Examining the wrongful conviction of Jason Payne
October 14, 2012
On the morning of December 11th, 2007, a mother and her teenage son were found shot to death in the family home. The mother, Nichole Payne, had apparently been sleeping when she received a deadly gunshot wound to her head. Her 16-year-old son, Taylor, was found slumped over on his bed in the garage. The teen had been using the garage as a bedroom. The shotgun rested on his right leg and he had sustained a gunshot wound to his face.
The scene was horrific. Opinions as to the events surrounding the two shootings would eventually cause contention between experts whose opinions varied substantially. The original crime scene and bloodspatter expert, Noel Martin, concluded the case was a murder-suicide – identifying Taylor as the perpetrator. However, the lead investigator on the case resisted this determination and sought the opinion of bloodstain pattern analyst Tom Bevel.
You might remember Tom Bevel from the following cases previously examined: Timothy Masters, Warren Horinek, and Darlie Routier. Masters was exonerated as a result of DNA evidence in 2011, after having been wrongfully convicted. Horinek remains in prison even though many who investigated his case, including the medical examiner, ruled the death of his wife was a suicide. Routier has remained on death row for 15 years for a crime she is adamant she did not commit.
All of these cases share many commonalities, but the most disturbing of all of them is Bevel’s involvement in their prosecution and his influence on the jurors who convicted them.
Bevel’s findings in this particular case contradicted Martin’s, even though physical evidence such as the presence of gunshot residue on Taylor’s hands and the absence of it on Jason’s supported the murder-suicide theory. Bevel’s opinion would later have a major influence on the jury’s decision to convict Jason Payne, Nichole’s husband and Taylor’s stepfather, of capital murder.
As with most of these cases, one must start at the beginning to fully understand how and why Jason was convicted.
By December of 2007, life for Jason and Nichole Payne was reasonably good despite some difficulties here and there. The couple had married in Nacogdoches, Texas in 2000 and struggled financially for years. Despite monetary challenges, the couple appeared happy throughout their marriage and went on to have two children, in addition to the sons Nichole had from a prior marriage. In December, only one of her oldest sons lived with his mother. His name was Austin Taylor Wages. He was known to many as Taylor.
Financial conditions for the couple improved in 2006 when Jason was awarded money from a lawsuit pertaining to an accident. The couple purchased a home they could only previously have dreamed about in Quitman, Texas. They bought the house with cash.
At trial there were suggestions that the couple were experiencing some financial problems in that Jason was unemployed – outside of the home business involving birds. The prosecution also pointed to a life insurance policy taken out on Nichole as a motive on Jason’s part. They argued that he refused a life insurance policy on himself and therefore the purchase of a $100,000 policy on his wife was suspicious. Jason was reportedly a smoker at the time he and Nichole applied for life insurance and this resulted in a much higher premium for him.
An important question with regard to the policy is if the life insurance policy was purchased on his wife as a part of a larger plan to murder her for profit, why not purchase the policy on himself to help alleviate suspicion?
The prosecution’s case did not make a lot of sense, but then again the evidence presented was essentially the best the state was able to produce. Ultimately the state’s case posed more questions than it answered.
From a financial perspective, Jason and Nichole Payne had experienced a small windfall in 2006 that provided the family with opportunities they did not have before, such as the ability to purchase a home. However, life was not as simple and idyllic inside the home as it appeared to some on the outside. This did not go completely unnoticed among family members either.
Taylor’s older brother, Danny, did not live with the family during this time period. However, he noticed that his brother had become withdrawn and quiet. He stated that Taylor lived in “his own world most of the time”. He also said that Taylor did not get involved in family activities. “I’m not saying he was weird,” Danny told a reporter, “but he wasn’t acting like a typical kid.”
Jason’s mom, Faye, had been living with the family for a while. Faye had agreed to move in to help Nichole with the kids. She testified that Nichole had asked her to come stay with the family so she could pick the kids up from school. Faye moved out of the home in October of 2007 temporarily to spend time with her older son. She had plans to return to the home in January
At trial Faye testified about Taylor’s use of the garage as a bedroom. When asked about it she replied, “He wanted it and Nichole basically wanted it.” She confirmed what Danny said about Taylor spending time alone and refraining from spending time with the rest of the family.
She was asked if Taylor had experience with shooting guns and Faye agreed that he did.
On the stand Faye attempted to recount an event that had occurred while Jason and Nichole were fishing together. Nichole had been fishing when a fishhook became embedded in her skin. She ended up going to the hospital as a result. The incident was important because she had attended to the wound with a towel that was recovered from Jason’s truck. Testing confirmed the blood belonged to Nichole. Faye was unable to relay the entire incident because her testimony was ruled as hearsay.
