To The
Honorable James S. Gilmore, III
Governor of the Commonwealth of Virginia
‘A PETITION
FOR
EXECUTIVE CLEMENCY
FoR
one
CARL HAMILTON CHICHESTER
Scheduled to be executed on
Tuesday, April 13, 1999
ES
This Case Presents
Truly Extraordinary Reasons
Why Chichester Should Not Be Put To Death
Two of the eyewitnesses to these offenses,
Patricia Eckert and William Fruit, initially stated
that they believed the triggerman to be the suspect
who jumped over the counter
[who prosecutors claimed was not Carl Chichester.]
Sworn pleading of Assistant
Commonwealth’s Attorney
Richard Conway
I received information from a concerned citizen that the
citizen was present when a subject identified as Billy Cain,
white male, sixteen years of age, made a statement that he
and a subject known as "L.A." went into Little Caesar’s
Pizza Shoppe and that he, Billy Cain, shot the man because
he thought he was "going for a gun". Through my
investigation of police department and juvenile court
_records, I have learned the subject known as "L.A. # has a
real name of Nathaniel Dixon, black male, sixteen years of
age. According to those records, Mr. Dixon resides at 7687
Callan Drive, Manassas, Virginia.
Sworn Affidavit of Detective
C.B. Sowards
[The attorneys’ brief in this case] is the sorriest thing I have
read from anybody. ... It’s an embarrassment. It’s no
brief. It’s nothing but a bunch of sentences. . . . [If the
attorneys’ performance is not outside the range of
competence required in Virginia] then the system is a farce.
It is an absolute farce if that’s the truth... .
This is awful.
Statement of United States
District Court Judge Robert
E. Payne
If this execution is to be carried out in my name,
based on my verdict,
then Mr. Chichester should not be executed.
Statement of Chichester
juror, Camille Houston
I ask the Governor to reevaluate the case in light of this
evidence that was never presented to us. I no longer have
faith in my verdict. I do not believe the verdict is correct
given this evidence.
Statement of Chichester
juror, Diana T. Hyman
_.. » A Summary Of Reasons
Why Chichester Should Not Be Put To Death
The prosecutor, police, and trial lawyers had
statements from two eyewitnesses that Chichester
did not kill Timothy Rigney but never told this to the
jurors.
‘The prosecutor, police; and trial lawyers had
information that two persons named Billy Cain and
Nathaniel Dixon said that they did kill Timothy
Rigney but never told this to the jurors.
Jurors say that, had they been told this information,
they would not have convicted Chichester of
shooting Timothy Rigney, and would not have
sentenced him to death. These jurors plead with the
Governor not to carry out the execution in their
name and based on their verdict.
The unexplained inability of the prosecutor, police,
and trial lawyers to locate a witness whose name,
address, and telephone number are published in the
local public telephone directory calls into doubt the
sincerity of their efforts. The doubt becomes grave
when it is also considered that this "un-discoverable"
witness would provide undeniable testimony
contrary to the prosecution’s theory of the case.
The claimed inability of the prosecution and police
4
to locate an exculpatory witness is further suspect
because, according to the assistant prosecutor on the
case, he actually did contact the mystery witness’
parents after the crime, and that they indicated that
they did not want their son involved further in the
case.
Jurors were never told that the "squarish shaped . . .
. box like" gun described by one of the eyewitnessés
as the gun held by Chichester could not have fired
the shot that killed Timothy Rigney.
The forensic testimony presented to jurors by the
prosecution was incorrect, and Chichester was never
given an opportunity to rebut it with accurate
testimony. Accurate testimony would have shown
that there was no physical evidence that Chichester
shot Mr. Rigney.
Chichester’s co-defendant, Sheldon McDowell, who
two eyewitnesses said they believed killed Mr.
Rigney, is serving only a term of years, and will
someday be paroled. The jurors who convicted and
sentenced McDowell never heard the information —
from these two eyewitnesses.
Chichester did not kill Timothy Rigney and the
evidence that was never presented to the jury creates
more than a reasonable doubt about his guilt - as
proved by the affidavits of Chichester’s jurors.
5
Since Chichester did not kill Mr. Rigney, he cannot
be convicted of capital murder, and should never
have become eligible for a death sentence, let alone
be put to death.
A. Introduction
Carl Hamilton Chichester did not shoot Timothy
Rigney, according to eyewitnesses to the crime.
Nonetheless, Chichester will be executed on April
13, 1999, unless the Governor intervenes. Chichester asks
' that the Governor commute his sentence to life in prison. ‘~
Chichester was sentenced to death because he was
believed to be one of the two masked robbers of a Little
Caesar’s Pizza, in Manassas, Virginia. During the robbery,
one of the robbers shot the store manager, Timothy Rigney.
Mr. Rigney died of the single gunshot wound from a .380
handgun.
There is no dispute that two eyewitnesses to the
crime reported to police that the person the prosecution
said was Chichester did not shoot the victim in this case.
Neither is it disputed that Chichester’s lawyer
failed to tell jurors this crucial fact.
Even more incredible, however, is the fact that
the name, address, and telephone number of one of the
exculpatory eyewitnesses’ were in the local public
telephone book, but Chichester’s lawyer never bothered
to locate or contact him!
A third eyewitness described the weapon held by
the robber prosecutors said was Chichester as one which
could not have killed Mr. Rigney.
Moreover, a police officer investigating the case
reported in a sworn affidavit that he was told by a
"concerned citizen" that two other people admitted that
they committed the crimes at the Little Caesar’s Pizza.
“Although police had the names of these’ allegedly
confessed killers, and the address of at least one of the
two, they never located or questioned them.
Chichester’s attorneys requested but were refused the
assistance of a trained investigator to help them find the
two allegedly confessed killers.
B. The Facts of the Crime
The crime at issue involved the armed robbery of a
pizza shop in Manassas, Virginia. At about 10:45 p.m.,
two masked robbers entered the store. One jumped over the
service counter and stood on the "employee" side while the
other remained in the "customer" area. Both were armed
'’ with handguns. The victim was the store: manager, Timothy
Rigney. He was shot a single time by a .380 caliber
handgun.
There were four eyewitnesses to the crime: William
Fruit, Denise Matney, Patricia Eckert, and Robert Harris.
Fruit and Matney were employees of the Little Caesar’s and
stood on the employee side of the counter. Eckert and
Harris were customers and stood on the customer side of the
counter.
At the time of the crime, Fruit and Eckert reported
to police that Mr. Rigney was shot by the robber on the
employee side of the counter. (Prosecutors argued at trial
that Chichester was the robber on the customer side of the
counter. Prosecutors said that the robber on the employee —
side of the counter was Sheldon McDowell. Despite the
statements of these witnesses, prosecutors only charged
- McDowell as a principal in the second degree. He is
serving only a term of years. McDowell never testified
about who shot Mr. Rigney.)
Denise Matney was not sure who shot Mr. Rigney,
and Harris placed the "shooter" on the customer side. See.
Chichester v. Taylor, No. 98-15, slip op. at 4 (4% Cir.
January 6, 1999).
Chichester and Sheldon McDowell, each of whom
already was charged in the robbery of another area pizza
store, were charged with the crimes at Little Caesar’s.
By the time of the trial (more than two years later
and after Mr.Chichester had pled guilty to another robbery
of a pizza store), Eckert said that she was no longer sure
who shot Timothy Rigney. Matney testified at trial that she
now believed that the shot came from the customer side of
the counter. Harris placed the shooter at the same position
as he had in his report to police. Mr. Harris testified that he
believed the robbers to be black because of the sound of
their voices.
Jurors heard nothing about Fruit’s account of the
crime and nothing about the changes in the reports of
eyewitnesses Eckert and Matney. Trial counsel made no
effort to subpoena Fruit to Chichester’s trial, and, although
his name, address, and telephone number were in the local
public telephone book, did not contact him. App. 9.
Jurors also never heard evidence that a police
detective, Detective Clifford Sowards, filed a sworn
affidavit with the court stating the following:
10
I received information from a concerned citizen that
the citizen was present when a subject identified as
Billy Cain, white male, sixteen years of age, made a
statement that he and a subject known as "L.A."
went into Little Caesar’s Pizza Shoppe and that he,
Bill Cain, shot the man because he thought he was
"going fora gun". Through my investigation of
police department and juvenile court records, I have
learned the subject known as."L.A." has a real name
of Nathaniel Dixon, black male, sixteen years of
age. According to those records, Mr. Dixon resides
at 7687 Callan Drive, Manassas, Virginia.
