Kelly test in Georgia

2016As to the fourth prong of the Kelly test, an appellate court has the discretion to remedy the error upon a determination that “the error seriously affects the fairness, integrity, or public reputation of the proceedings below.” Kelly, 290 Ga. at 33 (2) (a).

2016As to the fourth prong of the Kelly test, an appellate court has the discretion to remedy the error upon a determination that “the error seriously affects the fairness, integrity, or public reputation of the proceedings below.” Kelly, 290 Ga. at 33 (2) (a).

2017The State notes that, based on Noel v. State, 297 Ga. 698, 700 (2) ( 777 SE2d 449 ) (2015), the trial court erred in merging the felony murder convictions and then merging the predicate felonies into the remaining felony murder conviction.

2017The State notes that, based on Noel v. State, 297 Ga. 698, 700 (2) ( 777 SE2d 449 ) (2015), the trial court erred in merging the felony murder convictions and then merging the predicate felonies into the remaining felony murder conviction.

2013See generally Alatise v. State, 291 Ga. 428, 430 (2) ( 728 SE2d 592 ) (2012) (pretermitting whether the defendant met his burden with regard to the first and second prongs of the Kelly test, yet determining that plain error under Kelly test was not established because the omission of a specific instruction did not affect the outcome of the trial proceedings, where a review of the charge in its entirety showed that any error in the omission of a specific charge was harmless); Allen, supra at 745-746 (3) (concluding that, in light of the trial court’s charge as a whole, the omission of a specifi

2013See generally Alatise v. State, 291 Ga. 428, 430 (2) ( 728 SE2d 592 ) (2012) (pretermitting whether the defendant met his burden with regard to the first and second prongs of the Kelly test, yet determining that plain error under Kelly test was not established because the omission of a specific instruction did not affect the outcome of the trial proceedings, where a review of the charge in its entirety showed that any error in the omission of a specific charge was harmless); Allen, supra at 745-746 (3) (concluding that, in light of the trial court’s charge as a whole, the omission of a specifi

2013See generally Alatise v. State, 291 Ga. 428, 430 (2) ( 728 SE2d 592 ) (2012) (pretermitting whether the defendant met his burden with regard to the first and second prongs of the Kelly test, yet determining that plain error under Kelly test was not established because the omission of a specific instruction did not affect the outcome of the trial proceedings, where a review of the charge in its entirety showed that any error in the omission of a specific charge was harmless); Allen, supra at 745-746 (3) (concluding that, in light of the trial court’s charge as a whole, the omission of a specifi

2013See generally Alatise v. State, 291 Ga. 428, 430 (2) ( 728 SE2d 592 ) (2012) (pretermitting whether the defendant met his burden with regard to the first and second prongs of the Kelly test, yet determining that plain error under Kelly test was not established because the omission of a specific instruction did not affect the outcome of the trial proceedings, where a review of the charge in its entirety showed that any error in the omission of a specific charge was harmless); Allen, supra at 745-746 (3) (concluding that, in light of the trial court’s charge as a whole, the omission of a specifi

2016See Cheddersingh v. State, 290 Ga. 680, 683 ( 724 SE2d 366 ) (2012) (verdict form that directed jury to find defendant not guilty beyond a reasonable doubt affected defendant’s substantial rights).

2016See Cheddersingh v. State, 290 Ga. 680, 683 ( 724 SE2d 366 ) (2012) (verdict form that directed jury to find defendant not guilty beyond a reasonable doubt affected defendant’s substantial rights).

2013See generally Alatise v. State, 291 Ga. 428, 430 (2) ( 728 SE2d 592 ) (2012) (pretermitting whether the defendant met his burden with regard to the first and second prongs of the Kelly test, yet determining that plain error under Kelly test was not established because the omission of a specific instruction did not affect the outcome of the trial proceedings, where a review of the charge in its entirety showed that any error in the omission of a specific charge was harmless); Allen, supra at 745-746 (3) (concluding that, in light of the trial court’s charge as a whole, the omission of a specifi

2013See generally Alatise v. State, 291 Ga. 428, 430 (2) ( 728 SE2d 592 ) (2012) (pretermitting whether the defendant met his burden with regard to the first and second prongs of the Kelly test, yet determining that plain error under Kelly test was not established because the omission of a specific instruction did not affect the outcome of the trial proceedings, where a review of the charge in its entirety showed that any error in the omission of a specific charge was harmless); Allen, supra at 745-746 (3) (concluding that, in light of the trial court’s charge as a whole, the omission of a specifi

2026See Smith v. State, 311 Ga. 288 , 291–92 (2021) (no merit to claim that trial court abused its discretion in admitting hearsay evidence based on lack of explicit determinations that each requirement of Rule 807 was met). 13 403”).

