Payne

The defense’s main mitigation expert finally testified Tuesday amid continuing long-standing arguments between the state and defense about what he could say.

When forensic psychologist Thomas Reidy did take the stand, he didn’t unleash any surprises for anyone following the Christopher Mathew Payne capital murder trial.

Reidy testified that Payne, 30, was reared in a dysfunctional household around people with addictions and became a heroin addict.

“How can you be a good parent,” Reidy said, “if you are abusing drugs all day?”

Eventually, Payne hooked up with Reina Irene Gonzales, 24, who was raised in a similar situation, which led to a “toxic outcome” – the deaths of Ariana Payne, 3, and Tyler Payne, 4, in 2007.

“If we have two damaged individuals who come together, then the effect gets multiplied,” Reidy testified.

Reidy said it isn’t unusual for people in those situations not to know how abnormal their lives are.

“What we might consider abnormal, if you’re in a denial situation, you may not see anything wrong,”Reidy said.

Such people are also reluctant to seek help, he said.

Defense attorneys are presenting mitigation evidence – a disrupted childhood, addiction and a “toxic relationship” with Gonzales – in hopes of persuading jurors to choose a life sentence over death for Payne.

Payne was convicted March 17 of two counts of first-degree murder, three counts of child abuse and two counts of hiding a dead body.

Gonzales pleaded guilty to second-degree murder and a 22-year prison sentence in exchange for testifying against Payne.

A Tucson man faces up to 18 years in prison in the slaying of his friend, a University of Arizona student.

Joseph Alexander Tylutki, 20, pleaded guilty Monday to second-degree murder in the Nov. 27, 2007, shooting of Vincent Bohlman, 19.

Pima County Superior Court Judge Michael Cruikshank will sentence Tylutki to a stipulated sentence of 10 to 18 years on April 28.

Tylutki, who originally was charged with first-degree murder, told police he shot Bohlman in self-defense, records show, but police suspected the crime scene was staged.

A witness to the killing told officers Bohlman was weaponless, records show.

Marijuana, which was packaged for sale, was found in the victim’s room, police said.

Bohlman was facing unrelated marijuana charges at the time of his death, records show.

Bohlman and Tylutki graduated from Salpointe Catholic High School in 2006, where Bohlman played football, the Citizen previously reported.

A Tucson teenager pleaded guilty Monday to armed robbery in connection with the slaying of a cabdriver a year ago.

Jessica Rose Gallegos, 17, was charged with first-degree murder, armed robbery and aggravated robbery in the March 2008 slaying of Timothy R. Royce, 27.

Pima County Superior Court Judge Frank Dawley will sentence Gallegos to prison from three to 12.5 years, as stipulated in the plea agreement, on April 21.

Gallegos was originally charged, as an adult, with first-degree murder, armed robbery and aggravated robbery.

Tucson Yellow Cab driver Timothy R. Royce, 27, was shot to death March 5, 2008, during a suspected robbery in an alley north of East Helen Street and west of North Sixth Avenue.

His cab was found stopped at an angle on Helen, its rear tires on the curb and its front tires on the street.

Also arrested on charges identical to Gallegos’ were Ruben Estevan Archunde, 21, and Marisela Narango Pacheco, 31.

Pacheco is set for an April 14 trial before Dawley, but a continuance is being sought.

Archunde’s case has not yet been set for trial.

A Tucson man was sentenced Monday to five years in prison for a drive-by shooting that killed a 55-year-old man last April.

Pima County Superior Court Judge Howard Fell sentenced Ruben Alfredo Rodriguez, 19, to prison after he pleaded guilty to a drive-by shooting charge in exchange for an aggravated assault charge being dropped.

A co-defendant, Ramiro Perez Jr., 29, was sentenced last month to 20 years in prison after pleading guilty to second-degree murder.

Anthony Montoya, 55, was gunned down in a relative’s home at 12:27 p.m. April 12.

Montoya, who lives on Mountain Avenue, was killed by shots fired through the front door of a home in the 7500 block of East Lurlene Drive, near East Golf Links and South Kolb roads, after his 14-year-old granddaughter closed the door on two men, police said.