App. 3. Despite having this information, police never
located or contacted these alleged killers. Also, police
never revealed to Chichester’s lawyers the identity of the
"concerned citizen" who was the source of the information
in the affidavit. Chichester’s lawyers requested the
assistance of a trained investigator to locate Billy Cain and
Nathaniel Dixon, but were refused.
The Virginia Supreme Court reasoned that since the
police could not find these two, there was no reason to give
Chichester a chance to find them. But, since the
Commonwealth had already decided to charge Chichester
with the crimes at the Little Caesar’s, police had little or no
motivation to seek other suspects. For Chichester, on the
other hand, it was quite literally a matter of life or death.
Because Virginia law prohibits courts from
a1
considering evidence not presented at trial - even if it is
evidence of innocence - the Governor will be the one and
only person who will ever consider this evidence.
C. The Evidencé*Of-Jiinocence In This Case
1. William Fruit
Mr. Fruit reported: to police that he believed’ that the
person on the employee side of the counter shot Mr. Rigney.
He had been making and cutting pizzas in the back of the
store when the robbers entered.. The robber on the
employee side of the counter brought him up to the cash
register area.
Fruit maintained his poise and wits during the
robbery while others were overcome with fear. According
to Denise Matney, the store manager trainee, who froze out
of fear, it was Fruit who came forward to ensure that the
robbers’ requests were complied with in a manner likely to
minimize confrontation and violence. As mentioned
earlier, Fruit’s composure was acknowledged by others at
the scene, including Denise Matney.
William [Fruit] was cutting and taking pizzas out of
the oven and cutting them. And this guy who
jumped over the counter, went around, got William,
walked him around here to the cash register and then
he - one of them - one of them told us to get it open.
And I was so scared and I just like stood there
12
shaking because I was so scared. And then William
told me to get the register open. And so I pressed
the No sale [sic] button and I opened up the register
and the guy who jumped across the counter, he took
the money out of the register.
Mr. Fruit was 16-years old at the time.
Immediately after the crime Fruit told police that the
person who shot Timothy Rigney was standing on the
employee side of the counter (where prosecutors claimed
McDowell stood). App. 2. Police apparently recorded an
incorrect address for Fruit. Prince William County court
records show that, by the date of the crime, the Fruits had
sold the house at the address recorded by police. App. 15-
16.
This is especially troubling because, according to
Assistant Commonwealth’s Attorney Richard Conway’s
sworn affidavit, he was in contact with Mr. Fruit’s parents
prior to the February, 1993, trial of Chichester’s co-
defendant, Sheldon McDowell. App. 13-14.
Neither the Commonwealth’s Attorney’s office nor
the County Sheriff’s office has explained how they could fail
to successfully locate and serve a subpoena on a witness
whose name, address, and telephone number were in the
local public telephone book.
Of course, since the Commonwealth’s Attorney’s
13.
office had already determined that they would prosecute
Chichester rather than McDowell as the "triggerperson" for
the shooting, they had no incentive to try to locate a witness
like Mr. Fruit who said that McDowell, rather than
Chichester, shot Timothy Rigney.
In any event, in addition to the fact that the family’s
correct address was in the local public telephone directory,
"the Fruits kept the same telephone number at both’
addresses.
Even if the Commonwealth’s Attorney’s office
might have been happy if Mr. Fruit was never found,
Chichester’s lawyers certainly should have had great
motivation to find him. It is incredible, and inexplicable,
that the lawyers never even bothered to try to contact Mr.
Fruit by telephone, and made no effort to determine his new
address.
Trial counsel candidly admit that they made no
effort to contact Mr. Fruit other than to stop by the address
where they already knew the prosecutor had been
unsuccessful in serving a subpoena on Fruit to come to the
trial of Chichester’s co-defendant, Sheldon McDowell, some
six months before Chichester’s trial. There is no dispute
that, had they looked in the telephone book, the cost of a
local phone call would have put them in touch with Mr.
Fruit.
As demonstrated by the affidavits of the jurors in
14
Chichester’s case, the evidence of Fruit’s initial account of
the crime would have raised a reasonable doubt in jurors
minds whether Chichester was the robber who actually shot
Timothy Rigney. App. 10-12.
Unless all twelve jurors were convinced beyond a
reasonable doubt that Chichester, rather than McDowell,
shot Mr. Rigney, Chichester could not be convicted of
- Capital murder. .A person must be convicted of capital
murder before a jury can even be asked to determine
whether the person is eligible for a death sentence. Only
after the jurors have decided unanimously and beyond a
reasonable doubt that the defendant is eligible for a death
sentence, do the jurors begin to make the decision whether
the death penalty is the appropriate sentence for that
defendant.
If jurors had reasonable doubts about whether
Chichester shot Mr. Rigney they could have convicted him
of first degree murder and sentenced him to life in prison,
but the question whether Chichester should be put to death
could never have been presented to the jury.
2. Patricia Eckert
Like William Fruit, Patricia Eckert told police at the
time of the crime that she believed that the person who shot
Timothy Rigney was the robber who stood on the employee
side of the service counter. App. 2. By the time of the trial
~ which was two years after the crime and which followed
15
Chichester’s plea of guilty to the robbery of another pizza
store - Ms. Eckert said that she no longer was sure which
robber fired the shot. Neither the prosecutor nor
Chichester’s trial attorneys ever told the jurors what Ms.
Eckert recalled about the crime just after it occurred.
Ms. Eckert testified that each of the robbers had a
3. Denise Matney
Denise Matney first told police that she did not
know which masked robber shot Timothy Rigney. Two
years later at the trial she testified that the robber on the
customer side of the counter shot Mr. Rigney. See
Chichester v. Taylor, No. 98-15 (4% Cir. January 6, 1999)
(unpublished).
But Ms. Matney’s description of the weapon held by
the robber in the customer area is one of a weapon that
could not have fired the shot that killed Mr. Rigney. Ms.
Matney described the gun held by the robber in the
customer area as "squarish in shape... . box like,"
matching that of a MAC 11, and not that of a .380. See
App. 4 (photograph of MAC 11) and 5 (photograph of
.380).
It is not disputed that the victim in this case was
killed by a .380-caliber weapon.
16
The only weapon the prosecutor ever associated with
Chichester in these proceedings was a MAC 11.
Ms.. Matney said that the robbery "happened very
fast and I was very scared." She recalled how William
Fruit came to her aid. It was Fruit who came forward to
ensure that the robbers’ requests were complied with in a
manner likely to minimize confrontation and violence.
William [Fruit] was cutting and taking pizzas out of
the oven and cutting them. And this guy who
jumped over the counter, went around, got William,
walked him around here to the cash register and then
he - one of them - one of them told us to get it open.
And I was so scared and I just like stood there
shaking because I was so scared. And then William
told me to get the register open. And so I pressed
the No sale [sic] button and I opened up the register
and the guy who jumped across the counter, he took
the money out of the register.
Joint Appendix in the 4" Circuit 1143-44.
The fact that Fruit was more composed during the
crime counsels a greater reliability in his version of events.
This is made even more emphatic in light of Matney’s
altered recollection of events.
17
— 4. The Commonwealth’s Forensic
Expert’s Testimony Was Wrong And
- Chichester Never Was Given A Chance
To Tell This To The Jurors
The prosecutor presented evidence from a state
forensic expert to support his argument that the victim was
. shot from the customer side of the counter: * The State’s’
experts testified that there was no evidence of gunpowder
residue on the victim’s clothing or body, and that such
residue would be expected if the shot came from within 2-3
feet of the victim. Although the prosecutor never offered
any testimony about the relative distances between the two
robbers and the victim, he argued that this evidence
indicated that the shooter must have been standing on the
customer side of the counter.
Chichester has been refused every request to be
allowed to develop and present his own forensic expert
testimony which would show that Chichester did not shoot
Timothy Rigney. He requests that the Governor provide
this assistance to him now in order for the Governor to -
make an accurate and fair determination on clemency.