2026See Watkins v. State, 285 Ga. 355 , 357–58 (2009) (trial counsel's decision to call a detective as a witness was not so unreasonable as to constitute deficient performance even though the detective gave some unfavorable testimony); McKenzie v. State, 284 Ga. 342, 348 (2008) (defendant’s disagreement with trial counsel’s trial tactics and strategy does not require a finding that trial counsel was 22 ineffective).

2026See Watkins v. State, 285 Ga. 355 , 357–58 (2009) (trial counsel's decision to call a detective as a witness was not so unreasonable as to constitute deficient performance even though the detective gave some unfavorable testimony); McKenzie v. State, 284 Ga. 342, 348 (2008) (defendant’s disagreement with trial counsel’s trial tactics and strategy does not require a finding that trial counsel was 22 ineffective).

2023(Citing State v. Holmes, 306 Ga. 647 (832 SE2d 777) (2019), for the proposition that such orders “‘do not violate due process and should not be vacated unless a party can demonstrate that the process by which the judge arrived at them was fundamentally unfair.’” Id. at 651-652 (citation omitted).)9 Finally, the State admits that it did not appeal the trial court’s order granting Kelly’s motion for new trial within the 30 days required by OCGA § 5-7-1, see also OCGA § 5-6- 38 (a), but nonetheless contends that because of “circumstances beyond the State’s control” related to the timing of confli

2023(Citing State v. Holmes, 306 Ga. 647 (832 SE2d 777) (2019), for the proposition that such orders “‘do not violate due process and should not be vacated unless a party can demonstrate that the process by which the judge arrived at them was fundamentally unfair.’” Id. at 651-652 (citation omitted).)9 Finally, the State admits that it did not appeal the trial court’s order granting Kelly’s motion for new trial within the 30 days required by OCGA § 5-7-1, see also OCGA § 5-6- 38 (a), but nonetheless contends that because of “circumstances beyond the State’s control” related to the timing of confli

2023(Citing State v. Holmes, 306 Ga. 647 (832 SE2d 777) (2019), for the proposition that such orders “‘do not violate due process and should not be vacated unless a party can demonstrate that the process by which the judge arrived at them was fundamentally unfair.’” Id. at 651-652 (citation omitted).)9 Finally, the State admits that it did not appeal the trial court’s order granting Kelly’s motion for new trial within the 30 days required by OCGA § 5-7-1, see also OCGA § 5-6- 38 (a), but nonetheless contends that because of “circumstances beyond the State’s control” related to the timing of confli

2023(Citing State v. Holmes, 306 Ga. 647 (832 SE2d 777) (2019), for the proposition that such orders “‘do not violate due process and should not be vacated unless a party can demonstrate that the process by which the judge arrived at them was fundamentally unfair.’” Id. at 651-652 (citation omitted).)9 Finally, the State admits that it did not appeal the trial court’s order granting Kelly’s motion for new trial within the 30 days required by OCGA § 5-7-1, see also OCGA § 5-6- 38 (a), but nonetheless contends that because of “circumstances beyond the State’s control” related to the timing of confli

2023And even assuming that the State can challenge the trial court’s initial order granting Kelly a new trial without having filed a cross-appeal 16 on that issue, see Floyd v. Floyd, 291 Ga. 605, 605 n.1 (732 SE2d 258) (2012) (“[A]n appellee ordinarily must file a cross-appeal to preserve a claim of error, except when the claim of error is material to, and intertwined with, a claim of error properly raised by the appellant.”), the State’s due-process challenge fails, and the trial court’s initial order granting Kelly’s motion for new trial remains in effect.

2023And even assuming that the State can challenge the trial court’s initial order granting Kelly a new trial without having filed a cross-appeal 16 on that issue, see Floyd v. Floyd, 291 Ga. 605, 605 n.1 (732 SE2d 258) (2012) (“[A]n appellee ordinarily must file a cross-appeal to preserve a claim of error, except when the claim of error is material to, and intertwined with, a claim of error properly raised by the appellant.”), the State’s due-process challenge fails, and the trial court’s initial order granting Kelly’s motion for new trial remains in effect.

