BOSTON, April 23, 2015—The man who gunned down 37-year-old Ismael DelValle outside his estranged wife’s family home has once again been denied a new trial, Suffolk County District Attorney Daniel F. Conley said today.

HOWARD “BIG” PAYNE (D.O.B. 11/14/46), a.k.a. ROBERT WISE, was denied his third attempt for a new trial after the state’s Appeals Court ruled that he was repeating an argument the court had already denied in his previous appeal.

Payne, who represented himself for the purposes of his latest appeal, argued that he was entitled to a new trial and that his second-degree murder conviction for DelValle’s 2006 shooting death should be reduced to voluntary manslaughter.  The Appeals Court denied his first appeal in 2011 and in 2014 affirmed the ruling of a lower court judge who denied Payne’s motion to have on his conviction vacated or reduced to manslaughter.  In an unpublished decision issued today, the court ruled that he had made the exact same argument in his second appeal.

“Contrary to the defendant’s claim that this court did not address that claim, the panel in that appeal held that ‘the evidence plainly was sufficient to support a conviction for murder in the second degree’ and went on to explain why,” the justices wrote, quoting last year’s decision.  “The defendant is barred from relitigating this issue in his appeal.”

A Suffolk Superior Court jury convicted Payne in 2007 of fatally shooting DelValle on Feb. 10, 2006, and of illegally possessing the firearm and ammunition used in the killing.  DelValle, who was living in Brockton at the time of his death, went to the Hollingsworth Street home of his estranged wife’s family and had spent time with his son and stepdaughter, then ages 13 and 15.  DelValle and his wife became involved in a verbal argument, during which the woman took a phone call from Payne, with whom she had a friendly relationship.

DelValle left the home and, within minutes, residents inside heard gunfire.  Family members ran outside and attempted to render aid to DelValle, who had been shot three times in the chest and arm.  He succumbed to his injuries at Boston Medical Center.

Witnesses observed Payne near the scene of the shooting as he entered his dark blue Chevrolet Suburban and drove from the area.  Boston Police homicide detectives found blood on the vehicle’s door and inside the vehicle, and multiple rounds of .357 ammunition consistent with the bullets that killed DelValle were recovered from inside Payne’s Weymouth home.  Cell phone records also placed Payne in the area of Hollingsworth Street immediately before and after the shooting and then in Virginia in the days following the murder.  He later turned himself in to authorities.

Assistant District Attorney Jack Zanini, chief of the DA’s Appellate Unit, argued the case on appeal.  Former Assistant District Attorney Cory Flashner prosecuted the case at trial.

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All defendants are presumed innocent until and unless proven guilty beyond a reasonable doubt.