State v. Alvarez, 299 Ga. 213

Pedro Alvarez shot and killed Ainsley Jackson after watching Jackson fight Alvarez’s brother (“Nunu”) over a cocaine sale; Alvarez retrieved a shotgun and fired two shots.
Nunu was subpoenaed but did not appear at trial; the State referenced Nunu’s prior statement to police in opening and closing, though the statement was not entered into evidence.
Alvarez was convicted of malice murder and other offenses; post-trial the felony murder and aggravated assault convictions were vacated/merged for sentencing.
Alvarez moved for a new trial; the trial court granted the motion, finding (1) the State improperly referenced Nunu’s out-of-court statement after an objection was sustained and (2) the court committed plain error by failing to instruct the jury that the State had the burden to disprove Alvarez’s justification defense beyond a reasonable doubt.
The State appealed; the Supreme Court of Georgia affirmed the grant of a new trial based on plain error in the jury instruction, declining to decide the other prosecutorial-reference issues as likely not to recur at retrial.

Issue	State's Argument	Alvarez's Argument	Held
Whether failure to instruct jury that State must disprove justification beyond a reasonable doubt was plain error	Omission did not affect outcome; evidence of justification lacked credibility; overall charge sufficiently covered burden of proof	Requested instruction was correct law; omission was obvious error and likely affected outcome because justification was the critical disputed issue	Reversal affirmed: omission was plain error warranting new trial
Whether references to absent witness Nunu’s out-of-court statement prejudiced Alvarez	References were proper argument or harmless	References invoked inadmissible hearsay and implied Alvarez should have produced the witness, prejudicing fairness	Not decided on merits; court declined to reach because error unlikely to recur at retrial

State v. Kelly, 290 Ga. 29 (718 S.E.2d 232) (established four-prong plain-error standard for jury instructions)
White v. State, 291 Ga. 7 (727 S.E.2d 109) (applied Kelly plain-error test)
Bishop v. State, 271 Ga. 291 (519 S.E.2d 206) (requested justification instruction is correct statement of law when supported by evidence)
Johnson v. State, 295 Ga. 615 (759 S.E.2d 837) (discussed applicability of instructions where evidence makes them inapplicable)
Bruce v. State, 259 Ga. 798 (387 S.E.2d 886) (overruled in part by Bishop on related burden-of-proof instruction issues)