Payne v. State ( 2022 )

In the Supreme Court of Georgia
Decided: January 19, 2022
S21A1096. PAYNE v. THE STATE.
MCMILLIAN, Justice.
Lowe Payne appeals his convictions for felony murder and
other crimes arising out of the shooting death of Carldrake Finister. 1
On appeal, Payne asserts that the trial court erred when it admitted
evidence of prior difficulties between the parties and that trial
1 Finister was killed on August 28, 2017, and in October 2017, a Paulding
County grand jury indicted Payne for one count of malice murder (Count 1),
one count of felony murder (Count 3), one count of aggravated assault (Count
5), and three counts of possession of a firearm during the commission of a
felony (Counts 2, 4, and 6).
At a trial conducted from January 6 through 10, 2020, a jury found Payne
guilty on all counts except malice murder. The trial court sentenced Payne to
life in prison without the possibility of parole for felony murder and a
consecutive five-year term in prison for possession of a firearm during
commission of a felony. Count 2 was nolle prossed, and Payne’s other
convictions merged for sentencing purposes.
Payne filed a timely motion for new trial on January 15, 2020, which was
amended through new counsel on November 9, 2020. After a hearing, the trial
court denied the motion as amended on March 22, 2021. Payne timely filed a
notice of appeal on April 19, 2021; the case was docketed to the August term of
this Court and submitted for a decision on the briefs.
counsel was deficient for failing to admit a key piece of exculpatory
evidence and for failing to request the trial court to reopen the
evidence at the jury’s request.
The evidence presented at trial showed that on August 28,
2017, around 10:00 p.m., Daquane Trice picked up Payne and his
daughter from Payne’s place of work, a restaurant in Hiram. Trice
testified that they first drove to Chase Bank, where Payne took out
cash to purchase marijuana from him, and then to Payne’s house in
the Vista Lake subdivision, located in Paulding County. The victim,
Finister, as well as his girlfriend, Korie Peterson, also lived in Vista
Lake at the time and were acquainted with Payne. Peterson testified
that, around this same time on August 28, she picked up Finister
and drove him to Vista Lake’s tennis courts, where they smoked
marijuana together.
After Trice dropped off Payne’s daughter at Payne’s house, he
drove with Payne to the tennis courts. By Trice’s account, they were
looking for a place to smoke marijuana, but Payne testified that they
were just going to “hang out” and “kick it.” Trice explained that
2
while driving to the tennis courts, he saw Peterson’s car parked
there and decided to go smoke elsewhere. But, when Finister and
Trice subsequently spoke on the phone, Finister asked Trice to come
back and sell him marijuana, so Trice drove back to the courts and
parked a few spaces away from Peterson’s parked car.
According to Payne, this phone call was confusing and
upsetting to him. Payne testified that he felt Trice was trying to “set
[him] up,” because Payne had made it clear to Trice that he did not
want to be around Finister. When Payne saw Peterson’s car, he
assumed she was with Finister and wanted to leave the area to avoid
them because a few days earlier, Payne had received a text message
from Finister that said Finister was going to “smoke” Payne the next
time Finister saw him. 2 Payne explained that he interpreted this as
a threat, meaning that Finister intended to kill him.
After Trice parked, Finister walked up to Trice on the driver’s
side of the car to purchase the marijuana while Trice and Payne
were still sitting inside the car. Trice testified that Finister was
2 The word “smoke” was represented by a smoke emoji.
3
“goofy” and “laughing” when he approached the car, until Payne
brought up the threatening text message. According to Trice, Payne
said, “I heard you want to smoke [me],” to which Finister replied,
“[Y]eah, because [of] what you told [Peterson,] that you was going to
kill me.” Finister and Payne began arguing, and the situation
continued to escalate when Payne got out of the car and met Finister
around the back side. Peterson exited her car when she saw Payne
get out of Trice’s car and grab his gun from the passenger side
floorboard.3 Peterson heard Payne say, “[Y]ou touch me, I’m going to
shoot you,” and she tried to get between the two men to calm them
down. Finister then poked Payne on the shoulder with his finger;
Payne raised his gun, hesitated a little, and then shot Finister three
times while Finister was standing, and at least once after he had
fallen to the ground. Trice also testified that he did not see Finister
hit or shove Payne and that Finister was unarmed. After the
shooting, Peterson drove away from the scene and Payne walked
3 Payne had a license to carry a weapon and was known to carry a gun.
4
away.4
Trice called 911 and waited with Finister for help to arrive. The
911 operator testified that the call was made at 11:04 p.m., and a
recording of the call was played for the jury. During the call, Trice
told the operator that he did not know who shot Finister and that he
was not present for the incident. During subsequent interviews with
police, however, Trice admitted that Payne was the shooter. Police
officers also interviewed Peterson, who confirmed Payne as the
shooter. When paramedics arrived minutes later, Finister was dead.
