State v. Kelly, 290 Ga. 29

Kelly was convicted in August 2007 of felony murder and four other charges for the December 2003 death of Warren Jacobs, and sentenced to life imprisonment plus concurrent terms.
The felony murder count charged that the murder occurred during the felony of theft by receiving stolen property; other counts included first degree vehicular homicide (hit and run), vehicular homicide (reckless driving), theft by receiving, and hit and run.
Counsel did not object to any portion of the jury charge at trial, but Kelly later argued on motion for new trial that the court failed to instruct on the predicate felony's dangerousness or inherent danger creating foreseeable risk of death.
The trial court granted a new trial on the basis that the omission constituted plain error, and the State appealed interlocutorily.
The Georgia Supreme Court held that appellate review of unobjected jury instructions is required under OCGA 17-8-58(b) for plain error, adopted the federal four-prong standard, and analyzed the omission under that standard.
The Court concluded the omission did not constitute plain error and remanded for consideration of Kelly's remaining weight-of-evidence grounds; judgment reversed and remanded.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether OCGA 17-8-58(b) requires plain error review of unobjected-to jury instructions	Kelly asserts unobjected errors may be reviewed for plain error.	State argues plain error review is not required or only waived errors should be reviewed.	Yes; plain error review is required.
Whether the omission of an explicit inherent dangerousness instruction is plain error	Kelly contends omission affected the essential element of dangerousness.	State argues no clear or obvious error; precedent disfavors such instruction.	Not plain error; no clear or obvious error affecting substantial rights.
Whether the omission affected the trial's outcome given other charges	Omission could have changed verdict if the dangerousness element were required.	Other charged facts (vehicular homicide by reckless driving) already establish dangerousness.	No outcome-affecting impact; sufficient evidence of dangerousness existed through other charges.
Whether the case should be remanded for consideration of remaining weight-of-evidence grounds	The trial court did not address all grounds for new trial.	Procedural posture permits remand for those issues.	Remand to address remaining grounds.

O'Neal v. State, 285 Ga. 361 (2009) (plain error standard applied to questions of law in new-trial context)
United States v. Olano, 507 U.S. 725 (1993) (four-prong federal plain error test)
Puckett v. United States, 556 U.S. 129 (2009) (sets forth plain error framework under Rule 52(b))
Shivers v. State, 286 Ga. 422 (2010) (inherent dangerousness instruction: refusal to give need not be error)
Madrigal v. State, 287 Ga. 121 (2010) (earlier limits on plain error/waiver in jury-instruction claims)
Collier v. State, 288 Ga. 756 (2011) (treatment of unobjected jury instructions and plain error review)