COVID-19 means court has to “negotiate” shared pod use

by Robin Kemp

An evidentiary hearing in the state’s case against Hannah Payne will take place in the next 30 to 45 days. That could put her before a jury in January or early February, more than two years after the May 7, 2019 shooting death of Kenneth Herring.

Payne, 24, faces life in prison if convicted.

Clayton County Superior Court Judge Shana Rooks Malone

Clayton County Superior Court Judge Shana Rooks Malone gave attorneys 30 days to compare files to make sure that both sides have all the same evidence.

Defense attorney Matt Tucker told the court at a pretrial hearing Friday, May 7 that he does not have two recordings. Assistant District Attorney Bonnie Smith said she had e-mailed Tucker to let him know that the police report in her file “says ‘Working Copy’ across the top” and that she wants to be sure she has the same printed copy of the police report that Tucker has “in the file I inherited.”

Tucker also asked the court for a chance to sit down with Payne and go over everything in the case file with her, saying he had been sick, “then COVID came in.”

Tucker added that he would be filing an immunity motion, then he’d either add expert witnesses or “be ready to go.” The immunity motion refers to a mandatory pretrial hearing when a criminal defendant has the chance to prove whether they were justified to use deadly force to defend themselves or another to prevent “death or great bodily injury.”

Three factors come into play in a self-defense hearing. The defendant cannot:

  • provoke the other person as an excuse for using deadly force
  • use self-defense if they were committing, attempting to commit, or fleeing from commission of a felony
  • was the aggressor (unless the defendant then communicated to the other party that the fight was over and was walking away when the other party kept coming at them)

If the defendant proves by a preponderance of the evidence that they were justified in using deadly force, then they do not go to trial. However, if the defendant fails to prove deadly force was justified, a trial can then take place.

Malone said the evidentiary hearing could take place in December or early January, depending on the availability of a special courtroom “pod” that has been in use by judicial order during the COVID-19 pandemic. Malone said she normally holds evidentiary hearings from 2 p.m. to 5:30 p.m. on Tuesdays.

“Do you need a full day?” Malone asked Tucker.

“I would like a full day, yes, ma’am,” Tucker replied.

“I would need to negotiate with another judge for their pod,” Malone said. “Maybe [on a] Wednesday at 9 a.m. If you’re going to file in January, the state needs 30 days, so 30 days after that.”

Smith said, “We knew this was coming. We’re ready to go. If you can get a day earlier than 30 days, we’ll take that.”

After the hearing, Smith clarified, “We have 30 days to compare files, then the defense will file the immunity motion. That does require a pre-trial hearing. The State indicated we would be ready to proceed upon receipt of the motion. The Judge is going to look for a full day to have the hearing, hopefully in January. Assuming the Judge denies the defendant’s immunity motion, the State will be ready to proceed to trial immediately. Due to COVID restrictions, the Judge will have to find trial time sufficient to try the case. I expect it to last longer than a week which means we encroach on another Judge’s trial time. They are working together to borrow/trade weeks to accommodate longer trials. I cannot speak to the exact timing, but I am hoping to get the case tried shortly after the beginning of the year.”

Friday’s proceedings were not held in person due to ongoing court-ordered COVID-19 protocols. Instead, defendants appear remotely via Zoom. Payne’s case is one of several on Malone’s calendar. Online case records had indicated a pre-trial conference. On Thursday, the court calendar indicated a continuance may be requested.

Kenneth Elton Herring, 62, died of a gunshot wound to the abdomen. Hannah Payne, then 21, told police Herring shot himself in a struggle over her pistol. If convicted, Payne could get life in prison.

Payne, who was 21 at the time of the shooting, faces two counts of felony murder, one count each of malice murder, aggravated assault, false imprisonment, and three counts of possession of a firearm during commission of a felony, court records show.

