Mark Robert Starr was convicted by a jury of one count of child molestation. His motion for new trial, as amended, was denied, and he appeals. Starr argues that the victim’s videotaped statement and his own two audiotaped statements were improperly admitted, and he enumerates as error a portion of the trial court’s jury charge. Because we conclude that in its jury instructions the trial court improperly expressed an opinion on the evidence in violation of OCGA § 17-8-57, we reverse and remand this case for a new trial.
Construed in favor of the verdict, evidence was presented that Starr, a friend of the victim’s father, was visiting in the victim’s home on the date of the incident. Near the end of his visit, he was alone with the four-year-old victim in her “toy room” and was playing a computer game with her. The victim reported to both parents and to Dawn Warren, a local children’s advocate, that Starr had touched her genital area. She told Warren that “it hurted [sic] when he was digging in it” with his hand. Warren’s videotaped interview with the victim was played for the jury.
1. Starr enumerates as error the following instruction, given during the final charge to the jury, which almost identically tracks the language of OCGA § 24-3-16:
A statement made by a child under the age of fourteen years describing any act of sexual contact or physical abuse performed with or on the child by another is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify and the court finds *467 that the circumstances of the statement provides [sic] sufficient indicia of reliability.
(Emphasis supplied.) Starr contends that no objection was raised to the admission of the victim’s statement and consequently that no need arose for the trial court to explain its rationale for admitting it. He argues that “[t]he trial court’s expression of its opinion that the child’s statement had ‘sufficient indicia of reliability’ was entirely gratuitous” and constituted an opinion as to what had been proved, in violation of OCGA § 17-8-57. We agree.
OCGA § 17-8-57 provides:
It is error for any judge in any criminal case, during its progress or in [the court’s] charge to the jury, to express or intimate [an] 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.
The proscription set out in this Code section logically encompasses a prohibition against the court’s commentary on the veracity of a witness. In
Alexander v. State,
Here, the trial court did not directly address a witness. But in its unrequested, gratuitous recitation of the Child Hearsay Statute, the court could well have influenced the jurors’ conclusions about the truth of the victim’s statements. We must presume that the jurors were listening carefully to the trial court’s instructions, and we find it entirely reasonable that those jurors could have concluded from the instruction at issue that the trial court believed the victim’s statements to be reliable.
Witness credibility, most particularly that of the four-year-old victim, was “of vital importance in the [State’s] case” Alexander, supra. No other person witnessed the alleged molestation, and even though *468 the victim may have claimed that Starr harmed her, the medical evidence obtained shortly after the alleged incident showed no trauma or injury to the victim.
Like the trial court in Alexander, supra, the trial court instructed the jury that it had not intended to comment on the credibility of witnesses. Nevertheless, like the Supreme Court in that case, we are constrained to conclude that the jury heard the words of the trial court during its earlier instruction and that “no man could dare say [the jurors] were not thereby influenced to some extent, at least.” Id. at 268.
The State argues that the trial court’s charge merely served “as an explanation to the jury as to why the victim did not take the stand and testify personally.” The appellate courts of this state have indeed repeatedly held that a trial court’s remarks giving reasons for a particular ruling do not constitute an expression of opinion or a comment concerning the evidence. See, e.g.,
Young v. State,
Considering the charge as a whole, as we must,
Sedlak v. State,
2. Because they may recur on retrial, we address Starr’s remaining enumerations of error.
(a) Starr argues that the videotaped interview with the victim was erroneously admitted as a violation of his Sixth Amendment right of confrontation under
Crawford v. Washington,
(b) Starr contends that the trial court erred in admitting two tape-recorded conversations between investigator Stephanie Carani and himself. At trial, Starr objected to admission of the audiotapes, arguing that Carani had improperly offered a reward to him. Among other arguments, he raises this contention on appeal. The transcripts of the taped interviews show without dispute that at the beginning of Carani’s first conversation with Starr, Carani stated that “counseling is basically what we’re looking for,” and she asked Starr, “What do you think should happen to somebody who’d do that to a kid?” Carani repeatedly discussed with Starr the possibility of counseling throughout this interview and an interview she conducted three days later. Once during the first interview she told Starr, “We’re concerned about if this happened making sure it doesn’t happened [sic] anymore. And that’s not by locking you up for the rest of your life because it isn’t going to happen, I guarantee you that.”
It is axiomatic that “incriminatory admissions and confessions must not be admitted if there is evidence, arising from the testimony as to the confession itself, that the confession was induced by the
slightest hope of benefit,
or the remotest fear of injury.” (Emphasis in original.)
King v. State,
Judgment reversed.