author: Branch, Judge. ELLINGTON, Presiding Judge,

text:
    A16A0075.
    HAYGOOD v. THE STATE.
    (789 SE2d 404)
   Branch, Judge.

On appeal from his conviction for disorderly conduct and misdemeanor obstruction of a law enforcement officer, Eric Haygood argues that the evidence does not support the verdict and that the trial court erred when it refused his request for a jury instruction as to a person’s right to use proportionate force in resisting an arresting officer’s use of excessive force. We find no error and affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004) (citation omitted). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

So viewed, the record shows that at around 3:00 a.m. on December 17, 2009, Haygood’s brother heard Haygood having a “loud conversation” in the bedroom Haygood shared with their elderly father, who suffered from the early stages of dementia. The brother asked Haygood and their father to quiet down so they would not wake up their mother and his teenaged daughter, who were sleeping in the other bedroom. The brother testified that Haygood “got agitated” with him and told him to leave the room and keep out of it. Haygood then went toward the kitchen, followed by their father and their mother, who was now out of bed complaining about the noise. Hay-good’s father told the brother to call the police.

The brother put on a coat and went outside to call 911. He told a dispatcher that Haygood was “high” and was arguing and waking up the whole house. He told the dispatcher that he told Haygood to quiet down and that Haygood then went in the kitchen and got a knife. He also told the dispatcher that no one could go to sleep because they did not feel safe. Haygood and his father both came outside. The brother called 911 a second time and told the dispatcher that the police needed to hurry up and come out because Haygood was standing out in the street “with his hand up under his coat [as if] he had a gun,” acting as if he was “fixing to sho[o]t [their] daddy out in the street right now.”

Officer M. W. reached the residence first, at 4:00 a.m., followed closely by three other officers. Officer M. W. testified that he encountered Haygood’s brother outside, and the brother told him that Haygood was threatening him and their father and that Haygood went into the kitchen and retrieved a knife and, with the knife in hand, began verbally assaulting their father.

After Officer M. W. spoke with Haygood’s brother outside, he went into the house with Officer R. L. to speak with Haygood and assess the situation. Officers N. M. and A. R. arrived next. Officer M. W. and Officer R. L. testified that Haygood was in the hallway, and they asked to speak with him outside. Haygood first asked why, and they did not give him a reason but reiterated their request. Haygood then responded vehemently that he was not going anywhere and yelled that he was not going to jail. Officer M. W. testified that this response indicated that verbal commands were not enough and the situation was “about to be physical.” Officer R. L. testified that, because Haygood had been causing a confrontation in his parents’ house and they wanted him removed, he had to leave the premises. Officer R. L. testified that, after Haygood said he was not going anywhere, the officers “decided to go hands-on with him.” Officer M. W. testified that he grabbed Haygood, who yanked away and hit Officer R. L. near the shoulder with a closed fist; Officer N. M. also testified that Haygood hit Officer R. L. with a closed fist. Officer R. L. testified somewhat differently that, when they grabbed Haygood, Haygood pulled his arm back and his elbow hit Officer R. L. in the chest.

As the struggle escalated, the officers and Haygood fell through the doorway, into the living room, and onto a coffee table; Haygood landed face-down on the floor with his hands underneath him. Officer N. M. put his knee against Haygood’s back, pinning him to the ground. According to Officer M. W. and Officer R. L., they instructed Haygood to show his hands, but he failed to do so and continued to struggle and curse. As Haygood appeared to reach for a metal dumbbell under a nearby sofa, the officers struck Haygood with their batons. The officers then handcuffed Haygood and searched him; he was not armed.

1. Haygood first contends that there is no evidence to support his convictions for disorderly conduct and misdemeanor obstruction. We disagree.

(a) Disorderly conduct. Under OCGA § 16-11-39 (a) (1), a person commits the offense of disorderly conduct when that person “[a]cts in a violent or tumultuous manner toward another person whereby such person is placed in reasonable fear of the safety of such person’s life, limb, or health[.]” The State charged Haygood with “act[ing] in a violent and tumultuous manner towards [his brother and his father,] whereby said [persons] were placed in reasonable fear of said person^’] life, limb, and health[,] by using threatening language while reaching under his coat as if he had a weapon[.]”

Although there was no first-person testimony regarding whether Haygood’s conduct placed his father and brother in fear for their safety, we cannot say that there is no evidence that Haygood’s conduct placed them in such fear, given the brother’s statement to the 911 dispatcher that the home’s residents felt unsafe, the fact that the father told the brother to call the police, the urgency of the brother’s request for police assistance, and the other circumstances presented. Notwithstanding his later recantation at trial, the brother’s recorded statements to the 911 dispatcher and his statement to the first responding officer (as testified to at trial by that officer) provided some evidence from which the jury could infer that Haygood acted in a “violent and tumultuous” manner by using threatening language toward them while holding a knife. It was for the jury to resolve any conflicts between the brother’s out-of-court statements and his trial testimony Eschena v. State, 203 Ga. App. 621, 622 (3) (417 SE2d 214) (1992). It was also for the jury to decide whether the father’s and brother’s fear was reasonable. See Mayhew v. State, 299 Ga. App. 313, 315-316 (1) (a) (682 SE2d 594) (2009) (evidence supported finding that the victim was placed in reasonable fear for her safety where the defendant followed her around a drug store, yelled in her face, pointed a finger at her, and called her several hateful epithets).

For all these reasons, the evidence supported Haygood’s conviction for disorderly conduct.

(b) Misdemeanor obstruction. The obstruction statute, OCGA § 16-10-24, provides in relevant part:

(a) Except as otherwise provided in subsection (b) of this Code section, a person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.
(b) Whoever knowingly and willfully resists, obstructs, or opposes any law enforcement officer ... in the lawful discharge of his or her official duties by offering or doing violence to the person of such officer ... is guilty of a felony and shall, upon conviction thereof, be punished by imprisonment for not less than one nor more than five years.

The indictment charged Haygood with felony obstruction of a law enforcement officer in that he “knowingly and willfully resisted], obstructed] or oppos[ed] [R. L.], a law enforcement officer with the Atlanta Police Department, in the lawful discharge of said officer’s official duties by doing violence to said person, by striking said officer[.]” The jury found Haygood guilty of the lesser included offense of misdemeanor obstruction.

Here, the evidence authorized the jury to find that, when Officer R. L. and the other responding officers first approached Haygood, they were lawfully investigating the domestic disturbance reported by Haygood’s brother, that his conduct interfered with the performance of the officers’ duties, and that by resisting them as they performed those duties, Haygood obstructed or hindered the officers. This evidence was sufficient to sustain his conviction for misdemeanor obstruction. See Dudley v. State, 264 Ga. App. 845, 846 (1) (b) (592 SE2d 489) (2003) (defendant’s striking of officer who was placing that defendant under arrest was sufficient to present a jury question on an obstruction charge).

2. Haygood contends that the trial court erred in refusing to give his requested jury instruction regarding a person’s right to use proportionate force against an officer’s excessive use of force. We disagree.

Where, as here, a party has timely objected to a trial court’s decision as to a jury instruction, we review that decision de novo. Johnson v. State, 323 Ga. App. 65, 68 (2) (744 SE2d 921) (2013), citing Collier v. State, 288 Ga. 756, 761 (1) (a) (707 SE2d 102) (2011) (Nahmias, J., concurring specially) (review of an objected-to jury charge is de novo, whereas “plain error” review applies when no objection is lodged).

