pattern jury instruction in Georgia

2013In Brodes v. State, 279 Ga. 435, 442 ( 614 SE2d 766 ) (2005), the Supreme Court of Georgia disapproved of the pattern jury instruction on eyewitness identification authorizing jurors to consider a witness’s certainty in his/her identification as a factor to be used in deciding the reliability of that identification.

2013In Brodes v. State, 279 Ga. 435, 442 ( 614 SE2d 766 ) (2005), the Supreme Court of Georgia disapproved of the pattern jury instruction on eyewitness identification authorizing jurors to consider a witness’s certainty in his/her identification as a factor to be used in deciding the reliability of that identification.

2015See Jones v. State, 289 Ga. 145, 147 (2) ( 710 SE2d 127 ) (2011). 9 As a result, even if the charge was error, it was not plainly erroneous.

2015See Jones v. State, 289 Ga. 145, 147 (2) ( 710 SE2d 127 ) (2011). 9 As a result, even if the charge was error, it was not plainly erroneous.

2014See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (4th ed.), § 1.31.10, quoted in McKenzie v. State, 293 Ga. App. 350, 351-352 (2) ( 667 SE2d 142 ) (2008).

2014See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (4th ed.), § 1.31.10, quoted in McKenzie v. State, 293 Ga. App. 350, 351-352 (2) ( 667 SE2d 142 ) (2008).

1995The trial court gave the same pattern jury instruction on presumption of innocence, burden of proof and reasonable doubt that was approved in Brown v. State, 264 Ga. 48, 49 (3a), 50 ( 441 SE2d 235 ).

1995The trial court gave the same pattern jury instruction on presumption of innocence, burden of proof and reasonable doubt that was approved in Brown v. State, 264 Ga. 48, 49 (3a), 50 ( 441 SE2d 235 ).

2026It is also “axiomatic that the jury charge is to be read as a whole, and that a single [slip of the tongue], preceded and followed by correct instructions, will not vitiate a thorough and otherwise correct instruction.” Davenport v. State, 283 Ga. 171, 173 (2008) (citation and punctu- ation omitted).

2026See, e.g., Gabriel v. State, 280 Ga. 237, 240 (2006) (concluding that there was no error in not giving mistake-of-fact charge where any mistake on defendant’s part was due to his own negligence in firing blindly at an unidentified noise); Crawford, 267 Ga. at 544 (concluding that there was no error in not giving mistake-of-fact charge where “any mistake on Crawford’s part as to the identity of his intended target was solely the result of his own failure to identify the source of the noise before he fired”).

2026See, e.g., Gabriel v. State, 280 Ga. 237, 240 (2006) (concluding that there was no error in not giving mistake-of-fact charge where any mistake on defendant’s part was due to his own negligence in firing blindly at an unidentified noise); Crawford, 267 Ga. at 544 (concluding that there was no error in not giving mistake-of-fact charge where “any mistake on Crawford’s part as to the identity of his intended target was solely the result of his own failure to identify the source of the noise before he fired”).

2026The suggested pattern jury instructions for voluntary man- slaughter (2.10.41) contain a “bench note” from the Council of Su- perior Court Judges of Georgia with the following suggestion: “Bench Notes: Where voluntary manslaughter is charged as a lesser-included offense of murder, consider modifying the first sentence to require that ‘the evidence must prove’ rather than ‘the State must prove,’ if evidence of passion/provocation has come from the defense.” Neither Anderson nor the State requested any alteration to the pattern jury instruction to conform with this bench note. “[I]t is axiomatic

2026See McNair v. State, 296 Ga. 181 , 185 12 (2014) (trial counsel’s failure to object to charge on adultery as a potential provocation for voluntary manslaughter was not defi- cient or prejudicial because charges as a whole “did not mislead the jury … nor hinder the jury’s ability to consider other mitigat- ing factors in appellant’s defense”). 6 Finally, although Anderson argues that this case is the “classic voluntary manslaughter case – catching your partner in the act of cheating with another,” Anderson’s own testimony un- dercuts that theory, as he testified that he was not angry with Head

2025In support of his claim of ineffective assistance, Jackson argues that the trial court’s pattern jury instruction pertaining to a violation of the Street Gang Act (Count 14) contained language creating a constitutionally impermissible mandatory presumption as to an essential element of the Street Gang Act count — purportedly a violation of Sandstrom v. Montana, 442 U. S. 510, 521-524 (III) ( 99 SCt 2450 , 61 LE2d 39) (1979) — to which trial counsel should have objected.

