Payton v. State

785 So. 2d 267, 1999 WL 649652
CourtMississippi Supreme Court
DecidedAugust 26, 1999
Docket96-CT-00949-SCT
StatusPublished
Cited by56 cases

This text of 785 So. 2d 267 (Payton v. State) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Payton v. State, 785 So. 2d 267, 1999 WL 649652 (Mich. 1999).

Opinion

785 So.2d 267 (1999)

Henry PAYTON a/k/a Henry C. Payton
v.
STATE of Mississippi.

No. 96-CT-00949-SCT.

Supreme Court of Mississippi.

August 26, 1999.
Rehearing Denied February 1, 2001.

*268 Edmund J. Phillips, Jr., Attorney for Appellant.

Office of The Attorney General By Dewitt T. Allred, III, Attorney for Appellee.

EN BANC.

ON WRIT OF CERTIORARI

SULLIVAN, Presiding Justice, for the Court:

¶ 1. Henry Payton stands convicted of armed robbery, kidnapping, and arson in connection with a bank robbery in Walnut Grove, Leake County, Mississippi. He appealed raising seven issues, all found to be without merit by the Court of Appeals in a 5-4 decision. In his Petition for Writ of Certiorari, Payton asserts that the Court of Appeals erred on four of those issues in affirming the conviction. We find that the failure to sever the trials in this case constitutes reversible error. The prosecutor's use of the improper "send a message" argument during closing arguments was also error in this case, requiring reversal and remand for a new trial, both on its own and compounded with the lack of severance. On remand, we also caution the trial court that it erred in sustaining the State's objection to Payton's testimony on the ground that it was self-serving.

STATEMENT OF THE FACTS

¶ 2. On September 29, 1995, in Leake County, a commercial building was completely burned, the Bank of Walnut Grove was robbed, and the bank president, Ray Britt, was taken hostage. Investigation and testimony at trial revealed that four men were involved in this series of events—Cleon Graves, Cornelius Belmer, Dedrick Marshall, and the appellant, Henry Payton. According to his accomplices, Payton was the mastermind behind the crimes. They each testified that it was Payton's idea to burn the building in order to divert attention from the bank and then to have them rob the bank at gunpoint while Payton waited outside in the getaway car. Payton also allegedly suggested that, if something should go wrong in the bank, the men should take a hostage.

¶ 3. Graves, Belmer, and Marshall then proceeded to rob the bank. When they got the money and were ready to leave, they looked outside for Payton. They realized that Payton had abandoned them and remembered Payton's advice to take a hostage. They decided on Ray Britt, the bank president, so they took Britt and his car and fled the bank, with Britt driving at gunpoint. Heavily pursued by law enforcement officials, the men forced Britt to drive south to Interstate 20 and then west toward Jackson. According to Britt, the three men continually cursed Henry Payton during the high speed chase for leaving *269 them at the bank. The vehicle went through a roadblock in Forest, and according to Officer Joe Nelson, there was a shot fired from the window of the car at Nelson's patrol vehicle. Unable to stop the men, Nelson radioed two semi-trucks on the interstate via C.B. and asked them for help in apprehending the men. The trucks slowed down and rode side-by-side to prevent the men from passing. When the men were unable to pass the trucks, they ordered Britt to exit the interstate at Morton. Britt then grabbed the gun that had been pointed at him throughout the chase and ran the car into a concrete traffic island. Finally, the car came to a stop, the police closed in, the three men were arrested, and Britt was freed. After learning of Payton's involvement in the crimes, law enforcement officials located and arrested him and charged him with armed robbery, kidnapping, and arson in the second degree. Payton was tried and found guilty as charged. The jury recommended a life sentence for both the armed robbery and kidnapping. Payton was so sentenced, and said life sentences were imposed consecutively in addition to five years for the arson charge. Aggrieved by his conviction and sentence, Payton appealed. The Court of Appeals affirmed the conviction, and we granted certiorari to review the Court of Appeals's judgment.

STATEMENT OF THE LAW

I.

FAILURE TO SEVER TRIALS

¶ 4. In addressing the trial court's failure to grant Payton's motion to sever his trial from that of his co-defendant, Marshall, the Court of Appeals ruled that the lower court did not abuse its discretion, because the evidence at trial went to the guilt of both defendants equally, and Marshall's testimony did not appear to exculpate him at the expense of Payton. Johnson v. State, 512 So.2d 1246, 1254 (Miss.1987); Hicks v. State, 419 So.2d 215, 216 (Miss.1982).

¶ 5. In his dissent, Judge Southwick acknowledged that this is the proper standard, but asserted its improper application in this case by pointing out that Marshall's testimony implicated Payton as the mastermind of the crime, shifting most of the blame onto Payton, particularly for the church arson. Marshall also attempted to assert a defense of duress by Payton. As Judge Southwick pointed out in his dissent, although Marshall's testimony did not exonerate him, it was an attempt at mercy and considerably strengthened the State's case against Payton. This is by far a more accurate description of what transpired at trial than the summary in the Court of Appeals majority opinion.

¶ 6. The Court of Appeals dissenters also properly pointed out that the majority opinion conflicts with Hawkins v. State, 538 So.2d 1204, 1207 (Miss.1989), in which this Court stated:

In Duckworth v. State, 477 So.2d 935, 937 (Miss.1985), this Court stated that there are a number of criteria to be used to determine if the denial of a motion for severance is proper. These criteria are whether or not the testimony of one co-defendant tends to exculpate that defendant at the expense of the other defendant and whether the balance of the evidence introduced at trial tends to go more to the guilt of one defendant rather than the other. Absent a showing of prejudice, there are no grounds to hold that the trial court abused its discretion. Id. at 937.

Id.

¶ 7. Payton was prejudiced by Marshall's testimony and defense strategy in general. This strategy was an attempt by co-defendant Marshall through his testimony and *270 that of his witness to mitigate his potential dual life sentences by shifting as much blame as possible to Payton, whose defense was a general denial of the allegations. While it is true that Marshall did not attempt to fully exculpate himself, the blame-shifting is apparent. As the Court of Appeals dissent pointed out, Marshall's defense was successful to Payton's detriment as evidenced by the disparity in sentencing verdicts.

¶ 8. It appears that the prosecution, by vehemently opposing the severance, was attempting to ensure Payton got a life sentence as he suggested on direct appeal. This theory is supported by the closing argument of the prosecutor who asked the jury for leniency as to Marshall and to "send a message" to Payton and those like him. Denial of Payton's motion for severance in this case severely prejudiced his defense, requiring reversal and remand to the circuit court for a new trial.

II.

PROSECUTOR MISCONDUCT— "SEND A MESSAGE" ARGUMENT

¶ 9. During closing argument, District Attorney Ken Turner made the following statement:

Send a message to these older, more mature, criminals, "We are not going to let you ruin young people's lives like you have ruined these three people's lives, and all these lives you endangered in the process."

¶ 10.

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Cite This Page — Counsel Stack

Bluebook (online)
785 So. 2d 267, 1999 WL 649652, Counsel Stack Legal Research, https://law.counselstack.com/opinion/payton-v-state-miss-1999.