MILLINGTON, Tenn. — Lawyers for Tennessee death row inmate Pervis Payne, who has maintained his innocence in a brutal 1987 double murder, are seeking to halt Payne’s execution based on evidence that he is intellectually disabled.
Payne, 53, is scheduled to die Dec. 3 for the June 27, 1987, stabbing deaths of Charisse Christopher, 28, and her 2-year-old daughter, Lacie Jo, in their Millington home. Christopher’s 3-year-old son, Nicholas, was also stabbed but survived.
On Monday, Payne’s attorneys, which include lawyers from the Innocence Project, the Federal Public Defender’s Office and the Milbank firm, filed a federal petition seeking to halt his execution so his claim of his intellectual disability can be properly addressed.
“While evidence of Mr. Payne’s intellectual disability is not in dispute, he has never been afforded the opportunity to present this evidence to a court in Tennessee due to lack of a procedural vehicle,” the court document states. “Despite twice decreeing, ‘Tennessee has no business executing persons who are intellectually disabled,’ the Tennessee Supreme Court has shut the door to every attempt by Mr. Payne to adjudicate his claim.”
Watch Nicholas Christopher and his family speak about the murders of his mother and baby sister below in a clip from Investigation Discovery’s “Impact of Murder.” Watch the full episode about the Christopher murders here.
Payne has steadfastly maintained his innocence in the 33 years since the murders. His appellate team earlier this year filed a petition seeking DNA testing on evidence from his 1988 trial and conviction — as well as potential evidence the defense did not know existed until December 2019.
DNA testing was never done on any of the evidence in the case, which includes the newly-discovered items: a bloody comforter, bloodstained sheets and a pillow from the bedroom. Evidence in the case that was used at trial included the murder weapon, the victims' clothing and bloodstained items from the kitchen including curtains, a tablecloth, a pair of glasses, a rug and a stuffed animal.
A rape kit and fingernail scrapings from Christopher’s body were also never tested. DNA testing was virtually nonexistent at the time of the murders, which took place the same year Florida rapist Tommie Lee Andrews became the first person in the U.S. to be convicted using DNA technology.
The Shelby County District Attorney’s Office has opposed Payne’s petition for DNA testing, citing “overwhelming” evidence against him. According to the Innocence Project, District Attorney Amy Weirich has also said that the evidence shown to Payne’s legal team for the first time in December was from another case and was given to his lawyers in error.
A judge is expected to rule Wednesday on the request for DNA testing.
Payne’s defense team has been joined by a growing number of people seeking to stop his execution. A coalition of legal, faith and community groups, led by the Ben F. Jones Chapter of the National Bar Association, released a statement last month urging DNA testing on the evidence, which includes bloody bedding, a knife and fingernail clippings that could potentially hold the genetic profile of the killer.
The group also called on Tennessee Gov. Bill Lee to commute Payne’s sentence to life in prison.
“Mr. Payne is a Black man with intellectual disability who was convicted of killing a white woman and her daughter after the prosecution relied on racist stereotypes about Black men as hypersexual, drug-using super-predators,” the group’s Aug. 31 statement reads. “He is scheduled for execution on December 3, 2020, despite a constitutional ban on executing people with intellectual disability and the existence of DNA evidence that has never been tested.”
The U.S. Supreme Court has ruled that executing an intellectually disabled person violates the Eighth Amendment, which prohibits cruel and unusual punishment. According to Payne’s latest bid for relief, Tennessee has its own law forbidding the execution of mentally disabled defendants.
The law does not allow people to reopen their cases if they were sentenced to death prior to the law going into effect, however. Tennessee Rep. G.A. Hardaway, chair of the Tennessee Black Caucus of State Legislators, has announced that he will submit a bill in the next legislative session to close that loophole.
According to The Associated Press, the next session begins in January, a month after Payne is slated to die.
Editor’s note: The following story contains graphic details of multiple murders and may be too disturbing for some readers.
One thing that has never been in doubt is the brutality of the crime for which Payne was convicted.
Court records indicate that Payne, then 20 years old, had gone to Christopher’s apartment complex multiple times on the day of the murders to visit his girlfriend, who was scheduled to return home that day from visiting her family in Arkansas. When he found she wasn’t home, he left his overnight bag and several cans of malt liquor outside her door and left.
