IN THE SUPREME COURT OF MISSISSIPPI
NO. 2016-KA-00378-SCT
HOWARD PAYTON a/k/a HOWARD “LIL DANK”
PAYTON
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 01/07/2016
TRIAL JUDGE: HON. ANTHONY ALAN MOZINGO
COURT FROM WHICH APPEALED: LAMAR COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF THE STATE PUBLIC
DEFENDER
BY: GEORGE T. HOLMES
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: KATY T. GERBER
DISTRICT ATTORNEY: HALDON J. KITTRELL
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: APPEAL DISMISSED - 03/21/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
RANDOLPH, CHIEF JUSTICE, FOR THE 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
1
See Miss. Const. art. 3, §§ 26, 27.
2
See Miss. Code Ann. §§ 13-5-1 to -97 (Rev. 2012).
2
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
3
The estimated global population in 2010 was 6.9 billion. Population Reference
Bureau, 2010 World Population Data Sheet (July 23, 2010),
https://www.prb.org/2010wpds/. Payton’s DNA was also confirmed as the semen
contributor in two other rape cases.
4
Harris’s habitual-offender sentence was based on the following convictions: (1) sale
of a controlled substance in Forrest County on August 20, 2001; (2) possession of a
controlled substance in Lamar County on February 12, 2004; and (3) possession of a
controlled substance in Forrest County on July 13, 2010. Harris’s criminal history reveals
eighteen other criminal charges in Forrest County between June 2008 and January 2016.
3
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-trial motion, 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
5
The certificate of compliance was also mailed to the clerk of the Mississippi
Supreme Court.
4
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.
6
Mississippi Rule of Appellate Procedure 43(a) provides, in relevant part,
If a party dies after a notice of appeal is filed or while a proceeding is
otherwise pending, the personal representative of the deceased party may be
substituted as a party on motion filed by the representative or by any party
with the clerk of the Supreme Court . . . . If the deceased party has no
representative, any party may suggest the death on the record and proceedings
shall then be had as the appropriate appellate court may direct.
Miss. R. App. P. 43(a).
5
¶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,
6
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
DISCUSSION
¶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), overruled by Gollott v. State, 646 So. 2d 1297 (Miss. 1994). In Haines, the
defendant was convicted of murder and sentenced to life imprisonment. He later died while
7
The State alternatively asked whether, were the Court not to overrule Gollott, the
Court should allow Payton’s conviction to stand because his notice of appeal was not timely
filed. The untimeliness of Payton’s notice of appeal was not advanced by the State until this
Court ordered supplemental briefing. See supra, ¶¶ 4-6. Thus, we deem any claim of
untimeliness to have been waived.
7
his appeal was pending. Id. The State of Mississippi filed a suggestion of Haines’s death
and requested that the appeal be dismissed as moot. Id. Haines’s attorneys countered with
a motion to dismiss the appeal, to vacate the judgment of the lower court, and to remand the
cause to the lower court with instructions to dismiss the indictment—i.e., abatement ab initio.
¶11. The Haines Court noted that although a majority of jurisdictions, including federal
courts, followed the abatement ab initio doctrine, other jurisdictions did not. Id. at 591.
Those jurisdictions chose to dismiss the deceased appellant’s appeal as moot, preserving the
conviction. Id. at 591-92. The Haines Court examined both approaches, turning first to
Mississippi precedent concerning the validity of judgments. Id. at 591. It found the Court
had previously held that “a judgment of conviction in a lower court removes the presumption
of innocence and the judgment is considered to be valid.” Id. The Court reasoned,
[U]nless and until the judgment of the trial court is reversed, the defendant
stands convicted, is no longer presumed to be innocent of the crime for which
he is convicted, and may be impeached by that conviction. When a jury in
circuit court returns a verdict of guilty, it is a conviction of the crime charged,
and unless and until it is reversed by this Court, the conviction stands . . . .
