(Code 1981, §17-8-58, enacted by Ga. L. 2007, p. 595, § 1/HB 197.)
Editor's notes.- Ga. L. 2007, p. 595, § 5/HB 197, not codified by the General Assembly, provides that this Code section shall apply to all trials which occur on or after July 1, 2007.
Law reviews.- For annual survey on criminal law, see 64 Mercer L. Rev. 83 (2012).
JUDICIAL DECISIONSANALYSIS
General Consideration
Failure to object to failure to define terms waives issue.
- During the defendant's trial for aggravated stalking, aggravated assault, and making terroristic threats, the trial court did not err by failing to define "violent contact" in the court's charge to the jury because the defendant did not request that the term be defined for the jury, and the defendant did not object to the trial court's failure to define violent contact; because the defendant did not specifically object to the failure of the trial court to instruct the jury on the definition of violent contact at the conclusion of the jury charge, the defendant waived the right to urge error on appeal. Vaughn v. State, 301 Ga. App. 55, 686 S.E.2d 847 (2009), overruled on other grounds, State v. Kelly, 290 Ga. 29, 718 S.E.2d 232 (2011).
Defendant stating no objection waives issue.
- Because a defendant specifically stated that the defendant had no objection to the jury charge after it was given, the defendant waived appellate review of the charge. In fact, as to three of the four charges challenged on appeal, the defendant requested the same charges, precluding review even if the charge given was plain error. Blankenship v. State, 301 Ga. App. 602, 688 S.E.2d 395 (2009).
Omission of an essential element of an offense.
- Failure to charge that the physical harm required to prove battery had to be substantial omitted an essential element of the crime of battery and amounted to reversible error as the jury was obviously confused and never properly instructed. Shaw v. State, 340 Ga. App. 749, 798 S.E.2d 344 (2017).
Renewal of prior objections insufficient.
- Under O.C.G.A. § 17-8-58(b), the defendant waived the defendant's right to urge error in the jury charge because following the court's charge to the jury, the trial court inquired whether there were any exceptions to the charge other than those previously stated, and the defendant's counsel renewed those objections, but at the charge conference, defense counsel did not object to the trial court's ruling that the court would not give the defendant's requested charges; as such, defense counsel's "renewal" of prior objections did not comply with O.C.G.A. § 17-8-58(a). Lacey v. State, 288 Ga. 341, 703 S.E.2d 617 (2010).
Objection from codefendant not sufficient for defendant.
- Trial court did not err in instructing the jury that the jury's verdict could not be influenced by sympathy or prejudice because after the trial court charged the jury, the defendant's counsel affirmatively stated that counsel had no objection to the jury instructions as given, and although the codefendant's counsel timely and specifically objected to the instruction, the defendant's counsel did not join in the objection, nor did defense counsel raise the objection when given another opportunity to do so before the jury returned the jury's verdict; therefore, pursuant to O.C.G.A. § 17-8-58(b), the defendant waived any objection to the instruction, and there was no reasonable probability that the jury's verdict would have been different if the trial court had not given the instruction at issue. Hughes v. State, 309 Ga. App. 150, 709 S.E.2d 900 (2011).
Failure to object to instruction on venue.
- Because there was no objection made at trial as to the instruction on venue, appellate review was precluded in that no portion of the jury charge constituted plain error which affected substantial rights of the parties. Miller v. State, 289 Ga. 854, 717 S.E.2d 179 (2011).
Defendant failed to demonstrate plain error based on the trial court giving an incorrect money laundering charge as reviewing the jury instructions as a whole, the record clearly demonstrated that the trial court read the indictment to the jury and the jury had a copy of the indictment in the jury room, the trial court properly instructed the jury on the state's burden, defined the crimes alleged, instructed the jury on the essential elements, and reminded the jury that the burden of proof did not shift to the defendant. Carr v. State, 350 Ga. App. 461, 829 S.E.2d 641 (2019), cert. denied, No. S19C1422, 2020 Ga. LEXIS 15 (Ga. 2020).
Objection untimely.
- Defendant's objection to a jury instruction was untimely because the objection was made after the jury resumed deliberations. Curry v. State, 291 Ga. 446, 729 S.E.2d 370 (2012).
Court's error in defining "offensive weapon."
- Defendant failed to preserve for appellate review the defendant's contention that the trial court erred in using the "offensive weapon" definition of O.C.G.A. § 16-8-41(a) as armed robbery was not one of the charged offenses because the defendant did not object to the charge and expressly declined the trial court's offer to recharge the jury. The charge did not constitute plain error because the definition of "offensive weapon" applicable to armed robbery mirrored very closely the definition of aggravated assault set forth in O.C.G.A. § 16-5-21(a)(2), and an "offensive weapon" under the armed robbery statute necessarily would fall within the category of weapons described in § 16-5-21(a)(2), and therefore the defendant could not show that the instruction affected the outcome of the proceedings. Jackson v. State, 316 Ga. App. 588, 730 S.E.2d 69 (2012).
Jury charge omitting explanation of "slight" movement.
- In a kidnapping case, although the trial court's charge that omitted statutory language explaining "slight movement" was error, it was not plain error given that the evidence showed movement that was substantial, involving a number of miles. Deleon v. State, 344 Ga. App. 499, 811 S.E.2d 35 (2018).
No notification on court's decision on sexual battery instruction.
- After the defendant was convicted of two counts of rape, the defendant could not show that the defendant was harmed when the trial court failed to notify trial counsel of the court's ruling on the sexual-battery charge before closing arguments, much less plain error, because the defendant could not be found guilty of rape or sexual battery if the jury believed the defense that the defendant had consensual sex with the victims and the victims fabricated the rape allegations; and an argument that the defendant was guilty of sexual battery instead of rape would have been in direct conflict with the defendant's own theory of defense. Seals v. State, 350 Ga. App. 787, 830 S.E.2d 315 (2019).
Only plain error review allowed.
- Because the defendant failed to object to the trial court's instruction, the defendant's claim on appeal was subject only to plain error review under O.C.G.A. § 17-8-58. Dukes v. State, 290 Ga. 486, 722 S.E.2d 701 (2012).
Instruction on self-defense not plain error.
- Defendant's trial counsel failed to preserve objections to the trial court's recharge of the jury under O.C.G.A. § 17-8-58. The trial court's instruction regarding self-defense as applicable to all counts was not plain error. Guajardo v. State, 290 Ga. 172, 718 S.E.2d 292 (2011).
No plain error in instruction on justification.
- Because the trial court instructed the jury on the state's burden to disprove the affirmative defense beyond a reasonable doubt, the reasonable belief necessary to justify self-defense by use of force, including the use of deadly force, and when the jury had a duty to acquit based on justification, those instructions adequately covered justification, including self-defense, and the state's burden of proof, and the trial court's charge did not constitute plain error as it was not a clear or obvious error. Clark v. State, 306 Ga. 367, 829 S.E.2d 306 (2019), cert. denied, 2020 U.S. LEXIS 1059, 206 L. Ed. 2d 180 (U.S. 2020).
No plain error on charge of kidnapping.
- Although the defendant argued that the trial court improperly charged the jury on the offense of kidnapping, no plain error existed as the defendant intentionally relinquished any claim of error related to the charge on kidnapping by inducing the alleged error because the defendant objected and specifically asked the trial court not to include that language in the charge that the defendant now argued was erroneously omitted. Ashley v. State, 340 Ga. App. 539, 798 S.E.2d 235 (2017).
Failure to charge the jury on necessity of corroboration of accomplice testimony.
- Trial court committed plain error by not providing a jury charge on the necessity of corroboration of the accomplice's testimony because by failing to give the required accomplice corroboration charge and instead charging the jury that the testimony of a single witness, if believed, was generally sufficient to establish a fact, the trial court impermissibly empowered the jury to find the defendant guilty based solely on the accomplice's testimony; while there was sufficient corroborating evidence to support a verdict, that evidence was in no way overwhelming; the outcome of the trial court proceedings was likely affected by the error; and the error seriously affected the fairness, integrity, or public reputation of the proceedings. Stanbury v. State, 299 Ga. 125, 786 S.E.2d 672 (2016).
Trial court did not err in failing to instruct the jury that the testimony of an accomplice had to be corroborated because, pretermitting whether the failure to instruct the jury on corroboration was error, the defendant could not successfully demonstrate that it was plain error as evidence from multiple witnesses, including the defendant's witnesses and the defendant, corroborated the shooter's testimony. Huff v. State, 300 Ga. 807, 796 S.E.2d 688 (2017).
While the trial court's failure to give a corroborating accomplice instruction was clear error, it did not amount to plain error because the defendant failed to establish that omitting the instruction probably affected the outcome of the trial given that the jury would have had to reject evidence from two separate sources in order to find that the accomplice's testimony was not corroborated. Lyman v. State, 301 Ga. 312, 800 S.E.2d 333 (2017).
Trial court properly granted the defendant a new trial because the court plainly erred in failing to instruct the jury that accomplice testimony required corroboration as the trial court's instructions deviated from the rule that unequivocally required corroboration of accomplice testimony in felony cases; the trial court impermissibly empowered the jury to find the defendant guilty based solely on the accomplice's testimony; the outcome of the trial court proceedings was likely affected by the trial court's failure to provide that charge to the jury because virtually all of the incriminating evidence flowed from the accomplice; and the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings. State v. Johnson, 305 Ga. 237, 824 S.E.2d 317 (2019).
Failure to give accomplice corroboration jury instruction was not plain error because there was no evidence that three witnesses for the state were the defendant's accomplices in a gang robbery and murder; although there was evidence that the three were present near or at the time of the shooting, the accomplices were in a separate vehicle, and if the accomplices had committed the crimes, the defendant would have been completely innocent. Stripling v. State, 304 Ga. 131, 816 S.E.2d 663 (2018).
Failure to recharge on corroboration was not plain error.