2023And citing Moon, it further concedes, as it must, that “the expiration of a court term supersedes any language in a court’s order granting a party time to file a motion for reconsideration” and that such language in the trial court’s order granting a new trial in this case “could not extend the trial court’s authority to reconsider Kelly’s motion for new trial” and indeed “had no effect on whether it lost jurisdiction to reconsider its order after the end of the September court term.” See Moon, 287 Ga. at 304-305 (applying the rule against out-of-term reconsideration to an order granting a cha

2023And citing Moon, it further concedes, as it must, that “the expiration of a court term supersedes any language in a court’s order granting a party time to file a motion for reconsideration” and that such language in the trial court’s order granting a new trial in this case “could not extend the trial court’s authority to reconsider Kelly’s motion for new trial” and indeed “had no effect on whether it lost jurisdiction to reconsider its order after the end of the September court term.” See Moon 287 Ga. at 304-305 (applying the rule against out-of-term reconsideration to 8 an order granting a ch

2023See also Long, 247 Ga. at 625 (where the trial court’s final order stated that “each party may file objections to this order during the next 30 days,” and appellant did so but the term of court had expired by that time, the trial court “no longer had jurisdiction of the matter,” and because no notice of appeal was filed within 30 days of that order, the appeal from a later order purporting to affirm the final order had to be dismissed for lack of jurisdiction).

2023See also Long v. Long, 247 Ga. 624, 625 ( 278 SE2d 370 ) (1981) (where the trial court’s final order stated that “each party may file objections to this order during the next 30 days,” and appellant did so but the term of court had expired by that time, the trial court “no longer had jurisdiction of the matter,” and because no notice of appeal was filed within 30 days of that order, the appeal from a later order purporting to affirm the final order had to be dismissed for lack of jurisdiction).

2023See also Long v. Long, 247 Ga. 624, 625 ( 278 SE2d 370 ) (1981) (where the trial court’s final order stated that “each party may file objections to this order during the next 30 days,” and appellant did so but the term of court had expired by that time, the trial court “no longer had jurisdiction of the matter,” and because no notice of appeal was filed within 30 days of that order, the appeal from a later order purporting to affirm the final order had to be dismissed for lack of jurisdiction).

2023The only case that the State cites in support of this idea, Prater v. State, 222 Ga. App. 486, 488 (474 SE2d 684) (1996), is based on a statutory notice requirement that is not relevant to this case; Prater does not mention due process, fundamental fairness, or any other constitutional principle.

2023The only case that the State cites in support of this idea, Prater v. State, 222 Ga. App. 486, 488 (474 SE2d 684) (1996), is based on a statutory notice requirement that is not relevant to this case; Prater does not mention due process, fundamental fairness, or any other constitutional principle.

2022Kelly’s claim of ineffective assistance of counsel, which he raises for the first time on appeal, has not been preserved for our review. 21 A claim of ineffective assistance of trial counsel must be asserted “at the earliest practicable moment.” Glover v. State, 266 Ga. 183, 184 (2) ( 465 SE2d 659 ) (1996) (punctuation and footnote omitted).

2022Kelly’s claim of ineffective assistance of counsel, which he raises for the first time on appeal, has not been preserved for our review. 21 A claim of ineffective assistance of trial counsel must be asserted “at the earliest practicable moment.” Glover v. State, 266 Ga. 183, 184 (2) ( 465 SE2d 659 ) (1996) (punctuation and footnote omitted).

2016While it is true that “[w]here a case contains some evidence, no matter how slight, that shows that the defendant committed a lesser offense, then the court should charge the jury on that offense,” Styles v. State, 329 Ga. App. 143, 150 (2) ( 764 SE2d 166 ) (2014) (punctuation and footnote omitted), our plain error analysis requires that we look *692 to the Kelly standard, supra. “Satisfying all four prongs of this standard is difficult, as it should be.” (Citation and punctuation omitted.) Kelly, supra at 33 (2) (a).

2016While it is true that “[w]here a case contains some evidence, no matter how slight, that shows that the defendant committed a lesser offense, then the court should charge the jury on that offense,” Styles v. State, 329 Ga. App. 143, 150 (2) ( 764 SE2d 166 ) (2014) (punctuation and footnote omitted), our plain error analysis requires that we look *692 to the Kelly standard, supra. “Satisfying all four prongs of this standard is difficult, as it should be.” (Citation and punctuation omitted.) Kelly, supra at 33 (2) (a).