Prosecutors alleged at trial that he passed the time drinking and using cocaine, the documents say. They also argued that Payne “drove around town with a friend in the friend’s car, each of them taking turns reading a pornographic magazine.”
Authorities said Payne returned to the complex around 3 p.m., entered Christopher’s apartment and made sexual advances toward her. When she resisted, he became violent, prosecutors said.
“A neighbor who resided in the apartment directly beneath the Christophers heard Charisse screaming, ‘Get out, get out,’ as if she were telling the children to leave,” the court records say. "The noise briefly subsided and then began (again), ‘horribly loud.’
“The neighbor called the police after she heard a ‘bloodcurdling scream’ from the Christopher apartment.”
The first police officer on the scene encountered a bloody Payne, who authorities said was so covered with blood that he appeared to be “sweating blood.” When the officer asked what was going on, Payne struck him with his overnight bag, dropped a pair of tennis shoes and ran.
Officers found a “horrifying scene” inside the apartment, the court documents say. Christopher and her children were lying on the kitchen floor and blood covered the walls and floor throughout the home. Nicholas had been stabbed 12 times.
“Nicholas, despite several wounds inflicted by a butcher knife that completely penetrated through his body from front to back, was still breathing,” the records state. “Miraculously, he survived, but not until after undergoing seven hours of surgery and a transfusion of 1700 cc’s of blood — 400 to 500 cc’s more than his estimated normal blood volume. Charisse and Lacie were dead.”
Christopher had suffered 42 direct stab wounds and another 42 defensive wounds on her arms and hands, according to authorities. None of the wounds were individually fatal and her death was determined to have occurred from blood loss.
Lacie had suffered nine stab wounds to the chest, abdomen, back and head. A butcher knife was found at her feet.
“Payne’s baseball cap was snapped on her arm near her elbow. Three cans of malt liquor bearing Payne’s fingerprints were found on a table near her body, and a fourth empty one was on the landing outside the apartment door,” court documents state.
Investigators took Payne into custody later that day at a former girlfriend’s home, where he was found hiding in the attic.
“As he descended the stairs of the attic, he stated to the arresting officers, ‘Man, I ain’t killed no woman,’” the records show.
An officer testified at Payne’s 1988 trial that he “had a wild look about him,” that his pupils were contracted and that he was “foaming at the mouth” with saliva. Blood on his body and clothes matched the victims' blood types.
Cocaine residue and a needle were found in his pocket, authorities said. Payne’s lawyers argue, however, that there was no evidence their client used drugs the day of the murders.
The piece of paper that tested positive for traces of cocaine was among papers and loose change Payne said he picked up from the stairs of the apartment building after another man, who the defense maintains likely killed Christopher and her daughter, dropped it as he ran by.
“There is no record of evidence that establishes that Mr. Payne ever used cocaine or any other drugs,” his attorneys argue. "In fact, when he was arrested, Mr. Payne’s mother implored the police to test Mr. Payne for drug use, knowing the result would be negative.
“Having no reason to suspect he was on drugs, the police refused.”
Payne testified at trial that he was bloodied by his attempts to help the victims.
According to his petition for DNA testing, Payne alleges he was entering the apartment building when a man jumped from the second-floor landing and rushed passed him.
“The man, who had blood on his shirt, did not even stop to pick up the change and papers that fell from his pocket,” the petition states.
Payne’s attorneys argue that he heard moans from inside Christopher’s apartment, which was across the hall from his girlfriend’s unit. He noticed the door was ajar and went inside, where he found the gruesome scene.
“I saw the worst thing I ever saw in my life and, like, my breath just had, had tooken, just took out of me,” Payne testified.
Payne told jurors that he bent down near Christopher, who he said was still alive and gripping a knife lodged in her throat. He said he ran to the sink, thinking he would be sick, then picked up a phone to call for help, but couldn’t think of who to call.
He said he went back to Christopher, who appeared to be trying to pull the knife from her throat. He said he laid his hands over hers and tried to help her do so.
