Innocence Lost: Man serving life sentence for murder fights to have DNA, other evidence heard

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David Payne, who is serving a life sentence on a second-degree murder charge from 1993. Courtesy/OKLAHOMA DEPARTMENT OF CORRECTIONS
Just after 4 p.m. on Feb. 22, 1993, David Hugh Payne sat in his vehicle, waiting for the stoplight to turn.

Payne, who had just finished his shift as head groundskeeper at Cameron University in Lawton, would later say that while waiting at that light, he considered driving directly to his parents’ house — he had promised to pick his mother up at 5:15 p.m. so they could watch his son’s wrestling match in Duncan later that day.

Instead, he said, he decided to go home to his apartment, change and take a shower and go pick up a video game from his friend’s house for his kids.

That was the decision, he said, that might have changed everything.

“I stopped at the stoplight and was thinking ‘I should go there first. I need to go there,’” Payne told The Frontier in a telephone interview. “And I didn’t do it. You know how you get that intuition feeling telling you that you need to do something? I didn’t listen to myself. That right there. I should have been there. I could have been there.

“That right there, that’s what has haunted me the worst.”

Nearly 26 years after that moment of indecision at the stoplight, Payne remains a prisoner serving a life sentence on a second-degree murder charge for the killing of his mother, 64-year-old Clarice Jeanette Payne, despite the existence of DNA evidence his attorneys say proves he’s innocent.

Payne confessed to Lawton police detectives of murdering of his mother in 1993, but later recanted his confession. In 2008, his case was taken up by the Innocence Project, a national organization that helps to exonerate wrongfully convicted people by using DNA testing and analysis.

The organization has had several high-profile exonerations of wrongfully convicted people in Oklahoma recently using DNA analysis, including the exonerations of Johnny Tallbear in Oklahoma County and Perry Lott in Pontotoc County.

For years, Payne and his attorneys fought to have evidence from the crime scene undergo forensic DNA testing. But the results were not enough to convince a Comanche County judge and the Oklahoma Court of Criminal Appeals earlier this year that a hearing should be held to either vacate Payne’s life sentence or give him a new trial.

Now, with few legal options left, it’s unclear whether Payne’s efforts to try and prove his innocence will bear fruit.

Comanche County District Attorney Fred Smith did not return messages from The Frontier seeking comment for this story.

The murder
Just before 4 p.m. on the day she was found murdered in her home, Clarice Payne called her husband, Hugh, at his workplace, according to police records. Hugh was not in the office, so she asked one of his co-workers to have him call her back.

When Hugh returned and attempted to call her back around 4:50 p.m., there was no answer, according to police. Hugh arrived at his house at 5:05 p.m., entered the home through the garage, walked through the kitchen to the bedroom and discovered Clarice’s lifeless body hogtied on the bed.

She was fully clothed, police reported, but her hands had been tied behind her back with an extension cord that had been threaded through and plugged in to the cord of a heating pad that had been wrapped around her ankles to bind her feet. She was blindfolded with a green checkered dish towel that was held in place by a plastic Dillard’s garment bag that had been wrapped around her eyes, nose and lower forehead and tied behind her head.

A nearly 10-inch butcher knife remained lodged in her chest, its tip sticking out of her back.

An autopsy would later reveal she had been stabbed twice with the knife. The broken blood vessels in her cheeks and nose indicated she had been severely beaten about the face, and reddening around the neck possibly indicated possible strangulation. The medical examiner also found bruising on her wrists and ankles, indicating that she was alive when she was hog-tied.

There were also defense wounds on both hands, according to the medical examiner, with the heaviest wounds appearing on her left hand.

Phone records show that Payne had called his mother from work shortly before he left at 4 p.m. on the day of the murder. At 4:15 p.m., Payne called his ex-wife from the phone in his apartment, according to police. Payne said he then sat on his couch and smoked marijuana. He then left his house and went to pick up a video game from his friend at 5:10 p.m., which his friend would later confirm to police. The two smoked marijuana together until about 5:15 p.m., when Payne called his mother to tell her he was running late, though no one answered the phone, he said. He then headed to his parents’ house, he said.

Shortly before 5:30 p.m., David Payne arrived at his parent’s house and found his dad in the garage, on the phone with emergency operators.

“I got there and my dad is going ape crazy in the garage, yelling and on the phone with 911,” Payne said. “I pulled up and asked what’s wrong. He said ‘It’s your mom.’ I started to go in and he said ‘don’t go in. Don’t go.”

David Payne did not go into the house, according to police, but took the phone and directed emergency responders to the house.