One of the men came to the home asking for a man the Montoyas did not know. The other man – wearing a mask and holding a pistol – came up to the door about the same time, police said.

The granddaughter slammed the door closed, but at least one of the strangers fired through the door, hitting Montoya, who was standing next to the girl, police said.

Montoya was hit several times and died at a hospital less than an hour later, police said.

McMonigal

A Tucson man was sentenced Monday to more than 128 years in prison for kidnapping, sexual assault and other crimes related to an illegal criminal enterprise that prosecutors say involved intimidating vulnerable women to do its bidding.

His half brother also was sentenced Monday to nearly 24 years for related crimes.

Pima County Superior Court Judge Jane Eikleberry sentenced Howard Ned McMonigal III, 36, to a total of 128.75 years.

McMonigal was convicted of five counts each of kidnapping, four counts of sexual assault, three counts of theft and one count each of conducting an illegal enterprise, aggravated assault, illegal possession of a vehicle and possession of meth.

The longest sentences, 15.75 years, were given for kidnapping, sexual assault and aggravated assault convictions.

Eikleberry also sentenced Ignacio Esteban Rimer, 31, to a total of 23.75 years in prison for one count each of conducting an illegal enterprise, kidnapping, aggravated assault and sexual assault.

McMonigal was acquitted of one count of kidnapping; Rimer was acquitted of two counts of kidnapping.

Deputy County Attorney Kellie Johnson said during trial that McMonigal ran an illegal enterprise out of his mobile home for at least three years starting in 2004 and made a living selling drugs and stolen vehicles.

Christopher Payne listens to arguments during his capital murder trial at Pima County Superior Court on Wednesday.

Christopher Mathew Payne’s family and acquaintances portrayed him as a hard-working employee, loving brother and nephew, devoted son and grandson and doting father during the final phase of his death penalty trial.

“He was very caring and compassionate toward people who were down and out,” his stepmother, Patricia Payne, testified Thursday.

Prosecutors, though, asked defense witnesses about Payne’s darker side.

Patricia Payne testified that one time she noticed a favorite lamp was missing. She found it in her teenage stepson’s closet, being used to grow marijuana plants.

Deputy County Attorney Sue Eazer asked Patricia Payne about a time when her sister suspected Chris Payne was taking advantage of his stepgrandmother.

“I was not aware of that,” Patricia Payne testified.

Maternal aunt Terry White testified that she put up her house to post bond for her nephew after he was jailed on a domestic violence charge.

“Lucky for you the case was dismissed because other witnesses didn’t show up. Otherwise you would have lost your house,” Eazer said.

“That’s right,” White replied.

“Chris paid you back the bond money, though?” Assistant Public Defender Rebecca McLean asked minutes later.

“No!” White blurted.

Earlier, McLean presented a list of mitigating factors intended to persuade jurors to choose a life sentence over death.

McLean said Payne is loved by his family, had a “disrupted” childhood, was addicted to drugs and had a relationship with “toxic” Reina Gonzales.

Payne was convicted Tuesday of two counts of first-degree murder, three counts of child abuse and two counts of concealing or abandoning a body in the deaths of Ariana, 3, and Tyler Payne, 4.

Jurors must find whether each mitigating factor is more likely than not true, then must give each factor weight compared to the aggravating factors – there was more than one victim, the victims were minors and their deaths especially cruel and heinous – in deciding whether to send Payne to death row.

This final stage of the trial is expected to run into next week. Jurors will return Tuesday.

Payne’s life was disrupted when he was 4 months old and his mother was told she had brain cancer, McLean said.

After she died, Payne’s dad, Forrest, became depressed and drank heavily, McLean said.

In high school, Payne began hanging out with other kids who used drugs, but he also became involved in community service at a nursing home.

At one point, Payne’s family entered him into a now-closed rehab facility. Afterward, McLean said, he went through periods when he kept clean, but his addiction escalated.

After divorcing Jamie Hallam, Ariana and Tyler’s mother, Payne met Gonzales and they had a child together. Payne became a stay-at-home dad while Gonzales worked.

Eventually, Payne began working for a medical transportation company where he was considered “mature, dependable and reliable.”