A forensic expert would have provided powerful
rebuttal evidence and testimony. For example, an expert
could have dramatically rebutted the prosecutor’s estimation
that powder soot deposits would have been present on the
victim if the gun was within three feet of the victim. See
18
DiMaio, Vincent, GUNSHOT WOUNDS, 60 (CRC Press 1985)
("On the basis of the author’s experience, the maximum
distance out to which powder soot deposition occurs for
handguns is 20 to 30 cm.") A distance of 30 cm is less than
one foot!
This evidence would have rebutted the prosecutor’s
argument that the absence of soot deposits indicates that the
shot was fired from the customer side of the counter. Ar
expert also would have testified that the presence of soot
deposits is dependent on a number of factors, including
range, propellant, angle of the muzzle to the target, barrel
length, caliber of the weapon, type of weapon, target
material. DiMaio at 60. An attachment to the muzzle of a
weapon may eliminate soot deposits entirely. DiMaio at 61.
None of this evidence was investigated or presented.
Because Chichester has been refused the opportunity
to develop and present evidence and testimony from an
independent forensic expert when requested previously, he
now asks the Governor to provide him this opportunity.
This request is appropriate in light of the conflicting
eyewitnesses testimony and the limited circumstantial
evidence in the case. The testing and other analysis
required for the presentation of this evidence would not take
more than a few weeks, and could be accomplished by a
short reprieve from the Governor to allow time for the
testing and analysis to occur, and for the Governor to
review the conclusions of the independent expert.
‘
Lo
D. Chichester’s Lawyers’ Performance Was An
Embarrassment
The representation Chichester received from trial
counsel in this case was extremely poor. The federal
district court judge who reviewed the attorneys’ appeal in
the case called it "the sorriest thing I have read from
anybody." Transcript of 10/7/97 argument at 36. But the
judge did not stop there:
It’s an embarrassment. . . . It’s no brief. It’s
nothing but a bunch of sentences, unconnected, no
cases cited.
Id. When the Attorney General refused to admit that the
brief was outside the range of competency required in
Virginia, the judge admonished:
If that’s true, then the system is a farce. It is an
absolute farce if that’s the truth... . I have never
seen [a brief] that comes close to this. This is
awful.
Id. at 37.
In fact, the lawyer’s brief was more than an
embarrassment; it may have involved a fraud of sorts on the
court. At the beginning of the brief the attorneys listed 60
cases as though these cases were cited as legal support for
the arguments in the brief. But the actual arguments in the
20
brief did not cite a single case! It appears that these cases
were inserted at the beginning of the brief simply to make it
look legitimate. A copy of the brief is attached at App. 17.
Jurors who sat on Mr. Chichester’s trial agreed with
the federal judge’s assessment of trial counsel’s
performance. The foreman of the jury told Chichester’s
counsel that the jurors considered the lawyer’s performance
‘to be "laughable." He noted that he watched one of
Chichester’s attorneys dozing off during the trial.' Jurors
commented to one another about how bad Chichester’s
lawyers.
The comments of the federal judge and the jury
foreman are truly extraordinary. There is something
terribly wrong with a system which would require citizens
of the Commonwealth to determine the guilt or innocence of
another person - let alone to determine whether that person
shall be put to death by the Commonwealth ~ based on
1
This same attorney, in another death penalty case, unintentionally
waived of all of his client’s state habeas claims because he filed the
inmate’s petition in the wrong court. See Lonnie Weeks v. Warden.
In Weeks, Chichester’s trial lawyer was appointed to represent
Weeks in attacking the performance of Weeks’ trial attorneys. At
the same time, Weeks’ trial lawyer was appointed to represent
Chichester in attacking the performance of Chichester’s trial
lawyers. The State Bar issued a Legal Ethics Opinion stating that
"flip-flopping" lawyers in this manner created a conflict of interest.
The attorney’s negligence in filing in the wrong court occurred while
counsel was under this conflict of interest.
21
court-appointed shoddy representation of that person. In
such circumstances, only one party, the Commonwealth, is
even represented in any meaningful way.
E. Why Was No One Told
This Evidence Of Chichester’s Innocence?
It is difficult to imagine more powerful evidence of
innocence that an eyewitness who ‘says that the. suspect did
not commit the crime charged. More difficult to imagine,
however, is a lawyer who knows of such an eyewitness, and
does not make an earnest effort to locate the exculpatory
eyewitness. The lawyer’s neglect become "off the charts"
when all it would have taken to locate the witness was a few
seconds to flip through the local telephone directory.
These un-imaginable circumstances - and more -
should erode all confidence that Chichester was tried,
convicted, and sentenced in a manner that even approaches
"fairness.". The circumstances have shattered the confidence
of jurors at Chichester’s trial.
The testimony and evidence that they did not hear
overshadows what was presented. In addition to the
omission of eyewitness "Chichester- didn’t-do-it" testimony,
jurors also were not told:
that one of the eyewitnesses who testified (more than
two years after the crime) that she could no longer
recall which robber shot Mr. Rigney, told police at
22
the time of the crime that it was McDowell, rather
than Chichester, who fired the shot;
that one of the eyewitnesses who said that the shot
was fired by the robber on the customer side of the
counter, originally told police that she did not know
which robber shot Mr. Rigney;
' that police knew that two persons named Billy Cain
and Nathaniel Dixon had admitted to committing the
crime;
that the "squarish shaped . . . . box like" gun
described by Denise Matney as the gun held by
Chichester could not have fired the shot that killed
Timothy Rigney;
that the forensic testimony presented by the
prosecution was incorrect, and that Chichester was
never given an opportunity to rebut it with accurate
testimony which would show that there was no
physical evidence that Chichester shot Mr. Rigney.
Unfortunately, only the prosecutor and police knew
all of this evidence at the time of the trial. Chichester’s
lawyers knew some of it but did little or nothing about it.
As a result, the jurors and the surviving members of
Mr. Rigney’s family have been denied the truth about what
happened to Timothy Rigney. There was no reason that this
23
information should have been kept secret from them.
Timothy Rigney’s tragic and needless death deserves a
thorough and fair review, so that responsibility for his death
can be properly assigned and justice dispensed.
Virginia justice is strong enough to re-examine itself
when appropriate. Executing Chichester purely in
retribution for Mr. Rigney’s death, rather than with
confidence beyond a reasonable doubt that justice and
fairness have been provided to all, dishonors the
Commonwealth, the memory of Mr. Rigney and his strong
sense of Christian morality, and the citizens of the
Commonwealth called upon to make the difficult decision
whether to take a man’s life based solely on what they are
allowed to hear at a trial.
F. Jurors Who Sentenced Chichester To Death
Ask that His Execution
Not Be Carried Out In Their Names
Two of the jurors who convicted and sentenced
Chichester to death have provided affidavits stating that, had
they been presented with this evidence, they "would not
have voted to convict Mr. Chichester of capital murder[.]"
One pronounced that she "no longer ha[s] faith in [her]
verdict." The other juror implored, "[i]f this execution is to
be carried out in my name, based on my verdict, then Mr.
Chichester should not be executed."
The jury foreman also expressed to Chichester’s
24
counsel his significant concern that the new information
would have made a difference in the jurors’ deliberations,
and stated that he was considering providing a written
statement to this effect.
The Governor should not turn a deaf ear to those
citizens of the Commonwealth called upon to make the most
difficult decisions any of us could imagine: whether the
Commonwealth should put someone to death based on their -
verdict.
The Commonwealth should not impose such an
awesome responsibility upon any of her citizens without
assuring them that, should credible evidence come to light
which destroys the jurors’ confidence in their verdict, their
voices and concerns will be head. This assurance is critical
in a case, such as this one, where credible evidence goes to
the innocence of a person who is to be put to death by the
Commonwealth.
If the Governor is unwilling to hear these concerned
jurors, then all jurors or potential jurors asked to make a life
or death decision will be haunted by the fact that, should the
error of their judgement come to light after the trial, the
Commonwealth will provide no forum in which they can be
heard. .
The Commonwealth’s concern for such citizens
should be especially heightened in cases such as this one,
where the evidence of innocence so important to the jurors
25
was in the hands of the Commonwealth’s Attorney, the
police, and the court-appointed lawyers, but never was told
to jurors.
26
F. CONCLUSION
Because this case raises significant and credible
evidence that Chichester did not shoot Timothy Rigney and,
therefore, is not guilty of capital murder and is not eligible
to be-sentenced to:death, the Governor should intervene to ~
commute Chichester’s sentence to life imprisonment, or
provide such other relief as the Governor deems
appropriate.
