Grullon v. State, S21G0485

Federal and local law enforcement investigated a heroin trafficking scheme run by a supplier in Mexico, a middleman (Enciso‑Rodriguez), and buyers who received heroin concealed inside car batteries.
On February 6, 2016, Grullon and co‑defendant Hernandez were stopped after leaving a QuikTrip; officers cut open a battery in their car and found six bricks (465 grams) of a mixture containing heroin.
Grullon was indicted for trafficking (OCGA § 16‑13‑31(b)), tried in September 2017, and convicted; the trial court gave a deliberate‑ignorance jury instruction over Grullon’s objection at the charge conference.
After the court finished charging the jury, defense counsel said, “No, sir, Judge,” when asked about exceptions; the jury convicted and Grullon was sentenced to 30 years.
On appeal the State conceded the deliberate‑ignorance charge was erroneous; the Court of Appeals affirmed, holding Grullon affirmatively waived the claim by not reiterating his objection after the charge.
The Supreme Court of Georgia granted certiorari and held Grullon did not affirmatively waive the claim; it reversed that portion of the Court of Appeals’ decision and remanded for plain‑error analysis of the conceded instructional error.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Grullon affirmatively waived his challenge to the deliberate‑ignorance jury instruction	Grullon: he objected at the charge conference and later asked for plain‑error review; silence after charge was at most forfeiture, not intentional waiver	State/Court of Appeals: counsel’s “no” when asked for exceptions constituted affirmative waiver of any objection	Held: No affirmative waiver. Earlier objections and lack of an explicit, intentional relinquishment mean the claim survives the first step of plain‑error review
Whether the Court of Appeals’ waiver ruling precludes plain‑error review of the conceded erroneous instruction	Grullon: Court of Appeals erred; appellate court must still apply Kelly plain‑error test	State: previously argued harmlessness; Court of Appeals declined further plain‑error analysis because of asserted waiver	Held: The case is remanded for the Court of Appeals to proceed with the remaining plain‑error steps (clear error, effect on substantial rights, and discretionary relief)

Jackson v. Virginia, 443 U.S. 307 (1979) (constitutional standard for sufficiency of the evidence)
Perez‑Castillo v. State, 257 Ga. App. 633 (2002) (form of deliberate‑ignorance jury instruction)
Matos‑Bautista v. State, 353 Ga. App. 773 (2020) (instruction equating intent and knowledge is erroneous)
Kelly v. State, 290 Ga. 29 (2011) (four‑part plain‑error test for jury instructions)
Cheddersingh v. State, 290 Ga. 680 (2012) (distinguishing forfeiture from affirmative waiver)
Vasquez v. State, 306 Ga. 216 (2019) (examples of when a defendant’s actions constitute affirmative waiver/invited error)
United States v. Olano, 507 U.S. 725 (1993) (difference between forfeiture and intentional waiver)
Lee v. State, 347 Ga. App. 508 (2018) (contrast where counsel’s prior stipulation and later “no objection” supported waiver finding)
Collins v. State, 308 Ga. 515 (2020) (recognizing counsel’s “no objections” can still permit plain‑error review)
Guajardo v. State, 290 Ga. 172 (2011) (same)