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MailTribune.com
  • Judge convicts Below of murder

    Medford man gets life in prison for strangling girlfriend, Bonnie Payne, in 2011
  • Mitchell Alan Below of Medford is guilty of murder in the strangulation death of his girlfriend, Bonnie Susan Payne, a Jackson County Circuit judge has ruled.
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  • Mitchell Alan Below of Medford is guilty of murder in the strangulation death of his girlfriend, Bonnie Susan Payne, a Jackson County Circuit judge has ruled.
    Judge Tim Gerking sentenced Below to life in prison, requiring him to serve at least 25 years under Oregon's sentencing guidelines.
    Gerking said Below's defense attorneys failed in their legal obligation to prove Below was suffering an "extreme emotional disturbance" and "snapped" when he strangled Payne in their apartment in the 500 block of West Sixth Street shortly after 6 o'clock on the morning of March 4, 2011.
    The three-day trial featured 16 witnesses for the prosecution and just one witness for the defense — psychologist Norvin Cooley.
    Defense attorney Christine Herbert argued for a manslaughter conviction during her closing argument. She and co-counsel Zach Light met their legal burden, she said, which required them to prove 52-year-old Below's major depressive disorder, combined with continuous stress from the couple's chaotic and combustible relationship, had triggered an episode of extreme emotional disturbance. Below could not form the legal intent to murder the 49-year-old Payne because he suffers from a mental illness, she said.
    "This is a pathetic individual," Herbert said.
    Gerking said Below's initial attack when he choked Payne from behind may have been an uncontrollable act on his part. But once Below had Payne on the ground, the defendant chose to proceed to kill the mother of two in a "calculated fashion" by smothering her face with both hands and stepping on her neck for at least two minutes.
    "He knew what he was doing when he was doing it," Gerking said.
    Prosecutor Jeremy Markiewicz detailed Below's brutal attack on Payne in his closing argument.
    The couple had a volatile and chaotic relationship. Following a verbal altercation during which Payne told Below to get out of their apartment, he began assaulting the 5-foot-tall, 100-pound woman, smashing her head into the walls, Markiewicz said. When Payne went to the kitchen to call police, Below attacked her from behind, placing Payne in a crushing stranglehold, he said.
    "He's such a coward he can't even look her in the eye," Markiewicz said.
    After Below pushed Payne down on the floor, he stepped on her throat and covered her mouth and nose with both hands to finish the suffocation. Those steps showed consciousness and intent, Markiewicz said.
    "That is murder," he said. "Nobody said murder was an intelligent decision. But it was intentional."
    Below subsequently dragged Payne's body into the bedroom and covered her with a blanket, Markiewicz continued. He got drunk on a bottle of Jack Daniels, called family members to say goodbye, left an unrepentant note blaming Payne for his actions but asking God to forgive him, then slashed his wrists and neck with a knife as police arrived just in time to save him.
    "The one thing he just couldn't get right that night was killing himself," Markiewicz said.
    Gerking noted Below's lifelong struggle with severe depression, alcoholism and previous suicide attempts. But Below's statements to state psychologist Cynthia Stokes that he wasn't going to "half kill" Payne, combined with the suicide note revealing a consciousness that his actions were morally wrong, helped convince him that Below had formed a conscious intent to kill Payne that night. Below had the capacity to stop his murderous attack, Gerking said.
    "(Below) defeated the extreme emotional disturbance defense by his own capacity (to behave rationally)," Gerking said.
    Payne's mother, Shelly Simmons, spoke briefly before sentencing. Simmons held a photograph of her daughter as she addressed Below. Her family is a small one, consisting of herself, her son and Payne's two children, who did not attend the trial. Simmons said Below has created a void that can never be filled.
    "You destroyed my family. And we'll never be the same again," she said.
    Below spoke briefly, bitterly attacking Simmons' relationship with her daughter, before deadpanning his regret.
    "I'm sorry," Below said, shrugging. "I didn't mean to do it. I'll do the time."
    Below's mother became hysterical after the life sentence was handed down. First crying, then sobbing, she began shrieking that Payne had driven her son "crazy." Below's sister demanded emergency medical crews be called. Paramedics quickly arrived, entered and then left the courtroom after checking on the woman's reported heart and breathing problems.
    Reach reporter Sanne Specht at 541-776-4497 or email sspecht@mailtribune.com.
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