Payne v. State ( 2022 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: August 9, 2022
S22A0469. PAYNE v. THE STATE.
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
1The crimes took place on the night of April 12, 2005. On August 26,
2011, a Fulton County grand jury indicted Payne for malice murder, three
counts of felony murder, aggravated assault, conspiracy, possession of a
firearm during the commission of a felony, and possession of a firearm by a
convicted felon. Prior to trial, the trial court entered an order of nolle prosequi
as to all counts except malice murder, felony murder predicated on aggravated
assault, and felony murder predicated on possession of a firearm by a convicted
felon. The case was tried before a jury in May 2013. The jury found Payne
guilty of malice murder and felony murder predicated on aggravated assault
and not guilty of felony murder predicated on possession of a firearm by a
convicted felon. In a judgment filed on May 28, 2013, the trial court sentenced
Payne to life without parole for malice murder and purported to merge the
felony murder count; in fact, it was vacated by operation of law. See Malcolm
v. State, 263 Ga. 369, 372 (4) (434 SE2d 479) (1993). Payne filed a timely motion
for new trial, which was amended by appellate counsel in March 2017, January
2019, August 2019, and March 2020. Following a hearing, the trial court
denied the motion in an order entered on October 1, 2021. Payne filed a timely
notice of appeal to this Court. The case was docketed to this Court’s April 2022
term and orally argued on June 22, 2022.
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
2
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
2 Although a firearms examiner testified that he also received a 9-
millimeter bullet from the medical examiner, this appears to be a reference to
a bullet that had remained in Armour’s body from a shooting prior to the events
at issue here.
3
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
4
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
5
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
6
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
7
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 SE2d 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 SE2d 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
8
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 SE2d 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 SE2d
382) (2020) (citations and punctuation omitted).
Here, there is evidence that Bailey and Weddington threatened
3 Although Armour was killed in 2005, Payne was tried in May 2013, so
the current Evidence Code applies. OCGA § 24-14-8 existed in identical form
in the old Evidence Code and does not have an equivalent in the Federal Rules
of Evidence, and we have held that precedent under the old code regarding it
remains applicable under the current code. See Foster v. State, 304 Ga. 624,
627 (2) n.6 (820 SE2d 723) (2018).
9
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 accomplice-corroboration instruction — something we need not
decide in order to resolve this case — we cannot say that any such
error likely affected the outcome of the proceedings. 4 Where
accomplice testimony is the “bedrock” of the conviction, it may be
“likely that the jury convicted [the defendant] on [the accomplice’s]
testimony alone[.]” Doyle v. State, 307 Ga. 609, 613-614 (2) (b) (837
SE2d 833) (2020). But here, some of the most incriminating
testimony came from witnesses who could not reasonably be
considered accomplices in the murder. In particular, Dodson
testified that Payne threatened to kill Armour when he realized that
4 Because we resolve this issue on the grounds that any error did not
likely affect the outcome, we need not consider the significance of the case
having been tried before our decision in Hamm v. State, 294 Ga. 791 (756 SE2d
507) (2014), which overruled our prior precedent holding that it was not error
for a trial court to refuse to give a requested instruction on accomplice
corroboration so long as the State relied in part on evidence other than
accomplice testimony in connecting the defendant to the crime. Id. at 796 (2).
10
he had been shorted in the drug transaction, and Strickland
similarly testified that Payne threatened to kill Armour and
predicted Armour would be dead by the following day. Moreover,
Dodson testified that Payne admitted to killing Armour. Payne has
pointed to no evidence from which it could reasonably be concluded
that Dodson or Strickland was an accomplice to Armour’s murder. 5
Moreover, had the jury been given an accomplice-corroboration
instruction, the testimony of any witness the jury concluded was an
accomplice could have been corroborated by these non-accomplice
witnesses or by the testimony of another accomplice. See Rice v.