Payne allegedly shot Herring after witnesses and 911 operators say she followed him from a fender-bender on Clark Howell Highway, cut his red pickup truck off with her Jeep at Forest Parkway and Riverdale Road, and pulled a gun on him. According to the state’s warrant, Payne “did remove the firearm from her person during an altercation, load a bullet into the chamber, point the firearm at the victim and pulled the trigger, striking the victim in the abdomen.” Police found him breathing but unresponsive. Herring was taken to Southern Regional Medical Center, where he was pronounced dead 22 minutes later. The GBI found the gunshot caused Herring’s death, that the manner of death was homicide, and that a toxicology report showed no drugs or alcohol in Herring’s system.

The probable cause section of the warrant notes Payne told officers she “witnessed Herring stop at [Clark Howell and Forest Parkway] and believed Herring to be under the influence of a drug or alcoholic beverage. Payne witnessed Herring return to his vehicle and drive from the accident without properly reporting the accident with law enforcement. Payne proceeded to follow Herring and was able to park her vehicle in front of Herring’s vehicle, forcing him to stop. Payne exited her vehicle with a black in color, semi-automatic Springfield 10XD, 9mm…holstered to her hip. Payne repeatedly demanded for Herring to exit his vehicle. Payne advised Herring grabbed her arm and shirt and in response, Payne removed a firearm from her person. Payne advised she and Herring were fighting over the firearm when the firearm went off, striking Herring in the abdomen; where he was later pronounced deceased.”

According to courtroom testimony, an EMS worker on scene said Herring appeared to be having a diabetic emergency. Herring’s wife, Christine, also said she thought he may have been having a diabetic emergency and was trying to drive himself to the hospital.

Clayton County Police Detective Keon Hayward testified that the EMS responder said Herring seemed disoriented and that Payne ignored a 911 operator who told her not to follow Herring.

According to Heyward, Payne could be heard on the 911 recording repeatedly ordering Herring out of the car, then telling the operator, “He just shot himself with my gun.”

Payne’s attorney, Matt Tucker, said Herring might have torn Payne’s shirt and scratched her face in a struggle over the Springfield 9mm pistol while she attempted a citizen’s arrest.

At Payne’s probable cause hearing, then-Clayton County District Attorney Tracy Graham Lawson told Judge William West, “She’s the aggressor. She can’t claim self-defense. And on top of that, Judge, she’s using deadly force. She isn’t faced with deadly force. He (Herring) has nothing. And then, she shoots him.”

Since then, Lawson has retired, Acting District Attorney John Fowler has gone to work for Attorney General Chris Carr as head of the Prosecution Division, and ADA Bonnie Smith is now representing the state in the case.

Payne has requested a jury trial. A trial date was set almost two years ago on December 9, 2019, but was delayed while a key witness, Dr. Stacey Desamours of the Georgia Bureau of Investigation, was out on medical leave.

Several continuances already have been granted in the case, drawing criticism from the Clayton County NAACP Branch and others.

“Here we are, two and a half years later,” said chapter President C. Synamon Baldwin. “W e shall continue to keep a watchful eye. Our NAACP Clayton Legal Redress Chairwoman, Marie Myers, is laser-focused on this case.”


PAYNE CASE TIMELINE

May 7, 2019: Kenneth Herring is shot dead during an altercation with Hannah Payne, who told police she pulled a gun on Herring after stopping him in traffic.

A grand jury indicted Hannah Payne during the May 2019 term on all eight counts pending as of press time.

May 28, 2020: Clayton County Superior Court Judge William West ruled there was probable cause to prosecute Payne on murder charges.

May 31, 2019: Payne was granted $100,000 bond and released with an ankle monitor. West ordered her to surrender her Georgia Weapons Carry License, passport, and any and all firearms. He also ordered her not to contact Herring’s family nor leave the state without permission.

June 20, 2019: Malone revoked Payne’s bond and ordered she be arrested, noting “The defendant was never arrested on these charges.”