Payne became aware that Hallam had a drug problem, McLean said.

“He knew that CPS wanted him to take the children. He wanted the children and he thought he would be a better parent,” McLean said.

“How could he go from being a good, caring father and a good employee to having children that were neglected and died?”

McLean said an expert witness will testify how Payne’s life devolved, his upbringing contributed to his downfall, his addiction contributed to the tragic spin and a “toxic Reina Gonzales” affected him.

Earlier Thursday, Hallam read a statement to Pima County Superior Court Judge Richard Fields about the impact her children’s death has had on her.

“It saddens me to no end to know my precious little boy and my sweet little girl were treated so cruel,” their mother said.

Hallam said her biggest regret is leaving the children with Payne on Jan. 20, 2006, the last day she saw Ariana and Tyler.

Ariana Payne’s decomposed remains were found Feb. 18, 2007, inside a plastic tub at a North Side storage unit.

Most haunting of all, Hallam said, is knowing that Tyler’s remains will likely never be found.

“How am I supposed to sleep at night knowing my baby will never truly be at rest?” Hallam said. “The sun will come up again for us, but it will never come up for the real victims of this crime.”

Christopher Payne, 30, center, listens to his attorney John O'Brien, left, after the verdict is read in his murder trial at Pima County Superior Court Tuesday.

Payne during his trial last Friday<a href="http://10.4.149.24/archives/local/search/?search%5Bform%5D%5Bfulltext%5D=KELLY+PRESNELL+within+BYLINE"/>

After about a half-hour of deliberating, jurors have decided that Christopher Mathew Payne is eligible for the death penalty.

Specifically, jurors found that the state has proved beyond a reasonable doubt that:

• The victims, his children Ariana and Tyler Payne, were minors and the defendant was an adult at the time of their murders.

• There was more than one murder.

• The murders were especially cruel and heinous.

After a three-week trial, the jury Tuesday found Payne guilty of two counts of first-degree murder, two counts of child abuse and two counts of concealing a human body in the deaths of his two children in 2007.

The trial will now move into the mitigation phase in which defense attorneys will present testimony and evidence it hopes will sway jurors into voting for a life sentence, not death.

Jurors were dismissed for the day while attorneys discussed in chambers with Pima County Superior Court Judge Richard Fields what jurors can be told in the mitigation phase.

The case was expected to resume Thursday morning.

He is convicted of first-degree murder in deaths of children Ariana, 3, and Tyler, 4

Ariana and Tyler Payne

Christopher Mathew Payne rocked slowly in his swivel chair Tuesday as Pima County Superior Court Judge Richard S. Fields examined the verdicts that would decide his fate.

Just a few feet away, Jamie Hallam clasped her hands and tucked them under her chin as she waited to hear whether her ex-husband would be held fully responsible for the gruesome deaths of their children.

Payne’s chair came to a halt as the verdicts were read aloud by a clerk:

Guilty, first-degree murder, in the deaths of Ariana Payne, 3, and Tyler Pane, 4.

Over three hours of deliberations, jurors had rendered the verdicts that would send Payne’s three-week trial into the death-penalty phase.

Jurors also convicted Payne of two counts of child abuse against Ariana, one count of child abuse against Tyler as well as two counts of concealing or abandoning a body.

Jurors were expected to return Wednesday to decide whether Payne is qualified for the death penalty and, if he is, begin hearing defense evidence in favor of a life sentence.

Prosecutors will ask jurors to find at least one of three aggravating factors exist that could call for the death penalty:

• There was more than one victim.

• The victims were minors and the defendant an adult.

• The murders were committed in an especially cruel, heinous or depraved manner.

Prosecutors said they will tell jurors to rely on the evidence brought up at trial and closing arguments to make their decisions on the aggravating factors.

If jurors find at least one of those factors exist, then the trial will move into the mitigation phase in which defense attorneys will present evidence intended to persuade the jury to choose a life sentence over death.

If jurors find that the mitigating factors outweigh the aggravators, Fields will either sentence Payne to life in prison with no possibility of parole or with parole possible in 25 years.