State, 311 Ga. 620, 624 (1) (857 SE2d 230) (2021) (citing possibility
that testimony of a co-defendant and another potential accomplice
could be found “mutually corroborating” in concluding that the trial
5 At oral argument, Payne acknowledged that merely being an
accomplice in the underlying drug transaction would not be enough to trigger
the statute’s corroboration requirement in this case. Payne did suggest at oral
argument that because the State’s eyewitnesses had a motive to kill Armour
by virtue of their involvement in the drug transaction, there was evidence that
they were accomplices to the murder. But motive alone is not enough to make
a person an accomplice. See Moore v. State, 255 Ga. 519, 521 (1) (340 SE2d 888)
(1986) (insufficient evidence that appellant was a party to the crime of murder
notwithstanding that he had motive).
11
court’s clear error in not giving an accomplice-corroboration charge
likely did not change the outcome of the trial). Given the number of
witnesses who implicated Payne in the shooting, it is not likely that
the jury convicted him based on the uncorroborated testimony of a
single witness who was an accomplice. Payne thus has not shown
that it is likely that the failure to give the accomplice-corroboration
charge affected the outcome of the proceedings. Compare Hawkins
v. State, 304 Ga. 299, 303 (3) (818 SE2d 513) (2018) (not likely that
the failure to give an accomplice-corroboration charge affected the
outcome of the trial given the appellant’s admission, eyewitness
accounts from the victim’s friends, and security camera footage
showing the appellant at the scene of the crime), with Johnson, 305
Ga. at 241 (“[B]ecause virtually all of the incriminating evidence
flowed from [the accomplice], the outcome of the trial court
proceedings was ‘likely affected’ by the trial court’s failure to provide
an accomplice corroboration charge to the jury, and a proper
instruction would likely have resulted in a different verdict.”), and
Stanbury v. State, 299 Ga. 125, 131 (2) (786 SE2d 672) (2016) (the
12
trial court’s failure to give an accomplice-corroboration charge likely
affected the outcome of the trial where the accomplice “was the only
witness who affirmatively identified [the defendant] as the second
man inside the house who robbed and shot” the victim).
2. Payne next argues that his trial contained a structural
error in that Armour’s brother threatened witnesses and shared
testimony with them outside of the courtroom. We conclude that this
claim was not preserved.
After several witnesses had testified for the State, outside of
the presence of the jury, the trial court summoned to the bench the
brother of the victim, Kelvin Armour (“Kelvin”), saying a deputy had
reported that Kelvin had been “talking to witnesses outside.” A “Ms.
Hernandez” (who is not otherwise identified in the transcript but
appears to have been affiliated with the prosecution) reported that
she had spoken with a witness who was “agitated because Mr.
Armour here has been walking back and forth talking about the
witnesses lying and also telling them that I’m going to get you one
by one, one by one.” She added, “What I believe is going on is that
13
he’s listening to the testimony and then he’s going out there and —
.” The trial court interrupted her to agree, saying, “That’s what it
sounds like to me.” Kelvin denied talking to witnesses or making
threats, but the trial court found that “there’s something going on”
and Kelvin was “communicating with potential witnesses out there.”
The trial court ordered Kelvin to leave the courthouse and not
communicate with any witnesses.6 Payne did not object to this
resolution of the matter.
A “structural error” generally is defined as a “defect affecting
the framework within which the trial proceeds, rather than simply
an error in the trial process itself.” Arizona v. Fulminante, 499 U.S.
279, 310 (111 SCt 1246, 113 LE2d 302) (1991); see also Berry v.
State, 282 Ga. 376, 378 (3) (651 SE2d 1) (2007). Structural errors are
not subject to harmless error review; they are cause for “automatic”
reversal. Sinkfield v. State, 311 Ga. 524, 527-528 (1) (858 SE2d 703)
(2021); see also Alexander v. State, 313 Ga. 521, 526 (2) (870 SE2d
6The parties do not dispute that, prior to that point, no order of the trial
court had prohibited anyone from communicating with witnesses.
