plain error in Georgia

2026See, e.g., Roundtree, 358 Ga. App. at 145(2) (reviewing a challenge to a jury charge for plain error only the for plain error only because the appellant failed to challenge the charge at issue below). 23 State v. Kelly, 290 Ga. 29, 32 (2)(a) ( 718 SE2d 232 ) (2011) (quoting Puckett v. United States, 556 U.S. 129 (II)(a) ( 29 SCt 1423 , 173 LE2d 266) (2009)).

2026See, e.g., Roundtree, 358 Ga. App. at 145(2) (reviewing a challenge to a jury charge for plain error only the for plain error only because the appellant failed to challenge the charge at issue below). 23 State v. Kelly, 290 Ga. 29, 32 (2)(a) ( 718 SE2d 232 ) (2011) (quoting Puckett v. United States, 556 U.S. 129 (II)(a) ( 29 SCt 1423 , 173 LE2d 266) (2009)).

2025See Hampton v. State, 302 Ga. 166 , 168–69 (2017) (“[T]his Court has equated the prejudice step of the plain error standard with the prejudice prong for an ineffective assistance of counsel claim.”).

2024See Hampton, 302 Ga. at 168 (2) (To prevail on the third step of the plain error analysis, an “appellant has the burden to make an affirmative showing that the error probably did affect the outcome below.” (citation and punctuation omitted)).

2026“This Court does not have to analyze all elements of the plain-error test where an appellant fails to establish one of them.” Payne v. State, 314 Ga. 322, 325 (2022).

2026“This Court does not have to analyze all elements of the plain-error test where an appellant fails to establish one of them.” Payne v. State, 314 Ga. 322, 325 (2022).

2018See Shaw v. State , 292 Ga. 871 , 873, 742 S.E.2d 707 (2013) (Plain error analysis "requires the appellant to make an affirmative showing that the error probably did affect the outcome below.").

2018See Shaw v. State , 292 Ga. 871 , 873, 742 S.E.2d 707 (2013) (Plain error analysis "requires the appellant to make an affirmative showing that the error probably did affect the outcome below.").

2025We find no error. 9 OCGA § 24-8-802 provides that “if a party does not properly object to hearsay, the objection shall be deemed waived, and the hearsay evidence shall be legal evidence and admissible.” Absent such an objection, we have the discretion to conduct a plain error review.4 See Gates, 298 Ga. at 327 (3) (outlining the four prongs of plain error review).

2021To constitute an affirmative waiver, an error must have been “intentionally relinquished or abandoned.” State v. Kelly, 290 Ga. 29, 33 (718 SE2d 232) (2011) (citation and punctuation omitted).6 Here, Davis’s trial counsel “intentionally relinquished” any objection to the trial court’s Rule 804 ruling when he agreed with the State’s Rule 804 analysis (“She’s right, Judge.”) and asked that all of Trey’s previous 6 Although Kelly addressed the plain-error standard for jury charges, Kelly, 290 Ga. at 32-33, we held in Gates v. State, 298 Ga. 324, 327 (781 SE2d 772) (2016), that “the same plain-err

2026We “need not analyze all of the elements of the plain error test when the appellant fails to establish one of them.” Hill v. State, 310 Ga. 180, 194 (11)(a) ( 850 SE2d 110 ) (2020).

2026We “need not analyze all of the elements of the plain error test when the appellant fails to establish one of them.” Hill v. State, 310 Ga. 180, 194 (11)(a) ( 850 SE2d 110 ) (2020).

2014In 2000, however, this Court, after recognizing that “we have repeatedly held that such an error [under OCGA § 17-8-57] is waived in the absence of an objection or a motion for a mistrial,” decreed that “[w]e believe the plain error rule should be applied to cases of this kind.” Paul v. State, 272 Ga. 845, 848 ( 537 SE2d 58 ) (2000).

2014In 2000, however, this Court, after recognizing that “we have repeatedly held that such an error [under OCGA § 17-8-57] is waived in the absence of an objection or a motion for a mistrial,” decreed that “[w]e believe the plain error rule should be applied to cases of this kind.” Paul v. State, 272 Ga. 845, 848 ( 537 SE2d 58 ) (2000).