If jurors find the aggravators outweigh the mitigators, Payne will be sent to death row at the Arizona State Prison Complex-Florence. Death penalty cases are automatically appealed to the Arizona Supreme Court.

The last time Arizona executed an inmate was Robert Comer in May 2002.

Ariana Payne’s decomposed remains were found Feb. 18, 2007, in a plastic tub that had been stored at a North Side storage unit.

Tyler’s remains were never found, but Payne confessed to police the children starved to death under his care and he put their bodies in the tub.

Trial testimony showed that Tyler’s body was likely thrown in a large garbage bin by the manager of the storage locker facility and the bin’s contents taken to Los Reales Landfill.

Police searched Los Reales twice, but never found the body.

Prosecutors argued at trial that after Hallam dropped the children off for a visit in January 2006, Payne kept them because he resented paying child support.

After Payne lost his job in April 2006, he began abusing heroin frequently and locked the children in a bedroom closet, where they starved to death in August or September, prosecutors said.

Defense attorneys argued that Payne’s girlfriend, Reina Irene Gonzales, abused and starved the children.

Gonzales, 24, was charged similarly to Payne and might have faced the death penalty if convicted, but pleaded guilty to second-degree murder and gets a 22-year prison sentence in exchange for testifying against him.

Christopher Payne, 30, (center) listens Tuesday to his attorney, John O'Brien, (left) after the verdict is read in his murder trial in Pima County Superior Court. A jury found Payne guilty of first-degree murder in the deaths of his 3-year-old daughter and 4-year-old son in summer 2006. In addition, it convicted him of two counts of concealing or abandoning a body and three counts of child abuse.

Jamie Hallam wipes away tears after learning that her former husband will be held responsible for the deaths of their two children.

Forrest Payne, the father of Christopher Payne, quietly listens as the verdict is read in his son's murder trial on Tuesday at Pima County Superior Court. Jurors found Christopher Payne guilty of first-degree murder in the deaths of his 3-year-old daughter and 4-year-old son.

Degree of father’s culpability at heart of capital trial

Defense attorney John O'Brien makes his closing statement.

It isn’t a matter of whether Christopher Mathew Payne is guilty in the deaths of two of his children, it’s how much of that guilt is his.

Deputy County Attorney Susan Eazer told jurors in her closing argument Monday to hold Payne, 30, fully accountable for the abuse and deaths of his 3-year-old daughter, Ariana, and 4-year-old son, Tyler.

Payne is guilty “as sure as if he picked up a gun and shot them,” Eazer said.

Assistant Public Defender John O’Brien said Payne is no more guilty than his former girlfriend, Reina Irene Gonzales, 24, who pleaded guilty to second-degree murder and will be sentenced in Pima County Superior Court on April 20 to 22 years in prison in exchange for her testimony.

“She was an evil woman who bore malice toward the two children and she acted on that malice and to save herself,” O’Brien said.

Payne is charged with two counts each of first-degree murder, child abuse and concealing or abandoning a body. If he’s convicted of first-degree murder, prosecutors are seeking the death penalty.

Prosecutors say Payne kept custody of Ariana and Tyler, despite a court order granting custody to their mother with no visitation for him, in January 2006 because he resented paying child support and was behind by more than $19,000.

“The final weeks of their young lives were spend in a 5-by-6 dark closet, battered, broken and starving to death,” she said.

“Their final resting place,” Eazer said, hauling out a blue storage tub similar to the one Ariana’s remains were found in, “was a 25-gallon plastic tub.”

According to testimony from their mother and grandparents, the children were “happy, healthy and well-cared for” when they were with their mother, Jamie Hallam, Eazer said.

Testimony points to the time after Payne lost his job with a transportation company in April 2006 as the “turning point” when the children’s lives were doomed, Eazer said.

Payne and Gonzales began getting high every day and Payne began dealing drugs, Eazer said.

Once Ariana succumbed to starvation, Payne put the “lifeless, cold body of his daughter back in the closet with his son, who was still alive and he went out to get high.”

Tyler died about a week later, testimony showed.

Defense claims that 12 of Ariana’s ribs and a shoulder bone were broken before she came to live with Payne contradict testimony and common sense, Eazer said.