14
729) (2022). But we need not decide whether the trial court’s
handling of matters related to Armour’s brother constituted a
structural error. Payne preserved no such argument for our review,
because he failed to request a mistrial or some other remedy. That
leaves us nothing to review. See Pyatt v. State, 298 Ga. 742, 750 (5)
(784 SE2d 759) (2016) (“[E]ven structural errors are capable of
forfeiture.”); Reid v. State, 286 Ga. 484, 488 (3) (c) (690 SE2d 177)
(2010) (“The improper closing of a courtroom is a structural error
requiring reversal only if the defendant properly objected at trial
and raised the issue on direct appeal[.]”).
3. Payne also brings a host of claims of ineffective assistance
of counsel. We reject each of them.
For Payne to prevail on his ineffectiveness claim, he must show
that (1) his trial counsel’s performance was constitutionally deficient
and (2) he was prejudiced by counsel’s deficient performance. See
Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d
674) (1984). If Payne fails to establish one of these two prongs, “we
need not examine the other.” Robinson v. State, 308 Ga. 543, 553 (3)
15
(842 SE2d 54) (2020). To show deficient performance, the defendant
must demonstrate that counsel performed counsel’s duties in an
objectively unreasonable way, considering all of the circumstances
and in the light of prevailing professional norms. See Strickland,
466 U.S. at 687-688. To establish prejudice, Payne “must show that
there is a reasonable probability that, but for counsel’s
unprofessional error[ ], the result of the proceeding would have been
different.” Id. at 694. “In reviewing a ruling on a claim of ineffective
assistance of counsel, we defer to the trial court’s findings of fact
unless they are clearly erroneous, but we apply the law to the facts
de novo.” State v. Spratlin, 305 Ga. 585, 591 (2) (826 SE2d 36) (2019).
Payne argues that his trial counsel was ineffective for: (a)
failing to request an accomplice-corroboration jury charge; (b) failing
to object to two instances of inadmissible hearsay; (c) failing to object
to a prosecutor’s reading aloud from Bailey’s prior statement during
his testimony; (d) failing to request a mistrial based on Armour’s
brother threatening witnesses; (e) failing to object to Weddington’s
testimony that he had been threatened; (f) failing to cross-examine
16
witnesses about whether Kelvin had threatened or shared testimony
with them; and (g) failing to investigate, develop, and argue evidence
that another individual committed the murder. 7 Even assuming that
counsel was deficient for failing to request an accomplice-
corroboration instruction or to object to alleged hearsay, we conclude
that Payne has not shown prejudice. And we reject Payne’s
argument that counsel’s performance was deficient for the other
reasons he cites.
(a) Addressing first Payne’s argument that his trial counsel
was ineffective for failing to request an accomplice-corroboration
jury instruction, “[t]his Court has equated the prejudice step of the
7 Payne also cites counsel’s failure to object to leading questions by the
prosecutor during Bailey’s testimony. But he does not specify any particular
leading question or explain how the answer prejudiced him; rather, he cites
most of Bailey’s direct testimony, up to the point at which defense counsel
raised an overruled objection that the questioning was “turning into a cross-
examination.” “It is not the function of this Court to cull the record for a party
to find alleged errors or to form arguments on the appellant’s behalf.” Neuman
v. State, 311 Ga. 83, 96 (4) (b) (iv) (856 SE2d 289) (2021). “[C]laims that are so
lacking in specific argument that they are incapable of being meaningfully
addressed are deemed abandoned under Supreme Court Rule 22.” Willis v.
State, 304 Ga. 686, 694 (4) (820 SE2d 640) (2018) (citation and punctuation
omitted). Through the lack of specificity in Payne’s brief as to this enumeration
of error, he has abandoned it. See Lyons v. State, 309 Ga. 15, 25 (8) n.7 (843
SE2d 825) (2020).
17
plain error standard with the prejudice prong for an ineffective
assistance of counsel claim.” Jackson v. State, 306 Ga. 69, 84 (4) (b)
(829 SE2d 142) (2019) (citation and punctuation omitted). Thus,
even if we assume that trial counsel performed deficiently in not
requesting an accomplice-corroboration instruction, Payne has not
shown prejudice for the reasons explained in Division 1. See id. at
84-85 (4) (b).