And then there was the matter of Nichole’s sister-in-law. She testified at trial that the couple had problems and that Nichole had wanted to leave. She made the inflammatory claim that Jason threatened to kill Nichole if she left him. Later the appeals court ruled that her “testimony was hearsay and should not have been allowed. However, the judges did not feel the testimony swayed the jury.”
The above is absurd because the jury was likely moved by the sister-in-law’s testimony, regardless of whether or not it was truthful or accurate. Other family members directly contradicted the sister-in-law’s claims, stating that the couple were happy and there were no plans of a divorce on either side.
However, most agreed that the heart of the family’s trouble centered on Taylor. Jason’s mother described an incident that was relayed to her by Jason and Nichole where Taylor had been walking around outside the house during the early morning hours. He was also described as sometimes lurking about the house in the dark. Faye told the media that her daughter-in-law “had decided that Taylor was never to be alone with his brother and sister.”
Jason’s sister’s husband worried about Taylor’s behavior as well. “I don’t know why it struck me,” he told a reporter, “but the last time we went and visited Jason and Nichole, I told Melisa (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 was just so much more distant and darker than anyone I have ever met.”
The Tragic Event
On December 11th of 2007, five people resided in the Payne family home. This included Jason, Nichole, Taylor, and the couple’s two younger children. By this date, the couple’s daughter was two and their youngest son was five.
Jason was typically the one who woke the children and prepared them for school. On this particular day, Jason would later tell detectives that Taylor had refused to go to school because he was angry that his mother would not let him take her cellphone to school. Taylor did not have his own phone.
While Nichole slept, Jason took his two youngest children on the ride to drop the oldest of the two off at school. He then returned home. He took his daughter around the property, throwing acorns into water and then going up the hill to check on the birds. The family cared for about thirty birds as a part of a business they ran. Faye testified at trial that Jason would usually tend to the birds in the morning hours while his wife slept in.
Jason then went into the house and discovered his wife had sustained a fatal gunshot wound to the back of her head. Knowing that Taylor had not gone to school that morning, Jason reportedly checked the garage and discovered the teen slumped over on his bed with a .30-30 rifle resting against his right leg.
Jason called 911 and the investigation into the shootings commenced.
By the time officers responded to the scene, Nichole was warm to the touch, but Taylor’s body was described by Miles Tucker, the lead investigator, as “cold to the touch”. On its face, this suggested that Taylor was shot before Nichole. However, determining a person’s time of death is a somewhat complex matter. The first factor that must be taken into consideration is the person’s environment. This includes temperature and the amount of clothing worn by the individual. The second is other evidence that supports time of death, the position of the person when he or she received the fatal injury, and other factors.
Taylor was located in the garage of the family home. He was found slumped over on his bed. Martin wrote a detailed report regarding forensic and bloodstain evidence supporting a murder-suicide. Martin explained that the bloodstain patterns and the pooling of blood were consistent with Taylor having been in a seated position when he received a gunshot injury that resulted in blood loss. He described other factors that supported his conclusion.
Martin noted in his report that the trajectory of the wound inflicted on Taylor was not consistent with someone else having shot him. He stated that while it was not impossible for someone else to have achieved the trajectory, it was not likely. Moreover, since the evidence supported that Taylor was in a seated position when the wound occurred, and there was no evidence of a struggle, it did not make sense that someone else had held the shotgun at an unusual angle and then inflicted the injury.
Taylor and Jason were tested for gunshot residue. Jason’s test was negative, indicating he did not have any gunshot residue on him. Taylor had gunshot residue on his hands. This was additional evidence supporting Martin’s belief that the shootings were part of a murder-suicide.
As discussed above, the temperature of a deceased person and his or her environment are critical factors in this type of investigation. Miles Tucker provided important testimony with regard to the temperature of Nichole’s bedroom and that of the garage. He stated that he thought it was odd that Taylor’s body was cool to the touch, while Nichole’s was warm. He was questioned about the room in the garage by defense attorney Doug Parks.
“Let’s talk about the room that Taylor was found in,” Parks suggested to Tucker. “That was a garage, wasn’t it?”
“It was,” Tucker responded.
“It wasn’t part of the house,” Parks remarked. “What heated source did it have?”
“Where?” Parks asked.
“I believe it was inside the room,” Tucker stated. Then he added, “I don’t think it was on.”
Parks asked the lead detective in the case again if the space heater in the garage was on. Tucker replied that he did not believe it was. Tucker also could not recall if photographs were taken of the space heater.
Taylor had moved into the family garage which had never been formally converted into heated living space. He used at least one space heater to warm the area. The lead detective in charge of investigating the case did not believe that the heater was on when he responded to the scene. However, he apparently did not take any of this into account when he determined that it was odd that Nichole was warmer than Taylor. In fact, the differences in body temperature were often cited as evidence suggesting that Taylor was shot first.