Respectfully submitted,
CARL HAMILTON CHICHESTER
Sussex I State Prison
Waverly, Virginia
27
To The
Honorable James S. Gilmore, IIT
Governor of the Commonwealth of Virginia
APPENDIX TO
‘A PETITION
FOR
EXECUTIVE CLEMENCY
FoR
CARL HAMILTON CHICHESTER
Scheduled to be executed on
Tuesday, April 13, 1999
Table Of Contents
Commonwealth’s Answer to Motion for Discovery ................ 1
Affidavits of Detective Clifton Sowards ..........6..0.0.0c0c000. 3
Photograph of MAC UW eas so 2 so. wSwmnne ow vv sss gem oR eae EES 4
Photograph of 380 ee ceent ates eee eee)
Prince William County Telephone Book Pages .................5. 6
Affidavit of Diana T. Hyman .... 6... eee eee ee 10
Affidavit of Camille Houston .......... 0... cece cence eee ees 11
Affidavit of Assistant Commonwealth’s Attorney Richard Conway .. 13
Court Property Deed ......... eee Bincseaeneaw « « 15
Direct Appeal Brief of Chichester’s Trial Lawyer ................ 17
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4 IN THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
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| COMMONWEALTH OF VIRGINIA : :
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ilvs. : CRIMINAL NOS. 32888, :32889 :
‘| 32890, 332891 i
He
HCARL HAMILTON CHICHESTER 2 s
1
i ANSWEB Lo
COMES NOW the Commonwealth, by her counsel, and ansvers the
Motion for Discovery and Inspection previously filed herein and
states as follows: , i
1. The defendant made video taped statements to Detective
C.R. Sowards, wherein he denied involvement in the offenses
committed at Joe’s Pizza and at Little Caesar’s Pizza. This
!
,videotape may be inspected by making prior arrangements with
. Detective Sowards.
See also attached copies of three forms entitled "Plea of
Guilty to a Felony" dated July 7, 1992 and executed by the
“defendant in Criminal Numbers 30915, 20916 and 30917 in the
Circuit Court of Prince William County.
2. See attached copies of Report of Autopsy dated August
“49, 1991, and certificates of analyses dated August 23, 1991,
August 30, 1991, September 11, 1991, two (2) dated December 30,
2991, January 6, 1992, May 12, 1992 and November 16, 1992.
1 E
4 3. The attorneys for the defendant have reviewed that
“physical evidence which the Commonwealth intends to introduce in
Sits case-in-chief which is currently in the custody of the Clerk
“of the Circuit Court of Prince William County in Criminal Numbers
“32888 - 32891. Any additional evidence is in the custody and
control of the Prince William County Police Department and may be
inspected by contacting Detective C.R. Sowards.
198
i
5 1
4. Two of the eyewitnesses to these offenses, Patricia ;
1 "
i Eekert and William Fruit, initially stated that they believed the |
| setguernas to be the suspect who jumped over the counter. Eckert
ater stated that her face was buried in her boyfriend’s chest at
1
uthe time and that she did not know which suspect fired the fatal
a
shot. The Commonwealth’s evidence will show that the defendant
1
twas not the suspect who jumped over the counter.
Having fully answered fhe defendant’s Motion. for piacavery
_and Inspection, the Gommonwealth files this, her Answer.
Lhd Lert,
,RICHARD A. CONWAY, Assistant
“Commonwealth's Attorney
;County of Prince William
“9311 Lee Avenue :
‘Manassas, VA 22110
COMMONWEALTH OF VIRGINIA
CERTIFICATE
I hereby certify that a true copy of the foregoing Answer
was mailed, postage prepaid, to Bryant A. Webb, 4309 Ridgewood
“Center Drive, Woodbridge, VA 22192 and R. Randolph Willoughby,
[9259 Center Street, Manassas, VA 22110, this 20th day of August,
. tiudbba
RICHARD A. CONWAY, Assistant
Commonwealth’s Attorney
199
a _ * ; . ,
The material facts constituting probable cause tha “the search should. we
made are:
¢
On 8/16/91 at approximately 10:40 p.m., Mr. Timothy:Rigney was working
at Little Caesar’s Pizza shop located in the Manapqr€ Shopping Center,
8421. Sudley Road, Manassas, Virginia. Two subjects’ wearing ’ski masks
on their faces entered the establishment for the purpose of* robbing
the employees of money. During the course of the fobbery, one of the
subjects shot and killed Mr. Rigney as he was attempting to open one
of the registers. The autopsy on Mr. Rigney revealed he was shot
with a .380 caliber weapon, and the ammunition was silver tipped, .
hollow point ammunition, manufactured by Winchester’... A witness at the
scene observed an additional weapon of unknown caliber in the hands of
the other robber. %
Witnesses also observed one suspect climb over the -counter, and a
footwear impression was recovered from the counter area. The overall
: pattern is of a lug design sole. aoe 4
On 8/27/91, I received information from a concerned citizen that the
citizen was present when a subject identified as Billy Cain, white
male, sixteen years of age, made a statement that he and a subject
known as "L.A." went into Little Casesar’s Pizza Shoppe and that he,
Billy Cain, shot the man because he thought he was "going for a gun".
Through my investigation of police department and juvenile court
records,~-have learned the subject known as "L.A." has a real name of
Vou Je
TARA L. WEBER, MAGISTRATE 3
THIRTY-FIRST JUDICIAL DISTRICT
COMMONWEALTH OF VIRGINIA’
6
wii
Weve
254
(300 /Mac-it Im photos
teen aren
. J
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TUS Terie Logo ----20-00e---00-91-6S12
PRUEHAYR Richard R
1M Ladewe Or Hpi 222-202-206 75R-OZ3)
Feupwwsatn: aanes
PUGRTES Ai a Wg oon 49-1463
FUGATE em 2 200 Dune mx Demeres ~~ 2+ EEI-SS6
7 Oral & Prada 19538 Cartan Or wibg = 670-O604
-ntey yeagns
“IQA SNA NY egy
_. Disena To Hume , éF Gainesville. Virginia ,
dle herebuy stoti Has fellewing :
| Dwes cyrer in the 493 Copted murda
trict GF Cerl Chichester .
OB: E pave-néw : been presevcttd with :ewidende.
‘treat woo nue told te jerevs at tae bine of
trial. Tne evidence ticlecia tre fact that
there Were Initially twe witness whe Stated
tyer i Shet was fired fom the enrployce
Sick: CF tha cover at He Little Ceascirs
ESTLO ICR vt .
3. Tn ligh+ of this Ruic svidince ,ot wevld
not have voted to convict WWiv. Chichester é
capital Murdar bicewse DT have reasonclole
clovbts as to Hu identh. of +he shooter.
4. Task He Grerner to pase reeudvats
tha care in laht of tais evidence that was:
newer precentecl 40 US. 1 no longer have faith
in me, verdict. Z do wet beliece the verdict is
correct Given this evidence.
Swern 40 befere me this 287 de.
A Merch 100% .
L 2
bande. 1 Luiz wr
Wiel G
we, HE ee Bice
Vi Gui fe . {Price wh
‘a Camille Houser , cf Dats Cite, Niuaice,
do hersbr Stets the foluwing :
l Twas & joror Mm Hw FAS Copel murder
trick of Cerl Chiche-ter .
od, x Ware: ltarved Gk Via Av done that. Ts -
did wit juar ot He tw OF Hu mal.
3 TF Ted knaen Hire itidence at Ho
tiwe tried , TL wovld net have Voted te
convict Mr. Chichesttr Gf capital murder.
4 Thee new Lidunce incldes fu fact thett .
Wiliaim Fruit , on emplore at the Little Ceoscus
Restaurant , belied that We nan whe fired
tu shot was on the employee side ef the
Counter.
KT hax also learned thet Ritricia Eckert,
who tthatified co tried that « she Could not say
who fired +t shot ; intictly told police Hat
tt wos He man on ths employee side of The
counter tet Fired tha shot.
©. L doit undistand why the Jorers were not
presented with tis cVidtince at the time of trial
11
T. My dicision mm Hig Case Was Auer Atficult one.
Z Hhought tu Gase Was G Ueny low call. Given
ust Hw widen cf Willlain Frat, L wovid have
voled nok to convict Chichester cf capital
Murder.