- Trial court's failure to recharge on corroboration was not plain error under O.C.G.A. § 17-8-58(b) or substantial error that was harmful as a matter of law under O.C.G.A. § 5-5-24(c) because in the court's instructions to the jury following closing argument, the trial court properly charged the jury that no person would be convicted of terroristic threats on the unsupported testimony of the party to whom the threat was made. Tidwell v. State, 312 Ga. App. 468, 718 S.E.2d 808 (2011), cert. denied, No. S12C0473, 2012 Ga. LEXIS 277 (Ga. 2012).
No plain error in failing to instruct on corroboration of confession.
- Assuming without deciding that any of the defendant's out-of-court statements, or all of the statements collectively, amounted to a confession, the defendant could not satisfy the third prong of the plain error test as the trial court proceedings were not likely affected by the trial court's failure sua sponte to give the jury instruction on corroboration of a defendant's confession because there was ample corroborating evidence at trial, including the defendant's purported confession about the defendant's own behavior at the crime scene, evidence of the couple's discordant relationship, and the adult son's out-of-court statement that the defendant had previously threatened to kill the victim, the defendant's wife, over bills, and the forensic evidence. Clarke v. State, 308 Ga. 630, 842 S.E.2d 863 (2020).
Refusal to give instruction on mutual combat not error.
- Trial court's refusal to give the defendant's requested jury instruction on mutual combat, O.C.G.A. § 16-3-21(b)(3), did not constitute plain error under O.C.G.A. § 17-8-58(b) because a charge on mutual combat was not adjusted to the evidence; there was no evidence of intent to engage in a mutual fight or combat by agreement. Carruth v. State, 290 Ga. 342, 721 S.E.2d 80 (2012).
Trial court did not commit plain error in denying the defendant's requested jury charge on mutual combat because there was no evidence that the first victim and the defendant mutually agreed to do anything but playfully shadowbox and wrestle each other; and, when the playful mood of the encounter changed, and, after the first victim landed a punch to the defendant's eye, there was no mutual agreement to continue fighting, playfully or otherwise; and the defendant maintained the defendant shot the first victim in self-defense and had no intent to kill the first victim. Russell v. State, 303 Ga. 478, 813 S.E.2d 380 (2018).
Jury instruction not plain error.
- Defendant's conviction for aggravated sexual battery was reinstated because the jury instruction error did not constitute plain error as even if the jury had been instructed that the state had to prove lack of consent, no rational juror could have concluded, based on the record presented at trial, that the state failed to prove that element in the case since the victim was the defendant's four-year-old granddaughter. State v. Williams, 308 Ga. 228, 838 S.E.2d 764 (2020).
Failure to charge on transferred justification not error.
- Trial court's failure to give jury charges on transferred justification and transferred intent did not amount to plain error because such omission did not affect the outcome of the proceedings when the instructions as a whole made it clear that the jury should acquit the defendant if the jury determined that the defendant was justified in firing the weapon, regardless of who the bullet struck. Allen v. State, 290 Ga. 743, 723 S.E.2d 684 (2012).
Failure to instruct on duty to retreat not error.
- Trial court's failure to give an instruction on no duty to retreat did not constitute plain error under O.C.G.A. § 17-8-58; even assuming that the charge should have been given sua sponte by the trial court, the failure to give the charge did not amount to plain error since self-defense was not the defendant's sole defense. Alvelo v. State, 290 Ga. 609, 724 S.E.2d 377 (2012).
Failure to instruct on robbery by intimidation.
- Trial court did not commit plain error in failing to charge the jury on robbery by intimidation as a lesser-included offense of armed robbery because the defendant denied committing any offense; and the evidence relied upon by the defendant did not show robbery by intimidation as there was no evidence that a robbery was committed without the use of a gun. Styles v. State, 329 Ga. App. 143, 764 S.E.2d 166 (2014).
Jury's return of not guilty verdicts on all 12 counts of possession of a firearm during the commission of a felony did not demonstrate that, had the jury been instructed on robbery by intimidation, it would have convicted the defendant of that lesser included offense, rather than of armed robbery; thus, the trial court did not commit plain error in failing to charge the jury on robbery by intimidation as a lesser-included offense of armed robbery. Styles v. State, 329 Ga. App. 143, 764 S.E.2d 166 (2014).
Instruction on unanimous verdict not error.
- Trial court did not err by instructing the jury that the jury had to reach a unanimous verdict because viewing the charges as a whole, it appeared that the jury was adequately and properly instructed that any voluntary verdict that the jury reached had to be unanimous. Dukes v. State, 290 Ga. 486, 722 S.E.2d 701 (2012).
Instruction on aggravated assault not error.
- Trial court did not plainly err in the court's jury instruction on aggravated assault when the trial court's instructions included the definition of aggravated assault with a deadly weapon in O.C.G.A. § 16-5-21(a)(2) and tracked the applicable definition of simple assault in O.C.G.A. § 16-5-20(a)(1). Scott v. State, 290 Ga. 883, 725 S.E.2d 305 (2012).
Failure to charge jury on simple assault.
- Even if the trial court gave an incomplete charge on aggravated assault by failing to charge the jury on simple assault, the omission did not constitute plain error as the omission probably did not affect the outcome at trial because the defendant admitted to intentionally firing a gun in the victims' direction, which was conduct that constituted aggravated assault. Bashir v. State, 350 Ga. App. 852, 830 S.E.2d 353 (2019).
Instruction on voluntary manslaughter not error.
- In the defendant's trial for malice murder and felony murder, the trial court's instruction on voluntary manslaughter did not require the jury to unanimously decide that the defendant was not guilty of malice murder or felony murder before considering voluntary manslaughter; therefore, the charge was correct. Morris v. State, 303 Ga. 192, 811 S.E.2d 321 (2018).
Failure to instruct on voluntary manslaughter not error.
- Trial court did not commit plain error by failing to sua sponte charge the jury on voluntary manslaughter because the defendant testified adamantly that the defendant shot the victim in self-defense and there was no evidence that the defendant acted solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation. Martin v. State, 306 Ga. 538, 832 S.E.2d 402 (2019).
Failure to instruct on retreat not error.
- Trial court did not plainly err in refusing to give a defendant's requested jury instruction on the lack of a duty to retreat because justification was the sole defense and the issue of retreat was not raised by the evidence. White v. State, 291 Ga. 7, 727 S.E.2d 109 (2012).
Instruction on justification not plain error.
- Defendant failed to show plain error in the jury charge on justification because the defendant could not demonstrate that the alleged error in the jury charge likely affected the outcome of the proceedings as the evidence was overwhelming that the defendant was the initial aggressor who attacked the unarmed victim with the metal bar and, thus, that the defendant did not act in self-defense and was guilty of aggravated assault. Tremblay v. State, 329 Ga. App. 139, 764 S.E.2d 163 (2014).
State had burden of disproving justification defense.
- Trial court properly granted the appellee's motion for new trial on the ground that plain error was created by the trial court's failure to instruct the jury that the state had the burden of disproving the appellee's justification defense because evidence was presented to support the defense and the charge requested was a correct statement of the law. State v. Alvarez, 299 Ga. 213, 790 S.E.2d 66 (2016).
Instruction on weight of marijuana not error.
- Even if the trial court erred in instructing the jury that knowledge of the weight of the marijuana possessed by the defendant was not required for a conviction of trafficking under O.C.G.A. § 16-13-31(c), because the issue was subject to reasonable dispute, it did not amount to plain error under O.C.G.A. § 17-8-58(b). Wilson v. State, 291 Ga. 458, 729 S.E.2d 364 (2012).
No plain error by giving jury charge on entire definition of trafficking.
- Trial court did not commit plain error by charging the jury on the entire definition of trafficking as no evidence was introduced at trial suggesting that the defendant brought the cocaine at issue into the state, sold the cocaine, or that the defendant delivered the cocaine to anyone; rather, the evidence showed only that the defendant was in knowing possession of the cocaine for a brief period of time, thus, there was no reasonable possibility that the jury convicted the defendant of trafficking in a manner not charged in the indictment. Hernandez-Garcia v. State, 322 Ga. App. 455, 745 S.E.2d 706 (2013).
Instruction on chain of custody not error.
- Defendant was not entitled to a new trial because the defendant did not object to the trial court's chain of custody charge, the charge was a correct statement of the legal standard, and defendant's counsel was present and conferred with the prosecuting counsel and the trial court prior to the trial court's response to the jury's questions. Coleman v. State, 317 Ga. App. 409, 731 S.E.2d 94 (2012).
Instruction on age of consent.
- Defendant's convictions for sexual battery had to be reversed because the trial court's jury instruction that an underage victim was not legally capable of consenting to sexual conduct was on its face an accurate statement of the law, but that statement regarding consent to sexual conduct did not belong in the jury instruction regarding sexual battery since sexual battery as defined in O.C.G.A. § 16-6-22.1(b) did not necessarily involve sexual conduct. Watson v. State, 297 Ga. 718, 777 S.E.2d 677 (2015).
Jury charge erroneous for failing to limit charge to manner of touching alleged in indictment.
- Defendant's conviction for sexual battery was reversed because both the trial court's charge and recharge on sexual battery were erroneous given the court's failure to limit the charge to the manner of touching alleged in the indictment. Henderson v. State, 333 Ga. App. 759, 777 S.E.2d 48 (2015).
Language used in charge requested by the defendant.
- Jury charge was not plain error as to confession of one joint offender or conspirator made after the enterprise because although not identical language of the charge was given, the language which defendant now found objectionable essentially was the use of the word co-conspirator and was requested by the defendant. Guerrero-Moya v. State, 350 Ga. App. 233, 828 S.E.2d 629 (2019), cert. denied, 2019 Ga. LEXIS 913 (Ga. 2019).
Plain error review forfeited when jury not charged.- Trial court did not abuse the court's discretion in declining to allow the appellant to impeach the accomplice's hearsay statements to a friend with other, inconsistent hearsay statements that were later made to an investigator and with the plea bargain that the accomplice later made with the state because the appellant did not object at trial to the court not charging the jury on that point, thus, the appellant forfeited the claim. Cross v. State, Ga. , S.E.2d (Aug. 10, 2020).