As we recently noted, the obstruction statute “was amended in 1986, see Ga. L. 1986, p. 484, such that the offense of misdemeanor obstruction under the new statute no longer contains the element[ of violence as does the offense of felony obstruction.” Hoglen v. State, 336 Ga. App. 471, 475 (2), n. 3 (784 SE2d 832) (2016) (citation and punctuation omitted). The two elements of felony obstruction are thus (1) knowingly and wilfully offering or doing violence to an officer (2) in the lawful discharge of that officer’s duties, whereas the two elements of the lesser included offense of misdemeanor obstruction are (1) knowingly and wilfully resisting, obstructing or opposing an officer (2) in the lawful discharge of that officer’s duties. OCGA § 16-10-24 (a), (b); see also Drew v. State, 211 Ga. App. 688 (440 SE2d 82) (1994) (identifying misdemeanor obstruction as a “lesser included offense” of felony obstruction).

The record shows that Haygood requested the suggested pattern charge on a person’s right to resist police’s excessive force by the use of proportionate force, as follows:

A police officer is authorized to use in making a lawful arrest only that degree of force that is reasonably necessary to accomplish the arrest. The mere fact that a lawful arrest is being made does not give the officer the right to use excessive force or an unlawful degree of force upon the person being arrested. A person being arrested, even though the arrest itself is lawful, has the right to resist the use of excessive and unlawful force by those making the arrest to the extent that the person reasonably believes that the degree of resistance used is necessary to defend against the officer’s use of unlawful or excessive force. In resisting, the person being arrested would not be authorized to use force that is unlawful or disproportionate to the amount of force necessary to prevent the unlawful force being used against the person.

The trial court determined that “the requested jury charge on justification was not supported by the evidence at trial because Haygood failed to admit to the charged offenses.” In its order denying Hay-good’s motion for new trial, the trial court repeated that the charge was not authorized because “Haygood failed to admit to” using force against the officers engaged in lawfully arresting him.

There is no dispute that the arrest at issue here was accompanied by probable cause and was therefore lawful. Haygood, who did not testify, never admitted to using any force against the officers. Hay-good’s mother testified that she heard him ask them, “What have I done? I’m not doing anything,” and Haygood’s brother testified that because Haygood’s arms were pinned behind his back, it was “impossible” for Haygood to strike or kick any of the officers. In Haygood’s closing argument, he also denied that he had done violence to any of the officers.

A defendant who does not admit that he resisted an arrest forcibly is not entitled to a charge on his alleged right to do so. Ojemuyiwa v. State, 285 Ga. App. 617, 620 (1) (647 SE2d 598) (2007) (because defendant charged with obstruction did not admit to acts of striking or kicking an officer, she was not entitled to a charge on her justified use of force); Allen v. State, 237 Ga. App. 744, 745 (3) (516 SE2d 788) (1999) (where a defendant did not claim that he resisted officers’ attempts to arrest him, a charge as to “the right of a person to resist an illegal arrest” was “not authorized by the evidence”) (citation and punctuation omitted). Because Haygood did not admit to using any force against the officers, he was not entitled to a charge on his allegedly justified use of reasonable force to resist his arrest, and the trial court did not err in refusing his request. Ojemuyiwa, 285 Ga. App. at 620 (1); Allen, 237 Ga. App. at 745 (3); see also Smith v. State, 301 Ga. App. 670, 675 (3) (b) (iii) (688 SE2d 636) (2009) (defendant was not prejudiced by counsel’s failure to request a charge on resisting excessive force when defendant testified that he did not resist the arresting officer); Love v. State, 194 Ga. App. 601, 602 (2) (391 SE2d 447) (1990) (trial court’s refusal to give a charge on resisting an unlawful arrest was not error when defendants “did not admit commission of the alleged obstructionist acts but, rather, denied having committed those acts”).

For all these reasons, the trial court did not err when it denied Haygood’s motion for new trial.

Judgment affirmed.

Doyle, C. J., Andrews, P. J., Dillard, Ray and Mercier, JJ., concur. Ellington, P. J., Phipps, P. J., and Peterson, J., concur in Division 1 and dissent in Division 2.

ELLINGTON, Presiding Judge,

concurring in part and dissenting in part.

I concur fully in Division 1. For the reasons explained below, I respectfully dissent as to Division 2.

I believe that according to binding precedent the jury instruction that Haygood requested, regarding a person’s right to resist the use of excessive and unlawful force during the course of an arrest, concerns a challenge to the sufficiency of the evidence supporting an essential element of the offense of obstruction of an officer. The majority errs by instead categorizing the charge Haygood requested as concerning the affirmative defense of justification. This error led to the majority’s finding no error in the trial court’s determination that the requested jury charge “was not supported by the evidence at trial because Haygood failed to admit to the charged offenses.” Because the theory of the requested charge about a person’s right to resist arrest was supported by some evidence, I believe that the trial court erred and that Haygood’s conviction for obstruction of an officer should be reversed.

Under Georgia law, when a person resists being arrested, whether the person is guilty of obstruction of a law enforcement officer involves consideration of two threshold factors: whether the basis for the arrest was lawful and whether the arrest was carried out in a lawful manner. As we have explained:

A person commits the offense of obstruction of a law enforcement officer when he “knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties.” OCGA § 16-10-24 [(a)]. A lawful arrest is within the lawful discharge of an officer’s duties. In a lawful arrest based upon probable cause, an officer has the right to use that force reasonably necessary to effect the arrest, and the defendant does not have the right to resist the use of such reasonable force. If an arrest is unlawful, however, the defendant has the right to resist the unlawful arrest with all force reasonably necessary to prevent the arrest. But even in a lawful arrest, an officer may not use more force than is reasonably necessary under the circumstances. And when an officer uses excessive force, a defendant has the right to resist to the extent reasonably necessary. ... When, as here, a charge of obstruction arises during the course of an arrest, the defendant may defend against the charge by arguing that he was justified in resisting because the arrest was without probable cause, or, in the alternative, because the force used against him was excessive. ... [A]n argument that the arrest was unlawful does not state an affirmative defense to a charge of obstruction. Rather, that argument is an assertion that the state has failed to prove an essential element of the offense — a lawful arrest.

(Citation and punctuation omitted.) Long v. State, 261 Ga. App. 478, 479-480 (1) (583 SE2d 158) (2003). In other words, when a charge of obstruction is based on a person’s conduct of resisting an arrest, for the State to carry its burden of showing that the law enforcement officer was “in the lawful discharge of his official duties,” the State must show that the arrest was based on probable cause and that it was carried out with a lawful degree of force. Long v. State, 261 Ga. App. at 479 (1).

These two factors pertinent to the lawfulness of an officer’s conduct in making an arrest — the basis for the arrest and the degree of force used — are reflected in a pair of suggested pattern jury instructions based on longstanding precedent. One instruction provides that, when the arrest itself is unlawful (the officer lacks probable cause), the person may resist the arrest with the degree of force that is reasonably necessary to prevent the arrest. The other instruction provides that a person may resist an arresting officer’s unlawful or excessive use of force with the degree of force reasonably necessary to defend against the officer’s excessive use of force.

Haygood’s requested charge followed verbatim the second of these suggested pattern jury instructions and is a correct statement of the law. As explained above and as Haygood’s counsel argued during the charge conference, the requested instruction does not concern the legal affirmative defense of justification. The majority’s analysis contradicts the clearly stated rule that an argument that a person may resist an arresting officer’s unlawful or excessive use of force goes to the essential elements of the offense of obstruction and does not equate to the affirmative defense of justification in that context. And this must be so, given the unique features of the offense of obstruction. Under the majority’s analysis, any defendant who wishes to assert a right to resist the unlawful use of force must first admit to every essential element of obstruction. It is a hollow defense indeed that requires an unqualified admission of guilt.