28 tis gucoticn sto be carvud eet un muy
Nae based m my verdict , ten Mr. Chichester
Slwould net ioe Leecuted .
(ant lh, 4
Camille Houston
Sworn te before me this 27th dav of March ise!
7 Notellv Public
My Gmriission expires: 7/31 [01
12
AFFIDAVIT
Richard A. Conway, first being duly sworn, states as follows:
L Tam an Assistant Commonwealth’s Attorney for Prince William County. In 1993,
the Commonwealth’s Attorney, Paul Ebert, and I prosecuted Carl Chichester for the capital
murder of Timothy Rigney during the commission of armed robbery at Little Caésar’s
Restaurant, and also for the related crimes of robbery and the use of a firearm. The Chichester
trial commenced on September 13, 1993.
2. I also prosecuted Sheldon McDowell, Chichester’s accomplice, however,
McDowell was prosecuted for first degree murder as a eT in the second degree. The
McDowell case was tried in February, 1993, and involved the same witnesses who testified
several months later in Chichester’s trial.
3. One of the wimesses involved in the cases was a teenager, William Fruit, who
was an employee, working at Little Caesar’s on the night of the murder/robbery. Fruit gave a
statement to the police after the crimes occurred in which he stated that he believed the
triggerman had jumped over the counter. I provided this information to the defense before trial
in my written answer to the aigcoveey motion. -
4. Fruit’s parents were very protective of their son and extremely reluctant to have
him involved in the case because he had been emotionally traumatized by the event. In
preparation for the first trial in February, 1993, I requested that William Fruit be subpoenaed
to appear as a witness, however, the subpoena was returned umserved because the Sheriff's
- Office was unable to locate him. (Enclosure A, certified copy of returned subpoena). Fruit
2956
”
apparently had moved away, we were unable to find him, and he did not appear as a witness at
hated Bau
Richard A. Conway
’ Subscribed and sworn to before 'me, a Notary Public in and for the County of Prince
William, this 7” day of February, 1996.
Lenn Beers
Notary Public
My commission expires: Yarrent do, SPIT
2957 14
Petitioner Exhibit 3
eqiggy roiraz
53960
TRIG DER, mada this 2étn day of June, 1993, by and
“ petween Robert Willian PROUTY and Gloria J. BRUIT. hie wife,
Parties of the first pact, and Wayne Marvin SHITE and gun C.
frtn, hia wife, parties of the second part:
WITHESSETH: ‘thet foc end in consideration of the sur of
_ Ten Dollacs (610.09) and other good end valuable considesation,
the receipt of which is hereby acknovledged, the said parties of
(A
bet the eax iropoeed
i yea (A) lus bees pad
the first part do hereby grant. bargain. sell and convey, with
- Genexal warranty, unto the said parties of the second part. as
tenants by the entireties with the full comzon 1aw cight of
by Sectiow 18.1-802(
Tonuteraion,
Tx
‘This is © cent
aurvivocsbip, ell that certain lot or parcel of land situate,
dyiag and being in the rrince william County, Virginia, and more
particularly deacribed ao follows:
All thet certain lot, piece or parcel of land
dying and being in Princ? William County,
ixrginia,s and designates aa Lot Gre Hundred
Porty-one (141), of the subdivisien dedicated as
Trongate, Section Two-3 (2-8), -abown on plat
thereof cecorded with Deed of Dedication in the
Clerk's Office of Prince Williams County, Virginia,
in Deed Book 598, at page 493.
COvKE
VRCEMA Bhp
ve Laay
43 VA ad00
AD. a0
AS,
And Baing the same property acquired by Robert
VE William Pruit and Gloria J. Fruit by Deed recorded
in ceed Book 728. page 807 anong tne land records
of Prince William Geunty, Virginia.
H
“ The above described land iz conveyed aubject to all
os 3 easements. conditions, covenants, restciations, end rights of
way of record legally arrecting title to same.
The parties of the first part covenant that they have
the right to convey the abows described land to the seid
i parties of the secona part; thet the said pecties of the
] @ncond part shall have quict Pesswasion of the said lend,
| i
a oe y fkee fcom all encombrances, and that they, the said parties
i. of the fieat part, will execute such further assurances of
‘phe aai3 land aa may be requisite.
pF
3032
15
ewes cette
WITUESS the following signatures ond seals:
ee tab, Fm tenss
Rovert Willies Fruit
.
‘
GYosia Fevit
o +” STATE: OF VIRGINIA
COUNTY OF FRINCE WILUIANstowwits
The foragoing inetrument was acknowledged before ne
this 26th day of Junc, 1991, by Robert William Pruit and
+ Gloria J. Fruit.
My commission expires: Jhbalee
BSCSELIA weCRteicAC aw 533
; 92 UN29 FH I 96
PRINCE W.t14H cous
vest "6 ptt: 3033
16
: "Supreme. Court of ‘Virginia ie
"RECORD NO." 40x30 oa
CONS..W/ 940131
OO Appellais.
COMMONWEALTH OF VIRGINIAS
i “Appellee. Swe
2 a
BRIEF OF APPELLANT _
: R. Ragdolph; *iligusbby Bryant AcWebb te
Al y at, im, Attorneys se
9259 Center treet’
“Managsas,. Virginia eee
in
(703) 361: -2142,
CITATION LIST
ASSIGNMENT OF ERRORS
STATEMENT OF FACTS
_ ARGUMENT
SUMMARIZATION
SUBJECT INDEX
2294
18
CITATION
Barefoot v. Estelle 463
Barnes v. Commonwealth 234
Bellefield v. Commonwealth 215
Bennett ve Commonwealth ° 236
Brady v. Meryland 375
Brown v. Ohio 432
California v. Brown 479
California v. Trombella 467
Curtis v. Commonwealth
Dorantes v. Commonwealth 222
Eddings v. Oklahoma 455
Edmonds v. Commonwealth 229
Fisher v. Commonwealth 236
Foster v. Commonwealth
Francis v. Franklin 471
Furman v. Georgia 408
Giglio v. U. S. 405
Giles V. Maryland 386
Godfrey v. Georgia 446
Godwin v. Commonwealth
Gray v. Commonwealth 233
eane
U.S. 880 (1983)
Va. 130; 360 S.E.2d 196 (1987)
Va. 303; 208 S.E. 2d 771 (1974)
Va 472; 347 S.E. 24 318 (1988).
U.S. 83 (1962)
U.S. 161 (1977)
U.S. 538 (1987)
U.S. 479 (1984)
3 Va. app 636; 352 S.E. 2d 536
(1987)
Va. 383; 281 S.E.2d 823 (1981)
U.S. 104 (1981)
Va. 303; 329 S.E. 24 807 (1985)
Va. 403; 374 S.E. 24 46 (1988)
5 Va. app 316; 362 S.E. 2d 745
(1987)
U.S. 307 (1985)
U.S. 238 (1972)
U.S. 150 (1972)
U.S. 66 (1967)
U.S. 420 (1980)
6 Va. app. 118; 367 S.E. 24520
(1988)
Va. 313; 356 S.E. 2d 157 (1987)
19
Gregg v. Georgia
Hawks v. Commonwealth
Henderson v. Commonwealth
Hitchcock v. Dugger
Hoke v. Commonwealth
Johnson v.. Commonwealth ..
Johnson v. Mississippi
Kirkpatrick v. Commonwealth
La Farce v. Commonwealth
Locket v. Ohio
Lovely v. U.S.
