Payne v. State

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
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official text of the opinion.

In the Supreme Court of Georgia

Decided: August 26, 2025

S25A0883. PAYNE v. THE STATE.

PETERSON, Chief Justice.

Antonio Payne appeals his convictions for the murder of

Warren Sills and aggravated assault of Dondrey Moore. The

convictions stem from Payne shooting at the men in an apartment

complex parking lot. 1 Payne argues that (1) the trial court erred by

1 The crimes took place on April 6, 2019. On June 25, 2019, a DeKalb

County grand jury returned an indictment charging Payne with malice murder
(Count 1), felony murder predicated on both aggravated assault (Count 2) and
possession of a firearm by a convicted felon (Count 3), aggravated assault of
Sills (Count 4) and Moore (Count 7), possession of a firearm by a convicted
felon (Count 5), and two counts of the use of a firearm by a convicted felon
during the commission of a crime (Counts 6 and 8). The trial was bifurcated to
exclude the firearm counts and the felony murder count predicated on
possession of a firearm (Counts 3, 5, 6, and 8). At an October 2022 jury trial,
the jury returned guilty verdicts on all counts before it — malice murder
(Count 1), felony murder predicated on aggravated assault (Count 2), and
aggravated assault of Sills (Count 4) and Moore (Count 7). The bifurcated
counts were nolle prossed. On December 9, 2022, the trial court sentenced
Payne to life in prison without the possibility of parole for murder (Count 1),
plus 20 years concurrent in prison for the aggravated assault of Moore (Count
7). The other aggravated assault count (Count 4) merged, and the felony
admitting an out-of-court identification of him by a witness; and (2)

his trial counsel was ineffective for failing to object to the

prosecutor’s explanation of reasonable doubt in closing argument.

We conclude that (1) the trial court did not err in admitting the out-

of-court identification; and (2) Payne has not shown that counsel’s

deficient performance in failing to object to the State’s closing

argument prejudiced his case. We affirm.

The evidence at trial showed the following. 2 In April 2019,

Payne was living in a DeKalb County apartment with his brother,

Quentin Rozier. On the night of April 6, 2019, Sills and Moore

arrived at Payne and Rozier’s apartment complex in Sills’s Infiniti

murder count on which Payne was found guilty (Count 2) was vacated by
operation of law. Payne filed a timely motion for new trial, which was amended
in July 2024. Following a hearing, the trial court denied the motion in an order
entered on August 30, 2024. In that order, the trial court amended Payne’s
sentence to provide that Payne was sentenced as a recidivist pursuant to
OCGA § 17-10-7(b)(2), although it does not appear that an amended sentence
is contained in the record. Payne filed a timely notice of appeal, which he later
amended. The appeal was docketed to this Court’s April 2025 term of court and
submitted for consideration on the briefs.
2 Because Payne does not raise a claim that the evidence to support his

convictions was insufficient as a matter of constitutional due process, and
because one of the enumerations he does raise requires us to consider the
strength of the evidence, we lay out the evidence as a reasonable juror would
view it, rather than in the light most favorable to the verdicts.
2
convertible, with the top down. Shortly after Sills parked his car in

front of Rozier and Payne’s building, a man came down the stairs of

the building, approached the driver side of Sills’s car, and

complained about them playing music loudly. The three exchanged

words further, and then the man pulled a gun from his pocket and

started shooting. The shooter walked around the front of the car and

then fired more shots.

Realizing he had been shot, Moore got out of the car and

summoned help. Police responded around 10:00 p.m. and found Sills

dead in the driver’s seat of the convertible. Rozier, who had long

dreadlocks and matched a 911 caller’s description of someone the

caller said she believed was the shooter, spoke to police when they

arrived and was taken into custody. Rozier initially was charged

with felony murder in connection with the shootings, but the case

against him was not presented to the grand jury.

The medical examiner testified that Sills died of a gunshot

wound to the head. The medical examiner collected fragments of a

bullet from Sills’s head. A GBI firearms examiner determined the

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fragmented bullet retrieved from the autopsy was a “.38-class”

jacketed hollow-point bullet that could have been fired from a .38-

caliber special revolver, a .357-caliber revolver, or a 9 mm pistol —

although not as likely from a 9 mm pistol, and definitely not from a

.40-caliber weapon. No shell casings were recovered at the scene of

the shooting, which also suggested that a revolver, rather than a

semi-automatic pistol, was used to shoot Sills.