However, this is erroneous and reckless thinking because a room’s temperature has an effect on the rate in which a body cools. It also influences other factors used to identify an approximate time of death, such as rigor mortis and algor mortis.
Algor mortis describes the loss of heat that occurs within the human body when a person dies. In a book detailing the fundamental components of forensic science, Anthony Bertino wrote, “When a person is alive, the body maintains a constant temperature. To keep our temperature within a normal range, many parts of our body work together, including the circulatory, respiratory, and nervous system. In death, the body no longer generates heat and begins to cool down.”
The important question is how an investigator may determine the rate in which the body cooled. One method investigators use is taking a person’s liver temperature by inserting a thermometer into the organ. Based upon observed environmental factors, such as the temperature of a room, a person’s liver temperature can provide information about the range of time in which a person died.
Unfortunately, no one took a liver temperature for Nichole and Taylor. Tucker testified that he had no knowledge of such a temperature being taken. Bevel also testified that he did not believe a liver temperature had been taken. Because of the shoddy work in this regard (or lack of it) the jury had no choice but to rely on expert opinions regarding time of death. And these varied.
Another important fact is officers that responded to the crime scene did not note the temperature of either room. This information would have helped to make a more accurate determination about time of death.
The rate in which a person loses heat is approximately 1 degree F per every hour. But there’s a caveat according to Bertino, the author noted above. “In cooler environments, the body will lose heat faster than in hotter environments.” They went on to explain that this is why “surrounding air temperature and other environmental factors are noted when a body is found.”
Tucker claimed during his testimony that he took these factors into account, but in a contradictory admission he acknowledged he used his belief that the differences in temperature were “odd” to obtain an arrest warrant for Jason Payne.
Even Bevel acknowledged that drawing an inference from the above was “subjective”.
Livor mortis and rigor mortis are two other factors taken into account to determine time of death. Martin noted in his report, “The earlier stages of livor mortis and discoloration associated with decomposition are visible in the fingertips of Nichole Payne in the crime scene photographs”.
By contrast he noted the following with regard to Taylor (whom he refers to by his first name of Austin), “No signs of livor mortis are visible on the exposed skin of Austin Wages in any of the crime scene photographs viewed.”
This suggests that Nichole was shot first and that Taylor was the next to receive a fatal gunshot wound. However, the colder temperature in the room and the lack of notation with regard to the exact temperature, make it impossible to know for sure. What we do know is that the fact Taylor’s body was cool to the touch is more reflective of his being found in a colder environment than that of his mother. It is not proof that he received a gunshot wound before his mother.
Why is this important? Because if Taylor was shot first it means he did not shoot Nichole. However, if Nichole was shot first it means that it was much more likely that Taylor was responsible.
Alas, due to the investigative failures noted above, a conclusion as to who was shot first is far more difficult to make. Tucker’s testimony that the garage was cooler than the inside of the house (which it certainly would be given it was December, the garage’s only heating source was a space heater, and Tucker’s own admission that he did not think the heater was turned on upon his arrival) was more supportive that Nichole was shot first. She was in a warm room, covered with blankets. Taylor was in a cold room, without blankets covering him.
Under cross-examination, Bevel was confronted with a statement he made in his report that Taylor was shot “long before” Jason took the youngest boy to school. He agreed this meant he was shot before Nichole. However, Nicole was still warm to the touch when officers responded to the scene.
The most logical explanation is that Taylor shot his mother when the two were alone in the house. In this scenario, no one else would have been present on the property to hear the blast of the shotgun.
By contrast, if Jason had been involved in the shooting he would have had to shoot either Taylor or Nichole without anyone else in the house being alerted, including the couple’s two young children. This seems the least likely of the two scenarios.
The Battle of the Experts
The outcome of the trial seemed to hinge on the perceived credibility of analysts Noel Martin (for the defense) and Tom Bevel (for the prosecution). The men each held a completely different belief as to what occurred on December 11th.
In terms of accuracy, one must keep in mind that Martin was present at the scene after the shootings were reported to police. He observed the evidence first-hand. He was able to view the bloodstain evidence from every angle and see critical information about the events that transpired. Another important consideration is that when Martin responded to the crime scene, he had a truck of equipment at his disposal. “I have pretty large projectors, protractors, all kinds of chemicals, alternate light sources, just a menagerie of forensic type of equipment,” he said at trial.
Martin used lasers to pinpoint the trajectory of the bullets. This provided him with information about the angle in which the weapon was fired. He determined that Nichole was shot in the back of her head, at close range, while sleeping.