Martin v. Commonwealth
Maryland v. Carwright
Meadows v. Commonwealth
Mills v. Maryland
Minor v. Commonwealth
- Murray v. Gearratani
Parker v. Commonwealth
Praffit v. Florida
Pulley v. Harris
Roberts v. Louisiana
~ Rider v. Commonwealth
2296
a
428 U.S. 153 (1976)
228 Va 244; 321 S.E. 2d 650 (1984)
5 Va. app 125; 360 S.E. 2d 876
(1987)
481 U.S. 393 (1987)
236 Va 472; 374 S.E. 2d 66 (1989)
3 Va. app 4443350 S.E. 2d 673
(1986)
105 S. Ct. 198 (1988)
211 Va. 269; 176 SE 2d 802 (1970)
14 Va. app 588; 419 S.E. 2d 261
(1992)
438 U.S. 586 (1978)
169 F2d 386 (1948)
221 Va. 436; 271 SE 2d 123 (1980)
108 S. Ct. 1853 (1988)
9 Va. app 243; 385 S.E. 2d 906
(1989)
108 S. Ct. 1860 (1988)
213 Va 278; 191 S.E 2d 825 (1972)
109 S. Ct. 2765 (1989)
14 Va. app. 592; 421 S.E. 24 450
(1992)
428 U.S. 424 (1976)
104 S. Ct. 871 (1984)
428 U.S. 325 (1976)
8 Va app. 595; 383 S.F. 2d 25
(1989) ‘
20
Roviaro v. U.S.
Sandstrom v. Montana
Skipper v. South Carolina
Smith v. Commonwealth
Spencer v. Commonwealth
Sutphin v. Commonwealth
Stockton v. Commonwealth
Stockton v. Commonwealth
Stout v. Commonwealth
Towns v. Commonwealth
Turner v. Commonwealth
U.S. v. Agurs
U.S. v. Bagley
Watkins v. Commonwealth
White v. Commonwealth
Whitley v. Commonwealth
Woodson v. North Carolina
353 U.S. 53 (1957)
442 U.S. 510 (1979)
476 U.S. 1 (1986)
243 Va. 543; 248 S.E. 2d 135 (1978)
240 Va. 78; 393 S.E. 2d 609 (1990)
1 Va app. 241; 337 S.E. 2d 897
(1985)
227 Va. 124s 314 S.E."2d 371 (1984)
241 Va. 192; 402 S.E. 2d 196
(1990)
237 Va. 126; 376 S.E. 2d 88 (1989)
234 Va 307; 362 S.E. 2nd 650 (1987)
234 Va. 543; 364 S.E. 2d 483
(1988)
427 U.S. 97 (1976)
473 U.S. 667 (1985)
229 Va. 469; 331 S.E. 2d 422 (1985)
9 Va app. 366; 388 S.E.2d 645
(1990) :
223 Va. 66; 286 S.E. 2d 162
(1982)
428 U.S. 280 (1976)
Rule 3A:11 Supreme Court of Virginia
Virginia Code Section 8.01-360
Virginia Code Section 17-110.1
Virginia Code Section 18.2-31
1950 as amended
1950 as amended
1950 as amended
Virginia Code Section 18.2-53.1 1950 as amended
2297-
21
Virginia Code Section 19.2-68 1950 as amended
Virginia Code Section 19.2 264.2-5 1950 as amended
Jury Selection Procedures (Ballinger 1977)
2298
22
ASSIGNMENT OF ERRORS
1g The Sentence of death and sentences of imprisonment
imposed herein were imposed under. the influence of passion,
prejudice, and were arbitrary.
2. The sentence of death, and sentences of imprisonment,
imposed herein were excessive or disproportionate to the penalty
“ imposed in similar: cases.
3. That the trial court committed reversible error in
permitting the introduction of evidence, both testimonial and
actual, of and from prior adjudications of guilt; to wit; Joe's
Pizza. ,
4, That the trial court committed reversible error in
permitting the introduction of evidence, both testimonial and
actual, of and from prior adjudicated and unadjudicated
crimes/offenses, in addition to Joe's Pizza.
5. That the trial court committed reversible error in
permitting the introduction of evidence, both testimonial and
actual, of Appellant's possession of a weapon not used in the
crime at issue: to; Little Caesar's Pizza.
6. That the trial court committed reversible error in
permitting the introduction of evidence, both testimonial and
actual, which was irrelevant to the crimes allegedly committed in
this case.
7. That the trial court committed reversible error in
permitting the introduction of Appellant's plea of guilt, and
2299 23
evidence of his guilt, of the Joe's Pizza crimes after the
Commonwealth agreed with Appellant's prior counsel not to
introduce evidence of Appellant's guilt in the trial of the
Little Caesar's matter except under certain circumstances. Those
circumstances did not arise in this matter.
- 8. That the Commonwealth's Attorneys were guilty of
prosecutorial misconduct in preseim@iag Svidence of a prior crime: .
“hbo wit; Joel é Pizza, after agreeing not to do so with Appellant's
previous counsel.
9. That there was insufficient evidence to sustain a
conviction in this matter beyond a reasonable doubt and that the
trial court committed reversible error in failing to set aside
jury verdict.
10. That the trial court committed reversible error in
failing to grant Appellant an evidentiary hearing, and to
otherwise accept avidéuce, oa the issue of the constitutionality
of imposition of the death penalty be electrocution.
ll. That death by electrocution is cruel and unusual
punishment and violative of the Fourth, Fifth, Eighth and
Fourteenth Amendments to the United States Constitution and
pursuant to Article I Section 8 of the Virginia Constitution.
12. That the death penalty is cruel and unusual punishment
and violative of the Fourth, Fifth, Eighth, and Fourteenth
Amendments to the United States Constitution and pursuant to
2300
24
Article I Section 8 of the Virginia Constitution.
13. That the death penalty as imposed by Virginia, and all
statutory authority for the imposition of the death penalty and
the trial of death penalty cases in Virginia, are violative of
the Fourth, Fifth, Eighth and Fourteenth Amendments to the United
States Constitution and pursuant to Article I Section 8 of the
_ Virginia Constitution.
14. That the trial court committed raverdible évfor in
failing to grant Appellant's motions for continuance.
15. That the trial court committed reversible error in
failing to grant Appellant's requests for appointment of an
independent investigator.
16. That the trial court committed reversible error by
excluding two blacks (i.e. African American) as jurors.
17. That the jury panel did not contada sufficient blacks
(i.e.. African Americans).
18. That the trial court committed reversible error in not
permitting Appellant to ask all of his proffered voir dire
questions and to ask many of those questions in the form so
proffered.
19. That the trial court committed reversible error in
failing to permit individual voir dire.
20. That the trial court committed reversible error in
excluding jurors who would not vote for the death penalty.
2301
25
a
~
21. That the trial court committed reversible error in failing
to change venue.
22. That the trial court committed reversible error in
failing to sequester the jurors.
: 23. That the trial court committed reversible error in
failing to permit additional preemptory challenges.
24. That the trial court committed reversible error in
permitting the introduction of inflammatory photographs.
25.- That the trial court committed reversible error in
failing to grant each of Appellant's mistrial motions.
26. That certain members of the jury were prejudiced toward
a verdict of guilt and did not deliberate presuming Appellant's
innocence.
27. That the trial court committed reversible error -in
failing to sustain each and every one of Appellant's objections
and motions.
2302
26
IN THE :
SUPREME COURT OF VIRGINIA
AT RICHMOND
CARL HAMILTON CHICHESTER,
APPELLANT,
ve
COMMONWEALTH OF VIRGINIA
APPELLEE.
STATEMENT OF FACTS
On the 16th day of August 1991 in the County of Prince
William, two armed men wearing ski masks entered Little Caesar's
Pizzeria in the Manaport Shopping Center between 10:30 p.m. and
11:00 p.m.. During the commission of the armed robbery one of
the perpetrators shot to death (30) year old Timothy A. Rigney
the store's aawayers The shooting took place in front of two
employees and two customers. Then both robbers fled the Pizzeria
on foot and turned right going through.a breeze way out to a side
street. At the avyprozimdce time of the robbery Jack Gill
Burdette was crossing the side street toward two men who were
running from the Manaport shopping center in his direction.
Neither man was wearing a mask nor were they observed carrying a
gun. The two passed within (10) feet of Burdette and he
recognized one as being Carl H. Chichester a person that Burdette
had previously-dealt with. Burdette advised the Prince William
2303 27
County Police of the identification of Chichester and after
extensive police investigation, it was determined the other
runner was believed to be Sheldon M. McDowell. On the Ist of
March, 1993 Carl Chichester was indicted in Prince William County
for armed robbery, use of a firearm and capital murder. Sheldon
McDowell who had been indicted earlier was tried'on the 22nd day
of February, 1993 to. the reduced charge of Ist degree murder and
found guilty. Carl Chichester was tried on the 14th day of
September, 1993 in the Circuit Court for Prince William County,
found guilty of capital murder and sentenced to death.