2025In support of his claim of ineffective assistance, Jackson argues that the trial court’s pattern jury instruction pertaining to a violation of the Street Gang Act (Count 14) contained language creating a constitutionally impermissible mandatory presumption as to an essential element of the Street Gang Act count — purportedly a violation of Sandstrom v. Montana, 442 U. S. 510, 521-524 (III) ( 99 SCt 2450 , 61 LE2d 39) (1979) — to which trial counsel should have objected.

2025Thus, the jury had already been instructed on how to evaluate whether Scott was guilty of felony murder, and the court’s response to the jury note—“It is up to you”—merely restated the jury’s obligation that had already been conveyed to it. 27 The need for, breadth, and formulation of additional jury instructions in response to a jury note “‘are left to the sound discretion of the trial court.’” Stepp-McCommons v. State, 309 Ga. 400, 405-406 (845 SE2d 643) (2020) (citation omitted).

2025Thus, the jury had already been instructed on how to evaluate whether Scott was guilty of felony murder, and the court’s response to the jury note—“It is up to you”—merely restated the jury’s obligation that had already been conveyed to it. 27 The need for, breadth, and formulation of additional jury instructions in response to a jury note “‘are left to the sound discretion of the trial court.’” Stepp-McCommons v. State, 309 Ga. 400, 405-406 (845 SE2d 643) (2020) (citation omitted).

2025See Dixon v. State, 309 Ga. 28 , 35–37 (2020) (stating that Criminal Pattern § 2.02.25 was a “correct and complete statement of the law applicable to the charges of participation in criminal gang activity under OCGA § 16-15-4(a)”).

2025In Jackson v. State, 321 Ga. 659, 662 (2025) , the defendant argued that his trial counsel was constitutionally ineffective because he failed to object to the pattern jury instruction for a gang activity charge, which “purportedly contained language creating a constitutionally impermissible mandatory presumption.” This Court held that “the challenged language does not create a mandatory presumption, nor does it shift the burden of proof to the defendant ….

2025Rather, the instruction, read as a whole, informed the 32 jury about the ‘meaning’ of the phrase ‘further the interests of the gang.’” Id. at 664 .

2024See DeLoach v. State, 308 Ga. 283, 288 (2) ( 840 SE2d 396 ) (2020). 11 Trial counsel did request, and the trial court gave, the pattern jury instruction on accident.

2024See McKibbins v. State, 293 Ga. 843, 853 (7) (750 SE2d 314) (2013) (seeing no plain error where the 5 See also Dyal v. State, 297 Ga. 184, 188 (5) & n.9 (773 SE2d 249) (2015) (similar holding with respect to a previous version of the pattern jury instruction on prior difficulties, also setting out the current version that was applicable at the time of Sconyers’s trial); Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 1.34.20 (4th ed. 2007, updated Aug. 2022) (“Evidence of prior difficulties (or lack thereof) between the defendant and (the alleged victim) (a witness) has been ad

2024See McKibbins v. State, 293 Ga. 843, 853 (7) (750 SE2d 314) (2013) (seeing no plain error where the 5 See also Dyal v. State, 297 Ga. 184, 188 (5) & n.9 (773 SE2d 249) (2015) (similar holding with respect to a previous version of the pattern jury instruction on prior difficulties, also setting out the current version that was applicable at the time of Sconyers’s trial); Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 1.34.20 (4th ed. 2007, updated Aug. 2022) (“Evidence of prior difficulties (or lack thereof) between the defendant and (the alleged victim) (a witness) has been ad

2024See E.E.O.C. v. UMB Bank Financial Corp., 558 F3d 784, 791 (8th Cir. 2009) (noting that several federal courts of appeal have held that Federal Rule of Evidence 408 (a) (2), which excludes “conduct or a statement made during compromise negotiations about the claim,” may apply to “certain work product, internal memos, and other material created specifically for the purpose of conciliation, even if not communicated to the other party” and collecting cases).