Cited in Gresham v. State, 289 Ga. 103, 709 S.E.2d 780 (2011); Fairwell v. State, 311 Ga. App. 834, 717 S.E.2d 332 (2011); Tidwell v. State, 312 Ga. App. 468, 718 S.E.2d 808 (2011); Alvarez v. State, 312 Ga. App. 552, 718 S.E.2d 884 (2011); Bishop v. State, 314 Ga. App. 830, 726 S.E.2d 112 (2012); Morgan v. State, 290 Ga. 788, 725 S.E.2d 255 (2012); Stacey v. State, 292 Ga. 838, 741 S.E.2d 881 (2013); Mathis v. State, 293 Ga. 35, 743 S.E.2d 393 (2013); Ferguson v. State, 322 Ga. App. 565, 745 S.E.2d 784 (2013); Fleming v. State, 324 Ga. App. 481, 749 S.E.2d 54 (2013); Harris v. State, 324 Ga. App. 411, 750 S.E.2d 721 (2013); McBurrows v. State, 325 Ga. App. 303, 750 S.E.2d 436 (2013); Long v. State, 324 Ga. App. 882, 752 S.E.2d 54 (2013); Pitchford v. State, 294 Ga. 230, 751 S.E.2d 785 (2013), overruled on other grounds, State v. Chulpayev, 296 Ga. 764, 770 S.E.2d 808 (2015); Gilliland v. State, 325 Ga. App. 854, 755 S.E.2d 249 (2014); Whiting v. State, 296 Ga. 429, 768 S.E.2d 448 (2015); Shockley v. State, 297 Ga. 661, 777 S.E.2d 245 (2015); Lafavor v. State, 334 Ga. App. 125, 778 S.E.2d 377 (2015); DuBose v. State, 299 Ga. 652, 791 S.E.2d 9 (2016); Bradley v. State, 342 Ga. App. 486, 804 S.E.2d 144 (2017); Blackwell v. State, 302 Ga. 820, 809 S.E.2d 727 (2018); Gonzalez v. State, 350 Ga. App. 297, 829 S.E.2d 385 (2019); Keller v. State, 308 Ga. 492, 842 S.E.2d 22 (2020); Miller v. State, Ga. , S.E.2d (Aug. 10, 2020); Hill v. State, Ga. , S.E.2d (Sept. 28, 2020); Marshall v. State, Ga. , S.E.2d (Sept. 8, 2020).
Appellate Review
Time of judging error under plain error standard.
- When conducting review of asserted plain error under O.C.G.A. § 17-8-58(b), whether an error is clear or obvious is judged at the time of the appellate court's review. Lawrence v. State, 342 Ga. App. 396, 802 S.E.2d 859 (2017), cert. denied, No. S18C0094, 2018 Ga. LEXIS 322 (Ga. 2018).
Challenge to jury instruction waived.
- Although the defendant argued that the trial court failed to instruct the jury with the definition of attempt in conjunction with the court's jury charge on hijacking a motor vehicle, the trial court provided the jury with a complete instruction on the elements of hijacking a motor vehicle and the defendant never requested a written charge on the definition of attempt and failed to specifically object to the trial court's failure to define attempt following completion of the jury charge. Accordingly, the defendant's failure to preserve the error constituted a waiver of the issue. Johnson v. State, 299 Ga. App. 706, 683 S.E.2d 659 (2009).
Trial court's failure to give the defendant's requested supplemental charges could not be considered such plain error under O.C.G.A. § 17-8-58(b) as to offset the defendant's failure to object because the trial court gave the jury separate instructions that it was an affirmative defense that a person abandoned the persons's efforts to commit the crime and that when a defense is raised by the evidence the burden is on the state to negate or disprove the evidence beyond a reasonable doubt. Mikell v. State, 286 Ga. 434, 689 S.E.2d 286, overruled on other grounds, Manley v. State, 287 Ga. 338, 698 S.E.2d 301 (2010).
Because the defendant failed to lodge a specific objection to a jury charge and to assert the grounds for defendant's objection, the defendant's claim that the trial court erred in instructing the jury was waived for purposes of appellate review; it was highly probable that the charge did not contribute to the verdict because there were identification witnesses who were acquainted with the defendant, and the trial court instructed the jury of the state's burden of proving the identity of the perpetrator beyond a reasonable doubt. Hicks v. State, 287 Ga. 260, 695 S.E.2d 195 (2010), overruled on other grounds by McClure v. State, 306 Ga. 856, 834 S.E.2d 96 (2019).
Trial court did not err in failing to instruct the jury that the defendant had no duty to retreat because the defendant's failure to object to the charge as given before the jury retired to deliberate constituted a waiver of the issue on appeal under O.C.G.A. § 17-8-58(a); even if justification was the defendant's sole defense, the issue of retreat on the defendant's part was not raised by the evidence because the defendant was not questioned as to why the defendant did not leave the scene. Higginbotham v. State, 287 Ga. 187, 695 S.E.2d 210 (2010).
Trial court did not unlawfully comment on the evidence in violation of O.C.G.A. § 17-8-57 when the court instructed the jury that an armed robbery could be committed by killing the victim first and then taking the property because the challenged charge neither assumed certain things as facts nor intimated to the jury what the trial court believed the evidence to be; it appeared that the defendant was arguing that the trial court gave an incorrect statement of law but couched the defendant's enumeration using § 17-8-57 because the defendant failed to object to the charge at the defendant's trial, but parties could not circumvent the requirements of O.C.G.A. § 17-8-58 with such a maneuver. Vergara v. State, 287 Ga. 194, 695 S.E.2d 215 (2010).
Because there was no objection to a jury charge, any complaint with regard to the trial court's charge was waived. Leverette v. State, 303 Ga. App. 849, 696 S.E.2d 62 (2010).
Defendant's contentions that the trial court erred by failing to instruct the jury on Miranda and the defense of accident were waived for lack of a timely request or proper objection, and there was no plain error. Crawford v. State, 288 Ga. 425, 704 S.E.2d 772 (2011).
Because the defendant was tried after the effective date of the 2007 amendment to O.C.G.A. § 17-8-58 and did not specifically object to an instruction regarding the prior difficulties the defendant had with the victim at the conclusion of the jury charge, the defendant waived the right to urge error on appeal. Jones v. State, 289 Ga. 145, 710 S.E.2d 127 (2011).
Pursuant to O.C.G.A. § 17-8-58(a), the defendant waived the right to argue on appeal that the trial court erred in failing to instruct the jury on involuntary manslaughter and simple battery as lesser included offenses of felony murder because when the trial court asked if the defense had any exception to the jury instructions defense counsel replied "not as read"; the defendant did not assert that the failure to give the requested instructions constituted plain error under O.C.G.A. § 17-8-58(b), and no plain error appeared because only a charge on the greater offense of aggravated battery was warranted since the victim was seriously disfigured. Cawthon v. State, 289 Ga. 507, 713 S.E.2d 388 (2011).
Because the defendant failed to object to the lack of a jury instruction on knowledge, the defendant waived that claim under O.C.G.A. § 17-8-58(b); the defendant did not establish that the defendant's substantial rights were affected because the defendant did not show that the omission of the pattern jury charge the defendant requested resulted in a miscarriage of justice, and the trial court's charge contained substantially the same principles as the charge the defendant requested. White v. State, 312 Ga. App. 421, 718 S.E.2d 335 (2011).
Defendant's claim that the trial court made two omissions in the court's jury instructions was not reviewed on appeal because the defendant made an objection that was unrelated to the omissions asserted on appeal and failed to reserve further objections even though the defendant was tried before the effective date of O.C.G.A. § 17-8-58; the defendant failed to make any written request for the omitted instructions. Hill v. State, 290 Ga. 493, 722 S.E.2d 708 (2012).
Because, when the jury at the defendant's enticement of a child trial submitted a note asking "Does child molestation require sex?" the defendant's counsel suggested that the trial court tell the jury to refer back to the jury charge and indictment, which the trial court did; therefore,the defendant waived review of this issue on appeal. Wheeler v. State, 327 Ga. App. 313, 758 S.E.2d 840 (2014), overruled on other grounds by Willis v. State, 2018 Ga. LEXIS 685 (Ga. 2018).
Failure to charge the jury on defense of accident waived.
- In a vehicular homicide case, any error in the trial court's failure to charge the jury on the law of accident under O.C.G.A. § 16-2-2 was waived because the proposed charge was not in the record, and there was no evidence that it was the pattern charge, and the defendant failed to object after the charge was given as required by O.C.G.A. § 17-8-58(a). Rouen v. State, 312 Ga. App. 8, 717 S.E.2d 519 (2011).
Charge on truthfulness permitted.
- Court of appeals could not consider the defendant's claims that the trial court's jury instructions were erroneous because the defendant requested two of the charges and made no objection to the remaining charge at any time during the trial; plain error under O.C.G.A. § 17-8-58(b) did not result from the trial court's reputation for truthfulness charge. Bellamy v. State, 312 Ga. App. 899, 720 S.E.2d 323 (2011).
Instruction on impeachment.
- Because the jury charge on impeachment made plain that the jury was the sole judge of witness credibility, the charge provided no cause for reversal, much less any "plain error" pursuant to O.C.G.A. § 17-8-58(b); the charge stated that a witness "may be" impeached, not that he or she "is" impeached, by proof of drug convictions, and the trial court at no time suggested that the court found the defendant's testimony less than credible, nor did the court otherwise impermissibly comment on the evidence by simply recognizing that the defendant's prior drug convictions were the only ones offered for impeachment purposes. Collier v. State, 288 Ga. 756, 707 S.E.2d 102 (2011).
Instructions on multiple defendants.
- Trial court did not commit reversible error in the court's recharge by failing to instruct the jury that a verdict for one defendant did not demand the same verdict for the codefendant or that the charge had to be considered as a whole and that the initial charge and the recharge had to be given equal weight because the jury had been given the instructions in writing, and the codefendant failed to show any indication that the jury was confused or left with an erroneous impression of the law; neither the defendant nor the codefendant specifically objected to the instruction before the jury retired to deliberate, nor did either the defendant nor the codefendant object to the recharge on any ground set forth in the appeal. Howard v. State, 288 Ga. 741, 707 S.E.2d 80 (2011).