Payne was implicated as the shooter by three different

eyewitnesses: Rozier, Moore, and Kristie Barlow, Payne and Rozier’s

cousin. Rozier testified at trial that, on the night of the shooting, he

and Payne were using drugs and drinking alcohol in their

apartment. Rozier said that he also had been preparing for a night

out with his girlfriend, bathing his children and getting them ready

to go with his cousin. Rozier testified that he was in the bathroom

when he heard three or four gunshots. He said he then looked out of

his apartment and saw Moore jump over Sills’s car. Rozier said he

grabbed his .40-caliber gun, cocked it, and went outside; Rozier

referred to his gun as “an automatic.” Rozier said he encountered

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Payne fleeing the scene, before finding Sills dead in his car. Rozier

testified that he returned to his apartment and gathered up drug

contraband, disposing of it outside of the building, and put a gun in

his car. According to Rozier, Payne carried a black .38-caliber

revolver. In Rozier’s apartment, police found food on the stove, water

in the bathtub, and a single .40-caliber live round on the floor.

Interviewed by police at the hospital on the day after the

shooting, Moore was shown a photo lineup that included Rozier but

not Payne; Moore indicated that he did not recognize anyone in any

of the photos. Investigators interviewed Moore again two months

later in June 2019, presenting him with a second photo lineup;

Moore selected Payne’s photo as that of the shooter, writing that the

identification was “100% accurate” and confirming that he was “very

confident.” At trial, Moore identified Payne as the shooter in the

courtroom and testified that the identification was “a hundred

percent accurate.” Moore testified that Payne was wearing a hoodie

with the hood up but Moore could see that Payne had short hair.

Moore testified that he did not see anyone with Payne during the

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shooting and did not see anyone with dreadlocks that night.

Barlow testified that she witnessed the shooting when she

arrived to babysit Rozier’s children. Barlow testified that after she

arrived at the apartment complex, she saw Payne talking to Sills by

his car, heard Payne yelling to turn the radio down, and saw Payne

pull something out of his pocket and raise it; she then heard three

or four gunshots. The State played a recording of a prior statement

by Barlow to police, including the portion of the recording in which

Barlow said that she was “[a] hundred percent sure” that Payne was

the shooter and that Payne had been wearing Barlow’s hoodie.

1. Payne argues that the trial court should have excluded

evidence of Moore’s June 2019 out-of-court identification of him

because it was impermissibly suggestive and created a substantial

likelihood of misidentification in violation of his due process rights.

We disagree.

Payne filed a pretrial motion to suppress Moore’s out-of-court

identification of Payne as the shooter, on the ground that the June

2019 photo lineup shown to Moore was “suggestive.” At the hearing

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on the motion, the officer who administered the photo lineup

testified that he did not create the photo lineup, did not know who

the suspect was, gave the photos to Moore in an envelope with

instructions to remove them, and did not tell Moore that they had a

suspect in custody or that the shooter was in the lineup. An audio

recording of Moore’s out-of-court identification admitted at the

hearing is consistent with this. The trial court orally denied the

motion to suppress at the hearing, saying that the photos used in

the lineup “are pretty similar” and any issues with the identification

could be explored on cross-examination.

“A motion to suppress an out-of-court identification by a

witness as impermissibly suggestive in violation of due process ...

requires a showing that the identification was so impermissibly

suggestive that it could result in a substantial likelihood of

misidentification.” Howard v. State, 318 Ga. 681, 687 (2024)

(quotation marks omitted). We employ a two-step process to

determine whether identification evidence meets that test:

First, we decide whether the identification procedure

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used was impermissibly suggestive. Second, if a trial
court properly concludes that the State employed an
impermissibly suggestive pre-trial identification
procedure, the issue becomes whether, considering the
totality of the circumstances, there was a substantial
likelihood of irreparable misidentification.

Id. (cleaned up).

Here, Payne argues that the June 2019 lineup’s use of the same

“mugshot” photo of him that was used in a news article that

identified him as a suspect in the shooting “created a prejudicial pre-

lineup exposure that rendered the procedure inherently suggestive.”

At the hearing on his motion to suppress, Payne’s counsel referenced

an April 15, 2019, article. But Payne did not introduce any evidence

of the article at the hearing, and counsel acknowledged at the

hearing that he could not “verify that [Moore] did, in fact, see” the

article. Even putting aside Payne’s failure to seek admission of

evidence of the article’s existence or Moore’s exposure to it, 3 this

3 Payne does not cite to any such evidence in the record on appeal, and it

does not appear that any such evidence was admitted, either at the suppression
hearing, at trial, or at the hearing on the motion for new trial. Moore testified
at trial that he did not research potential suspects or search for information
about the shooting online and that he never saw any booking photos other than
in lineups.
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claim fails. We have said that “a challenge such as this goes to the

weight of the evidence, not the admissibility[,]” because it does not

amount to an argument “challenging the identification procedure

used by law enforcement, but, instead, is challenging the weight and

credibility of [the witness’s] identification.” Clay v. State, 309 Ga.