Bevel was brought into the investigation later on and so he did not observe the original crime scene. He relied on photographic evidence, reports made by police and Tucker, and other materials to draw his conclusions. This can be problematic for obvious reasons. Bevel’s conclusions were completely reliant on the information provided to him.
Bevel testified that he did not believe the scene was consistent with a murder-suicide. Under oath he made the following claim, “To my knowledge and from my examining the photographs, I don’t see anything consistent with that on the floor.” He was referring to blood or biological material as he had been asked about just prior to making this particular statement.
However, the above was not accurate as Martin later testified that there was blood on the floor that had not been visually apparent. The blood was observed when a chemical agent known as Bluestar was applied to the floor. It revealed “atomized blood or fine misting blood that’s associated with a gunshot wound,” Martin testified.
The main question is did Bevel know that his testimony was inaccurate? Did he have access to Martin’s report referring to the “atomized stains”? I do not know the answer to this but I do know that Martin’s report was dated in late 2009. The trial took place in 2010. The report was something he should have been able to access.
Bevel did have access to other information pertaining to the conclusion the analyst had drawn about the shooting being a murder-suicide though. Despite having this information, Bevel testified to the contrary.
Many were shocked when the jury found Jason Payne guilty of double homicide. He was sentenced to life without parole and resides at the Robertson Unit of the Texas Department of Criminal Justice. The Texas Court of appeals upheld the conviction.
Defense attorney Douglas Parks told the media that he adamantly believes in his client’s innocence. One article stated: “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.” Jason’s case was one of the three. “I truly believe that my client is innocent of these charges he was convicted on,” he told the media. “I truly believe that.”
Martin, who never had anything to gain from his finding that the shootings were a murder-suicide, contends that he will testify on behalf of Jason Payne “all the way to the U.S. Supreme Court.”
It’s ironic that the original crime scene analyst in this case was called to testify for the defense and that he still maintains Jason is innocent.
Dick Blanchard is the Executive Director of Advocates for Wrongfully Convicted. He was contacted a year and a half ago by Jason’s sister, Melisa. She urged him to look into her brother’s case. After a few months, Dick agreed to have a look. He and his colleague spent about six months researching the case thoroughly.
In an interview with Dick, he explained to me, “Being most certain of innocence is not enough for us to take a case, we have to be certain of innocence beyond any doubt. After continuing to study and review further evidence we were convinced of Jason’s innocence and concluded that it would have been impossible to have committed the crime. So we took the case and built him a web site, developed a presence on Facebook, established a contact with his lawyer, and began regular communication with Jason via letters, JPay email and phone calls. We also have stayed in regular contact with Jason’s mother Faye Payne and his sister Melisa Thickstun providing updates to them and answering any questions they may have about Jason’s case.”
I asked Dick where Jason’s case stands from a legal perspective. He responded that Jason is in his final direct appeal with the state. “Oral arguments were heard on March 7, 2012 in front of the Texas Court of Criminal Appeals (CCA)and it is going on seven months for the court to issue an appeal. We’d like to think that the longer the court takes to reach a decision the greater chance they are reviewing all the merits of the case and will hand down a just verdict. But knowing how Texas and this court operates one can never be too sure.”
Dick went on to add, “Jason’s appellate lawyer filed a Motion to Supplement the Record to the CCA based on a key photograph that we were able to show, using advanced photo enhancement software that showed key evidence that the prosecutor denied was there. This evidence was critical in Tom Bevel’s conclusion as to his reason why Taylor Wages couldn’t have committed suicide. We were able to show through this enhanced photo that the evidence was present and shoots a hole in Bevel’s theory and conclusion.”
The prosecution replied to the motion and on October 8th of 2012, the CCA denied the motion. “This is not surprising as new evidence is not allowed in during direct appeal,” Dick explained.
Dick maintains a comprehensive website describing Jason’s case here. It provides a wide range of information about the investigation, the trial, and the circumstantial aspects of the case presented in court. He also provides information about other problematic cases Bevel has worked on.
This case in undoubtedly sensitive. A mother’s life was taken in a brutal way. Her surviving children were robbed of the opportunity to have her in their lives. When Jason and Nichole’s children go on to celebrate milestones in their own lives – such as marriage, children, and other events – Jason and Nichole will be unable to share in the experiences. That is, unless something drastic changes for Jason.
At the very end of this long and harrowing story you are probably left wondering, as I am, if sentencing Jason to prison for life has only served to further victimized his own two children as well as his family who has continued to stand by his side. Nothing will ever bring back Nichole or Taylor, but it is possible that the truth could save Jason from what is tantamount to a living death sentence.
But will it be too late?
Read more about Jason’s case here: www.wcojp.org