June 21, 2019: Payne turned herself in to the Clayton County Sheriff’s Office.

June 24, 2019: Tucker argued that Payne posed no threat to the community “due to the fact that it was an isolated incident in which she had to defend herself against the alleged victim” and asked that she be released either on her own recognizance or a minimal bond.

July 12, 2019: Payne enters a plea of not guilty. During the motion for bond hearing, Tucker described Payne as “a lifelong resident of Georgia, lived in Fayette County, went to Fayette County High School. All four years was in the marching band; never has gotten a ticket; never has gotten arrested; never has had any problems with the law enforcement until recently.” He added that Payne’s employer, family, and friends were behind her.

“She’s not a menace to society,” Tucker said. “She has gone to counseling because this was an incident that happened to a very young girl, that she needs to talk to somebody about.”

July 25, 2019: Tucker files a motion to reconsider Payne’s bond based on a 911 call recording “that had silence in the most important part,” a period documented in a video recording that he wrote “will show the missing part of the 911 call, which we contend was taken out of the 911 purposely.”

August 1, 2019: Tucker files an emergency motion to reconsider bond, again citing the silent period on the 911 recording.

August 5, 2019: Malone denies the emergency motion to reconsider bond.

September 3, 2019: Payne filed an emergency motion for reconsideration of bond. In that request, six-page brief, Tucker writes that the June 12 bond hearing included “a 911 call that had silence in the most important part of the recorded call. The State produced Tim White to testified [sic] that there were only three 911 calls however five have been turned over in discovery….one of them has the Georgia Department of Corrections Officer, who was at the initial accident, encourage Ms. Payne to follow the car and retrieve the impaired driver’s tag number.” In addition, Tucker wrote that video that the state “alleged was damaging to the Defense of Ms. Payne” covers the period of the audio gap in the 911 recording, “which clearly shows Ms. Payne being pulled into the car and screaming STOP, STOP, STOP to the alleged victim in this case.”

According to Tucker, who argued that a curfew and limiting Payne’s travel to work and home would be sufficient, “The accused state that the video, as well as one of the 911 tapes, would clearly show Ms. Payne was attacked by the alleged victim and in one portion of the recorded incident, one can hear the engine rev up and Ms. Payne scream “you attacking me dude”[.] This coupled with a witness statement shows that the alleged victim attempted to run Ms. Payne down with his car before any gun was pulled. Mr. Herring then proceeded to attack Ms. Payne further by grabbing her shirt, cutting her chest area and ripping her shirt almost completely off.”

White testified at Payne’s July 12, 2019 bond hearing that the audio gap was “not edited in any way.”

“[I]t’s similar to a voice-aux recorder, if you’re familiar with those,” he told then-Assistant District Attorney John Fowler. “It only records when there is actual activity above a certain level. In other words, if you have a voice-aux tape recorder that you used in college, if you set it on the corner of a desk to record a seminar or something, if there’s a pause in the lecture while the instructor takes a breath, for example, that recorder may stop.”

Under cross-examination, White told Tucker that it was 911’s policy to tell callers not to pursue other vehicles to get tag numbers, and that Payne called for police and EMTs to respond after Herring was shot.

Tucker told the court, “She’s a young individual that got on the phone with 911 and thought she was helping out by getting the tag number. At her age, she learned a very valuable lesson.”

Fowler said that Payne “followed [Herring] against the instructions of law enforcement, down the road, over a mile, cut him off in traffic so that he couldn’t go any further, got out of her vehicle with a gun, approached his vehicle. He never got out. And we know he never got out because there’s a video of the shooting. A passerby, who’s approximately 20 to 25 feet away, as he is driving by very slowly, actually video tapes the shooting. And that’s important.” Fowler alleged that Payne “lied to police during her interview. Probably the greatest lie that she tells to police, is that she says Mr. Herring reached over her shoulder and pulled her towards the vehicle….In no way, shape, or form did Mr. Herring ever get out of the car and never did his hand reach over and pull her into the vehicle.” He added, “We have four eyewitnesses that will testify that she was punching him with her left hand while the gun was in her right hand. You can see the gun outside of the vehicle and then it goes inside of the vehicle and then it goes off. You can’t see who pulls the trigger.” According to Fowler, even if Herring had pulled the trigger, Payne would be “still guilty of murder.”

