal, the issue is simply whether there was such a violation. If so, it is well established that the statutory language is mandatory and that a violation of OCGA § 17-8-57 requires a new trial.

(Citation and punctuation omitted.) Linson v. State, 287 Ga. 881, 883 (2) (700 SE2d 394) (2010) (“Such reversal is required, though, only when such comments are made in the presence of the jury.”) (citations and punctuation omitted). See also Lockaby v. State, 265 Ga. App. 527, 528 (1) (594 SE2d 729) (2004) (noting that the purpose of OCGA § 17-8-57 is to prevent the jury from being improperly influenced by the trial judge).

However,

it is well settled that a trial court may propound a clarifying question in order to develop the truth of a case without [579]*579violating [OCGA § 17-8-57], The extent of such questioning is a matter of the trial court’s discretion, as long as the questioning does not intimate an opinion as to what has or has not been proved or as to the guilt of the accused.

(Citation and punctuation omitted.) Littlejohn v. State, 320 Ga. App. 197, 203 (2) (739 SE2d 682) (2013). See Mullins v. State, 269 Ga. 157, 158-159 (3) (496 SE2d 252) (1998) (accord).

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Bluebook (online)
749 S.E.2d 768, 324 Ga. App. 576, 2013 Fulton County D. Rep. 3173, 2013 WL 5543577, 2013 Ga. App. LEXIS 815, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-nickerson-gactapp-2013.