(b) Payne next argues that trial counsel was ineffective in
failing to object on hearsay grounds to Detective Stephens’s
testimony about what Dodson told him and to Thomas’s testimony
about what Daniels told him. We conclude that any deficient
performance in this regard did not prejudice Payne’s defense.
We need not decide whether this testimony was inadmissible
hearsay, or whether counsel performed deficiently in failing to object
to it, because the testimony was cumulative of other evidence
presented at trial and the admission of which Payne does not
contest, and so its admission did not prejudice Payne. Detective
Stephens’s testimony that Dodson said Payne admitted to shooting
18
Armour was cumulative of Dodson’s own testimony to that effect and
of the recording of Dodson’s interview. And Thomas’s testimony that
Daniels told him that Payne killed Armour was cumulative of other
evidence as well, including that same recording of Dodson’s
interview, in which Dodson said that Daniels reported to him that
Payne had shot Armour. Although the recording of Dodson’s
interview was not admitted until after the testimony in question,
there is not a reasonable probability that any deficiency in counsel’s
failure to object affected the outcome of the case, given that the
testimony was cumulative. See Koonce v. State, 305 Ga. 671, 675 (2)
(c) (827 SE2d 633) (2019) (the defendant failed to show prejudice
resulting from a failure to object or move for a mistrial based on
certain testimony that was “largely cumulative of other, unobjected-
to evidence of the same facts”); Wilson v. State, 297 Ga. 86, 87-88 (2)
(772 SE2d 689) (2015) (no prejudice where the testimony challenged
on hearsay grounds was cumulative).
(c) Payne argues that counsel was ineffective in failing to
object to a prosecutor’s reading aloud from Bailey’s prior statement
19
during his testimony, contending that the prosecutor should have
asked certain foundational questions before attempting to impeach
Bailey with a prior inconsistent statement. But as the State points
out, counsel did in fact object, saying it was “improper” for the
prosecutor to read from the statement, particularly given that it had
not been admitted into evidence. The trial court overruled the
objection.8 “Once the court makes a definitive ruling on the record
admitting or excluding any evidence, either at or before trial, a party
need not renew an objection or offer of proof to preserve such claim
of error for appeal.” OCGA § 24-1-103 (a).
(d) Payne next argues that his counsel was ineffective for
failing to move for a mistrial or otherwise object to Kelvin’s
threatening witnesses. We disagree.
Again, Payne claims that Kelvin’s alleged threats to witnesses
created a “structural error.” He argues that this is akin to the
unconstitutional closure of a courtroom, a structural error from
which harm is presumed. See Reid, 286 Ga. at 488 (3) (c). He also
8 Payne does not claim error in this ruling.
20
attempts to draw an analogy to certain communications between a
juror and a third party that may create a presumption of harm to
the defendant. See Ledford v. State, 264 Ga. 60, 65 (9) (439 SE2d
917) (1994). But he cites no authority that the sort of contact at issue
here is grounds for a mistrial, and we have found none. A lawyer is
not deficient for failing to make an argument that would require an
extension of the law. See Spratlin, 305 Ga. at 593 (2) (a). Moreover,
Payne does not explain why it would have made sense to grant a
mistrial solely based on the fact that witnesses had been threatened,
as although a retrial involves the selection of new jurors, it does not
necessarily involve the selection of new witnesses. And to the extent
that Payne argues that counsel otherwise was deficient for failing to
“object to the constitutional structural error” of Kelvin threatening
witnesses, he does not specify what remedy short of a mistrial
counsel should have requested. Although a witness’s reference to a
threat may raise the possibility of prejudice to be addressed by the
trial court when the reference is made in front of the jury, see, e.g.,
Kemp v. State, 303 Ga. 385, 397 (2) (d) (810 SE2d 515) (2018), the
21
trial court’s inquiry about Kelvin’s alleged actions was conducted
outside of the presence of the jury. 9 Payne has not shown that
counsel performed deficiently in failing to request a mistrial based
on alleged threats by Kelvin or otherwise “object” to the situation.
