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, 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 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
