Posted 2:35 am Sunday, July 31, 2011
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Jason Payne Got Life For Double Murder; But Does Evidence Add Up?
EDITOR'S NOTE: Tyler Courier-Times--Telegraph reporter Kenneth Dean spent a year interviewing family members, attorneys and forensic experts, looked over documents and crime scene photos and read court records in connection with the 2010 Wood County capital murder conviction of Jason Thad Payne. Forensic experts disagree with the findings at the crime scene and many say an innocent man is imprisoned for a crime he did not commit. Others say justice has been served in the deaths of a woman and her son.
By KENNETH DEAN
Staff Writer
WOOD COUNTY -- Musty air now dominates the rooms once filled with furnishings and a family's dreams.
Staff Writer
WOOD COUNTY -- Musty air now dominates the rooms once filled with furnishings and a family's dreams.
Five years earlier, the two-story, Victorian-style farmhouse, now surrounded with overgrown shrubs, high grass and unkempt trees, was the center of the Payne family dream after years of struggling and living in subpar housing.
Jason Payne
But the dream morphed into a nightmare with the Dec. 11, 2007, shooting deaths of two family members and the capital murder conviction of Jason Thad Payne two years later.
Now, Faye Payne's son, Jason, sits in the Robertson Unit of the Texas Department of Criminal Justice in Abilene, sentenced to life with no parole for the deaths of her daughter-in-law, Nicole Payne, and Nicole's 16-year-old son, Austin Taylor Wages.
Despite praying somehow her son will be freed from prison and regain custody of his children, Ms. Payne knows her prayers may never be answered.
Texas' 12th Court of Appeals recently upheld Payne's 2010 conviction, but many -- including the crime scene investigator at the scene the day of the murders -- say Payne is innocent. They believe it was Taylor, a troubled youth, who carried out a murder-suicide.
Payne's family, prosecutors, defense attorneys and crime scene experts talked with the Tyler Courier-Times -- Telegraph during the newspaper's yearlong review of the case.
"There was never any motive for a double homicide, and the evidence that I have seen in this case did not point toward anything but a murder-suicide," Smith County Sheriff Criminologist Noel Martin said during a recent interview.
Martin was at the scene the day of the shootings and later contracted to complete an in-depth forensic overview.
But despite Martin's findings, which are backed by seasoned detectives in Smith County and several experts in the field of forensic sciences, Wood County Sheriff investigators and District Attorney Jim Wheeler charged Payne with capital murder, and a Wood County jury found the 41-year-old guilty.
BLISSFUL BEGININGS
Jason and Nicole Payne began their life together in 2000 with a wedding ceremony in Nacogdoches attended by family and friends.
While Nicole had been married before and brought two children into the new family, Jason had never been married and had no children.
Bill Thickstun, Jason's brother-in-law, said that soon changed with the birth of the couple's son, followed two years later by their daughter's birth.
"They were like any other married couple," Thickstun said. "They were happy most of the time, but they also had their times of ups and downs. Anyone who is married knows this happens and isn't out of the ordinary."
Family members said Nicole and Jason struggled financially early in their marriage and lived in subpar housing with holes in the flooring and little heat or air-conditioning.
"It was really bad conditions, but they were happy," Faye Payne said.
Ms. Payne added that Jason had been in a bad accident and was awaiting the outcome of a lawsuit. In 2006, Jason and Nicole were awarded more than $900,000.
With a new lease on their financial life, the family began house shopping and found their dream home in Quitman.
"I remember coming to look at the house with them and being so excited," Faye Payne said. "I was so happy for them, and when they bought the house, they paid for it in cash, bought and paid for several vehicles and some other things. Everything they had was paid for with money from the settlement."
Ms. Payne said she moved into the house with the family and saw nothing but love between her son and Nicole. She did, however, say she noticed changes in Austin.
A TROUBLED TEEN?
Faye Payne was not the only one to notice that the teen's behavior was withdrawn from his family.
Austin's older brother, Danny Ashworth, said that although he didn't live with the family, he did notice his brother was quiet and "in his own world most of the time."
