IN THE SUPREME COURT OF GEORGIA STATE OF GEORGIA STATE OF GEORGIA, v. ROSS VASHON PAYNE Appellant. Georgia Supreme Court Case No. S11A0818 Superior Court of Johnson County Case No. 94-CR-0047-F SUPPLEMENTAL BRIEF OF DEFENDANT/APPELLANT ROSS VASHON PAYNE Bryan P. Tyson Georgia Bar No. 515411 STRICKLAND BROCKINGTON LEWIS LLP Midtown Proscenium Suite 2200 1170 Peachtree Street NE Atlanta, Georgia 30309 678-347-2200 (Telephone) 678-347-2210 (Facsimile) Counsel for Defendant/Appellant
I. INTRODUCTION Appellant Ross V. Payne ( Appellant or Mr. Payne ) files this supplemental brief pursuant to Supreme Court Rule 24, to address two factual issues raised by the Attorney General in his brief. II. ARGUMENT AND CITATION OF AUTHORITY A. Trial Testimony Was Inconsistent on the Number of Shots Fired. The Attorney General makes much of the testimony by the victim s father and brother that three shots were fired, the last as Allen Ricks ( Ricks ) was rounding the corner into the kitchen, attempting to escape from Mr. Payne. The Attorney General relied on this third shot in responding to Mr. Payne s selfdefense claim. Attorney General s Brief at 16-17. However, other witnesses contradicted testimony about the number of shots. The father and brother of the victim were the only witnesses who testified that three shots were fired. (T. 104, 128-129, 135). 1 All other witnesses who discussed the number of shots testified that two shots were fired: The investigating GBI Agent was shown only two shell casings when he arrived at the scene. (T. 76). Agent Wilkins also testified that witnesses and Mr. Payne all told him that Allen Ricks was shot twice (T. 78, 86). Classie McGuire, the owner of the home at which 1 For ease of reference, Mr. Payne continues the format for record citations found in his principal brief, using T. to refer to the trial transcript in Case No. S99A1246. 1
the shooting took place, said After the gun was fired twice,... (T. 165). The prosecuting attorney apparently thought the issue was insignificant enough that he did not cross-examine Ms. McGuire on the number of shots fired. (T. 166-168). Further, while this Court does not reweigh the evidence presented at trial, the victim s brother also testified that Ms. McGuire never asked Ricks to leave the house (T. 110). Ms. McGuire and other witnesses contradicted this testimony and testified that Ms. McGuire did in fact ask Ricks to leave (T. 92, 163-164, 173). The victim s brother also testified that Daisy Ricks was not in the house on the night of the shooting (T. 108), when Ms. Ricks testified at trial and said she was present (T. 171). The Attorney General s argument that the jury accepted the testimony of three shots being fired as true based on its verdict is unconvincing. The jury asked about the difference in murder and manslaughter while it deliberated (T. 259). Instead of supporting the jury s finding of malice murder as claimed by the Attorney General, the question asked by the jury and the conflicting evidence on the number of shots show the jury apparently did not consider the testimony regarding three shots to be reliable because it considered convicting Mr. Payne of manslaughter. 2
B. The Jury Charge on Justification Was Not the Charge Requested by Trial Counsel. The Attorney General argues that Mr. Payne should be unable to rely on the jury charge issue raised in his brief because his trial counsel requested the particular charge be given. Attorney General s Brief at 18. But Mr. Payne s trial counsel did not waive this Court s review of the jury charge. Mr. Payne was convicted prior to the effective date of O.C.G.A. 17-8-58. 2007 Ga. Laws Act 327, 5. Therefore, the reservation of objections by Mr. Payne s trial counsel preserved claims about the charge for appeal. (T. 257, 264); Gaither v. State, 234 Ga. 465, 466(2), 216 S.E.2d 324 (1975). Further, while Mr. Payne s trial counsel requested that a charge on justification be given, the trial court did not use the language requested by his counsel. (T. 220-222). The trial court specifically stated it would not use the language of the charge on justification requested by the defense. Id. Instead, the Court said it would give the charge from the charge book, which was more balanced and complete. Id. 2 2 The court stated at the charge conference: I will give the applicable provisions out of the charge book on justification or self defense, whichever you prefer to call it, and those will cover the vast majority of the requests for charge that have been submitted by the Defense and by the State. I'm not trying to preclude you from continuing with your requests for charge or your assertions as far as the requests are concerned. I tell 3
The cases cited by the Attorney General do not prevent this Court from reviewing the charge. See Attorney General s Brief, at 18 (citing Harris v. State, 272 Ga. 455, 456 (2000) (defendant withdrew request to charge on voluntary manslaughter and did not object to failure to charge on voluntary manslaughter, preventing him from seeking reversal on that basis); Barnes v. State, 269 Ga. 345, 356 (1998) (defendant requested the specific charge in writing and cannot invite error in it as grounds for reversal); Patterson v. State, 233 Ga. 724, 731 (1975) (Court held charge was erroneous, but language was requested by defense counsel, waiving claim of error)). The Attorney General has not cited any case where the defense counsel requested a charge, the Court gave a similar charge using different words, and a defendant was unable to have an appellate court review the charge at issue. you that simply so that you'll understand that the substance of your requests for charge both by the State and by the Defense will be given, however you will not hear the exact terminology as used by either the State or the Defense on the requests for charge with the exception of one, which I will tell you in just a moment, and the reason for that is that the requests as given were, while accurate in and of themselves, did not provide balanced and complete statement of the law in regard to the issues that were addressed in the requests for charge. Accordingly, I have elected to use the more balanced and complete definitions and charges on these issues as provided in the charge book. (T. 220-221) (emphasis added). 4
Therefore, this Court should review the jury charge on justification and Mr. Payne is not prevented from that review because his counsel did not request the specific language of the charge. III. CONCLUSION For all the foregoing reasons and the reasons stated in his principal brief, Mr. Payne did not receive a trial that met the minimum constitutional standards required for a fair trial and did not receive appeals that meet the minimum constitutional standard for a timely appeal. Accordingly, this Court should reverse Mr. Payne s conviction and sentence. Respectfully submitted this 28th day of April, 2011. STRICKLAND BROCKINGTON LEWIS LLP s:\bryan P. Tyson Bryan P. Tyson Georgia Bar No. 515411 Midtown Proscenium Suite 2200 1170 Peachtree Street NE Atlanta, Georgia 30309 678-347-2200 (Telephone) 678-347-2210 (Facsimile) bpt@sbllaw.net 5
CERTIFICATE OF SERVICE This is to certify that I have this day served a copy of the SUPPLEMENTAL BRIEF OF APPELLANT ROSS VASHON PAYNE by first class U.S. mail to: R. Brandon Faircloth, Esq. Laurens County District Attorney s Office Laurens County Courthouse, Third Floor Dublin, GA 31021 David A. Zisook, Esq. Assistant Attorney General Georgia Department of Law 40 Capitol Square SW Atlanta, GA 30334 This 28th day of April, 2011. s:\bryan P. Tyson Bryan P. Tyson Georgia Bar No. 515411 Midtown Proscenium Suite 2200 1170 Peachtree Street NE Atlanta, Georgia 30309 678-347-2200 (Telephone) 678-347-2210 (Facsimile) bpt@sbllaw.net 6