(e) Payne argues that his counsel was ineffective for failing
to object to testimony by Weddington that he had been threatened,
and in failing to ask to strike the testimony or for a limiting
instruction. Counsel was not deficient.
Weddington testified sometime after the trial court had
inquired about possible threats to witnesses by Kelvin. During his
testimony, Weddington was asked by the State whether anyone had
“threatened [him] to be here today[.]” He replied in the affirmative,
then clarified, “Oh, not a threat of me coming here. Have I been
threatened since I’ve been sitting out there? Yes.” The prosecutor
elicited Weddington’s further clarification that the DA’s office had
not “threatened” Weddington (or promised him anything) in order to
9Counsel’s handling of a particular reference by a witness to a threat by
an unspecified person is raised in a separate enumeration of error and
addressed below.
22
procure his testimony, then moved on.
Payne argues that counsel should have moved to strike this
testimony and sought a limiting instruction, or at least explored the
issue on cross-examination. It is unclear how this brief testimony by
Weddington was relevant.10 And counsel might have successfully
sought a limiting instruction to the effect that the jury should not
infer from Weddington’s testimony that Payne had anything to do
with any threat to him. See, e.g., Gordy v. State, 236 Ga. 723, 724
(3) (225 SE2d 287) (1976). But counsel testified that, although he did
not recall why he did not object to this testimony, he was unsure of
the identity of the person who had threatened Weddington and also
is generally cautious about highlighting courtroom security issues
10“Evidence of a defendant’s attempt to influence or intimidate a witness
can serve as circumstantial evidence of guilt[,]” as can an attempt by a third
person to influence a witness, “where it is established that the attempt was
made with the authorization of the accused.” Palmer v. State, 303 Ga. 810, 816-
817 (IV) (814 SE2d 718) (2018) (citation and punctuation omitted). But here
the State made no attempt to connect any threat to Weddington to the
defendant. A trial court also “has discretion to admit evidence of [a] threat [to
the witness] if it is relevant to explain the witness’s reluctant conduct on the
witness stand.” Id. at 817 (IV) (citation and punctuation omitted). But it does
not appear that Weddington evinced reluctance to answer questions during his
testimony or that explaining such reluctance was the purpose of introducing
the remark about a threat.
23
for jurors, who may be concerned about that. In the light of such
concerns, counsel could have made a reasonable, tactical choice to
not object. “The matter of when and how to raise objections is
generally a matter of trial strategy.” Robinson v. State, 278 Ga. 31,
36 (3) (c) (597 SE2d 386) (2004) (citation and punctuation omitted).
We cannot conclude that it was deficient performance for counsel to
refrain from addressing Weddington’s testimony about a threat,
particularly given the brief and vague nature of the remark.
(f) Relatedly, Payne argues that trial counsel was ineffective
for failing to cross-examine witnesses about whether Kelvin had
threatened or shared testimony with them. We disagree.
“[D]ecisions about what questions to ask on cross-examination
are quintessential trial strategy and will rarely constitute
ineffective assistance of counsel.” Montanez v. State, 311 Ga. 843,
854 (2) (860 SE2d 551) (2021) (citation and punctuation omitted).
Counsel testified that asking State’s witnesses about threats by the
victim’s brother may not have been helpful to the defense. And he
indicated that he did not know how witnesses would have answered
24
questions about sharing of testimony. Payne does not argue that
counsel’s preparation for cross-examination of the witnesses was
deficient, and we cannot say that counsel’s failure to cross-examine
witnesses on this point was objectively unreasonable given
uncertainty about how they would have answered and whether
those answers would have been helpful to his client.
(g) Finally, Payne argues that his trial counsel was
ineffective in failing “to investigate, develop, and argue evidence”
that another individual murdered Armour. We disagree.
