State v. Payne
| Decision Date | 19 October 2016 |
| Docket Number | No. 15–0289,15–0289 |
| Citation | 800 S.E.2d 833 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia, Plaintiff Below, Respondent v. Ennis C. PAYNE II, Defendant Below, Petitioner |
Jason T. Gain, Esq., Gain Law Offices, Bridgeport, West Virginia, Landon Moyer, Esq., Cooper Law Offices, Bridgeport, West Virginia, Counsel for the Petitioner.
Patrick Morrisey, Esq., Attorney General, Shannon Frederick Kiser, Esq., Assistant Attorney General, Charleston, West Virginia, Counsel for the Respondent.
The petitioner, Ennis C. Payne II, appeals the January 29, 2015, order of the Circuit Court of Harrison County through which he was sentenced to life imprisonment with mercy for his first degree murder conviction to be followed by one to five years imprisonment for his conspiracy to commit burglary conviction. Seeking to set aside his convictions, the petitioner challenges the denial of his motions to suppress evidence and to change venue; his appearance in the courtroom in jail attire and restraints during jury voir dire; and cumulative error. Following a careful review of the briefs, the arguments of counsel, the record submitted, and the applicable law, this Court finds no reversible error and affirms the petitioner's convictions.
In the early fall 2012, the petitioner and Darnell Bouie were arrested in connection with the death of Jayar Poindexter. On May 7, 2013, a Harrison County grand jury returned indictment No. 13–F–112–3 charging the petitioner2 with first degree murder in violation of West Virginia Code § 61–2–1 (2014)3 and conspiracy to commit burglary in violation of West Virginia Code §§ 61–3–11 (2014)4 and § 61–10–31 (2014).5 They were tried separately.6 The petitioner's trial occurred over the course of five days in November 2014 during which the State proceeded on a theory of felony-murder with the predicate felony being the conspiracy to commit burglary. The State presented the testimony of thirty-two witnesses and seventy-three of its exhibits were admitted into evidence.7 The petitioner presented the testimony of one witness, and his five exhibits were admitted into evidence. The petitioner did not testify.
The evidence at trial demonstrated that during the evening of January 12, 2010, Darnell Bouie, Michael Thomas, and Michael Moran traveled to the Ordinary Bar in Clarksburg, West Virginia. At approximately 12:51 a.m. on January 13, 2010, security cameras in the area captured the petitioner, Ennis Payne, entering the same bar. At that time, he was wearing a Pittsburgh Pirates "P" baseball hat and dark Timberland-type boots.
Around 3:00 a.m., the petitioner, Bouie, Moran, and Thomas left the Ordinary Bar traveling in two vehicles—a car belonging to Thomas and a truck that Leonard Hickey had loaned to Bouie that evening at the Ordinary Bar. Although Hickey had left the bar earlier that evening, he later rejoined the group, after which the men traveled in the two vehicles to the Quarry Apartments located on Overlook Drive in Clarksburg, West Virginia. After arriving at the Quarry Apartments, where the victim resided, the petitioner and Bouie exited the vehicles, while the other men waited inside the vehicles for their return. Moran testified that after waiting for some time, he exited Thomas' car to see where the petitioner and Bouie had gone but, after walking for only a few seconds, he saw the petitioner and Bouie walking quickly back to the vehicles.
Jennifer Hall, the victim's girlfriend at the time of his death, testified that she had been asleep in bed on the night in question when she awoke to find the victim and another person, whom she could not see, struggling at the bedroom window. She stated that the victim stopped struggling and fell to the floor in a "frog-like" position.8 In an effort to conceal herself, Ms. Hall hid on the floor near the bottom of the bed. Her call to 911 was made at 3:30 a.m. that morning. She testified that she did not alter the crime scene or anything else in the apartment prior to the arrival of the Clarksburg Police. The victim died of a gunshot wound
to his chest.9
Officers responded to the crime scene. Photographs and cast molds were taken of footprints10 discovered in the snow leading both to and from the victim's bedroom window.11 Photographs were also taken of the victim's bedroom window, which the officers discovered half-raised with the screen "cut or torn." A .25 caliber casing was recovered at the scene. Later that day, a resident of the apartment complex informed police that he had observed a Pittsburgh Pirates "P" baseball hat on the grounds of the apartment complex around 7:30 a.m. that morning. The police recovered the hat. Surveillance video taken prior to the crime on January 13, 2010, showed the petitioner near the Quarry Apartments wearing a baseball cap.