Id. (quoting Nicholson v. State, 254 So. 2d 881, 884 (Miss. 1971) (citing Bucklew v. State,
192 So. 2d 275 (Miss. 1966))). The Court then discussed an Indiana Supreme Court decision
that rejected abatement ab initio in favor of dismissing a deceased appellant’s appeal as
moot.
We do not see that the dismissal of the appeal, without more, denies any rights
granted or protected by the statutes or the constitutional provisions. Such
rights were personal to and exclusively those of the defendant. Although a
criminal conviction carries a definite “fall-out” that extends beyond the person
of the defendant, we are aware of no right to be free of such, even if such
conviction be erroneous.
8
Id. at 591 (emphasis added) (quoting Whitehouse v. State, 364 N.E.2d 1015, 1016 (Ind.
1977)). The Haines Court then quoted the Indiana Supreme Court’s discussion regarding
the validity of a judgment of conviction, holding that absent a successful appeal, the
defendant stands convicted:
The presumption of innocence falls with a guilty verdict. At that point in time,
although preserving all of the rights of the defendant to an appellate review,
for good and sufficient reasons we presume the judgment to be valid, until the
contrary is shown. To wipe out such a judgment, for any reason other than a
showing of error, would benefit neither party to the litigation and appears to
us likely to produce undesirable results . . . . It, therefore, is our opinion that
it would be unwise for us to reach out and adopt a policy favoring survivor
interests of questionable validity.
Id. at 591-92 (quoting Whitehouse, 364 N.E.2d at 1016).
¶12. The Haines Court also considered the countervailing policy of abatement ab initio,
citing United States v. Pauline, 625 F.2d 684, 685 (5th Cir. 1980):
Abatement of the entire course of the proceedings has several significant
effects: if the sentence included a fine, abatement ab initio prevents recovery
against the estate, and, ultimately, the heirs; the abated conviction cannot be
used in any related civil litigations against the estate; and arguably the family
is comforted by restoration of the decedent’s “good name.”8
Id. at 591 (quoting Pauline, 625 F.2d at 685). After considering the competing rationales,
the Haines Court definitively rejected abatement ab initio. Id. at 592. Recognizing that “a
judgment of conviction in a lower court removes the presumption of innocence and the
judgment is considered to be valid[,]” this Court clearly favored the minority rule. Id. at 591.
8
In this case, any speculation regarding the restoration of Payton’s “good name”
lacks credulity, considering the jury’s finding of guilt for the despicable acts inflicted upon
his victim, not to mention his criminal history. See supra, ¶¶ 1-3.
9
The Haines court dismissed the appeal as moot, leaving history unrevised and the deceased
appellant’s conviction intact. Id. at 591-92.
¶13. Three years later, this issue was raised again. Berryhill v. State, 492 So. 2d 288, 289
(Miss. 1986), overruled by Gollott v. State, 646 So. 2d 1297 (Miss. 1994). Following the
precedent of Haines, the Berryhill Court unequivocally held “that the minority rule is sound
when considering our decisions on the validity of judgments. Therefore, the motion to abate
and vacate the judgment of conviction is overruled and the State’s motion to dismiss the
appeal as moot is sustained.” Berryhill, 492 So. 2d at 289 (quoting Haines, 428 So. 2d at
592).
¶14. Haines and Berryhill remained the established law of this state until 1994, when the
Gollott court—without citing any authority or providing any legal justification to abandon
the principle of stare decisis—rejected the decisions expressly announced in Haines and
Berryhill:
We are no longer of the opinion that the abatement ab initio rule obviously
results in a “miscarriage of justice.” There are essentially three reasons for
penal statutes in our justice system: (1) to protect society from dangerous
individuals; (2) to hopefully rehabilitate convicted criminals; and, (3) to deter
others from violating the law. Following the abatement ab initio rule does not
undermine any of these purposes. What is obvious is that society needs no
protection from the deceased, nor can the deceased by rehabilitated. Moreover,
other potential criminals will be no less deterred from committing crimes.
