IRVIN A. PAYNE A/K/A IRVIN ANDREW PAYNE APPELLANT
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 06/23/2017
HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON.
ROGER T. CLARK TRIAL JUDGE
ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY:
HUNTER NOLAN AIKENS GEORGE T. HOLMES
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
KATY TAYLOR GERBER JOSEPH SCOTT HEMLEBEN JASON L. DAVIS
DISTRICT ATTORNEY: JOEL SMITH
J. WILSON, P.J., McCARTY AND C. WILSON, JJ.
A grand jury for the First Judicial District of Harrison
County indicted Irvin Andrew Payne ("Payne") for
unlawful possession of a firearm by a convicted felon (Count
I) and possession of a controlled substance (Count III).
After a jury trial, the jury found Payne guilty on both
counts. The trial court sentenced Payne to serve ten years on
Count I and three years on Count III, to run consecutively
for a total of thirteen years in the custody of the
Mississippi Department of Corrections ("MDOC").
Following the denial of Payne's motion for a judgment
notwithstanding the verdict ("J.N.O.V.") or
alternatively a new trial, Payne appealed, raising two
issues: (1) whether Count III of the indictment was
defective; and (2) whether Payne received ineffective
assistance of counsel. After a thorough review of the record, we
reverse Payne's conviction and sentence on Count III of
the indictment, render a judgment dismissing that count, and
deny Payne's ineffective-assistance-of-counsel claim
without prejudice to his right to file a separate motion for
On February 9, 2015, narcotics officers Sergeant Aaron Fore
("Fore") and Detective Thomas King
("King") of the Gulfport Police Department were
patrolling the 20th Street and 31st Avenue area in Gulfport,
Mississippi, in response to citizen complaints about drug
Around 7:25 p.m., Fore and King were traveling northbound on
31st Avenue, a two- lane residential street, when they
noticed a purple 1995 Chevrolet Lumina ("Lumina")
parked facing northbound in the southbound lane. A man was
standing near the Lumina talking to the occupants, but he
quickly turned and walked away upon seeing the officers'
patrol vehicle. The Lumina's driver then merged into the
correct lane (the northbound lane) in front of the officers
and immediately turned right onto 21st Street without using a
Fore and King proceeded to follow the Lumina onto 21st
Street, and King activated the patrol vehicle's blue
lights to conduct a traffic stop for failure to give a turn
signal. The driver did not stop the Lumina, but instead made
a right turn onto 30th Avenue at the next intersection. At
that point, King activated the sirens and continued to follow
the Lumina onto 30th Avenue. While traveling down this
well-lit street, Fore saw one of the Lumina's occupants
throw an unknown object out of the front-passenger window.
After a short distance, the Lumina's driver made another
right turn onto 20th Street and finally came to a stop.
King exited the patrol vehicle-with Fore a few steps
behind-and approached the Lumina's passenger side. King
testified that he smelled the odor of marijuana coming from
the Lumina. When King looked through the rear passenger
window, he saw "a large rifle laying on the center
console, muzzle facing forward, stock to the rear." The
driver of the Lumina, later identified as Payne, had his arm
on top of the rifle as though he was trying to hide the rifle
or push it away. King shouted, "Gun!" to Fore, who
was approaching the Lumina from the driver's side, and he
instructed the Lumina's occupants to put their hands
where he could see them. King then opened the rear passenger
door, retrieved the rifle, and put it on top of the
Lumina's trunk. Fore took the gun and secured it in the
patrol vehicle. By that time, Detectives Larry McCook, Jr.
("McCook") and Joey Weust ("Weust") had
arrived at the scene.
After securing the rifle, King "pulled both of the
occupants out of the vehicle  [and] detained them in order
to do a probable cause search" on the basis of the odor
of marijuana emanating from the Lumina. King then left the
scene to look for the item that was thrown from the passenger
window; he found nothing and returned to the scene of the
traffic stop. Meanwhile, McCook searched Payne and found a
small plastic bag containing a "milky, rock-like
substance" in Payne's pocket. McCook turned the bag
over to King, who logged the substance into evidence and sent
it to the crime lab for testing.
The officers arrested both Payne and Latrevia Donwell
("Donwell"), Payne's passenger in the Lumina. A
grand jury for the First Judicial District of Harrison County
indicted Payne for unlawful possession of a firearm by a
convicted felon (Count I) and possession of a controlled
substance (Count III). The indictment alleged
"ETHYLONE" as the Schedule I controlled substance
that Payne illegally possessed.
At trial, Payne testified in his own defense. Regarding Count
I, Payne repeatedly denied knowing about or seeing a rifle in
the car or that a rifle was next to him or on the center
console at any point in time. But Fore testified that he
looked into the back seat and saw "the butt stock of a
rifle on top of the center console sticking behind the driver
into the backseat compartment." King also testified that
the rifle was "laying directly on top of the center
console between the driver and passenger" and added that
"none of it [i.e., the rifle] was in the back seat. It
was all on top of the center console." Both Fore and
King testified that Payne's arm was on top of the rifle
when King secured it.
As for Count III, Payne admitted the drugs found in his
pocket at the traffic stop were his. He testified that he
obtained the drugs at a motel in Gulfport before Fore and
King pulled him over, and that he believed the drugs to be
"MDMA," which is more commonly known as ecstasy-a
Schedule I controlled substance. Payne also testified he knew
the drugs were illegal.
Laura Faulks ("Faulks"), a drug analyst with the
Mississippi Forensics Laboratory, testified as an expert in
the field of drug analysis. Faulks performed a chemical
analysis on the substance the police recovered from
Payne's pocket. At trial, she testified that (1) her
analysis "detected the compound ethylone in the
sample"; (2) the sample weighed 0.16 grams; and (3)
ethylone is a Schedule I controlled substance that has
"many names," including
"methylenedioxymethcathinone" or "beta keto
MDEA." Faulks did not provide any other names for the
substance or establish ethylone as MDMA or any other
enumerated Schedule I controlled substance.
After trial, the jury found Payne guilty of both counts. The
trial court sentenced Payne to serve ten years on Count I and
three years on Count III, to run consecutively for a total of
thirteen years in the custody of the MDOC. Payne subsequently
filed a motion for a J.N.O.V. or alternatively a new trial.
In his post-trial motion, Payne contended that the trial
court erred when it denied Payne's motion to suppress
evidence procured from the warrantless stop and search of the
Lumina on February 9, 2015, and when it denied Payne's
motion for a directed verdict on the basis that Payne had
knowledge of the rifle found in the Lumina.
Payne timely filed his notice of appeal on February 26, 2018.
He raises two issues on appeal: (1) whether Count III of the
indictment was defective; and (2) whether Payne received