                    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