In summary, because Haygood sought to challenge the sufficiency of the evidence that the degree of force was lawful, which is an essential element of the offense of obstruction, I believe that we must hold that the trial court erred in finding that the requested charge was inapplicable solely on the basis that Haygood failed to admit to obstruction as charged. Long v. State, 261 Ga. App. at 479 (1).

In addition, I believe that the requested charge was supported by at least slight evidence. The jury heard evidence, though disputed in part, that four officers rousted Haygood out of bed at 4:00 a.m., refused to answer his request for a reason for their actions, then immediately grabbed him to forcibly remove him from the house, and then proceeded to pin him to the ground and beat him to the point that he soiled himself. This evidence authorized the jury to find that Haygood reasonably believed that he had the right to resist the amount of force exerted by the officers, as being excessive under the circumstances.

According to the majority, Haygood was not entitled to the requested jury instruction because he did not admit to using any force against the officers. Maj. op. at 194 (2). Although Haygood challenged the evidence that he committed felony obstruction as charged by doing violence to Officer R. L. by striking him, he did not deny resisting arrest. There is ample evidence from which the jury could find that Haygood refused the officers’ commands, including commands to “stop resisting arrest,” and struggled with the officers and physically opposed being detained. The cases cited by the majority in which the defendant testified that he or she did not resist arrest, affirmatively rejecting any argument based on the right to resist arrest, are inapposite. The burden of proof, of course, remains always with the State.

Decided July 15, 2016.

Daniel H. Petrey, for appellant.

Robert D. James, Jr., District Attorney, Gerald Mason, Assistan t District Attorney, for appellee.

Contrary to the State’s assertion, it is not manifest that Hay-good’s case as a whole was fairly presented to the jury simply because the trial court charged the jury regarding the State’s burden to prove every essential element of the crimes charged, including the element of intent. The jury instructions did not touch on the issues of the degree of force that an officer may use to effect an arrest or the circumstances under which an arrestee has the right to resist the use of force. For all the foregoing reasons, the trial court abused its discretion in refusing to give the requested charge, and I respectfully dissent to Division 2.

I am authorized to state that Presiding Judge Phipps and Judge Peterson join in this dissent.

       Although Haygood has served all of his time, his appeal is not moot because a “defendant is entitled to an opportunity to attempt to show that his conviction was invalid.” (Citations and punctuation omitted.) Chaplin v. State, 141 Ga. App. 788, 790 (1) (234 SE2d 330) (1977) (completing service of two months in custody for misdemeanor obstruction of an officer did not render appeal moot).

       The brother testified at trial that he had only “assumed” that Haygood would get a knife when he went into the kitchen and that he never actually saw Haygood with a knife. He also denied making a statement that night that Haygood had a knife in hand and was verbally abusing their father.

       See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 3.16.40 (4th ed. 2007, updated July 2015), citing Webb v. State, 159 Ga. App. 403 (283 SE2d 636) (1981).

       Citing Long v. State, 261 Ga. App. 478 (583 SE2d 158) (2003), the dissent asserts that because Haygood has challenged the sufficiency of the evidence as to his conviction for misdemeanor obstruction, he was entitled to receive his requested charge on the permissible use of force. This assertion confuses the question whether an arrest was lawful as supported by probable cause, which was conceded in the requested charge itself, with the question whether Haygood was entitled to raise the affirmative defense of the justified use of force in resisting police’s excessive force. We also note that the defendant in Long had used force to resist his arrest, and there is nothing in the case to suggest that he presented evidence to the contrary. Id. at 479-480 (1).

       See also Green v. State, 240 Ga. App. 774, 775-776 (1) (525 SE2d 154) (1999) (Where the alleged acts of obstruction of an officer consisted of the defendant’s attempts to resist arrest, and the defendant argued that the arrest was unlawful, the defendant was not asserting the affirmative defense of justification and admitting the essential elements of the crime of obstruction. Instead, the defendant was asserting that the State failed to prove an essential element of the offense, that is, that the officers were acting in the lawful discharge of their official duties by attempting to arrest her.).

       “One upon whom an illegal or unlawful arrest is being made has the right to resist the arrest with such force as is reasonably necessary to prevent the arrest.” Suggested Pattern Jury Instructions, Vol. II: Criminal Cases § 3.16.41 (4th ed. 2007, updated July 2015), citing Brooks v. State, 206 Ga. App. 485 (425 SE2d 911) (1992); Ronemous v. State, 87 Ga. App. 588 (74 SE2d 676) (1953); and Smith v. State, 84 Ga. App. 79 (65 SE2d 709) (1951).

       See maj. op. at 194, quoting Suggested Pattern Jury Instructions, Vol. II: Criminal Cases § 3.16.40, citing Webb v. State, 159 Ga. App. 403 (283 SE2d 636) (1981).

        Long v. State, 261 Ga. App. at 479 (1); Cunningham v. State, 221 Ga. App. 341, 342 (3) (471 SE2d 273) (1996) (finding a charge substantively identical to the Suggested Pattern Jury Instructions, Vol. II: Criminal Cases § 3.16.40, to be legally accurate). See also Mullis v. State, 196 Ga. 569, 577-578 (4) (27 SE2d 91) (1943) (“Even though an officer may have a legal right to make an arrest, still he can use no more force than is reasonably necessary under the circumstances, and cannot use unnecessary violence disproportionate to the resistance offered.”) (citation omitted); Bennett v. State, 169 Ga. App. 85, 86 (1) (311 SE2d 513) (1983) (accord).

       The distinction between the affirmative defense of justification and the right to resist an unlawful arrest was recognized in one of the cases cited in the majority. See Ojemuyiwa v. State, 285 Ga. App. 617, 619-620 (1) (647 SE2d 598) (2007) (holding that, under the circumstances, the affirmative defense of justification was inapplicable); id. at 624 (5) (b) (noting that the defendant raised the defense of justification, and that the defense was inapplicable, and declining to consider her argument that trial counsel should have also requested a jury charge on the law regarding the right to resist an unlawful arrest, because the issue was not raised in the court below and preserved for appellate review). See also Webb v. State, 159 Ga. App. at 403-404 (1).

       “To authorize a jury instruction on a subject, there need only be produced at trial slight evidence supporting the theory of the charge. Whether the evidence presented is sufficient to authorize the giving of a charge is a question of law.” (Citations omitted.) Davis v. State, 269 Ga. 276, 279 (3) (496 SE2d 699) (1998). “Appellate review of the jury charge is de novo.” (Citation omitted.) Jordan v. State, 322 Ga. App. 252, 255 (4) (a) (744 SE2d 447) (2013).

       Count 1 of the indictment charged Haygood with “knowingly and willfully resist [ing], obstmct[ing] or opposing] [R. L.], a law enforcement officer with the Atlanta Police Department, in the lawful discharge of said officer’s official duties by doing violence to said person, by striking said officer.”

        See Long v. State, 261 Ga. App. at 479 (1) (where the evidence showed that the defendant disobeyed an officer’s commands, shouted obscenities, wriggled to get away, and fled, the trial court correctly charged the jury regarding the right to resist an arrest not based on probable cause and to resist an arrest carried out using excessive force).

        Smith v. State, 301 Ga. App. 670, 675 (3) (b) (iii) (688 SE2d 636) (2009) (the defendant testified that he did not strike the officer as charged and that he did not resist arrest); Ojemuyiwa v. State, 285 Ga. App. at 619-620 (1) (the defendant testified that she did not strike and kick the officer as alleged and that she did not otherwise resist arrest); Allen v. State, 237 Ga. App. 744, 745 (3) (516 SE2d 788) (1999) (the defendant testified that he did not kick or hit the officers and denied resisting arrest); Love v. State, 194 Ga. App. 601, 602 (2) (391 SE2d 447) (1990) (the defendants testified that they did not commit any of the alleged obstructionist acts).

