Pervis Payne: Death row inmate nearing execution granted bid for DNA testing in double murder

MILLINGTON, Tenn. — Tennessee death row inmate Pervis Payne, who is scheduled to die Dec. 3 for the 1987 double murder of a Millington woman and her 2-year-old daughter, has been granted his bid for expedited DNA testing in the case.

A Shelby County judge on Wednesday issued a 48-page order granting, in part, Payne’s petition for DNA analysis of evidence in the June 27, 1987, stabbing deaths of Charisse Christopher, 28, and her 2-year-old daughter, Lacie Jo. Christopher’s 3-year-old son, Nicholas, was also stabbed but survived.

>> Related story: Lawyers for death row inmate Pervis Payne seek to halt Dec. 3 execution for 1987 double murder

Shelby County Judge Paula Skahan ruled that Payne is entitled to the testing under the state’s Post-Conviction DNA Analysis Act of 2001. The law allows DNA analysis if a court finds that:

• A reasonable probability exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through DNA analysis;
• The evidence is still in existence and in such a condition that DNA analysis may be conducted;
• The evidence was never previously subjected to DNA analysis or was not subjected to the analysis that is now requested which could resolve an issue not resolved by previous analysis; and
• The application for analysis is made for the purpose of demonstrating innocence and not to unreasonably delay the execution of sentence or administration of justice.

Skahan found that Payne’s attorneys had met the burden of establishing that he fit all four requirements of the law.

“I do find that DNA testing is warranted in this case, and I’m granting the petition,” Skahan said Wednesday.

Vanessa Potkin, director of post-conviction litigation at the Innocence Project and a member of Payne’s defense team, said in a statement that Skahan’s “thoughtful and reasoned decision” to order the DNA testing is “just and in line with Tennessee’s clear DNA testing law.”

“When DNA evidence exists in a death penalty case, as it does here, it should always be tested to avoid the irreversible act of executing an innocent man,” Potkin said.

Payne has steadfastly maintained his innocence in the 33 years since the murders, which shocked the small city of Millington. Christopher suffered 84 stab wounds, half of which were defensive wounds inflicted as she tried to protect herself and her children.

Lacie suffered nine stab wounds and Nicholas was stabbed a dozen times.

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, who was the boyfriend of the family’s neighbor, became a suspect when he was seen by a police officer leaving the apartment building, his clothes covered with blood. At his 1988 trial, Payne testified that he had stumbled upon the blood-soaked crime scene and had gotten blood on his body and clothing as he tried to help Christopher and the children.

He claimed he had encountered the real killer, another Black man, as he entered the building to go to his girlfriend’s apartment.

Along with the DNA testing, Payne’s attorneys are seeking a stay of execution so he can properly argue claims that he is intellectually disabled. They filed a federal complaint Monday requesting the delay.

Potkin said Wednesday that her client should never have been sent to death row.

“The U.S. Supreme Court has banned the execution of people with intellectual disability, making the State’s pursuit of Mr. Payne’s execution all the more appalling,” Potkin said.

The Supreme Court has ruled that executing an intellectually disabled person violates the Eighth Amendment, which prohibits cruel and unusual punishment. According to Payne’s 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 scheduled to die.

Payne’s 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.

Read the judge’s order granting DNA testing below, courtesy of Nashville Scene.

Evidence in the case that was known to Payne’s trial lawyers 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.

Skahan’s order allows testing of all the items except for Christopher’s vaginal swabs, her fingernail scrapings and the clothing she and her daughter were wearing when they were killed. As of Payne’s Sept. 1 hearing on his request for DNA analysis, those items could not be found.

The vaginal swabs no longer exist, the state conceded at the hearing.

“Were these items still available for testing, this court would have been inclined to permit their testing,” Skahan wrote.

Read Payne’s petition seeking DNA testing of the evidence below.

The Shelby County District Attorney’s Office opposed Payne’s latest petition for DNA testing, citing “overwhelming” evidence against him. According to the Innocence Project, District Attorney Amy Weirich has also said that the so-called new evidence, the bedding, was erroneously presented to Payne’s legal team in December.

The items were from another case, Weirich said.

The bedding was not listed in Skahan’s order for DNA testing.