"He didn't really participate in what the family was doing," he said. "He kind of kept to himself. I'm not saying he was weird, but he wasn't acting like a typical kid,"
Ashworth said his brother's musical tastes included what is known as suicide music.
Ashworth said he and his brother were both well-adjusted to firearms and had killed birds and mice together and knew how to shoot all types of guns, including .30-30 rifle believed to have been used in the 2007 shooting.
"I heard the prosecution said during the trial that Taylor didn't know how to shoot a gun," he said. "We used to line soda cans up and shoot them with that same .30-30. To say we didn't know how to shoot a gun was a complete lie."
Faye Payne said her daughter-in-law and son had talked to her about strange behavior they had noticed in Taylor, such as lurking around the house in the pitch dark at night.
"Jason and Nicole both told me that they were kind of worried when they heard something outside early in the morning and found Taylor walking around the house," she said. "This didn't just happen once. Nicole had decided that Taylor was never to be alone with his brother and sister."
Thickstun said he thought Taylor had some real problems.
"I don't know why it struck me, but the last time we went and visited Jason and Nicole, I told Melissa (his wife and Jason's sister) that I felt like Taylor could easily walk into his school and pull off a Columbine-type shooting," he said. "He just was so much more distant and darker than anyone I have ever met."
That last visit with Jason and Nicole would be the last time the Thickstuns would see Nicole and Taylor alive. Two weeks later they would be dead and Jason would be under suspicion for murder.
CRIME SCENE
When Wood County sheriff's deputies arrived Dec. 11, 2007, at Texas Highway 37 just north of Quitman, they found Nicole dead in the couple's bed. She had been shot with a high-powered rifle once in the head as she was sleeping. Bedding still covered her.
A thorough search of the home would end in the discovery of Taylor on his bed in the garage, which was not sealed and heated like the home. He was fully clothed except for shoes and was lying uncovered across the bed and was not covered. A .30-30 rifle was on his legs. No signs of a struggle and no defensive marks were visible on either Nicole or Taylor. Detectives quickly concluded there were no indications of a break-in.
But why would a 16-year-old boy kill his mother and then himself?
A litany of other questions surfaced among the detectives.
Why was there a strong smell of gun powder in the room where Nicole was found and not in the garage? Why was Taylor's body cold to the touch while Nicole's was warm?
While the investigation continued, Jason Payne paced beside his white Dodge pickup, his small daughter with him and Wood County Sheriff's Deputy Misty Burns watching him.
The deputy would write in her report, "He was crying the whole time I was at the scene. In my opinion, it was not grief related to the loss of his wife and stepson."
Inside the home, detectives discovered "freshly laundered" clothes in the washing machine and dryer and evidence that Jason and Nicole had not been sharing a bedroom.
Jason told detectives and a Texas Ranger during an interview that he had taken his youngest son to school and the daughter rode with him. He also said that Taylor had refused to go to school after becoming angry when his mother refused his request to take her cellphone to school because he did not have his own.
Detectives then asked Jason about a white towel with a small blood stain in his vehicle. His reply was his wife had hooked herself in the hand while fishing a few days before the shootings.
Family later confirmed Payne's story about the fishhook incident. Martin said the blood stain on the towel was a small amount and not a fresh stain made the day of the deaths.
Family also said two large holes on an adjacent property were dug to find the contents of an old house and not dug for graves as authorities suggested.
Jason was not charged at the time, but deputies continued to investigate and contracted Martin to conduct a thorough analysis of evidence.
During a meeting with lead sheriff's detective Miles Tucker and Wood County District Attorney Jim Wheeler, Martin told the pair the case was a murder-suicide and that is what the evidence had shown.
But Tucker was not convinced and solicited the expertise of Tom Bevel, a former Oklahoma City police captain who oversaw homicides, missing persons, robbery and unsolved cases before opening his own forensic consulting group.
Tucker wanted Bevel to look at the case and Martin's conclusions, thus setting off a disagreement between the two men and multiple detectives with years of experience in homicides.
DOUBLE HOMICIDE?
Martin was called to the scene the day of the shootings, saw the blood spatter on the walls and floor, the way the rooms were set up, the difference in temperature in the rooms and used lasers to develop a bullet trajectory in both the bedroom where Nicole was found and in the garage where Taylor was located.