Reserving objections to jury charge.
- In a malice murder prosecution, defense counsel was not ineffective for not reserving objections to the trial court's jury charge generally as this procedure was not allowed under O.C.G.A. § 17-8-58. Marshall v. State, 285 Ga. 351, 676 S.E.2d 201 (2009).
Instruction on intelligence of witnesses.
- Trial court did not commit reversible error, much less "plain error" pursuant to O.C.G.A. § 17-8-58(b), by instructing the jury that the jury could consider the intelligence of the witnesses to decide the witnesses' credibility because even assuming that the better practice was to omit intelligence as one of the factors in the credibility charge, its inclusion was not reversible error; because no reversible error occurred with respect to the jury instruction on credibility, the codefendant succeeded on the codefendant's alternative claim that trial counsel rendered ineffective assistance in failing to object to that instruction. Howard v. State, 288 Ga. 741, 707 S.E.2d 80 (2011).
In a plain error review due to defendant's failure to object, the appellate court held that the trial court did not err when the court charged that the jury may consider the intelligence of a witness in assessing the witness's credibility because the Georgia Supreme Court has held that it is not reversible error to include intelligence as a factor in the jury charge on witness credibility. Gamble v. State, 291 Ga. 581, 731 S.E.2d 758 (2012).
Appellate review proper despite lack of objection.
- Although a defendant's counsel failed to object to a jury instruction that permitted the jury to find the defendant guilty of terrorist threats if the defendant threatened any crime of violence, whereas the indictment charged that the defendant threatened to kill the victim, the appellate court was authorized to review the instructions for plain error, because the defendant alleged a due process violation. However, no error was found. Martin v. State, 303 Ga. App. 117, 692 S.E.2d 741 (2010).
Pursuant to O.C.G.A. § 17-8-58(b), an error in a jury charge was considered on appeal notwithstanding the appellant's failure to object at trial because the charge constituted plain error which affected the appellant's substantial rights. Craft v. State, 309 Ga. App. 698, 710 S.E.2d 891 (2011).
Because the language of O.C.G.A. § 17-8-58 refers to the jury "charge", the statute applies not only to instructions given orally to the jury, but necessarily must apply to any written instructions given to the jury, and preprinted verdict forms have been treated as a portion of the jury instructions; use of such a form is intended to assist the jury in arriving at a lawful verdict, and a party is necessarily obligated to raise any objection to such a form as set forth in § 17-8-58(a) and, accordingly, when objection is not made, error is reviewed as provided in § 17-8-58(b). Cheddersingh v. State, 290 Ga. 680, 724 S.E.2d 366 (2012).
Because the defendant voiced no objection to the jury charge as given other than to renew a request for a lesser included offense, absent plain error, the issue was precluded from appellate review pursuant to O.C.G.A. § 17-8-58(b). Sanders v. State, 290 Ga. 637, 723 S.E.2d 436 (2012).
Defendant's claim that the trial court erred by failing to give the full pattern jury charge on leniency was only reviewed to determine whether the trial court's leniency charge constituted plain error because the defendant did not object to the charge as given, even though the defendant was required to do so under O.C.G.A. § 17-8-58(a). Kegler v. State, 317 Ga. App. 427, 731 S.E.2d 111 (2012).
No plain error found.
- Defendant's claim that there was a fatal variance between the indictment and the jury charge failed because there was no plain error as it was unlikely that any error affected the outcome of the proceedings since the jury was properly instructed that the indictment and the plea formed the issues to be decided and was properly instructed as to the burden of proof. Moore v. State, 354 Ga. App. 145, 840 S.E.2d 519 (2020).
No error found in refusing access to dictionary.
- Trial court properly denied the appellant's motion for a new trial because the appellant failed to prove that the trial court committed any error in the court's fashioning of a supplemental instruction to the jury regarding the definition of "entice" and, thus, the first prong of the test for plain error was not satisfied and it was in the trial court's discretion in declining the juror's request for access to a dictionary during deliberations. Weyer v. State, 333 Ga. App. 706, 776 S.E.2d 304 (2015).
No error found.
- To the extent the defendant sought review under O.C.G.A. § 17-8-58(b), of the trial court's charge to the jury on the court's consideration of child molestation, attempted child molestation, and indecent exposure, there was no error because the trial court explained that the jury needed to consider all three offenses at the same time and properly explained how the jury would record the jury's verdict. Machado v. State, 300 Ga. App. 459, 685 S.E.2d 428 (2009).
Trial court's failure to define "intent to distribute" when charging on intent to distribute marijuana under O.C.G.A. § 16-13-30(j)(1) was not error; the term "distribute" possessed only the ordinary and common dictionary meaning and did not need to be specifically defined. The defendant failed to object to the charge without the definition, and the charge as given was not plain error excusing the failure to object under O.C.G.A. § 17-8-58(b). Boring v. State, 303 Ga. App. 576, 694 S.E.2d 157 (2010).
Trial court did not commit plain error in instructing the jury that when operating a motor vehicle, every licensee had to display his or her license upon the demand of a law enforcement officer because there was no reasonable probability that the charge to the jury, when viewed as a whole, permitted the defendant's conviction under an erroneous theory; the trial court's charge enumerated for the jury the specific offenses with which the defendant was charged and instructed the jury to determine whether the defendant was guilty of those offenses, and it did not instruct the jury to determine whether the defendant was guilty of a violation of O.C.G.A. § 40-5-29. Edwards v. State, 308 Ga. App. 569, 707 S.E.2d 917 (2011).
During the defendant's trial for malice murder, the trial court did not commit reversible error, much less any "plain error" pursuant to O.C.G.A. § 17-8-58(b) by giving the pattern jury charge on voluntary manslaughter involving mutual combat because the trial court gave separate and full instructions on voluntary manslaughter, malice murder, and justification, and the jury, hearing the challenged instruction in the context of the charge as a whole and the evidence presented at trial, was not likely to be confused by the trial court's slip of the tongue; the defendant failed to inform the trial court of the specific objection and the grounds for such objection before the jury retired to deliberate; thus, O.C.G.A. § 17-8-58(a) thereby precluded appellate review of such portion of the jury charge. Dolphy v. State, 288 Ga. 705, 707 S.E.2d 56 (2011).
There was no reversible error, much less any "plain error" pursuant to O.C.G.A. § 17-8-58(b), because the statement the trial court made to the jury could not be considered coercive since the statement did not imply in any way that a verdict was required; the trial court did not emphasize the expense of trying the case, and the court's statement did not amount to an instruction for the jury to consider that expense in the jury's deliberations. Glass v. State, 289 Ga. 542, 712 S.E.2d 851 (2011).
Trial court's instruction to the jury on alternative ways that the state could prove the state's case after deliberations had started and after questions had been asked by the jury was not plain error under O.C.G.A. § 17-8-58 as the court had previously upheld such a charge as reflecting a correct statement of law, and when considered with the jury charges given as a whole and the evidence in the case, there was no indication that the charge improperly affected the outcome of the proceeding. Emerson v. State, 315 Ga. App. 105, 726 S.E.2d 600 (2012).
There was no plain error in the trial court's charge to the jury that no criminal liability would attach if the defendant killed a neighbor's dog in order to protect livestock because the trial court's charge on animal cruelty, as a whole, was consistent with the language of O.C.G.A. § 16-12-4, and the charge adequately explained to the jury that a person was not prohibited from killing an animal if necessary to protect his or her person or property or that of another. Futch v. State, 314 Ga. App. 294, 723 S.E.2d 714 (2012).
Defendant failed to establish plain error in the trial court's charge pursuant to O.C.G.A. § 17-8-58 because the trial court clearly instructed the jury that before the court was authorized to return a verdict of guilty of malice murder or felony murder, the court had to first determine whether mitigating circumstances would cause the offense to be reduced to voluntary manslaughter; the structure of the actual verdict form made it clear that as to each victim, the jury was required to consider malice murder, felony murder, and voluntary manslaughter simultaneously. Ortiz v. State, 291 Ga. 3, 727 S.E.2d 103 (2012).
Under a plain error of review due to defense counsel's failure to object to the jury instructions at the defendant's trial for felony murder, the trial court did not err in the court's presentation of the concepts of justification that serves as a defense to criminal charges, and passion resulting from provocation that could reduce murder to voluntary manslaughter as the court gave the pattern jury instructions and did not mislead the jury to have understood wrongly that limitations on and conditions precedent to the application of the law of justification were also applicable to voluntary manslaughter. Terry v. State, 291 Ga. 508, 731 S.E.2d 669 (2012).
Trial court did not commit plain error by giving a level of certainty charge by instructing the jury on the reliability of eyewitness identification because the victims gave descriptions of the robbers to the police immediately, identified the defendant from mug shot books, and did not repeatedly testify as to the victims' certainty. Russell v. State, 319 Ga. App. 472, 735 S.E.2d 797 (2012).
Trial court did not err by failing to charge the jury on unarmed robbery or theft by taking as lesser-included offenses to armed robbery in light of the overwhelming evidence of the defendant's guilt and the failure to give the lesser-included instructions neither created any reasonable likelihood that the state's burden of proving all essential elements of armed robbery was lessened, or that the charge as given likely affected the outcome of the proceedings. Boccia v. State, 335 Ga. App. 687, 782 S.E.2d 792 (2016).
Trial court did not commit plain error by charging the jury concerning the limited use of sexual assault extrinsic evidence admitted pursuant to O.C.G.A. § 24-4-413 because the charge was not erroneous as such evidence was admissible as relevant. Marlow v. State, 337 Ga. App. 1, 785 S.E.2d 583 (2016), overruled on other grounds by Quiller v. State, 338 Ga. App. 206, 789 S.E.2d 391 (2016).
Defendant's conviction for possession of cocaine with intent to distribute was upheld because the defendant's claimed jury charge error failed as it did not affect the outcome of the trial since the defendant willingly removed the shoes when requested and expressly denied having anything, yet 32 bags of cocaine were found in the sock the defendant was wearing, which did not support the conclusion that the defendant did not know or was mistaken about the substance of the drugs found. Bailey v. State, 341 Ga. App. 694, 801 S.E.2d 614 (2017).
