                                 STATE OF WEST VIRGINIA
                               SUPREME COURT OF APPEALS


Jason M. Payne,                                                                    FILED
Petitioner Below, Petitioner
                                                                               January 14, 2019
                                                                                EDYTHE NASH GAISER, CLERK
vs.) No. 17-0730 (Morgan County 12-P-50)                                        SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
Donnie Ames, Superintendent,
Mt. Olive Correctional Complex,
Respondent Below, Respondent


                                MEMORANDUM DECISION

        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

       1
        Since the filing of the petition in this case, the superintendent at Mt. Olive Correctional
Complex has changed, and the superintendent is now Donnie Ames. The Court has made the
necessary substitution of parties pursuant to Rule 41(c) of the West Virginia Rules of Appellate
Procedure. Additionally, effective July 1, 2018, the positions formerly designated as “wardens”
are now designated “superintendents.” See W.Va. Code § 15A-5-3.
       2
         Rule 10(c)(3) of the West Virginia Rules of Appellate Procedure directs a petitioner to
open his or her brief “with a list of the assignments of error that are presented for review[.]” In
this section of petitioner’s brief, he raises two assignments of error:

               1. The circuit court erred in denying petitioner a new trial based upon
                  newly discovered evidence.

               2. The circuit court erred in denying petitioner the opportunity to file a
                  new habeas corpus petition for purposes of addressing the newly
                  discovered evidence.

Rule 10(c)(7) then directs that the “brief must contain an argument exhibiting clearly the points
of fact and law presented, the standard of review applicable, and citing the authorities relied on,
under headings that correspond with the assignments of error.” (Emphasis added). Petitioner’s
argument section does not comply with this rule. Critically, petitioner neglects to provide

                                                                                  (continued . . . )
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        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.



argument in support of his second assignment of error. Accordingly, petitioner’s assignments of
error have been reworded to correspond with the arguments actually raised. Nonetheless, this
Court notes that, with respect to his second assignment of error, the circuit court, in fact,
addressed petitioner’s claim of newly discovered evidence thereby obviating the need to file a
separate petition for the purpose of raising the claim.




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        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 under a clearly erroneous standard. Questions
       of law are subject to a de novo review.

Syl. Pt. 1, State v. Jenner, 236 W.Va. 406, 780 S.E.2d 762 (2015) (citation omitted).

       In support of this argument, petitioner asserts that Mr. Kerns’s affidavit is newly
discovered evidence that warrants the granting of a new trial. Petitioner argues that the affidavit
       3
        Petitioner also sought post-conviction relief by filing a petition for a writ of habeas
corpus. The circuit court denied petitioner habeas relief, and we affirmed that denial in Payne v.
Ballard, No. 16-0340, 2017 WL 2633507 (W.Va. June 19, 2017)(memorandum decision).



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“is both new and material,” and that “it appears . . . [p]etitioner was diligent in securing the
affidavit.” Petitioner contends that any “delay in securing Mr. Kerns’s affidavit was caused
solely by Mr. Kerns’s failure to provide such testimony sooner.” Petitioner also claims that the
evidence is likely to produce a different result at trial and that the evidence is not being used
solely to discredit or impeach another witness.

       We have previously held that

               [a] new trial will not be granted on the ground of newly-discovered
       evidence unless the case comes within the following rules: (1) The evidence must
       appear to have been discovered since the trial, and, from the affidavit of the new
       witness, what such evidence will be, or its absence satisfactorily explained. (2) It
       must appear from facts stated in his affidavit that plaintiff was diligent in
       ascertaining and securing his evidence, and that the new evidence is such that due
       diligence would not have secured it before the verdict. (3) Such evidence must be
       new and material, and not merely cumulative; and cumulative evidence is
       additional evidence of the same kind to the same point. (4) The evidence must be
       such as ought to produce an opposite result at a second trial on the merits. (5) And
       the new trial will generally be refused when the sole object of the new evidence is
       to discredit or impeach a witness on the opposite side.

Syl., State v. Frazier, 162 W.Va. 935, 253 S.E.2d 534 (1979) (citation omitted). “A new trial on
the ground of after-discovered evidence or newly discovered evidence is very seldom granted
and the circumstances must be unusual or special.” Syl. Pt. 2, State v. Helmick, 201 W.Va. 163,
495 S.E.2d 262 (1997). Under this standard, we find no error in the circuit court’s decision.

       To begin, we note that Mr. Kerns testified at his own trial as follows:

               Me and my cousins, Jerome and [petitioner], and my sister, Amanda, was
       down at the river lot. And Keese was murdered down there. It come about – I
       really can’t remember. I can’t say that I saw B.J. sliced [sic] his throat because I
       was setting down the Jim Beam and the Pepsi bottle. And the next thing I know,
       Keese comes running out towards the fire, and [petitioner] is a following behind
       him beating him in the head with a baton. And he bent that baton over his head
       from beating him. And he had brains and blood on it.

               And then he looks at me and says, ain’t you going to . . . do anything? So
       then I pick up the knife and stab him a couple of times. He wasn’t moving. He
       wasn’t saying anything. And then he put him on the fire. Then Amanda got lighter
       fluid out of her car to put on it, and then [petitioner] and B.J. stacked a bunch of
       wood on him. And [petitioner] told all of us if we told the cops anything that he
       would kill us. That’s why I’ve kept my silence.

