Payton v. State

Decision Date21 March 2019
Docket NumberNO. 2016-KA-00378-SCT,2016-KA-00378-SCT
Citation266 So.3d 630
Parties Howard PAYTON a/k/a Howard "Lil Dank" Payton v. STATE of Mississippi
CourtMississippi Supreme Court





¶1. During the early morning hours of September 19, 2010, N.B., a sophomore at the University of Southern Mississippi, was kidnapped and brutally raped by Howard Payton, a/k/a "Lil Dank," a/k/a "Supreme." N.B. testified that Payton ran up to her vehicle, put a box cutter or knife to her throat, and said, "where is the [expletive] money?" N.B. told Payton that she did not have any money. Payton told her, "quit [expletive] lying. Where is the money?" Payton grabbed N.B.'s neck, pushed her head down, and shoved her over to the passenger's seat. Payton sat in the driver's seat of N.B.'s vehicle and drove her to a remote location. Payton then forced N.B. to perform oral sex. N.B. began to cry and begged Payton to let her go, but he told her to stop complaining and to "just do it." Payton then pulled N.B. out of the car and forced her to perform oral sex until she vomited on him. Payton forced N.B. to lick her vomit off of him. Payton then put on a condom and raped N.B. vaginally. Payton attempted to rape N.B. anally, but again penetrated her vaginally. After that, Payton removed the condom and forced N.B. to perform oral sex again. Payton ejaculated in N.B.'s mouth and forced her to swallow his ejaculate, "because he didn't want any proof." He then forced her to remove her clothing and to lie on the ground. Payton told N.B. that if she told anyone about what he had just done, he would kill her. Payton then took N.B.'s tank top and her glasses, got back into N.B.'s car, and left. N.B. was left alone in the dark in an unfamiliar location. N.B. found a nearby road and walked to a stoplight. She was able to flag down two women who were driving by. The women drove N.B. to the hospital. On the way to the hospital, N.B. called 911 to report what had just occurred.

¶2. At the June 2014 term, a duly empaneled, sworn, and charged grand jury comprised of citizens of Lamar County returned an indictment1 charging Payton for the kidnapping and rape of N.B.2

¶3. At trial, inter alia , the State presented definitive scientific evidence of guilt. Payton's DNA matched the DNA sample obtained from N.B.'s rape kit so closely that the probability of finding someone other than Payton with the same DNA profile was less than one in 999 trillion.3 A petit jury comprised of twelve citizens of Lamar County found Payton guilty as charged. Upon his conviction, a duly elected circuit judge sentenced Payton as a habitual offender4 to a thirty-year term for kidnapping and three forty-year (less one day) terms for each rape count. The order of conviction, which was signed by the trial judge and filed on January 7, 2016, provided that the sentences were to be served consecutively. The same day, the trial judge signed an order transporting Payton to the custody of the Mississippi Department of Corrections in Rankin County immediately. According to Uniform Rule of Circuit and County Court Practice 10.05, which was in place at that time, any post-trial motion for a new trial was to be filed within ten days. URCCC 10.05.

¶4. It was not until January 25, 2016, that Payton filed a twelve-page pro se motion for a judgment notwithstanding the verdict (JNOV), or, in the alternative, a new trial. The State did not raise the untimeliness of the motion. In fact, the State did not respond to the motion. The trial judge considered the substantive issues raised in the motion and, finding no merit, denied Payton's requests for relief one week later on February 1, 2016. However, the order was not file stamped until February 4, 2016. Upon entry of that order, Payton's notice of appeal was to be filed within thirty days. Miss. R. App. P. 4(e). On the same day that the trial judge signed the order denying Payton's post-trialmotion, Payton signed a request for a copy of the trial court transcript. However, Payton's request was not file stamped until February 5, 2016. Payton's request for the trial transcript was granted by the trial court without contest by the State on February 12, 2016. It was not file stamped until February 17, 2016.

¶5. The record reflects five filings by Payton on Monday, February 29, 2016: (1) notice of appeal; (2) application to proceed in forma pauperis ; (3) designation of the record; (4) certificate of compliance; and (5) motion for appointment of counsel. Each of these filings included its own certificate of service to the circuit clerk of Lamar County, the Lamar County District Attorney's Office, and the Lamar County circuit judge certifying that they were mailed on February 29, 2016.5 Additionally, Payton's application for in forma pauperis status was sworn and subscribed before notary Jessica Pearl Sellers on February 29, 2016. Without explanation, these filings were not file stamped by the circuit clerk until Wednesday, March 9, 2016.

¶6. On March 9, 2016, the trial court granted Payton in forma pauperis status for this appeal. It was not file stamped until March 10, 2016. The trial judge also signed an order on March 9, 2016 appointing Payton counsel. That order was not file stamped until March 14, 2016. The State did not contest either filing. Under the trial court's order, the State provided Payton counsel via the Indigent Appeals Division of the Office of the State Public Defender. George T. Holmes entered an appearance on Payton's behalf. A few days before Payton's appeal brief was due, Payton died.

