300 Ga. 471 FINAL COPY
S16A1754. ENGLISH v. THE STATE.
MELTON, Presiding Justice.
Following a jury trial, James English appeals his convictions for the
malice murder of Ricky Payne and first degree arson.1 English contends that the
trial court committed plain error by not providing a jury charge regarding the
corroboration of confessions. For the reasons set forth below, we affirm.
1. Viewed in the light most favorable to the verdict, the evidence shows
that, on the night of April 25, 2009, emergency personnel discovered Payne’s
burned corpse on a couch in a home that had been set on fire, as well as blotches
of Payne’s blood throughout the house and on the front porch. The State Fire
1 In June 2009, English was indicted for the malice murder of Payne and first degree arson. Following a jury trial ending on June 17, 2010, English was found guilty of both counts. English was sentenced to life imprisonment for malice murder plus ten years to run concurrently for the first degree arson charge. On July 12, 2010, English filed a motion for a new trial, amended on July 6, 2015. The trial court conducted a hearing on the motion on September 3, 2015, and the trial court denied English’s motion for new trial on March 14, 2016. English filed a timely notice of appeal, and his case, submitted for decision on the briefs, was docketed to the September 2016 term of this Court. Marshal determined that the fire was not accidental, and a GBI medical
examiner concluded that Payne died as a result of blunt force trauma to the head
rather than smoke inhalation or burns. Clothing samples from Payne tested
positive for an ignitable fluid, and both a lighter and lighter fluid were recovered
from the house.
Billy Humphrey owned the house that burned, and, in the hours prior to
the fire, he drank with Payne and Lori Kirkpatrick before leaving to attend a
party at Thomas O’Neal’s house. Shortly after dark, Kirkpatrick also left
Humphrey’s home to attend the same party, and she encountered English in
Humphrey’s yard. Kirkpatrick left after telling English about O’Neal’s party,
and only English and Payne remained in Humphrey’s home.
At about 10:00 p.m., English arrived at O’Neal’s house with his brother,
Eric, and told O’Neal, James Howell, and Michael Carrigg, “I’m here if
anybody’s looking for me. Tell them I’ve been here all the time.” Howell
testified that English told him he had “just killed a man,” that the man had
argued and wrestled with him, and then he “had hit him up side the head with
a bat and laid him on the couch and set him on fire.” English subsequently told
Carrigg similar information, and English proved his claim by showing Howell
2 and Carrigg the crime scene, where the fire department was busy extinguishing
the fire.
On May 6, 2009, Howell and Carrigg called an investigative hotline and
informed the GBI about what English told them on the night of the fire. The pair
met with a GBI agent, relayed the information, and then agreed to wear audio
and video recording devices for investigative purposes. Howell and Carrigg then
met with English. On tape, English stated to Howell and Carrigg that
investigators had no DNA evidence and no eyewitnesses, that English had
withheld telling GBI officers in a prior interview that Howell and Carrigg were
at O’Neal’s house on the night of the fire and murder, that English wanted
O’Neal to tell police English had been at his house at a certain time, and that his
uncle offered to buy him a bus ticket to Minnesota. English also asked Howell
and Carrigg to create an alibi that they saw English at O’Neal’s house at the time
of the house fire. Additionally, at the conclusion of the video, Howell and
Carrigg confirmed to each other, after English had left, that English admitted to
the murder during the course of their meeting. Howell and Carrigg nonetheless
expressed concern about whether GBI investigators would be able to hear the
3 same because he “was kind of whispering when he said it.”2
GBI investigators reviewed the audio and visual recording and arrested
English for murder. English then gave a formal statement to the police. After
waiving his Miranda rights, English told police that he argued with Payne in
Humphrey’s home, that the argument turned violent, and that he struck Payne
in the head with an object multiple times. After Payne fell on the sofa, English
left the home, cleaned himself up, and returned to make sure Payne was okay,
and noted that Payne had been bleeding from his head. English claimed that he
then went to O’Neal’s house. English did not admit to law enforcement officials
that he killed Payne or started the fire. Later, on May 11, 2009, officers
interviewed English in the jailhouse and received essentially the same
information.
This evidence was sufficient to enable the jury to find English guilty of
the crimes for which he was convicted beyond a reasonable doubt. Jackson v.
Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
2 There are instances in which the recordings are obscured by background noise and the conversation is inaudible. There is no audible confession to the murder, itself, on the recording. 4 2. In his sole enumeration of error, English contends that the trial court
plainly erred by not instructing the jury regarding the necessity of corroborating
evidence for confessions under former OCGA § 24-3-53. This statute states:
All admissions shall be scanned with care, and confessions of guilt shall be received with great caution. A confession alone, uncorroborated by any other evidence, shall not justify a conviction.3
English’s trial counsel neither requested a charge based on this statute, nor
objected to the lack of that charge or any alternative charges. Nonetheless,
“under OCGA § 17-8-58 (b), appellate review for plain error is required
whenever an appealing party properly asserts an error in jury instructions,” as
English has done in this case. State v. Kelly, 290 Ga. 29, 32 (1) (718 SE2d 232)
(2011). There are four prongs in the test for plain error, each of which must be
satisfied:
First, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant's substantial rights, which in
3 This provision is now codified at OCGA § 24-8-823. English’s trial occurred in 2010, and therefore predated the new Evidence Code and OCGA § 24-8-823, which were made effective on January 1, 2013. 5 the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings.
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300 Ga. 471 FINAL COPY
S16A1754. ENGLISH v. THE STATE.
MELTON, Presiding Justice.
Following a jury trial, James English appeals his convictions for the
malice murder of Ricky Payne and first degree arson.1 English contends that the
trial court committed plain error by not providing a jury charge regarding the
corroboration of confessions. For the reasons set forth below, we affirm.
1. Viewed in the light most favorable to the verdict, the evidence shows
that, on the night of April 25, 2009, emergency personnel discovered Payne’s
burned corpse on a couch in a home that had been set on fire, as well as blotches
of Payne’s blood throughout the house and on the front porch. The State Fire
1 In June 2009, English was indicted for the malice murder of Payne and first degree arson. Following a jury trial ending on June 17, 2010, English was found guilty of both counts. English was sentenced to life imprisonment for malice murder plus ten years to run concurrently for the first degree arson charge. On July 12, 2010, English filed a motion for a new trial, amended on July 6, 2015. The trial court conducted a hearing on the motion on September 3, 2015, and the trial court denied English’s motion for new trial on March 14, 2016. English filed a timely notice of appeal, and his case, submitted for decision on the briefs, was docketed to the September 2016 term of this Court. Marshal determined that the fire was not accidental, and a GBI medical
examiner concluded that Payne died as a result of blunt force trauma to the head
rather than smoke inhalation or burns. Clothing samples from Payne tested
positive for an ignitable fluid, and both a lighter and lighter fluid were recovered
from the house.
Billy Humphrey owned the house that burned, and, in the hours prior to
the fire, he drank with Payne and Lori Kirkpatrick before leaving to attend a
party at Thomas O’Neal’s house. Shortly after dark, Kirkpatrick also left
Humphrey’s home to attend the same party, and she encountered English in
Humphrey’s yard. Kirkpatrick left after telling English about O’Neal’s party,
and only English and Payne remained in Humphrey’s home.
At about 10:00 p.m., English arrived at O’Neal’s house with his brother,
Eric, and told O’Neal, James Howell, and Michael Carrigg, “I’m here if
anybody’s looking for me. Tell them I’ve been here all the time.” Howell
testified that English told him he had “just killed a man,” that the man had
argued and wrestled with him, and then he “had hit him up side the head with
a bat and laid him on the couch and set him on fire.” English subsequently told
Carrigg similar information, and English proved his claim by showing Howell
2 and Carrigg the crime scene, where the fire department was busy extinguishing
the fire.
On May 6, 2009, Howell and Carrigg called an investigative hotline and
informed the GBI about what English told them on the night of the fire. The pair
met with a GBI agent, relayed the information, and then agreed to wear audio
and video recording devices for investigative purposes. Howell and Carrigg then
met with English. On tape, English stated to Howell and Carrigg that
investigators had no DNA evidence and no eyewitnesses, that English had
withheld telling GBI officers in a prior interview that Howell and Carrigg were
at O’Neal’s house on the night of the fire and murder, that English wanted
O’Neal to tell police English had been at his house at a certain time, and that his
uncle offered to buy him a bus ticket to Minnesota. English also asked Howell
and Carrigg to create an alibi that they saw English at O’Neal’s house at the time
of the house fire. Additionally, at the conclusion of the video, Howell and
Carrigg confirmed to each other, after English had left, that English admitted to
the murder during the course of their meeting. Howell and Carrigg nonetheless
expressed concern about whether GBI investigators would be able to hear the
3 same because he “was kind of whispering when he said it.”2
GBI investigators reviewed the audio and visual recording and arrested
English for murder. English then gave a formal statement to the police. After
waiving his Miranda rights, English told police that he argued with Payne in
Humphrey’s home, that the argument turned violent, and that he struck Payne
in the head with an object multiple times. After Payne fell on the sofa, English
left the home, cleaned himself up, and returned to make sure Payne was okay,
and noted that Payne had been bleeding from his head. English claimed that he
then went to O’Neal’s house. English did not admit to law enforcement officials
that he killed Payne or started the fire. Later, on May 11, 2009, officers
interviewed English in the jailhouse and received essentially the same
information.
This evidence was sufficient to enable the jury to find English guilty of
the crimes for which he was convicted beyond a reasonable doubt. Jackson v.
Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
2 There are instances in which the recordings are obscured by background noise and the conversation is inaudible. There is no audible confession to the murder, itself, on the recording. 4 2. In his sole enumeration of error, English contends that the trial court
plainly erred by not instructing the jury regarding the necessity of corroborating
evidence for confessions under former OCGA § 24-3-53. This statute states:
All admissions shall be scanned with care, and confessions of guilt shall be received with great caution. A confession alone, uncorroborated by any other evidence, shall not justify a conviction.3
English’s trial counsel neither requested a charge based on this statute, nor
objected to the lack of that charge or any alternative charges. Nonetheless,
“under OCGA § 17-8-58 (b), appellate review for plain error is required
whenever an appealing party properly asserts an error in jury instructions,” as
English has done in this case. State v. Kelly, 290 Ga. 29, 32 (1) (718 SE2d 232)
(2011). There are four prongs in the test for plain error, each of which must be
satisfied:
First, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant's substantial rights, which in
3 This provision is now codified at OCGA § 24-8-823. English’s trial occurred in 2010, and therefore predated the new Evidence Code and OCGA § 24-8-823, which were made effective on January 1, 2013. 5 the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.
(Punctuation omitted.) Stanbury v. State, 299 Ga. 125, 129 (2) (786 SE2d 672)
(2016) (citing Kelly, supra, 290 Ga. at 33 (2) (a)).
As an initial matter, it is clear that most of English’s statements are
admissions, not confessions. “[A] mere incriminating statement is made where
the accused, though admitting to damaging circumstances, nonetheless attempts
to deny responsibility for the crime charged by putting forward exculpatory or
legally justifying facts.” Robinson v. State, 232 Ga. 123, 126 (2) (205 SE2d
210) (1974). In other words, in an admission, “only one or more facts entering
into the criminal act are admitted,” while in a confession, “the entire criminal act
is confessed.” (Citation and punctuation omitted.) Lowe v. State, 267 Ga. 180,
181-182 (4) (476 SE2d 583) (1996). Here, English admitted to law enforcement
officials that he hit Payne over the head with an object multiple times, but he
never said he killed Payne or set the house on fire. English instead claimed that
he left the home to clean up after the fight and returned to check on Payne
6 before leaving for O’Neal’s house. Thus, English admitted “only some
subordinate fact . . . from which the jury may or may not [have inferred] guilt,”
and, therefore, English’s statements to law enforcement officers were not
confessions as to Payne’s murder and the arson. (Citation, punctuation and
emphasis omitted.) Robinson, supra, 232 Ga. at 126 (2); Lowe, supra, 267 Ga.
at 181-182 (4).
Even if we consider, without deciding, that other statements made by
English to witnesses such as Howell, Carrigg, and O’Neal were confessions,
English cannot satisfy the third prong of the plain error test by showing that the
error affected the outcome of the trial court proceedings. See Rashid v. State,
292 Ga. 414 (7) (737 SE2d 692) (2013).4 Here, there was more than ample
corroborating evidence at trial. In addition to English’s own incriminating
statements to police, Kirkpatrick confirmed that English was alone with Payne
shortly before the murder, a neighbor of Humphrey’s saw English flee through
her yard shortly before personnel arrived to combat the house fire, and English
4 Compare Hamm v. State, 294 Ga. 791 (756 SE2d 507) (2014), in which a request was made for a corroboration of confessions charge, and the request was declined by the trial court. 7 asked Howell and Carrigg on a recorded tape to fabricate an alibi defense for the
time of the crime. English also told Howell and Carrigg on tape that he hid
information about Howell and Carrigg from investigators during his custodial
interview, that investigators lacked eyewitnesses or DNA evidence, and that his
uncle said he could send English a bus ticket to Minnesota. Howell and Carrigg
testified that English told them that he had fought with Payne in the house,
which he also told investigators. English told both Howell and Carrigg and
investigators that he had hit Payne in the head with an object, and he also told
Howell and Carrigg that he set the couch in the home on fire. Howell and
Carrigg further testified that English directed them to the scene of the burned
house on the night of the murder and fire. Forensic evidence also corroborated
English’s statements as relayed by Howell and Carrigg, as Payne’s clothing
tested positive for accelerants, Payne’s death was ruled not accidental, and a
medical examiner testified that Payne died due to blunt force trauma to the head.
Therefore, corroboration was extensive, and the trial court proceedings were not
likely affected.
Judgment affirmed. All the Justices concur.
8 Decided January 23, 2017.
Murder. Dodge Superior Court. Before Judge Wall.
Tyler R. Conklin, for appellant.
Timothy G. Vaughn, District Attorney, Christopher C. Gordon, Assistant
District Attorney; Samuel S. Olens, Attorney General, Patricia B. Attaway
Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney
General, Michael A. Oldham, Assistant Attorney General, for appellee.