Fowler told the court Herring could be seen using his left hand to push Payne away. Tucker countered that police photos show “scratches on her arm, her clothes being ripped and actual gashes–claw mark gashes in her chest and bosom.”

Five members of Herring’s family–his sister, Vickie Lynn Herring; brother, Keith Herring; niece, Staff Sgt. Talya Mendenhall; sister, Jacquelyn Herring; and daughter, Varisha Greene–wrote letters to the judge, asking that Payne’s bond be denied.

“Given that Hannah Payne was previously granted bail the week following my brothers burial was a tremendous blow to my family and we all felt that bullet to the abdomen as did my brother on that fateful day,” Vickie Lynn Herring wrote, “as such she should not be allowed to be with her family while my brother lies in a grave…Hannah Payne was clearly the aggressor making herself judge, jury, executioner and took a life….my brother is dead.”

Keith Herring wrote, “I am the family member that actually was trying to return his call only to be called back by the Clayton County Police Department….it is in my opinion that she did in fact act with malice when the victim was shot. It is in my opinion that had this situation were reversed, no bond would be allowed.”

Mendenhall wrote, “This hearing is just the first set of hurdles both the defendant and our family will face. It is my hope and that of our family that she is held accountable at even the lowest level, starting with this bail hearing.”

Jacquelyn Herring told the court Payne “is now facing more charges and it is important to examine the nature and circumstances of these charges, especially the offenses involving violence. Please also examine the weight of the evidence against her. I also believe that there is a likelihood that she will behave improperly given the suspicions over what motivated her actions in which she is accused….give our family the time and the peace to begin to prepare for long road ahead of trial.”

Green asked Malone to set bond at $500,000, if at all: “She repeatedly struck my father; an elderly man who was defenseless, in anger, while demanding that he exit the vehicle. As her act of rage continued, she drew her firearm and executed him. If her concern was for the welfare of the citizens of this county, then her next task would have been to render aid. However, that didn’t happen. Instead, she attempted to conceal her heinous crime by changing her clothes. If she was concerned for the citizens of this county, she would have heeded the advice of the correctional officer and the dispatcher and not been so reckless.”

Malone denied the emergency motion to reconsider bond.

September 3, 2019: Payne filed an emergency motion for reconsideration of bond. In that request, six-page brief, Tucker writes that the June 12 bond hearing included “a 911 call that had silence in the most important part of the recorded call. The State produced Tim White to testified [sic] that there were only three 911 calls however five have been turned over in discovery….one of them has the Georgia Department of Corrections Officer, who was at the initial accident, encourage Ms. Payne to follow the car and retrieve the impaired driver’s tag number.” In addition, Tucker wrote that video that the state “alleged was damaging to the Defense of Ms. Payne” covers the period of the audio gap in the 911 recording, “which clearly shows Ms. Payne being pulled into the car and screaming STOP, STOP, STOP to the alleged victim in this case.”

According to Tucker, who argued that a curfew and limiting Payne’s travel to work and home would be sufficient, “The accused state that the video, as well as one of the 911 tapes, would clearly show Ms. Payne was attacked by the alleged victim and in one portion of the recorded incident, one can hear the engine rev up and Ms. Payne scream “you attacking me dude”[.] This coupled with a witness statement shows that the alleged victim attempted to run Ms. Payne down with his car before any gun was pulled. Mr. Herring then proceeded to attack Ms. Payne further by grabbing her shirt, cutting her chest area and ripping her shirt almost completely off.”