After police had removed the body and cleared the scene, they walked through the house with Payne and asked him if anything was missing. Payne said he did not notice anything missing, and police then turned the house key over to him.

Payne and others were questioned by police shortly after the murder, and investigators gathered the evidence at the scene — Clarice Payne’s clothing, the knife, the ligatures used to bind her, the Dillard’s bag and the dish towel. Police also found a “reddish blond wad of hair” in the kitchen and reported that one of the outside door knobs had blood on it, though those two items could not be located years later once Payne began to appeal his conviction, according to court records.

Though the evidence was submitted to the OSBI, no fingerprints were found on the items and no DNA testing was performed on the items, the court records state.

On March 23, 1993, Payne was asked by investigators to come in and take a polygraph test. He did not bring an attorney.

“I didn’t think I needed it,” Payne said.

After the polygraph exam, he was told he had failed.

“The guy giving it to me said ‘you can’t leave. You’re not going anywhere. You’re getting the death penalty,’” Payne said.

Payne, who had a prescription for Xanax, said he was given his medication by the detectives.

“They said, ‘here. You’ll need these,” Payne said. “I was sitting there in the room popping Xanaxs freaking totally out. Then they took me to the interrogation room”

He was then interviewed by two Lawton police detectives.

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“I kept saying ‘I didn’t do it.’ They said ‘We can’t help you if you keep telling us that.’ I said ‘I don’t remember doing it and I didn’t do it,’” Payne said. “They said ‘If you keep telling us you don’t remember doing it, we’re going to put you in a nuthouse and shoot you up with drugs the rest of your life.’”

For hours, Payne was interviewed by detectives. Eventually, he confessed to killing his mother.

“I just wanted them to leave me alone. I was broke down,” Payne said. “I was eating Xanaxs and I just broke down. I didn’t want to hear it. I couldn’t do anything else. I didn’t know what to say. I just wanted them to leave me alone.”

At one point, Payne said he asked whether he should have an attorney, but none was provided at that time.

“I said ‘can I get a lawyer?’ They said ‘If you get a lawyer, we can’t help you,’” Payne said. “After so long, I just gave up. It was weak on my part. I said ‘sure whatever’ just so they would leave me alone. I didn’t think anybody would believe that.”

Prosecutors allege Payne, who was addicted to crack cocaine and Xanax at the time of the murder, had asked his mother for $20 so he could buy drugs. When Clarice Payne refused to give him the money, Payne beat her and murdered her, investigators state. A keyring belonging to Clarice Payne was later found in David Payne’s possession, though Payne said he was given the keys and keyring by police after the murder.

Payne’s attorneys from the Innocence Project said Payne gave at least three different stories about how the murder happened, and none of those confessions were a match with the evidence at the crime scene.

False confessions are not unheard of, and Thompson said false confessions occur in about one-third of all wrongful convictions.

“Over the course of that interrogation, which was very clearly coerced I would say, none of the facts he testified to match up to this crime scene,” said Karen Thompson, Payne’s Innocence Project attorney.  “He gave descriptions to the police that didn’t match how the body was found. And obviously if there’s a knife left in the victim’s chest, that’s not something you’re going to leave out of a confession.”

The day after the confession, Payne was charged with the murder of his mother. He was given a public defender to represent him. Payne said he told his attorney that he did not kill his mother and the confession was false, and the attorney said he could get the confession thrown out.

However, three weeks later, Payne said his attorney advised him to plead guilty to the second-degree murder charge and he would likely serve less than a decade. Fight it, and it’s likely to result in the death penalty, Payne said the attorney told him.

So on June 17, 1993, Payne entered a blind plea of guilty to second-degree murder. He was sentenced to life in prison.

“Basically, his own attorneys said they’re going to kill you so take whatever they give you,” Thompson said. “So rather than face the death penalty, he just accepted first-degree murder and life.”

The experience was a gut-wrenching one, Payne said.

“I’m sitting on the stand, crying the whole time,” Payne said. “I kept thinking to myself ‘I’ve got to get up and stand up,’ but I was too much of a coward to do it because I was so afraid of the death penalty. I didn’t know what they were going to do.”

The appeal

Thompson said the road to Payne’s appeal has been an uphill battle. The district attorney’s office, she said, has fought every step of the way — from providing video and audio recordings of Payne’s police interviews (those were never turned over to Payne’s Innocence Project attorneys) to turning over evidence for DNA analysis.

“I wish that we weren’t fighting this kind of stuff. I don’t really understand it. If your conviction is true, if you are clear that someone did something, then DNA testing is only going to underscore your conviction,” Thompson said. “It’s not going to undermine it, unless it’s wrong.”

