Jason M. Payne, Petitioner Below, Petitioner
Donnie Ames, Superintendent, Mt. Olive Correctional Complex, Respondent Below, Respondent
Jason M. Payne, by counsel Nicholas J. Matzureff, appeals the
Circuit Court of Morgan County's July 28, 2017, order
denying his motion to reopen a prior petition for a writ of
habeas corpus to introduce new evidence, motion to amend the
prior habeas petition, and motion for a new trial. Respondent
Donnie Ames, Superintendent, by counsel Gordon L. Mowen II
and Thomas T. Lampman, filed a response. On appeal,
petitioner argues that the circuit court erred in denying him
a new trial based upon newly discovered evidence and in
subjecting his motion for a new trial to "an
unreasonable and arbitrary pleading
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.
September of 2007, petitioner was indicted on one count of
first-degree murder and one count of conspiracy arising from
the murder of Keese Bare. At petitioner's trial, which
began on May 5, 2008, Amanda Kerns Ecatah testified that she
received a call from her brother, Vernon Kerns Jr.,
requesting that she come to a campsite referred to as
"Lot 17." Upon her arrival at this campsite, Mr.
Kerns informed Ms. Ecatah that "they were going to kill
Keese." Ms. Ecatah testified that she observed another
individual present at the campsite, Jerome "B.J."
Smith, cut Mr. Bare's throat while he was restrained by
petitioner and Mr. Kerns. Mr. Bare stood up and began to run,
and then Mr. Kerns stabbed him with a knife. Ms. Ecatah
testified that petitioner told Mr. Bare "that is what
happened to people that told" and that petitioner then
beat Mr. Bare in the head with a metal baton until it bent in
half. When Ms. Ecatah pleaded with petitioner to stop,
petitioner responded that "he wasn't going to jail
for attempted murder." The three men present then burned
Mr. Bare's body in the fire pit at the campsite. Ms.
Ecatah further testified that Mr. Bare was killed due to the
belief that he was going to implicate them in a credit card
testified at his trial that he arrived at Lot 17 and saw Mr.
Kerns, Mr. Smith, Ms. Ecatah, and Mr. Bare drunk around the
fire pit. Mr. Kerns, Mr. Smith, and Mr. Bare walked away from
the fire. After the three walked away together, petitioner
claimed that he saw Mr. Bare drop to the ground and lay
motionless after Mr. Kerns and Mr. Smith, who were beating
Mr. Bare, stopped hitting him. Petitioner further testified
that Mr. Kerns and Mr. Smith dragged Mr. Bare's body into
the fire. Petitioner admitted to previously having a metal
baton similar to that described by Ms. Ecatah, but he denied
murdering or participating in the murder of Mr. Bare.
ex-wife, Vanessa Mickey, also testified at petitioner's
trial. She testified that, during a conversation with Mr.
Kerns and petitioner, Mr. Kerns claimed that he, petitioner,
and Mr. Smith took Mr. Bare to Lot 17, that Mr. Smith slit
Mr. Bare's throat, that petitioner beat Mr. Bare with a
metal club, and that they then burned Mr. Bare's body.
was ultimately convicted of second-degree murder, a
lesser-included offense of first-degree murder, and acquitted
of conspiracy. We affirmed petitioner's conviction in
State v. Payne, No. 11-1045, 2012 WL 3104253 (W.Va.
June 22, 2012)(memorandum decision).
petitioner received a notarized letter from Mr. Kerns, who
had been convicted of the first-degree murder of Mr. Bare in
a separate trial. The letter, dated November 29, 2016, stated
Mr. Kerns's intention to "come forward and accept
the fully [sic] responsibility in the murder that
[petitioner] and I was [sic] convicted of." Mr.
Kerns's letter further set forth that petitioner
has been in prison for something he honestly had nothing to
do with. Keese (the dece[a]sed) was telling on my sister
Amanda [Ecatah] and I for other crimes somehow the state
never charged her for something she was clearly apart [sic]
of yet they charged [petitioner] and he really did nothing.
Kerns wrote that he wished to "come forward and clear
[petitioner]," and he expressed a willingness "to
speak out and do what it takes to help." Based upon this
letter, petitioner, pro se, filed a motion for a new trial on
January 30, 2017.
the filing of that motion for a new trial, petitioner was
appointed counsel. On April 18, 2017, petitioner's newly
appointed counsel filed a "Motion to Reopen Evidence,
Motion to Amend the Petition, and Motion for a New
Trial." The circuit court denied these motions by order
on July 28, 2017, finding, among other things, that the
notarized letter did not constitute newly discovered evidence
that would warrant granting a new trial. It is from this
order that petitioner appeals.
first argues on appeal that the circuit court erred in
denying his motion for a new trial. We apply the following
standard of review to a circuit court's denial of a
motion for a new trial:
In reviewing challenges to findings and rulings made by a
circuit court, we apply a two-pronged deferential standard of
review. We review the rulings of the circuit court concerning
a new trial and its conclusion as to the existence of
reversible error under an abuse of discretion standard, and
we review the circuit court's underlying factual findings