Payne v. State

313 Ga. 218

869 S.E.2d 395

PAYNE

v.The STATE.

S21A1096

Supreme Court of Georgia.

Decided: February 15, 2022

David Shepherd West, David West & Associates, 125 Church Street Suite 315, Marietta, Georgia 30060, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Ashleigh Dene Headrick, Assistant Attorney General, Department of Law, 40 Capitol Square SW, Atlanta, Georgia 30334, Anthony Brett Williams, Assistant District Attorney, Matthew Wayne Rollins, Acting District Attorney, Paulding County District Attorney's Office, 280 Constitution Boulevard Room 2072, Dallas, Georgia 30132, for Appellee.

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 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 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 "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 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 purchase the marijuana, Finister 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 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 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) (‘‘Rule 404 (b)’’).⁷ 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 S.E.2d 607 (2020) ("In order to preserve an objection for [ordinary] appellate review, the specific ground of the 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 S.E.2d 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 S.E.2d 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 that 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. 618, 621 (2), 837 S.E.2d 824 (2020). Here, we see no obvious error in the trial court's admission of Ballard's...