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State v. Meacham11/7/2003
protect appellant from any deleterious effect his sudden failure to appear on the second day of trial might cause. Although the judge's instruction to the jury that it not draw any negative inferences from appellant's failure to appear should have been more carefully phrased, it demonstrates, on its face, the judge's effort to protect rather than harm appellant.
Nor did the judge's explanation of the implied consent information reflect that he was partial to the state. Rather, the judge appears to have been making certain the jury understood the meaning of the term "admin per se," which the officer had used to identify the form document containing information about which he was testifying. The judge explained both that the term meant "administrative per se" and the purpose of the form. That the same information could have been elicited from the deputy does not require us to find that the judge was assisting the prosecutor in trying the case. Indeed, as the state points out, defense counsel stated at the time, "I understand that the Court was trying to clarify with the jurors what certain things mean." But even assuming arguendo that the judge could be characterized as testifying, it was not structural error, there is no support for such a claim, and any error was harmless. The meaning of the term and the fact that the judge, rather than a witness, had provided the information first was entirely insignificant and did not affect the outcome of the case, particularly given the officer's testimony, which gave the jury essentially the same information.
We reject, too, appellant's claim that the judge's response to the question about the "tank top" appellant had been wearing at the time of the offense reflected bias and prejudice. Again, although the judge should not have made the comment, it did not reflect partiality for the state. And again, appellant has cited no authority for the proposition that the judge's comments resulted in structural error that is not subject to a harmless error review. The error, if any, was nothing more than an insignificant response to a question about the nature of what appellant had been wearing at the time of his arrest. It was innocuous, particularly in light of the overwhelming evidence of appellant's guilt.
Affirmed.
CONCURRING:
J. WILLIAM BRAMMER, JR., Presiding Judge
M. JAN FLOREZ, Judge
Page 1 2 Arizona DUI Attorneys
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