Prosecutors argued at Payne’s Sept. 1 hearing that the physical evidence may have been contaminated since the crime was committed. Prosecutors also argued that Payne’s petition, filed less than five months before he is slated to die, was designed to delay his execution.

His defense team indicated at the hearing, however, that the DNA testing could be completed within 60 days.

Read Payne’s federal complaint seeking to halt his execution below.

A previous petition filed by the defense in 2006 seeking DNA testing of the evidence was denied. In her ruling, Skahan drew a clear line between the two petitions, pointing out that in the 2006 request, Payne sought to have only the rape kit, his clothes and the victims' clothing tested.

By that point, the vaginal swabs from Christopher’s rape kit no longer existed. In addition, Payne testified at the murder trial that he got the victims' blood on his body and clothing when he discovered the crime scene, located across the hall from his girlfriend’s apartment, and tried to help Christopher and the children.

Skahan wrote that the outcome of DNA testing on the clothing would not have been enough to change jurors' minds about Payne’s guilt in the murders.

“Even if the petitioner did not have the victims' blood on his clothing and the victims had either no blood of the petitioner or the blood of another person on their clothing, those facts, standing alone, would not have been sufficient to undermine confidence in the jury’s verdict in light of the other evidence presented at trial,” the judge wrote.

The same cannot be said about Payne’s new petition, which seeks to have tested items that Payne would not have touched if his story about finding the dying family is true.

In seeking to have those items tested, the judge ruled, Payne “increases his chances of locating exculpatory evidence which would undermine confidence in the outcome of the jury verdict.”

“The more items containing a third party’s DNA, the more likely it would appear Mr. Payne did not commit these offenses,” Skahan wrote. “Conversely, if Mr. Payne’s DNA is found on several of the items, confidence in the jury’s verdict would be bolstered.”

Skahan also found that the possibility of finding DNA, regardless of who it belongs to, is far greater now than it would have been in 2006, given advances in DNA technology and the expanded pool of profiles in the FBI’s Combined DNA Index System, or CODIS.

Present-day DNA testing gives Payne the ability to identify potential alternate suspects who may be included in the CODIS database.

“This court concludes exculpatory DNA results in this case, had they been presented to the jury, would have created a reasonable probability Mr. Payne would not have been convicted of first-degree murder,” the judge wrote.

The court ruling detailed some of the evidence against Payne, which included testimony from neighbors who were barbecuing on the afternoon of the murders and heard screaming from Christopher’s apartment. Two women sunbathing in the yard heard the back door of the apartment slam three or four times as someone tried to shut it.

The women saw a dark hand with a gold watch reach out each time and pull the door shut. Police later found Christopher’s body on the kitchen floor, her right leg near the door.

Blood was smeared all over the lower part of the wall and the back door, an indication that she had tried desperately to get away from her assailant.

Authorities said Payne was wearing a gold watch when he was found hiding in an ex-girlfriend’s attic later that day.

Nancy Wilson, the building manager, lived in the apartment below Christopher and testified that she heard a loud commotion from upstairs and Christopher screaming, ‘Get out, get out,’ during the murders. Wilson said she heard someone wash up in the bathroom upstairs and walk out the front door, slamming it shut, just before police arrived and an officer encountered Payne on the stairwell from the second floor.

Skahan’s ruling also pointed to an exchange between a prosecutor and Payne during his cross-examination at his 1988 trial. Payne was questioned about how he got bloodstains on his left leg, which he answered had occurred “when (Christopher) hit the wall.”

“When she hit the wall, she got blood on you?” the prosecutor asked.

“When she splashed. It was blood — a lot of blood on the floor,” he said.

Payne said Christopher “hit against the wall when she fell back.”

He also testified, however, that Christopher had “reached up and grabbed” him as he tried to help her pull the murder weapon from where it was embedded in her neck. It was unclear from the brief exchange cited in the court ruling whether Payne meant that she’d fallen against the wall as she grabbed him, or if his testimony reflected a moment during the murder itself.

Additional evidence against Payne included several cans of Colt 45 found on a table in Christopher’s apartment. The cans contained his fingerprints.

His baseball cap was also found on Lacie’s body.

Payne claimed he ran from the scene that day because he panicked after finding the bodies. He knew Christopher through his girlfriend, who, like Christopher, was a single mother and had become friendly with her.

“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.”

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