Police recovered three nine-millimeter shell casings and a
marijuana cigarette from the scene A GBI crime lab expert testified
that the shell casings found at the scene and the bullets and bullet
fragments recovered from the victim’s body were fired from the same
nine-millimeter Glock pistol.
Payne testified at trial to the following, slightly different,
sequence of events. When Finister approached Trice’s car to
4 A security camera recording from Vista Lake confirms the general
timeline of events and was shown to the jury, but, because of poor video quality,
it shows only the general movement of figures and vehicles.
5
purchase the marijuana, Trice saw Payne and said, “[O]h, you with
this n*****.” This prompted Payne to ask Finister whether he was
serious when he said he would “smoke” him, and Finister replied,
“[Y]es.” Finister said he wanted to kill Payne because of Payne’s
friendship with Peterson. Trice then began saying things to
intentionally make Finister more upset. Payne remained calm at
first, but the situation was escalating. Because Finister was
threatening him, Payne asked if he had a gun. Finister replied,
“[W]hat you think[?]” Payne interpreted this as Finister saying he
was armed, so Payne stepped out of the car with his gun. Finister
then came around the back side of the car, still threatening Payne,
and grabbed Payne by the neck. Payne was able to get Finister off
him, but he saw Finister’s hand go toward his waistband. 5 Payne
believed Finister was “about to try to follow up on his words . . . to
5 On cross-examination, Payne said that when Finister reached for his
waistband, he saw the outline of a gun. The prosecutor asked why he never
mentioned seeing the outline of a gun before, and Payne replied that no one
had ever asked him. The prosecutor then questioned Payne about an October
1, 2019 immunity hearing, where Payne testified that he did not see a gun.
Payne explained that during that hearing, he was asked if he saw a gun when
Finister was standing at the driver’s side door and Payne was still sitting in
the passenger seat, and at that time he did not see a gun.
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smoke” him, so he “opened fire.” Payne said he was not counting the
shots and did not pause once he started shooting, but disagreed that
he shot Finister after Finister was already on the ground.
To further support Payne’s theory of self-defense, trial counsel
elicited testimony from Payne about a photograph of Finister
holding a gun. Payne testified that he saw this picture in March
2017 and that Finister had previously told Payne that he had shot
somebody before. Payne testified that he took Finister’s threats
seriously because of the threatening text message, Finister’s
statement that he previously shot someone, the picture of Finister
holding a gun, and because the pair had an altercation about eight
months prior to the fatal shooting.
One of Finister’s best friends, Brandon Ballard, testified about
the specifics of this prior altercation. Ballard explained that in
January 2017, he was with Payne and Finister at Finister’s house.
Payne and Finister began to engage in horseplay, which later
escalated into a fistfight. After the initial scuffle, the two moved
outside and agreed to fight each other. The fight lasted about 30
7
seconds, and Finister got the best of Payne. As Ballard and Payne
were walking away, Payne fired his weapon in the vicinity of
Finister’s home. 6 Ballard later convinced Payne to call Finister and
apologize, which Payne did, but Finister did not accept the apology.
Ballard testified that after this incident occurred, he heard Payne
make threats on multiple occasions about shooting Finister, but
Ballard did not believe Payne was serious.
1. In his first enumeration of error, Payne asserts that the trial
court erred by admitting Ballard’s testimony regarding the January
2017 altercation because the incident did not qualify as a prior
difficulty between Payne and Finister. See OCGA § 24-4-404 (b). 7
6 Payne’s testimony about this prior incident matches Ballard’s. Ballard
had his back turned to Payne at the time and did not see where the gunshots
were aimed, but Ballard testified that he was close enough that he “could spit
on [Finister’s] house.” Payne admitted that he fired his pistol that day, but he
denied firing the shots “towards” Finister’s house.
7 OCGA § 24-4-404 (b) provides:
Evidence of other crimes, wrongs, or acts shall not be admissible
to prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible for other
purposes, including, but not limited to, proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident. The prosecution in a criminal
8
However, at trial, Payne based his objection to Ballard’s testimony
on the State’s alleged failure to provide the requisite notice under
Rule 404 (b) but did not object on the ground he now asserts on
appeal. Thus, Payne failed to preserve this error for ordinary
appellate review. 8 See OCGA § 24-1-103 (a) (1) (“Error shall not be
predicated upon a ruling which admits or excludes evidence unless .
