Georgia Court of Appeals Clarifies Plain Error Review

In doing so, the Court clarified the circumstances under which plain error review will be applicable.

Central to the case was the defendant’s argument that the trial court erred in charging the jury on aggravated assault, and the parties differed on the correct standard of review for such a claim of error. The Court clarified that the standard of review of an alleged erroneous jury charge is de novo, meaning that the trial court’s ruling is accorded no deference. In the past, the phrase “plain legal error” has been used as a synonym for “de novo” by the Georgia Court of Appeals. The Court emphasized that this plain legal error standard is not the same thing as the plain error doctrine.

The plain error doctrine authorizes a narrow category of issues to be considered on appeal even after they have been waived as a result of not being raised in the trial court. Prior to January 1, 2013, the plain error doctrine applied to alleged error in three situations: the sentencing phase of a trial resulting in the death penalty, a trial court’s ruling on the sufficiency of the evidence, and a jury charge affecting substantial rights of the parties where no objection was made at trial. To find plain error, the court must conclude that (1) there was an error or defect that has not been intentionally relinquished or abandoned, (2) the legal error must be clear or obvious, rather than subject to reasonable dispute, (3) the error must have affected the appellant’s substantial rights, meaning that it affected the outcome of the trial, and (4) the error must have seriously affected the fairness of the defendant’s trial.

For cases tried after January 1, 2013, O.C.G.A. § 24-1-103 expands the plain error doctrine to allow an appellate court to consider a multitude of issues that had not been raised in the trial court. The statute permits an appellate court to now consider any issue “affecting substantial rights.”

In reviewing the jury charge, the Court of Appeals rejected the defendant’s argument that the instruction was improper because “the indictment specifically avers the attempted battery type of aggravated assault.” The Court reasoned that the indictment was not specific, and could encompass either method of assault – attempting to commit a violent injury or committing an act which puts another in reasonable apprehension of receiving a violent injury. Thus, the Court held that because the indictment charged both types of assault, the trial court’s jury instruction was proper.