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Payne v. Ames

Supreme Court of West Virginia

January 14, 2019

Jason M. Payne, Petitioner Below, Petitioner
Donnie Ames, Superintendent, Mt. Olive Correctional Complex, Respondent Below, Respondent

          Morgan County 12-P-50


         Petitioner 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.[1] 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 standard."[2]

         This 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.

         In 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 fraud case.

         Petitioner 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.

         Petitioner's 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.

         Petitioner 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).[3]

         Thereafter, 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.

         Mr. 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.

         Following 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.

         Petitioner 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 ...

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