. . a timely objection or motion to strike appears of record, stating
the specific ground of objection . . . .”). See also Dunbar v. State, 309
Ga. 252, 256 (3) (845 SE2d 607) (2020) (“In order to preserve an
objection for [ordinary] appellate review, the specific ground of the
proceeding shall provide reasonable notice to the defense in
advance of trial, unless pretrial notice is excused by the court upon
good cause shown, of the general nature of any such evidence it
intends to introduce at trial. Notice shall not be required when the
evidence of prior crimes, wrongs, or acts is offered to prove the
circumstances immediately surrounding the charged crime,
motive, or prior difficulties between the accused and the alleged
victim.
8 That Payne later asserted this issue in his amended motion for new
trial is also insufficient to preserve this error for ordinary appellate review.
See White v. State, 305 Ga. 111, 113 n.2 (823 SE2d 794) (2019) (analysis limited
to review for plain error where appellant failed to object at trial to admission
of testimony on the basis later raised in amended motion for new trial); State
v. Herrera-Bustamante, 304 Ga. 259, 263 (2) (a) (818 SE2d 552) (2018)
(ordinary appellate review precluded where argument raised for first time in
motion for new trial).
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objection must be made at the time the challenged evidence is
offered.” (citation and punctuation omitted)).
The unavailability of ordinary appellate review does not end
our analysis, however, because Payne’s evidentiary claim is still
“subject to review on appeal for plain error affecting substantial
rights.” Gates v. State, 298 Ga. 324, 326 (3) (781 SE2d 772) (2016)
(citation and punctuation omitted).
To show plain error, [Payne] must point to an error that
was not affirmatively waived, the error must have been
clear and not open to reasonable dispute, the error must
have affected his substantial rights, and the error must
have seriously affected the fairness, integrity or public
reputation of judicial proceedings.
State v. Herrera-Bustamante, 304 Ga. 259, 264 (2) (b) (818 SE2d 552)
(2018) (citation and punctuation omitted). Under OCGA § 24-4-404
(b), evidence of a defendant’s prior acts toward another person may
be admissible into evidence “when the defendant is accused of a
criminal act against the person, where the nature of the relationship
between the defendant and the victim sheds light on the defendant’s
motive in committing the offense charged.” Flowers v. State, 307 Ga.
10618, 621 (837 SE2d 824) (2020). Here, we see no obvious error in the
trial court’s admission of Ballard’s testimony about the prior
incident between Finister and Payne to show Payne’s motive with
respect to the charged crimes, especially in light of the limiting
instruction given by the court. Because Payne has failed to carry his
burden to show obvious error in admitting this evidence, this
enumeration of error fails. See Herrera-Bustamante, 304 Ga. at 264
(2) (b) (“We need not analyze all of the elements of [the plain error]
test when, as in this case, the defendant has failed to establish one
of them.”). See also State v. Kelly, 290 Ga. 29, 32 n.2 (718 SE2d 232)
(2011) (“While we will review properly enumerated and argued
claims of jury instruction error regardless of whether the appealing
party specifically casts the alleged infirmity as ‘plain error,’ parties
should be advised that the hurdle to establishing plain error is high
. . . and therefore that the failure to specifically articulate how the
alleged error satisfies this high standard increases the likelihood
that their claims in this regard will be rejected.”).
2. Payne also contends that trial counsel rendered
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constitutionally ineffective assistance in several respects. In order
to prevail on a claim of ineffective assistance of counsel, Payne must
show “both that counsel’s performance was deficient, and that the
deficient performance was prejudicial to his defense.” Lockhart v.
State, 298 Ga. 384, 385 (2) (782 SE2d 245) (2016). See also
Strickland v. Washington, 466 U.S. 668, 687 (III) (104 SCt 2052, 80
LE2d 674) (1984). To establish deficient performance, Payne must
“overcome the strong presumption that counsel’s performance fell
within a wide range of reasonable professional conduct, and that
counsel’s decisions were made in the exercise of reasonable
professional judgment.” Lockhart, 298 Ga. at 385 (2) (citation and
punctuation omitted). To meet the prejudice prong, Payne must
establish “a reasonable probability that, absent any unprofessional
errors on counsel’s part, the result of his trial would have been
different.” Id. at 385 (2). And, “[i]f the defendant fails to satisfy
either the ‘deficient performance’ or the ‘prejudice’ prong of the
Strickland test, this Court is not required to examine the other.”
Redding v. State, 297 Ga. 845, 850-51 (5) (778 SE2d 774) (2015).