A beer bottle was found at the crime scene. Although not
presented at trial, a GBI report that appears to have been provided
to the defense in discovery showed that the beer bottle contained
DNA matching a person named Deshawn Zabin. Payne also
attached as an exhibit to his amended motion for new trial records
indicating that Zabin had been convicted of burglary, armed
robbery, false imprisonment, and sexual battery based on actions
committed at a law office in September 2006. Payne suggests that
trial counsel should have investigated Zabin’s possible involvement
25
in Armour’s murder and introduced evidence about Zabin’s criminal
background, as well as evidence about the beer bottle indicating that
Zabin had (at some point) been present at the scene of the shooting.
OCGA § 24-4-402 provides that “[a]ll relevant evidence shall be
admissible, except as limited by constitutional requirements or as
otherwise provided by law or by other rules,” and “[e]vidence which
is not relevant shall not be admissible.”
This Court has followed the general rule that, before
testimony can be introduced that another person
committed the charged crime, the proffered evidence
must raise a reasonable inference of the defendant’s
innocence and, in the absence of a showing that the other
person recently committed a crime of the same or a
similar nature, must directly connect the other person
with the corpus delicti.
Roberts v. State, 305 Ga. 257, 260 (3) (824 SE2d 326) (2019) (citation
and punctuation omitted); see also Holmes v. South Carolina, 547
U.S. 319, 324 (126 SCt 1727, 164 LE2d 503) (2006) (discussing
accused’s federal constitutional right to present a full defense).
To the extent that Payne argues that counsel performed
deficiently by not presenting evidence that Zabin’s DNA had been
26
found at the crime scene and that Zabin had been convicted of an
unrelated crime, he has not come close to meeting that standard.
Evidence that Zabin may have been at the crime scene at some
unknown point, and that he committed an unrelated, dissimilar
crime, does not raise a reasonable inference of Payne’s innocence.
See De La Cruz v. State, 303 Ga. 24, 27-28 (3) (810 SE2d 84) (2018)
(trial court did not err in excluding evidence that a third person
assaulted a different victim sometime in the past and threatened
that victim at the same location where the murder occurred, because
that evidence did not directly connect the third person to the corpus
delicti and did not raise a reasonable inference of the defendant’s
innocence, as there was no evidence that the third person was at
that same location on the night of the murder). To the extent that
Payne is arguing that counsel was deficient for failing to investigate
and discover additional evidence connecting Zabin to Armour’s
death, he offers no evidence in support of this claim other than
suggesting that additional investigation could have led to
exculpatory evidence. “Unfounded speculation about what
27
additional investigation might have uncovered or about what
unnamed witnesses may have testified [to] cannot support a claim
that trial counsel was professionally deficient, nor can it establish
prejudice.” Gittens v. State, 307 Ga. 841, 844 (2) (a) (838 SE2d 888)
(2020).
4. Payne also argues that his convictions should be reversed
due to the cumulative prejudice arising from trial court error and
ineffective assistance of counsel. See State v. Lane, 308 Ga. 10, 17
(1) (838 SE2d 808) (2020). Even considering together the trial court’s
presumed error in failing to give an accomplice-corroboration
instruction along with the presumed deficiencies in counsel’s failure
to request that instruction and failure to object to the alleged
hearsay testimony by Detective Stephens and Thomas, see Finney
v. State, 311 Ga. 1, 13 (3) (a) n.27 (855 SE2d 578) (2021), we conclude
that Payne has not demonstrated a reasonable probability that, but
for these failures, the outcome of the proceeding would have been
different. As noted above, the alleged hearsay was cumulative of
Dodson’s interview. The evidence did not support a conclusion that
28
Dodson was an accomplice to the murder. The jury heard a
significant amount of incriminating testimony that was neither the
alleged hearsay testimony by Detective Stephens and Thomas nor
statements by accomplices. Payne has not shown a reasonable
probability that the jury convicted him based on the uncorroborated
statement of a single witness who was an accomplice or that the
result of the trial would have been different in the absence of the
alleged hearsay.
Judgment affirmed. All the Justices concur.
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