Trial court did not commit plain error with regards to the charge on good character evidence as the charge was substantially identical to the suggested pattern jury instruction on good character evidence; the defendant pointed to no authority for the proposition that the pattern charge was inadequate; and the charge given in the case on good character evidence properly explained how character evidence ought to be considered by the jury. Williams v. State, 304 Ga. 455, 818 S.E.2d 653 (2018).
Although the offense of criminal damage to property was a felony, the trial court should not have mentioned criminal damage to property in connection with the charge on felony murder as the indictment did not charge the defendant with felony murder predicated on criminal damage to property; however, the defendant did not show plain error as the defendant did not show that the error in the jury charge likely affected the outcome of the proceedings because the jury found the defendant guilty of the aggravated assault upon the victim with a handgun, which was one of the predicate felonies included in the indictment, and it was highly likely that the jury based the jury's felony murder verdict on that predicate felony. Williams v. State, 304 Ga. 455, 818 S.E.2d 653 (2018).
Trial court did not plainly err by giving the jury the state's requested instruction on revenge for a prior wrong because the evidence presented in the case authorized the instruction as the appellant told the police during the second interview that the appellant was defending oneself when the appellant stabbed the victim once after the victim had indicated that the victim was going to get the appellant. Collins v. State, 308 Ga. 515, 842 S.E.2d 275 (2020).
Trial court did not plainly err by instructing the jury on voluntary manslaughter as a lesser-included offense of felony murder because such instruction was applicable to both defendants as the state presented evidence that immediately following a fight, in which both defendants were involved and in which the victim cut the second defendant, both defendants fired handguns at the victim. Hamlette v. State (two cases), 353 Ga. App. 640, 839 S.E.2d 161 (2020).
Because the defendant pointed to no evidence that the witness knew that the defendant was planning on assaulting the victim, and the defendant failed to cite precedent requiring an accom- plice-corroboration instruction under circumstances similar to those presented, the appellate court concluded that the trial court did not commit obvious error in failing to instruct the jury on the need for corroboration of accomplice testimony. Wilson v. State, 351 Ga. App. 794, 833 S.E.2d 175 (2019).
Plain error did not occur as a result of the trial court failing to instruct the jury regarding leniency that could have been granted to the defendant in exchange for the defendant's testimony because the defendant specifically testified that the defendant was not promised any leniency regarding the two pending criminal indictments and the detective testified that the defendant was not promised any leniency. Wilson v. State, 351 Ga. App. 794, 833 S.E.2d 175 (2019).
No plain error found.
- Trial court did not commit plain error because the court clearly instructed the jury that the other acts evidence presented in the case was to be considered only for the purpose of determining the defendant's intent with respect to the crimes for which the defendant was being tried, and for no other purpose; the jury instructions were not obviously erroneous; and the evidence that the defendant committed the acts of which the defendant was convicted was substantial. Manning v. State, 303 Ga. 723, 814 S.E.2d 730 (2018).
Trial court did not commit plain error in instructing the jury on how to determine the defendant's guilt or innocence because the court read to the jury each charge listed in the indictment; the court instructed the jury on the elements of each crime charged; the court explained the verdict form to the jury, noted that the form contained six counts, and instructed the jury that as to each count the form provided a space for the jury to check either guilty or not guilty; and the manner in which the trial court instructed the jury was not confusing with respect to whether the jury was to make a determination of guilt on each individual count of the indictment. Manning v. State, 303 Ga. 723, 814 S.E.2d 730 (2018).
While the trial court failed to give a separate charge on possession of a firearm, because the trial court read the indictment to the jury, which provided that the defendant was charged with the offense of possession of a firearm during the commission of a felony, and that the defendant had a .40 caliber firearm in the defendant's possession during the commission of a murder, which was a felony, the jury was provided with the elements of that crime, and the trial court did not commit plain error based on the failure to give the separate jury charge for that offense. Anderson v. State, Ga. , S.E.2d (Aug. 24, 2020).
No plain error found in admission of photographs.- Because the testimony that the first victim's mother provided about the in-life photographs was limited, and the mother testified only that the photographs portrayed the mother and the first victim at the mother's 40th birthday party, the defendant did not establish that the admission of the photographs was plain error as the defendant did not show (or allege) that anything in particular about the photographs themselves was likely to affect the outcome of the defendant's trial. Brown v. State, Ga. , S.E.2d (Aug. 10, 2020).
No plain error on simple assault.
- Trial court did not commit reversible error, much less "plain error" pursuant to O.C.G.A. § 17-8-58(b), by failing to inform the jury of the definition of simple assault because the defendant's defense was mistaken identity, and the undisputed evidence showed that the perpetrators intentionally fired the perpetrators' guns through a parking lot occupied by many pedestrians and in the direction of a vehicle; neither negligence nor reckless conduct was an issue and, thus, any error in the charge would not have affected the outcome of the case. Howard v. State, 288 Ga. 741, 707 S.E.2d 80 (2011).
No plain error in prior difficulties charge.
- There was no reversible error, much less any "plain error" pursuant to O.C.G.A. § 17-8-58(b), in the trial court's decision to give a prior difficulties charge to the jury because evidence was presented regarding prior difficulties between the defendant and the victim; thus, the inclusion of a prior difficulties charge did not constitute an impermissible comment on the evidence. Jones v. State, 289 Ga. 145, 710 S.E.2d 127 (2011).
Although a jury was not explicitly instructed that the jury was required to find that a defendant was acting in a dangerous manner in order to convict the defendant of felony murder based on theft by receiving, the jury did in fact make such a finding when the jury found the defendant guilty of vehicular homicide by reckless driving because that offense, by definition, created a foreseeable risk of death. Because the proceedings were not affected, there was no plain error. State v. Kelly, 290 Ga. 29, 718 S.E.2d 232 (2011).
Although a defendant failed to object to a jury instruction that the defendant contended allowed the jury to consider an alternative way to convict the defendant for false imprisonment from the facts alleged in the indictment, the court could consider whether the giving of the instruction constituted plain error. Because the trial court gave limiting instructions that the jury was only to consider the crimes as charged in the indictment, the charge was not plain error. Schneider v. State, 312 Ga. App. 504, 718 S.E.2d 833 (2011).
No plain error in intent instruction.
- In a defendant's trial for possession of a firearm during the commission of a crime, the trial court properly instructed the jury that there must have been a joint operation of an act or omission to act and intention, that intent was an essential element of any crime, and that there was no presumption that the defendant acted with criminal intent. Therefore, any omitted language regarding the defendant's knowledge did not contribute to the outcome of the trial. Morrell v. State, 313 Ga. App. 443, 721 S.E.2d 643 (2011), cert. denied, No. S12C0800, 2012 Ga. LEXIS 484 (Ga. 2012).
No plain error in proximate cause instruction.
- Trial court did not err in failing to instruct the jury on the law regarding proximate cause and its relationship to felony murder because the omission of additional language concerning proximate cause could not be considered a clear or obvious error under O.C.G.A. § 17-8-58; the jury was instructed that to find the defendant guilty of felony murder while in the commission of felony criminal attempt to possess cocaine, the jury had to find beyond a reasonable doubt that the felony was dangerous per se or, by the attendant circumstances in the case, created a foreseeable risk of death, and the jury was also instructed that for felony murder to be found, the jury had to find that, in the commission of the underlying felony, the defendant caused the death of another human being irrespective of malice. Sapp v. State, 290 Ga. 247, 719 S.E.2d 434 (2011).
No plain error in omission of duty to retreat.
- Under a plain error analysis in the defendant's trial for murder, the trial court did not err when the court failed to charge the jury that one acting in defense of self has no duty to retreat because the jury charges given in the case fairly informed the jury as to the law of self-defense and the defendant failed to affirmatively show that the failure to charge on the duty to retreat probably affected the outcome of the trial. Shaw v. State, 292 Ga. 871, 742 S.E.2d 707 (2013).
Failure to charge the jury on accident did not amount to plain error because the evidence did not warrant such a charge; the only evidence of unintentional touching occurred in the context of typical family play wholly unrelated to the incidents for which the defendant was convicted. Haithcock v. State, 320 Ga. App. 886, 740 S.E.2d 806 (2013).
No plain error in instruction on prior consistent statements
- Trial counsel's failure to object to a jury instruction on prior consistent statements did not amount to plain error because the instruction did not affect the outcome of the trial since such an instruction does not explicitly direct the jury to place any additional weight on prior consistent statements beyond that which the law already gives them. Gaither v. State, 321 Ga. App. 643, 742 S.E.2d 158 (2013).
No plain error in accident instruction.
- Trial court did not commit reversible error by failing to instruct the jury on the defense of accident because, as to the count for child molestation by showing the first victim photos of nude persons and persons performing sexual acts, the defendant claimed that the defendant never committed such an act and, thus, could not claim it was an accident, and as to the other two counts, any error in failing to give such an instruction was not plain because the charge given fairly instructed the jury that the jury had a duty to acquit the defendant if the jury determined the state failed to prove the defendant's guilt beyond a reasonable doubt. Ogletree v. State, 322 Ga. App. 103, 744 S.E.2d 96 (2013).
Trial court did not commit plain error as to the jury charge regarding malice murder and felony murder because the defendant failed to demonstrate that the alleged error in the jury charge likely affected the outcome of the proceedings since the defendant was not convicted of either malice murder or felony murder. Booker v. State, 322 Ga. App. 257, 744 S.E.2d 429 (2013).
No plain error in omission of accomplice corroboration instruction.
- Defense counsel was not ineffective for failing to request a charge on accomplice corroboration because the accomplice was not the only witness; thus, there was no plain error in failing to give the accomplice corroboration charge since the state relied on other evidence apart from the accomplice's testimony. Lane v. State, 324 Ga. App. 303, 750 S.E.2d 381 (2013).
No plain error in omission of voluntary manslaughter instruction.
- In the defendant's trial for murder of another inmate, no evidence warranted instructions on voluntary manslaughter and mutual combat because the defendant testified the defendant acted in self-defense in the fight and did not intend to kill the victim, while eyewitnesses described the defendant as chasing the victim. Ruffin v. State, 296 Ga. 262, 765 S.E.2d 913 (2014).