        Benjamin v. State, 322 Ga. App. 8, 13 (2) (b) (743 SE2d 566) (2013).

        Chase v. State, 277 Ga. 636, 640 (2) (592 SE2d 656) (2004) (reversal required where jury instructions failed to provide the jury with the proper guidelines for determining guilt or innocence of the charged offense); Carroll v. State, 293 Ga. App. 721, 723 (1) (667 SE2d 708) (2008) (it is essential that the court’s instructions provide the jury with an understanding of the essential elements of the crimes charged in order to determine whether the State has met its burden of proof beyond a reasonable doubt; reversal required where the trial court did not instruct the jury on substantive points or issues involved in the case).


source: Caselaw Access Project

author: MILLER, Presiding Judge. McFADDEN, Judge,

license: Public Domain

text:
    A16A0092.
    McDUFFIE v. OCMULGEE EMC et al.
    (789 SE2d 415)
   MILLER, Presiding Judge.

Kasabian McDuffie injured his right knee in 2009 while working as a meter reader/right-of-way laborer for Ocmulgee EMC (“EMC”), and EMC initially paid him workers’ compensation indemnity benefits. EMC subsequently suspended those benefits and then fired McDuffie for falsely omitting his prior knee injury and his permanent sedentary work restrictions from his job application with EMC. Following a hearing, an administrative law judge (“ALJ”) on the State Board of Workers’ Compensation (the “Board”) denied McDuffie’s request for reinstatement of his indemnity benefits, and the Board’s Appellate Division and the superior court affirmed. This Court granted McDuffie’s application for discretionary review, and he appeals, contending that the superior court erred in affirming the ALJ’s decision. After a thorough review of the record, we find that the evidence supports the ALJ’s finding that McDuffie experienced a change in condition for the better. Nevertheless, as set forth below, the ALJ failed to make factual findings regarding whether EMC met its burden of proving that suitable work was available for McDuffie, such that EMC could discontinue his indemnity benefits. Accordingly, we affirm the judgment in part, vacate in part, and remand this case for additional findings.

“In reviewing an award of workers’ compensation benefits, . . . this Court [is] required to construe the evidence in a light most favorable to the party prevailing before the [ALJ]. . . Bibb County Bd. of Ed. v. Bembry, 286 Ga. App. 878 (650 SE2d 427) (2007).

So viewed, the record shows that McDuffie suffered an injury to his right knee in 2002 (“2002 injury”) when he was employed by Eastman Youth Detention Center (“EYDC”). McDuffie settled his claim for workers’ compensation benefits with EYDC, and by July 2003, he had undergone three knee surgeries. McDuffie admitted in his settlement agreement that he was partially disabled, his condition would not improve, and there was no possibility of his being able to perform the same type of gainful employment on a regular basis in the future. McDuffie’s doctor gave him a 20 percent permanent impairment rating for his right knee and placed him on permanent sedentary work restrictions. As a result, McDuffie was out of work from 2002 until 2006.

In March 2007, McDuffie applied for a job at EMC, and he was hired to work as a meter reader/right-of-way laborer. When he filled out his EMC job application, McDuffie omitted relevant information that would have shown that he was physically unable to do the job for which he was applying. Specifically, McDuffie failed to disclose his 2002 injury, his employment with EYDC, or his permanent sedentary work restrictions. Moreover, McDuffie indicated on his application that he was physically able to perform the job functions of a meter reader/right-of-way laborer, which required him to stand, walk, and carry parts and required him to have the ability to get an injured person off a pole within a short period of time.

In September 2009, while working on the job for EMC, McDuffie stepped in a hole and re-injured his right knee (the “2009 injury”). McDuffie’s indemnity benefits commenced shortly after his injury In March 2010, EMC discovered that McDuffie had provided false information on his job application when he stated that he was physically able to do the job and failed to disclose his prior injury or sedentary work restrictions. After learning this, EMC fired McDuffie and suspended his indemnity benefits. It is undisputed that, in February 2011, EMC reinstated McDuffie’s indemnity benefits once McDuffie’s doctor, Dr. Pope, recommended an additional surgery That surgery was performed in March 2011, and after that surgery, Dr. Pope released McDuffie to return to work with sedentary restrictions.

In July 2011, Dr. Pope opined that McDuffie had returned to his pre-injury baseline, i.e., his pre-2009 sedentary work restrictions, and EMC again suspended McDuffie’s indemnity benefits. Another physician, Dr. Gupta, who also examined McDuffie, similarly opined that McDuffie’s knee had been restored to its pre-2009 injury status.

1. On appeal, McDuffie contends that the superior court erred by affirming the full Board’s decision regarding the claimant’s pre-injury baseline condition because of the contradictory evidence of his actual physical condition before the 2009 injury We disagree.

In a workers’ compensation case, the employer has the burden of proving that an employee has undergone a change for the better and is able to return to work. Vulcan Materials Co. v. Pritchett, 227 Ga. App. 530, 531 (1) (489 SE2d 558) (1997). It is well established that, in reviewing the ALJ’s determination as to whether the employer has met its burden, the ALJ’s award “will not be disturbed where there is any evidence to support it.” (Citation, punctuation and footnote omitted; emphasis supplied.) Bembry, supra, 286 Ga. App. at 879. Moreover, it is within the province of the ALJ to determine the weight and credit to be given to a physician’s opinion testimony in a workers’ compensation case and to resolve issues of fact arising from contrary opinions of the respective physicians of the claimant. Id. at 878-880; see also Young v. Columbus Consolidated Govt., 263 Ga. 172 (1) (430 SE2d 7) (1993) (where there are conflicts in the evidence, the resolution of discrepancies and the determination of the witnesses’ credibility are matters for the ALJ). The ALJ’s factual findings are conclusive andbinding when supported by any evidence. See Bembry, supra, 286 Ga. App. at 878.

Here, both Dr. Pope and Dr. Gupta opined that McDuffie had returned to his pre-2009 baseline condition, i.e., his sedentary work restrictions. We note that the record contains conflicting evidence as to whether McDuffie was capable of performing the nonsedentary functions of his job while working for EMC prior to his 2009 injury The record also contains a conflicting medical opinion stating that McDuffie’s work restrictions and pain were related to his 2009 injury, rather than his 2002 injury The ALJ, however, considered and weighed this conflicting evidence in EMC’s favor. Notably, the ALJ specifically found that McDuffie had improved to the extent that he had no work restrictions other than the permanent sedentary work restrictions he was under when he was hired by EMC. Accordingly, the ALJ found that EMC had proven a change in condition for the better, and the full Board agreed. Since there is some evidence which supports the ALJ’s factual finding on this issue, we affirm the ALJ’s and the full Board’s finding that McDuffie experienced a physical change for the better. See Bembry, supra, 286 Ga. at 878-880; Young, supra, 263 Ga. at 172 (1).

2. McDuffie contends that Dr. Gupta’s and Dr. Pope’s expert opinions do not constitute legally competent evidence in support of the ALJ’s findings of fact because these opinions were not based on reasonable medical certainty In support of this argument, McDuffie cites Aleman v. Sugar Loaf Dialysis, 312 Ga. App. 658 (719 SE2d 551) (2011). The decision in Aleman is inapposite, however, because that case involved a motion for summary judgment in a medical malpractice case, and in such cases, conflicting evidence prevents the trial court from granting motions for summary judgment. By contrast, in workers’ compensation cases, Georgia law explicitly grants the ALJ authority to weigh and rule on conflicting medical evidence. See Bembry, supra, 286 Ga. at 880.

