Payne v. State

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. …

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