State v. Alvarez
299 Ga. 213
Ga.
2016
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THE STATE v. ALVAREZ

S16A0397

SUPREME COURT OF GEORGIA

DECIDED JUNE 6, 2016

299 Ga. 213 | 790 SE2d 66

(2003) (“[T]he trustworthiness of the statements is enhanced by the fact that [the declarant‘s] statements to the witnesses that concerned [the defendant‘s] behavior were made at times shortly after that behavior occurred.“).

Here, Barnett‘s statement bore significant indicia of trustworthiness because Tarvarious testified that Barnett was his cousin for whom he had “close feelings“; Barnett had no apparent motive to fabricate the statement; Barnett made the statement to Tarvarious shortly after the conversation between Barnett and Appellant; and the statement aligned with Dubose‘s testimony about Appellant‘s paranoid allegations. Appellant points out that Tarvarious did not tell the police about this statement until more than 18 months after the murder, when he was facing criminal charges.3 But that one point is not controlling. Considering all the circumstances, the trial court did not abuse its discretion in admitting Tarvarious‘s testimony about Barnett‘s statement.

Judgment affirmed. All the Justices concur.

DECIDED JUNE 6, 2016.

Long D. Vo, for appellant.

Kenneth W. Mauldin, District Attorney, Brian V. Patterson, Kristopher M. Bolden, Assistant District Attorneys; Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Mary Catherine Greaber, Assistant Attorney General, for appellee.

S16A0397. THE STATE v. ALVAREZ.

(790 SE2d 66)

BENHAM, Justice.

Appellee Pedro Alvarez was tried by a jury and convicted of malice murder and other offenses arising out of the shooting death of Ainsley Jackson.1 Immediately before the shooting, appellee observed

Jackson and appellee‘s brother, known as “Nunu” Alvarez, engage in a fist fight over the sale of cocaine to a person they both claimed as a customer. After appellee‘s brother lost the fight, appellee retrieved a shotgun from a nearby apartment, went back outside, and fired two shots at Jackson. Although the brother was subpoenaed to testify at trial, he failed to appear. In both its opening statement and closing argument, the State referenced the statement the brother made to police shortly after the incident. Because the brother did not appear as a witness and his out-of-court statements were not entered into evidence, appellee objected to the reference made during the closing argument, and the trial court sustained the objection. In his motion for new trial, appellee claimed the State nevertheless continued to reference the inadmissible statement. In granting the motion for new trial, the trial court found the State‘s conduct in referencing the brother‘s statement in its closing even after the court sustained appellee‘s objection, and in implying that the statement incriminated appellee, was improper and prejudiced appellee‘s right to a fair trial. The court also found it had committed plain error when it failed to instruct the jury that the State had the burden of proving beyond a reasonable doubt that appellee‘s conduct was not justified despite being requested to do so in appellee‘s written requests to charge. The State filed this appeal, and we affirm.

1. We agree that appellee is entitled to a new trial as a result of plain error in the jury instruction regarding the appellee‘s defense of justification. Appellee‘s sole defense was justification, and evidence was presented to support this defense. Appellee requested a charge instructing the jury that the State had the burden of disproving beyond a reasonable doubt that appellee was justified in his conduct. When the trial court failed to give the requested charge, trial counsel failed to object to this omission. Consequently, the claimed error must be reviewed under the plain error doctrine. See OCGA § 17-8-58 (b).2

In considering whether plain error is shown, this Court has stated:

Reversal is authorized if all four prongs of the standard adopted in [] are met: the instruction was erroneous, the error was obvious, the instruction likely affected the outcome of the proceedings, and the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

. The failure to give the requested instruction on appellee‘s affirmative defense of justification was erroneous in this case because evidence was presented to support the defense and the charge requested is a correct statement of the law. See . Given the longstanding rule regarding the State‘s burden of disproving a defendant‘s affirmative defense in these circumstances, the error was obvious. The failure to give this instruction was all the more harmful in this case since, during the State‘s closing argument, the prosecuting attorney referenced the brother‘s absence as a trial witness and implied appellee had a duty to present this testimony if it would have confirmed appellee‘s justification defense.

We reject the State‘s assertion that the outcome of the proceedings was not likely to have been affected by the instruction because the evidence of justification was not credible. Sufficient evidence was presented from which a jury could find justification, and in fact, justification was the critical disputed issue at trial. In these circumstances, the failure to instruct the jury on the State‘s burden to disprove that defense likely affected the outcome and fairness of the proceeding, and we cannot say that the trial court erred in finding this failure to instruct was plain error. Cf. (appellant failed to show that the trial court‘s failure to give the requested instruction affected the outcome of the proceedings where the undisputed evidence established that the instruction was not applicable). We also reject the State‘s argument that because the instruction, taken as a whole, properly instructed the jury on the burden of proof and that appellee had a right to use force in a reasonable manner to defend himself, then plain error was not established. See (rejecting this argument by overruling ). The trial court did not err in granting appellee‘s motion for new trial on the ground that plain error was created by the court‘s failure to instruct the jury that the State had the burden of disproving appellee‘s justification defense.

2. We do not reach the remaining grounds for appeal, relating to rulings on the State‘s references in its opening statement and closing argument to Nunu Alvarez‘s statement to the police, because those alleged errors are unlikely to recur at retrial. See .

Judgment affirmed. All the Justices concur.

DECIDED JUNE 6, 2016.

Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Joshua D. Morrison, Assistant District Attorneys, for appellant.

Eric J. Taylor, for appellee.

Notes

1
The crimes occurred on January 21, 2010. On April 23, 2010, a Fulton County grand jury returned an indictment against appellee charging him with malice murder, felony murder, aggravated assault with a deadly weapon, and possession of a firearm during commission of a felony. Appellee was tried June 20-June 27, 2011, and the jury returned a verdict of guilty on all counts. The felony murder conviction was vacated as a matter of law, and the conviction for aggravated assault merged into the murder conviction for sentencing purposes. Appellee was sentenced to life in prison for malice murder, and the trial court imposed a five-year sentence for the possession of a firearm conviction, which was suspended. Appellee filed a timely motion for new trial which was twice amended. After a hearing, the trial court granted the motion for new trial, as amended, by order dated August 5, 2014. The State filed a timely notice of appeal, and the case was docketed in this Court to the January 2016 term of court for a decision to be made on the briefs.
2
Pursuant to OCGA § 17-8-58 (a), a party who objects to a jury charge or a failure to charge is required to inform the trial court of the objection before the jury retires to deliberate. Pursuant to OCGA § 17-8-58 (b), if a party fails to object as required by subsection (a), appellate review is precluded “unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties.”
3
Tarvarious testified, outside of the jury‘s presence, that he was currently in jail on a pending probation revocation matter, but that he had not been promised any sort of benefit for his testimony. And while Tarvarious was interviewed by the police shortly after Barnett was shot, he was not asked questions about the events that occurred earlier that day.
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