Gollott v. State, 646 So. 2d 1297, 1300 (Miss. 1994).9
9
If one relied solely on this faulty logic, which was not cited, briefed, or argued by
either party in Gollott, all convicted criminals who die in prison—regardless of whether their
appeal is pending—should have their indictments and convictions vacated.
10
¶15. The Gollott Court jettisoned established law set by Haines and Berryhill, nullifying
a facially valid indictment from a constitutionally empaneled grand jury, negating a facially
valid guilty verdict by a lawfully empaneled petit jury, nullifying facially valid judgments of
a circuit judge (i.e., the judgment of conviction, orders denying post-trial motions), and
restoring a convicted killer to the status of an innocent man, all without any finding of
reversible error at any stage of the proceeding. The Gollott Court cited no statutory or
constitutional authority for its rejection of the established rule of law, rather opining that
Berryhill and Haines failed to satisfy the purpose of penal statutes. The Gollott Court cited
not one pernicious error that necessitated a change in the law. See Stone v. Reichman-
Crosby Co., 43 So. 2d 184, 190 (Miss. 1949) (Courts will depart from stare decisis when
such departure is necessary to avoid the perpetuation of pernicious error.). Finally, the
Gollott court failed to identify the source of its ruling, because no statutory or constitutional
authority existed then (or now) for this Court to abate not only an appeal, but the entire
criminal proceeding. Indeed, “abatement ab initio is not grounded in the constitution or in
statute, but is instead a court-created common law doctrine.” People v. Griffin, 328 P.3d 91,
92 (Colo. 2014) (citing United States v. Estate of Parsons, 367 F.3d 409, 415 (5th Cir.
2004)).
¶16. Four years after Gollott overruled Haines and Berryhill without offering legal
justification, a nationwide victims’ rights movement gained steam in Mississippi. The
citizens of Mississippi voted to amend the Mississippi Constitution to grant constitutional
rights to crime victims: “Victims of crime, as defined by law, shall have the right to be
11
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.”
Miss. Const. art. 3, § 26A. The Mississippi Constitution further enabled the Legislature “to
enact substantive and procedural laws to define, implement, preserve and protect the rights
guaranteed to victims by this section.” Id.
¶17. That same year, the Legislature enacted the Mississippi Crime Victims’ Bill of Rights.
Miss. Code Ann. §§ 99-43-1 to -101 (Rev. 2015). The Legislature provided that “[t]he
purpose of this chapter is to ensure the fair and compassionate treatment of victims of crime,
to increase the effectiveness of the criminal justice system by affording rights and
considerations to the victims of crime, and to preserve and protect victims’ rights to justice
and fairness in the criminal justice system.” Miss. Code Ann. § 99-43-1 (Rev. 2015). Under
this chapter, victims of crime were formally recognized and accorded substantial rights,
including, inter alia, the right to be provided information by law enforcement,10 the right to
confer with the prosecuting attorney,11 the right to receive a transcript of the proceedings,12
the right to be present throughout all proceedings,13 and the right to participate during any
entry of a plea of guilty, sentencing or restitution proceeding.14
10
Miss. Code Ann. § 99-43-7 (Rev. 2015).
11
Miss. Code Ann. §§ 99-43-11, -13 (Rev. 2015).
12
Miss. Code Ann. § 99-43-15 (Rev. 2015).
13
Miss. Code Ann. § 99-43-21 (Rev. 2015).
14
Miss. Code Ann. § 99-43-33 (Rev. 2015).
12
¶18. In the decades since Gollott departed from established precedent, our Constitution and
state law were amended to recognize victims’ rights. The landscape has changed to protect
victims from being traumatized again. Since our Constitution was amended and the Crime
Victims’ Bill of Rights was enacted, we have not had the opportunity to address a motion for
abatement ab initio. Good cause exists today to do so.
