In the Supreme Court of Georgia



                                                     Decided: June 6, 2016


                       S16A0397. THE STATE v. ALVAREZ.

       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,

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          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.
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

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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
        [State v. Kelly, 290 Ga. 29 (718 SE2d 232) (2011)] 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.

White v. State, 291 Ga. 7, 8 (2) (727 SE2d 109) (2012). 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 Bishop v. State,

271 Ga. 291 (2) (519 SE2d 206) (1999). 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

        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.”

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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. Johnson v. State, 295 Ga. 615 (759 SE2d

837) (2014) (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

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established. See Bishop, supra, 271 Ga. at 291 (2) (rejecting this argument by

overruling Bruce v. State, 259 Ga. 798 (3) (387 SE2d 886) (1990)). 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 Stanbury v. State, ___ Ga. ___ (3) (___ SE2d ___) (Case

No. S16A0321, decided May 23, 2016) (2016).

      Judgment affirmed. All the Justices concur.




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