Payne’s five-hour statement to police after he was arrested shows that he blames everyone but himself for his woes, Eazer said. His reason for not getting help for the children was likewise as selfish: he knew he’d get in trouble, Eazer said.

When detectives asked Payne if he was in control, Eazer noted, “his reply was, ‘Always.’ ”

“He sat back and he let those children slowly and painfully starve to death,” Eazer said.

“There is no evidence that Christopher Payne premeditated the deaths of his children,” defense attorney O’Brien said in his closing argument.

“He wasn’t there,” O’Brien said.

Payne was arrested March 1, 2006, after Ariana’s decomposed remains were found in a storage locker two weeks earlier. He told detectives that the children had starved themselves to death, according to testimony.

O’Brien allowed that Payne told lies during his five-hour statement to police.

He asked jurors to consider Payne’s heroin withdrawal and whether his confession was voluntary.

O’Brien asked jurors to consider the credibility of certain witnesses, especially Gonzales.

“If you take away the testimony of Reina Gonzales, what has the state proved here?” O’Brien asked.

O’Brien said he tried to go through Gonzales’ statements and testimony to count up her lies, but they were too many to list.

O’Brien noted that Gonzales never testified that she saw Payne hurt the children so much it would have broken bones, as Ariana suffered.

“You can’t tell when the bones were broken,” O’Brien said. “You certainly can’t convict a man of breaking those bones and when is it he is supposed to have broken them.”

O’Brien repeatedly stressed how Gonzales was home in the apartment while Payne was out for hours selling drugs.

“Suppose, suppose, suppose Reina did not care for Jamie Hallam’s children,” O’Brien said. “One of the things that you should consider is that there were three children in the apartment and the one that survived was the one with Reina Gonzales’ DNA.

“Does that mean Chris made good choices? Chris Payne should have done something different, absolutely,” O’Brien said.

“But suppose that this man, misguided as he was in work, though, had that old-fashioned notion that he’s leaving to go to work every morning and that the woman who is the mother of his third child would take care of his other children as well while he was gone; and suppose that Reina as a way of taking care of three children began to put (Ariana and Tyler) into the closet.”

O’Brien said Payne did show an extreme indifference toward his children’s health and safety but that was not premeditation.

Deputy Pima County Attorney Susan Eazer makes a closing argument to the jury Monday in the capital murder trial of Christopher Payne.

Christopher Payne listens to his attorney sum up the case Monday at Pima County Superior Court.

A Tucson man was sentenced Friday to 19 years in prison for a drunken driving crash that involved three cars and killed his passenger.

Pima County Superior Court Judge Deborah Bernini sentenced Mike Allen Schomisch, 45, to 10.5 years for a manslaughter charge in the November 2007 death of Gregory Allgood, 45.

Bernini imposed a total of 8.5 years for other charges including aggravated DUI, aggravated assault, criminal damage and endangerment.

Police said Schomisch was driving his pickup west in the 4900 block of East 22nd Street about 7:20 p.m. Nov. 18, 2007, at high speed when he rear-ended another pickup, pushing it across a raised median and into oncoming traffic, where it collided with a sport utility vehicle.

The three drivers sustained minor injuries, but Allgood later died at a hospital.

Former CPS caseworker Cindy Graupmann goes through paperwork as she answers questions during the trial of Christopher Payne on Friday.

Defense testimony about Arizona Child Protective Services’ role in the fate of the Payne children seemed to help the state more than the defense by showing that their mother appeared to be a better parent.

Defense attorneys for Christopher Mathew Payne called former CPS caseworker Cindy Graupmann to the stand Friday to discuss the situation that led to reforms in the state’s child welfare agency.

Payne is accused of abusing Ariana, 3, and Tyler Payne, 4, starving them to death and hiding their bodies in a storage unit. If convicted of first-degree murder, he could face the death penalty.

Payne has claimed that he kept the children, despite a court order that banned him from being with them, for their safety because their mother, Jamie Hallam, was abusing drugs and neglecting them.

Graupmann, who retired in September, testified she was assigned to investigate a neglect claim against Hallam in October 2005.

