State v. Kelly

• Decision Date: 07 November 2011
• Docket Number: No. S11A0734.,S11A0734.
• Citation: 718 S.E.2d 232,290 Ga. 29,11 FCDR 3440
• Parties: The STATE v. KELLY.
• Court: Georgia Supreme Court

11 FCDR 3440

290 Ga. 29

718 S.E.2d 232

The STATE

v.KELLY.

No. S11A0734.

Supreme Court of Georgia.

Nov. 7, 2011.

Paul L. Howard, Jr., Dist. Atty., Marc A. Mallon, Paige R. Whitaker, Asst. Dist. Attys., for appellant.

Cromwell & Hibbert, Henry A. Hibbert, for appellee.

HUNSTEIN, Chief Justice.

We granted the State's interlocutory appeal, in which it challenges the grant of a new trial to appellee Lonnie Kelly as the result of the finding of a fatal omission in the jury charge, to address (1) the circumstances under which an appellate court may review alleged jury instruction errors to which no objection was raised at trial, see OCGA § 17–8–58; and (2) assuming such review was appropriate in this case, whether the trial court correctly held that the omission in the jury charge here constituted plain error. We conclude that, while the trial court did properly conduct a plain error review of the unobjected-to jury charge, the court erred in holding that the omission in the charge did in fact constitute plain error. Accordingly, we reverse and remand.

In August 2007, Kelly was convicted of felony murder and four other charges in connection with the December 2003 death of Warren Jacobs and sentenced to life imprisonment plus concurrent terms of fifteen and five years. The felony murder count charged Kelly with causing the victim's death during the commission of the felony of theft by receiving stolen property. The other counts included (1) first degree vehicular homicide based on hit and run; (2) first degree vehicular homicide based on reckless driving; (3) theft by receiving stolen property; and (4) hit and run. On motion for new trial, a different trial judge held that the trial court had failed to adequately instruct the jury regarding the requisite dangerousness of the predicate felony, see Ford v. State, 262 Ga. 602(1), 423 S.E.2d 255 (1992) (to support felony murder conviction, predicate felony must either be dangerous per se or create foreseeable risk of death under the attendant circumstances), and that such omission constituted plain error, mandating a new trial.

The felony murder count of the indictment charged, in pertinent part, the said accused ... did unlawfully during the commission of a felony, to wit: theft by receiving stolen property (auto), cause the death of Warren Jacobs, a human being, by driving a vehicle on a public highway after sunset without headlights at a high rate of speed; contrary to the laws of said State, the good order, peace and dignity thereof.

Likewise, the vehicular homicide by reckless driving count was based on “driving a vehicle on a public highway after sunset, without headlights, at a high rate of speed.” All the counts of the indictment were read to the jury at the outset of trial.

In instructing the jury at the close of evidence, the trial court set forth the general elements of felony murder and theft by receiving, and gave a standard charge on proximate cause. In addition, largely tracking the language of the pattern instruction on felony murder,¹ the trial court charged further:

If you find and believe beyond a reasonable doubt that the defendant ... was engaged in the commission of the felony of theft by receiving stolen property, then you would be authorized to find the defendant guilty of murder, whether the homicide was intended or not.

...

In order for homicide to have been done in the commission of this particular felony there must be some connection between the felony and the homicide. Homicide must have been done in carrying out the unlawful act and not collateral to it.

It is not enough that the homicide occurred soon or presently after the felony was committed.... The felony must have a legal relationship to the homicide, be at least concurrent with it in part, and be part of it in an actual and material sense.

A homicide is committed in the carrying out of a felony when it is committed by the accused while engaged in the performance of any act required for the full execution of the felony.

The jury was also charged that the offense of vehicular homicide requires a finding that the defendant “causes the death of another person by driving any vehicle in such a manner as to be in reckless disregard for the safety of persons or property.”

At the conclusion of the jury charge, Kelly's counsel stated affirmatively that the defense had no objections to any portion of the court's charge. On motion for new trial, however, Kelly asserted error in the trial court's “failure to instruct the jury to consider whether the predicate offense in support of the felony murder charge was occurring in a manner which would create a foreseeable risk of harm,” thereby allegedly usurping the jury's role as fact-finder with respect to the “inherent dangerousness” element of the felony upon which the felony murder charge was predicated. The trial court agreed and granted a new trial on this basis. We now review the trial court's decision de novo. O'Neal v. State, 285 Ga. 361, 677 S.E.2d 90 (2009) (first grant of new trial on special grounds involving a question of law must be reviewed under de novo standard).

