Hannah Payne, the woman charged with malice murder in the shooting death of Kenneth Herring, is scheduled for a 2 p.m. motions hearing on Tuesday, November 8 before Clayton County Superior Court Judge Shana Rooks Malone in Room 402 of the Harold R. Banke Justice Center.
The Clayton Crescent left a message with Payne’s defense attorney, Matt Tucker, seeking more information on Monday afternoon, but did not receive a response by press time. Payne has pleaded not guilty in the May 7, 2019 incident.
Payne allegedly attempted a citizen’s arrest after Herring’s pickup had hit an 18-wheeler at Clark Howell and Forest Parkway near the airport. A Clayton County detective has testified that a 911 operator urged Payne not to follow Herring, while court documents from the defense say a Department of Corrections officer on the scene had told Payne to follow Herring and call in his tag number to police.
Payne, a relatively new firearms owner at the time, used her Jeep to cut off Herring at Forest Parkway and Riverdale Road (Georgia 85), then allegedly pulled her pistol and pointed it at him. A struggle ensued and Herring was shot fatally in the abdomen. Payne is alleged to have told the 911 operator that her gun went off during a struggle between her and Herring. The defense also has alleged in court documents that Herring had a “large knife” on his front passenger seat and that he allegedly told Payne, “I’ve got something for you, bitch.”
Herring’s family and emergency responders have said they believe Herring was having a diabetic crisis and may have been trying to drive himself to a nearby hospital. Southern Regional Medical Center is just over three miles from the intersection where Herring allegedly hit the 18-wheeler.
According to state prosecutors, “Multiple eyewitnesses told police that Payne cut off Herring’s truck in traffic, got out of her vehicle, and approached Herring while he was seated in his truck. Multiple eyewitnesses also indicated that Payne began striking Herring, and Payne subsequently pulled out a pistol and shot Herring once.”
Someone called the shooting in to 911 about 6:20 p.m. Clayton County Police found Herring in his car, still breathing but unresponsive, at 6:24 p.m. He was transported to Southern Regional, where he was pronounced dead at 6:46 p.m.
The state also alleges that Payne called 911 to report the accident and was told police were on the way, that she called 911 back to say “Herring was leaving the scene…and she believed him to be intoxicated. GBI toxicology later determined that Herring’s body was negative for alcohol and drugs. Another eyewitness at the original accident scene believed that Herring was suffering from a medical emergency. The 911 operator told Payne not to follow Herring, but Payne followed Herring’s truck anyway and told the 911 operator that she was only following Herring to get his license plate. Payne eventually relayed Herring’s license plate number to the 911 operator, and the 911 operator told Payne to go back to the original scene. Payne refused, and she continued to follow Herring. Eventually, Payne cut off Herring in traffic, exited her vehicle, yelled at Herring to get out of the car multiple times, and shot him with her pistol.”
Delays, bond questions, little news coverage
This trial, along with many others, was delayed during the COVID-19 judicial emergency. Another delay came in November 2019, when a Georgia Bureau of Investigation medical examiner, Dr. Stacey Desamours, went on medical leave until February 2020. The case also has gotten less national attention than the trial over Ahmaud Arbery’s shooting, which had happened around the same time. A Court TV producer tells The Clayton Crescent the network plans to cover Tuesday’s hearing and any subsequent trial.
These factors, along with Payne’s bond and release with an ankle monitor and curfew, have prompted protests from the Clayton County NAACP. Chapter President C. Synamon Baldwin has said that a similarly-situated Black pretrial detainee would not have gotten the same treatment.
In May 2019, a grand jury charged Payne in the case but no bond was granted and court records show Payne “was never arrested on these charges.” On May 31, 2019, Magistrate Judge William W. West granted Payne $100,000 bond and required her to wear an ankle monitor, surrender her Georgia Weapons Carry License, passport, and all firearms to the Sheriff’s Department, and not leave the state without the court’s permission.
Rooks, who is Black, denied a July 19, 2019 request to reconsider bond on August 5, 2019.
On Spetember 27, Payne was granted another $220,000 bond on September 27, 2019, on the conditions that she wore an ankle monitor and followed a 9 p.m. curfew.
Under Georgia law, evidence of a defendant’s innocence or guilt do not play into whether or not to grant bond, the defense argued, adding, “The nature of these charges are not even relevant, except to the extent that the potential sentence is so severe that the Defendant may flee.”
The defense has said that Payne has “learned a very valuable lesson….it’s better to stay in your car and not get out” and that she had acted in self-defense when she shot Herring. Payne’s family members insist that she does not hold racist feelings towards Black people.
Eyewitness video, 911 calls
Then-Assistant District Attorney John Fowler, who has since moved on to state government, told the court, “at the time, no one knew that the video [shot by a passing motorist] existed” and that Payne “demonstrably, not just in the 911 call disobeys police, but also lied to police during her interview. Probably the greatest lie she tells police is that she says that Mr. Herring reached over her shoulder and pulled her towards the vehicle. The video is clear. It is daytime, it is sunny outside, and it is pointed directly at the shooting.”
According to the prosecution, the video shows Payne standing outside Herring’s truck, a pistol in her right hand. Although the video doesn’t show her left hand, “[w]e 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 pulled the trigger.”
But even if Herring had pulled the trigger, Fowler told the court, “the defendant is A, still guilty of murder. And B, he is trying to fight it. You can see his, what would be his left hand trying to push her away. He never gets out of the vehicle.”
On July 12, 2019, prosecutors introduced that video, which the defense says fills a gap on a crucial point in the 911 audio tapes. At that point, the defense alleges, the video “clearly shows Ms. Payne being pulled into the car and screaming STOP, STOP, STOP to the alleged victim [Herring] in this case. Because this video is the exact period of time that the 911 tape is silent, counsel has concerns of the actual validity of the 911 tape.”
The defense also alleged that “the video, as well as one of the 911 tapes, would clearly show Ms. Payne was attacked by the alleged victim [Herring] 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.”
On February 10, 2020, Fowler filed a Brady disclosure, which notifies the defense of evidence that could help its case. That evidence is a letter from Fowler stating that a CCPD detective who had testified in the case, Keon Hayward, had been “terminated from the police department for testing positive for cocaine and marijuana,” according to CCPD Investigator John Gosart and Lt. Thomas Reimers.
On July 23, 2020, Rooks denied Payne’s request “to have the monitoring device removed, and/or the curfew lifted, claiming that the device and curfew are limiting [her] employment prospects and causing her to incur significant financial obligations by way of the fees for the electronic monitor.”
In denying the motion, Rooks pointed out that Payne is facing a possible life sentence if convicted.
Assistant District Attorney Bonnie Smith is prosecuting the case.
The Clayton Crescent’s Robin Kemp has followed the case since the day Herring was shot. Here is a timeline of how the case has evolved.