During the police investigation and at the time of
Chichester's arrest an automatic pistol was found in his
possession, however through ballistic's test the gun that
Chichester was found in possession of at the time of his arrest
was not the gun that fired the projectile that killed Timothy A.
Rigney on the 16th of August 1991 in Little Caesar's Pizzeria.
The gun that fired the projectile that killed Timothy A. Rigney
was never recovered, although Richard Fairfax, ( 6 time convicted
felon) testified at Chichester's trial that he went to Maryland
one night and sold a gun for Chichester but did not really know
the caliber of the gun that was sold. During Chichester's trial,
Chichester never took the stand to testify and explain any
charges and or evidential testimony that the Commonwealth
presented.
2304 28
ARGUMENT
I
The sentence of death and sentences of imprisonment
imposed were imposed under the influence of passion, prejudiced.
During the trial of Chichester in the shooting death of
Timothy A. Rigney, Rigney's mother and other family members were
setting just next to the jury box and in plain view of the entire
jury for no other than influencing the jury with passion.
During the empanelment of the jury the Commonwealth
Attorney was allowed to strike two members of the jury panel, who
were black, for no apparent reason other than the defendant being
black. Such action by the Commonwealth Attorney was for no other
reason other than prejudice, because the defendant was black
Ir
The sentence of death; and sentences of imprisonment
imposed were excessive or disproportionate to the penalty imposed
in similar cases.
Although there was no conclusive evidence that Sheldon
McDowell the co-defendant did or didn't fire the murder weapon,
especially in light of the fact that the murder weapon was never
found-and the gun in Chichester's possession at the time of his
arrest was scientifically proven not to be the murder weapon,
McDowell's charge was reduced to urst . seaee’ murder. The
reduction of McDowells charge prevented him from receiving a
2305
29
death sentence. On the other hand. Chichester's. charge remained
at capital murder and armed robbery,, thus allowing Chichester to
receive life, as well as death, even though no reliable evidence
known to the Commonwealth could link Chichester with the murder
weapon, other than speculation.
Til
The trial court committed Feversible error in
permitting the lureeaueeiex of evidence both testimonial and
actual, of and from prior adjudications of guilt -to-wit; Joe's
Pizza. On several occasions Officer Sowards was allowed to
testify and comment on Chichester's prior involvement in Joe's
Pizza's robbery and what transpired during the Joe's Pizza's
trial of Chichester, (Vol. VI p. 1933-1940 and Vol V p. 1737-
1750.) even though by a previous plea agreement the Commonwealth
Attorney agreed not to do so, except for relevance and
impeachment. (Vol I p.2) At no time whatsoever did Carl
Chichester take the stand and testify. The Commonwealth will
argue that the defence actually brought out through cross
examination of Officers Sowards, Chichester's involvement in
Joe's Pizzeria robbery. However, the Commonwealth initiated the
testimony of prior criminal robberies (Vol. VII p. 1993-40) and
defence counsel must make ever effort to mitigate such testimony.
This evidence was allowed even though Chichester had a plea
agreement that the Commonwealth would not use other criminal
activity, as incentive for Chichester's pleas to Joe's Pizza (Vol
Ip. 2).
2306 a. 30
Iv
The trial court committed reversible error in
permitting the introduction of evidence, both testimonial and
actual, of and from prior adjudicated and unadjudicated
crimes/offenses in addition to Joe's Pizza. Even though agreed
by the Commonwealth (Vol I p. 2) that prior crimes would not be
entered through testimony at any subsequent trial, it was so done
and the trial Judge allowed it over objection. This. evidence was |
allowed in spite of the fact that Chichester had not testified
prior to the introduction of such evidence nor did Chichester
even testify in the trial.
v
The trial court committed reversible error in
permitting the introduction of evidence, both testimonial and
actual, of Appellant's possession of a weapon not used in. the
crime at issue: to-wit; Little Caesar's Pizza.
When Chichester was arrested on the 7th day of January
1992, he was found in possession of a hand gun that neither
matched the hand gun in appearance or caliber of the hand gun
used in the murder of Timothy A. Rigney. The only usefulness of
that evidence was to prejudice the jury against Chichester.
vI
The trial court committed reversible error in
permitting the introduction of evidence, both testimonial and
actual, which was irrelevant to the crimes allegedly committed in
2307
31
ee ~
this case. Prince William County Police Officer Sindy Leo was
allowed to testify about arrests in 1990 that she participated
in, of Carl Chichester for crimes that only had the effect of
prejudicing the jury, (Vol. VI p. 1931) the crime had no relation
or relevance to the murder charge. Officer's arrest of
Chichester couldn't even show the mode of operation in any way to
the Little. Caesar's» Pizza crime.
VII
The trial court committed reversible error in
permitting the introduction of Appellant's plea of guilt, and
evidence of his guilt, of the Joe's Pizza crimes after the
Commonwealth agreed with Appellant's prior counsel not to
introduce evidence of Appellant's prior crimes at any subsequent
trials, except under certain circumstances. The only similar
circumstances of the two robberies that they both were committed
by two individuals, who were masked wearing dark clothing. That
evidence would have the same similarity of just about 100% of all
robberies throughout the Nation let alone Virginia.
VIIL
The Commonwealth's Attorneys were guilty of
prosecutorial misconduct in presenting evidence of a prior crime;
after agreeing not to do so with Appellant's previous counsel
(Vol. I p.2). When the prosecutor induces one to plea guilty to
a crime by assuring him that the guilty pleas will not be used
against him in subsequent trials, then the: Commonwealth
2308 32
disregards his promise, that in the belief of the defence is
prosecutorial misconduct. (Vol. VI p. 2105-2113).
Ix
There was insufficient evidence to sustain a conviction
in this matter beyond a reasonable doubt and that the trial court
committed reversible error in failing to set aside the jury
verdict. At no time during the Little Caesar's Pizza trial was
' Carl Chichéster ever identified.as the perpetrator of the murder.
x
The trial court’ committed reversible error in failing
to grant Appellant an evidentiary hearing, and to accept evidence
on the issue of the constitutionality of imposition of the death
penalty by electrocution. It is the Appellant's position that
death by electrocution is cruel and unusual punishment, in fact
some states have already so decided, and Virginia is starting to
re-evaluate the harshness of death by electrocution by allowing
the condemned to choose between electrocution and lethal
injection,
XI
Death by electrocution is cruel and unusual punish
and violative of the Fourth, Fifth, Eighth and Fourteen Amendment
to the Constitution, as well as Article I Section 8 of the
Constitution of Virginia.
No person shall be compelled in any criminal case to be.
a witness against himself nor be deprived of life, liberty or
ae
2309
33
Property, without due process of law, nor cruel and unusual
punishment inflicted.
It is believed by the Appellant that the testimony of
Officer Sowards, (Vol V p. 1737-50 and Vol VI p.1933-40) and the
testimony of Officer Sindy Leo (Vol VI p. 1931) was violation of
due process, as well as the sentencing the Appellant to death
violates his Constitutional right of due process, as well as,
receiving cruel and unusual punishment. The testimony of officer
Sowards and Leo as given is tantamount to the Appellant being
forced to give testimony against himself in violation of his
constitutional right as stated in the United States Constitution.
XII
The death penalty is cruel and unusual punishment and
violative of the Fourth, Fifth, Eighth and Fourteenth Amendments
to the United States Constitution and the Virginia Constitution's
Article I Section 8.
The prolonged pain of death by electrocution as
Appellant was sentenced under the laws of Virginia is inhuman,
and therefore, cruel and unusual.
, XIII
The death penalty as imposed by Virginia, and all
Statutory authority for the imposition of the death penalty and
the trial of death penalty cases in Virginia are violative of the
Fourth, Fifth, Eighth and Fourteenth Amendment to the United
States Constitution, and to Article I Section 8 of the Virginia
2310 34
Constitution.
It is believed by your Appellant that his trial
violated the Virginia and United States Constitutions due process
clause, when the trial Judge allowed into evidence that which
allowed Appellant to be found guilty and sentenced to death by
_, ¢hectrocution.
, — yIv
The trial court committed reversible error in failing
to grant Appellant's motion for continuance. Also by not
granting the appointment of an investigator. Appellant needed
more time to investigate his case and the denial of a continuance
did not allow the needed time to find persons whose names had
been submitted to the court, as possible perpetrators of the
crime for which Appellant was accused.