September 27, 2019: Tucker reinstated Payne’s $100,000 bond, as well as an additional bond on the other charges, ordered her to wear an ankle monitor, and imposed a 9 p.m. curfew:

  • Malice murder: $100,000
  • Aggravated assault: $25,000
  • False imprisonment: $50,000
  • Possession of firearm during felony $15,000 (on each of three counts for a total of $45,000)
  • TOTAL: $220,000

September 30, 2019: Tucker sent Malone a letter asking for a new bond order because the Clayton County Jail would not release Payne: “The Clayton County Jail has informed my office that the bond amount for the Felony Murder charge must be included on the Order for Bond even though my client, Hannah Payne, was bonded out by Anytime Bail Bonds for this charge….I respectfully request that this Court sign a new Order for Bond which incorporates the Felony Murder charge as well as clarifies that it is the Court’s intent to reinstate the previous $100,000.00 bond amount.”

October 1, 2019: Two counts of felony murder were added to Payne’s case and her total bond rose to $320,000. Again, Malone ordered she wear an ankle monitor and observe a 9 p.m. curfew.

November 20, 2019: Fowler requested the case be continued to the February 2020 calendar call due to Desamours’ medical leave. Desamours performed Herring’s autopsy, so is a material state’s witness. The case had been set for December 9, 2019 but was moved to February 11.

February 10, 2020: Fowler sent a Brady letter to Tucker, which read in part, “On Friday, February 7, 2020, I was notified by Investigator John Gosart that Clayton County Police Detective Keon Hayward was terminated from the police department for testing positive for cocaine and marijuana. I confirmed this information on February 10, 2020 in a phone call with CCPD Lt. Thomas Reimers. I am aware of no further information regarding this issue.” The Brady Rule requires prosecutors to inform the defense of any evidence the state has that could help the defense’s case.

February 27, 2020: Payne’s case had been set for March 9 but did not appear on the upcoming calendar. Fowler said he was “not at liberty” to say why.

June 2, 2020: Tucker filed a motion stating that Payne “has incurred significant financial obligations and has been limited in employment opportunities” because of the court-ordered ankle monitor and curfew, and asked “that the ankle monitor be removed and/or Defendant’s curfew be extended to allow for additional employment.”

June 23, 2020: Malone denied the request, noting “Defendant claimed that she was employed, that her job had been held pending her release and that her employers and co-workers had attended the hearing to support her. Defendant does not claim that she is no longer employed and has not submitted any evidence establishing that she is indigent…such that she may have her electronic monitoring fees paid by the sheriff and has only argued that she did not anticipate the amount of time that she would have to pay electronic monitoring fees given the delay of jury trials due to the judicial state of emergency caused by the Coronavirus. Defendant is facing a potential sentence of life imprisonment…if convicted and is therefore a flight risk.”

June 26, 2020: Gov. Brian Kemp signs hate crimes legislation into law that requires “Bias Crimes Report” data collection on victims’ “actual or perceived race, color, religion, national origin, sex, sexual orientation, gender, mental disability, or physical disability.”

July 17, 2020: Georgia Attorney General Chris Carr appoints Fowler to head the state’s Prosecution Division.

September 5, 2020: Clayton County NAACP Youth hold a silent march and prayer vigil at the Harold R. Banke Justice Center, calling for justice for Kenneth Herring.

May 10, 2021: Gov. Brian Kemp signed legislation narrowing Georgia’s vague Civil War-era citizens’ arrest law, with members of Ahmaud Arberry’s family looking on.

Nov. 5, 2021: During a pre-trial hearing, Judge Shana Rooks Malone gave both sides 30 days to compare files. Tucker said he would then file a motion for immunity, which would give Payne a chance to prove whether she acted in self-defense. Should Payne not prove immunity from prosecution, a trial could start immediately. COVID-19 scheduling restrictions forced Malone to work out a schedule to share another judge’s trial pod.


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