Payne v. State

• Decision Date: 09 August 2022
• Docket Number: S22A0469
• Citation: 314 Ga. 322,877 S.E.2d 202
• Parties: PAYNE v. The STATE.
• Court: Georgia Supreme Court

314 Ga. 322

877 S.E.2d 202

PAYNE

v.The STATE.

S22A0469

Supreme Court of Georgia.

Decided: August 9, 2022

Devin Austin Rafus, Manubir Singh Arora, The Aurora Law Firm, LLC, 75 W. Wieuca Road NE, Atlanta, Georgia 30342, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Matthew Blackwell Crowder, Assistant Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Fani T. Willis, District Attorney, Karen S. Bemis, A.D.A., Fulton County District Attorney's Office, 136 Pryor Street, 4th Floor, Atlanta, Georgia 30303, Juliana Sleeper, Assistant County Attorney, Fulton County - Office of the Fulton County Attorney, 141 Pryor Street, SW, Suite 4038, Atlanta, Georgia 30303, Kevin Christopher Armstrong, Senior A.D.A., Fulton County District Attorney's Office, 136 Pryor Street, 4th Floor, Atlanta, Georgia 30306, for Appellee.

Peterson, Presiding Justice.

Lorenzo Payne appeals his conviction for malice murder stemming from the shooting death of Quartez Armour, which occurred after they cheated each other during a putative drug deal.¹ Payne argues that the trial court committed plain error when it failed to instruct the jury that accomplice testimony must be corroborated. He claims that the trial contained a structural error in that Armour's brother threatened witnesses and shared testimony with witnesses outside of the courtroom. And Payne argues that his trial counsel was ineffective in a variety of respects. We conclude that any error in failing to give the accomplice-corroboration instruction does not meet the test for plain error because it is not likely that any error affected the outcome of the trial. We also conclude that any claim of structural error based on the alleged actions of Armour's brother was not preserved, and that Payne has not met his burden of showing that counsel was constitutionally ineffective.

The evidence admitted at trial showed that in April 2005, Payne made plans to sell a kilogram of cocaine to Armour for $10,000 to $15,000. Unbeknownst to Armour, the "brick" of cocaine that Payne planned to sell him was a fake. Payne went with several associates to consummate the deal with Armour. Armour was provided the fake brick and gave Payne and his associates a sock of cash in exchange. As they pulled away, Payne's group quickly realized that the sock contained only a few hundred dollars.

Even though the brick was a fake, Payne became angry and began scheming to retrieve it. When Armour refused to meet up again, Payne and his associates went to the home of Armour's mother and had Armour's car towed away. The group contacted Armour by telephone and attempted to exchange the car for money or the fake brick. When Armour refused, some of Payne's associates stripped the car. That night, Armour was shot and killed at a Fulton County apartment complex. He was found dead in the front seat of a car and had been shot multiple times, apparently at close range. Four .22-caliber bullets, all fired from the same gun, were recovered from Armour's body.² At the crime scene, investigators found seven .22-caliber casings (all fired from the same gun), one .22-caliber bullet, and two 9-millimeter casings (both fired from the same gun) that were further away from Armour's body than the .22-caliber casings. Payne was arrested in Ohio in June 2005, giving a false name.

The State's case largely rested on the testimony and pretrial statements of Payne's associates Jermaine Strickland, Saccari Dodson, Antoine Weddington, Calvin Daniels, Renardo Thomas, and Marcus Bailey. Each was involved to some degree in the events that led up to the shooting — i.e., the putative drug deal and the theft and stripping of Armour's car. There was also some evidence that Weddington, Daniels, and Bailey may have been involved in the shooting of Armour. There was testimony that, after they realized they had been cheated by Armour, both Weddington and Bailey, along with Payne, said they were going to kill Armour. The jury also heard that Bailey told police that Weddington and Daniels were with Payne during the shooting, and that Dodson relayed to police that Daniels had said he was with Payne during the shooting.