Mr. Kerns’s notarized letter directly contradicts his trial testimony. The circuit court found that
this contradiction, considered in light of the trial evidence, rendered Mr. Kerns’s letter
incredible, and thus unlikely to affect the result at trial. Other evidence considered by the circuit


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court in concluding that Mr. Kerns’s letter lacked credibility included Ms. Ecatah’s testimony.
Ms. Ecatah testified to petitioner’s involvement in Mr. Bare’s death, including that petitioner
beat Mr. Bare “in the head with a metal baton until it bent in half.” Petitioner’s ex-wife also
testified that Mr. Kerns, in petitioner’s presence, admitted to her that both he and petitioner were
involved in Mr. Bare’s death. Petitioner did not deny Mr. Kerns’s admission to his ex-wife.
Finally, petitioner admitted at trial that he owned a metal baton similar to that described by Ms.
Ecatah.

         We have previously held that the deference afforded to circuit courts in determining
whether newly discovered evidence warrants the grant of a new trial “is due, in part, to the
superior position the trial judge holds when assessing the credibility of the new evidence, an
essential component of the determination of whether the evidence would make a different result
on retrial probable.” State ex rel. Smith v. Sims, 240 W.Va. 601, 607, 814 S.E.2d 264, 270 (2018)
(citation omitted). Also, “[a] confession by another person . . . does not invariably require a new
trial; the integrity of the confession is for the trial court.” State v. King, 173 W.Va. 164, 313
S.E.2d 440 (1984). Accordingly, we find no error in the circuit court’s conclusion that Mr.
Kerns’s letter lacks credibility and would, therefore, be unlikely to produce a different result at a
second trial.

        Because “[a]ll five factors must be proven before a new trial will be awarded[,]” Anstey
v. Ballard, 237 W.Va. 411, 423, 787 S.E.2d 864, 876 (2016), the fact that the “newly discovered
evidence” is unlikely to produce a different result at trial alone warrants affirmance of the circuit
court’s order. Nonetheless, we also note that petitioner has failed to demonstrate that he was
diligent in securing this “newly discovered evidence.” To satisfy the second Frazier factor, “[i]t
must appear from facts stated in his affidavit that plaintiff was diligent in ascertaining and
securing his evidence, and that the new evidence is such that due diligence would not have
secured it before the verdict.” Frazier, 162 W.Va. at 935, 253 S.E.2d at 535, Syl., in part.
Petitioner concedes that he “did not provide a formal affidavit to the lower court regarding his
due diligence in acquiring the newly discovered evidence[.]” Nonetheless, petitioner asserts that
“it appears that [he] was diligent in securing the affidavit” as he was “diligent in submitting the
newly discovered evidence immediately after his receipt of the same.”

        Petitioner’s outright failure to provide an affidavit describing his diligence in securing
Mr. Kerns’s letter notwithstanding, his arguments on appeal are unavailing. A plaintiff must
demonstrate that he or she was “diligent in ascertaining and securing” the evidence. Id. It is not
sufficient to wait idly in the hopes that evidence appears, particularly where the allegedly newly
discovered evidence makes a claim known to and argued by petitioner at his own trial. See Grant
v. Mirandy, No. 15-0003, 2015 WL 5555586 (W.Va. Sept. 21, 2015)(memorandum decision)
(finding that the petitioner failed to exercise diligence in securing a post-conviction affidavit
from a codefendant where “assertions are information known to both the [p]etitioner and [his
codefendant] from the moment that Redman was shot and killed four years earlier since both
were present together at the scene.”).

        Additionally, petitioner maintained at trial that he neither murdered nor participated in
the murder of Mr. Bare. Payne, 2012 WL 3104253 at *2. Mr. Kerns’s letter asserts the same.
Yet, to warrant the grant of a new trial, the newly discovered evidence must be new and material,


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not merely cumulative. Frazier, 162 W.Va. at 935, 253 S.E.2d at 535. For these additional
reasons, we find no error in the circuit court’s denial of petitioner’s motion for a new trial.

         Petitioner lastly assigns as error the circuit court’s denial of his pro se motion for a new
trial. Petitioner claims that the circuit court held him to “an unreasonable and arbitrary pleading
standard” by determining that the motion, filed under Rule 33 of the West Virginia Rules of
Criminal Procedure, could not be addressed as filed because those rules were inapplicable in his
civil habeas proceeding. Petitioner asserts that “he should not be punished for his unfamiliarity
with the onerous pleading standards of West Virginia.”

         Petitioner’s final assignment of error has no merit. After filing his pro se motion for a
new trial, the circuit court appointed counsel. Following that appointment, petitioner filed
additional motions, including one for a new trial, through which he raised his newly discovered
evidence claim. Indeed, petitioner acknowledges that “as soon as [he] was provided court-
appointed counsel, he used the opportunity to address the affidavit in another Motion for a New
Trial,” which the circuit court reviewed and addressed. Accordingly, petitioner’s newly
discovered evidence claim was litigated with the assistance of counsel, and he is entitled to no
relief in this regard.

        For the foregoing reasons, we affirm the circuit court’s order denying petitioner’s motion
for a new trial.

                                                                                          Affirmed.

ISSUED: January 14, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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