Graupmann testified that she saw Ariana and Tyler twice over a five-month span and they appeared to be healthy and well cared for.

In February 2006, despite no evidence that Hallam was using drugs or neglecting the children, Graupmann advised Payne to keep the children.

The defense also called a nurse practitioner who saw Ariana twice in 2004. The girl was behind on her immunizations and underweight after a bout with a lung infection, but otherwise OK, according to testimony.

After those witnesses, the defense rested.

Prosecutors called Richard Barcalow of Catalina, Hallam’s stepfather, as a rebuttal witness.

Barcalow said Hallam was a good mother and that the children were well-fed, well-clothed, playful and healthy in her care.

After the jury was dismissed for the weekend, defense attorneys asked Pima County Superior Court Judge Richard S. Fields to rule that the state hadn’t proved its case against Payne for first-degree murder, child abuse and concealment or abandonment of a body.

“The evidence is that Reina Gonzales (Payne’s live-in girlfriend) had the children during the day and was not feeding them,” Assistant Public Defender Rebecca McLean said. “She, in fact, caused the death of the Payne children.”

“It was his decision to keep them in the closet,” Deputy County Attorney Susan Eazer argued. “He watched them as they slowly starved to death. He did not get help. They were abused, emaciated and dying. In his own words, he feared he would get in trouble (if he sought help for them).

“It was his conscious decision to allow them to die.”

Fields denied the motion.

“There is ample evidence that the defendant knew that his failure to feed, provide water or provide medical care or other care for the children” could have caused their deaths or serious physical injury, Fields ruled.

“There was testimony that these conditions such as dehydration and starvation are reversible medical situations,” Fields said.

Jurors will return Monday for final instructions and closing arguments.

Christopher Payne (right) listens to John O'Brien, one of his defense attorneys, on Friday.

Payne

A prosecutor’s questions about confidential child welfare reports and a former caseworker’s comments on a Tucson Citizen blog interrupted Christopher Mathew Payne’s capital murder trial Thursday.

Former Arizona Child Protective Services caseworker Cindy Graupmann had just taken the stand late Thursday afternoon when Deputy County Attorney Susan Eazer lodged an objection.

After the jury was dismissed, Eazer told Pima County Superior Court Judge Richard S. Fields that the defense hadn’t disclosed that it had unredacted CPS records it shouldn’t have had.

Fields told attorneys to come back earlier than usual Friday to continue discussing the matter as well as an earlier situation involving Graupmann and blog comments.

Graupmann admitted to Eazer that she had made comments on the Tucson Citizen’s trial blog that disparaged Jamie Hallam, the mother of Ariana and Tyler Payne and Payne’s ex-wife.

“The saddest part is that Jamie Hallam is responsible just as much as Christopher Payne,” Graupmann, who is unemployed, wrote March 3 under a fictitious name.

Eazer wants to use Graupmann’s comments to impeach her testimony.

“Aside from the bias the witness brings into the courtroom, as a CPS worker, one of the things that she blogged about contained information about a subsequent case that clearly she learned about while still working for CPS that was totally confidential,” Eazer said.

“She is breaking every rule known to CPS, that CPS has out there, which is exactly what she and her supervisor did March 9,” Eazer said.

Eazer was referring to the 2006 incident in which Graupmann and her supervisor Christy Tarpley advised police to allow Payne to keep his children despite a signed court order giving custody to Hallam. Hallam had complained to police in 2006 that Payne had taken the children for a visit and refused to return them. She called police, who went to Payne’s house and then called CPS.

“I never told the officer to do that,” Tarpley testified Thursday. “I told him if he had the court paper, that was the answer.”

Tarpley said she remembered talking to Officer William Nutt, who testified previously that Tarpley told him to leave the children with Payne, because she “laughed about his name.”

Despite a CPS letter dated March 1, 2006, that cleared Hallam of an unsubstantiated charge, Tarpley said the case wasn’t closed then.

“The button was not pushed,” Tarpley said, explaining that the unit issuing the letter was “a mess” at that time.