593, 598 (2020) (rejecting challenge to witness’s identification of

defendant from a photo lineup after seeing news reports of

defendant’s arrest).

Payne also argues that the identification of him by Moore was

“unreliable” because Moore did not testify specifically that he saw

Payne shoot a gun, noting that Moore testified that he ducked down

when he heard shots.4 To the extent that Payne intends this to serve

as a separate basis for concluding that evidence of Moore’s

identification should have been suppressed, arguments about

4 Although Moore testified that he ducked down when he heard the
gunshots, he also testified that he and Sills were parked directly underneath
a street light, enabling Moore to see the shooter’s face, and that the shooter
was so close to the car, which had its top down, that the shooter was “literally
on the door” when he started shooting. And although Moore testified that he
did not see Payne holding a gun initially, he testified that he did see the gun
when Payne came around the front of the car before continuing to shoot.
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whether a witness had sufficient opportunity to observe the suspect

go to whether there is a substantial likelihood of irreparable

misidentification, not whether the identification procedure was

impermissibly suggestive. See, e.g., Mitchell v. State, 320 Ga. 673,

682 (2025) (circumstances determining whether there was a

substantial likelihood of irreparable misidentification “include the

witness’s opportunity to view the perpetrator at the time of the

crime, his degree of attention, the accuracy of his prior description,

his level of certainty, and the length of time between the crime and

identification”). And where, as here, the defendant has not shown

that the identification procedure was impermissibly suggestive, we

do not consider whether there is a substantial likelihood of

misidentification. See Howard, 318 Ga. at 687.5

2. Payne’s only other argument is that trial counsel was

5 In his motion to suppress, Payne argued that the June 2019 photo
lineup shown to Moore was “suggestive” because the background of the photo
of Payne in the lineup was different from the background of the other photos
in the lineup. At the hearing on the motion, the State pointed out that two of
the photos in the lineup, that of Payne and another person, have a different
background from that of the others. At any rate, on appeal, Payne does not
point to differences in the backgrounds of the photos as a basis for reversal of
his convictions.
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constitutionally ineffective for failing to object to a

mischaracterization of the State’s burden of proof during the

prosecutor’s closing argument. We conclude that Payne has not

shown any prejudice from counsel’s deficient performance in this

regard.

During the State’s closing argument at trial, the prosecutor

argued the following regarding the State’s burden of proof:

[W]e have to prove this case beyond a reasonable doubt.
And that’s our burden. We accept it. We accept it happily.
But proving a case beyond a reasonable doubt is not
something that’s insurmountable. Judge Scott is going to
instruct you in a few moments that reasonable doubt is
the doubt of a fair-minded, impartial juror honestly
seeking the truth. He’s also going to explain to you that
reasonable doubt is based on common sense and reason.
And, as I told you at the beginning of this trial, the reason
each and every one of you is sitting on this jury is because
you impressed upon us when we spoke to you at the
beginning of the trial that you are the kind of people who
use common sense when making decisions, and that is
what I am asking you to do during the course of your
deliberations today. Now, reasonable doubt is not — and
Judge Scott’s going to read this to you as well. It’s not to
a mathematical certainty. We don’t have to prove a case
to 50 percent or 70 percent or 100 percent to you. And it’s
not beyond all doubt. The law anticipates that there’s
going to be doubt in a case.

Trial counsel did not object during this portion of the State’s
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argument. In its preliminary charge to the jury, the trial court

instructed the jury that what lawyers say in opening statements and

closing arguments is not evidence. In its final jury charge, the trial

court instructed the jury that the State was not required to prove

the accused’s guilt to a mathematical certainty. It also instructed

the jury on the burden of proof, presumption of innocence, and

reasonable doubt, and reiterated that closing arguments and

opening statements by the attorneys are not evidence.

To prove his claim of ineffective assistance of counsel, Payne

must show that counsel’s performance was deficient and that

counsel’s deficient performance prejudiced Payne’s defense. See

Strickland v. Washington, 466 US 668, 687 (1984). “If a defendant

fails to establish one of these two prongs, we need not examine the

other.” Troutman v. State, 320 Ga. 489, 494 (2024) (cleaned up). “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.” Id. (quotation marks omitted). “To

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establish prejudice, a defendant 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. (cleaned

up). “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.” Id.

(quotation marks omitted).

