Payton v. Boomtown Casino
| Docket Number: | 2010-CC-00046-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 05-17-2011 Opinion Author: Roberts, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Gaming - Due process - Spoliation of evidence Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Myers, Barnes, Ishee and Carlton, JJ. Non Participating Judge(s): Maxwell, J. Procedural History: Admin or Agency Judgment Nature of the Case: CIVIL - STATE BOARDS AND AGENCIES |
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| Trial Court: |
Date of Trial Judgment: 12-29-2009 Appealed from: Harrison County Circuit Court Judge: Lisa O. Dodson Disposition: Affirmed Mississippi Gaming Commission's Denial of a Casino Patron's Claim to a Jackpot Case Number: A2402-2005-00067 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Edward Payton |
DAVID CLIFTON MORRISON |
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| Appellee: | Boomtown Casino and Bally Gaming and Systems | LUTHER T. MUNFORD, KATHRYN H. HESTER, JAMES W. SHELSON | ||
| Appellee #2: | ||||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Gaming - Due process - Spoliation of evidence |
| Summary of the Facts: | Edward Payton was playing the Millionaire Blazing Sevens slot machine at Boomtown Casino on February 14, 2004. The machine was manufactured by codefendant, Bally Gaming and Systems, a Nevada corporation, which also operated the progressive system to which the Millionaire Blazing Sevens machine was connected. The machine hit a combination of three Blazing Red 777s. This combination placed the machine into the bonus feature that would allow Payton to compete for a progressive prize of from $5 up to nearly $2.2 million. The bonus-round music started playing, but the spin bonus-game button was not lit. Payton tried to take his bonus spin, but the machine was locked up. Payton asked his female friend, who was with him, to go get a Boomtown employee, but one arrived before she could get back. Both Boomtown and Bally personnel were called to fix the machine and were unsuccessful. Gaming Commission personnel were called to the machine. However, all attempts to fix the machine were unsuccessful. Boomtown offered Payton the opportunity to try winning at another progressive machine. Payton declined the offer and told Gaming Commission personnel that he would be satisfied with a $10,000 prize. The Gaming Commission declined Payton’s offer. Gaming Commission agent Steve McComb and his supervisor Dave Kingman determined that an investigation by the Gaming Commission should be performed at the Gaming Commission laboratory in Biloxi. To accomplish this, the slot machine’s central processing unit was removed and taken to the lab. Boomtown cut the power to the errant machine and put it where it could not be played by patrons. When the CPU was removed the integrity tape, which is affixed to each machine by the Gaming Commission, was still intact showing that no tampering with the machine had occurred. Gaming Commission Senior Engineer Ames Kerley conducted the investigation of the slot machine’s CPU at the lab. He was able to download the slot machine information to a laboratory computer. He prepared a report to the Gaming Commission in which he said that he was not able to determine what caused the machine to lockup. Although the cause of the lockup was not determined, Kerley was able to determine what Payton would have won had the slot machine not failed to activate the bonus feature. Kerley said that he was able to verify that the machine would have made four re-spins and that would mean that the amount chosen by the random value feature was 80 credits, which would be the equivalent of $20. Based upon the evidence of his agents and of the diagnostic testing on the computer game board at the lab, Larry Gregory, Executive Director of the Gaming Commission, offered Payton $20. The executive director found no basis on which to award Payton $10,000. Payton rejected the $20 payment and requested and received a hearing before a Gaming Commission hearing examiner. By the time of the hearing, Payton had modified his claim, declining to state a specific amount; instead, he asserted that it was not possible to determine what the outcome of the bonus feature would have been, but he could possibly be entitled to the total of the progressive jackpot. The conclusion reached by the hearing examiner was that the evidence supported a finding that Payton did not win a primary progressive jackpot; instead, he was entitled to the $20 which the lab report found that he would have won. The Gaming Commission adopted the hearing officer’s decision, and Payton appealed to circuit court which affirmed. Payton appeals. |
| Summary of Opinion Analysis: | Payton argues that his due-process rights were breached by what he termed a “botched investigation” by the Gaming Commission. He makes this argument alleging that there was a spoliation of evidence for the first time on appeal as noted by the circuit court. An issue not raised before the lower court is deemed waived and is procedurally barred. Payton made much of the fact that the door on the slot machine was opened and closed several times by the different technicians as they tried to fix the machine. Payton also argues that spoliation could have occurred when the CPU was taken by Agent McComb to his house and locked into a desk drawer instead of taking it to an evidence locker or vault. The problem with this argument is that it was Payton’s burden to show that there was an indication or reasonable inference of probable tampering with the evidence or substitution of evidence. Although Payton argued that something could have occurred when Agent McComb took the CPU home in a sealed evidence bag, Payton wholly failed to offer any evidence that something did happen. What is shown by the evidence is that the casino and the Gaming Commission followed the gaming rules to the letter for conducting a patron’s complaint to the letter. Payton received due process. He was given notice and an opportunity to be heard at a two-day hearing. Further there was an appeal to the circuit court at which he gave further argument of his version of the case, and then he appealed that judgment. |
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