For years, Payne served his time without appealing his sentence. Then, in the early 2000s, his cellmate’s mother encouraged him to reach out to the Innocence Project after hearing his story.

“His mom basically told me ‘I’m going to write them or you’re going to write them.’ So I did,” Payne said. “I didn’t really think nobody would be interested. It surprised me when they started corresponding with me back and forth.”

In 2008, the Innocence Project agreed to take a look at his case. Payne was elated.

“When they took it in 2008, I nearly fell out,” Payne said. “Never in my wildest dreams did I think anybody would really care.”

Progress on Payne’s case progressed slowly until March 2013, when he filed his first application for post-conviction relief. A few months later, Gov. Mary Fallin signed the state’s Post-Conviction DNA Act, which allows individuals sentenced to 25 years or more to have access to evidence for the purposes of DNA testing in their appeals if there is a chance the DNA analysis could help prove innocence.

In May 2014, a Comanche County judge granted Payne’s request for post-conviction DNA testing, but the district attorney’s office appealed the decision to the Oklahoma Court of Criminal Appeals.

Besides some legal technicalities, the state said that the totality of evidence against Payne — including his confession — far outweighed any possible favorable DNA evidence that might be found in testing. In addition, the length of time that had passed would also be prejudicial against the state, since at least four witnesses had died since 1993.

The Court of Criminal Appeals ruled that all of the requirements for post-conviction DNA testing had not yet been met, vacated the judge’s order and kicked the case back down to Comanche County.

In February 2015, the Comanche County judge again granted Payne’s application for DNA testing. That ruling stated “the absence of Petitioner’s genetic profile on material evidence in addition to the inexplicable presence of an unknown male’s genetic profile on that same evidence, one that yields a match either in the OSBI’s DNA database or the FBI’s Combined DNA Index System (“CODIS”) — would clearly cast doubt on the veracity of Petitioner’s confession and necessarily undermine confidence in his conviction.”

The ruling was appealed by the district attorney’s office, but this time it was upheld by the Oklahoma Court of Criminal Appeals.

The DNA

Twelve items were initially submitted to the forensic DNA laboratory Bode Cellmark Forensics in Virginia, including Clarice Payne’s clothing, the ligatures used to bind her, the plastic Dillard’s bag, and the murder weapon.

Court records show there was concern that any foreign DNA that might be present would be minuscule amounts of “touch DNA” that may have degraded in the more than two decades since the murder, so samples taken from the clothing were combined, as were the samples taken from Clarice Payne’s fingernails.

The type of DNA testing done is known as Y-STR testing, which exclusively targets genetic markers in the Y chromosome present only in males. With this type of testing, a son’s genetic material would have the same genetic markers as his father and all paternal forbearers. For example, David Payne’s DNA profile would show up identical to his father Hugh’s in the Y-STR testing results.

Five of the 12 items submitted to Bode Cellmark were found to have partial Y-STR DNA profiles on them that were left by at least two males.

But there was a problem, Bode Cellmark wrote in its analysis — the amount of DNA that could be recovered was below the lab’s threshold to make any conclusions beyond the fact that there were at least two different male genetic profiles.

“Due to the possibility of allelic drop out, no conclusions can be made on this mixture profile,” Bode Cellmark’s analysis stated.

Later, Payne’s attorneys would be allowed by a judge to test for DNA on nail clippings that had been taken from Clarice Payne’s fingers, over the objections of the district attorney’s office.

The results on the fingernail clippings had the same issues — two male genetic profiles were present, but the indicators were still below Bode Cellmark’s threshold to provide any profile analysis.

And yet, there was nothing in Payne’s confession about a second person being involved.

“It’s a weak profile. I’m not saying it’s a strong profile, but it does show it was more than one person,” Thompson said. “And to have it in such a probative place as under her fingernails, it’s enough.”

Not excluded

At the time of the murder, Payne had been using crack cocaine for approximately 10 years, according to court filings. His alleged dealer was a man who also worked for Cameron University under Payne’s supervision.

Payne said the man knew he would often get the money he would use to buy drugs from his mother, and a couple of days before the murder Payne said he saw the man and his roommate — an individual who had red hair — driving by his parents’ house.

The day of Clarice Payne’s murder, when David Payne called his mother from work, that same man was nearby listening, Payne said. Shortly after Payne made his call to tell his mother he would pick her up at 5:15, he said he overheard that same man make a phone call and say something to the effect of “steaks will be on at 5:15.”

Payne said he had suspicions that the man and his roommate may have been involved in his mother’s murder. It appears that, at least initially, police did as well. The man had been brought in by the Lawton Police Department for questioning shortly after Clarice Payne’s murder, but nothing ever came of it.