Trial court's failure to charge on voluntary manslaughter was not plain error because there was no evidence that the other gang members had guns or shot at the appellant, and the only shell casings at the scene were found where appellant was seen firing a gun, plus, even if words were exchanged prior to the event, as a matter of law, angry statements alone ordinarily did not amount to serious provocation within the meaning of a voluntary manslaughter charge. Jones v. State, 296 Ga. 663, 769 S.E.2d 901 (2015), overruled in part by Veal v. State, 298 Ga. 691, 784 S.E.2d 403 (2016).
In a felony murder conviction, the trial court did not err in refusing to instruct the jury on the lesser charge of voluntary manslaughter because no plain error existed as the evidence showed that the defendant had substantial time to cool down after the defendant learned that the victim was not going to procure the cigarettes for the defendant and before the defendant intentionally sought out the victim because the fact that the defendant discussed the matter with a cellmate, procured the shank, and then later went in search of the victim was evidence that the defendant acted in a rational and calculated fashion rather than solely as a result of a sudden, violent, and irresistible passion. Barron v. State, 297 Ga. 706, 777 S.E.2d 435 (2015).
Response to jury question did not create plain error.
- Defendant was not entitled to reversal under a plain error analysis because it was not highly probable that any error in the response to a question from the jury about the elements of felony obstruction of an officer affected the outcome of the proceedings. Carlson v. State, 329 Ga. App. 309, 764 S.E.2d 890 (2014).
In an indictment alleging that the defendant committed the offense of aggravated assault by making an assault upon one of the victims by pointing a deadly weapon at that victim, the jury charge improperly placed on the state the extra burden of showing that, in addition to assaulting with a deadly weapon, the defendant also assaulted with the intent to murder, rape, or rob; however, because the defendant was convicted of aggravated assault, the additional burden on the state could not be deemed to have likely affected the outcome, and did not constitute plain error. Staley v. State, 330 Ga. App. 501, 767 S.E.2d 507 (2014).
No plain error in response to jury question.
- Defendant's failure to object to the trial court's response to a jury question meant that appellate review was only available if the response constituted plain error and since the initial charges to the jury were correct and the response told the jury they had received all applicable law, the trial court's failure to provide a more specific answer did not affect the defendant's substantial rights. Aikens v. State, 297 Ga. 229, 773 S.E.2d 229 (2015).
Instruction on affirmative defenses not error.
- Giving of an instruction on affirmative defenses and requested by the defendant was not error, clear or obvious. Williams v. State, 297 Ga. 460, 773 S.E.2d 213 (2015).
Instruction on handgun not error.
- In light of the overwhelming evidence of the defendant's guilt, any error in the trial court's instruction to the jury that a handgun was a deadly weapon as a matter of law did not seriously affect the fairness, integrity, or public reputation of the proceedings. Howell v. State, 330 Ga. App. 668, 769 S.E.2d 98 (2015).
No error in instruction on use of audio-recorded statement.
- Defendant could not demonstrate that any error in the charge relating to the use of the defendant's audio-recorded statement for impeachment purposes had any effect on the outcome at trial as the jury was authorized to consider the defendant's video-recorded, incriminating statements made at the sheriff's office, irrespective of whether the jury found that the prior audio-recorded statement made during the execution of the search warrant was obtained in violation of Miranda; and the jury had before the jury the defendant's initial incriminating statements made to the county investigator in the living room during the execution of the search warrant that were not included on the audio recording made by the Georgia Bureau of Investigation special agent. McCullough v. State, 330 Ga. App. 716, 769 S.E.2d 138 (2015), cert. denied, No. S15C0908, 2015 Ga. LEXIS 330 (Ga. 2015).
Instruction on sexual exploitation of children not plain error.
- When the defendant was convicted of five counts of sexual exploitation of children, although it was error for the trial court to charge the jury on the law of deliberate ignorance, the error did not rise to the level of plain error because there was no evidence that the defendant was aware of a high probability of the existence of child pornography on the defendant's laptop and purposefully contrived to avoid learning of that fact to have a defense in the event of criminal prosecution as the conflicting evidence pointed either to the defendant having actual knowledge of the child pornography on the defendant's laptop or no knowledge at all. Furthermore, there was no plain error in the trial court's charge on the law of equal access based on the language in the charge regarding the defendant's knowledge as it would have been clear to the jury that to convict the defendant, the defendant had to knowingly possess the child pornography found on the defendant's laptop. McCullough v. State, 330 Ga. App. 716, 769 S.E.2d 138 (2015), cert. denied, No. S15C0908, 2015 Ga. LEXIS 330 (Ga. 2015).
Instruction on assault not plain error.
- Although the trial court erred by instructing the jury on assault, the instruction did not likely affect the outcome of the proceedings nor did it seriously affect the fairness, integrity, or public reputation of the judicial proceedings as the jury was provided with the indictment and the trial court correctly instructed the jury on the language of O.C.G.A. § 16-5-20(a)(2) for assault as charged in the accusation. Driskell v. State, 333 Ga. App. 886, 777 S.E.2d 717 (2015), cert. denied, No. S16C0191, 2016 Ga. LEXIS 115 (Ga. 2016).
Assuming that it was obviously erroneous for the trial court to fail to remind the jury about the "within arm's reach" element when the jury described the offense of unlawful possession of a firearm during the commission of a felony, that failure did not constitute plain error as it had no effect on the outcome of the defendant's trial as that element was properly included in the indictment; the jury was instructed that the state had to prove every material allegation in the indictment beyond a reasonable doubt; whoever used a gun to shoot the victim actually had a firearm within arm's reach at the time of the shooting; and the only issue at trial was whether one of the defendants was the shooter and the others were parties to the crime. Anderson v. State, 299 Ga. 193, 787 S.E.2d 202 (2016).
No plain error in fingerprinting instruction.
- Because the fingerprint evidence placed one of the defendant's cohorts at numerous burglary scenes and was relevant to show the progression of law enforcement's investigation into the murder and to show that the incident was not isolated, but rather was part of a larger conspiracy between the defendant and the defendant's two cohorts to commit burglaries in the surrounding community, the trial court was authorized to give the charge on fingerprint evidence, and there was no plain error in giving the charge. Myers v. State, 299 Ga. 409, 788 S.E.2d 451 (2016).
No plain error in aggravated assault instruction.
- Trial court did not commit plain error in instructing the jury on the elements of aggravated assault because the court gave the jury the pattern charge for aggravated assault with a deadly weapon, and the defendant did not contend that the defendant was indicted for some other form of aggravated assault; and, even if the trial court had given an overbroad aggravated assault instruction, that defect was cured as the record indicated that the court provided the jury with a copy of the indictment for its deliberations and the court instructed the jury that the burden of proof rested on the state to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt. Herrington v. State, 300 Ga. 149, 794 S.E.2d 145 (2016).
Pretermitting whether the trial court erred in failing to instruct the jury sua sponte on the requirement that accomplice testimony be corroborated, there was no likelihood the testimony affected the outcome of the trial in light of the defendant's conversation with the victim while the victim was in jail regarding the defendant's operation. Ferguson v. State, 335 Ga. App. 862, 783 S.E.2d 380 (2016).
In a possession of a firearm during the commission of a felony case, although the trial court did not define aggravated assault as a felony, because the trial court's instructions regarding the possession charge focused the jury's attention on robbery without mentioning aggravated assault or identifying any offense other than robbery as a felony, the defendant did not show either clear error or that the complained of instruction affected the outcome of the proceedings; thus, the trial court did not commit plain error in instructing the jury. Demps v. State, 337 Ga. App. 657, 788 S.E.2d 525 (2016).
Following the defendant's conviction for felony murder stemming from the shooting death of a victim who was in the line of fire during an ongoing argument, the defendant's claim that the trial court committed plain error by instructing the jury on the commission of aggravated assault in a manner not charged in the indictment (putting the victim in fear) was rejected because there was no dispute that the victim died and no likelihood that the jury convicted based on the victim's apprehension of violent injury. Cato v. State, 304 Ga. 496, 820 S.E.2d 41 (2018).
No plain error in serious injury by vehicle instruction.
- Jury instruction for serious injury by vehicle as given was not plain error because the charge that the defendant's counsel requested was substantially similar to the charge that the trial court gave; the trial court charged the jury that no person could be convicted of any crime unless and until each element of the crime as charged was proven beyond a reasonable doubt; and a conviction under the serious injury by vehicle statute as charged did not require a conviction under the driving under the influence statute. Fitzpatrick v. State, 339 Ga. App. 135, 793 S.E.2d 446 (2016).
No plain error in instruction on corroboration of confessions.
- Failure to give a jury charge regarding the corroboration of confessions did not constitute plain error because the defendant's statements were admissions, not confessions, as the defendant did not confess to the murder or the arson; and, even if the defendant's statements to the witnesses were confessions, the defendant did not show that the error affected the outcome of the proceedings as there was ample corroborating evidence, including a witness's testimony that the defendant was alone with the victim shortly before the murder; testimony that a neighbor saw the defendant flee through the neighbor's yard, and the defendant's request on a recorded tape that two witnesses fabricate an alibi defense for the defendant for the time of the crime. English v. State, 300 Ga. 471, 796 S.E.2d 258 (2017).
No plain error in failing to instruct on coercion.
- Trial court did not plainly err in failing to charge the jury that coercion was not a defense to murder because the defendant contended that the shooter acted independently and without the defendant's knowledge in attacking the victim while the defendant was attempting to recover the defendant's pickup truck from another individual, and a charge on coercion would have had no direct relevance to the defense. Huff v. State, 300 Ga. 807, 796 S.E.2d 688 (2017).
No plain error in omission of corroborating accomplice instruction.
- While the trial court's failure to give a corroborating accomplice instruction was clear error, it did not amount to plain error because the defendant failed to establish that omitting the instruction probably affected the outcome of the trial given that there was not merely one alleged accomplice who affirmatively identified the defendant, but also eyewitness testimony identifying the defendant and witness testimony relating the defendant's admission of the murder. Lyman v. State, 301 Ga. 312, 800 S.E.2d 333 (2017).