2025See Bozzie, 302 Ga. at 711 (4) (b) (noting that “[t]he prejudice step of the plain-error standard is equivalent to the prejudice prong for an ineffective assistance of counsel claim”). 26 establish prejudice.

2024“The prejudice step of the plain-error standard is equivalent to the prejudice prong for an ineffective assistance of counsel claim.” Bozzie v. State, 302 Ga. 704, 711 (4) (b) (808 SE2d 671) (2017).

2024See State v. Herrera-Bustamante, 304 Ga. 259, 264 (2) (b) ( 818 SE2d 552 ) (2018) (“We need not analyze all of the elements of [the plain error] test when, as in this case, the defendant has failed appellant must affirmatively show that the error probably did affect the outcome below.

2024See State v. Herrera-Bustamante, 304 Ga. 259, 264 (2) (b) ( 818 SE2d 552 ) (2018) (“We need not analyze all of the elements of [the plain error] test when, as in this case, the defendant has failed appellant must affirmatively show that the error probably did affect the outcome below.

2021Under the plain error analysis articulated in Kelly, an objection is intentionally relinquished or abandoned if it is “affirmatively waived.” Applying the standard articulated in United States v. Olano, 507 U. S. 725 (113 SCt 1770, 123 LE2d 508) (1993), we have contrasted such a waiver – the intentional relinquishment of a known right – with “forfeiture,” which is the mere “failure to make the timely assertion of the right.” An affirmative waiver may occur, for example, when a defendant requests a specific jury instruction but later withdraws such request; explicitly requests a jury instructio

2021Under the plain error analysis articulated in Kelly, an objection is intentionally relinquished or abandoned if it is “affirmatively waived.” Applying the standard articulated in United States v. Olano, 507 U. S. 725 (113 SCt 1770, 123 LE2d 508) (1993), we have contrasted such a waiver – the intentional relinquishment of a known right – with “forfeiture,” which is the mere “failure to make the timely assertion of the right.” An affirmative waiver may occur, for example, when a defendant requests a specific jury instruction but later withdraws such request; explicitly requests a jury instructio

2026“If one prong of the plain error test is not satisfied, we need not address the other prongs of the test.” Baker v. State, 319 Ga. 456, 462 (2024).

2026“If one prong of the plain error test is not satisfied, we need not address the other prongs of the test.” Baker v. State, 319 Ga. 456, 462 (2024).

2025This plain-error claim therefore fails. (b) Watkins also contends that trial counsel provided 37 constitutionally ineffective assistance by failing to object to the admission of these instances of Watkins’s “silence or failure to come forward.” To prevail on a claim of ineffective assistance of counsel, a “defendant must show that counsel’s performance was deficient” and “that the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (III) ( 104 SCt 2052 , 80 LE2d 674) (1984).

2025This plain-error claim therefore fails. (b) Watkins also contends that trial counsel provided 37 constitutionally ineffective assistance by failing to object to the admission of these instances of Watkins’s “silence or failure to come forward.” To prevail on a claim of ineffective assistance of counsel, a “defendant must show that counsel’s performance was deficient” and “that the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (III) ( 104 SCt 2052 , 80 LE2d 674) (1984).

2021In Shah, the Supreme Court of Georgia reaffirmed that “reckless conduct may be a lesser included offense of cruelty to children, if the harm to the child resulted from criminal negligence rather than malicious or willful conduct.” (Punctuation and 6 See Martin v. State, 298 Ga. 259, 277-278 (6) (c) ( 779 SE2d 342 ) (2015) (equating the third, harm prong of the plain error standard with the prejudice required to establish an ineffective assistance of counsel claim under Strickland v. Washington, 466 U. S. 668, 694 ( 104 SCt 2052 , 80 LE2d 674) (1984)), disapproved on other grounds by Willis v.

2021In Shah, the Supreme Court of Georgia reaffirmed that “reckless conduct may be a lesser included offense of cruelty to children, if the harm to the child resulted from criminal negligence rather than malicious or willful conduct.” (Punctuation and 6 See Martin v. State, 298 Ga. 259, 277-278 (6) (c) ( 779 SE2d 342 ) (2015) (equating the third, harm prong of the plain error standard with the prejudice required to establish an ineffective assistance of counsel claim under Strickland v. Washington, 466 U. S. 668, 694 ( 104 SCt 2052 , 80 LE2d 674) (1984)), disapproved on other grounds by Willis v.