¶19. “[F]undamental jurisprudential policy requires that prior applicable precedent usually
must be followed even though the case, if considered anew, might be decided differently by
the current court.” Hye v. State, 162 So. 3d 750, 755 (Miss. 2015). This policy “is based on
the assumption that consistency and definiteness in the law are the major objectives of the
legal system.” Id. (citing Laurel Daily Leader, Inc. v. James, 224 Miss. 654, 681, 80 So.
2d 770, 780-81 (1955) (Gillespie, J., special opinion)). However, “stare decisis is not an
inexorable command.” Bester v. State, 188 So. 3d 526, 529 (Miss. 2016) (quoting Payne v.
Tennessee, 501 U.S. 808, 828, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991)). Stare decisis “is
flexible enough to allow the Court to admit change under certain limited circumstances
where the previous rule of law would perpetuate error and wrong would result if the
decisions were followed.” Hye, 162 So. 3d at 755 (alterations omitted) (emphasis added)
(citing Laurel, 654 So. 2d at 781) (Gillespie, J., special opinion)). This Court has found that
stare decisis “is subordinate to legal reason and justice, and courts ‘will depart therefrom
when such departure is necessary to avoid the perpetuation of pernicious15 error.’” Hye, 162
15
Pernicious, Webster’s II New College Dictionary (3d ed. 2001) (“Causing great
harm: ruinous”); see also Hye, 162 So. 3d at 765 n.6 (Kitchens, J., dissenting) (“Pernicious”
is defined as “having a harmful effect, especially in a gradual or subtle way.”)
13
So. 3d at 755 (quoting Stone, 43 So. 2d at 190). The Gollott Court did not address whether
departing from Haines and Berryhill would perpetuate error or whether wrong would result
if Haines and Berryhill were followed.
¶20. Whether to abandon abatement ab initio is a question that has been considered by
many courts post-Gollott.16 The Supreme Court of Alaska undertook such a review in 2011.
Carlin v. State, 249 P.3d 752, 754 (Alaska 2011). Like Mississippi, Alaska was part of a
national movement to recognize the constitutional and statutory rights of crime victims,
following its supreme court’s adoption of the abatement ab initio doctrine. Id. at 758. The
Alaska Legislature had passed “a comprehensive Alaska Crime Victims’ Rights Act,” and
“Alaska’s voters [had] overwhelmingly approved the Rights of Victims of Crime
16
In Carlin v. State, the Alaska Supreme Court observed,
It appears that the highest courts in 41 states have addressed abatement in
some manner. The courts in [17] states have continued to apply strictly the
doctrine of abatement ab initio. Eight states generally dismiss a deceased
defendant’s appeal but leave the conviction intact. Two states have unique
approaches; Alabama places a particular notation in the deceased defendants
record, while Oregon gives judges discretion both to dismiss the appeal and
to vacate the judgment. Eight states allow some mechanism for the appeal to
continue with substitution; if no substitution occurs some of those states abate
the conviction while others allow it to stand.
Carlin v. State, 249 P.3d 752, 761 (Alaska 2011) (footnotes omitted) (citations omitted).
Montana now allows for substitution; if no substitution is sought, then the appeal is
dismissed as moot. State v. Benn, 364 Mont. 153, 274 P.3d 47 (2012). On March 13, 2019,
Massachusetts abandoned abatement ab initio in favor of dismissing the appeal as moot,
finding that “the doctrine of abatement ab initio is outdated and no longer consonant with
the circumstances of contemporary life, if, in fact, it ever was.” Commonwealth v.
Hernandez, No. SJC-12501, 2019 WL 1141521, at *1 (Mass. Mar. 13, 2019).
14
Amendment to the Alaska Constitution[,]” providing “substantial constitutional and statutory
rights to crime victims during all phases of the criminal justice process.” Id.