As he struggled to remove the knife, he cut his hand on the blade, Payne said. He testified that Christopher held onto him “like she was wanting (him) to help her.”
At one point, Payne said, he went to Nicholas, who was crying.
“Scared but unable to leave the crying little boy, he put his hand on the child’s back, trying to comfort him,” Payne’s petition states. “He told the boy, ‘Don’t cry, don’t cry. It’s going to be all right. I’m going to get help.’”
Payne said he went out into the hall to find a neighbor for help but saw a police car pull up outside.
“Police were about to find Mr. Payne, a young Black man and the only person at an apartment where a young white mother and her two children had been brutally attacked,” the document says.
“As soon as I left out the door, I saw a police car, and some other feeling just went all over me and (I) just panicked, just like, ‘Oh, look at this. I’m coming out of here with blood on me and everything,’” Payne testified at trial. “It going to look like I done this crime …. I saw a police getting out and …a white man at that. And that scared me even more, you know, like I didn’t have a chance, like I know he’s going to think I did this.”
Payne fled, but not before the responding officer saw him running away.
From that moment on, he became the sole focus of the investigation, his attorneys argue.
“He was arrested within hours, and despite asserting his innocence, police failed to meaningfully investigate any of the other suspects,” his petition states.
Read Payne’s petition for DNA testing below.
The Innocence Project alleges that Christopher’s ex-husband had a history of abusing her during their marriage. He was excluded as a suspect because, at the time of the murders, he was serving time for aggravated assault at Fort Pillow State Penitentiary, a minimum-security facility.
“However, an employee of the prison has since admitted that it was common for minimum security inmates to leave the prison during the day without repercussions, meaning it would have been possible for him to visit the victim and potentially perpetrate the crime while serving his sentence,” according to the Innocence Project.
Additionally, Payne was not the only person who saw a man running from the scene shortly before Payne found the victims. A man who lived in the apartment building and knew Payne for decades alleged in a 1992 affidavit that he saw Payne enter the building just before another man ran out.
“(The witness) stated that he had seen the Black man who came out of the building with Ms. Christopher on several prior occasions, and sometimes they were arguing,” Payne’s petition for DNA testing states.
Other witnesses have reportedly put the blame for Christopher’s killing on a local drug dealer to whom she was allegedly linked.
Payne’s defense, as well as his coalition of supporters, argue that prosecutors played on “racist tropes” during the trial.
“The prosecution painted Mr. Payne as a sexually aggressive Black man on drugs looking for a white woman to attack,” the statement from the bar association chapter reads. “The prosecution argued that Ms. Christopher had been sexually assaulted, although she was discovered fully clothed, and made repeated references to her ‘white skin’ in front of the jury.”
Payne was convicted of two counts of first-degree murder and one count of first-degree assault with the intent to commit murder.
Listen to Payne’s family talk about him and his fight for justice below, courtesy of the Innocence Project.
During the sentencing phase, Payne’s defense attorney called his mother and father to the stand, as well as his girlfriend, who all spoke about his character. His parents testified that he had no criminal record, no history of drug or alcohol abuse and that he worked with his father as a painter.
Bobbie Thomas, the girlfriend who lived across the hall from Christopher, also spoke about his character and his good relationship with her children, who saw him as a father figure. Thomas, who had met Payne at church, described him as a caring man who devoted time and energy to them.
Like his parents, Thomas testified that Payne did not drink or use drugs.
Victim impact statements were not allowed in death row cases in 1988, but Christopher’s mother, Mary Zvolanek, was called to testify about how her grandson missed his mother and sister.
“He cries for his mom. He doesn’t seem to understand why she doesn’t come home,” Zvolanek testified, according to documents. “And he cries for his sister, Lacie. He comes to me many times during the week and asks me, ‘Grandmama, do you miss my Lacie?’ And I tell him yes. He says, ‘I’m worried about my Lacie.’”
The prosecutor, in arguing for the death penalty, detailed the boy’s ordeal during the attack on his family.
“Nicholas was still conscious. His eyes were open. He responded to the paramedics,” the prosecutor said, according to records. “He was able to follow their directions. He was able to hold his intestines in as he was carried to the ambulance. So he knew what happened to his mother and baby sister.”