The evidence at trial showed that after the petitioner and the other men left the Quarry Apartments, they traveled to a nearby Go–Mart, where security cameras captured their arrival at 3:35 a.m. The gas station video depicts the petitioner wearing what appears to be dark boots and a jacket with white stripes, but without the Pittsburgh Pirates hat that area surveillance cameras had captured him wearing earlier that evening. Thereafter, the petitioner was dropped off at the home of his friend, Timothy Starks, where Starks resided with his wife and children. The petitioner had been staying "off and on" in the first floor "living room area" of Starks' home over a fairly short period of time, "crashing there when he needed to."12 Starks testified that when the petitioner arrived around 4:00 a.m. that morning, the petitioner was carrying two guns. When Starks awoke later that morning, the petitioner was gone without any indication as to whether he would return. The petitioner left behind a cell phone and a Carhartt-type jacket13 slung over a chair in the foyer of the first floor living area of Starks' home.
On January 15, 2010, Clarksburg Police Officer Mike Fazzini14 went to Starks' home15 to inquire as to the petitioner's whereabouts. Starks did not know where the petitioner was, but asked whether he should keep or dispose of the petitioner's Carhartt jacket that the petitioner had left behind on a chair in the foyer of Starks' home. Fazzini told Starks that he should "hang onto" the jacket and then contacted Detective Wygal, who came to Starks' residence. Thereafter, Starks signed a consent-to-search form for the first floor living, kitchen, and downstairs bathroom of his home. Upon executing the search, Starks confirmed that the Carhartt jacket on a chair in the foyer of the lower living area belonged to the petitioner. Inside a jacket pocket, Fazzini found an ammunition magazine containing four .25 caliber cartridges and court documents bearing the petitioner's name. The officers seized the jacket and its contents.
On January 24, 2010, Clarksburg Police Sergeant Joshua Cox, the lead detective on the case, filed an Affidavit and Complaint for Search Warrant (hereinafter "affidavit") for a "white one story residence" located at 118 Anderson Street, Clarksburg, West Virginia, which is where the petitioner resided.16 The items sought by Sergeant Cox were a "black jacket with white stripes on the sleeve and white stripes around the collar, boots or shoes, and any .25 caliber firearm, .25 caliber ammunition or container, knife, box cutter, cell phone, pager, any clothing bearing blood stains and any gray shirts." A circuit court judge issued the search warrant and, during the execution of the warrant, officers discovered and seized, among other items, two pairs of Timberland boots—one black pair (size 10.5) and one tan pair (size 8.5)—and a pair of white Nike tennis shoes (size 9). During trial, an expert for the State testified that the petitioner's size 10.5 Timberland boots fit the impression of the boot taken at the crime scene, although he could not determine whether the petitioner's boots actually made the impression given the absence of any individual features in either the boots or the impression.
In November 2010, Sergeant Cox traveled to a federal correctional facility17 to execute a search warrant for the petitioner's DNA18 and to ascertain the petitioner's foot size. Sergeant Cox advised the petitioner that his DNA was being obtained to compare it to DNA recovered from the Pittsburgh Pirates hat found at the Quarry Apartments. The petitioner admitted the hat belonged to him, but added that other persons also wore the hat. While Sergeant Cox was measuring the petitioner's foot, the petitioner volunteered that he wore a "ten something."
During pretrial hearings held on February 12 and 18, 2014, the trial court received evidence on the petitioner's motions to suppress the Carhartt jacket and the ammunition magazine, which had been seized at Starks' residence, as well as the evidence seized during the execution of the search warrant at the petitioner's home. Sergeant Cox recited the evidence recovered at the crime scene, the images that had been captured on the night in question by various surveillance cameras, and the evidence recovered through the execution of the search warrant at the petitioner's residence, including boots and tennis shoes.19 Sergeant Cox testified that his affidavit seeking the search warrant for the petitioner's residence contained facts within his personal knowledge and was based upon probable cause. Officer Fazzini and Detective Wygal testified regarding their search of the first floor of Starks' home with Starks' written consent during which the petitioner's Carhartt jacket and the .25 caliber ammunition magazine were found. Starks' testimony corroborated that given by Fazzini and Wygal, including his consent to the search of his residence.
By order entered on May 16, 2014, the trial court denied the petitioner's motions to suppress. Regarding the evidence seized at Starks' residence, ...
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