¶7. Holmes then filed a suggestion of death. Holmes subsequently pleaded that no substitution of parties had been requested and that Payton had no known personal representative.6 Holmes then moved for abatement ab initio . He asked that the Court allow a thirty-day period or other reasonable amount of time to allow any personal representative of Payton to come forward and to move for a substitution for the deceased appellant. Holmes requested, if no such motion was made, that the Court enter an order of abatement voiding the entire criminal proceeding against Payton from its inception, nullifying the petit jury's verdict and the circuit judge's judgment of conviction and remanding the case back to the same trial court with instructions to dismiss the grand jury's indictment, all without notice to the victim, N.B.

¶8. No response was filed either to the suggestion of death or to the motion for abatement ab initio . A single-justice order was entered staying briefing for a period of thirty days to allow any personal representative of Payton to move for substitution. No attempt to substitute was made.

¶9. The Court considered the motion for abatement ab initio en banc on February 8, 2018, and authorized the issuance of a single-justice order requiring supplemental briefing "[d]ue to the uniqueness of the petition, the seeking of extraordinary relief and the development of constitutional and statutory law since this Court's holding in Gollott v. State , 646 So.2d 1297, 1299 (Miss. 1994)...." Order, Payton v. State , No. 2016-KA-00378-SCT (Miss. Feb. 13, 2018). For those stated causes, counsel for Payton and the State were ordered to address the following:

1. What statutory or constitutional authority exists, if any, for this Court to nullify or negate (a) a facially valid indictment from a constitutionally [e]mpaneled Grand Jury, (b) a facially valid, guilty jury verdict(s), and (c) facially valid judgments and sentences of a circuit court absent a ruling of error?
2. Since 1994, when Gollott was published, Section 26A in Article 3 of the Mississippi Constitution was adopted. It reads:
(1) Victims of crime, as defined by law, shall have the right to be treated with fairness, dignity and respect throughout the criminal justice process; and to be informed, to be present and to be heard, when authorized by law, during public hearings.
(2) Nothing in this section shall provide grounds for the accused or convicted offender to obtain any form of relief nor shall this section impair the constitutional rights of the accused. Nothing in this section or any enabling statute shall be construed as creating a cause of action for damages against the state or any of its agencies, officials, employees or political subdivisions.
(3) The Legislature shall have the authority to enact substantive and procedural laws to define, implement, preserve and protect the rights guaranteed to victims by this section.
Miss. Const. Art. 3, § 26A. Address the ramifications, if any, of Section 26A on this proceeding.
3. Also in 1998, the Legislature adopted the Mississippi Crime Victims' Bill of Rights. See Miss. Code Ann. §§ 99-43-1, et seq. Address the ramifications, if any, of this Bill of Rights, including but not limited to Section 99-43-35, on this proceeding.
4. In 2009, the Legislature passed the Compensation to Victims of Wrongful Conviction and Imprisonment Statute, recognizing and providing compensation for wrongfully incarcerated persons. See Miss. Code Ann. §§ 11-44-1, et seq. Address the ramifications, if any, of this statute, including but not limited to sections 11-44-3(1)(b) and (1)(c), 11-44-7(1)(a)(ii)(1) and (4), and 11-44-13, on this proceeding.
5. Whether this Court should overrule Gollott v. State , 646 So.2d 1297, 1299 (Miss. 1994), and reinstate Haines v. State , 428 So.2d 590 (Miss. 1983), and Berryhill v. State , 492 So.2d 288 (Miss. 1986).

Id. The State and Holmes filed supplemental briefs addressing the above issues.7


¶10. In 1983, this Court was tasked with deciding a question of first impression in Mississippi: if a convicted defendant dies while his appeal is pending, what should occur with respect to his appeal and/or judgment of conviction? Haines v. State , 428 So.2d 590 (Miss. 1983), ...

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    • August 19, 2021
    ...(Miss. 1949). Hye v. State , 162 So. 3d 750, 755 (Miss. 2015). While "stare decisis is not an inexorable command[,]" Payton v. State , 266 So. 3d 630, 637-38 (Miss. 2019) (internal quotation marks omitted) (quoting Bester v. State , 188 So. 3d 526, 529 (Miss. 2016) ), this Court has held al......
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    ...of a properly instructed jury in criminal cases. We should never nullify a properly instructed jury's verdict. C.f. Payton v. State , 266 So. 3d 630, 636–37 (Miss. 2019). A court has no right to intervene and truncate a jury's deliberations by barring the jury from considering the law when ......
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    ...infrequently, the parameters and continuing viability of the doctrine are now hotly debated around the country. Compare Payton v. State, 266 So.3d 630, 640 (Miss. 2019) ("[D]eparture from the abatement ab initio doctrine is necessary to avoid the perpetuation of pernicious error."), with Un......
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