Moreover, in workers’ compensation cases, medical testimony does not have to be reasonably certain. Rather, expert medical opinions need to be based at least on a reasonable probability See McDaniel v. Employers Mut. Liability Ins. Co., 104 Ga. App. 340, 343-344 (2) (121 SE2d 801) (1961); see also Cabin Crafts v. Pelfrey, 119 Ga. App. 809, 811 (2) (168 SE2d 660) (1969) (in a workers’ compensation case, medical testimony that there is a reasonable probability that activities at work contributed to the injury is sufficient to support a finding that it did). Additionally, the record belies McDuffie’s argument that Dr. Pope’s and Dr. Gupta’s opinions were not based on personal observation and a reasonable probability Rather, ample evidence in the record shows that both doctors based their opinions on their actual treatment of McDuffie and their personal knowledge of his condition. Notably, Dr. Gupta testified that he examined McDuffie three or four times. Dr. Pope testified that he also examined and treated McDuffie, reviewed McDuffie’s MRI, recommended an arthroscope procedure, which was done in October 2009, and performed a lateral meniscectomy on McDuffie’s right knee.

3. McDuffie contends that EMC was required to show that suitable employment was available. We agree.

Where the evidence authorizes, as it did in this case, a finding that the claimant has fully recovered from the injury received on the job and no longer suffers any disability therefrom, an award holding that there has been a change in condition is proper. This is true even though the claimant is disabled if such disability is due to causes unrelated to the on the job injury

(Citations omitted.) Williams Bros. Lumber Co. v. Magee, 162 Ga. App. 865 (292 SE2d 477) (1982). Nevertheless, EMC could not suspend McDuffie’s workers’ compensation benefits based on a change in condition for the better without showing that McDuffie could return to work because of that change and that EMC offered McDuffie suitable work. See Jones County Bd. of Ed. v. Patterson, 255 Ga. App. 166, 168 (564 SE2d 777) (2002); Smith v. Brown Steel, 232 Ga. App. 698, 699 (2) (503 SE2d 592) (1998).

The key determination is whether there was suitable work available and offered to McDuffie to diminish or terminate the loss in income. Sadie G. Mays Memorial Nursing Home v. Freeman, 163 Ga. App. 557, 559 (3) (295 SE2d 340) (1982). If suitable work was not available, then EMC was required to continue paying indemnity benefits to McDuffie.

Regardless of the circumstances in this case, the Workers’ Compensation Act is highly remedial in nature, and this Court must construe it liberally in favor of the claimant in order to accomplish its “beneficent” purposes. See CGU Ins. Co. v. Sabel Indus., 255 Ga. App. 236, 243 (2) (564 SE2d 836) (2002); Homebuilders Assn. of Ga. v. Morris, 238 Ga. App. 194, 197 (518 SE2d 194) (1999). Although the ALJ recognized that EMC had the burden of proving that suitable work was available, the ALJ made no findings of fact on that issue. Moreover, the ALJ made no factual findings regarding McDuffie’s entitlement to indemnity benefits if suitable work was available and not offered to him. Finally, the ALJ failed to make any factual findings regarding EMC’s obligation to continue paying indemnity benefits to McDuffie if suitable work was not available. Consequently, we vacate the judgment of the superior court in part, and remand this case to the superior court with direction that the case be remanded to the full Board with instructions for the ALJ to make further findings of fact in accordance with this opinion. See Freeman, supra, 163 Ga. App. at 559 (3) (full Board should have considered and made appropriate factual findings with regard to issue of whether suitable work was available). In so holding, we express no opinion as to what constitutes suitable work under these circumstances.

We note, however, in accordance with the ALJ’s separate holding, which was not challenged on appeal, that EMC remains responsible for providing and paying for reasonable and necessary medical treatment related to McDuffie’s 2009 injury

Judgment affirmed in part and vacated in part, and case remanded with direction.

Dillard and Peterson, JJ., concur. Bran ch, McMillian, and Mercier, JJ., concur fully in Divisions 1 and 2, and in judgment only in Division 3. Ellington, P. J., and Phipps, P. J., concur in judgment only. McFadden, J., dissents.

McFADDEN, Judge,

dissenting.

McDuffie was injured in 2002, given a sedentary work restriction in 2005, and injured again in 2009. The principal issue in this case is whether his condition improved between 2005 and 2009. The majority purports to affirm a finding by the ALJ and the Appellate Division that his condition did not improve during that time. On the basis of that purported finding, the majority holds that, once McDuffie had recovered from his 2009 injury to the extent he was in the same condition he had been in in 2005, EMC was authorized to discontinue his workers’ compensation benefits.

But those tribunals did not so find. And the doctors whose testimony the majority cites did not so testify. I therefore respectfully dissent.

As the majority holds, we must construe the evidence in the light most favorable to the party prevailing before the Appellate Division. Evergreen Packaging v. Prather, 318 Ga. App. 440, 443 (734 SE2d 209) (2012). “Nevertheless, we review de novo erroneous applications of law to undisputed facts, as well as decisions based on erroneous theories of law.” Id. (citation and punctuation omitted).

The ALJ made an express factual finding that, when McDuffie was injured in 2009, he was performing the essential functions of a nonsedentary job. Specifically, she found that McDuffie “did perform the essential functions” of a position that “is more strenuous than light duty” There was evidence to support this finding, and EMC does not appear to dispute it.

The ALJ did not find that when EMC stopped paying McDuffie’s workers’ compensation benefits, McDuffie was again able to perform the essential functions of a position that is more strenuous than light duty. Instead, she found that when EMC stopped paying benefits, McDuffie “was still having problems with his knee” but had “improved to the extent that he ha[d] no restrictions other than those he already was under at the time he was hired by EMC,” namely restrictions imposed in 2005 that limited him to sedentary work. (Emphasis supplied.) There was evidence to support this finding as well. The Appellate Division accepted the ALJ’s factual findings in affirming her decision.

Nevertheless, the ALJ concluded that McDuffie was not entitled to continued workers’ compensation benefits on the ground that his post-injury condition — restricted to sedentary work — was the same as his 2005 pre-injury condition — restricted to sedentary work. This conclusion was erroneous, given that by 2009 McDuffie was capable of and was in fact performing nonsedentary work.

The Workers’ Compensation Act defines the term “change in condition,” in pertinent part, to mean “a change in the . . . physical condition ... of an employee . . . , which change must have occurred after the date on which the . . . physical condition . . . was last established by award or otherwise.” OCGA § 34-9-104 (a) (1). And it recognizes as a compensable injury the aggravation of a preexisting condition, “for so long as the aggravation of the preexisting condition continues to be the cause of the disability[.]” OCGA § 34-9-1 (4). Neither of these provisions authorized the ALJ to look to McDuffie’s physical condition in 2005, rather than his physical condition immediately before his injury in 2009, to determine his eligibility for continued benefits as his condition improved in 2011.

The ALJ, as factfinder, was entitled to credit the medical testimony that by 2011 McDuffie had returned to a level of physical ability where he could perform sedentary work. But the doctors who treated him at that time and who provided that testimony were not familiar with McDuffie’s physical condition immediately before his 2009 injury and so did not purport to be able to opine about his condition immediately before his 2009 injury.

