ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Friday, November 8, 1996 TAG: 9611080090
SECTION: NATIONAL/INTERNATIONAL PAGE: A-1 EDITION: METRO
DATELINE: RICHMOND, VA.
SOURCE: Associated Press
Gov. George Allen commuted the death sentence of a prisoner convicted of killing a fellow inmate after the victim's mother and members of the jury that condemned him asked Allen to halt the execution.
Allen reduced Joseph Payne's sentence to life in prison without parole Thursday, three hours before Payne was to die by injection at 9 p.m. The U.S. Supreme Court had rejected Payne's final appeal at noon.
``My decision is based on consideration of the totality of the records and on no single item,'' the governor said in a four-paragraph statement.
His statement said he gave no weight to pleas from four members of the jury that convicted Payne in 1986 of David Dunford's murder. Allen, a staunch death penalty proponent, refused to elaborate.
Payne, 40, heard the news shortly after 6 p.m. on a television outside his cell in the death chamber, said his attorney, Paul Khoury.
``It's a little bittersweet for him. Being told he has no possibility of parole takes away some hope,'' Khoury said. ``He was stoic when he was preparing to die and he was stoic when he got the news he would live.''
Payne's first concern after hearing the news was contacting his wife, Khoury said.
Khoury had presented Allen affidavits from inmates who said another inmate, Robert Smith, trapped Dunford in his cell, doused him with paint thinner and set him on fire in 1985. Dunford died nine days later without identifying his killer.
Smith, described in court papers as a ``known liar and prevaricator,'' was the lone prosecution witness at Payne's trial. Fifteen years were deducted from Smith's 40-year armed robbery sentence after he testified.
In 1987, however, Smith briefly recanted his testimony against Payne, only to reverse his recantation later. He said he initially recanted so other inmates would stop calling him a snitch.
Payne's lawyer, however, rested the defense case after calling just one witness, who testified that Smith set Dunford on fire. Several other inmates who were also scheduled to finger Smith in their testimony waited in a locked van outside the courthouse and never took the stand.
Michael Morchower, one of Payne's three court-appointed trial lawyers, said those other inmates ``were so cluttered with credibility problems. They made multiple statements over a period of time, and were very impeachable on cross-examination.''
During appeals, one inmate swore he saw Smith walk up to Dunford's cell with a paint can and then run. Two others said they heard Smith brag about killing Dunford.
State appeals courts, however, ruled that the inmates lacked credibility and a three-judge federal appeals court concurred.
The four jurors said in affidavits during recent weeks that if they had they heard the inmates testify, they would not have given Payne the death penalty.
Reba Dunford, the victim's mother, said, ``I have doubts that Joe Payne killed my son.''
Jury members welcomed the news that the sentence had been commuted.
``My personal opinion, I think that's more than fair,'' juror Robert W. Stinnett said. He said he had doubts about the sentence after reading the inmates' statements.
``Him getting his sentence commuted, that's fine with me,'' said juror Phyllis Joan Forrester, who was also swayed by the prisoners' claims that Payne was innocent.
LENGTH: Medium: 69 lines ILLUSTRATION: PHOTO: (headshot) Payneby CNB