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(a) Payne first argues that trial counsel was ineffective because
he did not introduce into evidence the text message sent from
Finister to Payne that said Finister would “smoke” Payne. While the
message itself was not introduced into evidence, its existence and
content were not disputed and Payne and Peterson both testified to
it. What was disputed, though, was how Payne responded to the
text. During her testimony, Peterson was shown an exhibit
containing her own text message to an unnamed person that said
Payne had sent laughing emojis in response to the text message from
Finister, which suggested that Payne did not take Finister’s threat
seriously. On re-cross-examination, however, Peterson was
presented with another exhibit, which had been marked but not
admitted into evidence, that contained a screenshot of the text
message from Finister to Payne saying Finister would “smoke”
Payne, and she testified that there were no laughing emojis present
in the exhibit. 9 Payne also testified that he did not send laughing
9Although the screenshot of the text with the smoke emoji was marked
as an exhibit at trial, it was not admitted at trial or at the motion for new trial
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emojis to Finister in response to the text. Payne contends that his
trial counsel was ineffective in failing to move the screenshot of
Finister’s text message to Payne into evidence so the jury could see
that the screenshot did not include any response with laughing
emojis, and that Payne’s credibility would have been boosted by the
introduction of the screenshot.
At the hearing on Payne’s motion for new trial, trial counsel
testified that he did not move the text message into evidence because
“all that information was in the record and in before the jury” and
the prosecutor had previously indicated to him that she would object
to its admission and had provided some case law supporting the
objection, although counsel could not recall the grounds for the
objection. In light of the testimony presented, a reasonable attorney
could have made the strategic decision not to seek to admit the
hearing. However, on appeal, the State claims that it is likely that the same or
a similar document was admitted as Defense Exhibit 7 at the pretrial
immunity hearing. That document is a screenshot picture of Finister’s text to
Payne, and does not show any response to the smoke emoji text. Because the
State’s assertion is consistent with how the exhibit was described at trial and
Payne does not disagree, we are assuming for purposes of this analysis that
the exhibit marked at trial was the same as Defense Exhibit 7.
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screenshot because to the extent it indicated that there was no
response to the “smoke” text, it was cumulative of other testimony
given at trial. Moreover, because the screenshot was of the “smoke”
text only, its admission would not establish whether Payne sent
laughing emojis in response to Finister’s “smoke” text. “[A] tactical
decision will not form the basis for an ineffective assistance of
counsel claim unless it was so patently unreasonable that no
competent attorney would have chosen it.” Cochran v. State, 305 Ga.
827, 830 (2) (828 SE2d 338) (2019). See also Robinson v. State, 278
Ga. 31, 36 (2) (d) (597 SE3d 386) (2004) (“As a general rule, matters
of reasonable trial tactics and strategy, whether wise or unwise, do
not amount to ineffective assistance of counsel.” (citation and
punctuation omitted)). Because Payne has failed to establish that
trial counsel performed deficiently by failing to admit the text
message into evidence, his claim of ineffective assistance of counsel
on this ground fails.
(b) Payne next contends that counsel was ineffective for failing
to request that the trial court reopen the evidence to admit the
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screenshot of Finister’s text message at the request of the jury.
During jury deliberations, the court received a note from the jurors
requesting to see the exhibit shown to Peterson that contained
Finister’s text message to Payne. After consultation with the
parties, the court responded to the request by telling the jury that
the exhibit had not been admitted into evidence. Trial counsel did
not request that the trial court reopen evidence to admit this exhibit
into evidence so the jury could review it during deliberations.
Pretermitting whether trial counsel’s decision not to move to
reopen evidence was based on reasonable trial strategy, and that he
was therefore deficient, Payne must still show prejudice. The record
shows that both Payne and Peterson testified to the content of
Finister’s text message to Payne. Peterson also testified that this
exhibit contained no laughing emojis. Payne testified that he sent
no laughing emojis to Finister. Because the exhibit was apparently
a screenshot of the “smoke” text with no response, the admission of
the text message into evidence would have been cumulative of the
testimony about the “smoke” text and, as discussed above, would not
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have established whether Payne responded with laughing emojis.
Payne has therefore failed to show how the admission of this text
message into evidence would have altered the outcome of the trial.
See Timmreck v. State, 285 Ga. 39, 42 (3) (673 SE2d 198) (2009)
(concluding counsel was not ineffective for withdrawing request that
lab report be admitted into evidence where report would have been
cumulative of testimony at trial).
Moreover, “[i]t is well settled that the decision to reopen
evidence is a matter that rests within the sound discretion of the
trial court.” Walton v. State, 303 Ga. 11, 16 (4) (810 SE2d 134)
(2018). Payne has made no effort to show that the trial court would
have reopened the evidence to allow the admission of the text
message, even if his counsel had made the request, and the trial
court would have acted well within its discretion in denying any
such request. Therefore, we conclude that Payne has failed to show
prejudice under Strickland, and this claim of ineffective assistance
of counsel fails. See id. at 16 (no abuse of discretion to refuse to
reopen record to allow for additional testimony); Billings v. State,
17
293 Ga. 99, 107 (7) (745 SE2d 583) (2013). (“The failure of [the
defendant’s] trial counsel to make a motion that the court was
authorized to deny does not establish ineffective assistance by that
counsel.”).
Judgment affirmed. All the Justices concur.
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