Xv
The trial court committed reversible error in failing
to grant Appellant's requests for appointment of an independent
investigator.
, Appellant through the work of his two representatives
counsels discovered the names of persons who had made statements
to .reliable citizens (Vol I p.249-254) that they had committed
the crime for which Appellant was charged. Time being of the
essence appellant motion for a continuance (Vol I p. 357) and
Vol. 1 p.. 247), to allow time for those individuals to be found,
with the help of an investigators. Both motion were denied by
2311 35
the court in violation of due process, and Appellant's
Constitutional rights of a fair and impartial trial were
violated.
XVI
The trial court committed reversible error by excluding
two blacks (i.e. African Americans) as jurors.
The trial court allowed the Commonwealth to strike two
“Blacks for “apparently no réason whatsoever other than they were
black and the Appellant is also black.
XVII
The jury panel did not contain sufficient blacks for
the Appellant who is black to receive a fair trial representative
of the percentages of the number of black residing in the
community.
Appellant only had three blacks on the entire panel and
-two of which were’ struck by the’ Commonwealth for no reason other
than being black, (Vol 1 p.360). The other one was a young black
lady. The total padet of prospective jurors was fifty. The (3)
blacks on the panel of fifty represented only (62) of the total
panel and only one black on the jury selection of fourteen, (two
being emergency spares), the jury selection was represented by
only 7.1% of black persons, Neither 6% or 7.1% represent the
proper percentage of blacks residing in the County of Prince
William nor in the State of Virginia. With the total population
of the United States being 12% black, Appellant “did not have a
36
fair representation of blacks on the jury panel nor the’ selected
jury for Appellant to receive a fair trial by a proper
representative of his peers.
XVIII
The trial court committed reversible error in not
permitting Appellant to ask all of his proffered voir dire
questions and to ask many of those questions in the form so
proffered. ee : :
Appellant believed in order to receive a fair trial
that he should be allowed to ask as many voir dire questions as
he would like as long as the questions are relevate to the proper
discovery of attitudes, back grounds and beliefs of perspective
jurors as maybe germane to the crime as charged.
XIX
The trial court committed reversible error in failing
to permit individual voir dire. Appellant believes, given the
nature of his charge, and based on the type of punishment he
could receive, voir diring prospective jurors in groups,
regardless how small, has the tendency of panel members not
giving answers they believe, but to give answers that their
perspective panel members would agree.
XX
The trial court committed reversible error in excluding
juror's who would not vote for the death penalty.
-ll-
2313
37
Appellant believes by the court excluding prospective jurors who
did say they could not vote for the death
penalty especially in front of other prospective jurors, gave
the impression to other perspective jurors, that should they find
the accused guilty they would have no other choice but to
sentence him to death.
XXI
The trial ‘court committéd reversible’ error in failing
to change venue.
Appellant believe that because of the local media
coverage this case received, it was impossible and highly
improbable that without a change of venue, Appellant did not nor
could he have received a fair trial from a jury who was totally
uninformed or opinionated about the murder at Little Caesar's
Pizzeria.
XXII
The trial court committed reversible error in failing
to sequester the jurors.
Appellant believed that with a trial of this magnitude
and media publicity, that a murder trial receives, the only safe
way to receive a fair trial is for the juror's to be sequester
thus preventing outside influence imposed upon the them.
XXIII ,
The trial court committed reversible error in failing
-12-
: 2314
38
to permit additional preemptory challenges.
Appellant believes that since the trial was begun with
a prospective fifty juror panel (Vol I p.228), he should be
allowed the percentage of preemptory challenges based on the
number of jurors in the juror panel, especially when he would be
allowed (4) preemptory challenges with a twenty juror panel.
XXIV_
The trial court committed reversible error in
permitting the introduction of inflammatory photographs.
Appellant believes gory colored photographs has no real
value other than infuriating the juror so they will be prejudice
against the defendant.
XXV
The trial court committed reversible error in failing
to grant each of Appellant's mistrial motions.
Appellant believes the trial court should not have
allowed any evidence of prior arrests of Appellant nor evidence
of prior pleas when the Appellant had entered into previous
dgreenente that such evidence would not be admitted. The court
therefore should have granted the motion for a mistrial.
XXVI
Certain members of the jury were prejudiced toward a
verdict of guilt and did not deliberate presuming appellants
innocence.
-13-
2315
39
Appellant does not believe a jury of any even make-up
could review the evidence of his trial as quickly as they did in
rendering a decision.
XXVII
The trial court committed reversible error in failing
to sustain each aad Syseyone of Appellant's objections and
motions.
Appellant believes each and every one-of his motions
should have been granted especially in light of the seriousness
of his trial, and none of his motions were frivolous. Appellant
‘further believes that all of his objections were well founded and
for the court to deny them as was done in open court, he was
prejudiced in front of the jury.
-14-
40
SUMMARY
Your Appellant petitions this court to reverse the
decision of the Circuit Court for Prince William County and
thereby granting him a new trial. Appellant believes that among
the many errors as cited in this petition the most damaging was
the allowing into testimonial and exhibited evidence from prior
charges, especially after the Commonwealth Attorney had agreed in
writing that he would wet. The free. vS11 allowing’ of other
evidence only prejudiced the jury against Appellant. Especially
‘since the gun that was admitted into evidence could not have been
the gun that fired the shot that killed the murder victim in this
case. The murder weapon was never found and only speculative
testimony from a (6) time convicted felon, who was getting
favorable treatment by the Commonwealth, gave any evidence that
there was another gun. The testimony of the other gun by the (6)
time convicted felon was not positive of the caliber. Appellant
believes that speculative testimony such as given by the (6) time
convicted felon concerning the gun should not have been allowed.
Appellant believes that he did not receive a fair trial
by the trial court, when he was not allowed the appointment of an
investigator to help in locating the two persons who were over
heard by a concern citizen stating that one of them had committed
the crime for which Appellant was charged. Under the
discovery as granted by the trial court nothing was ever
mentioned by the Commonwealth's answers about the persons who
2317
41
etatements that they had committed the crime for which
Appellant was charged. The Commonwealth never made mention of
any ytatenents made, nor who made them, even though a-search
warrant was obtained by the Prince William County police
concerning the statements made. When it was discovered that the
person who made the statements had moved from the known residence
nothing further was” pursued by the police nol was any weAtton
ever made by the Commonwealth through discovery about someone
having stated that he had committed the murder for which the
Appellant was charged.
Appellant further believes he did not nor could he
have, received a fair trial from his peers when it is
mathematically proven that Appellant did not receive a trial by
his peers. There was only one black on the jury and only three
blacks among the panel. With everything as presented by
Appellant in his appeal brief, it is believed that Appellant not
only did not receive a fair and impartial trial, but it was
impossible for a fair and impartial trial under the circumstances
he was tried.
It is therefore, prayed by your Appellant that the
decision of the Prince William Circuit Court be reversed and his
case be remanded back to the Circuit Court of Prince William
County for a new trial with the granting of an investigator and
exclusion of prior criminal activity as set out in the agreement
of the Commonwealth Attorney, unless it is shown that the
~is- 42
introduction of such complies with the law of the State Virginia
and the United States Constitution.
Respectfully submitted,
CARL HAMILTON CHICHESTER
., By. Counsel
andol
WilTotghby, Esqtir
Bryant A
ebb, Esquire
R. Randolph Willoughby
Attorney at Law
9259 Center Street
Manassas, Virginia 22110
(703) 361-2142
Bryant A.. Webb
Attorney at Law
4300 Ridgewood Center Drive
Woodbridge, Virginia 22192
(703) 570-7600
17S
. 2319
43,
CERTIFICATE OF SERVICE
I hereby certify that Rule 5:26 has been complied with by
filing 20 copies of the foregoing Brief of Appellant and Joint
Appendix with the Clerk of the Supreme Court and that I have hand
delivered 3 copies of the same to Kathryn P. Baldwin, Assistant
me
Attorney General, 101 North Eighth: Street, Richmond, Virginia
23219, this 8th day of March, 1994.
y) 24
g Lee LA LLL
R. Randolph Wi oughby ZT
Attorney a” Law
9259 Center Stret
Manassas, Virginia ” 22110
(703) 361-2142
2320 ee OP ON ei
