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Final Copy 289 Ga. 691

S11A0818. PAYNE v. THE STATE.

NAHMIAS, Justice. In 1995, appellant Ross Vashon Payne was convicted of murdering Allen Ricks. He shot Ricks after being hit in the face, but the jury rejected his justification defense. The defendant now appeals, arguing that the evidence against him was insufficient, that the long delay in his appeal violated his due process rights, and that his trial counsel's performance and the trial court's selfdefense jury instruction were inadequate. We reject these contentions and affirm. 1. (a) The evidence presented at trial, viewed in the light most favorable to the verdict, showed the following. When Allen Ricks arrived at Classie McGuire's home on the night of November 7, 1993, Payne was there with a number of other people. Ricks accidentally stepped on Payne's shoes, and although Ricks apologized, it sparked an argument. A bystander told Ricks not to "be messing" with Payne, and after Ricks told Payne he did not like "Soperton boys," Payne asked a friend to retrieve his gun from his car. But

Ricks was persuaded to leave, and he and his brother went to their grandmother's house nearby. Payne stayed at McGuire's house, and one of the people there told him it "might be dangerous" to go outside. When he arrived at his grandmother's house, Ricks initially sought a knife, but his father and grandmother calmed him down. A few minutes later, Ricks returned to McGuire's house because he had left his watch there. He entered, retrieved his watch from the dining room table, and walked into the kitchen to talk to a friend. Ricks then started to leave the house and walked past Payne, who was sitting on a sofa in the living room. Ricks said something to Payne, pushed him, and hit him in the face, although not hard enough to cause any marks or swelling. Payne then pulled out his gun and shot at Ricks two or three times. One witness saw Ricks running away from Payne toward the kitchen immediately after the last shot. Ricks was hit twice from at least 18 to 24 inches away and later died from his wounds. After initially fleeing the scene, Payne turned himself in to the police. In a statement, he admitted to a GBI agent that he shot Ricks. (b) Payne contends that the State failed to disprove his justification defense because none of the State's witnesses actually saw the shooting, there

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was testimony that Ricks hit Payne in the face before the shooting, and the State failed to prove that Ricks was unarmed. However, the testimony that Ricks was shot from at least 18 to 24 inches away and seen running away from Payne right after the last shot indicates that Ricks was fleeing when he was shot, not locked in combat with Payne or even menacing him. See, e.g., Wooten v. State, 270 Ga. 425, 426 (510 SE2d 813) (1999). Moreover, there is no evidence that Ricks had a knife, much less that he confronted Payne with one. Instead, Ricks's father testified that Ricks did not want a knife by the time he left his grandmother's house, and the eyewitness Payne called at trial never testified that she saw Ricks with a weapon. Rather, she testified only that Ricks pushed Payne and then hit him in the face

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Georgia Law