Following a jury trial, James English appeals his convictions for the malice murder of Ricky Payne and first degree arson.
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 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 igni table 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 and Carrigg the crime scene, where the fire department was busy extinguishing the fire.
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,
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,
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 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.
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,
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,
Judgment affirmed.
Notes
In June 2009, English was indicted for the malice murder of Payne andfirst 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 ne w 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.
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.
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.
Compare Hamm v. State,