2018Relying on Stanbury v. State , 299 Ga. 125 , 130 (2), 786 S.E.2d 672 (2016), *236 Robinson contends that the trial court committed plain error when it failed to instruct the jury on corroboration. 3 In conducting a plain error analysis, the proper inquiry is whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceedings.

2018Relying on Stanbury v. State , 299 Ga. 125 , 130 (2), 786 S.E.2d 672 (2016), *236 Robinson contends that the trial court committed plain error when it failed to instruct the jury on corroboration. 3 In conducting a plain error analysis, the proper inquiry is whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceedings.

2026See Grier v. State, 313 Ga. 236, 245 (2022) (“Appellant has not met his burden under the plain error standard to show a reasonable probability that the outcome would have been different, as the improperly admitted [testimony] was merely duplicative of other properly admitted evidence.”).

2026See Grier v. State, 313 Ga. 236, 245 (2022) (“Appellant has not met his burden under the plain error standard to show a reasonable probability that the outcome would have been different, as the improperly admitted [testimony] was merely duplicative of other properly admitted evidence.”).

2021See Denson, 307 Ga. at 548 (2).

2020See Denson v. State, 307 Ga. 545, 547-48 (2) ( 837 SE2d 261 ) (2019) (“To establish plain error, [the appellant] must point to an error that was not affirmatively waived, the error must have been clear and not open to reasonable dispute, the error must have affected his substantial rights, and the error must have seriously affected the fairness, integrity, or public reputation of judicial proceedings.” (citation and punctuation omitted)); Reed v. State, 304 Ga. 400, 404 (2) ( 819 SE2d 44 ) (2018) (no reversible error where appellant fails to show even one of the mandatory prongs of the plain e

2025See also Lynch, 286 Ga. at 98-101 (affirming the trial court’s suppression of the defendant’s statement to detectives because the evidence presented at the suppression hearing supported the trial court’s express findings that the detectives beat the defendant, used “a taser,” removed his clothes, and withheld medical attention, such that the defendant’s statement was induced by the remotest fear of injury under a former version of OCGA § 24-8-824); Cheddersingh v. State, 290 Ga. 680, 684-685 ( 724 SE2d 366 ) (2012) (explaining that under the plain-error test, the error must be so obvious that

2025See also Lynch, 286 Ga. at 98-101 (affirming the trial court’s suppression of the defendant’s statement to detectives because the evidence presented at the suppression hearing supported the trial court’s express findings that the detectives beat the defendant, used “a taser,” removed his clothes, and withheld medical attention, such that the defendant’s statement was induced by the remotest fear of injury under a former version of OCGA § 24-8-824); Cheddersingh v. State, 290 Ga. 680, 684-685 ( 724 SE2d 366 ) (2012) (explaining that under the plain-error test, the error must be so obvious that

2022Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously 3 The State nolle prossed a kidnapping charge. 4 See Jones v. State, 352 Ga. App. 380 , 388 (2) (b) ( 834 SE2d 881 ) (2019); Benning v. State, 344 Ga. App. 397 , 400 ( 810 SE2d 310 ) (2018). 5 See State v. Crist, 341 Ga. App. 411, 415 ( 801 SE2d 545 ) (2017). 3 affects the fairness, integrity or public reputation of judicial proceedings.6 “[A]s our Supreme Court has emphasized, satisfying the plain-error sta

2022Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously 3 The State nolle prossed a kidnapping charge. 4 See Jones v. State, 352 Ga. App. 380 , 388 (2) (b) ( 834 SE2d 881 ) (2019); Benning v. State, 344 Ga. App. 397 , 400 ( 810 SE2d 310 ) (2018). 5 See State v. Crist, 341 Ga. App. 411, 415 ( 801 SE2d 545 ) (2017). 3 affects the fairness, integrity or public reputation of judicial proceedings.6 “[A]s our Supreme Court has emphasized, satisfying the plain-error sta

2018See Bailey v. State , 299 Ga. 807 (2), 792 S.E.2d 363 (2016) ("inasmuch as a plain error review would not apply to [Rivera's] trial in 2010, the allegation[ ] regarding the improper admission of evidence [is] waived in this appeal"); Durham v. State , 292 Ga. 239 (2), 734 S.E.2d 377 (2012).