¶21. Given this “dramatic shift” in the law, the Alaska Supreme Court addressed the
propriety vel non of abatement ab initio. Id. The Court found that the abatement ab initio
doctrine was contrary to crime victims’ rights under the Alaska Constitution:
Hartwell’s17 assertion that the “underlying principles of penal administration
in Alaska are reformation and protection of the public” is thus no longer
complete. Alaska’s statutes and its constitution now also require the criminal
justice system to accommodate the rights of crime victims. The abatement of
criminal convictions has important implications for these rights. Therefore, the
expansion and codification of victims’ rights since Hartwell provides the
changed conditions needed to satisfy the first element of the test for overruling
precedent.
Id. at 759.
¶22. The Alaska Supreme Court examined the increasing trend of other state courts to
reject the abatement ab initio doctrine. Id. The Court noted that “a steadily growing number
of state courts have rejected the [abatement ab initio] doctrine” due to “the unfairness to
crime victims of abating criminal convictions and the doctrine’s inconsistency with the
presumption of guilt following a jury conviction.” Id.; see also Haines, 428 So. 2d at 591,
and Berryhill, 492 So. 2d at 289. For example, in State v. Korsen, the Idaho Supreme Court
noted that the abatement ab initio doctrine “is particularly unfair to crime victims who have
participated in often times painful trials only to see a hard won conviction overturned, not
because of any error in the criminal proceedings, but simply as a matter of routine procedure
17
In Hartwell v. State, 423 P.2d 282 (Alaska 1967), overruled by Carlin, 249 P.2d
at 754, Alaska adopted abatement ab initio.
15
based upon the arbitrary timing of the defendant’s death.” State v. Korsen, 111 P.3d 130,
134 (Idaho 2005).
¶23. Likewise, the Alabama Supreme Court rejected abatement ab initio, noting its
constitutional and statutory protections for victims of crime and “the callous impact
[abatement ab initio] necessarily has on the surviving victims of violent crime.” Wheat v.
State, 907 So. 2d 461, 463 (Ala. 2005) (emphasis omitted) (quoting People v. Robinson, 699
N.E.2d 1086, 1091 (Ill. 1998), judgment vacated by People v. Robinson, 719 N.E.2d 662,
663 (Ill. 1999)). Other states have followed suit. See, e.g., State v. Benn, 274 P.3d 47, 50
(Mont. 2012) (discontinuing application of abatement ab initio, noting the negative impact
on crime victims); State v. Devin, 142 P.3d 599 (Wash. 2006) (declining to abate conviction
automatically upon appellant’s death, noting its conflict with modern laws that compensate
victims for their suffering); People v. Griffin, 328 P.3d 91, 92 (Colo. 2014) (declining to
apply abatement ab initio to matters pending on certiorari review, noting that other courts
have questioned its impact on the rights of crime victims); Brass v. State, 325 P.3d 1256,
1258 (Nev. 2014) (denying motion for abatement ab initio, finding that “[v]acating the
judgment and abating the prosecution from its inception undermines the adjudicative process
and strips away any solace the victim or the victim’s family may have received from the
appellant’s conviction”); and Surland v. State, 895 A.2d 1034, 1035 (Md. 2006) (declining
to adopt abatement ab initio, noting the concerns of other courts regarding abatement’s
impact on victim restitution).
16
¶24. The Alaska Supreme Court then examined whether more good than harm would result
were it to depart from precedent and overrule its prior adoption of abatement ab initio.
Carlin, 249 P.3d at 761. The Court balanced “the benefits of adopting a new rule against the
benefits of stare decisis: providing guidance for the conduct of individuals, creating
efficiency in litigation by avoiding the relitigation of decided issues, and maintaining public
faith in the judiciary.” Id. at 761-72. The Court found that
[t]hese countervailing interests do not weigh heavily in this case. It is unclear
how an individual would rely on the rule adopted in Hartwell. That is, it is
unlikely that a person would commit a crime because he believed that, upon
his death while his appeal was pending, his conviction would be abated. As
for the efficiency rationale, while it is true that overturning Hartwell would
result in some additional litigation of the continued appeals of deceased
defendants, the number of such cases should be small. As for the third factor,
public faith in the judiciary, allowing continued appeals will protect both
victims and defendants by providing the opportunity to have criminal charges
fully litigated and decided.