Failure to correctly read standard charge not plain error.
- When the trial court, in the court's oral charge to the jury, apparently forgot to read the final paragraph of the standard charge on malice murder which defined the concept of malice, the trial court's mistake in reading the jury charge did not constitute plain error as it did not affect the defendant's substantial rights in such a manner as to affect the outcome of the trial court proceedings as the jury, during deliberations, had the entire charge to consider as a written copy of charges was sent out with the jury and, in that written copy, the charge on malice murder was complete. Forte v. State, 302 Ga. 726, 808 S.E.2d 658 (2017).
When the defendant was charged with aggravated assault with a deadly weapon, and the other charges of felony murder, feticide, and possession of a firearm during the commission of a felony were predicated on the aggravated assault charge, even if the trial court provided a charge on aggravated assault that included a method not charged in the indictment, any error in the court's instruction was cured because the trial court provided the jury with the indictment and instructed the jury that the state was required to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt; thus, the defendant could not establish reversible error, plain or otherwise. Simpson v. State, 302 Ga. 875, 808 S.E.2d 718 (2017).
Instruction on competence not error.
- Trial court's instructions did not constitute plain error as the trial court gave all of the defendant's requested instructions with the exception of an instruction on the form of the verdict in the defendant's separate trial on the issue of mental competency, which was nearly identical to the charge given; the trial court charged the jury that the defendant could not be tried for criminal offenses while in a condition of mental incompetence or insanity; and the charge was not misleading or confusing, and was sufficient to inform the jury as to the question for the jury's determination and the factors comprising the legal test for competence to stand trial. Jones v. State, 303 Ga. 496, 813 S.E.2d 360 (2018).
Trial court's instruction on participation in criminal gang activity was a correct and complete statement of the law and did not constitute plain error because the instruction did not fail to limit the scope of the jury's inquiry to the specific predicate criminal acts alleged in the indictment; and the instruction listed the four elements of the offense. Dixon v. State, Ga. , 843 S.E.2d 806 (2020).
No plain error in robbery instruction.
- In an action for armed robbery, the trial court's failure to give an instruction to the jury on the lesser-included offense of robbery did not amount to plain error because the state presented sufficient evidence to support an armed robbery conviction and the defendant failed to argue during the charging conference that robbery as a lesser included offense was the defendant's sole defense. Powell v. State, 352 Ga. App. 14, 833 S.E.2d 602 (2019).
No plain error in instruction on indictment.
- Although an instruction that before considering other-act evidence to prove intent, the jury had to find beyond a reasonable doubt that the appellant committed acts alleged in an indictment was not an incorrect statement of law, current Georgia law did not require such instruction be given, so the appellant failed to show plain error. Jackson v. State, 306 Ga. 69, 829 S.E.2d 142 (2019).
No plain error in circumstantial error instruction.
- Defendant did not establish plain error in the jury instruction on circumstantial evidence because the instructions the trial court gave adequately advised the jury that if the jury believed that the circumstantial evidence supported an alternative hypothesis, the jury should return a verdict of not guilty, and it was unlikely that the jury would have returned a different verdict had the trial court added the language of the circumstantial evidence statute to the instructions. Weaver v. State, 351 Ga. App. 167, 830 S.E.2d 618 (2019), cert. denied, No. S19C1502, 2020 Ga. LEXIS 113 (Ga. 2020).
No plain error in omission of sudden emergency instruction.
- Since the defendant was convicted of felony murder and aggravated assault in connection with the shooting death of the victim, the defendant's brother-in-law, because the evidence showed that the defendant already possessed the pistol before the defendant was confronted with any situation that would require the defendant to act in self-defense, the trial court's refusal to give the defendant's requested instructions on sudden emergency did not constitute plain error as it was not a clear or obvious error. Clark v. State, 306 Ga. 367, 829 S.E.2d 306 (2019), cert. denied, 2020 U.S. LEXIS 1059, 206 L. Ed. 2d 180 (U.S. 2020).
No plain error found in failing to charge on accident defense.
- In a child molestation case, the trial court did not plainly err in failing to sua sponte charge the jury on the defense of accident because accident was not the defendant's sole defense to the charge that the defendant molested the second victim by touching the second victim's vaginal area with the defendant's hand as the state presented evidence that the defendant molested the second victim in that manner on several occasions, and the defendant's accident defense addressed only one of those instances; and the defendant did not show that the trial court's failure to charge the jury on accident likely affected the outcome of the proceedings. Pinkston v. State, 353 Ga. App. 88, 834 S.E.2d 571 (2019).
No plain error found in failing to distinguish between statement, admission, and confession.
- Trial court did not plainly err in failing to instruct the jury on the legal differences between a "statement," an "admission," and a "confession" because, after the trial court instructed the jury on how to evaluate the credibility of witnesses generally and how to determine whether it was authorized to consider any statement by the defendant, the court instructed the jury to apply the general rules for testing the believability of witnesses and for deciding what weight, if any, to give to all or any part of a statement. Martin v. State, 306 Ga. 538, 832 S.E.2d 402 (2019).
No plain error in jury instruction on statute of limitations.
- Trial court's inaccurate jury instruction on the statute of limitation, which failed to tell the jury that the victim's 16th birthday was a potentially relevant date for statute of limitation purposes, did not constitute plain error requiring reversal despite counsel's failure to object because the defendant could not demonstrate that the inaccuracy in the trial court's statute of limitation charge impacted the jury's verdict as the state indicted the defendant within seven years of both the victim's 16th birthday and the victim's outcry to police. Leekomon v. State, 351 Ga. App. 836, 832 S.E.2d 437 (2019), cert. denied, No. S20C0283, 2020 Ga. LEXIS 412 (Ga. 2020).
No plain error in charge on rape and sexual battery.
- Sequential charge on rape and sexual battery was not improper and did not constitute plain error as the evidence did not support a sexual-battery conviction; and there was no language in the challenged instruction on rape and sexual battery suggesting that the jury was required to reach a unanimous verdict as to rape before considering the lesser-included offense of sexual battery. Seals v. State, 350 Ga. App. 787, 830 S.E.2d 315 (2019).
Failure to instruct on involuntary manslaughter not plain error.
- Trial court did not plainly err in failing to instruct the jury on involuntary manslaughter based on reckless conduct as a lesser included offense of the murder charges because the defendant's possession of cocaine with intent to distribute, the defendant's aggravated assault of the victims as part of the defendant's effort to regain the drugs, and the defendant's possession of the gun as a convicted felon were themselves felonies, and to support a jury charge on involuntary manslaughter, the unlawful act underlying the unintentional death of the victim had to be an act other than a felony. Hood v. State, 303 Ga. 420, 811 S.E.2d 392 (2018).
No plain error in instruction on deadly force.
- Trial court did not commit plain error in charging the jury because the jury was charged that the defendant's use of deadly force in defense of property would be justified if reasonably believed to be necessary to prevent the commission of a forcible felony and that aggravated assault was a forcible felony; thus, the jury had sufficient direction in order to intelligently consider the defense-of-personal-property theory of justification based on the defendant's claim that the victim committed aggravated assault when the victim lunged at the individual holding the gun and attempted to wrestle the gun away from the other individual. Hood v. State, 303 Ga. 420, 811 S.E.2d 392 (2018).
No plain error in instruction on defense of habitation.
- Trial court did not plainly err in the court's instruction to the jury on the defense of mistake of fact as the defendant did not show that the outcome of the defendant's trial would have been different absent the alleged error because the jury was properly instructed as to the state's burden of proof on the defendant's actual defense of a habitation, which was intertwined with the defendant's mistake of fact defense, as the trial court fully instructed the jury on defense of a habitation, informed the jury that defense of a habitation was an affirmative defense, and instructed the jury that the state bore the burden of disproving affirmative defenses beyond a reasonable doubt. Winters v. State, 303 Ga. 127, 810 S.E.2d 496 (2018).
Trial court did not plainly err in instructing the jury on the defense of habitation form of justification where the habitation being defended was the victim's and not the defendant's because the court of appeals rejected the argument that the defense was for the use of a defendant, not a victim; further, the supreme court had not ruled on that issue. Beasley v. State, 305 Ga. 231, 824 S.E.2d 311 (2019).
No plain error in not giving voluntary manslaughter instruction.
- Trial court did not plainly err as the trial court was not required to charge the jury on the lesser included offense of voluntary manslaughter after each count of felony murder because, in the defendant's case, there was no evidence of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person. Dent v. State, 303 Ga. 110, 810 S.E.2d 527 (2018).
Alleged errors created no prejudice.
- Although the jury was not specifically instructed on the defense of habitation, the jury was, in fact, instructed on self-defense as well as accident, and the jury rejected all of the appellant's conflicting stories and those defenses and in light of compelling evidence of the appellant's guilt, an alleged error did not likely affect the outcome of the trial court proceedings. State v. Newman, 305 Ga. 792, 827 S.E.2d 678 (2019).
Failure to instruct on mistake of fact not plain error.
- Failure to give a mistake of fact jury charge did not amount to plain error because the defendant could not show that the trial court's failure to give the charge likely affected the outcome of the proceedings as the evidence established that the defendant fought with the victim, the defendant's father, prior to the victim's death, was holding the gun to the victim's head when the gun fired, fled the scene and failed to call for help after the shooting, admitted to numerous people that the defendant had shot the victim, lied to law enforcement on numerous occasions about the defendant's role in the victim's death, and wrote a letter to the district attorney taking full responsibility for the victim's death. Norris v. State, Ga. , 843 S.E.2d 837 (2020).
No plain error in sequestration charge.
- Trial court did not commit plain error by failing, sua sponte, to give a jury charge on the rule of sequestration as the rule of sequestration did not apply to exclude the sheriff from the courtroom because it was within the discretion of the trial judge to permit a witness to remain in the courtroom to assist either the state or the accused; and the trial court properly allowed the sheriff to be exempted from the rule of sequestration based on the fact that the sheriff was listed as a witness for both the defense and the prosecution, and the security issues in the courtroom on the day of trial. Szorcsik v. State, 303 Ga. 737, 814 S.E.2d 708 (2018).
