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.

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

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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

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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

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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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