Bluefield Daily Telegraph, Bluefield, WV

August 20, 2013

Charges dismissed

Case dropped against McDowell deputies dropped

Bluefield Daily Telegraph

WELCH — Civil Service cases were dismissed Monday morning against two McDowell County deputies who were suspended after they did not answer a domestic violence call, in a case that led to a murder days later.

Deputies Michael Pertee and Timothy Vineyard were suspended with pay after they did not respond to dispatches resulting from a May 14 call to McDowell County 911. One of the callers, Donald Lee Baker, 52, of the Beartown area of Bradshaw told dispatchers Wesley Payne, 54, of War, was beating on their door and threatening them.

Payne was trying convince a former girlfriend, who was then staying with Baker, to return to him, according to 911 recordings played during Pertee’s hearing Monday.

A few days later on May 19, Payne allegedly shot and killed Baker at his Beartown home. Payne currently faces a charge of first-degree murder and is being held without bond at the Southwestern Regional Jail in Holden.

Prosecuting Attorney Ed Kornish, who was representing the sheriff’s department, asked Sheriff Martin West why Pertee’s termination should be approved.

West said he listened to the 911 tapes showing how Pertee and Vineyard handled the domestic violence calls from Baker’s residence the evening of May 14 and came away “pretty dissatisfied” with the outcome.

“I listened to the tape and I kept hearing the deputies keep putting off responding to a domestic situation. Deputy Pertee was called in, he listened to the tape with us and he was given a copy of the reason why I suspended him,” West said.

Domestic violence calls usually take precedence over other calls because of the dangers involved, West said. Officers who attend the West Virginia State Police Academy are taught this fact.

“Domestics have precedence because of the seriousness of it and because so many people get killed,” West stated. “On a domestic situation, so many officers get killed. The deputy is a trained, certified police officer, and he was trained at the academy to respond first to domestics because of the number of deaths that occur.”

Baker and his girlfriend told 911 dispatchers that Payne had threatened to burn down their residence and kill them, and that he “was high on something,” West said.

In the recordings, Baker described the physical location of his home and how deputies could find it. Payne departed after the first call to 911, but returned soon afterwards. Pertee contacted 911 and asked if an officer who was closer to Beartown could handle the incident, according to the 911 record. Dispatchers later thought Vineyard would handle the call.

Mike Spradlin, an investigator with the McDowell County Prosecuting Attorney’s Office, testified that he looked into the incident, and how Baker’s girlfriend stated nobody arrived to answer their calls the evening of May 14.

Pertee’s attorney, Kathy Brown, said the 911 tape showed how her client was in Mercer County when he received the call and needed time to reach Beartown. When questioned by Brown, Spradlin said he did not speak with Pertee during his investigation. Pertee had made a stop at a mental hygiene center in Princeton.

Brown argued with Pertee that a letter given to him about his suspension did not state why he was being suspended, and was not told he could appear before the sheriff and not a Civil Service board.

Brown asked the board to dismiss the petition to terminate Pertee’s position, who had not learned about the hearing until a story about it was published in The Welch News. Brown also said Pertee should have been given an opportunity to explain himself in writing, and argued he had not been given due process.

“Even criminals in this county have been given more due process,” she said.

Kornish said the sheriff would oppose dismissing the termination request. He argued West “substantially” met the requirements for due process when he played Pertee the 911 tape and told him why he was being suspended.

After deliberating in private for approximately 10 minutes, attorney Philip LcCaria, the board’s chairman, said the case would be dismissed.

“This case puts the board in a very difficult position,” LaCaria said.

“We agree at least prima facie-wise, the public was ill served. We’re not saying who was at fault or whether it was a misunderstanding. Based upon the tape itself, that’s unacceptable behavior.”

“I’m not convinced whether the officers going up there that day would have changed anything, but who is to say what the future would bring. But at this point based upon the evidence presented to this board, we do agree with defense counsel that the statutory policies were not followed in this case. We believe unanimously that we have no alternative but to dismiss this case against officer Pertee,” LaCaria said. There was applause when he made this announcement.

Vineyard’s case was dismissed within a few minutes since its circumstances were almost identical to Pertee’s case, Kornish said.

“We wouldn’t expect the board to rule any differently,” he said. “The sheriff will continue to refine procedures for discipline, continue to enforce standards, and lead his department.”

West said the deputies would return to duty “immediately.”