Id. at 762.
¶25. Having balanced the benefits of stare decisis with the adoption of a new rule, the
Alaska Supreme Court found that substitution was the better course and held that “either the
State or the defendant’s estate may request substitution, allowing another party to be
substituted for the defendant.” Id. at 762-63. Under this approach, substitution may be
sought, and the appeal proceeds; if no substitution is sought, the appeal is dismissed, and the
conviction remains intact. Id. at 766. The Court found that this approach struck the correct
balance between protecting a defendant’s right to appeal and a victim’s rights under the
Alaska Constitution. Id. at 762.
17
¶26. We find Alaska’s approach beneficent, because it fairly balances defendants’ and
victims’ rights alike. Like Alaska, Mississippi has experienced a dramatic shift in the law
since Gollott. Because of the increased recognition of crime victims in both our Constitution
and statutory law, we find that departure from the abatement ab initio doctrine is necessary
to avoid the perpetuation of pernicious error. Hye, 162 So. 3d at 755. The abatement ab
initio doctrine tramples upon victims’ rights by denying victims “fairness, respect and
dignity.” Korsen, 111 P.3d at 135. Moreover, we find that the policies undergirding stare
decisis—consistency and definiteness in the law—are not served by continued application
of the abatement ab initio doctrine. We agree with the Alaska Supreme Court that it is
“unlikely that a person would commit a crime because he believed that, upon his death while
his appeal was pending, his conviction would be abated.” Carlin, 249 P. 3d at 762. Finally,
we reiterate that no constitutional or statutory authority existed for the Gollott Court to undo
the action of a lawfully constituted grand jury, petit jury, and circuit judge, absent reversible
error’s being affirmatively established. See, e.g., Newell v. State, 308 So. 2d 71, 72 (Miss.
1975). Accordingly, we find that this Court’s previous decision in Gollott v. State was
wrongly decided and should be overruled.
¶27. This Court adopts Alaska’s balanced approach in Carlin, which protects victims’
rights—a factor not considered by the Gollott Court. See Morris v. Slappy, 461 U.S. 1, 14,
103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983) (“[I]n the administration of criminal justice, courts
may not ignore the concerns of victims.”). Under this approach, the estate or personal
representative may move for substitution and seek to reverse the conviction, should it choose
18
to do so. See Carlin, 249 P.3d at 763 (“allowing the defendant’s appeal to continue when
the defendant’s estate does not wish it would undermine[s] the right to appeal that
substitution is meant to protect”). If the estate or a personal representative declines to
substitute, the appeal is dismissed as moot, and the conviction remains intact. This approach
strikes a balance between the rights of the victim with the rights of the accused, the approach
Gollott ignored.
¶28. We recognize that the abatement ab initio doctrine, which first surfaced over one-
hundred years ago, was created in part to avoid punishing the decedent’s family. State v.
Furth, 82 Wash. 665, 667, 144 P. 907 (1914), overruled by Devin, 142 P.3d at 599. “In one
of the earliest expressions of the policy underlying abatement, Pomeroy said that ‘the
fundamental principle applicable to this case is that the object of criminal punishment is to
punish the criminal, and not to punish his family.’” Devin, 142 P.3d at 601 (quoting United
States v. Pomeroy, 152 F. 279, 282 (C.C.S.D.N.Y. 1907), rev’d on other grounds sub nom.