2024See also Hassan v. State, 318 Ga. 673, 678-680 ( 899 SE2d 693 ) (2024) (rejecting the appellant’s argument that a jury instruction, which was similar to the one given in this case, failed to advise the jury of OCGA § 24-14-6 and holding that the instruction was not a clear and obvious error).16 16 Sauder also argues that the trial court incorrectly instructed that the jury “should not be concerned about whether the evidence is direct or circumstantial” and that “[t]here is no legal difference in the weight [the jury] may give to either direct or circumstantial evidence,” in accordance with the

2024See also Hassan v. State, 318 Ga. 673, 678-680 ( 899 SE2d 693 ) (2024) (rejecting the appellant’s argument that a jury instruction, which was similar to the one given in this case, failed to advise the jury of OCGA § 24-14-6 and holding that the instruction was not a clear and obvious error).16 16 Sauder also argues that the trial court incorrectly instructed that the jury “should not be concerned about whether the evidence is direct or circumstantial” and that “[t]here is no legal difference in the weight [the jury] may give to either direct or circumstantial evidence,” in accordance with the

2024See Eubanks v. State, 317 Ga. 563, 580 (894 SE2d 27) (2023) (holding that the trial court did not err by giving the pattern jury instruction on circumstantial evidence rather than instructing that the “State had to disprove any theory of innocence supported by the evidence,” because the pattern instruction “effectively conveyed” that point) (emphasis omitted).

2024See Eubanks v. State, 317 Ga. 563, 580 ( 894 SE2d 27 ) (2023) (holding that the trial court did not err by giving the pattern jury instruction on circumstantial evidence rather than instructing that the “State had to disprove any theory of innocence supported by the evidence,” because the pattern instruction “effectively conveyed” that point) (emphasis omitted).

2024See McKibbins v. State, 293 Ga. 843, 853 (7) (750 SE2d 314) (2013) (seeing no plain error where the 5 See also Dyal v. State, 297 Ga. 184, 188 (5) & n.9 (773 SE2d 249) (2015) (similar holding with respect to a previous version of the pattern jury instruction on prior difficulties, also setting out the current version that was applicable at the time of Sconyers’s trial); Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 1.34.20 (4th ed. 2007, updated Aug. 2022) (“Evidence of prior difficulties (or lack thereof) between the defendant and (the alleged victim) (a witness) has been ad

2024See McKibbins v. State, 293 Ga. 843, 853 (7) (750 SE2d 314) (2013) (seeing no plain error where the 5 See also Dyal v. State, 297 Ga. 184, 188 (5) & n.9 (773 SE2d 249) (2015) (similar holding with respect to a previous version of the pattern jury instruction on prior difficulties, also setting out the current version that was applicable at the time of Sconyers’s trial); Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 1.34.20 (4th ed. 2007, updated Aug. 2022) (“Evidence of prior difficulties (or lack thereof) between the defendant and (the alleged victim) (a witness) has been ad

2023See Ware v. State, 305 Ga. 457, 459 (2) (826 SE2d 56) (2019) (citing Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (4th ed. 2007, updated Jan. 2017), § 2.10.30). 17 human being with or without malice.” And the trial court instructed the jury on the various predicate offenses Wilson had been charged with.

2023See Ware v. State, 305 Ga. 457, 459 (2) (826 SE2d 56) (2019) (citing Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (4th ed. 2007, updated Jan. 2017), § 2.10.30). 17 human being with or without malice.” And the trial court instructed the jury on the various predicate offenses Wilson had been charged with.

2023Jackson v. State, 305 Ga. 614, 620-621 ( 825 SE2d 188 ) (2019) (holding that there was no clear error in giving pattern charge on defendant’s good character without additional language stating that “good character is a substantive fact which itself creates reasonable doubt as to the defendant’s 3 The suggested pattern jury instruction states as follows: You have heard evidence of the (character of the defendant) (character of the defendant for a particular trait, more specifically __________) in an effort to show that the defendant likely acted in keeping with such character or trait at pertin

2023Jackson v. State, 305 Ga. 614, 620-621 (825 SE2d 188) (2019) (holding that there was no clear error in giving pattern charge on defendant’s good character without additional language stating that “good character is a substantive fact which itself creates reasonable doubt as to the defendant’s guilt”).