A prosecutor’s closing argument that mischaracterizes the

burden of proof by suggesting “that proof beyond a reasonable doubt

requires something less than proof that leaves a jury with 51 percent

certainty is obviously wrong.” Debelbot v. State, 308 Ga. 165, 167

(2020) (Debelbot II) (quotation marks omitted). The prosecutor’s

statement to the jury that under the reasonable doubt standard the

State did not “have to prove a case to 50 percent” — i.e., less than

the far lower standard of preponderance — thus was “plainly

improper.” Troutman, 320 Ga. at 499. And “[w]e cannot conceive of

any good reason that a competent criminal defense attorney could

have to fail to object to such an egregious misstatement of the law.”

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Debelbot v. State, 305 Ga. 534, 544 (2019) (Debelbot I).

But Payne has not shown prejudice from this deficient

performance. He argues that the prosecutor’s argument in this case

was harmful in the same way that it was harmful in Debelbot,

because in both cases two people had “equal opportunity” to commit

the crime. That is not a fair comparison. In Debelbot, the case

against the defendants — the infant victim’s parents — was

“entirely circumstantial,” in that it established that the victim’s

injuries were caused by blunt force trauma that must have occurred

over the course of 13 hours during which the baby was in the sole

care of the defendants. See Debelbot I, 305 Ga. at 535–36, 538. At

the same time, evidence that “would have permitted the jury to

specifically attribute the infliction of trauma upon [the baby] to

either or both of her parents ... was notably lacking.” Debelbot II, 308

Ga. at 168. Debelbot thus presented a situation in which the State’s

mischaracterization of its burden was “uniquely harmful” in that

“accepting the compelling evidence that [the parents] had

essentially equal opportunities — and no one else had any

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opportunity at all — to inflict that trauma, in the absence of

evidence suggesting that the trauma was inflicted specifically by one

or the other, and irrespective of whether [the parents] colluded, the

logical probability that either of them inflicted the fatal trauma

would be 50 percent.” Id. at 168–69. This case is nothing like that;

the crime here was a murder in a parking lot in the view of multiple

witnesses. Two such witnesses, Moore and Barlow, offered direct

evidence of the sole defendant’s guilt in the form of testimony that

the defendant shot the murder victim. Although there was some

evidence implicating a third witness, Rozier, in the shooting, this is

a far cry from saying that Payne and Rozier had “essentially equal

opportunities — and no one else had any opportunity at all” to shoot

Sills. Debelbot II, 308 Ga. at 169. 6

6 Moreover, Rozier’s version of events implicating Payne was
corroborated by some of the physical evidence: evidence of a full bathtub in
Rozier’s apartment corroborated his testimony that he was bathing his
children around the time shots were fired; the single .40-caliber live round
located on Rozier’s living room floor corroborated his testimony that he grabbed
his gun and “cocked” it before he went outside to see what was going on; and
the lack of shell casings at the scene of the shooting corroborated Rozier’s
testimony that Payne, the shooter, carried a revolver. In addition, although a
911 caller’s description implicated Rozier, who had dreadlocks, Moore testified

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Here, the trial court did instruct the jury that the State was

“not required to prove the guilt of the accused ... to a mathematical

certainty,” which, as in Debelbot, may have reinforced the

prosecutor’s incorrect argument. See Debelbot I, 305 Ga. at 543–44.

But, given the very different scenarios presented by the evidence in

each case, the prosecutor’s misstatement in this case was not

harmful in the same way that it was in Debelbot. See, e.g., Draughn

v. State, 311 Ga. 378, 383–84 (2021) (no prejudice from counsel’s

failure to object to State’s characterization of reasonable doubt,

based in part on the fact that, “unlike in Debelbot, the case against

[the defendant] was plainly sufficient given that an eyewitness

identified [him] as one of the assailants”). Payne has failed to show

a reasonable probability that trial counsel’s failure to object to the

prosecutor’s improper argument changed the outcome of the trial. 7

that the shooter had short hair and that he did not see anyone with dreadlocks.
Also, as noted above, Moore did not pick Rozier out of a lineup soon after the
shooting.
7 Payne’s primary appellate brief contains a single sentence arguing that

the errors he alleges “combined to deprive [him] of a fair trial under the
Georgia Constitution and the United States Constitution.” To the extent that

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Judgment affirmed. All the Justices concur.

Payne argues cumulative prejudice, we have identified only one instance of
ineffective assistance of counsel, and no instance of trial court error, so there
are not multiple errors to aggregate, and any claim of cumulative prejudice
fails. See Jackson v. State, 317 Ga. 139, 146 (2023).
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