In any event, the ALJ found that McDuffie was capable of more than sedentary work immediately before the 2009 injury. It thus was error for her to conclude, and for the Appellate Division and superior court to affirm, that McDuffie’s capability for sedentary work following the 2009 injury precluded him from further workers’ compensation benefits.

Decided July 15, 2016

Nelson & Smith, Blake J. Smith, David B. Ricks, for appellant.

Hall Booth Smith, Frederick L. Hubbs, Jr., David S. Dix, for appellees.


author: Boggs, Judge. McFADDEN, Judge,

text:
    A16A0114.
    QUILLER v. THE STATE.
    (789 SE2d 391)
   Boggs, Judge.

A jury found Marcus Terrell Quiller guilty of aggravated assault, burglary, and possession of a firearm during the commission of a felony. Following the denial of his amended motion for new trial, Quiller appeals, asserting as his sole enumeration of error that the trial court committed reversible error by improperly commenting on the evidence during preliminary instructions in violation of OCGA § 17-8-57. We discern no reversible error and therefore affirm.

Quiller argues that during preliminary instructions to the jury, the trial court erred in stating the following:

Now ladies and gentlemen, you’ve been through the first part of a trial, and that’s the selection of a jury. I’m going to tell you a little bit about the rest of the trial because it’s not like it is on TV. It is not like Law & Order, where they try a case in 30 minutes. It’s not going to be tried in 30 minutes. We hardly can get started in 30 minutes. So I want to tell you that.
It’s not like CSI where they are going to have all these little lights and all of these things where they go in and see all sort of stuff that you can’t see with a naked eye; or they have fingerprints or those kinds of things. I don’t know what’s going to come out in this case. But a lot of times or very seldom do those kind of things come up in a case.
Occasionally, if you have a gun fired at somebody, you may have some expert that talks about a — a doctor that comes in and talks about how they may have had what they call stippling close to the — that gets on a person’s hand that shot the gun or other things — those kind of things. You may have ballistic experts. You very seldom have fingerprint testimony in a case. Fingerprints are very hard to get. You cannot get them off of just anything. Even when they are, they sometimes — so what I’m trying to tell you is you’ve got to forget about all this stuff you see on TV and just take the stuff that you see here in the courtroom.

(Emphasis supplied.) Quiller argues that the court’s statement concerning fingerprint evidence “informed or intimated to the jury the trial court’s opinion as to a critical element of the State’s case, thereby potentially influencing jurors in their evaluation of whether the State has met its burden of proof at trial.” He asserts that there were points during trial where there was testimony concerning fingerprints at the scene.

Quiller was tried in 2009 and his motion for new trial was ruled upon in April 2015, during which time former OCGA § 17-8-57 provided:

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.

This Code section was amended effective July 1, 2015 (Ga. L. 2015, p. 1050, § 1) (before the transfer of Quiller’s appeal to this court from the Supreme Court of Georgia) and now provides:

(a) (1) It is 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.
(2) Any party who alleges a violation of paragraph (1) of this subsection shall make a timely objection and inform the court of the specific objection and the grounds for such objection, outside of the jury’s hearing and presence. After such objection has been made, and if it is sustained, it shall be the duty of the court to give a curative instruction to the jury or declare a mistrial, if appropriate.
(b) Except as provided in subsection (c) of this Code section, failure to make a timely objection to an alleged violation of paragraph (1) of subsection (a) of this Code section shall preclude appellate review, unless such violation constitutes plain error which affects substantive rights of the parties. Plain error may be considered on appeal even when a timely objection informing the court of the specific objection was not made, so long as such error affects substantive rights of the parties.
(c) Should any judge express an opinion as to the guilt of the accused, the Supreme Court or Court of Appeals or the trial court in a motion for a new trial shall grant a new trial.

The purpose of this section is to keep the jury from being influenced by the judge’s opinion, see Morton v. State, 132 Ga. App. 329, 330 (1) (208 SE2d 134) (1974) (citing former Ga. Code Ann. § 81-1104), and it applies to statements made by the judge during preliminary instructions. See Sales v. State, 296 Ga. 538, 541 (2) (a) (769 SE2d 374) (2015). Here, the trial court erred in expressly informing the jury, prior to the presentation of evidence, of its opinion of fact: that fingerprint testimony is rarely presented at trial and that fingerprint evidence is “very hard to get.” See id. Faced with this error, we must determine the proper standard for our appellate review.

Although Quiller was tried prior to the amendment to OCGA § 17-8-57, the State argues that the newly amended version is nevertheless applicable here because it is a “procedural law” that should apply retroactively The Supreme Court of Georgia has alluded to such an application of subsection (b) of OCGA § 17-8-57. Pyatt v. State, 298 Ga. 742, 747 (3) n. 9 (784 SE2d 759) (2016). Both the former and current versions of OCGA § 17-8-57 provide that it is error for the trial court to express or intimate his opinion about what has or has not been proved. Under the former version, however, such an error required an automatic reversal and a new trial. Under the newly revised Code section, in contrast, the trial court must provide a curative instruction or declare a mistrial only where the error has been objected to, OCGA § 17-8-57 (a) (2); and the failure to object to the error at trial precludes appellate review unless such violation constituted plain error. OCGA § 17-8-57 (b).

As the Supreme Court of Georgia explained, revised OCGA § 17-8-57 “is not limited expressly to cases tried on or after its effective date. See Ga. L. 2015, p. 1050, § 1. And as we have noted, unless the statutory law indicates otherwise, an appellate court [typically] applies the law as it exists at the time its opinion is rendered.” (Citations and punctuation omitted.) Pyatt, supra, 298 Ga. at 747 (3) n. 9. The Supreme Court noted further that subsection (b) “applies not to proceedings in the trial court, which, in this case, predated the amendment. Rather, that provision is specifically directed to appellate review.” Id., citing United States v. Nunemacher, 362 F3d 682, 686 (10th Cir. 2004) (“new standard of appellate review applied, notwithstanding that it was adopted after the proceedings in the trial court were concluded”). Pyatt, supra, 298 Ga. at 747 (3) n. 9. For this reason, we hold that subsection (b) of newly amended OCGA § 17-8-57 should be given retroactive effect.

Furthermore, I disagree with the dissent’s position that the new rule is aimed at regulating conduct at trial and that the relevant conduct to be analyzed is trial counsel’s objection or the failure to object. As explained above, subsection (b) is not aimed at regulating any conduct at trial, but is rather aimed at our standard of review on appeal of an error already made at trial. Under the old rule or the new rule of subsection (b), the improper statement has already occurred, and the legislature has now determined that plain error is the proper after-the-fact review of the impact of such an improper statement.

Under subsection (b) then, we analyze whether, in the absence of an objection, the trial court’s improper statement constitutes plain error. “Under that standard, we must determine whether there is an error that has not been affirmatively waived, is clear and obvious, affects the defendant’s substantial rights, and seriously affects the fairness, integrity or public reputation of the judicial proceedings.” (Citation and punctuation omitted; emphasis supplied.) Carlson v. State, 329 Ga. App. 309, 311 (2) (764 SE2d 890) (2014). But assuming without deciding that Quiller satisfied the other factors, he “cannot show that the court’s instruction affected his substantial rights which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings.” Id.; see Shaw v. State, 292 Ga. 871, 873 (2) (742 SE2d 707) (2013).

After the trial court made the improper statements of fact, he properly instructed the jury that:

The State has the burden of proof. You’ve already heard that a couple of times. It’s totally up to the State to prove the defendant is guilty of the crimes that he’s charged with, each one separately, beyond a reasonable doubt.
The defendant doesn’t have to prove anything. He doesn’t have to put up any evidence. He doesn’t have to testify. He doesn’t have to do anything. The only people that have to absolutely put up any evidence is the State.