Prosecutors say Payne kept the children after Hallam left them for the visit because he didn’t want to pay child support. When his girlfriend, Reina Irene Gonzales, complained of caring for them, Payne shut them in a closet and starved them to death over a period of months in 2006.

Ariana’s body was found in February 2007. Tyler’s body has never been found.

Defense attorneys say Gonzales abused and starved the children. Payne faces the death penalty if he’s convicted on either of two first-degree murder charges.

Hallam settled a lawsuit against CPS, Graupmann and Tarpley for $1 million. A suit against Tucson police is pending.

Earlier, Tarpley questioned why she was even called to testify for the defense.

“I didn’t look at any of this and I really don’t care,” Christy Tarpley said, when shown reports on the case.

“I was shocked when I got a subpoena yesterday and I’m just trying to figure out what I’m doing here,” said Tarpley, who now works for the Pascua Yaqui tribe.

“Just another CPS nightmare,” she said, shrugging.

Christopher Mathew Payne’s defense team was thwarted Wednesday in its attempt to present evidence intended to deflect blame to ex-girlfriend Reina Irene Gonzales.

The defense wanted to elicit testimony from Gonzales and convicted drug dealer Debbie Reyes about allegations that Gonzales threatened to kill Ariana Payne and Tyler Payne.

Defense lawyers contend that Gonzales abused and starved the children to death, not Payne.

Deputy County Attorney Susan Eazer objected to such testimony, especially since Pima County Superior Court Judge Richard S. Fields ruled previously that the state couldn’t present alleged domestic violence acts involving Payne, Gonzales and Payne’s ex-wife, Jamie Hallam.

“He has a very violent temper,” Eazer said. “He has a rage within him. And the state has not been allowed to elicit any of that.”

Fields ruled Wednesday the defense could question Gonzales and Reyes again, but couldn’t ask about the alleged statements.

After jurors left for the day, Gonzales was called to the witness stand and she denied threatening the children.

Later, Reyes testified Gonzales did ask Payne to come home and take care of the kids or she would kill them, not specifying which children. Gonzales and Payne also have a child together.

The women’s testimony was put on the record for appeal purposes, but won’t be given to jurors.

Prosecutors say Payne abused Ariana and Tyler and starved them to death over several months. Ariana died first, with Tyler dying about a week or so later.

Prosecutors are seeking the death penalty if Payne is convicted on either of two first-degree murder counts.

Earlier Wednesday, after calling Payne’s father and aunt and a friend of Gonzales to testify, prosecutors rested their case, while reserving the right to call rebuttal witnesses.

Forrest Payne said his grandchildren were “healthy as bears” when he last saw them in February 2006.

Forrest Payne also testified that he was glad to give his son money any time he wanted it and often paid for his rent and utility bills.

Forrest Payne said he advised his son to seek help from the Diocese of Tucson if he needed to feed or clothe the children, or ask his aunt or father for money.

Terry White, Payne’s paternal aunt, testified that Tyler, then 3, appeared “fine” when she saw him in April 2006, but Ariana, then 2, “looked a little scrawny.”

“She didn’t look, didn’t sound happy,” White said. “Her hair was all messed up.”

White said her nephew told her Ariana got up in the middle of the night, looking for potato chips.

“I remember telling police I felt sorry for her,” White said.

White also testified that she told police that Chris Payne wanted the children to live with him so he didn’t have to pay child support.

Months later, White visited Payne’s apartment again to deliver tamales, but she didn’t see Ariana or Tyler.

White said she told police Payne often yelled at the children and “didn’t have any patience” with them.

Carolina Calderon, a former friend of Gonzales, testified Tyler was sad and bruised when she last saw him in the middle of summer 2006.

Calderon said when Ariana and Tyler first came to live with Gonzales and Payne, they were well-behaved, clean and healthy.

The defense presented its first two witnesses, an officer who was called to Payne’s apartment regarding the children’s custody and a former co-worker.

Officer Rene Gomez testified that when he accompanied another officer to Payne’s apartment in February 2006, he didn’t see anything that concerned him about the children’s welfare.

Former co-worker Jeanne Nix testified that Gonzales called Payne up to three or four times a day from January 2006 to the end of March, when Gonzales often became angry if Payne didn’t return her calls.