2016Therefore, the first two prongs of the Kelly test are met. 5 See Seay, supra, 276 Ga. at 140 (2); see also Kelly, supra, 290 Ga. at 33 (2) (a).

2016Therefore, the first two prongs of the Kelly test are met. 5 See Seay, supra, 276 Ga. at 140 (2); see also Kelly, supra, 290 Ga. at 33 (2) (a).

2016Carter v. Kentucky, 450 U.S. 288, 305 (III) ( 101 SCt 1112 , 67 LE2d 241) (1981).

2016Carter v. Kentucky, 450 U.S. 288, 305 (III) ( 101 SCt 1112 , 67 LE2d 241) (1981).

2013See McLean, supra; Sydenstricker, supra; Davis, supra; Curry, supra. See generally Edmonds v. State, 275 Ga. 450, 454 (4) ( 569 SE2d 530 ) (2002) (even assuming that a legal principle, which pertained to defendant’s sole defense, was in issue, the failure to specifically charge on that principle did not require reversal because the defendant’s defense was nevertheless fairly presented to the jury).

2013See McLean, supra; Sydenstricker, supra; Davis, supra; Curry, supra. See generally Edmonds v. State, 275 Ga. 450, 454 (4) ( 569 SE2d 530 ) (2002) (even assuming that a legal principle, which pertained to defendant’s sole defense, was in issue, the failure to specifically charge on that principle did not require reversal because the defendant’s defense was nevertheless fairly presented to the jury).

2013Here, we need not decide whether the charge given was erroneous, because, “[e]ven if we assume the first and second prongs of the Kelly test are met, i.e., that [the charge given here was erroneous], and that such error was obvious,... there is no plain error because the third prong of Kelly has not been met, i.e., the omission did not affect the outcome of the proceedings.” Smith, supra, 292 Ga. at 319 (3).

2013Here, we need not decide whether the charge given was erroneous, because, “[e]ven if we assume the first and second prongs of the Kelly test are met, i.e., that [the charge given here was erroneous], and that such error was obvious,... there is no plain error because the third prong of Kelly has not been met, i.e., the omission did not affect the outcome of the proceedings.” Smith, supra, 292 Ga. at 319 (3).

2013See McLean, supra; Sydenstricker, supra; Davis, supra; Curry, supra. See generally Edmonds v. State, 275 Ga. 450, 454 (4) ( 569 SE2d 530 ) (2002) (even assuming that a legal principle, which pertained to defendant’s sole defense, was in issue, the failure to specifically charge on that principle did not require reversal because the defendant’s defense was nevertheless fairly presented to the jury).

2013See McLean, supra; Sydenstricker, supra; Davis, supra; Curry, supra. See generally Edmonds v. State, 275 Ga. 450, 454 (4) ( 569 SE2d 530 ) (2002) (even assuming that a legal principle, which pertained to defendant’s sole defense, was in issue, the failure to specifically charge on that principle did not require reversal because the defendant’s defense was nevertheless fairly presented to the jury).

2012By using a verdict form that advised the jury that it was empowered to state that it “beyond a reasonable doubt find[s] the Defendant [not guilty],” the trial court actively removed the presumption of innocence from Cheddersingh’s trial. “ ‘The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.’ [Cit.]” Tillman, supra at 292-293 (1).

2012By using a verdict form that advised the jury that it was empowered to state that it “beyond a reasonable doubt find[s] the Defendant [not guilty],” the trial court actively removed the presumption of innocence from Cheddersingh’s trial. “ ‘The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.’ [Cit.]” Tillman, supra at 292-293 (1).

2012“Nothing is more fundamental to the jury’s consideration of a criminal case than its understanding and application of the State’s burden of proof beyond a reasonable doubt.” Jones v. State, 252 Ga. App. 332, 334 (2) (a) ( 556 SE2d 238 ) (2001).

2012“Nothing is more fundamental to the jury’s consideration of a criminal case than its understanding and application of the State’s burden of proof beyond a reasonable doubt.” Jones v. State, 252 Ga. App. 332, 334 (2) (a) ( 556 SE2d 238 ) (2001).

2012See id. 5 The third prong of the Kelly test is that “the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings.” Kelly, supra at 33 (2) (a) (Punctuation omitted.).

2012See id. 5 The third prong of the Kelly test is that “the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings.” Kelly, supra at 33 (2) (a) (Punctuation omitted.).