2018See Bailey v. State , 299 Ga. 807 (2), 792 S.E.2d 363 (2016) ("inasmuch as a plain error review would not apply to [Rivera's] trial in 2010, the allegation[ ] regarding the improper admission of evidence [is] waived in this appeal"); Durham v. State , 292 Ga. 239 (2), 734 S.E.2d 377 (2012).

2026And “whether an error is considered ‘clear or obvious’ under the second prong of the plain error test is judged under the law existing at the time of appeal.” Lyman v. State, 301 Ga. 312, 318 (2017).

2026And “whether an error is considered ‘clear or obvious’ under the second prong of the plain error test is judged under the law existing at the time of appeal.” Lyman v. State, 301 Ga. 312, 318 (2017).

2026See Simmons v. State, 299 Ga. 370, 375 (2016) (denying that the defendant’s claim under the plain error standard of review failed where there was “the absence of clear authority” on the issue); Hill v. State, 321 Ga. 177, 184 (2025) (same). 5.

2026See Simmons v. State, 299 Ga. 370, 375 (2016) (denying that the defendant’s claim under the plain error standard of review failed where there was “the absence of clear authority” on the issue); Hill v. State, 321 Ga. 177, 184 (2025) (same). 5.

2015“Plain error is that which is so clearly erroneous as to result in a likelihood of a grave miscarriage of justice or which seriously affects the fairness, integrity or public reputation of a judicial proceeding.” (Citation and punctuation omitted.) Id. at 61 (8), n. 2.

2015“Plain error is that which is so clearly erroneous as to result in a likelihood of a grave miscarriage of justice or which seriously affects the fairness, integrity or public reputation of a judicial proceeding.” (Citation and punctuation omitted.) Lynd at 61, n.2 .

2023“This Court has equated the prejudice step of the plain error standard with the prejudice prong for an ineffective assistance of counsel claim.” Jackson, 306 Ga. at 84 (4) (b) (citation and punctuation omitted); see also id. at 84-85 (4) (b) (holding that, even assuming that trial counsel performed deficiently in not requesting an accomplice- corroboration instruction, the appellant had not shown prejudice for the reasons explained in reviewing the absence of that instruction for plain error).

2023“This Court has equated the prejudice step of the plain error standard with the prejudice prong for an ineffective assistance of counsel claim.” Jackson, 306 Ga. at 84 (4) (b) (citation and punctuation omitted); see also id. at 84-85 (4) (b) (holding that, even assuming that trial counsel performed deficiently in not requesting an accomplice- corroboration instruction, the appellant had not shown prejudice for the reasons explained in reviewing the absence of that instruction for plain error).

2025In Chrysler, Justice Grant, joined by three other Justices, wrote that “the context of civil litigation often differs from the context of criminal prosecution; actual application of the plain-error standard takes account of the differences.” (Citation and punctuation omitted.) Id. at 369 (II) (B), n.4.

2024Absent an objection, we review the challenged evidence only for plain error, see Chrysler Group v. Walden, 303 Ga. 358, 369 (II) (B) ( 812 SE2d 244 ) (2018), and the City neither asserts nor argues that it met the plain error standard of review.

2015However, because Howell denied making such a seemingly innocuous gesture, a reasonable inference could be drawn that he had an ulterior motive for making it — i.e., that he had intended to influence her testimony. 5 As Justice Hunstein similarly pointed out in her dissent in Slackman, supra at 673, it was (the Defendant’s) own behavior in uttering the statement in (the court reporter’s) presence which caused her to be a witness. 6 “Unlike a harmless-error analysis, where the appellee bears the burden of showing that an error did not likely affect the outcome below, a plain-error analysis requi

2015However, because Howell denied making such a seemingly innocuous gesture, a reasonable inference could be drawn that he had an ulterior motive for making it — i.e., that he had intended to influence her testimony. 5 As Justice Hunstein similarly pointed out in her dissent in Slackman, supra at 673, it was (the Defendant’s) own behavior in uttering the statement in (the court reporter’s) presence which caused her to be a witness. 6 “Unlike a harmless-error analysis, where the appellee bears the burden of showing that an error did not likely affect the outcome below, a plain-error analysis requi

2024See also Bamberg v. State, 308 Ga. 340, 352 (839 SE2d 640) (2020) (applying the plain error test described in Kelly to evaluate a claim for plain error under OCGA § 17-8-57 (b)).