Bevel was sent crime scene photos, autopsy photos, evidence lists and reports from officers, but he looked at the evidence months after the shootings and was not at the scene the day of the event.
In his eight-page report, Bevel stated he believed due to the stippling (wounds caused by the unburned gun powder and other debris striking the skin leaving a tattooing effect) the 20-inch barrel of the 30-30 was more than 8 inches away from Taylor's face when he was shot.
"Taylor could not have operated the trigger and safety at the same time and obtain the same wound trajectory as described in the autopsy report without stretching his hand and fingers out to the max(imum) to reach the trigger," Bevel observed.
Bevel also stated he believed Taylor, who was cold to the touch, was shot first, and then Nicole was shot sometime before Jason called 911 to report finding two people dead in the house.
Bevel's report stated he believed Jason was the person responsible for both shootings and based this opinion on his findings and the fact Jason had a "flat affect" in his 911 call, lack of tears and inconsistencies in his statement and the evidence.
Bevel's report was bolstered with the testimony of Nicole's sister, who told jurors her sister wanted to leave Jason and he had threatened to kill her if she moved forward.
Prosecutors also pointed out the couple did not appear to be sharing a bedroom, and there were hints of financial worries.
The big question was why Nicole had life insurance but Jason did not.
The appeals court ruled the sister's testimony was hearsay and should not have been allowed. However, the judges did not feel the testimony swayed the jury.
Faye Payne and other family members said Nicole never talked about being scared of Jason and did not want a divorce.
Martin's in-depth 20-page report stated clearly he believed Taylor shot his mother, went to the garage and shot himself.
The report looked at myriad scenarios: the temperature outside, the smell of gunpowder, bullet trajectory and the fact Jason did not test positive for gunshot residue.
But Taylor Wages did have gunshot residue on his hands.
Martin pointed to Nicole being inside the home under blankets for the reason she was warm, while Taylor was in an uninsulated garage, lying atop his blankets.
He also added that brain matter emits an odor like gunpowder, and because there was a high volume of brain matter on the floor in Nicole's bedroom, it would explain why detectives smelled fresh gunpowder where she was found but not in the garage.
Martin stated in his report that the trajectory of the bullet that killed Taylor was upward at 45 degrees while he was seated on his bed. He said this meant that if someone did kill Taylor, the shooter would have been close to lying on the garage floor, pointing the rifle upward. Taylor would have been sitting there without throwing up his hands in a defensive manner.
Further, the clothes that had been "freshly laundered" as suggested by prosecutors, showed no indications of blood. Martin said that even if bloody clothing is washed, tests still will detect blood. There was no blood found on the clothing or any clothing found at the scene.
Martin concluded after looking at all of the evidence, both what was given to him by investigators and what he saw at the scene the day of the shootings, that Taylor killed his mother and then went to the garage and shot himself with the .30-30.
Martin's peers, including Ed Hueske, a forensic scientist who lectures and teaches forensic sciences at the University of North Texas, reviewed the findings.
Martin said he believed the case was closed when he spoke to Wheeler and Tucker and was shocked when he read that Wood County officials in September 2008 had charged Jason with capital murder.
"I really couldn't believe it. The evidence does not support his arrest. I thought surely he would not be convicted by a jury," he said.
GUILTY
But Martin's beliefs would be dashed as a jury of 12 listened to the evidence and other experts presented by Wheeler and his team of prosecutors. They decided Jason Payne was guilty of killing his wife and stepson.
Faye Payne said when the verdict was read, it was like a horrible dream. She said life since then has been extremely difficult on her entire family, and Jason continues to spiral into a state of despair.
"He is innocent of this and should be freed," she said.
Wheeler, however, disagreed with those declaring Payne's innocence and said he thought justice had been served in the trial.
"A jury found him guilty and convicted him, and the appeals court has upheld that conviction," the prosecutor said.
Wheeler said Miles Tucker, the former Wood County Sheriff investigator who worked the case, thought Taylor deserved another look instead of just passing it off as suicide.