2023See Guyse, 286 Ga. at 576 (2); Grant, 326 Ga. App. at 122 (1).7 7 We note that, in the bench notes to the pattern jury instruction for aggravated assault with intent to murder, rape, or rob, the Council of Superior Court Judges of Georgia instructs the trial court to “include the definition of the relevant felony” when charging aggravated assault with such specific intent: For aggravated assault, the State must prove that the Defendant: 1. assaulted another person 2. with the intent to (murder) (rape) (rob).

2023See Guyse, 286 Ga. at 576 (2); Grant, 326 Ga. App. at 122 (1).7 Nor did the trial court instruct the jury that “intent to murder” 7 We note that, in the bench notes to the pattern jury instruction for aggravated assault with intent to murder, rape, or rob, the Council of Superior Court Judges of Georgia instructs the trial court to “include the definition of the relevant felony” when charging aggravated assault with such specific intent: For aggravated assault, the State must prove that the Defendant: 1. assaulted another person 2. with the intent to (murder) (rape) (rob).

2023See Ga. L. 2023, Act 59, § 2. 21 Ga. 423, 426 (541 SE2d 636) (2001) (holding that the trial court was not required to give the requested charge because it “was not a correct statement of law”). (ii) To the extent Priester is now arguing that the trial court committed plain error by failing to give the pattern jury instruction on perjury, which he cites in his brief, he has again failed to show error, let alone clear or obvious error.

2023See Guyse, 286 Ga. at 576 (2); Grant, 326 Ga. App. at 122 (1).7 7 We note that, in the bench notes to the pattern jury instruction for aggravated assault with intent to murder, rape, or rob, the Council of Superior Court Judges of Georgia instructs the trial court to “include the definition of the relevant felony” when charging aggravated assault with such specific intent: For aggravated assault, the State must prove that the Defendant: 1. assaulted another person 2. with the intent to (murder) (rape) (rob).

2023See Guyse, 286 Ga. at 576 (2); Grant, 326 Ga. App. at 122 (1).7 Nor did the trial court instruct the jury that “intent to murder” 7 We note that, in the bench notes to the pattern jury instruction for aggravated assault with intent to murder, rape, or rob, the Council of Superior Court Judges of Georgia instructs the trial court to “include the definition of the relevant felony” when charging aggravated assault with such specific intent: For aggravated assault, the State must prove that the Defendant: 1. assaulted another person 2. with the intent to (murder) (rape) (rob).

2023In Watkins, we rejected a similar claim to the one Brown raises on appeal, concluding that the pattern jury instruction on witness credibility adequately covered a delayed outcry.2 336 Ga. App. at 149-150 (3) (b); see also Suggested Pattern Jury 2 The trial court gave the following instruction: The jury must determine the credibility of the witnesses.

2023See Reese, 317 Ga. at 203-206 ; Stewart, 311 Ga. at 472-473 .

2023See Rodriguez-Nova v. State, 295 Ga. 868, 873 (4) (d) (763 SE2d 698) (2014) (holding that the trial court’s instruction, following the pattern jury instruction, that “[p]rovocation by words alone will, in no case, justify such ex- citement of passion sufficient to free the accused from the crime of murder or to reduce the offense to manslaughter when the killing is done solely in resentment of such provoking words” was a correct 5 The trial court instructed the jury that “provocation by words alone is not sufficient to free an accused from the crime of murder when the killing is done solely in

2023See Rodriguez-Nova v. State, 295 Ga. 868, 873 (4) (d) (763 SE2d 698) (2014) (holding that the trial court’s instruction, following the pattern jury instruction, that “[p]rovocation by words alone will, in no case, justify such ex- citement of passion sufficient to free the accused from the crime of murder or to reduce the offense to manslaughter when the killing is done solely in resentment of such provoking words” was a correct 5 The trial court instructed the jury that “provocation by words alone is not sufficient to free an accused from the crime of murder when the killing is done solely in