1. Given Kelly's undisputed failure to object to any portion of the trial court's jury charge, we must first address the duty of an appellate court under current law to consider alleged jury instruction errors to which no objection was asserted at trial. OCGA § 17–8–58 provides that:

(a) Any party who objects to any portion of the charge to the jury or the failure to charge the jury shall inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate. Such objections shall be done outside of the jury's hearing and presence.

(b) Failure to object in accordance with subsection (a) of this Code section shall preclude appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties. Such plain error may be considered on appeal even if it was not brought to the court's attention as provided in subsection (a) of this Code section.

Id. Effective for trials conducted on or after July 1, 2007, see Ga. L.2007, p. 595, § 5, this statute changed the prior practice whereby “counsel could generally reserve objections to the charge pending a motion for new trial or appeal.” Jack Goger, Daniel's Georgia Criminal Trial Practice, § 24–16 (2010–2011 ed.). While generally erecting more stringent requirements for the preservation of jury instruction errors than have existed in the past, the statute retains an avenue of appellate review for “plain error[s] which affect [ ] substantial rights of the parties,” without regard to their preservation below. OCGA § 17–8–58(b).

Unresolved since the statute's enactment is the issue of precisely when an appellate court is required to engage in a “plain error” analysis of unobjected-to jury charges being challenged on appeal. Compare Collier v. State, 288 Ga. 756(4), 707 S.E.2d 102 (2011) (assuming without deciding that unobjected-to jury instructions are subject to review for plain error under OCGA § 17–8–58(b)), with id. at 759–766, 707 S.E.2d 102 (Nahmias, J., concurring specially, opining that plain error review is required whenever jury instruction issue is asserted on appeal). See also Cawthon v. State, 289 Ga. 507, 713 S.E.2d 388 (2011) (two concurring opinions expressing different views on meaning of OCGA § 17–8–58(b)). Indeed, this Court appears to have applied the statute inconsistently, conducting plain error review as a matter of course in some cases, while finding appellate review to have been waived altogether in others. Compare Crawford v. State, 288 Ga. 425(3)(a), 704 S.E.2d 772 (2011) (applying plain error review); Lacey v. State, 288 Ga. 341(2), 703 S.E.2d 617 (2010) (same); Higginbotham v. State, 287 Ga. 187(4), 695 S.E.2d 210 (2010) (same); Hicks v. State, 287 Ga. 260(4), 695 S.E.2d 195 (2010) (same), with Madrigal v. State, 287 Ga. 121(3), 694 S.E.2d 652 (2010) (finding waiver of unpreserved error without addressing plain error); Thompson v. State, 286 Ga. 889(3), 692 S.E.2d 379 (2010) (same); Hatcher v. State, 286 Ga. 491(4), 690 S.E.2d 174 (2010) (same); Metz v. State, 284 Ga. 614(5), 669 S.E.2d 121 (2008) (same).

We now hold that, under OCGA § 17–8–58(b), appellate review for plain error is required whenever an appealing party properly asserts an error in jury instructions.² This construction is consistent with the plain language of the statute, which creates a clear exception to the waiver rule in all cases of plain error. We note that it is also consonant with the analogous statutory provision applying to civil cases. See OCGA § 5–5–24(c) ( “[n]otwithstanding [the failure to object at trial], the appellate courts shall consider and review erroneous charges where there has been a substantial error in the charge which was harmful as a matter of law” (emphasis added)). ³ To the extent authority from this Court or the Court of Appeals may be construed otherwise, such cases are hereby overruled. See, e.g., Madrigal, supra, 287 Ga. at 122–123(3), 694 S.E.2d 652; Thompson, supra, 286 Ga. at 891(3), 692 S.E.2d 379; Hatcher, supra, 286 Ga. at 494(4), 690 S.E.2d 174; Metz, supra, 284 Ga. at 619–620(5), 669 S.E.2d 121; Ware v. State, 305 Ga.App. 229(3), 699 S.E.2d 435 (2010); Vaughn v. State, 301 Ga.App. 55(2), 686 S.E.2d 847 (2009); Jones v. State, 300 Ga.App. 287(3), 684 S.E.2d 411 (2009); Johnson v. State, 293 Ga.App. 294(2), 666 S.E.2d 635 (2008).

2. (a) Having determined that plain error analysis is required in this case where omission of the jury instruction was enumerated and argued on motion for new trial and on appeal, we now undertake that analysis. In accordance with the federal plain error rule, we have previously defined “plain error” as “that which is ‘so clearly erroneous as to result in a likelihood of a grave miscarriage of justice’ or which ‘seriously...