"He wanted to make absolutely sure it was suicide before we called it that," he said. "We were shocked like everyone when suicide was excluded from the manner of death. Experts who have worked capital murder cases across the nation said the gunshot could not have been delivered in a way that would suggest suicide. We concluded, as did the jury, that the scene was staged, and Jason was the one who took both lives."
Douglas Parks, a defense attorney who was part of Jason's legal team, said the only truth in the case is that his client is innocent and should be set free.
"To say this case is frustrating is, at the least, an understatement," Parks said. "Jason was convicted because the district attorney asked the jury to do it for the victims and that is his job. But I and others were astonished at the verdict."
Martin said he had no reason to see the evidence any other way.
"I had nothing to gain by my opinion," he said. "I didn't know any of the parties involved, and I wasn't under pressure to solve the case. It is what it is, and believe me when I say I went over this case for hundreds of hours and considered every possibility, and all of the physical and scientific evidence and the end result is Jason Payne did not commit this crime.
"To stage the scene to make it look like a suicide given the specifics of this particular case, well it just cannot be done."
Hueske, who conducted test after test with Martin in the case, said he did not understand the jury's verdict.
"I applaud and support officer Martin's courage," Hueske wrote in an email. "It is indeed unfortunate that the jury seemingly chose the versions presented by the state's experts over officer Martin's interpretation of the physical evidence, especially since officer Martin was at the scene when the physical evidence was still intact, and neither of the state's experts were.
"I agree that the boy most likely shot his mother and then shot himself ..."
AT A LOSS
Jason's sister, Melissa Thickstun, sat on the couch in her Austin home with tears streaming from her eyes.
With her voice shaking, Mrs. Thickstun said her brother cannot be guilty of such a horrific crime.
"I don't know how you can convict someone with so much doubt," she said. "I freaked out at first and then I got mad. Since then I have gone through all of the emotions."
Mrs. Thickstun said Nicole had told her just days before the shootings that she was happy, but that she and Jason were worried about Taylor in regard to some things they did not want to talk about.
She and her husband said Jason wanted to get an insurance policy, but he and Nicole had decided to insure Nicole first and then add Jason at a later date.
"She never said anything about being scared of my brother or wanting to leave," Mrs. Thickstun said. "I talked to her a few days before her death and she said everything was good."
Faye Payne said she also had been told about some strange behavior with Taylor, including how he chose to live in the garage instead of in the home.
"He was a difficult child, and I just wasn't comfortable with him anymore," she said.
Taylor's brother, Danny Ashworth, said he believed in Jason's innocence and added he felt strongly his brother was the one who pulled the trigger.
"It's hard to describe, but I personally feel that Taylor got mad about something and shot mom and then himself," he said. "I do not think or believe my father did this."
Ashworth said when the deaths first occurred, the family got along and everyone supported each other, but as the months passed, a rift emerged and widened.
Bill Thickstun agreed with Ashworth.
"It has really stressed me, my wife, our family and the extended family," Thickstun said. "We have not been able to really mourn our losses because Jason is locked up in prison."
Faye Payne said she travels as often as she can from her home in Louisiana to Abilene to visit Jason.
"I constantly pray something will happen, and he will be released," she said. "He has lost his wife, his kids. He is devastated, destroyed and in a place where people are usually going to stay until they die."
Repeated attempts over the course of several months to reach Nicole's family for comment were unsuccessful.
As for Parks, he is adamant in saying he will continue fighting for his client, whom he advised not to talk to the media at this time, and hopes to gain ground under a discretionary review of the case.
Parks said he has tried cases since 1972, and in all of those years, he only had three cases that were blatant miscarriages of justice. One case was a Dallas murder that is in the process of being exonerated, a sexual assault case that was exonerated and then Jason's case.
"I truly believe that my client is innocent of these charges he was convicted on -- I truly believe that," he said.
Four years after he walked into the home in Quitman and began his investigation, the veteran criminalist Martin reiterates what he stated in his initial report.
"I have never been called to the scene by the state only to testify for the defense, and I have never called the media in regard to a case I am working on," he said. "This case was different. I will testify for Jason Payne all the way to the U.S. Supreme Court."