United States v. N.Y. Cent. & Hudson River R.R., 164 F. 324 (2d Cir. 1908)). We think this
sound principle should be recognized in Mississippi. “There is no justice in punishing [the
decedent’s] family for his offense.” Pomeroy, 152 F. at 279. Thus, although we overrule
Gollott and decline to abate a deceased appellant’s criminal conviction ab initio, we “do not
preclude courts from abating financial penalties still owed to the county or State, as opposed
to restitution owed to victims, where the death of a defendant pending an appeal creates a
risk of unfairly burdening the defendant’s heirs.” Devin, 142 P.3d at 606. Again, this
19
approach strikes the appropriate balance between the victim’s rights and the defendant’s
rights.
¶29. To be clear, today’s decision does not minimize the rights exercised by Payton under
the Mississippi Constitution. Article 3, section 26 provides that the accused shall have the
right (1) to be heard by himself or counsel, or both; (2) to demand the nature and cause of the
accusation; (3) to be confronted by the witnesses against him; (4) to have compulsory process
for obtaining witnesses in his favor; (5) to a speedy and public trial by an impartial jury of
the county where the offense was committed; and (6) not to be compelled to give evidence
against himself.
¶30. In this case, over the course of the trial-court proceedings, the circuit judge appointed
four different attorneys to represent Payton. Payton ultimately chose to proceed pro se, with
two lawyers appointed to serve as his legal advisors. During trial, Payton was confronted
by the victim, and Payton personally cross-examined her. Payton was granted the right to
send the DNA evidence to a lab of his own choosing, at the State’s expense, to retest his own
DNA. Payton was additionally appointed his own DNA expert, paid for by the citizens of
Lamar County. The trial court accommodated Payton’s every request concerning DNA
testing, until Payton ultimately refused to provide another DNA sample.18 Payton
additionally received his right to a speedy trial and an impartial jury, and he was not
compelled to give evidence against himself.
18
Payton requested that the trial court allow his sister, an owner of a beauty salon, to
collect his DNA sample, instead of law enforcement. The trial court denied his request.
20
¶31. Payton was accorded each and every right guaranteed him under the Constitution. Yet
now, we are asked to ignore N.B.’s constitutional right “to be treated with fairness, dignity
and respect . . . .” Miss. Const. art. 3, § 26A. We decline to do so. Because our Constitution
balances the rights of the accused with the rights of the victim, we—as guardians of the
Constitution—can do no less. Payton has been accorded his constitutional rights; N.B. shall
be accorded hers.
¶32. Ample time was provided for the estate or any personal representative of Payton to
move for substitution. No response was filed. Accordingly, we dismiss Payton’s appeal as
moot and leave his conviction intact.
CONCLUSION
¶33. Because of the increased recognition of crime victims in our constitution and statutory
law, and because the policies undergirding stare decisis are not served by continued
application of the abatement ab initio doctrine, we expressly overrule Gollott. Since no
motion was filed for substitution pursuant to Rule 43(a), we dismiss Payton’s appeal as moot
and leave his conviction intact. Miss. R. App. P. 43(a).19 Holmes’s motion to abate Payton’s
conviction ab initio is denied.
¶34. APPEAL DISMISSED.
COLEMAN, MAXWELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ.,
CONCUR. KING, P.J., CONCURS IN PART AND DISSENTS IN PART WITH
SEPARATE WRITTEN OPINION JOINED BY KITCHENS, P.J.
19
Rule 43(a) applies equally to civil and criminal proceedings, notwithstanding the
comment to the contrary.
21
KING, PRESIDING JUSTICE, CONCURRING IN PART AND DISSENTING
IN PART:
¶35. This appeal should be dismissed as untimely; but because this Court reaches the merits
of the issue of what procedure to employ when a convicted defendant dies while the appeal
is pending and no one moves to substitute, I believe that this Court should address each
appeal on a case-by-case basis. Accordingly, I respectfully dissent in part.