Omission of circumstantial evidence instruction not plain error.
- Because the evidence of the defendant's participation in the first burglary was wholly circumstantial, the clear and longstanding precedent required the trial court to instruct the jury on proof by circumstantial evidence even though the defendant did not request such an instruction; however, the defendant did not meet the burden under the plain error test to show that the omission of the instruction likely affected the jury's verdict as the trial court's charge sufficiently informed the jury of the state's burden of excluding all other reasonable hypotheses except the defendant's guilt with respect to the first burglary, and the defendant never suggested that the defendant's brother committed the first burglary alone. Gadson v. State, 303 Ga. 871, 815 S.E.2d 828 (2018).
No plain error in impeachment instruction.- There was no plain error in the trial court's instructions on impeachment and prior statements and that the evidence included all of the testimony of the witnesses and any exhibits admitted during the trial as the instructions clearly directed the jury to consider as evidence all of the testimony presented in the case, including testimony regarding the witnesses' prior statements. Jackson v. State, Ga. , S.E.2d (Mar. 4, 2019).
Instruction on circumstantial evidence omitted.- While the denial of the defendant's request that the instruction on circumstantial evidence include the state's burden to exclude reasonable hypotheses other than guilt was erroneous, the defendant's substantial rights were not affected, and it therefore did not amount to plain error because the state's case was not based primarily on circumstantial evidence as, in addition to testifying that the defendant held the second victim at gunpoint, the second victim testified about directly witnessing the defendant shoot the first victim, and the third victim testified that the defendant held the third victim at gunpoint in the bedroom and ordered the third victim to remain on the bed, and because the evidence of the defendant's guilt was strong. Jackson v. State, Ga. , S.E.2d (Mar. 4, 2019).
No plain error when jury charges tailored to evidence.
- In the defendant's trial for murder and other charges, even if defense counsel was deficient for failing to object to the jury charges regarding the defendant's good character and use of prior statements, the defendant failed to demonstrate that the defendant was prejudiced by that failure; the charges were pattern charges and were tailored to the evidence. Jackson v. State, 305 Ga. 614, 825 S.E.2d 188 (2019).
Jury charge regarding character evidence.
- Plain error did not occur given that character instruction given by the trial court fully and adequately explained to the jury how the jury ought to consider the defendant's character trait of truthfulness; thus, the defendant failed to show that simply adding a reference to the defendants general character would have likely affected the outcome of the trial court proceedings. Montgomery v. State, 350 Ga. App. 244, 828 S.E.2d 620 (2019).
Omission of oral instruction on elements of sexual battery.
- Trial court erred in granting the defendant's motion for new trial as the jury charge, taken as a whole, adequately informed the jury of the charges and did not constitute plain error because, for purposes of plain-error analysis, the charge included both the oral and written instructions given to the jury; the defendant failed to show that the omission of any oral instructions on the elements of sexual battery likely affected the outcome of the proceedings; the indictment, including the elements of the sexual battery charge, was read to the jury; the jury was instructed that the jury had to find each element in the indictment beyond a reasonable doubt; and the indictment was sent into the jury room. State v. Crist, 341 Ga. App. 411, 801 S.E.2d 545 (2017).
Telling jury it had to reach verdict on each count.
- Trial court's answer to a jury question did not amount to plain error because, even assuming the trial court clearly erred in telling the jury it had to reach a verdict on each count, the defendant could not show that the error probably affected the outcome given the strength of the evidence, including four eyewitnesses who knew the defendant well identifying the defendant as the shooter. Hampton v. State, 302 Ga. 166, 805 S.E.2d 902 (2017).
Instruction that it was not necessary to read indictment.
- Trial court's instruction essentially telling the jury it was not necessary to read the indictment was particularly harmful given the sheer size and technical nature of the indictment; however, under plain error review, the trial court's charge did not affect the outcome of the proceedings because, upon review of the instructions as a whole, the trial court recited the charges against the defendant and properly instructed the jury on the presumption of innocence and proof beyond a reasonable doubt, that the state bore the burden to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt, and that the burden of proof never shifted to the defendant. Mathis v. State, 343 Ga. App. 206, 807 S.E.2d 4 (2017), cert. dismissed, No. S18C0491, 2018 Ga. LEXIS 316 (Ga. 2018).
Plain error doctrine not applicable.
- Defendant was not entitled to plain error review of a colloquy at trial, held outside the jury's presence, between the court and a witness called by the state who was reluctant to testify, because the alleged error did not involve error in the sentencing phase of a trial resulting in the death penalty, in a trial judge's expression of opinion to the jury, or in the jury charge. Solomon v. State, 293 Ga. 605, 748 S.E.2d 865 (2013).
Charge on voluntary intoxication did not constitute plain error under O.C.G.A. § 17-8-58 because the charge on voluntary intoxication stated as a prerequisite to the statute's applicability the fact that the person was legally sane, i.e, that the person's mind was capable of distinguishing right from wrong and of reasoning and acting rationally, when not affected by intoxicants. Alvelo v. State, 290 Ga. 609, 724 S.E.2d 377 (2012).
Trial court did not plainly err in failing to charge the jury that the state bore the burden of disproving the defendant's alibi defense beyond a reasonable doubt when the trial court completely and correctly instructed the jury on the defendant's presumption of innocence, the state's burden of proof beyond a reasonable doubt that the defendant committed the crimes at issue, and on assessment of the credibility of witnesses. Scott v. State, 290 Ga. 883, 725 S.E.2d 305 (2012).
Giving of disapproved jury charge was plain error.
- Jury charge that a DUI defendant's refusal to submit to a blood alcohol test could create an inference that the test would show the presence of alcohol which impaired the driver's driving was plain error, requiring a new trial, because the charge shifted the burden of proof to the defendant, requiring the driver to rebut the inference that the driver was an impaired driver. Wagner v. State, 311 Ga. App. 589, 716 S.E.2d 633 (2011).
Erroneous jury charge not excused.
- Defendant's conviction for statutory rape was reversed because the trial court committed plain error by giving an erroneous jury charge, which affected the defendant's substantial right to a charge that provided the jury with the proper guideline for determining the defendant's guilt or innocence, and the court failed to remedy the error. Agan v. State, 319 Ga. App. 560, 737 S.E.2d 347 (2013).
There was no plain error in the trial court's charge to the jury because the trial court gave an appropriate limiting instruction prior to the admission of the similar transaction evidence and because the purposes cited in the trial court's final charge were permissible and relevant to the state's case. Griffin v. State, 327 Ga. App. 751, 761 S.E.2d 146 (2014).
Verdict form constituted plain error.
- Preprinted verdict form constituted plain error under O.C.G.A. § 17-8-58(b) because the form affected the defendant's substantial rights by actively removing the presumption of innocence from the defendant's trial; the defendant did not intentionally relinquish the right to have the burden of proof properly stated in the verdict form because the defendant's failure to object was more appropriately described as a forfeiture of the right. Cheddersingh v. State, 290 Ga. 680, 724 S.E.2d 366 (2012).
No failure to distinguish between civil and criminal liability.
- Trial court did not commit plain error with regard to the instruction on reckless driving and reckless disregard by purportedly failing to sufficiently distinguish between civil and criminal liability as reviewing both the recharge and the initial charge together the appellate court failed to see how the jury was confused to the extent that the defendant was convicted on a lower level of criminal intent. Lauderback v. State, 320 Ga. App. 649, 740 S.E.2d 377 (2013).
ARTICLE 4 CONDUCT AND ARGUMENT OF COUNSEL
RESEARCH REFERENCES
ALR.
- Comment by prosecution on failure of defendant to call character witnesses, 80 A.L.R. 227.
Criticism in judge's charge to jury of argument of defendant's counsel in criminal case, 86 A.L.R. 899.
Attorney's comment on opposing party's refusal to permit introduction of, or to offer, privileged testimony, or to permit privileged witness to testify, 116 A.L.R. 1170.
Comments by prosecuting attorney regarding jury's right or privilege to recommend or fix punishment, 120 A.L.R. 502.
Exclusion or absence of defendant, pending trial of criminal case, from courtroom, or from conference between court and attorneys, during argument on question of law, 144 A.L.R. 199; 85 A.L.R.2d 1111.
Propriety and effect of attack on opposing counsel during trial of a criminal case, 99 A.L.R.2d 508.
Comment or argument by court or counsel that prosecution evidence is uncontradicted as amounting to improper reference to accused's failure to testify, 14 A.L.R.3d 723.
Propriety and prejudicial effect of prosecuting attorney's arguing new matter or points in his closing summation in criminal case, 26 A.L.R.3d 1409.
Propriety and prejudicial effect of informing jury that accused has taken polygraph test, where results of test would be inadmissible in evidence, 88 A.L.R.3d 227.
Propriety and prejudicial effect of prosecutor's argument to jury indicating his belief or knowledge as to guilt of accused - modern state cases, 88 A.L.R.3d 449.
Propriety and prejudicial effect of prosecutor's argument giving jury impression that defense counsel believes accused guilty, 89 A.L.R.3d 263.
Propriety and prejudicial effect of prosecutor's argument to jury indicating that he has additional evidence of defendant's guilt which he did not deem necessary to present, 90 A.L.R.3d 646.
Propriety and prejudicial effect of prosecutor's argument giving jury impression that judge believes defendant guilty, 90 A.L.R.3d 822.
Circumstances giving rise to prejudicial conflict of interests between criminal defendant and defense counsel - state cases, 18 A.L.R.4th 360.
Attorney's right to appear pro hac vice in state court, 20 A.L.R.4th 855.
Prosecutor's appeal in criminal case to self-interest or prejudice of jurors as taxpayers as grounds for reversal, new trial, or mistrial, 60 A.L.R.4th 1063.
Prosecutor's appeal to racial, national, or religious prejudice as ground for mistrial, new trial, reversal, or vacation of sentence, 70 A.L.R.4th 664.
Propriety of trial court order limiting time for opening or closing argument, 71 A.L.R.4th 200.