And the evidence showed that after Quiller entered the victims’ home at gunpoint with two other men, the occupants of the home struggled with him and held him down until police arrived. So any fingerprint evidence would not have been vital to placing him at the scene of the crime. Moreover, the detective testified that the crime lab was unable to recover fingerprints from the weapon used in the crimes, and that “[i]t’s actually few and far between that we are able to lift a fingerprint that we can use.”

Under these circumstances, Quiller has not shown that it is highly probable that the court’s error affected the outcome of the court proceedings. See Carlson, supra, 329 Ga. App. at 311 (2) (where court charged jury that “doing violence” meant “physically resisting,” defendant argued that the instruction eliminated requirement that jury find he committed violence, but no plain error because evidence showed violent physical resistance and court instructed jury on statutory definition of crime and read indictment to jury); Moore v. State, 286 Ga. App. 313, 317 (2) (649 SE2d 337) (2007) (even if court’s comment was improper, statement was immediately followed with comprehensive charge on State’s burden of proof). He has therefore failed to show that the trial court’s improper statement constitutes plain error requiring us to reverse.

Judgment affirmed.

Doyle, C. J., Andrews, P. J., Ellington, P. J., Dillard, Ray, Branch, McMillian, Rickman, Mercier and Peterson, JJ., concur. Barnes, P. J., Miller, P. J., Phipps, P. J., and McFadden, J., dissent.

McFADDEN, Judge,

dissenting.

I disagree with the majority’s conclusion that the amended version of OCGA § 17-8-57 should be applied retroactively to the facts of this case. Under the version of the statute that governed during the trial in this case, defendant Quiller had no duty to object to the trial judge’s improper comment on the evidence and was automatically entitled to a new trial based on the judge’s violation of the statute. However, under the new version of the statute, which took effect six years after Quiller’s trial, a criminal defendant now has an affirmative duty to object when — and no longer has an automatic right to a new trial after — a judge improperly comments on the evidence in violation of the statute. Rather, under the new statute, a defendant who does not object to a trial judge’s improper comment upon the evidence is now deemed to have waived any such objection, is not entitled as a matter of law to a new trial, and instead must show that the improper comment rises to the level of plain error affecting substantive rights to obtain a new trial free of such impropriety.

As our Supreme Court explained in Pyatt v. State, 298 Ga. 742, 747 (3), n. 9 (784 SE2d 759) (2016), the question of retroactivity has two subparts. About the first I agree with the majority: the subject rule is procedural, not substantive.

So the second subpart is dispositive. If the relevant activity that the rule regulates is selection of the standard of appellate review, the new rule applies and forecloses Quiller’s argument. But if the new rule is aimed at regulating conduct at trial and the relevant conduct is trial counsel’s objection or failure to object, then the new rule does not apply; and Quiller’s argument is due to be addressed. I would hold that the objection trial counsel has already failed to make is like testimony already taken and so is, for purposes of retroactivity, the relevant conduct. See Landgraf v. USI Film Products, 511 U. S. 244, 291 (III) (114 SCt 1483, 128 LE2d 229) (1994) (Scalia, J., concurring) quoted in Pyatt, supra at 747 (3), n. 9.

This new rule should not be applied retroactively to impose a new duty on Quiller that was not required of him at the time of his trial and thereby impact our review of events that have already occurred at trial, as opposed to impacting the review of future occurrences arising from those past events. Accordingly, I respectfully dissent.

1. Changes to OCGA § 17-8-57.

The former version of OCGA § 17-8-57, which was in effect at the time of Quiller’s 2009 trial, provided:

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.

Under this version of the statute, even without an objection at trial, it was “well established that [a] trial court’s compliance with the statutory language of OCGA § 17-8-57 [was] mandatory and that a violation of its mandate require[d] a new trial.” Chumley v. State, 282 Ga. 855, 858 (2) (655 SE2d 813) (2008) (citations and punctuation omitted). Accord Murphy v. State, 290 Ga. 459, 461 (2) (722 SE2d 51) (2012); see also Rouse v. State, 296 Ga. 213, 220 (765 SE2d 879) (2014) (Supreme Court of Georgia “has held that an error under OCGA § 17-8-57 mandates reversal of a conviction and a new trial even if the defendant did not object to the error at trial”) (Nahmias, J., dissenting). A defendant was not obligated to object and a new trial was mandated because, as a matter of law, a violation of former OCGA § 17-8-57 constituted “plain error” affecting substantive rights. Chumley, supra. As our Supreme Court has clarified, “a violation of [former] OCGA § 17-8-57 will always constitute ‘plain error,’ meaning that the failure to object at trial will not waive the issue on appeal.” State v. Gardner, 286 Ga. 633, 634 (690 SE2d 164) (2010) (citation omitted; emphasis in original).

After Quiller’s jury trial, the denial of his motion for a new trial, and the filing of his notice of appeal, the General Assembly changed OCGA § 17-8-57, effective July 1, 2015, so that it now provides:

(a) (1) It is 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.
(2) Any party who alleges a violation of paragraph (1) of this subsection shall make a timely objection and inform the court of the specific objection and the grounds for such objection, outside of the jury’s hearing and presence. After such objection has been made, and if it is sustained, it shall be the duty of the court to give a curative instruction to the jury or declare a mistrial, if appropriate.
(b) Except as provided in subsection (c) of this Code section, failure to make a timely objection to an alleged violation of paragraph (1) of subsection (a) of this Code section shall preclude appellate review, unless such violation constitutes plain error which affects substantive rights of the parties. Plain error may be considered on appeal even when a timely objection informing the court of the specific objection was not made, so long as such error affects substantive rights of the parties.
(c) Should any judge express an opinion as to the guilt of the accused, the Supreme Court or Court of Appeals or the trial court in a motion for a new trial shall grant a new trial.

This new version of OCGA § 17-8-57, like the former version, still provides that it is error for a trial judge to express an opinion as to what has or has not been proved or as to the guilt of the accused. OCGA § 17-8-57 (a) (1). The new statute also still provides, as did the former Code section, that a judge’s expression of opinion as to the guilt of the accused mandates a new trial. OCGA § 17-8-57 (c). However, the amended version of the statute has significantly changed the rights and duties of a criminal defendant in regard to a judge’s expression of opinion as to what has or has not been proved.

Under the new statute, a criminal defendant no longer is free of any duty to object to a judge’s improper comment on what has or has not been proved by the evidence, and the defendant is no longer automatically entitled to a new trial for such a comment. Rather, the new version of the statute now expressly requires a criminal defendant to make a timely objection at trial to a judge’s improper comment on the evidence, informing the court of the specific objection and the grounds for it outside the presence of the jury OCGA § 17-8-57 (a) (2). If the trial judge finds that he or she did indeed make an improper comment on the evidence, the new statute does not mandate a new trial, and instead allows the judge to exercise his or her discretion and give a curative jury instruction or declare a mistrial. Id. Moreover, if a defendant fails to make the newly-required timely objection at trial, the new statute precludes appellate review of the improper comment, unless the comment constituted plain error affecting substantive rights of the accused. OCGA § 17-8-57 (b). Thus, the new version of the statute has eliminated the former statute’s mandate that a judge’s expression of an opinion as to what has or has not been proved constitutes plain error affecting the defendant’s substantive rights so that a new trial is automatically required.