While the Bode Cellmark was performing its tests on the evidence, a private investigator working for the Innocence Project was able to track down the man. In an interview with the private investigator, the man admitted to selling Payne drugs, including crack. The man also agreed to provide a DNA sample.

Though the man’s roommate died in 2016, the former roommate’s son agreed to provide a DNA sample. Both samples were sent to Bode Cellmark.

After the lab stated it could not do a detailed analysis of the partial profiles found on the crime scene evidence, the Innocence Project brought in veteran forensic analyst Meghan Clement, a retired director of operations a consultant for Bode Cellmark, to look at the raw data.

Bode Cellmark’s threshold for providing detailed DNA analysis is fairly high, compared to other labs, Clement wrote in her analysis. However, though it fell below the reporting standards, there was enough DNA evidence taken from Clarice Payne’s clothing and under her nails to do some analysis, Clement wrote.

And Clement’s analysis of the “below threshold” DNA data showed that Payne and his father could be excluded as a suspect.

But the man who had once been Payne’s drug dealer could not be excluded as a suspect, according to Clement’s analysis.

“What was more important, for our purposes, was we couldn’t exclude the man who had been dealing drugs to him, who he (Payne) has always thought was the actual perpetrator of the crime,” Thompson said.

There were also major issues with the timeline police provided for the hours and minutes leading up to Clarice Payne’s death, Thompson said.

“We tracked out David’s steps according to the police report and that timeline and it was impossible physically for him to have done what they said he did in the timeline,” Thompson said.

If Payne had left work and went straight to his mother’s house at 4 p.m., as he had allegedly told police in his first confession, it would give him only 15 minutes to hog tie her, kill her and make the nearly 12-minute drive to his apartment to call his wife at 4:15 p.m., Thompson said.

Had Payne gone home after work, called his wife at 4:15 and left immediately afterward to make the 12-minute drive to his mother’s house, as he told police in his second confession, he would have had less than 30 minutes to complete the murder and leave unseen before his father arrived home at 5:05 p.m., make the nine-minute drive to his friend’s house, show up with no noticeable blood on his clothing to pick up the video game, call his mother’s house at 5:15 and then return to his parent’s house just before 5:30 p.m., Thompson said.

The DNA evidence, the conflicting confessions, and the timeline led Thompson to believe that her client was innocent.

But none of it would be brought up in court. Though Bode Cellmark’s analysis found at least two DNA profiles on the evidence, the lack of a solid DNA profile in its analysis led a Comanche County judge to deny Payne’s request for a hearing to throw out his conviction or whether a new trial was warranted.

Thompson appealed, but in September the Oklahoma Court of Criminal Appeals upheld the Comanche County judge’s decision to not grant a hearing, stating the limited findings of the DNA analysis by Bode Cellmark were not favorable to Payne, and that Clement made assumptions that DNA from only two males — rather than at least two, as the lab findings state — was present.

Payne “has not made a convincing argument that Clement’s conclusions, apparently based on assumptions, provide clear and incontrovertible data, and that the use of such techniques provides a deeper or more thorough examination of the DNA test results than the Bode reports,” the OCCA ruling states.

The denial of his appeal was like a gut-punch, leaving Payne on the edge of despair, he said.

“The whole process has been crazy,” Payne said. “I don’t understand the reasoning on some of it.”

It also leaves Payne with few legal options, Thompson said.

“I think there are a lot of unanswered questions,” Thompson said. “It’s a shame we can’t pursue some of them because we don’t have the video (of Payne’s confessions). We can’t pursue some of them because the evidence was destroyed. There are questions, and unfortunately, I think they’re going to be dangling for quite a while.”

Payne said if he ever does win his freedom back, he hopes to repair his relationship with what family members he has left, and to take some time to himself.

“As soon as I walked out of the court room,” Payne said, “I would head straight to the cemetery to my mom’s grave, and just have a talk.”

[Correction: an earlier version of this story misidentified the county in Perry Lott was convicted in as Carter County, rather than Pontotoc County.]

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Clifton Adcock

Senior Staff Writer

A veteran investigative reporter who has covered eastern Oklahoma for more than 15 years, Clifton joined The Frontier in April 2017. A native of southeastern Oklahoma, he has covered numerous issues from criminal justice to politics for publications including the Tulsa World, the Oklahoma Gazette, and Oklahoma Watch. Clifton holds a master’s degree in journalism from the University of Oklahoma. Clifton can be reached at clifton@readfrontier.com. Follow him on Twitter @cliftonhowze
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