But the jury also heard evidence showing that Payne was the one who actually shot Armour. Multiple witnesses testified that Payne threatened to kill Armour after realizing that he had been shorted in the putative drug deal. Strickland testified that when he declined to drive Payne and others back to Armour's apartment, Payne responded by stating that Armour would be dead by the following day; Strickland said that Payne said, "Don't worry about it, I'm going to split the n****r's tater." Dodson testified that, after Payne realized that Armour had shorted him, Payne remarked, "When I catch him, I'm going to kill him," or, "When I catch him, I'm going to knock his head off." Dodson testified that, after Armour's car was stolen, Payne continued to say that he wanted to kill Armour, and threatened him directly over the telephone. Weddington testified that after Payne learned that Armour shorted him, Payne stated that he was going to "split [Armour's] wig." Daniels testified that, after they realized that they had been shorted, Payne said he was "going to kill" Armour.

Dodson further testified that, after hearing about Armour's death, he called Payne, who reported, "I got that n****r," which Dodson took to mean that Payne had killed Armour. The lead detective on the case, JD Stephens, testified without objection that Dodson told him that Payne admitted to shooting Armour. The State also introduced and published to the jury an audio recording of Detective Stephens's interview of Dodson. On the recording, Dodson says that Daniels reported to him that Payne had shot Armour in the head and that Payne himself admitted to Dodson that he killed Armour. Dodson said he thought Payne had used a .45-caliber gun, but was uncertain.

Although Bailey insisted in his testimony that Payne never told him that he killed Armour, Detective Stephens read most of Bailey's written statement to the jury, including portions in which Bailey said that Payne had admitted to shooting Armour and that Bailey thought Payne had used a .22-caliber pistol to do so.

Daniels testified that he learned from Dodson that "they had just killed" Armour. Thomas testified that Daniels reported to him that Payne had been the one who had killed Armour.

The jury proceeded to find Payne guilty of malice murder and felony murder based on aggravated assault, but not guilty of felony murder based on possession of a firearm by a convicted felon. This appeal by Payne followed.

1. Payne argues that the trial court committed plain error when it failed to instruct the jury that an accomplice's testimony must be corroborated. This claim fails at least on the third prong of the plain-error test, because any error did not likely affect the outcome of the proceeding.

The trial court instructed the jury under OCGA § 24-14-8 that generally the testimony of a single witness is sufficient to establish a fact and corroboration is not required. Payne did not request an accomplice-corroboration charge, and the trial court did not give one. After the trial court finished charging the jury, Payne's counsel stated that he had no objections. We thus review this claim only for plain error. See OCGA § 17-8-58 (b) ("Failure to object in accordance with subsection (a) of this Code section shall preclude appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties. Such plain error may be considered on appeal even if it was not brought to the court's attention as provided in subsection (a) of this Code section.").

To show plain error, the appellant must demonstrate that the instructional error was not affirmatively waived, was obvious beyond reasonable dispute, likely affected the outcome of the proceedings, and seriously affected the fairness, integrity, or public reputation of judicial proceedings. Satisfying all four prongs of this standard is difficult, as it should be.

Clarke v. State , 308 Ga. 630, 637 (5), 842 S.E.2d 863 (2020) (citation and punctuation omitted). This Court does not have to analyze all elements of the plain-error test where an appellant fails to establish one of them. See State v. Herrera-Bustamante , 304 Ga. 259, 264 (2) (b), 818 S.E.2d 552 (2018).

OCGA § 24-14-8 provides, in relevant part, that "[t]he testimony of a single witness is generally sufficient to establish a fact. However, in ... felony cases where the only witness is an accomplice, the testimony of a single witness shall not be sufficient."³ Interpreting this rule, this Court has stated that a jury may not rely solely on an accomplice's testimony to find any fact necessary to sustain a defendant's felony conviction. "Instead, the existence of any such fact must also be supported either by the testimony of an additional witness or by other, independent evidence that corroborates the accomplice's testimony." State v. Johnson , 305 Ga. 237, 240, 824 S.E.2d 317 (2019) (citation and punctuation omitted). "In considering whether a witness is an accomplice, we look to the definition of party to a crime found in OCGA § 16-2-20 [,]" such that there must be some evidence that the witness shared with the defendant "a common criminal intent to commit the crimes in question[.]" Horton v. State , 310 Ga. 310, 322-323 (3) (c), 849 S.E.2d 382 (2020) (citations and punctuation omitted).

Here, there is evidence that Bailey and Weddington threatened to kill Armour. There also is some evidence that Weddington and Daniels were with Payne when he shot Armour. But even assuming that this constitutes evidence that any of these three witnesses were accomplices to the murder, such that it was obvious error to not give an...