Defense attorneys have refused to release a witness list, so it’s unknown how many witnesses will be called to the stand when the trial resumes Thursday morning.

Pima County Superior Court is seeking applicants to fill a vacancy created by the upcoming retirement of Judge John E. Davis.

Davis will retire March 29.

Applicants must be at least 30 years old, admitted to practice law in and a resident of Arizona for the past five years, and a resident of Pima County for the past year.

The Pima County Commission on Trial Court Appointments will process the applications, interview selected applicants and recommend at least three people to Gov. Jan Brewer, who will appoint the new judge.

Applications are due by April 3.

Applications are available at http://supreme.state.az.us/jnc/Apply.htm, by sending an e-mail to jnc@courts.az.gov or by calling 602-452-3311.

Commission meeting dates will be announced next month. All meetings are open to the public.

A houseguest who was unaware two children were being kept in a closet and starved to death testified in the capital murder trial of Christopher Mathew Payne that she once heard a boy utter, “Daddy!”

Convicted drug dealer Debra M. Reyes, 42, said she was taking a shower in Payne’s apartment, unaware that on the other side of the wall, Ariana and Tyler Payne were held captive in the bedroom closet.

“I heard a cry, ‘Daddy!,’ and that was it,” Reyes testified Thursday. Payne is on trial in the deaths of his children, Ariana, 3, and Tyler, 4.

Reyes said she “assumed” it was Payne’s 2-year-old son with Reina Irene Gonzales but that “it didn’t really sound” like the younger boy.

Reyes testified that she came to live with Payne and Gonzales in late June 2006. At that point, Payne began working full time for her in drug sales, according to testimony.

Up until a few days before Reyes and three other men moved into the one-bedroom apartment, Reyes said Gonzales called Payne constantly to complain about caring for his older children.

Gonzales testified this week that Payne’s solution to end her calls was to lock the two older children in the closet around the clock.

Reyes testified that she had previously seen the older children at the apartment and when she asked Payne where they were, was told they were with their mother.

Also on Thursday, jurors listened to a recording of a jail visit between Payne and his stepsister, Deborah Barbone, days after his March 1, 2007, arrest.

Payne sobbed over the absence of Gonzales, accused her of betraying him and threatened to kill himself or perhaps exact revenge on Gonzales and others.

By this time, detectives had told Payne that Ariana’s badly decomposed body had been found in a plastic tub in the trash bin of a storage unit on Feb. 18, 2007, but Tyler’s body hadn’t been found.

Payne told Barbone, as he told detectives, that the children starved themselves to death because they couldn’t be with their mother and he’d put both bodies in the plastic tub.

“Debbie, you know what’s going to happen to me?” Payne said. “They’re gonna put me away forever. I can’t deal with that.

“I’ve got to go to a better place where I don’t have to worry about nothing,” Payne said. “If something happens, it’s in God’s hands now.”

Payne suspected then that Gonzales had betrayed him, which is why she didn’t visit. Gonzales wasn’t arrested until March 8.

“I don’t think it’s fair that I’m stuck in a cage like a (expletive) animal,” Payne said.

Detectives had told Payne that Ariana’s body was discovered after the rent for the storage unit went unpaid, which Payne blamed on Gonzales.

Payne’s voice was strong and clear when speaking of getting revenge on unnamed people.

“My beef with these people goes way back and I think it’s gonna happen now!” he exclaimed.

Then Payne broke into whimpers, missing Gonzales.

“I’m so scared,” he said.

“You know why?. . . she’s probably gone,” Payne said clearly. “If that’s the case, then they’re gonna have to come out in the laundry. All things are gonna have to start coming out in the laundry.

“I’m not going to take this out on my own if she’s not going to support me,” he said. “This is not my fault.”

Defense attorneys say Gonzales was in charge of child care and is most responsible for the deaths of Ariana and Tyler. Gonzales pleaded guilty to second-degree murder in exchange for her testimony against Payne. She had been charged with first-degree murder and was facing the death penalty if convicted.

Reyes is expected back on the stand Friday afternoon after morning testimony from other witnesses.