State v. Nicholson
321 Ga. App. 314
Ga. Ct. App.2013Background
- Consolidated appeals; State appeals trial court’s grant of new trial to Nicholson and Jones.
- Challenges: trial court erred by legal errors in written instructions and verdict form; issues deemed waiveable but raised as plain error.
- Record shows charges against Nicholson and Jones related to Nicholson’s meth transactions, theft allegations, and a later assault incident involving a second victim.
- Post-conviction motions asserted ineffective assistance of counsel and trial court error in charges and verdict form; claimed inadvertent inclusion of inapplicable offenses in written charge.
- Trial court granted new trial on grounds of improper unanimity and inapplicable offenses; court relied on Cantrell/Kunselman framework; court also referenced plain error under Kelly.
- Appellate court reverses and remands for consideration of issues not ruled below; judgments reversed and cases remanded with direction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Plain error from inapplicable offenses in written instructions | Nicholson/Jones | State | No reversible plain error; isolated reference insufficient. |
| Unanimity requirement for lesser offenses | Nicholson/Jones | State | Charge resembled Camphor; did not compel unanimity on greater offense before lesser. |
| Error in granting new trial on lesser offenses under Cantrell rule | Nicholson/Jones | State | Reversed on this ground; Cantrell framework misapplied. |
| Whether remand for unruled grounds was necessary | Nicholson/Jones | State | Remand granted to address remaining grounds. |
Key Cases Cited
- Cantrell v. State, 266 Ga. 700 (Ga. 1996) (unanimity not required to consider lesser offenses when greater offense is charged)
- Kunselman v. State, 232 Ga. App. 323 (Ga. App. 1998) (reversed on improper unanimity charge; pattern charge preferred)
- Camphor v. State, 272 Ga. 408 (Ga. 2000) (unanimity not required to compel; structure allowed by court)
- Horton v. State, 264 Ga. App. 907 (Ga. App. 2003) (charges similar to Camphor; not requiring unanimity)
- Kelly v. State, 290 Ga. 29 (Ga. 2011) (plain error four-prong test; error must affect substantial rights)
- Dockery v. State, 308 Ga. App. 502 (Ga. App. 2011) (sequential lesser offense charge acceptable in some contexts)
- Allison v. State, 259 Ga. App. 775 (Ga. App. 2003) (sequential lesser offense charge acceptable)