In finding that this amended version of the statute applies retroactively to the instant case, rather than applying the version of the statute as it existed at the time of trial, the majority relies on a footnote from the Supreme Court of Georgia’s recent opinion in Pyatt v. State, 298 Ga. at 747 (3), n. 9. In that footnote, the Supreme Court discussed law concerning statutes that govern only court procedure being applied retroactively, absent an express contrary legislative intent; but the Supreme Court did not conclude that the amended version of OCGA § 17-8-57 applies retroactively. Rather, in the footnote, the Supreme Court stated that it did not need to decide the issue and instead “assume[d] — without deciding — that former OCGA § 17-8-57 applie[d].” Id. Thus, that footnote does not resolve the question of whether the new version of OCGA § 17-8-57 should be applied retroactively in the instant case.

“Generally speaking, the retroactive application of statutes has long been disfavored in the law, even if it is not always forbidden. For that reason, courts usually insist upon some clear indication in the statutory text that a statute is to be applied retroactively before so applying it.” Deal v. Coleman, 294 Ga. 170, 174 (1) (b) (751 SE2d 337) (2013) (citations, punctuation and footnote omitted). However, our Supreme Court has also held that “where a statute governs only procedure of the courts, including the rules of evidence, it is to be given retroactive effect absent an expressed contrary intention.” Polito v. Holland, 258 Ga. 54, 55 (2) (365 SE2d 273) (1988) (citations omitted). But “laws that affect substantive rights may operate prospectively only.” Nathans v. Diamond, 282 Ga. 804, 808 (2) (654 SE2d 121) (2007) (citation and punctuation omitted). “Substantive law is that law which creates rights, duties, and obligations. Procedural law is that law which prescribes the methods of enforcement of rights, duties, and obligations.” DaimlerChrysler v. Ferrante, 281 Ga. 273, 274 (1) (637 SE2d 659) (2006) (citations and punctuation omitted).

The substantive aspects of OCGA § 17-8-57, prohibiting trial judges from expressing an opinion as to what the evidence has proved or as to the guilt of the accused, have not changed in the new statute. However, the changes noted above — the new requirement of a timely and specific objection by a criminal defendant to a trial judge’s improper comment on the evidence, the fact that such a violation of the statute no longer automatically mandates a new trial for a defendant, and the express requirement of plain error review in the absence of an objection — are procedural changes.

However, those procedural changes should not be applied retroactively to events that have already occurred at the trial in this case. The footnote in Pyatt, supra, upon which the majority relies, includes the following quoted language in a parenthetical cite:

The critical issue is the relevant activity that the rule regulates. Absent clear statement otherwise, only such relevant activity which occurs after the effective date of the statute is covered. Most statutes are meant to regulate primary conduct, and hence will not be applied in trials involving conduct that occurred before their effective date. But other statutes have a different purpose and therefore a different relevant retroactivity event. A new rule of evidence governing expert testimony, for example, is aimed at regulating the conduct of trial, and the event relevant to retro-activity of the rule is introduction of the testimony. Even though it is a procedural rule, it would unquestionably not be applied to testimony already taken.

Pyatt, supra at 747 (3), n. 9, quoting Landgraf, supra at 291 (III) (Scalia, J., concurring) (citations and punctuation omitted; emphasis in original).

Here, the new version of OCGA § 17-8-57 regulates the conduct at trial of the trial judge by prohibiting comments on the evidence, and it also regulates the conduct of criminal defendants at trial by imposing a new duty on them to object to such improper comments in order to avoid waiver of appellate review of the issue, other than plain error review. In this regard, it is important to note that

[t]he “plain error” rule does not establish a different standard for determining the reversibility of an error, but instead allows a criminal defendant to avoid the penalty of waiver, by permitting appellate review of assertions of error raised for the first time on appeal where the asserted error affects substantive rights.

Chumley, supra at 858 (2) (citations and punctuation omitted). Thus, the events relevant to the retroactivity of amended OCGA § 17-8-57 are an improper statement by the judge during trial and the defendant’s timely and specific objection to it, or lack thereof. Such a new procedural rule “would unquestionably not be applied to [a judge’s statement] already [made and any objection, or lack thereof, to it] Pyatt, supra (citation, punctuation and emphasis omitted).

As our Supreme Court has explained, “to apply a procedural statute retroactively generally does not mean that it applies with respect to prior filings, proceedings, and occurrences, but rather that the procedural change affects future court filings, proceedings, and judgments that arise from prior occurrences.” Murphy v. Murphy, 295 Ga. 376, 378 (761 SE2d 53) (2014). Thus, the amended version of OCGA § 17-8-57, should not be applied to the prior proceedings in this case in order to deny Quiller of the new trial that the judge’s improper comments mandated at that time, even absent an objection by Quiller. Rather, the amended version should affect only future court proceedings that arise from those prior occurrences, such as a new trial required by those prior events.

Decided July 15, 2016.

Swindle Law Group, Jason W. Swindle, Sr., Dane M. Garland, for appellant.

Peter J. Skandalakis, District Attorney, Tracy R. Reeves, Jr., Assistant District Attorney, for appellee.

[I]n the present case all salient dates, i.e., [the improper comment at trial and the lack of an objection thereto], issuance of the order [denying a new trial] sought to be appealed, and filing of the notice of appeal, occurred prior to the effective date of the amendment to OCGA § [17-8-57], Therefore, a proper retroactivity analysis and its application in this case do not provide a basis for [applying the new law].

Id. at 379. Accordingly, in my opinion, the former version of the statute, not the amended version, governs the events that have already occurred in the instant case.

2. Application of former OCGA § 17-8-57 to the instant case.

As the majority correctly finds, the trial court erred in expressly informing the jury of its opinion of fact as to the state’s fingerprint evidence. Because the judge improperly commented on the evidence in violation of former OCGA § 17-8-57, a new trial is mandated even though Quiller did not object to the comment at trial. “Given the mandatory nature of [that version of] OCGA § 17-8-57 and the case law interpreting it, we must reverse [Quiller’s] conviction and remand the case to the trial court for a new trial.” Murphy, supra at 461 (2) (citation omitted).

I am authorized to state that Presiding Judge Barnes, Presiding Judge Miller and Presiding Judge Phipps join in this dissent.

       Although our Supreme Court concluded “because there is no reversible error in this case even under the former version of the statute, we need not decide whether the 2015 amendment properly applies,” we find the court’s reasoning on this issue persuasive.

       What has also remained the same is automatic reversal and a new trial when the trial “judge express [es] an opinion as to the guilt of the accused." (Emphasis supplied.) OCGA § 17-8-57 (c).

       We therefore overrule Alday v. State, 336 Ga. App. 508 (784 SE2d 860) (2016) (physical precedent only) in which former OCGA § 17-8-57 was applied rather than current OCGA § 17-8-57 (b). We also disapprove of the following cases to the extent that they could be relied upon to stand for the proposition that OCGA § 17-8-57 (b) should be applied prospectively: Mitchell v. State, 337 Ga. App. 841 (789 SE2d 797) (2016); Marlow v. State, 337 Ga. App. 1 (785 SE2d 583) (2016); King v. State, 336 Ga. App. 531 (784 SE2d 875) (2016); Weaver v. State, 336 Ga. App. 206 (784 SE2d 61) (2016) (physical precedent only); Sneiderman v. State, 336 Ga. App. 153 (784 SE2d 18) (2016); Williams v. State, 336 Ga. App. 64 (783 SE2d 666) (2016); Bolden v. State, 335 Ga. App. 653 (782 SE2d 708) (2016); Wallace v. State, 335 Ga. App. 232 (779 SE2d 130) (2015); Goulding v. State, 334 Ga. App. 349 (780 SE2d 1) (2015). We express no opinion here regarding the application of OCGA § 17-8-57 (a) (2) on appeal.