Marcus Payne was tried before a jury and found guilty of
malice murder, felony murder, criminal attempt to commit
murder, aggravated assault with a deadly weapon, aggravated
assault, aggravated battery, possession of a firearm during
the commission of a felony, and criminal trespass, in the
shooting of his estranged wife, Brandi Payne, and her
companion, Evan Campbell. He now appeals, asserting that the
trial court erred in refusing to give his requested jury
instructions. We discern no error and affirm.
Viewed in the light most favorable to the verdict, the
evidence showed that Payne and his wife Brandi were married
in 2003 while Payne was on leave from the Navy, and that they
later had two children. Payne and Brandi had a tumultuous
marriage that at times involved "infidelity on both
parts, " and had separated but were living in the same
home in separate bedrooms. Brandi testified that she and
Payne did not get divorced because "it was easier
financially for everybody." She was aware that Payne was
in a romantic relationship with another woman, who testified
at trial that Payne had told her that he and his wife were
separated, but living together for financial reasons.
April 16, 2014, Brandi told Payne that she was leaving the
house for the night, but would return the next morning.
Campbell picked Brandi up a block from the home because she
did not want to "introduce any type of situation that
could possibly be volatile at all with my children at
home." Brandi and Campbell drove to a convenience store
where she purchased some items, and as she exited the store,
Payne approached her with his gun drawn. He told Brandi,
"Oh, so this is what it is?, " to which Brandi
responded, "Marcus, what are you doing?" Payne
began firing his gun at Brandi and then at Campbell who was
sitting in the driver's seat of the car. When Brandi ran,
Payne chased her and continued to shoot at her. She was
struck by five bullets in the stomach and arm, and grazed by
a sixth bullet. Brandi was able to stop a motorist who drove
her to a fire station for first aid. Payne fired multiple
shots at Campbell as he attempted to get out of the car.
Bullets struck him in the torso, neck, arm and hands.
Campbell died from his wounds, but Brandi survived and
testified at trial.
the shooting, Payne threw the gun away, called Brandi's
mother to come and take care of the children, and told his
girlfriend that he "got into an altercation" with
"his wife and her boyfriend" and shot both of them.
He testified at trial that as Brandi walked out of the
convenience store, she said, "Oh, you going to shoot me?
You going to shoot me?" Payne explained: "Then, I
stopped and then I realized, okay. Well, yeah, I do have my
pistol in my hand because I hadn't put it in the holster
or whatever." He explained further that Brandi was
yelling at him and pushing him when he heard a gunshot, and
that he then just "started shooting. I leaned into the
car, I shot [Campbell]. I shot at him I know at least two or
three times. I heard him say something and he tried to get
out of the car. I mean, it was two on one. I was
afraid." Payne stated that he assumed that Brandi's
relationship with Campbell was a sexual one and that it
frustrated him and "pissed [him] off severely, "
and that when Brandi "got loud. She was like, oh, you
going to shoot me? . . . Yeah, that infuriated me. That
pissed me off." He explained that he "didn't
know why" he was shooting at Brandi and Campbell at the
time, but that he was "angry, scared, nervous."
Payne explained further that he and Brandi had had arguments
during which he accused her of having a romantic relationship
with Campbell, but that Brandi insisted that she and Campbell
were only friends.
does not challenge the sufficiency of the evidence.
Nevertheless, as is this Court's practice in murder
cases, we have reviewed the record and conclude that, when
viewed in the light most favorable to the verdicts, the
evidence presented at trial and summarized above was
sufficient to authorize a rational jury to find Payne guilty
beyond a reasonable doubt of the crimes for which he was
convicted. See Jackson v. Virginia, 443 U.S. 307,
319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979); see also Vega
v. State, 285 Ga. 32, 33 (1) (673 S.E.2d 223) (2009)
(jury determines credibility of witnesses and resolves any
conflicts or inconsistencies in evidence).
Payne contends that the trial court erred in refusing to give
his requested charges "which explained the relationship
between adultery and provocation as that term relates to
voluntary manslaughter as a lesser included offense to
murder." Specifically, he argues that the court's
failure to give his requested jury charges #6 through #9 was
"erroneous and harmful." The trial court declined to
give the requested instructions and instead gave the pattern
charges on adultery. "A requested charge must be legal,
apt and precisely adjusted to some principle involved in the
case and be authorized by the evidence." (Citations and
punctuation omitted.) Gardner v. State, 273 Ga. 809,
813 (6) (546 S.E.2d 490) (2001). Moreover, "[i]t is not
reversible error to fail to charge in the exact language
requested when the charge given adequately covers the correct
legal principles." (Citation and punctuation omitted.)
Johnson v. State, 276 Ga. 57, 60 (3) (573 S.E.2d
court instructed the jury as follows:
To kill either a spouse or the spouse's lover for past
acts of adultery or to prevent the apparent commission or the
completion of an act of adultery in progress between them is
not justified. You may consider whether adultery amounts to
provocation, which would mitigate the killing. If the
evidence shows that the defendant killed the alleged victim -
- killed the alleged victim without malice and not in a
spirit of revenge but under a violent, sudden impulse of
passion created in the defendant's mind by ongoing
adultery or the recent discovery of past adultery on the part
of the victim, you would be authorized to consider whether or
not the defendant is guilty of voluntary manslaughter as I
A person commits voluntary manslaughter when that person
causes the death of another human being under circumstances
that otherwise would be murder if that person acts solely as
the result of a sudden, violent, and irresistible passion
resulting from serious provocation sufficient to excite such
passion in a reasonable person. If there should have been an
interval between the provocation and the killing sufficient
for the voice of reason and humanity to be heard, which the
jury in all cases shall decide, the killing may be attributed
to revenge and be punished as murder.
In this connection, I charge you that the burden of proof is
upon the State to prove beyond a reasonable doubt that the
offense is not so mitigated.
What circumstances will present a situation so as to excite
such passion is a matter for you to decide. As always, the
State has the burden of proving guilt beyond a reasonable
doubt as between murder and voluntary manslaughter, the State
has that same burden of proving that the killing is not
mitigated to voluntary manslaughter.
Georgia Suggested Pattern Jury Instructions, Vol. II:
Criminal Cases, § 2.10.13 (Adultery).
argues that he was guilty of voluntary manslaughter based on
Brandi's words and his own observation of her adulterous
conduct, and that he is therefore entitled to a charge
explaining this theory. In reliance on a dissenting opinion
in Shields v. State, 285 Ga. 372, 377 (677 S.E.2d
100) (2009), he contends that the trial court's
instruction was incomplete because it did not make clear to
the jury that adulterous conduct may itself constitute
provocation to downgrade a killing to voluntary manslaughter.
But the charge given here is the same charge suggested by the
dissent in Shields, is a nearly verbatim recitation
of the pattern jury instruction, and, contrary to Payne's
argument here, informs the jury that ...