2024See also Bamberg v. State, 308 Ga. 340, 352 (839 SE2d 640) (2020) (applying the plain error test described in Kelly to evaluate a claim for plain error under OCGA § 17-8-57 (b)).

2026See, e.g., Roundtree, 358 Ga. App. at 145(2) (reviewing a challenge to a jury charge for plain error only the for plain error only because the appellant failed to challenge the charge at issue below). 23 State v. Kelly, 290 Ga. 29, 32 (2)(a) ( 718 SE2d 232 ) (2011) (quoting Puckett v. United States, 556 U.S. 129 (II)(a) ( 29 SCt 1423 , 173 LE2d 266) (2009)).

2019See id. at 327 (3), 781 S.E.2d 772 (noting that our Supreme Court has adopted the plain-error test articulated in Puckett v. United States , 556 U.S. 129 , 135 (II), 129 S.Ct. 1423 , 173 L.Ed.2d 266 (2009), which is also the test used by the Eleventh Circuit); United States v. Shelton , 400 F.3d 1325 , 1328 (II) (11th Cir. 2005) (explaining that, because the defendant did not raise issues in the trial court, the appellate court reviews the defendant's claims only for plain error); United States v. Rodriguez , 398 F.3d 1291 , 1298 (IV) (11th Cir. 2005) ("Under plain[-]error review, ... federal

2019Only if the appellant has met the burden of proof with respect to these three prongs of the plain error test, the appellate court may, in its discretion, remedy the error if it seriously affects the fairness, integrity or public reputation of the judicial proceedings. [Cit.] Willis v. State , 304 Ga. 122 , 129 (2) (c), 816 S.E.2d 656 (2018). (a) Appellant contends that Sheats was an accomplice inasmuch as he admittedly drove the victim to the crime scene in order to engage in a drug transaction and, therefore argues he was entitled to a charge on accomplice testimony.

2019Only if the appellant has met the burden of proof with respect to these three prongs of the plain error test, the appellate court may, in its discretion, remedy the error if it seriously affects the fairness, integrity or public reputation of the judicial proceedings. [Cit.] Willis v. State , 304 Ga. 122 , 129 (2) (c), 816 S.E.2d 656 (2018). (a) Appellant contends that Sheats was an accomplice inasmuch as he admittedly drove the victim to the crime scene in order to engage in a drug transaction and, therefore argues he was entitled to a charge on accomplice testimony.

2019See Adams v. State , Case No. S18G0699, --- Ga. ----, ----, 829 S.E.2d 126 , 2019 WL 2332129 , at *2 (Ga. June 3, 2019) (holding that, by stating that he had no objection, appellant "affirmatively waived any claim of error from the admission of the [evidence], so there was no plain error"); Adkins v. State , 301 Ga. 153 , 156 (2), 800 S.E.2d 341 (2017) ("Although we may take notice of plain errors affecting substantial rights even when an error is not brought to the attention of the trial court, OCGA § 24-1-103 (d), "[W]here invited error exists, it precludes a court from invoking the plain er

2019See Adams v. State , Case No. S18G0699, --- Ga. ----, ----, 829 S.E.2d 126 , 2019 WL 2332129 , at *2 (Ga. June 3, 2019) (holding that, by stating that he had no objection, appellant "affirmatively waived any claim of error from the admission of the [evidence], so there was no plain error"); Adkins v. State , 301 Ga. 153 , 156 (2), 800 S.E.2d 341 (2017) ("Although we may take notice of plain errors affecting substantial rights even when an error is not brought to the attention of the trial court, OCGA § 24-1-103 (d), "[W]here invited error exists, it precludes a court from invoking the plain er