Jurors sentenced Payne to death for each of the murders and 30 years for the assault on the boy.
Read Payne’s federal complaint seeking to halt his execution below.
His attorneys appealed the death sentence based on the allowance of Zvolanek’s testimony, arguing that it was prejudicial against their client, and the case went before the U.S. Supreme Court. The high court overturned two of its own prior rulings and decided that testimony in the form of victim impact statements could be allowed in death penalty cases.
Christopher’s sister, Angie Johnson, told Investigation Discovery’s “Impact of Murder” last year that her mother’s testimony was “everything” when it came to ensuring Payne received the death penalty.
“He couldn’t understand where they had gone and why he was left behind,” Johnson said.
“I am very glad that my grandmother made the statement that she did,” Nicholas Christopher said last year. “If she hadn’t, there’s no telling how many innocent people that have suffered through horrible ordeals would have their voice lost.”
In the federal complaint filed Monday, Payne’s attorneys argue that he has significant intellectual deficits. His most recent test, performed in September by a clinical psychologist, shows he has an IQ score of 72, the court document states.
Correcting for outdated norms on the test, his score is 68.4, his lawyers claim.
“The standard error of measurement would place his IQ as low as 63.4,” the document says.
According to those who know him, Payne was an exceptionally poor student who could barely read or write. His school records indicate his functioning in middle school was two grade levels below his actual grade, and got worse as the subject matter became more difficult.
“When Pervis took a test he invariably would fail,” his middle school social studies teacher, Evelena Flowers Sloan, said in a 2017 affidavit. “I would let him retake the test and sit and help him get the answers to the test. I would read the questions to him, and sometimes I would just have to give him the answers.”
His family detailed his struggles in their own affidavits.
According to his father, Carl Payne, it took Pervis Payne, the oldest of the Payne children, longer to walk and talk than it did his siblings. He was born premature, according to his sister, and didn’t develop normally until he was about 2 years old.
As a child, he stuttered and, as an adult, his problems continued. Because of his issues, he worked with his father, who is also a minister.
“Pervis could follow simple directions or instructions that I gave him orally, but I generally had to repeat them several times to be sure he understood,” Carl Payne said. "If the instructions had too many steps he could not follow them. I never gave Pervis written directions.
“I tried to teach him, but he was not able to use a tape measure or ruler and figure out the amount of paint needed. I could not let Pervis bid on a job.”
Payne’s youngest sister, Rolanda Holman, said her brother, who she calls Bubba, could not follow more than basic directions and when he was younger and living at home, he could not do more than simple chores.
“Sometimes Bubba would iron his own clothes and burn a hole in them because he had the temperature too high. When it came to good materials, Mom would iron his clothes,” Holman said. “Mom would not let him wash clothes. He knew how to wash his paint clothes but as far as washing good clothes, Mom washed those. He may put in too much washing powder.”
Neighbors wrote that Pervis Payne was easily duped by people.
“People would take advantage of Pervis. If there was anything you needed he would do it,” Vera Wherry said in her affidavit. “At times people were using him to drive them here and there. Since Pervis worked with his dad, he had his own ride and money for gas.”
Carl Payne agreed that his son could be “tricked and fooled by others” but said his son never could see it that way.
Dr. Daniel Martell, the psychologist who performed Pervis Payne’s September testing, wrote in his report that Payne has “significantly subaverage intellectual functioning.”
“Mr. Payne exhibits significant deficits or impairments in all three domains of adaptive functioning (conceptual, social and practical), at the level of ‘mild’ to ‘moderate’ severity,” Martell wrote. “His adaptive impairments are clearly related to his underlying cognitive limitations.”
Martell wrote that he believed Payne’s deficits originated in his developmental period and that anecdotal, contemporaneous and empirical data from testing, family and friends appeared to support Payne’s claims of being intellectually disabled.
“Based on these findings, is it clear that Pervis Payne meets all of the criteria for a diagnosis of intellectual disability,” Martell wrote.
The AP reported that Payne is not the first Tennessee death row inmate to seek relief based on alleged intellectual disability. The U.S. Supreme Court in July declined to hear the case of David Keen.
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