¶36. Payton filed an untimely notice of appeal. The Mississippi Rules of Appellate
Procedure provide that “[a]n appeal shall be dismissed if the notice of appeal was not timely
filed pursuant to Rules 4 or 5.” Miss. R. App. P. 2(a)(1) (emphasis added). In criminal
cases, this Court may suspend that rule “[i]n the interest of expediting decision, or for other
good cause shown[.]” Miss. R. App. P. 2(c). Because dismissing this appeal accomplishes
the same result as the majority reaches on the merits, I do not find any “good cause shown”
for suspending the Mississippi Rules of Appellate Procedure and allowing this untimely
appeal. Nor does allowing the untimely appeal expedite any decision, as dismissing the
appeal would be the more expeditious procedure.
¶37. Alternatively, because the Court does reach the merits, I disagree with the all-or-
nothing approach the majority and our caselaw employ. The majority bases its decision to
overrule Gollott and the abatement ab initio doctrine primarily on a recognition of crime
victims’ rights. While I completely agree with the majority that crime victims’ rights should
certainly be part of our analysis in these cases, I do not agree that those rights always
mandate dismissing an appeal as moot when a defendant has died and no substitution has
been made. For example, how do crime victims’ rights outweigh a defendants’ rights in the
22
case of a victimless crime such as possession of a small amount of marijuana? The majority
fails to address how victims’ rights automatically outweigh those of the defendant and/or his
heirs in a victimless crime. For this reason, I believe we should determine the appropriate
course in the rare instance when a convicted defendant dies pending appeal and no
substitution is made on a case-by-case basis. A case-by-case approach would strike the
appropriate balance between the rights of victims and defendants, instead of automatically
applying either abatement ab initio or dismissing the appeal as moot.
¶38. Rule 43(a) of our Rules of Appellate Procedure provides for substitution when a party
dies pending appeal. Miss. R. App. P. 43(a). However, “[i]f the deceased party has no
representative, any party may suggest the death on the record and proceedings shall then be
had as the appropriate appellate court may direct.” Id. (emphasis added). This Court need
not adopt a bright line rule for these cases; our Rules allow us to make an appropriate
determination in each case. The Court in Gollott correctly observed that
[T]here are valid policy considerations in favor of both the abatement ab initio
doctrine and our present law in the area [dismissing the appeal as moot and
leaving the conviction intact], as well as problems with each. Upon the death
of a defendant pending appeal, it is no more reasonable to deem the appeal
moot and let the conviction stand, acting as though we have heard the
appellant’s arguments and found them meritless, than it is to automatically
follow the abatement ab initio rule and pretend the defendant was never
indicted, tried and found guilty.”
Gollott v. State, 646 So. 2d 1297, 1303-04 (Miss. 1994). Our rules do not demand an all-or-
nothing approach, nor does justice require that we adopt an all-or-nothing approach in these
uncommon situations. This Court should determine whether abatement ab initio or
dismissing the appeal as moot is the appropriate action in each individual case. In doing so,
23
this Court should consider, and the parties should present, relevant arguments describing with
particularity the rights of the victim or victims impacted, the defendant’s constitutional rights
impacted, the collateral effects on the defendant’s estate or heirs, and any other relevant
issues.
¶39. I believe that this Court should exercise judicial restraint and dismiss this appeal as
untimely under Mississippi Rule of Appellate Procedure 2(a)(1). However, because this
Court reaches the merits of the abatement ab initio issue, I believe we should abandon the
bright line rules of Gollott, Haines, and Berryhill, and adopt a measured case-by-case
analysis regarding whether dismissing a case as moot or abatement ab initio is appropriate.20
In the present case, I agree that dismissing the appeal as moot is appropriate; given that
Payton did not timely file his post-trial motions or his appeal, I fail to see how dismissing his
appeal as moot would infringe upon his rights.
KITCHENS, P.J., JOINS THIS OPINION.
20
Of course, to avoid such a case-by-case review, the State or the attorney for the
defendant may move for substitution. Miss. R. App. P. 43(a).
24